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Saturday, March 12, 2016

SIXTIETH DAY

[MR. SPEAKER, MR. ARMSTEAD, IN THE CHAIR]

 

 

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

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

            The Clerk proceeded to read the Journal of Friday, March 11, 2016, being the first order of business, when the further reading thereof was dispensed with and the same approved.

Committee Reports

            Delegate McCuskey, Chair of the Joint Committee on Enrolled Bills, submitted the following report, which was received:

            Your Joint Committee on Enrolled Bills has examined, found truly enrolled and, on the 11th day of March, 2016, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:

 

(Com. Sub. for H. B. 2122), Making it illegal for first responders to photograph a corpse; Jonathan's Law,

(Com. Sub. for H. B. 2801), Permitting county commissions and municipalities to designate areas of special interest which will not affect the use of property in those areas,

(Com. Sub. for H. B. 2823), Eliminating the street and interurban and electric railways tax,

(H. B. 4160), Making a supplementary appropriation to the Department of Revenue, Tax Division,

(Com. Sub. for H. B. 4209), Relating generally to health care provider taxes,

(Com. Sub. for H. B. 4225), Relating to patriotic displays at public buildings,

(Com. Sub. for H. B. 4322), Expanding the Learn and Earn Program,

(Com. Sub. for H. B. 4377), Eliminating exemption from hotel occupancy taxes on rental of hotel and motel rooms for thirty or more consecutive days,

(Com. Sub. for H. B. 4433), Allowing an adjustment to gross income for calculating the personal income tax liability of certain retirees,

(Com. Sub. for H. B. 4520), Clarifying that certain hospitals have only one governing body whose meetings shall be open to the public,

(H. B. 4617), Authorizing legislative rules of the Higher Education Policy Commission regarding the Underwood-Smith Teacher Scholarship Program and Nursing Scholarship Program,

            (S. B. 29), Tolling statute of limitations in certain cases,

            (Com. Sub. for S. B. 102), Conforming to federal Law-Enforcement Officers Safety Act,

            (S. B.  271), Conforming definition of attest services to Uniform Accountancy Act,           

(Com. Sub. for S. B. 274), Relating to increasing civil jurisdictional amount in magistrate courts,

            (Com. Sub. for S. B. 303), Providing for 5-day resident fishing license,

            (S. B.  483), Marshall County LSIC waiver,

            (Com. Sub. for S. B.  500), Authorizing Superintendent of State Police hold training classes to use West Virginia Automated Police Network,

            And,

            (S. B.  507), Exempting motor vehicles engaged in nonemergency transport of Medicaid recipients from PSC permit requirements.

Mr. Speaker, Mr. Armstead, Chair of the Committee on Rules, submitted the following report, which was received:

S. C. R. 1, Urging Congress propose regulation freedom amendment,

And reports the same back with recommendation that it be adopted.

At the respective requests of Delegate Cowles, and by unanimous consent, the resolution was taken up for immediate consideration and adopted.

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

Mr. Speaker, Mr. Armstead, Chair of the Committee on Rules, submitted the following report, which was received:

            Com. Sub. for H. C. R.  16, U.S. Army PFC John Ira Pinkerman Memorial Bridge,

Com. Sub. for H. C. R.  22, U. S. Army SGT Gary Lee DeBoard Memorial Intersection,

Com. Sub. for H. C. R.  26, Corporal Gary Wayne Weekley Memorial Bridge,

Com. Sub. for H. C. R.  27, Michael Angiulli Memorial Bridge,

Com. Sub. for H. C. R.  30, U.S. Army PFC Everett Henry Woody Memorial Bridge,

Com. Sub. for H. C. R.  33, U.S. Army Air Force S/SGT Harold 'Dean' Baker Memorial Bridge,

Com. Sub. for H. C. R.  37, U.S. Army SGT Arthur George Roush Memorial Bridge,

H. C. R.  42, WVSP Tpr. Phillip S. Kesner Memorial Bridge,

Com. Sub. for H. C. R.  75, U.S. Army SSG James C. Vickers and U.S. Marine Corps PFC Randall Carl Phelps Memorial Bridge,

H. C. R.  84,U.S. Marine Corps Cpl Mark Douglas Cool Memorial Bridge,

Com. Sub. for H. C. R.  85, U.S. Navy MM2 Carl E. Keeney and U.S. Army PFC Carl M. Nicholas Memorial Bridge,

Com. Sub. for H. C. R.  92, Captain John Bond and the West Virginia State Troops Memorial Bridge,

H. C. R.  98, Study on lowering the state's overall sales and use tax rate,

H. C. R.  99, Requesting the Joint Committee on Government and Finance to study and review current law, procedure and public services intended to protect against senior citizen financial abuse,

H. C. R.  106, Requesting the Joint Committee on Government and Finance to study direct primary care,

H. C. R.  107, Requesting the Joint Committee on Government and Finance to study the civil commitment laws within West Virginia,

H. C. R.  108, Requesting the Joint Committee on Government and Finance to study and review surprise medical bills,

H. C. R.  109, Requesting the Joint Committee on Government and Finance conduct an interim study of the feasibility of public virtual online schools,

H. C. R.  111, Requesting the Joint Committee on Government and Finance to study the issues, needs and challenges facing senior citizens,

H. C. R.  112, Requesting study on interscholastic student athlete safety issues,   

H. C. R.  113, Requesting Joint Committee on Government and Finance to establish a select committee to study all aspects of the lottery,

H. C. R.  114, Requesting the Joint Committee on Government and Finance to conduct an interim study on the best practices in technology procurement,

Com. Sub. for S. C. R.  27, Herman Daner Rogers Memorial Bridge,

S. C. R.  32, CW2 Robert D. Taylor Memorial Bridge,

S. C. R.  36, US Army SPC5 Joseph Richard “Rick” Schafer Memorial Bridge,

S. C. R.  39, Clifford Family Memorial Bridge,

S. C. R.  45, US Army SGT Deforest Lee Talbert Memorial Bridge,

And,

S. C. R.  64, Requesting DOH study 2015 performance audit and report to Joint Committee on Government and Finance any action taken as result of audit,

And reports the same back with recommendation that they each be adopted.

            At the respective requests of Delegate Cowles, and by unanimous consent, the resolutions were taken up for immediate consideration and adopted.

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

Messages from the Executive

            Mr. Speaker, Mr. Armstead, presented a communication from His Excellency, the Governor, advising that on March 10, 2016, he approved H. B. 4157, H. B. 4159, Com. Sub. for H. B. 4279, H. B. 4324, Com. Sub. for H. B. 4540, H. B. 4654, H. B. 4674, H. B. 4735 and S. B. 379.

Messages from the Senate

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4013, Requiring a person desiring to vote to present documentation identifying the voter.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the following Senate amendments were reported by the Clerk:

 

“That §3-1-34 and §3-1-41 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §3-1-51; that §3-2-11 and §3-2-12 of said code be amended and reenacted; and that §17B-2-1 of said code be amended and reenacted, all to read as follows:

CHAPTER 3.  ELECTIONS.

ARTICLE 1.  GENERAL PROVISIONS AND DEFINITIONS.

§3-1-34. Voting procedures generally; identification; assistance to voters; voting records; penalties.

(a) Any A person desiring to vote in an election shall, upon entering the election room, clearly state his or her name and residence to one of the poll clerks who shall thereupon announce the same in a clear and distinct tone of voice. For elections occurring on or after January 1, 2018, the person desiring to vote shall present to one of the poll clerks a valid identifying document meeting the requirements of subdivision (1) of this subsection, and the poll clerk shall inspect and confirm that the name on the identifying document conforms to the name in the individual's voter registration record and that the image displayed is truly an image of the person presenting the document.  If that person is found to be duly registered as a voter at that precinct, he or she shall sign his or her name in the designated location provided at the precinct. If that person is physically or otherwise unable to sign his or her name, his or her mark shall be affixed by one of the poll clerks in the presence of the other and the name of the poll clerk affixing the voter's mark shall be indicated immediately under the affixation. No ballot may be given to the person until he or she signs his or her name on the designated location or his or her signature is affixed thereon.

(1) A document shall be deemed to be a valid identifying document if it:

(A) Has been issued either by the State of West Virginia, or one of its subsidiaries, or by the United States Government; and

(B) Contains the name and a photograph of the person desiring to vote.

(2) Notwithstanding the provisions of subdivision (1) of this subsection, the following documents, if they contain the voter’s name, shall be considered valid identifying documents, and a person desiring to vote may produce any of the following:

(A) A valid West Virginia driver’s license or valid West Virginia identification card issued by the West Virginia Division of Motor Vehicles;

(B) A valid driver’s license issued by a state other than the State of West Virginia;

(C) A valid United States passport or passport card;

(D) A valid employee identification card with a photograph of the eligible voter issued by any branch, department, agency, or entity of the United States Government or of the State of West Virginia, or by any county, municipality, board, authority, or other political subdivision of West Virginia;

(E) A valid student identification card with a photograph of the eligible voter issued by an institution of higher education in West Virginia, or a valid high school identification card issued by a West Virginia high school;

(F) A valid military identification card issued by the United States with a photograph of the person desiring to vote;

(G) A valid concealed carry (pistol/revolver) permit issued by the sheriff of the county with a photograph of the person desiring to vote;

(H) A valid Medicare card or Social Security card;

(I) A valid birth certificate;

(J) A valid voter registration card issued by a county clerk in the State of West Virginia;

(K) A valid hunting or fishing license issued by the State of West Virginia;

(L) A valid identification card issued to the voter by the West Virginia Supplemental Nutrition Assistance (SNAP) program;

(M) A valid identification card issued to the voter by the West Virginia Temporary Assistance for Needy Families (TANF) program; 

(N) A valid identification card issued to the voter by West Virginia Medicaid;

(O) A valid credit card;

(P) A valid bank card or valid debit card;

(Q) A valid utility bill issued within six months of the date of the election;

(R) A valid paycheck issued within six months of the date of the election;

(S) A valid bank statement issued within six months of the date of the election; or

(T) A valid health insurance card issued to the voter.

(3) In lieu of providing identifying documents, as required by this section, a registered voter may be accompanied at the polling place by an adult known to the registered voter for at least six months.  That adult may sign an affidavit on a form provided to clerks and poll workers by the Secretary of State, which states under oath or affirmation that the adult has known the registered voter for at least six months, and that in fact the registered voter is the same person who is present for the purpose of voting.  For the affidavit to be considered valid, the adult shall present a valid identifying document with his or her name, address, and photograph. 

(4) A poll worker may allow a voter known to the poll worker at least six months to vote without presenting a valid identifying document.

(5) If the person desiring to vote is unable to furnish a valid identifying document which contains his or her name and a photograph or, if the poll clerk determines that the proof of identification presented by the voter does not qualify as a valid identifying document based on the above listed criteria, the person desiring to vote shall be permitted to cast a provisional ballot after executing an affidavit affirming his or her identity pursuant to paragraph (B) of this subdivision.

(A) The provisional ballot is entitled to be counted once the election authority verifies the identity of the individual by comparing that individual's signature to the current signature on file with the election authority and determines that the individual was otherwise eligible to cast a ballot at the polling place where the ballot was cast.

(B) The affidavit to be used for voting shall be substantially in the following form:

‘State of West Virginia

County of .....................................

I do solemnly swear (or affirm) that my name is .................................................; that I reside at.............................; and that I am the person listed in the precinct register under this name and at this address.

I understand that knowingly providing false information is a violation of law and subjects me to possible criminal prosecution.

.......................................................

Signature of voter

Subscribed and affirmed before me this ........... day of ....................., 20....

................................

Name of Election Official

                                                                                    ................................

                                                                                    Signature of Election Official’.

            (6) A voter who votes in person at a precinct polling place that is located in a building which is part of a state licensed care facility where the voter is a resident is not required to provide proof of identification as a condition before voting in an election.

            (7) If the voter objects to the photograph requirement because of religious beliefs, the voter may cast a ballot if he or she executes an affidavit of religious exemption, which shall be in the following form:

            ‘State of West Virginia

            County of .....................................

            I,........................, residing at ...................................., do hereby swear or affirm that because of my religious beliefs, I object to having my photograph taken and that I do not possess a form of identification that meets the requirements of the election laws of this state showing my photograph.

            I understand that knowingly providing false information is a violation of law and subjects me to a fine of up to $1,000 and/or confinement in jail for up to one year.

             I hereby swear or affirm, under the penalties for providing false information, that I am the identical person whom I represent myself to be and that to the best of my knowledge and belief the information above is true and correct.

.......................................................

Signature of voter

            Subscribed and affirmed before me this ........... day of ....................., 20....                                                 ................................

                                                            Name of Election Official

                                                            ................................

                                                            Signature of Election Official’.

            (8) The person entering voter information into the centralized voter registration database shall cause the records to indicate when a voter has not presented a valid identifying document and has executed a voter identity affidavit.

            (9) If a voter participating in the Address Confidentiality Program established by section one hundred three, article twenty-eight-a, chapter forty-eight of this code, executes a voter identity affidavit, the program participant's residential or mailing address is subject to the confidentiality provisions of section one hundred eight, article twenty-eight-a, chapter forty-eight of this code and shall be used only for those statutory and administrative purposes authorized by this section.

            (10) Prior to the primary and general elections to be held in calendar year 2018, the Secretary of State shall educate voters about the requirement to present a valid identifying document and develop a program to help ensure that all eligible voters are able to obtain an identifying document.

(b) The clerk of the county commission is authorized, upon verification that the precinct at which a handicapped person is registered to vote is not handicap accessible, to transfer that person's registration to the nearest polling place in the county which is handicap accessible. A request by a handicapped person for a transfer of registration must be received by the county clerk no later than thirty days prior to the date of the election. Any A handicapped person who has not made a request for a transfer of registration at least thirty days prior to the date of the election may vote a provisional ballot at a handicap accessible polling place in the county of his or her registration. If during the canvass the county commission determines that the person had been registered in a precinct that is not handicap accessible, the voted ballot, if otherwise valid, shall be counted. The handicapped person may vote in the precinct to which the registration was transferred only as long as the disability exists or the precinct from which the handicapped person was transferred remains inaccessible to the handicapped. To ensure confidentiality of the transferred ballot, the county clerk processing the ballot shall provide the voter with an unmarked envelope and an outer envelope designated “provisional ballot/handicapped voter”. After validation of the ballot at the canvass, the outer envelope shall be destroyed and the handicapped voter's ballot shall be placed with other approved provisional ballots prior to removal of the ballot from the unmarked envelope.

(c) When the voter's signature is properly marked and the voter has presented a valid identifying document, the two poll clerks shall sign their names in the places indicated on the back of the official ballot and deliver the ballot to the voter to be voted by him or her without leaving the election room. If he or she returns the ballot spoiled to the clerks, they shall immediately mark the ballot “spoiled” and it shall be preserved and placed in a spoiled ballot envelope together with other spoiled ballots to be delivered to the board of canvassers and deliver to the voter another official ballot, signed by the clerks on the reverse side. The voter shall thereupon retire alone to the booth or compartment prepared within the election room for voting purposes and there prepare his or her ballot. In voting for candidates in general and special elections, the voter shall comply with the rules and procedures prescribed in section five, article six of this chapter.

(d) It is the duty of a poll clerk, in the presence of the other poll clerk, to indicate by a check mark, or by other means, inserted in the appropriate place on the registration record of each voter the fact that the voter voted in the election. In primary elections the clerk shall also insert thereon on the registration record of each voter a distinguishing initial or initials of the political party for whose candidates the voter voted. If a person is challenged at the polls, the challenge shall be indicated by the poll clerks on the registration record, together with the name of the challenger. The subsequent removal of the challenge shall be recorded on the registration record by the clerk of the county commission.

(e) (1) No voter may receive any assistance in voting unless, by reason of blindness, disability, advanced age or inability to read and write, that voter is unable to vote without assistance. Any voter so qualified to receive assistance in voting under the provisions of this section may:

(A) Declare his or her choice of candidates to an Election Commissioner of each political party who, in the presence of the voter and in the presence of each other, shall prepare the ballot for voting in the manner hereinbefore provided in this section and, on request, shall read to the voter the names of the candidates selected on the ballot;

(B) Require the Election Commissioners to indicate to him or her the relative position of the names of the candidates on the ballot, whereupon the voter shall then retire to one of the booths or compartments to prepare his or her ballot in the manner hereinbefore provided in this section;

(C) Be assisted by any person of the voter's choice, other than the voter's present or former employer or agent of that employer, the officer or agent of a labor union of which the voter is a past or present member or a candidate on the ballot or an official write-in candidate; or

(D) If he or she is handicapped, vote from an automobile outside the polling place or precinct by the absentee balloting method provided in subsection (e), section five, article three of this chapter in the presence of an Election Commissioner of each political party if all of the following conditions are met:

(i) The polling place is not handicap accessible; and

(ii) No voters are voting or waiting to vote inside the polling place.

(2) The voted ballot shall then be returned to the precinct officials and secured in a sealed envelope to be returned to the clerk of the county commission with all other election materials. The ballot shall then be tabulated using the appropriate method provided in section eight of this chapter as it relates to the specific voting system in use.

(3) Any A voter who requests assistance in voting but who is believed not to be qualified for assistance under the provisions of this section shall nevertheless be permitted to vote a provisional ballot with the assistance of any person herein authorized to render assistance.

(4) Any One or more of the Election Commissioners or poll clerks in the precinct may challenge the ballot on the ground that the voter thereof received assistance in voting it when in his, her or their opinion the person who received assistance in voting is not so illiterate, blind, disabled or of such advanced age as to have been unable to vote without assistance.  The Election Commissioner or poll clerk or commissioners or poll clerks making the challenge shall enter the challenge and reason therefor the reason for such challenge on the form and in the manner prescribed or authorized by article three of this chapter.

(5) An Election Commissioner or other person who assists a voter in voting:

(A) May not in any manner request or seek to persuade or induce the voter to vote any a particular ticket or for any a particular candidate or for or against any public question and must not keep or make any memorandum or entry of anything occurring within the voting booth or compartment and must not, directly or indirectly, reveal to any person the name of any a candidate voted for by the voter, or which ticket he or she had voted or how he or she had voted on any public question or anything occurring within the voting booth, or compartment, or voting machine booth except when required pursuant to by law to give testimony as to the matter in a judicial proceeding; and

(B) Shall sign a written oath or affirmation before assisting the voter on a form prescribed by the Secretary of State stating that he or she will not override the actual preference of the voter being assisted, attempt to influence the voter's choice or mislead the voter into voting for someone other than the candidate of voter's choice. The person assisting the voter shall also swear or affirm that he or she believes that the voter is voting free of intimidation or manipulation. Provided, That No person providing assistance to a voter is required to sign an oath or affirmation where the reason for requesting assistance is the voter's inability to vote without assistance because of blindness as defined in section three, article fifteen, chapter five of this code and the inability to vote without assistance because of blindness is certified in writing by a physician of the voter's choice and is on file in the office of the clerk of the county commission.

(6) In accordance with instructions issued by the Secretary of State, the clerk of the county commission shall provide a form entitled “list of assisted voters”, the form of which list shall likewise be on a form as prescribed by the Secretary of State.  The commissioners shall enter the name of each voter receiving assistance in voting the ballot, together with the poll slip number of that voter and the signature of the person or the commissioner from each party who assisted the voter.  If no voter has been assisted in voting, the commissioners shall likewise make and subscribe to an oath of that fact on the list.

(f) After preparing the ballot, the voter shall fold the ballot so that the face is not exposed and so that the names of the poll clerks thereon on it are seen.  The voter shall announce his or her name and present his or her ballot to one of the commissioners who shall hand the same to another commissioner, of a different political party, who shall deposit it in the ballot box if the ballot is the official one and properly signed.  The commissioner of election may inspect every ballot before it is deposited in the ballot box to ascertain whether it is single; but without unfolding or unrolling it so as to disclose its content.  When the voter has voted, he or she shall retire immediately from the election room and beyond the sixty-foot limit thereof and may and not return except by permission of the commissioners.

(g) Following the election, the oaths or affirmations required by this section from those assisting voters, together with the ‘list of assisted voters’, shall be returned by the Election Commissioners to the clerk of the county commission along with the election supplies, records and returns.  The clerk of the county commission shall make the oaths, affirmations and list available for public inspection and shall preserve them for a period of twenty-two months or until disposition is authorized or directed by the Secretary of State or court of record.  Provided, That The clerk may use these records to update the voter registration records in accordance with subsection (d), section eighteen, article two of this chapter.

(h) Any person making an oath or affirmation required under the provisions of this section who knowingly swears falsely or any person who counsels, advises, aids or abets another in the commission of false swearing under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for a period of not more than one year, or both fined and confined.

(i) Any Election Commissioner or poll clerk who authorizes or provides unchallenged assistance to a voter when the voter is known to the Election Commissioner or poll clerk not to require assistance in voting, is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 or imprisoned in a state correctional facility for a period of not less than one year nor more than five years, or both fined and imprisoned.

§3-1-41. Challenged and provisional voter procedures; counting of provisional voters' ballots; ballots of election officials.

            (a) It is the duty of the members of the receiving board, jointly or severally, to challenge the right of any person requesting a ballot to vote in any election:

            (1) If the person's registration record is not available at the time of the election;

            (2) If the signature written by the person in the poll book does not correspond with the signature purported to be his or hers on the registration record;

            (3) If the registration record of the person indicates any other legal disqualification; or

            (4) If the person fails to present a valid identifying document pursuant to section thirty-four of this article; or

            (4)(5) If any other valid challenge exists against the voter pursuant to section ten, article three of this chapter.

            (b) Any person challenged shall nevertheless be permitted to vote in the election.  He or she shall be furnished an official ballot not endorsed by the poll clerks.  In lieu of the endorsements, the poll clerks shall complete and sign an appropriate form indicating the challenge, the reason thereof and the name or names of the challengers.  The form shall be securely attached to the voter's ballot and deposited together with the ballot in a separate box or envelope marked “provisional ballots”.

            (c) At the time that an individual casts a provisional ballot, the poll clerk shall give the individual written information stating that an individual who casts a provisional ballot will be able to ascertain under the free access system established in this section whether the vote was counted and, if the vote was not counted, the reason that the vote was not counted.

            (d) Before an individual casts a provisional ballot, the poll clerk shall provide the individual written instructions, supplied by the board of ballot commissioners, stating that if the voter is casting a ballot in the incorrect precinct, the ballot cast may not be counted for that election:  Provided, That if the voter is found to be in the incorrect precinct, then the poll worker shall attempt to ascertain the appropriate precinct for the voter to cast a ballot and immediately give the voter the information if ascertainable.

            (e) Provisional ballots may not be counted by the election officials.  The county commission shall, on its own motion, at the time of canvassing of the election returns, sit in session to determine the validity of any challenges according to the provisions of this chapter.  If the county commission determines that the challenges are unfounded, each provisional ballot of each challenged voter, if otherwise valid, shall be counted and tallied together with the regular ballots cast in the election.  The county commission, as the board of canvassers, shall protect the privacy of each provisional ballot cast.  The county commission shall disregard technical errors, omissions or oversights if it can reasonably be ascertained that the challenged voter was entitled to vote.

            (f) Any person duly appointed as an Election Commissioner or clerk under the provisions of section twenty-eight of this article who serves in that capacity in a precinct other than the precinct in which the person is legally entitled to vote may cast a provisional ballot in the precinct in which the person is serving as a commissioner or clerk.  The ballot is not invalid for the sole reason of having been cast in a precinct other than the precinct in which the person is legally entitled to vote.  The county commission shall record the provisional ballot on the voter's permanent registration record:  Provided, That the county commission may count only the votes for the offices that the voter was legally authorized to vote for in his or her own precinct.

            (g) The Secretary of State shall establish a free access system, which may include a toll-free telephone number or an Internet website, that may be accessed by any individual who casts a provisional ballot to discover whether his or her vote was counted and, if not, the reason that the vote was not counted.

§3-1-51. Identity verification of voters executing voter identity affidavit.

(a) The clerk of the county commission shall cause a letter to be mailed by first class mail to each voter who executed a voter identity affidavit pursuant to section thirty-four of this article.  The letter shall be mailed within sixty days after the election.  The clerk shall mark the envelope with instructions to the United States Post Office not to forward the letter and to provide address correction information.  The letter shall notify the addressee that a person who did not present valid photo identification voted using his or her name and address and instruct the addressee to contact the clerk immediately if he or she did not vote.  The letter shall also inform the addressee of the procedure for obtaining a nondriver's picture identification card for voting purposes.

            (b) The clerk of the county commission shall cause letters mailed pursuant to subsection (a) of this section that are returned as undeliverable by the United States Post Office to be referred to the Secretary of State.  The clerk shall also prepare and forward to the Secretary of State a list of all persons who were mailed letters under subsection (a) of this section and who notified the clerk that they did not vote.  Upon receipt of notice from a person who receives a letter mailed pursuant to subsection (a) of this section that the person did not vote, or upon receipt of a referral from the clerk, the Secretary of State shall cause an investigation to be made to determine whether fraudulent voting occurred. Beginning July 1, 2019 and each year thereafter, the Secretary of State shall submit a report to the Joint Committee on the Judiciary and the Joint Committee on Government and Finance detailing the results of all investigations of voter identity affidavits, including, but not limited to, the number of investigations, the number of ballots cast, and the number and results of any determinations made regarding fraudulent voting.

ARTICLE 2.  REGISTRATION OF VOTERS

'3‑2‑11. Registration in conjunction with driver licensing.

(a) The Division of Motor Vehicles or other division or department that may be established by law to perform motor vehicle driver licensing services shall obtain, provide each qualified registrant, as an integral and simultaneous part of every process of application for the issuance, renewal or change of address of a motor vehicle driver's license or official identification card pursuant to the provisions of article two, chapter seventeen‑b of this code, a voter registration application as prescribed in section five of this article when the division=s regional offices are open for regular business. An individual may apply for voter registration using an approved electronic voter registration system if available at a Division of Motor Vehicles regional office. the following information from each qualified registrant:

(1) Full name, including first, middle, last and any premarital names;

(2) Date of birth;

(3) Residence address and mailing address, if different;

(4) The applicant’s electronic signature;

(5) Telephone number, if available;

(6) Email address, if available;

(7) Political party membership, if any;

(8) Driver’s license number and last four digits of social security number;

(9) A notation that the applicant has attested that he or she meets all voter eligibility requirements, including United States citizenship;

(10) Whether the applicant affirmatively declined to become registered to vote during the transaction with the Division of Motor Vehicles;

(11) Date of application; and

(12) Any other information specified in rules adopted to implement this section.

(b) Unless the applicant affirmatively declines to become registered to vote or update their voter registration during the transaction with the Division of Motor Vehicles, the Division of Motor Vehicles shall release all of the information obtained pursuant to subsection (a) of this section to the Secretary of State who shall forward the information to the county clerk for the relevant county to process the newly registered voter or updated information for the already registered voter pursuant to law.  Notwithstanding any other provision of this code to the contrary, if the applicant affirmatively declines to become registered to vote, the Division of Motor Vehicles is required to release the first name, middle name, last name, premarital name, if applicable, complete residence address, complete date of birth of an applicant and the applicant=s electronic signature, entered in the division=s records for driver license or nonoperator identification purposes to the Office of the Secretary of State in order to facilitate any future attempt of the applicant to register to vote online, along with the notation that the applicant affirmatively declined to become registered at that time.  The Division of Motor Vehicles shall notify that applicant that by submitting his or her signature, the applicant grants written consent for the submission of the information obtained and required to be submitted to the Office of the Secretary of State pursuant to this sectionupon notice and written consent of the applicant. The notice and consent is a required component of an electronic voter registration application made available to the general public by the Secretary of State. The release of an applicant=s signature by the Division of Motor Vehicles to the Office of the Secretary of State applies to any voter registration application approved through an electronic voter registration system approved by the Secretary of State regardless of the location of the online user and provided the user grants written consent.

(c) A person who fails to sign the voter registration application or who fails to return the voter registration application to a driver licensing facility or to an appropriate voter registration office is considered to have declined to register. Information regarding a person's failure to sign the voter registration application is confidential and may not be used for any purpose other than to determine voter registration.

(d) A qualified voter who submits the application for registration required information and does not affirmatively decline to become registered or update their voter registration, pursuant to the provisions of subsection (a) of this section, in person at a driver licensing facility at the time of applying for, obtaining, renewing or transferring his or her driver's license or official identification card and who presents identification and proof of age at that time is not required to make his or her first vote in person or to again present identification in order to make that registration valid.

(e) A qualified voter who submits by mail or by delivery by a third party an application for registration on the form used in conjunction with driver licensing is required to make his or her first vote in person and present identification as required for other mail registration in accordance with the provisions of subsection (g), section ten of this article. If the applicant has been previously registered in the jurisdiction and the application is for a change of address, change of name, change of political party affiliation or other correction, the presentation of identification and first vote in person is not required.

(f) An application for voter registration submitted pursuant to the provisions of this section updates a previous voter registration by the applicant and authorizes the cancellation of registration in any other county or state in which the applicant was previously registered.

(g) A change of address from one residence to another within the same county which is submitted for driver licensing or nonoperator=s identification purposes in accordance with applicable law serves as a notice of change of address for voter registration purposes if requested by the applicant after notice and written consent of the applicant.

(h) Completed applications for voter registration or change of address for voting purposes received by an office providing driver licensing services shall be forwarded to the Secretary of State within five days of receipt unless other means are available for a more expedited transmission. The Secretary of State shall remove and file any forms which have not been signed by the applicant and shall forward completed, signed applications to the clerk of the appropriate county commission within five days of receipt.

(i) Voter registration application forms containing voter information which are returned to a driver licensing office unsigned shall be collected by the Division of Motor Vehicles, submitted to the Secretary of State and maintained by the Secretary of State=s office according to the retention policy adopted by the Secretary of State.

(j) The Secretary of State shall establish procedures to protect the confidentiality of the information obtained from the Division of Motor Vehicles, including any information otherwise required to be confidential by other sections of this code.

(k) A person registered to vote pursuant to this section may cancel his or her voter registration at any time by any method available to any other registered voter.

(l) This section shall not be construed as requiring the Division of Motor Vehicles to determine eligibility for voter registration and voting.

(m) The changes made to this section during the 2016 Regular Legislative Session shall become effective on July 1, 2017, and any costs associate therewith shall be paid by the Division of Motor Vehicles.  If the Division of Motor Vehicles is unable to meet the requirements of this section by February 1, 2017, it shall make a presentation to the Joint Committee on Government and Finance explaining any resources necessary to meet the requirements or any changes to the code that it recommends immediately prior to the 2017 Regular Legislative Session.

(n) The Secretary of State may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code in order to implement the requirements of this section.

'3-2-12. Combined voter registration and driver licensing fund; transfer of funds.

(a) Fifty cents of each license fee collected pursuant to the provisions of section one, article three, chapter seventeen of this code shall be paid into the State Treasury to the credit of a special revenue fund to be known as the ‘Combined Voter Registration and Driver Licensing Fund’. The moneys so credited to such fund may be used by the Secretary of State for the following purposes:

(1) Printing and distribution of combined driver licensing or other agency applications and voter registration forms, or for the printing of voter registration forms to be used in conjunction with driver licensing or other agency applications, or for implementing the automatic voter registration program authorized in section eleven of this article;

(2) Printing and distribution of mail voter registration forms for purposes of this article;

(3) Supplies, postage and mailing costs for correspondence relating to voter registration for agency registration sites and for the return of completed voter registration forms to the appropriate state or county election official;

(4) Reimbursement of postage and mailing costs incurred by clerks of the county commissions for sending a verification mailing, confirmation of registration or other mailings directly resulting from an application to register, change or update a voter's registration through a driver licensing or other agency;

(5) Reimbursement to state funded agencies, with the exception of the Division of Motor Vehicles, designated to provide voter registration services under this chapter for personnel costs associated with the time apportioned to voter registration services and assistance;

(6) The purchase, printing and distribution of public information and other necessary materials or equipment to be used in conjunction with voter registration services provided by state funded agencies designated pursuant to the provisions of this article;

(7) The development and continued maintenance of a statewide program of uniform voter registration computerization for use by each county registration office and the Secretary of State, purchase of uniform voter registration software, payment of software installation costs and reimbursement to the county commissions of not more than fifty percent of the cost per voter for data entry or data conversion from a previous voter registration software program;

(8) Efforts to maintain correct voter information and conduct general list maintenance to remove ineligible voters and ensure new residents receive voter registration information, including collaborating with other states and non-profit corporations dedicated to improving the election system; Payment of up to fifty percent of the costs of conducting a joint program with participating counties to identify ineligible voters by using the United States postal service information as provided in section twenty-five of this article: Provided, That such assistance shall be available only to counties which maintain voter registration lists on the statewide uniform voter data system; and

(9) Payment of any dues or fees associated with a program to match and transfer data to and from other states;

(10) Resources related to voter registration and list maintenance; and

(9) (11) Payment or reimbursement of other costs associated with implementation of the requirements of the National Voter Registration Act of 1993 (42 U. S. C. 1973gg): Provided, That revenue received by the fund in any fiscal year shall first be allocated to the purposes set forth in subdivisions (1) through (8) (10), inclusive, of this subsection.

(b) The Secretary of State shall promulgate rules pursuant to the provisions of chapter twenty-nine-a of this code to provide for the administration of the fund established in subsection (a) of this section.

(c) Any balance in the fund created by subsection (a) of this section which exceeds $100,000 as of June 30, 2017, and on June 30 of each year thereafter, shall be transferred to the General Revenue Fund.

CHAPTER 17B.  MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 2.  ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.

§17B-2-1. Drivers must be licensed; types of licenses; licensees need not obtain local government license; motorcycle driver license; identification cards.

(a) (1) No person, except those hereinafter expressly exempted, may drive any a motor vehicle upon a street or highway in this state or upon any a subdivision street used by the public generally unless the person has a valid driver's license issued pursuant to this code for the type or class of vehicle being driven.

            (2) Any person licensed to operate a motor vehicle pursuant to this code may exercise the privilege thereby granted in the manner provided in this code and, except as otherwise provided by law, is not required to obtain any other license to exercise the privilege by any a county, municipality or local board or body having authority to adopt local police regulations.

            (b) The division, upon issuing a driver's license, shall indicate on the license the type or general class or classes of vehicles the licensee may operate in accordance with this code, federal law or rule.  Licenses shall be issued in different colors for those drivers under age eighteen, those drivers age eighteen to twenty-one and adult drivers.  The commissioner is authorized to select and assign colors to the licenses of the various age groups.           

            (c) The following drivers licenses classifications are hereby established:

            (1) A Class A, B or C license shall be issued to those persons eighteen years of age or older with two years of driving experience who have qualified for the commercial driver's license established by chapter seventeen-e of this code and the federal Motor Carrier Safety and Improvement Act of 1999 and subsequent rules and have paid the required fee.

            (2) A Class D license shall be issued to those persons eighteen years and older with one year of driving experience who operate motor vehicles other than those types of vehicles which require the operator to be licensed under the provisions of chapter seventeen-e of this code and federal law and rule and whose primary function or employment is the transportation of persons or property for compensation or wages and have paid the required fee.  For the purpose of regulating the operation of motor vehicles, wherever the term “chauffeur's license” is used in this code, it shall be construed to mean means the Class A, B, C or D license described in this section or chapter seventeen-e of this code or federal law or rule: Provided, That anyone not required to be licensed under the provisions of chapter seventeen-e of this code and federal law or rule and who operates a motor vehicle registered or required to be registered as a Class A motor vehicle, as that term is defined in section one, article ten, chapter seventeen-a of this code, with a gross vehicle weight rating of less than eight thousand one pounds, is not required to obtain a Class D license.

            (3) A Class E license shall be issued to those persons who have qualified for a driver’s license under the provisions of this chapter and who are not required to obtain a Class A, B, C or D license and who have paid the required fee.  The Class E license may be endorsed under the provisions of section seven-b of this article for motorcycle operation.  The Class E or (G) G license for any a person under the age of eighteen may also be endorsed with the appropriate graduated driver license level in accordance with the provisions of section three-a of this article.

            (4) A Class F license shall be issued to those persons who successfully complete the motorcycle examination procedure provided by this chapter and have paid the required fee but who do not possess a Class A, B, C, D or E driver's license.

            (5) A Class G driver’s license or instruction permit shall be issued to a person using bioptic telescopic lenses who has successfully completed an approved driver training program and complied with all other requirements of article two-b of this chapter.

            (d) All licenses issued under this section may contain information designating the licensee as a diabetic, organ donor, as deaf or hard-of-hearing, or as having any other handicap or disability or that the licensee is an honorably discharged veteran of any branch of the Armed Forces of the United States, according to criteria established by the division, if the licensee requests this information on the license. An honorably discharged veteran may be issued a replacement license without charge if the request is made before the expiration date of the current license and the only purpose for receiving the replacement license is to get the veterans designation placed on the license.

            (e) No person, except those hereinafter expressly exempted, may drive any a motorcycle upon on a street or highway in this state or upon any on a subdivision street used by the public generally unless the person has a valid motorcycle license, a valid license which has been endorsed under section seven-b of this article for motorcycle operation or a valid motorcycle instruction permit.

            (f) (1) An identification card may be issued to any a person who:

            (A) Is a resident of this state in accordance with the provisions of section one-a, article three, chapter seventeen-a of this code;

            (B) Has reached the age of two years The division may also issue an identification card to a person under the age of two years,for good cause shown; or, for good cause shown, under the age of two.

            (C) Has paid the required fee of $2.50 per year: Provided, That the fee is not no fees or charges, including renewal fees, are required if the applicant:

            (i) Is sixty-five years or older; or

            (ii) Is legally blind; and or

            (iii) Will be at least eighteen years of age at the next general, municipal or special election and intends to use this identification card as a form of identification for voting; and

            (D) Presents a birth certificate or other proof of age and identity acceptable to the division with a completed application on a form furnished by the division.

            (2) The identification card shall contain the same information as a driver's license except that the identification card shall be clearly marked as an identification card.  The division may issue an identification card with less information to persons under the age of sixteen.  An identification card may be renewed annually on application and payment of the fee required by this section.

            (A) Every identification card issued to a person who has attained his or her twenty-first birthday expires on the licensee’s birthday in those years in which the licensee’s age is evenly divisible by five.  Except as provided in paragraph (B) of this subdivision, no identification card may be issued for less than three years or for more than seven years and expires on the licensee’s birthday in those years in which the licensee’s age is evenly divisible by five.

            (B) Every identification card issued to a person who has not attained his or her twenty-first birthday expires thirty days after the licensee’s twenty-first birthday.

            (C) Every identification card issued to persons under the age of sixteen shall be issued for a period of two years and shall expire on the last day of the month in which the applicant's birthday occurs.

            (3) The division may issue an identification card to an applicant whose privilege to operate a motor vehicle has been refused, canceled, suspended or revoked under the provisions of this code.

            (g) For any person over the age of fifty years who wishes to obtain a driver’s license or identification card under the provisions of this section:

(1) A raised seal or stamp on the birth certificate or certified copy of the birth certificate is not required if the issuing jurisdiction does not require one; and

(2) If documents are lacking to prove all changes of name in the history of any such applicant, applicants renewing a driver’s license or identification card under the provisions of this section may complete a Name Variance Approval Document as instituted by the division, so long as they can provide:

(A) Proof of identity;

(B) Proof of residency; and

(C) A valid Social Security number.

(3) The division may waive any documents necessary to prove a match between names, so long as the division determines the person is not attempting to:

(A) Change his or her identity;

(B) Assume another person’s identity; or

(C) Commit a fraud.

(h) A person over the age of seventy years, or who is on Social Security disability, who wishes to obtain or renew a driver’s license or identification card under the provisions of this section, may not be required to furnish a copy of a birth certificate if they can provide:

(1) Proof of identity;

(2) Proof of residency;

(3) A valid Social Security number; and

(4) One of the following identifying items:

(A) A form of military identification, including a DD214 or equivalent;

(B) An US passport, whether valid or expired;

(C) School records, including a yearbook;

(D) A religious document, that in the judgment of the Division is sufficient and authentic to reflect that the person was born in the United States; or

(E) An expired driver’s license, employment identification card, or other reliable identification card with a recognizable photograph of the person.

(g) (i) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $500 and, upon a second or subsequent conviction, shall be fined not more than $500 or confined in jail not more than six months, or both fined and confined.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4013- “A Bill to amend and reenact §3-1-34 and §3-1-41 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §3-1-51; to amend and reenact §3-2-11 and §3-2-12 of said code; and to amend and reenact §17B-2-1 of said code, all relating to voting procedures; requiring a person desiring to vote on or after January 1, 2018, to present valid document identifying the voter to one of the poll clerks; requiring poll clerk to inspect valid identifying document and confirm information with individual’s voter registration record; requiring poll clerk to confirm that displayed image is truly an image of the person presenting the document; setting forth requirements for valid identifying document; identifying documents considered to be valid identifying document; permitting registered voter to be accompanied to polling place by adult known to registered voter for at least six months; permitting voter to vote if accompanying adult signs affidavit and presents valid identifying document; authorizing poll worker to allow voter known to the poll worker for at least six months to vote without presenting valid identifying document; permitting person desiring to vote to cast provisional ballot after executing affidavit; setting conditions for counting of provisional ballot; setting content of affidavit to be used for casting provisional ballot; permitting voter who votes in person at precinct polling place located in building which is part of state licensed care facility where voter is resident without presenting valid identifying document; permitting voter to cast ballot if voter objects to photograph requirement because of religious beliefs if he or she executes an affidavit of religious exemption; providing text of affidavit for religious exemption; requiring person entering voter information into centralized voter registration database to notate when a voter has not presented valid identifying documentation and executed a voter identity affidavit; making confidential voter’s residential or mailing address if voter is participant in Address Confidentiality Program except for certain statutory and administrative purposes; directing Secretary of State to educate voters about requirement to present valid identifying document; requiring Secretary of State to develop a program to help ensure that all eligible voters obtain identification; directing members of receiving board to challenge the right of person requesting ballot to vote in election if person fails to present valid identifying documentation; modifying provisional ballot procedures; requiring clerk of county commission to send letter to voters who execute voter identity affidavit; setting deadline for letters to be mailed; specifying contents of letter; directing clerk of county commission to cause letters returned as undeliverable to be referred to Secretary of State; directing clerk of county commission to forward to Secretary of State a list of persons who were mailed letters and notified clerk that they did not vote; requiring Secretary of State to investigate to determine whether fraudulent voting occurred; requiring Secretary of State to submit report to Joint Committee on the Judiciary and Joint Committee on Government and Finance detailing results of all investigations of voter identity affidavits; requiring Division of Motor Vehicles to collect certain information from individuals who are being issued, are renewing, or changing address for a driver’s license or official identification card; requiring Division of Motor Vehicles to release all information obtained to Secretary of State unless applicant affirmatively declines to become registered to vote or update voter registration; requiring Secretary of State to forward information to county clerk for relevant county to process newly registered voter or updated information for already-registered voter; requiring Division of Motor Vehicles to release certain information to Secretary of State if applicant affirmatively declines to become registered to vote; requiring Division of Motor Vehicles to notify applicant that signature submission grants written consent for submission of that information; clarifying that qualified voter who is automatically registered to vote need not present identification in order to make registration valid; directing Secretary of State to establish procedures to protect confidentiality of information obtained from Division of Motor Vehicles; permitting person registered to vote to cancel voter registration at any time; clarifying that Division of Motor Vehicles not required to determine eligibility for voter registration and voting; making changes regarding automatic voter registration effective July 1, 2017; requiring Division of Motor Vehicles report to Joint Committee on Government and Finance if unable to meet requirements by February 1, 2017; authorizing Secretary of State promulgate legislative rules; permitting certain uses of moneys in Combined Voter Registration and Driver Licensing Fund; requiring balance in Fund in excess of $100,000 be transferred to General Revenue annually; prohibiting Division of Motor Vehicles from charging fees for issuance of identification card if applicant intends to use identification card as form of identification for voting; providing certain provisions for issuance of driver’s license or identification card to persons over the age of fifty years; and providing certain provisions for issuance of driver’s license or identification card to persons over the age of seventy years.”

On motion of Delegate Cowles, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.

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

A message from the Senate, by

The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

Com. Sub. for H. B. 4174, Exempting activity at indoor shooting ranges from the prohibition of shooting or discharging a firearm within five hundred feet of any church or dwelling house.

On motion of Delegate Cowles, the bill was taken up for immediate consideration and the following Senate amendments were reported by the Clerk:

On page one, by striking out everything following the enacting section and inserting in lieu thereof the following:

CHAPTER 20. NATURAL RESOURCES.

ARTICLE 2. WILDLIFE RESOURCES.

§20-2-58. Shooting across road or near building or crowd; penalty.

(a) In addition to any other prohibitions which may exist by law, it shall be unlawful for any person to shoot or discharge any firearms:

(1) Across or in any public road in this state, at any time;

(2) Within five hundred feet of any school or church; or

(3) Within five hundred feet of any dwelling house: Provided, That a person who is a resident of a dwelling house, and his or her authorized guest, may shoot or discharge a firearm in a lawful manner within five hundred feet of the dwelling house where the person lives, if the firearm is being discharged with the express or implied knowledge and consent of all residents of that dwelling house, and no other dwelling houses are located within five hundred feet of where the firearm is discharged; or

(4) On In or near any state, county or municipal park in areas of which the discharge of firearms is prohibited or other place where persons gather for purposes of pleasure.

(b) Any person violating this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in jail for not more than one hundred days, or both fined and confined.

(b) (c) Notwithstanding the provisions of subsection (a) of this section, any person operating a gun repair shop, licensed to do business in the State of West Virginia and duly licensed under applicable federal statutes, may be exempted from the prohibition established by this section and section twelve, article seven, chapter sixty-one of this code for the purpose of test firing a firearm. The director of the Division of Natural Resources shall prescribe such rules as may be necessary to carry out the purposes of the exemption under this section and section twelve, article seven, chapter sixty-one and shall ensure that any person residing in any dwelling home within five hundred feet of such gun repair shop be given an opportunity to protest the granting of such exemption.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 6. CRIMES AGAINST THE PEACE.

§61-6-23. Shooting range; limitations on nuisance actions.

(a) As used in this section:

(1) ‘Person’ means an individual, proprietorship, partnership, corporation, club or other legal entity;

(2) ‘Shooting range’ or “range” means an area, whether indoor or outdoor, designed and operated for the use of rifles, shotguns, pistols, silhouettes, skeet, trap, black powder or any other similar shooting.

(b) Except as provided in this section, a person may not maintain a nuisance action for noise against a shooting range located in the vicinity of that person=s property if the range was established as of the date of the person acquiring the property. If there is a substantial change in use of the range or there is a period of shooting inactivity at a range exceeding one year after the person acquires the property, the person may maintain a nuisance action if the action is brought within two years from the beginning of the substantial change in use of the range, or the resumption of shooting activity.

(c) A person who owned property in the vicinity of a shooting range that was established after the person acquired the property may maintain a nuisance action for noise against that range only if the action is brought within four two years after establishment of the range or two years after a substantial change in use of the range or from the time shooting activity is resumed.

(d) If there has been no shooting activity at a range for a period of two years, resumption of shooting is considered establishment of a new range for the purposes of this section. Actions authorized by the provisions of this section are not applicable to indoor shooting ranges the owner or operator of which holds all necessary and required licenses and the shooting range is in compliance with all applicable state, county and municipal laws, rules or ordinances regulating the design and operation of such facilities.

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4174 - “A Bill to amend and reenact §20-2-58 of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-6-23 of said code, all relating to shooting ranges generally; exempting activity at indoor shooting ranges from the prohibition of shooting or discharging a firearm within five hundred feet of any church or dwelling house; amending the definition of ‘shooting range’ to include an indoor range; exempting activity at indoor shooting ranges from criminal penalties for violations for shooting or discharging a firearm within five hundred feet of any church or dwelling house; modifying and clarifying the limitations on nuisance actions against shooting ranges; and exempting indoor shooting ranges which have necessary licenses and are compliant with applicable laws, rules or ordinance from nuisance law.”

On motion of Delegate Cowles, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.

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

A message from the Senate, by

The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

Com. Sub. for H. B. 4014, Preventing the State Board of Education from implementing common core academic standards and assessments.

On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendment with further amendment:

On pages five through eleven, section five, lines eighty-four through two hundred thirty, by striking out all of subsections (d) and (e) and inserting in lieu thereof the following:

(d) West Virginia Academic Standards. —

(1) Legislative authority – Sections one, two and twelve, article XII of the Constitution of the State of West Virginia impose a duty upon the Legislature, as a separate but equal branch of government:

(A) To ‘provide, by general law, for a thorough and efficient system of free schools’;

(B) To prescribe by law the duties of the state board in the general supervision of free public schools;

(C) To prescribe by law the powers and duties of the state superintendent; and

(D) To foster and encourage moral, intellectual, scientific and agricultural improvement in schools.

 (2) For purposes of this subsection, ‘academic standards’ are concise, written descriptions of what students are expected to know and be able to do at a specific stage of their education.  Academic standards describe what students should have learned by the end of a course, grade level or grade span.

(3) The Legislature recognizes that on December 15, 2015, the state board adopted what it represented were academic standards no longer aligned with Common Core State Standards and renamed them ‘West Virginia College–and–Career–Readiness Standards for English Language Arts (Policy 2520.1A)’ and ‘West Virginia College–and–Career–Readiness Standards for Mathematics (Policy 2520.1B)’.

(4) The Legislature hereby establishes an Academic Standards Evaluation Panel.  The panel shall consist of six appointed members and one ex officio member.  The deans responsible for the math programs, the deans responsible for the English programs and the deans responsible for the science programs at West Virginia University and Marshall University shall each appoint one member:  Provided, That any dean that is responsible for more than one of the three programs shall appoint one member for each program he or she is responsible for.  The Chancellor of the Higher Education Policy Commission, or his or her designee, shall serve as an ex officio member and be responsible for facilitating the work of the panel.  The Academic Standards Evaluation Panel shall:

(A) Using the West Virginia College–and–Career–Readiness Standards for English

Language Arts and Mathematics as a framework, evaluate and recommend revisions to the standards based on empirical research and data to ensure grade-level alignment to the standards of states with a proven track record of consistent high-performing student achievement in English Language Arts on the National Assessment of Educational Progress; and in Mathematics, on both the National Assessment of Educational Progress and Trends in Math and Science Study International Assessment;

            (B) Review the Next Generation Content Standards and Objectives for Science in West Virginia Schools and recommend revisions that it considers appropriate;

(C) Remove common core strategies that require instructional methods;

(D) Use facilities, staff and supplies provided by the Higher Education Policy Commission;

(E) Submit its evaluation and recommended revisions to the state board and the Legislative Oversight Commission on Education Accountability by October 1, 2016.

(5) The state board shall withdraw from the Memorandum of Agreement entered into with the Council of Chief State School Officers and the National Governors Association for Best Practices, which required the state board to agree that common core represents eighty-five percent of West Virginia’s standards in English Language Arts and Mathematics and withdraw as a governing state in the Smarter Balanced Assessment Consortium.

 (6) Any academic standard adopted by the state board shall meet the following criteria:

(A) Be age level and developmentally appropriate, particularly as it relates to sequencing of content standards and the measurement of student academic performance;

(B) Be free of instructional strategies;

(C) Meet national and international benchmarks empirically proven to increase and sustain student achievement; and

(D) Be based solely on academic content.

(7) The Legislative Oversight Commission on Education and Accountability shall review any proposed rules relating to academic standards to determine whether the board has exceeded the scope of its statutory authority in approving the proposed legislative rule and whether the proposed legislative rule is in conformity with the legislative intent of the provisions of this subsection.  The Legislative Oversight Commission on Education and Accountability may, at its discretion, hold public hearings, recommend to the board any changes needed to comply with the legislative intent of this subsection and make recommendations to the Legislature for any statutory changes needed to clarify the legislative intent of this statute.

(d)(e) Comprehensive statewide student assessment program. — The state board shall establish a comprehensive statewide student assessment program to assess student performance and progress in grades three through through twelve. The assessment program is subject to the following:

(1) The state board shall promulgate a rule in accordance with the provisions of article three‑b, chapter twenty‑nine‑a of this code establishing the comprehensive statewide student assessment program;

(2) Prior to the 2014‑2015 school year, the state board shall align the comprehensive statewide student assessment for all grade levels in which the test is given with the college‑readiness standards adopted pursuant to section thirty‑nine, article two of this chapter or develop other aligned tests to be required at each grade level so that progress toward college readiness in English/language arts and math can be measured.

(3) The state board may require that student proficiencies be measured through the ACT EXPLORE and the ACT PLAN assessments or other comparable assessments, which are approved by the state board and provided by future vendors;

(1) For federal and state accountability purposes, the state board shall review and approve a summative assessment system for administration to all public school students, beginning in school year 2016-2017, in grades three through eight and once in early high school that assesses students in English, reading, writing, science and mathematics:  Provided, That the assessment in science may only be administered once during the grade span of three through five and once during the grade span of six through eight. The assessment shall include those students as required by the federal Individuals with Disabilities Education Act and by Title I of the Elementary and Secondary Education Act. The summative assessment system must meet the following requirements:

(A) Be a vertically-scaled, benchmarked, standards-based system of summative assessments;

(B) Document student progress toward national college and career readiness benchmarks derived from empirical research and state standards;

(C) Be capable of measuring individual student performance in English, reading, writing, science and mathematics:  Provided, That the assessment in science may only be administered once during the grade span of three though five and once during the grade span of six through eight;

(D) Be available in paper-and-pencil and computer-based formats;

(E) Be a predictive measure of student progress toward a national college readiness assessment used by higher education institutions for admissions purposes; and

(F) Be aligned or augmented to align with the standards in effect at the time the test is administered.

(2)  The state board shall review and approve a college readiness assessment to be administered to all students in the eleventh grade for the first time in school year 2016-2017 and subsequent years.  The eleventh grade college readiness assessment shall be administered at least once to each eleventh grade student and shall meet the following requirements:

(A) Be a standardized, curriculum-based, achievement college entrance examination;

(B) Assess student readiness for first-year, credit-bearing coursework in postsecondary education;

(C) Test in the areas of English, reading, writing, science and mathematics;

(D) Have content area benchmarks for measuring student achievement;

(E) Be administered throughout the United States;

(F) Be relied upon by institutions of higher education for admissions; and

(G) Be aligned or augmented to align with the standards in effect at the time the test is administered.

(3) The state board shall review and approve career readiness assessments and assessment-based credentials that measure and document foundational workplace skills. The assessments shall be administered to public secondary school students in grades eleven or twelve for the first time in school year 2016-2017 and subsequent years:  Provided, That the career readiness assessment is voluntary and may only be administered to students who elect to take the assessment. The assessment-based credential shall be available to any student who achieves at the required level on the assessments. The assessments shall meet the following requirements:

(A) Be a standardized, criterion-referenced, measure of broadly relevant foundational workplace skills;

(B) Assess and document student readiness for a wide range of jobs;

(C) Measure skills in all or any of the following areas:

(i) Applied mathematics;

(ii) Locating information; or

(iii) Reading for information;

(D) Align with research-based skill requirement profiles for specific industries and occupations;

(E) Lead to a work readiness certificate for students who meet the minimum proficiency requirements on the component assessments; and

(F) Be available in paper-and-pencil and computer-based formats.

(4) The state board shall not acquire or implement any assessment instrument or instruments developed to specifically align with the Common Core State Standards including Smarter Balanced Assessment or Partnership for Assessment of Readiness for College and Careers (PARCC).

(5)  For any online assessment, the state board shall provide online assessment preparation to ensure that students have the requisite digital literacy skills necessary to be successful on the assessment.

(6) The state board shall develop a plan and make recommendations regarding end-of- course assessments and student accountability measures and submit its findings to the Legislative Oversight Commission on Education and Accountability by December 31, 2016.

(7)  The state board shall develop a policy which sets forth accountability measures for students taking the comprehensive statewide assessment.

(8) Any summative assessment approved by the state board shall take no more than two percent of a student’s instructional time.

(4) (9) The state board may require that student proficiencies be measured through the West Virginia writing assessment at any grade levels determined by the state board to be appropriate.

(6) (10) The state board may provide through the statewide assessment program policy other optional testing or assessment instruments applicable to grade levels kindergarten through eight and grade eleven which may be used by each school to promote student achievement. The state board annually shall publish and make available, electronically or otherwise, to school curriculum teams and teacher collaborative processes the optional testing and assessment instruments.”

On page eighteen, section five, line four hundred eighteen, after the word ‘appeals” and the period, by striking out the remainder of the subdivision.

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4014 - “A Bill to amend and reenact §18‑2E‑5 of the Code of West Virginia, 1931, as amended, all relating generally to process for improving education; removing reference to No Child Left Behind Act; adding digital literacy to list of areas that State Board of Education is required to adopt high-quality education standards in; making findings with respect to Legislature’s constitutional authority; defining ‘academic standards’; recognizing state board’s adoption and renaming of certain standards; establishing Academic Standards Evaluation Panel; establishing membership of panel; establishing duties of panel; requiring withdrawal from Memorandum of Agreement relating to adoption of Common Core State Standards; requiring withdrawal as governing state in Smarter Balanced Assessment Consortium; establishing criteria for any academic standards adopted by state board; requiring Legislative Oversight Commission on Education and Accountability to review any proposed rules relating to academic standards; removing requirement for state board rule establishing comprehensive statewide student assessment program; removing requirement that assessment be aligned with certain standards and associated alterative; removing state board authority to require ACT EXPLORE and ACT PLAN or other comparable assessments; requiring state board to review and approve summative assessment for certain grade levels to assess in certain subject areas; requiring summative assessment include students as required by certain federal laws; requiring that summative assessment meet certain requirements; requiring state board to review and approve college readiness assessment for students in eleventh grade; requiring college readiness assessment to be administered at least once to each eleventh-grade student; requiring college readiness assessment meet certain requirements; requiring state board to review and approve career readiness assessments and assessment based credentials; providing that career readiness assessment is voluntary for students; requiring that assessment-based credential be available to any student that achieves at required level on the required assessments; requiring career readiness assessments meet certain requirements; prohibiting implementation of any assessment developed specifically to align with Common Core State Standards; requiring online assessment preparation for any online assessment; requiring state board to develop plan and make recommendations regarding end-of-course assessments and student accountability measures; establishing reporting requirements; requiring the state board to develop policy that sets forth accountability measures for students taking comprehensive statewide assessment; establishing maximum percentage of instructional time for summative assessment; and removing required report to Legislative Oversight Commission on Education Accountability pertaining to on-site review finding appeals.”

On motion of Delegate Cowles the amendment was amended on page four, section five, line seventy-nine, after the word “eight”, by striking out the words “and once in early high school”.

On page six, section five, line one hundred thirty-three, after the word “instruments”, by inserting the words “or test items”.

And,

One page seven, section five, line one hundred forty-two, by striking out all of subdivision seven and renumbering the remaining subdivisions.

The bill, as amended by the Senate and further amended by the House, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 556), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

Absent and Not Voting: Arvon.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4014) passed.

            On motion of Delegate Cowles, the title of the bill was amended to read as follows:

Com. Sub. for H. B. 4014 - “A Bill to amend and reenact §18‑2E‑5 of the Code of West Virginia, 1931, as amended, all relating generally to process for improving education; removing reference to No Child Left Behind Act; adding digital literacy to list of areas that State Board of Education is required to adopt high-quality education standards in; making findings with respect to Legislature’s constitutional authority; defining “academic standards”; recognizing state board’s adoption and renaming of certain standards; establishing Academic Standards Evaluation Panel; establishing membership of panel; establishing duties of panel; requiring withdrawal from Memorandum of Agreement relating to adoption of Common Core State Standards; requiring withdrawal as governing state in Smarter Balanced Assessment Consortium; establishing criteria for any academic standards adopted by state board; requiring Legislative Oversight Commission on Education and Accountability to review any proposed rules relating to academic standards; removing requirement for state board rule establishing comprehensive statewide student assessment program; removing requirement that assessment be aligned with certain standards and associated alterative; removing state board authority to require ACT EXPLORE and ACT PLAN or other comparable assessments; requiring state board to review and approve summative assessment for certain grade levels to assess in certain subject areas; requiring summative assessment include students as required by certain federal laws; requiring that summative assessment meet certain requirements; requiring state board to review and approve college readiness assessment for students in eleventh grade; requiring college readiness assessment to be administered at least once to each eleventh-grade student; requiring college readiness assessment meet certain requirements; requiring state board to review and approve career readiness assessments and assessment based credentials; providing that career readiness assessment is voluntary for students; requiring that assessment-based credential be available to any student that achieves at required level on the required assessments; requiring career readiness assessments meet certain requirements; prohibiting implementation of any assessment or test items developed specifically to align with Common Core State Standards; requiring online assessment preparation for any online assessment; requiring state board to develop plan and make recommendations regarding end-of-course assessments and student accountability measures; establishing reporting requirements; establishing maximum percentage of instructional time for summative assessment; and removing required report to Legislative Oversight Commission on Education Accountability pertaining to on-site review finding appeals.”

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

Resolutions Introduced

            Delegate Canterbury offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 119 - “Requesting the Joint Committee on Government and Finance to study a mechanism to allow nonresidents of a municipality who are users of that municipality’s fire service to opt out of fire protection coverage by the municipality.”

Whereas, The Joint Committee on Government and Finance is hereby requested to conduct a study on how to allow nonresidents of a municipality who own property within rural fire protection districts to opt out of fire protection coverage by a municipality while remaining financially responsible for services actually rendered to such property; and

Whereas, In conducting this study, the Joint Committee on Government and Finance is requested to review the following measures: capping the amount of fire protection fees which may be imposed; providing for a referendum on the issue of fire service; and the appropriate petition requirements for triggering a referendum; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study a mechanism to allow persons with property within rural fire protection districts to opt out of fire protection coverage by a municipality for a specified property while remaining financially responsible for services actually rendered to such property; and, be it

Further Resolved, That The Joint Committee on Government and Finance report to the regular session of the Legislature, 2017, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

            Delegate Canterbury offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 120 - “Requesting the Joint Committee on Government and Finance to study potential improvements to pensions for retired teachers and public employees who have been retired for ten or more years, including potential one-time improvements, potential ongoing improvements, and potential improvements for specific classes of retirees categorized by length of retirement in five year increments.”

Whereas, Current pension programs for retired teachers and public employees, TRS (Teacher's Retirement System) and PERS (Public Employment Retirement System), do not allow for cost-of-living adjustments to pension distributions over time that account for rising inflation and cost-of-living, causing retired teachers and public employees substantial hardship in meeting basic living expenses; and

Whereas, With an average national inflation rate of 3.22% per year over the past twenty years, the pensions distributed to retired teachers and public employees who have been retired for twenty years or longer have lost more than half of their value during that time; and

Whereas, A large percentage of retired teachers and public employees receive less than $1,000 per month in pension income, placing many individuals that rely on pensions as a sole source of income near or below the federal poverty line; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Joint Committee on Government and Finance study potential improvements to pensions for retired teachers and public employees who have been retired for ten or more years, including potential one-time improvements, potential ongoing improvements, and potential improvements for specific classes of retirees categorized by length of retirement in five year increments (individuals retired for 10-15 years, individuals retired 15-20 years, individuals retired 20-25 years, and so forth); and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2017, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

            Delegate Phillips offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 121 - Requesting the Joint Committee on Government and Finance to study creating a mechanism for more frequent assessment procedures for County Commissions to reevaluate and appraise properties in areas that have been affected by a severe economic downturn.”

Whereas, Some regions of the State of West Virginia have been affected by economic downturn, and particularly on our coal mining regions, causing many residents to leave the state in search of jobs; and

Whereas, This exodus has resulted in rapidly falling property values in many abandoned properties in areas that have not been reflected in tax assessments of these properties; and

Whereas, County Commissions currently have no authority to reevaluate and reappraise properties in areas that have been affected by severe economic downturn outside of regularly scheduled reviews; and

Whereas, A lower property tax rate could encourage people to purchase property in this area, boosting the population and spurring future economic development; and

Whereas, Establishing a mechanism to allow more frequent property tax assessment in declining regions of the state would allow greater fairness and more accurate assessments of these properties, and provide tax relief to citizens who remain in their areas; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study creating a mechanism for more frequent assessment procedures for County Commissions to reevaluate and reappraise properties in areas that have been affected by severe economic downturn; and, be it

Further Resolved, That The Joint Committee on Government and Finance report to the Regular Session of the Legislature 2017, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

            Mr. Speaker, Mr. Armstead offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 122 - “Expressing the Legislature’s support for continued research by the medical community to find a cure for Multiple System Atrophy.”

Whereas, Multiple System Atrophy is an adult-onset, rapidly progressive, neurodegenerative disorder that affects both the autonomic nervous system and movement; and

Whereas, Multiple System Atrophy is a rare disease with symptoms appearing in a person’s fifties and affecting men twice as frequently as women; and

Whereas, Multiple System Atrophy advances rapidly over the course of five to ten years, with progressive loss of motor function and eventual confinement to bed and death; and

Whereas, While there are currently some treatments that help individuals cope with the symptoms of Multiple System Atrophy, there are no treatments to delay the progressive neurodegeneration and there is no cure; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature expresses support for continued research by the medical community to find a cure for Multiple System Atrophy.

            Delegates A. Evans, Hamilton and Eldridge offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 123 - “Requesting the Joint Committee on Government and Finance study the impact of providing for the issuance of a home-based micro-processing permit for use by farmers market vendors.”

Whereas, The U. S. Food and Drug Administration has promulgated Recommendations of the United States Public Health Service which are also known as the “Federal Food Code,” and the 2005 edition of the Federal Food Code has been adopted by West Virginia in a legislative rule of the Department of Health and Human Resources, Title 64, Series 17, “Food Establishments”; and

Whereas, The Federal Food Code requires that a “food establishment” at which food is prepared and then sold be subject to commercial kitchen requirements; and

Whereas, West Virginia’s legislative rule contains several exceptions to the definition of the term “food establishment” and specifically excludes from that term “a kitchen in a private home if only food that is not potentially hazardous is prepared for sale”; and

Whereas, the 2009 Federal Food Code’s list of potentially hazardous foods includes the following: Meat, poultry and eggs; fish and shellfish; cooked vegetables; dairy products; mushrooms; cut melons; unmodified cut tomatoes or mixtures of cut tomatoes; untreated garlic-in-oil mixtures; baked goods subject to spoilage; reduced sugar jams and jellies; pickles and salsa; and raw seed sprouts; and

Whereas, legislation has been proposed to provide for the issuance of a home-based micro-processing permit to allow the holder of such permit to prepare micro-processed foods in a kitchen in a private home or community kitchen for sale at a farmers market; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the potential economic benefits as well as the public health and food safety ramifications of amending article thirty-five, chapter nineteen of the Code of West Virginia to include a new section providing for the issuance of a home-based micro-processing permit and providing that a kitchen in a private home or community kitchen where home-based micro-processed foods are prepared for sale by a vendor at a farmers market is permitted if the vendor has a micro-processing permit; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2017, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare reports and draft necessary legislation, be paid from legislative appropriations to the Joint Committee on Government and Finance.

            Delegates A. Evans, Hamilton and Eldridge offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 124 - “Requesting the Joint Committee on Agriculture and Rural Development study the impact of amending section five, article twelve-e, chapter nineteen of the Code of West Virginia to expand the list of persons the Commissioner of Agriculture may license to grow or cultivate industrial hemp.”

Whereas, Section five, article twelve-e, chapter nineteen of the Code of West Virginia permits a person to apply to the Commissioner of Agriculture for the issuance of a license to grow industrial hemp for commercial purposes; and

Whereas, Subsection (e), section five, article twelve-e, chapter nineteen of the Code of West Virginia provides that only the Department of Agriculture and state institutions of higher learning, licensed and authorized by the commissioner to do so, may lawfully grow or cultivate industrial hemp in this state; and

Whereas, Legislation has been proposed to expand the list of persons the Commissioner of Agriculture may license to grow or cultivate industrial hemp in this state; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Joint Committee on Agriculture and Rural Development to study the impact, including, but not limited to, potential economic benefits and regulatory issues, of amending subsection (e), section five, article twelve-e, chapter nineteen of the Code of West Virginia to provide that, in addition to the Department of Agriculture and state institutions of higher learning, the Commissioner of Agriculture may license other persons qualified under article twelve-e, chapter nineteen of the Code of West Virginia to lawfully grow or cultivate industrial hemp in this state; and, be it

Further Resolved, That the Joint Committee on Agriculture and Rural Development report to the regular session of the Legislature, 2017, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct these studies, to prepare reports and draft necessary legislation be paid from legislative appropriations to the Joint Committee on Agriculture and Rural Development.

            Delegates Perdue, Ambler, Bates, Byrd, Ellington, D. Evans, Flanigan, Fleischauer, Hicks, Manchin, Marcum, Morgan, Moye, Pushkin, Rodighiero, Skinner, R. Smith and P. White offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 125 -Requesting the Congressional Representatives of the State of West Virginia ask the federal government of the United States of America to reinstitute the Compassionate Investigational New Drug Program.”

Whereas, The Compassionate Investigational New Drug Program ceased to accept new patients beginning in 1992, leaving thousands without access to medication that could potentially cure their affliction; and

Whereas, The Compassionate Investigational New Drug Program allowed patients suffering from terminal illnesses or illnesses with no known cure the opportunity to try unapproved drugs and medications, including medical marihuana; and

Whereas, Medical marihuana has been proven to aid patients with terminal illnesses in recovering from other forms of treatment, such as chemotherapy; and

Whereas, More and more anecdotal reports from people that may have qualified for the Compassionate Investigational New Drug Program are showing that medical marihuana has helped them recover from severe illnesses and helped those with terminal illnesses with comfort and general well-being; and

Whereas, Studies produced by the National Organization for the Reform of Marijuana Laws show that medicinal cannabis could help people suffering from many other illnesses, including Alzheimer’s, Post Traumatic Stress Disorder, Multiple Sclerosis and Parkinson’s; and

Whereas, The reinstitution of the Compassionate Investigational New Drug Program would allow current and future patients suffering from painful, incurable or terminal illnesses an alternative to traditional medicine, which has shown to be addictive; therefore, be it

Resolved by the Legislative of West Virginia:

That the Legislature of the State of West Virginia hereby requests the Congressional Delegation from West Virginia request the federal government to reinstitute the Compassionate Investigational New Drug Program to aid suffering citizens in their fight against their terrible illnesses; and, be it

Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the United States Senators Joe Manchin, III and Shelley Moore Capito and to Congressional Representatives David McKinley, Alex Mooney and Evan Jenkins.

            Delegates Summers, Fleischauer, Campbell, Ellington, Lane, Kurcaba, Cooper, Householder, Moore, Hornbuckle and Longstreth offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 126 - Requesting the Joint Committee on Government and Finance to study the health care workforce in the State of West Virginia.”

Whereas, The delivery of health care is in a state of flux, with the addition of nearly 200,000  West Virginians attaining health care coverage; and

Whereas, Many areas of the state are underserved in terms of the number of various health care providers who are unavailable; and

Whereas, West Virginia residents score very poorly when it comes to many health conditions; and

Whereas, There is a need to evaluate the effectiveness, accessibility, and quality of our state’s health care workforce, both currently and in terms of the need for various professionals in the future; and

Whereas, A paraprofessional is an individual who works directly with patients, serving an important role as a provider of care and a collaborator with physicians and nurses; and

Whereas, Paraprofessionals perform tasks such as minor first aid and taking blood pressure and temperature. They also frequently work in physical and occupational therapy environments, helping patients navigate exercises and other activities; and

Whereas, The use of paraprofessionals, including community health workers, is increasing in the state and is expected to reach all counties as “Last to First” expands across the state; and

Whereas, Several pilot projects using paraprofessionals are evaluating their effectiveness, but there is not consensus on where or what type of state regulation might be needed; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the health care workforce needs in the future for the State of West Virginia; and, be it

Further Resolved, That The Joint Committee on Government and Finance report to the regular session of the Legislature, 2017, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

Petitions

            Delegates Caputo, Longstreth and Manchin presented a petition from citizens of Marion County in opposition to Com. Sub. for H. B. 4352, Relating to the selling of certain state owned health care facilities by the Secretary of the Department of Health and Human Resources; which was referred to the Committee on Health and Human Resources.

Motions

            At the request of Delegate Cowles, and by unanimous consent, permission was granted the Joint Committee on Enrolled Bills, after it had examined, found truly enrolled and presented to His Excellency, the Governor, for his action, bills passed but not presented to him prior to adjournment of this session of the Legislature, to file its report with the Clerk and that such reports be included in the final Journal of this session;  that communications from His Excellency, the Governor, as to his action on bills after adjournment of the session, also be included in the Journal.

Delegate Cowles further obtained unanimous consent that Messages and reports received by the Clerk after the 60th Day, which did not require action by the House, be considered received by the House and filed with the Clerk and recorded in the Journal.

Special Calendar

Third Reading

            Com. Sub. for S. B. 272, Allowing investigators from Attorney General's office to carry concealed weapons; on third reading, coming up in regular order, was reported by the Clerk.

            On motion of Delegate Cowles,  the House reconsidered the actions taken on the adoption of the Judiciary Committee amendment as amended.

On motion of Delegate Cowles, the House then reconsidered the amendment offered by Delegate Marcum.

            Delegate Marcum then asked and obtained unanimous consent to withdraw his amendment to the Committee amendment.

            Delegate Cowles asked and obtained unanimous consent to amend the bill on third reading, and the rule was suspended to permit the offering and consideration of such.

An amendment recommended by the Committee on the Judiciary was then reported by the Clerk and adopted, amending the bill on page one, immediately following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

“That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §5-3-6 and §60-3-24a, 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 3. ATTORNEY GENERAL.

§5-3-6. Attorney General’s investigators authority to carry concealed weapon.

Notwithstanding any provision of this code to the contrary, the Attorney General may designate investigators in his or her employ to carry a firearm in the course of performing their official duties: Provided, That as a precondition of being authorized to carry a concealed weapon in the course of their official duties, any such designated investigator must have first successfully completed a firearms training and certification program and maintain certification in a manner which is equivalent to that which is required of members of the State Police. The designated investigator must also obtain and maintain a license to carry a concealed deadly weapon issued pursuant to article seven, chapter sixty-one of this code.

CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 3. SALES BY COMMISSIONER.

§60-3-24a. Authority of employees of the Commission to carry concealed weapon.

Notwithstanding any provision of this code to the contrary, the Commissioner may designate certain employees of the Enforcement Division in his or her employ to carry a firearm in the course of performing their official duties: Provided, That as a precondition of being authorized to carry a concealed weapon in the course of their official duties, any such designated employee must have first successfully completed a firearms training and certification program and maintain certification in a manner which is equivalent to that which is required of members of the State Police. The designated employee must also obtain and maintain a license to carry a concealed deadly weapon issued pursuant to article seven, chapter sixty-one of this code.”

            The bill was then read a third time.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 557), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Moore.

Absent and Not Voting: Arvon.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 272) passed.

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

Com. Sub. for S. B. 278, Clarifying physicians’ mutual insurance company is not state or quasi-state actor; on third reading, coming up in regular order, was read a third time.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 558), and there were--yeas 89, nays 10, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Caputo, Fleischauer, Longstreth, Manchin, Marcum, Miley, Moore, Skinner, Sponaugle and P. White.

Absent and Not Voting: Arvon.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 278) passed.

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

            On this question, the yeas and nays were taken (Roll No. 559), and there were--yeas 90, nays 9, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Caputo, Fleischauer, Longstreth, Manchin, Miley, Moore, Reynolds, Skinner and Sponaugle.

Absent and Not Voting: Arvon.

            So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 278) takes effect from its passage.

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

Com. Sub. for S. B. 404, Removing prohibition on billing persons for testing for HIV and sexually transmitted diseases; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 560), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

Absent and Not Voting: Arvon.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 404) passed.

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

Com. Sub. for S. B. 404 - “A Bill to amend and reenact §16-3C-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §16-4-19 of said code, all relating to testing for HIV and sexually transmitted diseases; authorizing billing of persons for HIV and sexually transmitted disease testing or sexually transmitted disease treatment done by state or local public health agencies; informing persons who wish to opt-out of HIV-related testing that anonymous testing is available; providing that costs associated with testing may be borne by the state when the person charged with certain sex crimes is financially unable to pay; authorizing billing of a person charged with certain sex crimes health insurance provider; providing for mandatory disease testing when a person renders or receives certain services and comes in contact with inflected bodily fluids; providing that the costs for mandated testing and counseling are to be paid by the individual receiving the tests or counseling; providing that a person who is tested for sexually transmitted diseases at a local health department are responsible for the costs of such testing; providing for fee schedules by which local health departments may charge for such testing; removing limitation on amount that can be charged for medication used to treat sexually transmitted diseases; and removing language related to testing of sexually transmitted diseases.”

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

S. B. 427, Transferring funds from State Excess Lottery Fund to Department of Revenue;on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 561), and there were--yeas 84, nays 14, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Byrd, Caputo, D. Evans, Fluharty, Hornbuckle, McGeehan, Miley, Pushkin, Reynolds, Rowe, Shaffer, Skinner, Storch and Weld.

Absent and Not Voting: Arvon and Morgan.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 427) passed.

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

            On this question, the yeas and nays were taken (Roll No. 562), and there were--yeas 79, nays 19, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Bates, Byrd, Caputo, Fleischauer, Fluharty, Manchin, McGeehan, Miley, Moore, Perdue, Pushkin, Reynolds, Rowe, Shaffer, Skinner, Storch, Trecost, Weld and Zatezalo.

Absent and Not Voting: Arvon and Morgan.

            So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 427) takes effect from its passage.

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

Com. Sub. for S. B. 465, Allowing professional employer insure certain risks through pure insurance captive; on third reading, coming up in regular order, was read a third time.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 563), and there were--yeas 90, nays 7, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Caputo, Fleischauer, Longstreth, Lynch, Manchin, Moore and Sponaugle.

Absent and Not Voting: Arvon, Marcum and Morgan.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 465) passed.

            On motion of Delegate Shott, the title of the bill was amended to read as follows:

            Com. Sub. for S. B. 465  - “A Bill to amend and reenact §33-31-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §33-46A-9 of said code, all relating to allowing professional employer organizations to insure certain risks; permitting professional employer organizations to insure certain risks through a pure insurance captive; permitting professional employer organizations to sponsor health benefit plans for covered employees; requiring professional employer organizations to comply with captive insurance law if a benefit plan is not fully insured; and authorizing insurance commissioner to promulgate and adopt rules with respect to professional employer organizations sponsoring health benefit plans.”

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

S. B. 578, Protecting utility workers from crimes against person on third reading, coming up in regular order, was read a third time.

Speaker Pro Tempore Anderson in the Chair

            Mr. Speaker, Mr. Armstead, arose from his seat and requested to be excused from voting on the passage of S. B. 578 under the provisions of House Rule 49.

            The Speaker Pro Tempore replied that any impact on Mr. Armstead would be as a member of a class of persons possibly to be affected by the passage of the bill, and refused to excuse him from voting.

Delegate Espinosa requested to be excused from voting on S. B. 578 under the provisions of House Rule 49.

            The Speaker Pro Tempore replied that any impact on the Delegate would be as a member of a class of persons possibly to be affected by the passage of the bill, and refused to excuse the Member from voting.

Mr. Speaker, Mr. Armstead, in the Chair

Delegates Trecost and Reynolds requested to be excused from voting on S. B. 578 under the provisions of House Rule 49.

            The Speaker replied that any impact on the Delegates would be as a member of a class of persons possibly to be affected by the passage of the bill, and refused to excuse the Members from voting.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 564), and there were--yeas 94, nays 5, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Azinger, Ihle, Lynch, McGeehan and Sobonya.

Absent and Not Voting: Arvon.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 578) passed.

At 11:40 a.m., on motion of Delegate Cowles, the House of Delegates recessed until 1:00 p.m.

*******

            Still being in possession of the Clerk, S. B. 578 bill was taken up for further consideration.

            On motion of Delegate Shott, the title of the bill was amended to read as follows:

            S. B. 578 - “A Bill to amend and reenact §61-2-10b of the Code of West Virginia, 1931, as amended, relating to protection of utility workers and law-enforcement officers from crimes against the person; defining terms; adding law-enforcement officers and utility workers among the list of professionals the malicious assault, unlawful assault, battery or assault of which carries increased criminal penalties; clarifying the criminal offense of battery to require that the perpetrator have knowledge that the victim was acting in his or her official capacity; and clarifying the criminal offense of assault to require that the perpetrator have knowledge that the victim was acting in his or her official capacity.”

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

Messages from the Senate

            A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with a title amendment, and the passage, as amended, of

            S. B. 306, Permitting sale of county or district property online.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration.

            Delegate Ireland arose to inquire about a ruling related to Rule 49 that had been previously granted, which ruling was reaffirmed.

            On motion of Delegate Cowles, the House of Delegate concurred in the following Senate title amendment:

S. B. 306 - “A Bill to amend and reenact §7-3-3 of the Code of West Virginia, 1931, as amended, relating to sale of county or district property; permitting property be sold either at an on-site public auction or by utilizing an internet-based public auction service; and requiring notice of sale include notice of the time, terms, manner and place of sale or the internet-based public auction service to be utilized.”

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 565), and there were--yeas 95, nays 2, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Fleischauer and Shaffer.

Absent and Not Voting: Blackwell, Miller and Statler.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 306) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates, with further amendment, and the passage, as amended, of

Com. Sub. for S. B. 524, Rewriting Board of Barbers and Cosmetologists article.

On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page two, section three, line twenty-eight, by striking out all of subdivision (4) and inserting in lieu thereof a new subdivision, designated subdivision (4), to read as follows:

“(4) The waxing and tweezing of hair on another person’s body” and a semicolon.

On page eight, section four, line one hundred sixty-four, by striking out all of subdivision (6) and inserting in lieu thereof a new subdivision, designated subdivision (6), to read as follows:

“(6) Four citizen members representing the public” and a semicolon.

And,

On page eleven, section five, lines sixty-one through sixty-eight, by striking out all of subdivision (d) and inserting in lieu thereof a new subdivision, designated subdivision (d), to read as follows:

“(d) Notwithstanding any other provision of this code, the board may not restrict a certificate holder or licensee from practicing his or her licensed craft at temporary on-site events in connection with, but not limited to: Fairs, carnivals, weddings, pageants or photographs: Provided, That the certificate holder or licensee is compliant with all other prescribed requirements and rules under this code.  If an out-of-state licensee works in a temporary capacity, less than five days, in connection with an event or temporary commercial enterprise, he or she may be granted a temporary permit to work after submitting his or her current license certification to this state and paying the applicable fee: Provided, however, That the licensee shall display or have immediately available their license for the duration of his or her practice at a temporary event.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for S. B. 524 - “A Bill to amend and reenact §30-27-1, §30-27-3, §30-27-4, §30-27-5, §30-27-8, §30-27-8a, §30-27-9, §30-27-10, §30-27-11, §30-27-12, §30-27-13, §30-27-14, §30-27-16, §30-27-17, §30-27-18 and §30-27-19 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §30-27-8b, all relating to the Board of Barbers and Cosmetologists; providing jurisdiction to the board over hairstyling, waxing and shampoo assisting; amending definitions; providing for required clock hours of training; licensing of schools or programs by the Department of Education; modifying composition of the board; requiring examinations meet national standards; requiring licensed schools have one chair per student; regulation of on-site and temporary services; barber apprentice program; requirements to sponsor a barber apprentice; providing for certifications; providing for certification of waxing specialists; modifying reciprocity standards; modifying continuing education requirements; modifying instructor certification; and eliminating biennial license renewal.”

            The bill, as amended by the House, and further amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 566), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Fleischauer.

Absent and Not Voting: Blackwell, Miller and Statler.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 524) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 2205, Creating the crime of prohibited sexual contact by a psychotherapist.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, 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 section, designated §61-8-30, to read as follows:

ARTICLE 8.  crimes against chastity, morality and decency.

§61-8-30. Therapeutic deception; penalties.

(a) In this section, unless a different meaning plainly is required:

(1) ‘Client’ or ‘patient’ means a person who is being treated clinically or medically by a psychotherapist for more than one session or initial visit.

(2) ‘Psychotherapist’ means any of the following:

(A) A psychiatrist licensed pursuant to article three, chapter thirty of this code;

(B) A psychologist licensed pursuant to article twenty-one, chapter thirty of this code or a medical psychologist licensed pursuant to article three, chapter thirty of this code;

(C) A licensed clinical social worker licensed pursuant to article thirty, chapter thirty of this code; or

(D) A mental health counselor licensed pursuant to article thirty-one, chapter thirty of this code.

(3) ‘Sexual contact’ has the same meaning as provided in article eight-b, chapter sixty-one of this code.

(4) ‘Sexual intercourse’ has the same meaning as provided in article eight-b, chapter sixty-one of this code. 

(5) ‘Therapeutic deception’ means a representation by the psychotherapist to the patient or client that sexual contact or sexual intercourse with the psychotherapist is consistent with or part of the treatment of the patient or client.

(b) It is unlawful for any psychotherapist, or any person who fraudulently represents himself or herself as a psychotherapist, to engage in sexual contact or sexual intercourse with a client or patient by means of therapeutic deception.

(c) For purposes of this section, consent of the patient or client is not a defense, regardless of the age of the patient or client.

(d) Any person who violates subsection (b) of this section is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000.00 or imprisoned in a state correctional facility for not less than one year nor more than five years, or both fined and imprisoned.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 2205 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-8-30, relating to creating the offense of a psychotherapist, or one fraudulently representing himself or herself as a psychotherapist, to engage in sexual contact or sexual intercourse with a patient or client by means of therapeutic deception; establishing elements of the crime; providing exceptions; providing definitions; and providing criminal penalties.”

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 567), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: McGeehan.

Absent and Not Voting: Blackwell and Miller.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2205) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4038, Relating to insurance requirements for the refilling of topical eye medication.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, 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 a new section, designated §33-15-4m; that said code be amended by adding thereto a new section, designated §33-16-3y; that said code be amended by adding thereto a new section, designated §33-24-7n; that said code be amended by adding thereto a new section, designated §33-25-8k; that said code be amended by adding thereto a new section, designated §33-25A-8m, all to read as follows” and a semicolon.

            And,

            By amending the title of the bill to read as follows:

Com. Sub. for H. B.  4038 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-15-4m; to amend said code by adding thereto a new section, designated §33-16-3y; to amend said code by adding thereto a new section, designated §33-24-7n; to amend said code by adding thereto a new section, designated §33-25-8k; and to amend said code by adding thereto a new section, designated §33-25A-8m, all relating to insurance requirements for the refilling of topical eye medication; requiring a refill take place at a certain time; and establishing when a refill is permitted.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 568), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent and Not Voting: Blackwell and Miller.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4038) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4146, Providing insurance cover abuse-deterrent opioid analgesic drugs.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, 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 section, designated §33-15-4m; that said code be amended by adding thereto a new section, designated §33-16-3y; that said code be amended by adding thereto a new section, designated §33-24-7n; that said code be amended by adding thereto a new section, designated §33-25-8k; and that said code be amended by adding thereto a new section, designated §33-25A-8m, all to read as follows:

chapter 33. insurance.

ARTICLE 15. ACCIDENT AND SICKNESS INSURANCE.

§33-15-4m. Deductibles, copayments and coinsurance for abuse-deterrent opioid analgesic drugs.

(a) As used in this section:

(1) ‘Abuse-deterrent opioid analgesic drug product’ means a brand name or generic opioid analgesic drug product approved by the United States Food and Drug Administration with abuse-deterrent labeling that indicates its abuse-deterrent properties are expected to deter or reduce its abuse;

(2) ‘Cost-sharing’ means any coverage limit, copayment, coinsurance, deductible or other out-of-pocket expense requirements;

(3) ‘Opioid analgesic drug product’ means a drug product that contains an opioid agonist and is indicated by the United States Food and Drug Administration for the treatment of pain, regardless of whether the drug product:

(A) Is in immediate release or extended release form; or

(B) Contains other drug substances.

(b) Notwithstanding any provision of any accident and sickness insurance policy issued by an insurer, on or after January 1, 2017:

(1) Coverage shall be provided for at least one abuse-deterrent opioid analgesic drug product for each active opioid analgesic ingredient;

(2) Cost-sharing for brand name abuse-deterrent opioid analgesic drug products shall not exceed the lowest tier for brand name prescription drugs on the entity’s formulary for prescription drug coverage;

(3) Cost-sharing for generic abuse-deterrent opioid analgesic drug products covered pursuant to this section shall not exceed the lowest cost-sharing level applied to generic prescription drugs covered under the applicable health plan or policy; and

(4) An entity subject to this section may not require an insured or enrollee to first use an opioid analgesic drug product without abuse-deterrent labeling before providing coverage for an abuse-deterrent opioid analgesic drug product covered on the entity's formulary for prescription drug coverage.

(c) Notwithstanding subdivision (3), subsection (b) of this section, an entity subject to this section may undertake utilization review, including preauthorization, for an abuse-deterrent opioid analgesic drug product covered by the entity, if the same utilization review requirements are applied to nonabuse-deterrent opioid analgesic drug products and with the same type of drug release, immediate or extended.

(d) For purposes of subsection (b) of this section, the lowest tier and the lowest cost-sharing level shall not mean the cost-sharing tier applicable to preventive care services which are required to be provided at no cost-sharing under the Patient Protection and Affordable Care Act.

ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.

§33-16-3y. Deductibles, copayments and coinsurance for abuse-deterrent opioid analgesic drugs.

(a) As used in this section:

(1) ‘Abuse-deterrent opioid analgesic drug product’ means a brand name or generic opioid analgesic drug product approved by the United States Food and Drug Administration with abuse-deterrent labeling that indicates its abuse-deterrent properties are expected to deter or reduce its abuse;

(2) ‘Cost-sharing’ means any coverage limit, copayment, coinsurance, deductible or other out-of-pocket expense requirements;

(3) ‘Opioid analgesic drug product’ means a drug product that contains an opioid agonist and is indicated by the United States Food and Drug Administration for the treatment of pain, regardless of whether the drug product:

(A) Is in immediate release or extended release form; or

(B) Contains other drug substances.

(b) Notwithstanding any provision of any group accident and sickness insurance policy issued by an insurer pursuant to this article, on or after January 1, 2017:

(1) Coverage shall be provided for at least one abuse-deterrent opioid analgesic drug product for each active opioid analgesic ingredient;

(2) Cost-sharing for brand name abuse-deterrent opioid analgesic drug products shall not exceed the lowest tier for brand name prescription drugs on the entity’s formulary for prescription drug coverage;

(3) Cost-sharing for generic abuse-deterrent opioid analgesic drug products covered pursuant to this section shall not exceed the lowest cost-sharing level applied to generic prescription drugs covered under the applicable health plan or policy; and

(4) An entity subject to this section may not require an insured or enrollee to first use an opioid analgesic drug product without abuse-deterrent labeling before providing coverage for an abuse-deterrent opioid analgesic drug product covered on the entity's formulary for prescription drug coverage.

(c) Notwithstanding subdivision (3), subsection (b) of this section, an entity subject to this section may undertake utilization review, including preauthorization, for an abuse-deterrent opioid analgesic drug product covered by the entity, if the same utilization review requirements are applied to nonabuse-deterrent opioid analgesic drug products and with the same type of drug release, immediate or extended.

(d) For purposes of subsection (b) of this section, the lowest tier and the lowest cost-sharing level shall not mean the cost-sharing tier applicable to preventive care services which are required to be provided at no cost-sharing under the Patient Protection and Affordable Care Act.

ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE CORPORATIONS.

§33-24-7n. Deductibles, copayments and coinsurance for abuse-deterrent opioid analgesic drugs.

(a) As used in this section:

(1) ‘Abuse-deterrent opioid analgesic drug product’ means a brand name or generic opioid analgesic drug product approved by the United States Food and Drug Administration with abuse-deterrent labeling that indicates its abuse-deterrent properties are expected to deter or reduce its abuse;

(2) ‘Cost-sharing’ means any coverage limit, copayment, coinsurance, deductible or other out-of-pocket expense requirements;

(3) ‘Opioid analgesic drug product’ means a drug product that contains an opioid agonist   and is indicated by the United States Food and Drug Administration for the treatment of pain, regardless of whether the drug product:

(A) Is in immediate release or extended release form; or

(B) Contains other drug substances.

(b) Notwithstanding any provision of any policy, provision, contract, plan or agreement to which this article applies, on or after January 1, 2017:

(1) Coverage shall be provided for at least one abuse-deterrent opioid analgesic drug product for each active opioid analgesic ingredient;

(2) Cost-sharing for brand name abuse-deterrent opioid analgesic drug products shall not exceed the lowest tier for brand name prescription drugs on the entity’s formulary for prescription drug coverage;

(3) Cost-sharing for generic abuse-deterrent opioid analgesic drug products covered pursuant to this section shall not exceed the lowest cost-sharing level applied to generic prescription drugs covered under the applicable health plan or policy; and

(4) An entity subject to this section may not require an insured or enrollee to first use an opioid analgesic drug product without abuse-deterrent labeling before providing coverage for an abuse-deterrent opioid analgesic drug product covered on the entity's formulary for prescription drug coverage.

(c) Notwithstanding subdivision (3), subsection (b) of this section, an entity subject to this section may undertake utilization review, including preauthorization, for an abuse-deterrent opioid analgesic drug product covered by the entity, if the same utilization review requirements are applied to nonabuse-deterrent opioid analgesic drug products and with the same type of drug release, immediate or extended.

(d) For purposes of subsection (b) of this section, the lowest tier and the lowest cost-sharing level shall not mean the cost-sharing tier applicable to preventive care services which are required to be provided at no cost-sharing under the Patient Protection and Affordable Care Act.

 ARTICLE 25. HEALTH CARE CORPORATIONS.

§33-25-8k. Deductibles, copayments and coinsurance for abuse-deterrent opioid analgesic drugs.

(a) As used in this section:

(1) ‘Abuse-deterrent opioid analgesic drug product’ means a brand name or generic opioid analgesic drug product approved by the United States Food and Drug Administration with abuse-deterrent labeling that indicates its abuse-deterrent properties are expected to deter or reduce its abuse;

(2) ‘Cost-sharing’ means any coverage limit, copayment, coinsurance, deductible or other out-of-pocket expense requirements;

(3) ‘Opioid analgesic drug product’ means a drug product that contains an opioid agonist and is indicated by the United States Food and Drug Administration for the treatment of pain, regardless of whether the drug product:

(A) Is in immediate release or extended release form; or

(B) Contains other drug substances.

(b) Notwithstanding any provision of any policy, provision, contract, plan or agreement to which this article applies, on or after January 1, 2017:

(1) Coverage shall be provided for at least one abuse-deterrent opioid analgesic drug product for each active opioid analgesic ingredient;

(2) Cost-sharing for brand name abuse-deterrent opioid analgesic drug products shall not exceed the lowest tier for brand name prescription drugs on the entity’s formulary for prescription drug coverage;

(3) Cost-sharing for generic abuse-deterrent opioid analgesic drug products covered pursuant to this section shall not exceed the lowest cost-sharing level applied to generic prescription drugs covered under the applicable health plan or policy; and

(4) An entity subject to this section may not require an insured or enrollee to first use an opioid analgesic drug product without abuse-deterrent labeling before providing coverage for an abuse-deterrent opioid analgesic drug product covered on the entity's formulary for prescription drug coverage.

(c) Notwithstanding subdivision (3), subsection (b) of this section, an entity subject to this section may undertake utilization review, including preauthorization, for an abuse-deterrent opioid analgesic drug product covered by the entity, if the same utilization review requirements are applied to nonabuse-deterrent opioid analgesic drug products and with the same type of drug release, immediate or extended.

(d) For purposes of subsection (b) of this section, the lowest tier and the lowest cost-sharing level shall not mean the cost-sharing tier applicable to preventive care services which are required to be provided at no cost-sharing under the Patient Protection and Affordable Care Act.

ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.

§33-25A-8m. Deductibles, copayments and coinsurance for abuse-deterrent opioid analgesic drugs.

(a) As used in this section:

(1) ‘Abuse-deterrent opioid analgesic drug product’ means a brand name or generic opioid analgesic drug product approved by the United States Food and Drug Administration with abuse-deterrent labeling that indicates its abuse-deterrent properties are expected to deter or reduce its abuse;

(2) ‘Cost-sharing’ means any coverage limit, copayment, coinsurance, deductible or other out-of-pocket expense requirements;

(3) ‘Opioid analgesic drug product’ means a drug product that contains an opioid agonist and is indicated by the United States Food and Drug Administration for the treatment of pain, regardless of whether the drug product:

(A) Is in immediate release or extended release form; or

(B) Contains other drug substances.

(b) Notwithstanding any provision of any policy, provision, contract, plan or agreement to which this article applies, on or after January 1, 2017:

(1) Coverage shall be provided for at least one abuse-deterrent opioid analgesic drug product for each active opioid analgesic ingredient;

(2) Cost-sharing for brand name abuse-deterrent opioid analgesic drug products shall not exceed the lowest tier for brand name prescription drugs on the entity’s formulary for prescription drug coverage;

(3) Cost-sharing for generic abuse-deterrent opioid analgesic drug products covered pursuant to this section shall not exceed the lowest cost-sharing level applied to generic prescription drugs covered under the applicable health plan or policy; and

(4) An entity subject to this section may not require an insured or enrollee to first use an opioid analgesic drug product without abuse-deterrent labeling before providing coverage for an abuse-deterrent opioid analgesic drug product covered on the entity's formulary for prescription drug coverage.

(c) Notwithstanding subdivision (3), subsection (b) of this section, an entity subject to this section may undertake utilization review, including preauthorization, for an abuse-deterrent opioid analgesic drug product covered by the entity, if the same utilization review requirements are applied to nonabuse-deterrent opioid analgesic drug products and with the same type of drug release, immediate or extended.

(d) For purposes of subsection (b) of this section, the lowest tier and the lowest cost-sharing level shall not mean the cost-sharing tier applicable to preventive care services which are required to be provided at no cost-sharing under the Patient Protection and Affordable Care Act.

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 569), and there were--yeas 94, nays 4, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Azinger, Cadle, Ihle and McGeehan.

Absent and Not Voting: Blackwell and Miller.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4146) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4307, Clarifying that a firearm may be carried for self defense in state parks, state forests and state recreational areas.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 2. WILDLIFE RESOURCES.

§20-2-5. Unlawful methods of hunting and fishing and other unlawful acts.

Except as authorized by the director or by law, it is unlawful at any time for any person to:

(1) Shoot at any wild bird or wild animal unless it is plainly visible;

(2) Dig out, cut out, smoke out, or in any manner take or attempt to take any live wild animal or wild bird out of its den or place of refuge;

(3) Use or attempt to use any artificial light or any night vision technology, including image intensification, thermal imaging or active illumination while hunting, locating, attracting, taking, trapping or killing any wild bird or wild animal: Provided, That it is lawful to hunt or take coyote, fox, raccoon, opossum or skunk by the use of artificial light or night vision technology. Any person violating this subdivision is guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not less than $100 nor more than $500, and shall be confined in jail for not less than ten days nor more than one hundred days;

(4) Hunt, take, kill, wound or shoot at wild animals or wild birds from an airplane or other airborne conveyance, a drone or other unmanned aircraft, an automobile or other land conveyance, or from a motor-driven water conveyance;

(5) Use a drone or other unmanned aircraft to hunt, take or kill a wild bird or wild animal, or to use a drone or other unmanned aircraft to drive or herd any wild bird or wild animal for the purposes of hunting, trapping or killing;

(6) Take any beaver or muskrat by any means other than a trap;

(7) Catch, capture, take, hunt or kill by seine, net, bait, trap or snare or like device a bear, wild turkey, ruffed grouse, pheasant or quail;

(8) Intentionally destroy or attempt to destroy the nest or eggs of any wild bird or have in his or her possession the nest or eggs;

(9) Carry an uncased or loaded firearm in the woods of this state or in state parks, state forests, state wildlife management areas or state rail trails with the following permissible exceptions:

(A) A person in possession of a valid license or permit during open firearms hunting season for wild animals and nonmigratory wild birds where hunting is lawful;

(B) A person hunting or taking unprotected species of wild animals, wild birds and migratory wild birds during the open season, in the open fields, open water and open marshes of the state where hunting is lawful;

(C) A person carrying a firearm pursuant to sections six and six-a of this article; or

(D) A person carrying a firearm handgun for self-defense who is not prohibited from possessing firearms by section seven, article seven, chapter sixty-one of this code; or

(E) A person carrying a rifle or shotgun for self-defense who is not prohibited from possessing firearms under state or federal law: Provided, That this exception does not apply to an uncased rifle or shotgun carried specifically in state park or state forest recreational facilities and marked trails within state park and/or state forest borders or on state rail trails; Provided, however, That nothing in this subdivision shall be construed as authorizing any county or municipality to limit the right of any person to possess, transfer, own, carry or transport any firearm or ammunition.

(10) Have in his or her possession a crossbow with a nocked bolt, or a rifle or shotgun with cartridges that have not been removed or a magazine that has not been detached, in or on any vehicle or conveyance, or its attachments. For the purposes of this section, a rifle or shotgun whose magazine readily detaches is considered unloaded if the magazine is detached and no cartridges remain in the rifle or shotgun itself. Except that between five o'clock post meridian of day one and seven o'clock ante meridian, Eastern Standard Time, of the following day, any unloaded firearm or crossbow may be carried only when in a case or taken apart and securely wrapped. During the period from July 1 to September 30, inclusive, of each year, the requirements relative to carrying unloaded firearms are permissible only from eight-thirty o'clock post meridian to five o'clock ante meridian, Eastern Standard Time: Provided, That the time periods for carrying unloaded and uncased firearms are extended for one hour after the post meridian times and one hour before the ante meridian times established in this subdivision, if a person is transporting or transferring the firearms to or from a hunting site, campsite, home or other abode;

(11) Hunt, catch, take, kill, trap, injure or pursue with firearms or other implement by which wildlife may be taken after the hour of five o'clock ante meridian on Sunday on private land without the written consent of the landowner any wild animals or wild birds except when a big game season opens on a Monday, the Sunday prior to that opening day will be closed for any taking of wild animals or birds after five o'clock ante meridian on that Sunday: Provided, That traps previously and legally set may be tended after the hour of five o'clock ante meridian on Sunday and the person tending the traps may carry firearms for the purpose of humanely dispatching trapped animals. Any person violating this subdivision is guilty of a misdemeanor and, upon conviction thereof, in addition to any fines that may be imposed by this or other sections of this code, is subject to a $100 fine;

(12) Hunt, catch, take, kill, injure or pursue a wild animal or wild bird with the use of a ferret;

(13) Buy raw furs, pelts or skins of fur-bearing animals unless licensed to do so;

(14) Catch, take, kill or attempt to catch, take or kill any fish by any means other than by rod, line and hooks with natural or artificial lures: Provided, That snaring of any species of suckers, carp, fallfish and creek chubs is lawful;

(15) Employ, hire, induce or persuade, with money, things of value or by any means, any person to hunt, take, catch or kill any wild animal or wild bird except those species in which there is no closed season; or to fish for, catch, take or kill any fish, amphibian or aquatic life that is protected by rule, or the sale of which is otherwise prohibited;

(16) Hunt, catch, take, kill, capture, pursue, transport, possess or use any migratory game or nongame birds except as permitted by the Migratory Bird Treaty Act, 16 U. S. C. §703, et seq., and its regulations;

(17) Kill, take, catch, sell, transport or have in his or her possession, living or dead, any wild bird other than a game bird including the plumage, skin or body of any protected bird, irrespective of whether the bird was captured in or out of this state, except the English or European sparrow (Passer domesticus), starling (Sturnus vulgaris) and cowbird (Molothrus ater), which may be killed at any time;

(18) Use dynamite, explosives or any poison in any waters of the state for the purpose of killing or taking fish. Any person violating this subdivision is guilty of a felony and, upon conviction thereof, shall be fined not more than $500 or imprisoned for not less than six months nor more than three years, or both fined and imprisoned;

(19) Have a bow and gun, or have a gun and any arrow, in the fields or woods at the same time;

(20) Have a crossbow in the woods or fields, or use a crossbow to hunt for, take or attempt to take any wildlife except as otherwise provided in sections five-g and forty-two-w of this article;

(21) Take or attempt to take turkey, bear, elk or deer with any arrow unless the arrow is equipped with a point having at least two sharp cutting edges measuring in excess of three fourths of an inch wide;

(22) Take or attempt to take any wildlife with an arrow having an explosive head or shaft, a poisoned arrow or an arrow which would affect wildlife by any chemical action;

(23) Shoot an arrow across any public highway;

(24) Permit any dog owned or under his or her control to chase, pursue or follow the tracks of any wild animal or wild bird, day or night, between May 1 and August 15: Provided, That dogs may be trained on wild animals and wild birds, except deer and wild turkeys, and field trials may be held or conducted on the grounds or lands of the owner, or by his or her bona fide tenant, or upon the grounds or lands of another person with his or her written permission, or on public lands at any time. Nonresidents may not train dogs in this state at any time except during the legal small game hunting season. A person training dogs may not have firearms or other implements in his or her possession during the closed season on wild animals and wild birds;

(25) Conduct or participate in a trial, including a field trial, shoot-to-retrieve field trial, water race or wild hunt: Provided, That any person, group of persons, club or organization may hold a trial upon obtaining a permit pursuant to section fifty-six of this article. The person responsible for obtaining the permit shall prepare and keep an accurate record of the names and addresses of all persons participating in the trial and make the records readily available for inspection by any natural resources police officer upon request;

(26) Hunt, catch, take, kill or attempt to hunt, catch, take or kill any wild animal, wild bird or wild fowl except during open seasons;

(27) Hunting on public lands on Sunday after five o'clock ante meridian is prohibited;

(28) Hunt, catch, take, kill, trap, injure or pursue with firearms or other implement which wildlife can be taken, on private lands on Sunday after the hour of five o'clock ante meridian: Provided, That the provisions of this subdivision do not apply in any county until the county commission of the county holds an election on the question of whether the provisions of this subdivision prohibiting hunting on Sunday shall apply within the county and the voters approve the allowance of hunting on Sunday in the county. The election is determined by a vote of the resident voters of the county in which the hunting on Sunday is proposed to be authorized. The county commission of the county in which Sunday hunting is proposed shall give notice to the public of the election by publication of the notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for the publication is the county in which the election is to be held. The date of the last publication of the notice shall fall on a date within the period of the fourteen consecutive days next preceding the election.

On the local option election ballot shall be printed the following:

Shall hunting on Sunday be authorized on private lands only with the consent of the land owner in ________ County?

[ ] Yes

[ ] No

(Place a cross mark in the square opposite your choice.)

Any local option election to approve or disapprove of the proposed authorization of Sunday hunting within a county shall be in accordance with procedures adopted by the commission. The local option election may be held in conjunction with a primary or general election or at a special election. Approval shall be by a majority of the voters casting votes on the question of approval or disapproval of Sunday hunting at the election.

If a majority votes against allowing Sunday hunting, an election on the issue may not be held for a period of one hundred four weeks. If a majority votes Ayes@, an election reconsidering the action may not be held for a period of five years. A local option election may thereafter be held if a written petition of qualified voters residing within the county equal to at least five percent of the number of persons who were registered to vote in the next preceding general election is received by the county commission of the county in which Sunday hunting is authorized. The petition may be in any number of counterparts. The election shall take place at the next primary or general election scheduled more than ninety days following receipt by the county commission of the petition required by this subsection: Provided, That the issue may not be placed on the ballot until all statutory notice requirements have been met. No local law or regulation providing any penalty, disability, restriction, regulation or prohibition of Sunday hunting may be enacted and the provisions of this article preempt all regulations, rules, ordinances and laws of any county or municipality in conflict with this subdivision.

Amendments to this subdivision promulgated during the 2015 regular session of the Legislature shall have no effect upon the results of elections held prior to their enactment; and

(29) Hunt or conduct hunts for a fee when the person is not physically present in the same location as the wildlife being hunted within West Virginia.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4307 - “A Bill to amend and reenact §20-2-5 of the Code of West Virginia, 1931, as amended, relating to carrying a firearm for self-defense in state parks and state forests generally; providing exceptions; and clarifying that nothing in the section authorizes counties or municipalities to limit a person’s ability to possess, transfer over, carry or transport a firearm or ammunition.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 570), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Fleischauer and Moore.

Absent and Not Voting: Blackwell and Miller.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4307) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4323, Relating to the reporting of emergency incidents by well operators and pipeline operators.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, section one, line three, by striking out the words “in the Department of Military Affairs and Public Safety”.

On page one, section one, line six after the word “injury”, by inserting the word “or”.

And,

On page two, section one, line nineteen, after the word “farm”, by adding a comma and the words “commercial structure”.

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4323 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §15-5C-1 and §15-5C-2, all relating to the reporting of emergency incidents by well operators and pipeline operators; defining terms; establishing reporting requirements; establishing time by which report must be made; setting forth contents of report; establishing obligations of local emergency telephone operators; providing for recording and handling of calls; providing that certain information is available to the public pursuant to the West Virginia Freedom of Information Act; setting forth civil administrative penalty; setting forth situations in which civil administrative penalty shall be waived; permitting pipeline operator or well operator to request reconsideration of civil administrative penalty; and providing right to appeal.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 571), and there were--yeas 94, nays 4, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Azinger, McGeehan, J. Nelson and R. Smith.

Absent and Not Voting: Blackwell and Miller.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4323) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4365, Relating to the certificate of need process.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendment with amendment:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

CHAPTER 16. PUBLIC HEALTH.

ARTICLE 2D. CERTIFICATE OF NEED.

§16-2D-1. Legislative findings.

It is declared to be the public policy of this state:

(1) That the offering or development of all health services shall be accomplished in a manner which is orderly, economical and consistent with the effective development of necessary and adequate means of providing for the health services of the people of this state and to avoid unnecessary duplication of health services, and to contain or reduce increases in the cost of delivering health services.

(2) That the general welfare and protection of the lives, health and property of the people of this state require that the type, level and quality of care, the feasibility of providing such care and other criteria as provided for in this article, including certificate of need standards and criteria developed by the authority pursuant to provisions of this article, pertaining to health services within this state, be subject to review and evaluation before any health services are offered or developed in order that appropriate and needed health services are made available for persons in the area to be served.

§16-2D-2. Definitions.

As used in this article:

(1) ‘Affected person’ means:

(A) The applicant;

(B) An agency or organization representing consumers;

(C) An individual residing within the geographic area but within this state served or to be served by the applicant;

(D) An individual who regularly uses the health care facilities within that geographic area;

(E) A health care facility located within this state which provide services similar to the services of the facility under review and which will be significantly affected by the proposed project;

(F) A health care facility located within this state which, before receipt by the authority of the proposal being reviewed, have formally indicated an intention to provide similar services within this state in the future;

(G) Third-party payors who reimburse health care facilities within this state similar to those proposed for services;

(H) An agency that establishes rates for health care facilities within this state similar to those proposed; or

 (I) An organization representing health care providers.

(2) ‘Ambulatory health care facility’ means a facility that provides health services to noninstitutionalized and nonhomebound persons on an outpatient basis.

(3) ‘Ambulatory surgical facility’ means a facility not physically attached to a health care facility that provides surgical treatment to patients not requiring hospitalization.

(4) ‘Applicant’ means a person proposing a proposed health service;

(5) ‘Authority’ means the West Virginia Health Care Authority as provided in article twenty-nine-b of this chapter.

(6) ‘Bed capacity’ means the number of beds licensed to a health care facility or the number of adult and pediatric beds permanently staffed and maintained for immediate use by inpatients in patient rooms or wards in an unlicensed facility.

(7) ‘Behavioral health services’ means services provided for the care and treatment of persons with mental illness in an inpatient or outpatient setting,

 (8) ‘Birthing center’ means a short-stay ambulatory health care facility designed for low-risk births following normal uncomplicated pregnancy.

(9) ‘Campus’ means the adjacent grounds and buildings, or grounds and buildings not separated by more than a public right-of-way, of a health care facility.

 (10) ‘Capital expenditure’ means:

(A) An expenditure made by or on behalf of a health care facility, which:

(i) Under generally accepted accounting principles is not properly chargeable as an expense of operation and maintenance; or (ii) is made to obtain either by lease or comparable arrangement any facility or part thereof or any equipment for a facility or part; and

(B)(i) Exceeds the expenditure minimum; (ii) is a substantial change to the bed capacity of the facility with respect to which the expenditure is made; or (iii) is a substantial change to the services of such facility;

(C) The transfer of equipment or facilities for less than fair market value if the transfer of the equipment or facilities at fair market value would be subject to review; or

(D) A series of expenditures, if the sum total exceeds the expenditure minimum and if determined by the state agency to be a single capital expenditure subject to review. In making this determination, the state agency shall consider: Whether the expenditures are for components of a system which is required to accomplish a single purpose; or whether the expenditures are to be made within a two-year period within a single department such that they will constitute a significant modernization of the department.

(11) ‘Charges’ means the economic value established for accounting purposes of the goods and services a hospital provides for all classes of purchasers;

(12) ‘Community mental health and intellectual disability facility’ means a facility which provides comprehensive services and continuity of care as emergency, outpatient, partial hospitalization, inpatient or consultation and education for individuals with mental illness, intellectual disability.

(13) ‘Diagnostic imaging’ means the use of radiology, ultrasound, mammography, fluoroscopy, nuclear imaging, densitometry to create a graphic depiction of the body parts;

(14) ‘Drug and Alcohol Rehabilitation Services’ means a medically or psychotherapeutically supervised process for assisting individuals on an inpatient or outpatient basis through the processes of withdrawal from dependency on psychoactive substances.

(15) ‘Expenditure minimum’ means the cost of acquisition, improvement, expansion of any facility, equipment, or services including the cost of any studies, surveys, designs, plans, working drawings, specifications and other activities, including staff effort and consulting at and above $5 million.

(16) ‘Health care facility’ means a publicly or privately owned facility, agency or entity that offers or provides health services, whether a for-profit or nonprofit entity and whether or not licensed, or required to be licensed, in whole or in part.

(17) ‘Health care provider’ means a person authorized by law to provide professional health service in this state to an individual.

(18) ‘Health services’ means clinically related preventive, diagnostic, treatment or rehabilitative services.

(19) ‘Home health agency’ means an organization primarily engaged in providing professional nursing services either directly or through contract arrangements and at least one of the following services:

(A) Home health aide services;

(B) Physical therapy;

(C) Speech therapy;

(D) Occupational therapy;

(E) Nutritional services; or

(F) Medical social services to persons in their place of residence on a part-time or intermittent basis.

(20) ‘Hospice’ means a coordinated program of home and inpatient care provided directly or through an agreement under the direction of a licensed hospice program which provides palliative and supportive medical and other health services to terminally ill individuals and their families.

(21) ‘Hospital’ means a facility licensed pursuant to the provisions of article five-b of this chapter and any acute care facility operated by the state government, that primarily provides inpatient diagnostic, treatment or rehabilitative services to injured, disabled or sick persons under the supervision of physicians.

(22) ‘Intermediate care facility’ means an institution that provides health-related services to individuals with conditions that require services above the level of room and board, but do not require the degree of services provided in a hospital or skilled-nursing facility.

(23) ‘Like equipment’ means medical equipment in which functional and technological capabilities are similar to the equipment being replaced; and the replacement equipment is to be used for the same or similar diagnostic, therapeutic, or treatment purposes as currently in use; and it does not constitute a substantial change in health service or a proposed health service. 

(24) ‘Major medical equipment’ means a single unit of medical equipment or a single system of components with related functions which is used for the provision of medical and other health services and costs in excess of the expenditure minimum.  This term does not include medical equipment acquired by or on behalf of a clinical laboratory to provide clinical laboratory services if the clinical laboratory is independent of a physician’s office and a hospital and it has been determined under Title XVIII of the Social Security Act to meet the requirements of paragraphs ten and eleven, Section 1861(s) of such act, Title 42 U.S.C. §1395x. In determining whether medical equipment is major medical equipment, the cost of studies, surveys, designs, plans, working drawings, specifications and other activities essential to the acquisition of such equipment shall be included. If the equipment is acquired for less than fair market value, the term ‘cost’ includes the fair market value.

(25) ‘Medically underserved population’ means the population of an area designated by the authority as having a shortage of a specific health service.

(26) ‘Nonhealth-related project’ means a capital expenditure for the benefit of patients, visitors, staff or employees of a health care facility and not directly related to health services offered by the health care facility.

(27) ‘Offer’ means the health care facility holds itself out as capable of providing, or as having the means to provide, specified health services.

(28) ‘Person’ means an individual, trust, estate, partnership, limited liability corporation, committee, corporation, governing body, association and other organizations such as joint-stock companies and insurance companies, a state or a political subdivision or instrumentality thereof or any legal entity recognized by the state.

(29) ‘Personal care agency’ means entity that provides personal care services approved by the Bureau of Medical Services.

(30) ‘Personal care services’ means personal hygiene; dressing; feeding; nutrition; environmental support and health-related tasks provided by a home health agency.

(31) ‘Physician’ means an individual who is licensed by the Board of Medicine or the Board of Osteopathy to practice in West Virginia.

(32) ‘Proposed health service’ means any service as described in section eight of this article.

(33) ‘Purchaser’ means an individual who is directly or indirectly responsible for payment of patient care services rendered by a health care provider, but does not include third-party payers.

(34) ‘Rates’ means charges imposed by a health care facility for health services.

(35) ‘Records’ means accounts, books and other data related to health serivce costs at health care facilities subject to the provisions of this article which do not include privileged medical information, individual personal data, confidential information, the disclosure of which is prohibited by other provisions of this code and the laws enacted by the federal government, and information, the disclosure of which would be an invasion of privacy

(36) ‘Rehabilitation facility’ means an inpatient facility licensed in West Virginia operated for the primary purpose of assisting in the rehabilitation of disabled persons through an integrated program of medical and other services.

(37) ‘Related organization’ means an organization, whether publicly owned, nonprofit, tax-exempt or for profit, related to a health care facility through common membership, governing bodies, trustees, officers, stock ownership, family members, partners or limited partners, including, but not limited to, subsidiaries, foundations, related corporations and joint ventures. For the purposes of this subdivision ‘family members’ means parents, children, brothers and sisters whether by the whole or half blood, spouse, ancestors and lineal descendants.

(38) ‘Skilled nursing facility’ means an institution, or a distinct part of an institution, that primarily provides inpatient skilled nursing care and related services, or rehabilitation services, to injured, disabled or sick persons.

(39) ‘Standard'' means a health service guideline developed by the authority and instituted under section six.

(40) ‘State health plan’ means a document prepared by the authority that sets forth a strategy for future health service needs in the state.

(41) ‘Substantial change to the bed capacity’ of a health care facility means any change, associated with a capital expenditure, that increases or decreases the bed capacity or relocates beds from one physical facility or site to another, but does not include a change by which a health care facility reassigns existing beds as swing beds between acute care and long-term care categories or a decrease in bed capacity in response to federal rural health initiatives.

(43) ‘Substantial change to the health services’ means:

(A) The addition of a health service offered by or on behalf of the health care facility which was not offered by or on behalf of the facility within the twelve-month period before the month in which the service is first offered; or

(B) The termination of a health service offered by or on behalf of the facility but does not include the termination of ambulance service, wellness centers or programs, adult day care or respite care by acute care facilities.

(44) ‘Third-party payor’ means an individual, person, corporation or government entity responsible for payment for patient care services rendered by health care providers.

(45) ‘To develop’ means to undertake those activities which upon their completion will result in the offer of a proposed health service or the incurring of a financial obligation in relation to the offering of such a service.

§16-2D-3. Powers and duties of the authority.

(a) The authority shall:

(1) Administer the certificate of need program;

(2) Review the state health plan, the certificate of need standards, and the cost effectiveness of the certificate of need program and make any amendments and modifications to each that it may deem necessary, no later than September 1, 2017, and biennially thereafter.

(3) Shall adjust the expenditure minimum annually and publish to its website the updated amount on or before December 31, of each year. The expenditure minimum adjustment shall be based on the DRI inflation index published in the Global Insight DRI/WEFA Health Care Cost Review.

(4) Create a standing advisory committee to advise and assist in amending the state health plan, the certificate of need standards, and performing the state agencies’ responsibilities.

(b) The authority may:

(1) (A) Order a moratorium upon the offering or development of a health service when criteria and guidelines for evaluating the need for the health service have not yet been adopted or are obsolete or when it determines that the proliferation of the health service may cause an adverse impact on the cost of health services or the health status of the public.

(B) A moratorium shall be declared by a written order which shall detail the circumstances requiring the moratorium. Upon the adoption of criteria for evaluating the need for the health service affected by the moratorium, or one hundred eighty days from the declaration of a moratorium, whichever is less, the moratorium shall be declared to be over and applications for certificates of need are processed pursuant to section eight.

(2) Issue grants and loans to financially vulnerable health care facilities located in underserved areas that the authority and the Office of Community and Rural Health Services determine are collaborating with other providers in the service area to provide cost effective health services.

(3) Approve an emerging health service or technology for one year.

(4) Exempt from certificate of need or annual assessment requirements to financially vulnerable health care facilities located in underserved areas that the state agency and the Office of Community and Rural Health Services determine are collaborating with other providers in the service area to provide cost effective health services.

§16-2D-4. Rule-making Authority.

(a) The authority shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the following:

(1) Information a person shall provide when applying for a certificate of need;

(2) Information a person shall provide when applying for an exemption;

(3) Process for the issuance of grants and loans to financially vulnerable health care facilities located in underserved areas;

(4) The required information in a letter of intent;

(5) Process for an expedited certificate of need;

(6) Determine medically underserved population. The authority may consider unusual local conditions that are a barrier to accessibility or availability of health services. The authority may consider when making its determination of a medically underserved population designated by the federal Secretary of Health and Human Services under Section 330(b)(3) of the Public Health Service Act, as amended, Title 42 U.S.C. §254;

(7) Process to review an approved certificate of need; and

(8) Process to review approved proposed health services for which the expenditure maximum is exceeded or is expected to be exceeded.

(b) The authority shall propose emergency rules by December 31, 2016, to effectuate the changes to this article.

(c) All of the authority’s rules in effect and not in conflict with the provisions of this article, shall remain in effect until they are amended or rescinded.

§16-2D-5. Fee; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury which is continued and shall be known as the ‘Certificate of Need Program Fund’. Expenditures from this fund shall be for the purposes set forth in this article 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 fulfillment of the provisions of article two, chapter eleven-b of this code: Provided, That for the fiscal year ending June 30, 2017, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature.

(b) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.

§16-2D-6. Changes to certificate of need standards.

(a) When the authority proposes a change to the certificate of need standards, it shall file with the Secretary of State, for publication in the State Register, a notice of proposed action, including the text of all proposed changes, and a date, time and place for receipt of general public comment. To comply with the public comment requirement of this section, the authority may hold a public hearing or schedule a public comment period for the receipt of written statements or documents.

(b) When changing the certificate of need standards, the authority shall identify relevant criteria contained in section twelve and apply those relevant criteria to the proposed health service in a manner that promotes the public policy goals and legislative findings contained in section one.

(c) The authority shall form task forces to assist it in satisfying its review and reporting requirements. The task forces shall be comprised of representatives of consumers, business, providers, payers and state agencies.

(d) The authority shall coordinate the collection of information needed to allow the authority to develop recommended modifications to certificate of need standards.

(e) The authority may consult with or rely upon learned treatises in health planning, recommendations and practices of other health planning agencies and organizations, recommendations from consumers, recommendations from health care providers, recommendations from third-party payors, materials reflecting the standard of care, the authority’s own developed expertise in health planning, data accumulated by the authority or other local, state or federal agency or organization and any other source deemed relevant to the certificate of need standards proposed for change.

 (f) All proposed changes to the certificate of need standards, with a record of the public hearing or written statements and documents received pursuant to a public comment period, shall be presented to the Governor. Within thirty days of receiving the proposed amendments or modifications, the Governor shall either approve or disapprove all or part of the amendments and modifications and, for any portion of amendments or modifications not approved, shall specify the reason or reasons for disapproval. Any portions of the amendments or modifications not approved by the Governor may be revised and resubmitted.

(g) The certificate of need standards adopted pursuant to this section which are applicable to the provisions of this article are not subject to article three, chapter twenty-nine-a of this code. The authority shall follow the provisions set forth in this section for giving notice to the public of its actions, holding hearings or receiving comments on the certificate of need standards. The certificate of need standards in effect on July 1, 2016, and all prior versions promulgated and adopted in accordance with the provisions of this section are and have been in full force and effect from each of their respective dates of approval by the Governor.

(h) After approval from the Governor, the authority shall prepare a report detailing its review findings and submit the report to the Legislative Oversight Commission on Health and Human Resources Accountability with its annual report before January 1, each year.

§16-2D-7. Determination of reviewability.

A person may make a written request to the authority for it to determine whether a proposed health service is subject to the certificate of need or exemption process.  The authority may require that a person submit certain information in order to make this determination.  A person shall pay a $100 fee to the authority to obtain this determination.  A person is not required to obtain this determination before filing an application for a certificate of need or an exemption.

§16-2D-8. Proposed health services that require a certificate of need.

(a) Except as provided in sections nine, ten and eleven of this article, the following proposed health services may not be acquired, offered or developed within this state except upon approval of and receipt of a certificate of need as provided by this article:

(1) The construction, development, acquisition or other establishment of a health care facility;

(2) The partial or total closure of a health care facility with which a capital expenditure is associated;

(3) (A) An obligation for a capital expenditure incurred by or on behalf of a health care facility, in excess of the expenditure minimum; or

(B) An obligation for a capital expenditure incurred by a person to acquire a health care facility.

(4) An obligation for a capital expenditure is considered to be incurred by or on behalf of a health care facility:

(i) When a valid contract is entered into by or on behalf of the health care facility for the construction, acquisition, lease or financing of a capital asset;

(ii) When the health care facility takes formal action to commit its own funds for a construction project undertaken by the health care facility as its own contractor; or

(iii) In the case of donated property, on the date on which the gift is completed under state law.

(5) A substantial change to the bed capacity of a health care facility with which a capital expenditure is associated;

(6) The addition of ventilator services by a hospital;

(7) The elimination of health services previously offered on a regular basis by or on behalf of a health care facility which is associated with a capital expenditure;

(8) (A) A substantial change to the bed capacity or health services offered by or on behalf of a health care facility, whether or not the change is associated with a proposed capital expenditure;

(B) If the change is associated with a previous capital expenditure for which a certificate of need was issued; and

(C) If the change will occur within two years after the date the activity which was associated with the previously approved capital expenditure was undertaken.

(9) The acquisition of major medical equipment;

(10) A substantial change in an approved health service for which a certificate of need is in effect;

(11) An expansion of the service area for hospice or home health agency regardless of the time period in which the expansion is contemplated or made; and

(12) The addition of health services offered by or on behalf of a health care facility which were not offered on a regular basis by or on behalf of the health care facility within the twelve- month period prior to the time the services would be offered.

(b) The following health services are required to obtain a certificate of need regardless of the minimum expenditure:

(1) Constructing, developing, acquiring or establishing of a birthing center;

(2) Providing radiation therapy;

(3) Providing computed tomography;

(4) Providing positron emission tomography;

(5) Providing cardiac surgery;

(6) Providing fixed magnetic resonance imaging;

(7) Providing comprehensive medical rehabilitation;

(8) Establishing an ambulatory care center;

(9) Establishing an ambulatory surgical center;

(10) Providing diagnostic imaging;

(11) Providing cardiac catheterization services;

(12) Constructing, developing, acquiring or establishing of kidney disease treatment centers, including freestanding hemodialysis units;

(13) Providing megavoltage radiation therapy;

(14) Providing surgical services;

(15) Establishing operating rooms;

(16) Adding acute care beds;

(17) Providing intellectual developmental disabilities services;

(18) Providing organ and tissue transplants;

(19) Establishing an intermediate care facility for individuals with intellectual disabilities;

(20) Providing inpatient services;

(21) Providing hospice services;

(22) Establishing a home health agency; and

(23) Providing personal care services.

(c) A certificate of need previously approved under this article remains in effect unless revoked by the authority.

§16-2D-9. Health services that cannot be developed.

Notwithstanding section eight and eleven, these health services require a certificate of need but the authority may not issue a certificate of need to:

(1) A health care facility adding intermediate care or skilled nursing beds to its current licensed bed complement, except as provided in subdivision twenty-three, subsection (c), section eleven;

(2) A person developing, constructing or replacing a skilled nursing facility except in the case of facilities designed to replace existing beds in existing facilities that may soon be deemed unsafe or facilities utilizing existing licensed beds from existing facilities which are designed to meet the changing health care delivery system;

(3)   Beds in an intermediate care facility for individuals with an intellectual disability, except that prohibition does not apply to an intermediate care facility for individuals with intellectual disabilities beds approved under the Kanawha County circuit court order of August 3, 1989, civil action number MISC-81-585 issued in the case of E.H. v. Matin, 168 W.V. 248, 284 S.E. 2d 232 (1981); and

(4) An opioid treatment facility or program.

§16-2D-10. Exemptions from certificate of need.

Notwithstanding section eight, a person may provide the following health services without obtaining a certificate of need or applying to the authority for approval:

(1) The creation of a private office of one or more licensed health professionals to practice in this state pursuant to chapter thirty of this code.

(2) Dispensaries and first-aid stations located within business or industrial establishments maintained solely for the use of employees that does not contain inpatient or resident beds for patients or employees who generally remain in the facility for more than twenty-four hours;

(3) A place that provides remedial care or treatment of residents or patients conducted only for those who rely solely upon treatment by prayer or spiritual means in accordance with the creed or tenets of any recognized church or religious denomination.

§16-2D-11. Exemptions from certificate of need which require approval from the authority.

(a) To obtain an exemption under this section a person shall:

(1) File an exemption application;

(2) Pay the $1,000 application fee; and

(3) Provide a statement detailing which exemption applies and the circumstances justifying the approval of the exemption. 

(b) The authority has forty-five days to review the exemption request.  The authority may not hold an administrative hearing to review the application.  An affected party may not file an objection to the request for an exemption.  The applicant may request or agree with the authority to a fifteen day extension of the timeframe.  If the authority does not approve or deny the application within forty-five days, then the exemption is immediately approved.  If the authority denies the approval of the exemption, the applicant may appeal the authority’s decision to the Office of Judges or refile the application with the authority.  The Office of Judges shall follow the procedure provided in section sixteen to perform the review.

(c) Notwithstanding section eight and ten and except as provided in section nine, these health services are exempt from the certificate of need process:

(1) A computed tomography scanner that is installed in a private office practice where at minimum seventy five percent of the scans are for the patients of the practice and the fair market value of the installation and purchase is less than $250,000 for calendar year 2016.  The authority shall adjust the dollar amount specified in this subdivision annually and publish an update of the amount on or before December 31, of each year. The adjustment of the dollar amount shall be based on the DRI inflation index published in the Global Insight DRI/WEFA Health Care Cost Review. The authority may at any time request from the private office practice information concerning the number of patients who have been provided scans;

(2) (A) A birthing center established by nonprofit primary care center that has a community board and provides primary care services to people in their community without regard to ability to pay; or

(B) A birthing center established by a nonprofit hospital with less than one hundred licensed acute care beds.

(i) To qualify for this exemption, an applicant shall be located in an area that is underserved with respect to low-risk obstetrical services; and

(ii) Provide a proposed health service area.

(3) (A) A health care facility acquiring major medical equipment, adding health services or obligating a capital expenditure to be used solely for research;

(B) To qualify for this exemption, the health care facility shall show that the acquisition, offering or obligation will not:

(i) Affect the charges of the facility for the provision of medical or other patient care services other than the services which are included in the research;

(ii) Result in a substantial change to the bed capacity of the facility; or

(iii) Result in a substantial change to the health services of the facility.

 (C) For purposes of this subdivision, the term ‘solely for research’ includes patient care provided on an occasional and irregular basis and not as part of a research program;

(4) The obligation of a capital expenditure to acquire, either by purchase, lease or comparable arrangement, the real property, equipment or operations of a skilled nursing facility.

(5) Shared health services between two or more hospitals licensed in West Virginia providing health services made available through existing technology that can reasonably be mobile. This exemption does not include providing mobile cardiac catheterization;

(6) The acquisition, development or establishment of a certified interoperable electronic health record or electronic medical record system;

(7) The addition of forensic beds in a health care facility;

(8) A behavioral health service selected by the Department of Health and Human Resources in response to its request for application for services intended to return children currently placed in out-of-state facilities to the state or to prevent placement of children in out-of-state facilities is not subject to a certificate of need;

(9) The replacement of major medical equipment with like equipment;

(10) Renovations within a hospital. The renovations may not expand the health care facility’s current square footage, incur a substantial change to the health services, or a substantial change to the bed capacity;

(11) Renovations to a skilled nursing facility;

(12) The construction, development, acquisition or other establishment by a licensed West Virginia hospital of an ambulatory heath care facility in the county in which it is located and in a contiguous county within or outside this state;

(13) The donation of major medical equipment to replace like equipment for which a certificate of need has been issued and the replacement does not result in a substantial change to health services. This exemption does not include the donation of major medical equipment made to a health care facility by a related organization;

(14) A person providing specialized foster care personal care services to one individual and those services are delivered in the provider's home;

(15) A hospital converting the use of beds except a hospital may not convert a bed to a skilled nursing home bed and conversion of beds may not result in a substantial change to health services provided by the hospital;

(16) The construction, renovation, maintenance or operation of a state owned veterans skilled nursing facilities established pursuant to the provisions of article one-b of this chapter;

(17) A nonprofit community group designated by a county to develop and operate a nursing home bed facility with no more than thirty-six beds in any county in West Virginia that currently is without a skilled nursing facility;

(18) A critical access hospital, designated by the state as a critical access hospital, after meeting all federal eligibility criteria, previously licensed as a hospital and subsequently closed, if it reopens within ten years of its closure;

(19) The establishing of a heath care facility or offering of health services for children under one year of age suffering from Neonatal Abstinence Syndrome;

(20) The construction, development, acquisition or other establishment of community mental health and intellectual disability facility;

(21) Providing behavioral health services;

(22) The construction, development, acquisition or other establishment of kidney disease treatment centers, including freestanding hemodialysis units but only to a medically underserved population;

(23) The transfer or acquisition of intermediate care or skilled nursing beds from an existing health care facility to a nursing home providing intermediate care and skilled nursing services.

(24) The construction, development, acquisition or other establishment by a health care facility of a nonhealth related project;

(25)  A facility owned and operated by one or more health professionals authorized or organized pursuant to chapter thirty or ambulatory health care facility which offers laboratory or imaging services to patients regardless of the cost associated with the proposal.  To qualify for this exemption seventy five percent of the laboratory services are for the patients of the practice or ambulatory health care facility of the total laboratory services performed and seventy-five percent of imagining services are for the patients of the practice or ambulatory health care facility of the total imaging services performed;

(26) The construction, development, acquisition or other establishment of an alcohol or drug treatment facility and drug and alcohol treatment services unless the construction, development, acquisition or other establishment is an opioid treatment facility or programs as set forth in subdivision (4) of section nine of this article;

(27) Assisted living facilities and services; and

(28) The creation, construction, acquisition or expansion of a community-based nonprofit organization with a community board that provides or will provide primary care services to people without regard to ability to pay and receives approval from the Health Resources and Services Administration.

§16-2D-12. Minimum criteria for certificate of need reviews.

(a) A certificate of need may only be issued if the proposed health service is:

(1) Found to be needed; and

(2) Consistent with the state health plan, unless there are emergency circumstances that pose a threat to public health.

(b) The authority may not grant a certificate of need unless, after consideration of the appropriateness of the use of existing facilities within this state providing services similar to those being proposed, the authority makes each of the following findings in writing:

(1) That superior alternatives to the services in terms of cost, efficiency and appropriateness do not exist within this state and the development of alternatives is not practicable;

(2) That existing facilities providing services within this state similar to those proposed are being used in an appropriate and efficient manner;

(3) That in the case of new construction, alternatives to new construction, such as modernization or sharing arrangements, have been considered and have been implemented to the maximum extent practicable; and

(4) That patients will experience serious problems in obtaining care within this state of the type proposed in the absence of the proposed health service.

(c) In addition to the written findings required in this section, the authority shall make a written finding regarding the extent to which the proposed health service meets the needs of the medically underserved population, except in the following cases:

(1) Where the proposed health service is one described in subsection (d) of this section to eliminate or prevent certain imminent safety hazards or to comply with certain licensure or accreditation standards; or

(2) Where the proposed health service is a proposed capital expenditure not directly related to the provision of health services or to beds or to major medical equipment.

(d) Notwithstanding the review criteria in subsection (b), an application for a certificate of need shall be approved, if the authority finds that the facility or service with respect to which such capital expenditure is proposed to be made is needed and that the obligation of such capital expenditure is consistent with the state health plan, for a capital expenditure which is required:

(1) To eliminate or prevent imminent safety hazards as defined by federal, state or local fire building or life safety codes, statutes or rules.

(2) To comply with state licensure standards; or

(3) To comply with accreditation or certification standards. Compliance with which is required to receive reimbursement under Title XVIII of the Social Security Act or payments under the state plan for medical assistance approved under Title XIX of such act.

(e) In the case where an application is made by a health care facility to provide ventilator services which have not previously been provided for a nursing facility bed, the authority shall consider the application in terms of the need for the service and whether the cost exceeds the level of current Medicaid services.  A facility providing ventilator services, may not provide a higher level of services for a nursing facility bed without demonstrating that the change in level of service by provision of the additional ventilator services will result in no additional fiscal burden to the state.

(f) The authority shall consider the total fiscal liability to the state for a submitted application.

(g) Criteria for reviews may vary according to the purpose for which a particular review is being conducted or the types of health services being reviewed.

(h) An application for a certificate of need may not be made subject to any criterion not contained in this article or in the certificate of need standards.

§16-2D-13. Procedures for certificate of need reviews.

(a) An application for a certificate of need shall be submitted to the authority prior to the offering or development of a proposed health service.

(b) A person proposing a proposed health service shall:

(1) Submit a letter of intent ten days prior to submitting the certificate of need application. The information required within the letter of intent shall be detailed by the authority in legislative rule;

(2) Submit the appropriate application fee;

(A) Up to $1,500,000 a fee of $1,500.00;

(B) From $1,500,001 to $ 5,000,000 a fee of $5,000.00;

(C) From $5,000,001 to 25,000,000 a fee of $25,000.00; and

(D) From $25,000,001 and above a fee of $35,000.00.

(3) Submit to the Director of the Office of Insurance Consumer Advocacy a copy of the application;

(c) The authority shall determine if the submitted application is complete within ten days of receipt of the application. The authority shall provide written notification to the applicant of this determination. If the authority determines an application to be incomplete, the authority may request additional information from the applicant.

(d) Within five days of receipt of a letter of intent, the authority shall provide notification to the public through a newspaper of general circulation in the area where the health service is being proposed and by placing of copy of the letter of intent on its website.  The newspaper notice shall contain a statement that, further information regarding the application is on the authority’s web site.

(e) The authority may batch completed applications for review on the fifteenth day of the month or the last day of month in which the application is deemed complete.

(f) When the application is submitted, ten days after filing the letter of intent, the application shall be placed on the authority’s website.

(g) An affected party has thirty days starting from the date the application is batched to request the authority hold an administrative hearing.

 (1) A hearing order shall be approved by the authority within fifteen days from the last day an affected person may requests an administrative hearing on a certificate of need application.

(2) A hearing shall take place no later than three months from that date the hearing order was approved by the authority.

(3) The authority shall conduct the administrative hearing in accordance with administrative hearing requirements in article five, chapter twenty-nine-a of this code.

(4) In the administrative hearing an affected person has the right to be represented by counsel and to present oral or written arguments and evidence relevant to the matter which is the subject of the public hearing. An affected person may conduct reasonable questioning of persons who make factual allegations relevant to its certificate of need application.

(5) The authority shall maintain a verbatim record of the administrative hearing.

(6) After the commencement of the administrative hearing on the application and before a decision is made with respect to it, there may be no ex parte contacts between:

(A) The applicant for the certificate of need, any person acting on behalf of the applicant or holder of a certificate of need or any person opposed to the issuance of a certificate for the applicant; and

(B) Any person in the authority who exercises any responsibility respecting the application.

(7) The authority may not impose fees to hold the administrative hearing.

(8) The authority shall render a decision within forty-five days of the conclusion of the administrative hearing.

(h) If an administrative hearing is not conducted during the review of an application, the authority shall provide a file closing date five days after an affected party may no longer request an administrative hearing, after which date no other factual information or evidence may be considered in the determination of the application for the certificate of need. A detailed itemization of documents in the authority’s file on a proposed health service shall, on request, be made available by the authority at any time before the file closing date.

(i) The extent of additional information received by the authority from the applicant for a certificate of need after a review has begun on the applicant's proposed health service, with respect to the impact on the proposed health service and additional information which is received by the authority from the applicant, may be cause for the authority to determine the application to be a new proposal, subject to a new review cycle.

(j) The authority shall have five days to provide the written status update upon written request by the applicant or an affected person.  The status update shall include the findings made in the course of the review and any other appropriate information relating to the review.

(k) (1) The authority shall annually prepare and publish to its website, a status report of each ongoing and completed certificate of need application reviews.

(2) For a status report of an ongoing review, the authority shall include in its report all findings made during the course of the review and any other appropriate information relating to the review.

(3) For a status report of a completed review, the authority shall include in its report all the findings made during the course of the review and its detailed reasoning for its final decision.

(l) The authority shall provide for access by the public to all applications reviewed by the authority and to all other pertinent written materials essential to agency review.

§16-2D-14. Procedure for an uncontested application for a certificate of need.

The authority shall review an uncontested certificate of need application within sixty days from the date the application is batched.  An uncontested application is deemed approved if the review is not completed within sixty days from the date the application is batched, unless an extension, up to fifteen days is requested by the applicant.

§16-2D-15. Agency to render final decision; issue certificate of need; write findings; specify capital expenditure maximum.

(a) The authority shall render a final decision on an application for a certificate of need in the form of an approval, a denial or an approval with conditions.  The final decision with respect to a certificate of need shall be based solely on:

(1) The authority’s review conducted in accordance with procedures and criteria in this article and the certificate of need standards; and

(2) The record established in the administrative hearing held with respect to the certificate of need.

(b)  Approval with conditions does not give the authority the ability to mandate a health service not proposed by the health care facility.  Issuance of a certificate of need or exemption may not be made subject to any condition unless the condition directly relates to criteria in this article, or in the certificate of need standards.  Conditions may be imposed upon the operations of the health care facility for not longer than a three-year period.

(c) The authority shall send its decision along with written findings to the person proposing the proposed health service or exemption and shall make it available to others upon request.

(d) In the case of a final decision to approve or approve with conditions a proposal for a proposed health service, the authority shall issue a certificate of need to the person proposing the proposed health service.

(e) The authority shall specify in the certificate of need the maximum amount of capital expenditures which may be obligated.  The authority shall adopt legislative rules pursuant to section four to prescribe the method used to determine capital expenditure maximums and a process to review the implementation of an approved certificate of need for a proposed health service for which the capital expenditure maximum is exceeded or is expected to be exceeded.

§16-2D-16. Appeal of certificate of need a decision.

(a) The authority’s final decision shall upon request of an affected person be reviewed by the Office of Judges.  The request shall be received within thirty days after the date of the authority’s decision.  The appeal hearing shall commence within thirty days of receipt of the request.

(b) The office of judges shall conduct its proceedings in conformance with the West Virginia Rules of Civil Procedure for trial courts of record and the local rules for use in the civil courts of Kanawha County and shall review appeals in accordance with the provisions governing the judicial review of contested administrative cases in article five, chapter twenty-nine-a of this code.

(c) The decision of the office of judges shall be made in writing within forty-five days after the conclusion of the hearing.

(d) The written findings of the office of judges shall be sent to the person who requested the review, to the person proposing the proposed health service and to the authority, and shall be made available by the authority to others upon request.

(e) The decision of the office of judges shall be considered the final decision of the authority; however, the office of judges may remand the matter to the authority for further action or consideration.

(f) Upon the entry of a final decision by the office of judges, a person adversely affected by the review may within thirty days after the date of the decision of the review agency make an appeal in the circuit court of Kanawha County. The decision of the office of judges shall be reviewed by the circuit court in accordance with the provisions for the judicial review of administrative decisions contained in article five, chapter twenty-nine-a of this code. 

§16-2D-17. Nontransference, time period compliance and withdrawal of certificate of need.

(a) A certificate of need is nontransferable and is valid for a maximum of one year from the date of issuance. Upon the expiration of the certificate or during the certification period, the person proposing the proposed health service shall provide the authority information on the development of the project as the authority may request. The authority shall periodically monitor capital expenditures obligated under certificates, determine whether sufficient progress is being made in meeting the timetable specified in the approved application for the certificate and whether there has been compliance with the application and any conditions of certification. The certificate of need may be extended by the authority for additional periods of time as are reasonably necessary to expeditiously complete the project.

(b) A certificate of need may no longer be in effect, and may no longer be required, after written notice of substantial compliance with the approved application and any conditions of certification is issued to the applicant, after the activity is undertaken for which the certificate of need was issued, and after the authority is provided written notice of such undertaking.

(c) A person proposing a proposed health service may not be issued a license, if applicable, until the authority has issued a written notice of substantial compliance with the approved application and any conditions of certification, nor may a proposed health service be used until the person has received such notice. A proposed health service may not be found to be in substantial compliance with the approved application and any conditions of certification if there is a substantial change in the approved proposed health service for which change a certificate of need has not been issued.

(d) (1) A certificate of need may be withdrawn by the authority for:

(A) Noncompliance with any conditions of certification;

(B) A substantial change in an approved proposed health service for which change a certificate of need has not been issued;

(C) Material misrepresentation by an applicant upon which the authority relied in making its decision; or

(D) Other reasons that may be established by the authority in legislative rules adopted pursuant to section four of this article.

(2) Any decision of the authority to withdraw a certificate of need shall be based solely on:

(A) The provisions of this article and on legislative rules adopted in accordance with section four of this article; and

(B) The record established in administrative hearing held with respect to the authority’s proposal to withdraw the certificate.

(3) In the case of a proposed withdrawal of a certificate of need:

(A) After commencement of an administrative hearing on the authority’s proposal to withdraw a certificate of need and before a decision is made on withdrawal, there may be no ex parte contacts between:

(i) The holder of the certificate of need, any person acting on behalf of the holder, or any person in favor of the withdrawal; and

(ii) Any person in the authority who exercises responsibility respecting withdrawal of the certificate;

(B) The authority shall follow the review procedure established in section thirteen; and

(C) Appeals of withdrawals of certificates of need shall be made pursuant to section sixteen of this article.

(4) A proposed health service may not be acquired, offered, or developed within this state if a certificate of need authorizing that proposed health service has been withdrawn by the authority and the acquisition, offering, or developing of the proposed health service is subject to review under this article.

§16-2D-18. Denial or revocation of license for operating without certificate.

A person who violates the provisions of this article is subject to denial or revocation of a license, in whole or in part, to operate a proposed health service or health care facility. Upon a showing to the authority that a person is offering or developing a proposed health service without having first obtained a certificate of need or that a person is otherwise in violation of the provisions of this article, the authority shall provide a person with written notice which shall state the nature of the violation and the time and place at which the person shall appear to show good cause why its license should not be revoked or denied, at which time and place the person shall be afforded a reasonable opportunity to present testimony and other evidence in support of the person’s position. If, thereafter, the authority determines that the person's license to operate the health service or health care facility should be revoked or denied, the authority shall issue a written order to the appropriate licensing agency of the state, requiring that the person's license to operate the proposed health service or health care facility be revoked or denied.  The order is binding upon the licensing agency.

§16-2D-19. Injunctive relief; civil penalty.

(a) A person who acquires, offers or develops a proposed health service for which a certificate of need is required without first having a certificate of need therefore or violates any other provision of this article, or any legislative rule promulgated thereunder, the authority may maintain a civil action in the circuit court of the county where the violation has occurred, or where the person may be found, to enjoin, restrain or prevent the violation. An injunction bond is not required to be filed.

(b) The authority may assess a civil penalty for violation of this article.

(c) Upon the authority determining that there is probable cause to believe that a person is in violation of the provisions of this article, or any lawful rule promulgated thereunder, the authority shall provide the person with written notice which states the nature of the alleged violation and the time and place at which an administrative hearing shall take place.  The hearing shall be conducted in accordance with the administrative hearing provisions of article five, chapter twenty-nine-a of this code.

(d) If the authority determines that the person is in violation of the provisions of this article or legislative rule, the authority shall assess a civil penalty of not less than $500 nor more than $25,000.

(e) In determining the amount of the penalty, the authority shall consider the degree and extent of harm caused by the violation and the cost of rectifying the damage.

(f) A person assessed shall be notified of the assessment in writing, and the notice shall specify the reasons for the assessment. If the person assessed fails to pay the amount of the assessment to the authority within thirty days, the authority may institute a civil action in the circuit court of the county where the violation has occurred, or where the person may be found to recover the amount of the assessment. In the civil action, the scope of the court's review of the authority’s action, which shall include a review of the amount of the assessment, shall be as provided in article five, chapter twenty-nine-a of this code for the judicial review of contested administrative cases.

§16-2D-20. Statute of limitations.

The authority has a period of three years to correct violations of the provisions of this article. The three-year period begins from the date the authority knows or should have known of the violation. Each new act of a continuing violation shall provide a basis for restarting the calculation of the limitations period.

On motion of Delegate Cowles, the House of Delegates concurred in the Senate amendment with further amendment, on page ten, section three, line twenty-six, by inserting a new subdivision four, to read as follows:

“(4) exempt from certificate of need or annual assessment requirements to financially vulnerable health care facilities located in underserved areas that the state agency and the Office of Community and Rural Health Services determine are collaborating with other providers in the service area to provide cost effective health care services.”

            On page thirteen, section eight, line one, subsection (a), after the word “section”, by removing the word “seven” and inserting the word “twelve”.

On page fifteen, section eight, line sixty-five, by inserting a new subdivision twenty-three, to read as follows:

 (23) Providing in-home care services” and a semicolon.

            On page sixteen, section nine, subdivision one, line four, after the word, “complement”, by removing the semicolon and comma and the words “except as provided in subdivision twenty-three, subsection (c), section twelve” and the period.

On page sixteen, section eleven, by removing section eleven in its entirety and renumbering the remaining sections, accordingly;

            On page eighteen, section twelve, subsection (c), line fourteen, by removing the phrase, “Except as provided in section eight,” and inserting the phrase, “Notwithstanding section eight and nine” and a comma.

            On page twenty, section twelve, subdivision twenty-two, line eighty-four, by removing the word, ‘in’ and inserting “but only to”.

            On page twenty-one, section twelve, subdivision twenty-five line ninety-two, by removing subdivision twenty-five in its entirety and renumbering the renaming subdivisions thereafter, accordingly.

And,

On page twenty-one, section twelve, line one hundred four, by after the word, “services”, by removing the period and inserting a semicolon and a new subdivision (30) to read as follows:

“(30) The creation, construction, acquisition or expansion of a community-based nonprofit organization with a community board that provides or will provide primary care services to people without regard to ability to pay and receives approval from the Health Resources and Services Administration.”

The bill, as amended by the Senate and further amended by the House, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 572), and there were--yeas 91, nays 5, absent and not voting 4, with the nays and absent and not voting being as follows:

Nays: Fleischauer, Fluharty, Lynch, Storch and Weld.

Absent and Not Voting: Blackwell, Boggs, D. Evans and Miller.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4365) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4383, Making individuals responsible for the costs relating to the filing of excessive false complaints.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration.

            Delegate Cowles then moved that the House concur in the following Senate amendments:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 30. EXCESSIVE FILING OF FALSE COMPLAINTS.

§5-30-1. Filing of false claims; suspension of investigatory obligations; notice; exceptions; civil actions and remedies.

(a) For purposes of this section:

(1) ‘Complaint’ means a claim, allegation, report or action that prompts a required inspection or investigation by an agency or department of the state, excluding any complaint filed in the courts of this state.

(2) ‘False complaint’ means a complaint received by an agency or department of the state that the agency or department of the state determines, after investigation, that the person who filed the complaint did so knowing the material statements in the complaint were not true, filed a complaint in reckless disregard of the truth or falsity of the statements contained therein or filed a complaint which constitutes an abuse of process.

(b)  If any agency or department of the state that is required by statute, rule, regulation or policy to conduct inspections or investigate complaints by individuals to determine whether there is violation of a statute, rule or regulation determines, by clear and convincing evidence, that a person filed a false complaint, as defined in this section, may, in its sole discretion, suspend any obligations with respect to such required inspections or investigations as to that individual if the agency or department determines that the individual has made three or more false complaints in a two-month period: Provided, That any such suspension shall not last longer than six months and the agency or department may still undertake any inspections or investigations as a result of a complaint by the individual within this time period: Provided, however, That the agency or department must maintain written records of, at least, the name and telephone number of the person making the complaint to avail itself of the provisions of this section.

(c) Any individual whose complaint is determined to be a false complaint shall be advised of the same, in writing, within forty-eight hours of the conclusion of the inspection or investigation. A copy of this article shall be provided with the written notice. The agency shall also forward a copy of any such written communication to the Governor, the Speaker of the House and the President of the Senate.

(d) This article does not apply to any agency or department inspections or investigations that are required in the event of emergencies or the West Virginia State Police.

(e) In the event an agency or department subject to this article suspends its obligations to an individual, the agency or department is authorized to file a civil action against the individual and, upon proof by a preponderance of the evidence that any of the complaints giving rise to the suspension were false complaints, is entitled to recover its actual costs associated with the inspection or investigation and resolution of those false complaints, plus attorney’s fees and costs, as well as any injunctive or equitable relief.

(f) Nothing in this article is intended to affect or supersede any other available legal or administrative remedies of any agency or department.

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4383 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-30-1, relating to excessive filing of false complaints; defining terms; providing for the discretionary suspension of investigatory obligations by agencies or departments under certain circumstances; setting forth time frames for determination of excessive false complaints; requiring false complaints, as defined, be shown by clear and convincing evidence; limiting the time frame investigatory obligations may be suspended; requiring the agency or department of the state to keep written records related to false complaints; providing for exceptions in the agency’s or department’s sole discretion; providing for written notice of determinations that a complaint was a false complaint; providing that a copy of this article accompany notices; providing that written notice also be provided to the Governor, Speaker of the House and President of the Senate; providing for exceptions to this article for emergency investigations and the West Virginia State Police; providing for civil actions; establishing burden of proof and remedies for civil actions; and preserving other available remedies of an agency or department.”

            Delegate Cowles then asked and obtained unanimous consent to withdraw the motion to concur in the Senate amendments.

            Unanimous consent having been obtained, the bill was then placed at the foot of Senate messages.

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4537, Relating to the regulation of chronic pain clinics.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

“ARTICLE 5H. CHRONIC PAIN CLINIC LICENSING ACT.

§16-5H-2. Definitions.

(a) ‘Chronic pain’ means pain that has persisted after reasonable medical efforts have been made to relieve the pain or cure its cause and that has continued, either continuously or episodically, for longer than three continuous months. For purposes of this article, ‘chronic pain’@ does not include pain directly associated with a terminal condition. or with a progressive disease that, in the normal course of progression, may reasonably be expected to result in a terminal condition

(b) ‘Director’ means the Director of the Office of Health Facility Licensure and Certification within the Office of the Inspector General.

(c) ‘Owner’ means any person, partnership, association or corporation listed as the owner of a pain management clinic on the licensing forms required by this article.

(d) ‘Pain management clinic’ means all privately owned pain management clinics, facilities or offices not otherwise exempted from this article and which meets both of the following criteria:

(1) Where in any month more than fifty percent of patients of the prescribers or dispensers clinic are prescribed or dispensed opioids or other controlled substances specified in rules promulgated pursuant to this article for chronic pain resulting from nonmalignant conditions that are not terminal; and

(2) The facility meets any other identifying criteria established by the secretary by rule.

(e) ‘Physician’ means an individual authorized to practice medicine or surgery or osteopathic medicine or surgery in this state.

(f) ‘Prescriber’ means an individual who is authorized by law to prescribe drugs or drug therapy related devices in the course of the individual=s professional practice, including only a medical or osteopathic physician authorized to practice medicine or surgery; a physician assistant or osteopathic physician assistant who holds a certificate to prescribe drugs; or an advanced nurse practitioner who holds a certificate to prescribe.

(g) ‘Secretary’ means the Secretary of the West Virginia Department of Health and Human Resources. The secretary may define in rules any term or phrase used in this article which is not expressly defined.

§16-5H-5. Exemptions.

(a) The following facilities are not pain management clinics subject to the requirements of this article:

(1) A facility that is affiliated with an accredited medical school at which training is provided for medical or osteopathic students, residents or fellows, podiatrists, dentists, nurses, physician assistants, veterinarians or any affiliated facility to the extent that it participates in the provision of the instruction;

(2) (1) A facility that does not prescribe or dispense controlled substances for the treatment of chronic pain;

(3) (2) A hospital licensed in this state, a facility located on the campus of a licensed hospital that is owned, operated or controlled by that licensed hospital, and an ambulatory health care facility as defined by section two, article two-d, chapter sixteen of this code that is owned, operated or controlled by a licensed hospital;

(4) (3) A physician practice owned or controlled, in whole or in part, by a licensed hospital or by an entity that owns or controls, in whole or in part, one or more licensed hospitals;

(5) (4) A hospice program licensed in this state;

(6) (5) A nursing home licensed in this state;

(7) (6) An ambulatory surgical facility as defined by section two, article two-d, chapter sixteen of this code; and

(8) (7) A facility conducting clinical research that may use controlled substances in studies approved by a hospital-based institutional review board or an institutional review board accredited by the association for the accreditation of human research protection programs.

(b) Any facility that is not included in this section may petition to the secretary for an exemption from the requirements of this article. All such petitions are subject to the administrative procedures requirements of chapter twenty-nine-a of this code.

§16-5H-7. Suspension; revocation.

(a) The secretary may suspend or revoke a license issued pursuant to this article if the provisions of this article or of the rules promulgated pursuant to this article are violated. The secretary may revoke a clinic=s license and prohibit all physicians associated with that pain management clinic from practicing at the clinic location based upon an annual or periodic inspection and evaluation.

(b) Before any such license is suspended or revoked, however, written notice shall be given to the licensee, stating the grounds of the complaint and shall provide notice of the right to request a hearing. , and the date, time and place set for the hearing on the complaint, which date shall not be less than thirty days from the time notice is given The notice shall be sent by certified mail to the licensee at the address where the pain management clinic concerned is located. The licensee shall be entitled to be represented by legal counsel at the hearing.

(c) If a license is revoked as herein provided pursuant to this article, a new application for a license shall may be considered by the secretary if, when and after the conditions upon which revocation was based have been corrected, and evidence of this fact has been furnished to the secretary. A new license shall may then be granted after proper inspection has been made and all provisions of this article and rules promulgated pursuant to this article have been satisfied.

(d) All of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern any hearing authorized and required by the provisions of this article and the administrative procedure in connection therewith.

(e) Any applicant or licensee who is dissatisfied with the decision of the secretary as a result of the hearing provided in this section may, within thirty days after receiving notice of the decision, appeal the decision to the circuit court of Kanawha County, in term or in vacation, for judicial review of the decision.

(f) The court may affirm, modify or reverse the decision of the secretary and either the applicant or licensee or the secretary may appeal from the court's decision to the Supreme Court of Appeals.

(g) If the license of a pain management clinic is revoked or suspended, the designated physician of the clinic, any other owner of the clinic or the owner or lessor of the clinic property shall cease to operate the facility as a pain management clinic as of the effective date of the suspension or revocation. The owner or lessor of the clinic property is responsible for removing all signs and symbols identifying the premises as a pain management clinic within thirty days.

(h) Upon the effective date of the suspension or revocation, the designated physician of the pain management clinic shall advise the secretary and the Board of Pharmacy of the disposition of all drugs located on the premises. The disposition is subject to the supervision and approval of the secretary. Drugs that are purchased or held by a pain management clinic that is not licensed may be deemed adulterated.

(i) If the license of a pain management clinic is suspended or revoked, any person named in the licensing documents of the clinic, including persons owning or operating the pain management clinic, may not, as an individual or as part of a group, apply to operate another pain management clinic for five years after the date of suspension or revocation.

(j) The period of suspension for the license of a pain management clinic shall be prescribed by the secretary, but may not exceed one year.”

And.

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4537 - “A Bill to amend and reenact §16-5H-2, §16-5H-5 and §16-5H-7 of the Code of West Virginia, 1931, as amended, all relating to the regulation of chronic pain clinics; updating definitions; deleting an exemption for affiliation with a medical school; and clarifying due process concerns regarding the process for hearing notices upon appeal.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 573), and there were--yeas 95, nays 4, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Ihle, McGeehan, Shaffer and Sobonya.

Absent and Not Voting: Blackwell.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4537) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4554, Allowing an increase of gross weight limitations on certain roads in Greenbrier County.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:

WEIGHT LIMITATIONS ON CERTAIN ROADS IN GREENBRIER COUNTY.

§1. Authority of the Commissioner of the Division of Highways to increase weight limitations on certain highways within Greenbrier County.

(a) If the Commissioner of the Division of Highways determines that the design, construction and safety of the highways in Greenbrier County described in subsection (c) of this section are such that gross weight limits and dimensional restrictions may be increased without damage and without unreasonable danger to the public, the commissioner may set new limitations applicable to the highways or portions thereof.

(b) The commissioner may not establish any weight limitation or dimensional restriction in excess or in conflict with any weight limitation or dimensional restriction prescribed by or pursuant to acts of Congress for any road or highway that is part of the National System of Interstate and Defense Highways.

(c) Notwithstanding any provisions of the Code of West Virginia, 1931, as amended, to the contrary, if the commissioner determines that those portions of Greenbrier County Route 10/1 north and southbound from milepost 6.10 to milepost 11.60 are designed and constructed to allow the gross weight and dimensional limitation to be increased without damage, including damage to the road and related infrastructure, and without unreasonable danger to the public, the commissioner may increase the gross weight and vehicle dimensional limitations on the highway section described above: Provided, That any person, organization or corporation or other entity proposing to exceed the gross weight and vehicle dimension limitations of current state law while using these routes must first obtain a permit from the commissioner before proceeding: Provided, however, That the increased weight limitations and dimensional restrictions are not barred by an act of the United States Congress.

(d) The commissioner shall create a permit that must be obtained by any person or entity wishing to use the provisions of subsection (c) of this section.  The commissioner is authorized to make the permit subject to any restrictions and requirements the commissioner deems necessary to protect the public, road and other infrastructure.

(e) The commissioner shall adopt procedures for the issuance of the permit and those procedures shall be consistent with the existing procedures for the issuance of similar permits. The permit issued shall be valid for one year from the date of issuance.

(f) The information required in the application for the permit includes:

(1) Vehicle and trailer information;

(2) Number of axles;

(3) Axle spacings;

(4) Overall dimensions;

(5) Load information;

(6) Load weight and gross weight; and

(7) Effective dates.

(g) Upon submission of this information the applicant shall be provided an appropriate permit based on the information provided in subsection (f) of this section.

(h) The commissioner shall charge a permit fee of $500 for each permitted vehicle.

(i) The commissioner may immediately reduce the weight limit and dimensional restrictions if new information indicates that such reduction is needed to protect the public or road or other infrastructure.

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4554  - “A Bill to authorize the Commissioner of the Division of Highways to allow an increase of gross weight limitations and dimensional restrictions on certain roads in Greenbrier County; specifying roadway location; and providing for permit application, restrictions, requirements, fees and limitations.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 574), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Caputo and Marcum.

Absent and Not Voting: Blackwell.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4554) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            H. B. 4558, Relating to victim notification and designation of additional individuals to receive notice of an offender's release.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.

§61-11A-8. Notification to victim of offender's release, placement, or escape from custody.

(a) At the time a criminal prosecution is commenced by the filing of a complaint, if the complaint charges a person with committing an offense described in subsection (e) of this section, then in such case the prosecuting attorney is required to provide notice, in writing or by telephone, to the victim or a family member that he or she may request that they be notified prior to or at the time of any release of the accused from custody pending judicial proceedings.

(b) If a person is convicted of an offense described in subsection (e) of this section, the prosecuting attorney is required to provide notice, in writing or by telephone, to the victim or a family member that he or she may request that they be notified prior to or at the time of sentencing if the convicted person will be placed on work release, home confinement or probation.

(c) If a person is convicted of an offense described in subsection (e) of this section and is imprisoned in a state correctional facility or confined in a county or regional jail, the commissioner of corrections, the regional jail supervisor or the sheriff, as the case may be, is required to provide notice, in writing or by telephone, to the victim or a family member that he or she may request that they be notified prior to or at the time of:

(1) Releasing the convicted person from imprisonment in any correctional facility;

(2) Releasing the convicted person from confinement in any county or regional jail;

(3) Placing the convicted person in a halfway house or other nonsecure facility to complete his or her sentence; or

(4) Any escape by the convicted person from a state correctional facility or a county or regional jail.

(d) The notice shall include instructions for the victim or the victim=s family member on how to request the notification.

(e) Offenses which are subject to the provisions of this section are as follows:

(1) Murder;

(2) Aggravated robbery;

(3) Sexual assault in the first degree;

(4) Kidnapping;

(5) Arson;

(6) Any sexual offense against a minor; or

(7) Any violent crime against a person.

(f) The Commissioner of Corrections, a regional jail supervisor, a sheriff or a prosecuting attorney who receives a written request for notification shall provide notice, in writing or by telephone, to the last known address or addresses or telephone number or numbers provided by the victim or a member of the victim=s family, or in the case of a minor child, to the custodial parent, guardian or custodian of the child, in accordance with the provisions of this section. In case of escape, notification shall be by telephone, if possible.

(g) If one or more family members of a victim request notification and if the victim is an adult and is alive and competent, notification shall be sent to the victim, if possible, notwithstanding that the victim he or she did not request the notification. If the victim is deceased or an adult who is alive but not competent, the notice shall be sent to the first family member requesting notice in conformity with this section.

(h) If notification by telephone to a victim is attempted, notification is not complete unless it is given directly to the person requesting notification and after that person=s identity has been verified. An attempted notification made to a voice mail or another recording device or to another member of the household is insufficient.

(i) For the purposes of this section, the following words or phrases defined in this subsection have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context.

(1) ‘Filing of a complaint’@ means the filing of a complaint in accordance with the requirements of rules West Virginia Rules of Criminal Procedure promulgated by the Supreme Court of Appeals or the provisions of this code.

(2) ‘Victim’@ means a victim of a crime listed in subsection (e) of this section who is alive and competent.

(3) ‘Victim=s family member’@ means a member of the family of a victim of a crime listed in subsection (e) of this section who is not alive and competent.

(j) In addition to those persons required to be notified under this section, a victim may designate an additional adult individual to receive notice provided for by this section: Provided, That the obligation to notify the additional individuals under this section only arises if the additional adult individual's contact information is provided in writing by the victim to the appropriate notifying entity.

And,

By amending the title of the bill to read as follows:

H. B. 4558 - “A Bill to amend and reenact §61-11A-8 of the Code of West Virginia, as amended, relating to victim notification and designation of additional individuals to receive notice of an offender's release, sentencing, placement or escape; providing an option to victims to designate an additional adult individual to receive notification; and requiring the victim to provide the additional adult individual's contact information in writing to the appropriate notifying entity.”

The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 575), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent and Not Voting: Blackwell and Miller.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4558) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4561, Creating a special hiring process for West Virginia Division of Highways employees.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, section four-a, line three, by striking out the word “hourly”.

On page one, section four-a, line thirteen, by striking out the word “hourly”.

On page two, section four-a, line sixteen, by striking out the word “January” and inserting in lieu thereof the word “July”.

On page three, section four-a, line forty-five, by striking out the word “January” and inserting in lieu thereof the word “July”.

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4561 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §29-6-4a, relating to requiring the Commissioner of the Division of Highways and the Director of the Division of Personnel to collaborate to develop a special hiring procedure for personnel positions in the Division of Highways; establishing requirements for the special hiring procedure; exempting the Division of Highways and the Division of Personnel from classified service hiring procedures upon implementation of the special hiring process; exceptions; establishing reporting requirements; and requiring emergency and legislative rulemaking.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 576), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: P. Smith.

Absent and Not Voting: Blackwell and Miller.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4561) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:

Com. Sub. for H. C. R. 3, North River Mills Historic Trace.

            On motion of Delegate Cowles, the resolution was taken up for immediate consideration and the House concurred in the following Senate amendments:

            On page one, in the first Whereas clause, line seven, by striking out the word “raik” and inserting in lieu thereof the word “Craik”.

On page five, in the twentieth Whereas clause, line nine, by striking out the word “ninety-six” and inserting in lieu thereof the words “the Siege of Ninety Six”.

On page six, in the twenty-fifth Whereas clause, line two, by striking out the word “where” and inserting in lieu thereof the word “when”.

On page six, in the Resolved clause, line nineteen, after the word “ending” by inserting the word “at”.

And,

By striking out the title and substituting therefor a new title, to read as follows:

Com. Sub. for H. C. R. 3 - “Requesting the Division of Highways to name the section of County Route 45/20, known as Coldstream Road, beginning at a point, latitude 39.336997, longitude -78.494499, and ending at a point, latitude 39.349509, longitude -78.511901, along the North River, Hiett Run and Maple Run, in Hampshire County, the “North River Mills Historic Trace.”

The resolution (Com. Sub. for H. C. R. 3) as amended by the Senate was then adopted.

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

A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:

Com. Sub. for H. C. R. 5, U.S. Army PV2 Eskridge A. Waggoner Memorial Bridge.

On motion of Delegate Cowles, the resolution was taken up for immediate consideration and the House concurred in the following Senate amendments:

On page two, in the first Further Resolved clause, by striking out “PV2” and inserting in lieu thereof “PVT”.

The resolution, as amended by the Senate, was then adopted.

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

A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:

Com. Sub. for H. C. R. 17, SGT Larry Joseph Whitt Bridge.

            On motion of Delegate Cowles, the resolution was taken up for immediate consideration and the House concurred in the following Senate amendments:

On page two, in the Resolved clause, before “SGT”, by inserting the words “U. S. Army”.

On page two, in the first Further Resolved clause, before “SGT” by inserting the words “U. S. Army”.

And,

By amending the title of the resolution to read as follows:

Com. Sub. for H. C. R. 17 - “Requesting the Division of Highways name Greenville Road Bridge, located in Logan County near the town of Man which traverses Rock House Creek, the ‘U. S. Army SGT Larry Joseph Whitt Memorial Bridge’.”

The resolution, as amended by the Senate, was then adopted.

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

A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:

Com. Sub. for H. C. R. 56, U.S. Army CPL Robert Eugene Jackson Memorial Bridge.

            On motion of Delegate Cowles, the resolution was taken up for immediate consideration and the House concurred in the following Senate amendment:

On page one, in the third Whereas clause, line ten, by striking out the word “Booth’s” and inserting in lieu thereof the word “Booths”.

The resolution, as amended by the Senate, was then adopted.

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

A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:

Com. Sub. for H. C. R. 57, U.S. Army PVT Leander Reel Memorial Bridge.

            On motion of Delegate Cowles, the resolution was taken up for immediate consideration and the House concurred in the following Senate amendments:

On page one, in the second Whereas clause, line six, after the words “served in”, by inserting the word “the”;

And,

On page two, in the fifth Whereas clause, line ten, by striking out the word “infantry” and inserting in lieu thereof the word “Infantry”.

The resolution, as amended by the Senate, was then adopted.

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

A message from the Senate, by

            The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:

Com. Sub. for H. C. R. 72, Max G. Parkinson Memorial Bridge.

            On motion of Delegate Cowles, the resolution was taken up for immediate consideration and the House concurred in the following Senate amendments:

On page one, in the fourth Whereas clause, line fourteen, by striking out the word “Realtor” and inserting in lieu thereof the word “realtor”;

And,

By amending the title of the resolution to read as follows:

Com. Sub. for H. C. R. 72 - “Requesting the Division of Highways to name Bridge Number 02-13-0.81 (02A172) (39.46979, -77.97913), locally known as New North Tennessee Avenue Bridge, carrying County Route 13 over Tuscarora Creek in Berkeley County, the ‘Max G. Parkinson Memorial Bridge’.”

The resolution, as amended by the Senate, was then adopted.

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

At the request of Delegate Cowles, and by unanimous consent, the House of Delegates returned to further consideration of Com. Sub. for H. B. 4383, Making individuals responsible for the costs relating to the filing of excessive false complaints.

On motion of Delegate Cowles the House concurred in the Senate amendments, as previously reported, with further amendment as follows:

On page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

“That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5-30-1, to read as follows:

 ARTICLE 30.  EXCESSIVE FILING OF FALSE COMPLAINTS.

§5-30-1.  Filing of false claims; suspension of investigatory obligations; notice; exceptions; civil actions and remedies.

(a)  For purposes of this section:

(1)  ‘Complaint’ means a claim, allegation, report or action that prompts a required inspection or investigation by an agency or department of the state, excluding any complaint filed in the courts of this state.

(2) ‘False complaint’ means a complaint received by an agency or department of the state by an individual that, after it has been investigated and concluded, is found to be frivolous, without merit, or made with reckless disregard of the truth or falsity of the subject of the complaint.

(b)    Any agency or department of the state that is required by statute, rule, regulation or policy to conduct inspections or investigate complaints by individuals to determine whether there is violation of a statute, rule or regulation may, in its sole discretion, suspend any obligations with respect to such required inspections or investigations as to that individual if the agency or department determines that the individual has made three or more false complaints in a two-month period:  Provided, That any such suspension shall not last longer than six months and the agency or department may still undertake any inspections or investigations as a result of a complaint by the individual within this time period:  Provided, however, That the agency or department must maintain written records of, at least, the name and telephone number of the person making the complaint to avail itself of the provisions of this section.

(c)  Any individual whose complaint is determined to be a false complaint shall be advised of the same, in writing, within forty-eight hours of the conclusion of the inspection or investigation.  A copy of this article shall be provided with the written notice. 

(d)  This article does not apply to any agency or department inspections or investigations that are required in the event of emergencies or the West Virginia State Police.

(e)  In the event an agency or department subject to this article suspends its obligations to an individual, the agency or department is authorized to file a civil action against the individual and, upon proof by a preponderance of the evidence that any of the complaints giving rise to the suspension were false complaints, is entitled to recover its actual costs associated with the inspection or investigation and resolution of those false complaints, plus attorney’s fees and costs, as well as any injunctive or equitable relief.

(f) Nothing in this article is intended to affect or supersede any other available legal or administrative remedies of any agency or department.”

            The bill, as amended by the Senate, and further amended by the House, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 577), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent and Not Voting: Cadle and Miller.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4383) passed.

On motion of Delegate Cowles, the title of the bill was amended to read as follows:

Com. Sub. for H. B. 4383 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-30-1, relating to excessive filing of false complaints; defining terms; providing for the discretionary suspension of investigatory obligations by agencies or departments under certain circumstances; setting forth time frames for determination of excessive false complaints; limiting the time frame investigatory obligations may be suspended; requiring the agency or department of the state to keep written records related to false complaints; providing for exceptions in the agency’s or department’s sole discretion; providing for written notice of determinations that a complaint was a false complaint; providing that a copy of this article accompany notices; providing for exceptions to this article for emergency investigations and the West Virginia State Police; providing for civil actions; establishing burden of proof and remedies for civil actions; and preserving other available remedies of an agency or department.”

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to

Com. Sub. for H. B. 4174, Exempting activity at indoor shooting ranges from the prohibition of shooting or discharging a firearm within five hundred feet of any church or dwelling house.

            The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:

            Senators Ashley, Cline and Beach.

            On motion of Delegate Cowles, the House of Delegates agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.

            Whereupon,

            The Speaker appointed as conferees on the part of the House of Delegates the following:

            Delegates Azinger, Foster and Moore..

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

A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to

Com. Sub. for H. B. 4013, Requiring a person desiring to vote to present documentation identifying the voter.

            The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:

            Senators Gaunch, Ferns and Palumbo.

            On motion of Delegate Cowles, the House of Delegates agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.

            Whereupon,

            The Speaker appointed as conferees on the part of the House of Delegates the following:

            Delegates Lane, McCuskey and Rowe.

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

At 2:47 p.m., on motion of Delegate Cowles, the House of Delegates recessed until 4:00 p.m.

*******

            A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with further amendment, and the passage, as amended, of

            Com. Sub. for S. B. 157, Authorizing Department of Revenue to promulgate legislative rules.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the following Senate amendments were reported by the Clerk:

            On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 7. Authorization for Department of Revenue to promulgate LEGISLATIVE RULES, and repeal of unauthorized and obsolete rules of the department of revenue.

§64-7-1. Alcohol Beverage Control Commission.

(a) The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section twenty-two, article sixteen, chapter eleven of this code, modified by the Alcohol Beverage Control Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on November 4, 2015, relating to the Alcohol Beverage Control Commission (nonintoxicating beer licensing and operations procedures, 176 CSR 1), is authorized.

(b) The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section ten, article seven, chapter sixty of this code, relating to the Alcohol Beverage Control Commission (private club licensing, 175 CSR 2), is authorized.

(c) The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section sixteen, article two, chapter sixty of this code, modified by the Alcohol Beverage Control Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on November 4, 2015, relating to the Alcohol Beverage Control Commission (distilleries and mini-distilleries, 175 CSR 10), is authorized.

§64-7-2. Racing Commission.

(a) The legislative rule filed in the State Register on July 22, 2015, authorized under the authority of section six, article twenty-three, chapter nineteen of this code, relating to the Racing Commission (thoroughbred racing, 178 CSR 1), is authorized.

(b) The legislative rule filed in the State Register on July 22, 2015, authorized under the authority of section six, article twenty-three, chapter nineteen of this code, relating to the Racing Commission (pari-mutuel wagering, 178 CSR 5), is authorized.

§64-7-3.  Department of Revenue.

(a) The legislative rule filed in the State Register on July 29, 2015, authorized under the authority of section five-t, article ten, chapter eleven of this code, modified by the Department of Revenue to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on September 18, 2015, relating to the Department of Revenue (payment of taxes by electronic funds transfer, 110 CSR 10F), is authorized.

(b) The legislative rule filed in the State Register on July 29, 2015, authorized under the authority of section five, article ten, chapter eleven of this code, relating to the Department  Revenue (exchange of information agreement between the Commissioner of the Tax Division of the Department of Revenue and the Secretary of the Department of Commerce, the Secretary of the Department of Environmental Protection, the Director of the Division of Forestry of the Department of Commerce and the Commissioners of the Public Service Commission, 110 CSR 50H), is authorized, with the amendment set forth below:

On page one, subsection 3.1, line six, following the word “Commerce”, by inserting the words “Secretary of State”.

(c) The legislative rule effective on June 12, 1987, authorized under the authority of section one, article one-a, chapter eleven of this code, relating to the Tax Division (listing of interests in natural resources for purposes of first statewide appraisal, 110 CSR 1B), is repealed.

(d) The legislative rule effective on May 13, 1987, authorized under the authority of section twenty-nine-a, article one-a, chapter eleven of this code, relating to the Tax Division (guidelines for assessors to assure fair and uniform nonutility personal property values,110 CSR 1C), is repealed.

(e) The legislative rule effective on June 12, 1987, authorized under the authority of section one, article one-a, chapter eleven of this code, relating to the Tax Division (review by circuit court on certiorari, 110 CSR 1D), is repealed.

(f) The legislative rule effective on June 12, 1987, authorized under the authority of section one, article one-a, chapter eleven of this code, relating to the Tax Division (review of appraisals by the county commission sitting as an administrative appraisal review board, 110 CSR 1E), is repealed.

(g) The legislative rule effective on May 13, 1987, authorized under the authority of section one, article one-a, chapter eleven of this code, relating to the Tax Division (additional review and implementation of property appraisals, 110 CSR 1F), is repealed.

(h) The legislative rule effective on May 13, 1987, authorized under the authority of section one, article one-a, chapter eleven of this code, relating to the Tax Division (review by circuit court on certiorari, 110 CSR 1G), is repealed.        

(i) The Legislature directs the Department of Revenue  to promulgate the legislative rule filed in the State Register on May 5, 1999, authorized under the authority of section five-a, article one-c, chapter eleven, of this code, relating to the Department Revenue (Valuation of Timberland and Managed Timberland, 110 CSR 1H), with the amendments set forth below:

§110-1H-1. General.

1.1       Scope.  -- This legislative rule establishes the procedure for the classification and valuation of timberland and managed timberland.

1.2.      Authority.  -- W. Va. Code §§11-1C-5(a)(2)(B), 11-1C-11(c)(1) and 11-1C-11b(c).

1.3.      Filing Date. --

1.4.      Effective Date. -- July 1, 2016.

1.5. Repeal of former rule.  -- This legislative rule repeals and replaces WV 110 C.S.R.1H “Valuation of Timberland and Managed Timberland” filed April 16, 1999 and effective May 1, 1999.

§ 110-1H-2. Introduction.

            2.1. The appraised value of managed timberland shall be determined by the State Tax Commissioner on the basis of the potential of the land to produce future income according to its use and productive potential.  Potential future net income is discounted to its present value utilizing a discounted cash flow; this is the appraised value.  The ability of a stand of timber to produce wood products for sale or use depends primarily on the quality of the soil and certain topographic and climatic features which can be expressed as a site index.  Site index is the principal criterion influencing the appraised value of managed timberland.  These factors shall be reviewed annually by the Tax Commissioner for necessary updating of the method described in order to properly reflect future changes in the values of managed timberland.

            2.2. The appraised value of timberland (woodland/wasteland) shall be determined on the basis of market comparable derived through analysis of sales prices of comparable timberland (forested) properties.  Timberland appraisal value shall always be more than the appraised value of equivalent grades of properties being classified as managed timberland in the county. The appraised value of timberland shall be determined by the county assessor based upon the Timberland Classification Schedule found in Appendix 1 of this rule.

            2.3. The county assessor shall collect and analyze market data, including sales of timberland, segregated into the classes contained in the previously referenced classification schedule.  Based upon this market analysis, the county assessor shall select the value for each class of timberland that best reflects the market value of the property if exposed to the market for sale as timberland.  The values by class thus selected shall be entered, by the assessor, into the respective county land pricing tables and shall be used by the assessor to estimate the appraised value of timberland for property tax purposes.

§ 110-1H-3. Definitions.

            As used in this rule and unless the context clearly requires a different meaning, the following terms shall have the meaning ascribed in this section.

            3.1. “Capitalization rate” means the rate used to convert an estimate of income into an estimate of present value.  Details of the procedure for determining the capitalization rate are found in Section 12 of this rule.

            3.2. “Certified managed timberland plan” means the managed timberland plan that is certified by the landowner when the landowner certifies that the property is maintained as managed timberland.

3.3. “Cost” means a component of management costs and property taxes. 

3.4. “dbh” means the diameter of trees at breast height, which is 4.5' above ground level.

3.5. “Division of Forestry” means the West Virginia Bureau of Commerce, Division of Forestry.

3.6.  “Farm wood lot” means that portion of a farm in timber but may not include land used primarily for the growing of timber for commercial purposes except that Christmas trees, or nursery stock and woodland products, such as nuts or fruits harvested for human consumption, shall be considered farm products and not timber products.

3.7. “Harvest income per acre” means the expected after tax revenue and accrued interest for each harvesting interval.  Interest is assumed to accrue at the rate of return from the period of harvest to the end of the 80 year rotation cycle.

3.8   “Integrated Moisture Index” means soil moisture data derived from a methodology described in “A GIS-Derived Integrated Moisture Index”; by Louis R. Iverson and Anantha M. Prasad; USDA Forest Service, Northeastern Research Station, Delaware, Ohio; 2003, as the same is refined and applied, from time to time, by subsequent professional studies conducted, or contracted for, by the Division of Forestry to determine current measures of the same.         

3.9 “MBF” means thousand board feet.

3.10. “Management cost” means the cost determined tri-annually by the Tax Commissioner to be the average annual cost of maintaining and protecting a producing forest.  Maintenance costs may include costs of inventory, boundary survey, security, maps, and any other items as can be shown to have been necessary.   Protection may include costs of protection against forest fires; harmful insect and tree diseases; costs of repair and replacement resulting from damages reported to appropriate police agencies, including all-terrain vehicles (ATV's) and other vehicular damages, and costs of replacing and replanting forest production and/or plantations destroyed or injured by deer or other wild animals whose populations exceed the maximum carrying capacity of the site.  Management costs shall be determined as an average for the entire State or by regions, by Managed Timberlands Productivity Grades or by parcel acreage and shall be deducted from gross annual income per acre to obtain net annual income per acre.   

3.11. “Managed Timberland” means surface real property, except farm woodlots, of not less than ten contiguous acres which is devoted primarily to forest use and which, in consideration of their size, has sufficient numbers of commercially valuable species of trees to constitute at least forty percent normal stocking of forest trees which are well distributed over the growing site, and that it is managed pursuant to a plan as defined in subsection 3.12 and appendix 2 of this rule. 

3..12.  “Managed Timberland Plan” means the planned timberland management program that conforms to the following standards established by the Division of Forestry in the plan:

3.12.1. Includes the owner's multipurpose objectives for the property;

3.12.2. Provides for the land:

3.12.2.a.  to remain in at least 40% or greater forest cover of well distributed commercially important trees,

3.12.2.b.  to produce continuous crops of timber according to the site's productivity, and,

3.12.2.c.  to be monitored for and action taken against threats from injurious agencies;

3.12.3. Ensures that harvesting will be done in a manner that assures regeneration of the landowner's preferred species; and

3.12.4. Assures sustainability of forest resources and compliance with the Logging Sediment control Act, W. Va. Code §19-1B-1 et seq.

      3.13. “Managed Timberland Productivity Grades” means timberland classified as Grade 1 (excellent to very good), Grade 2 (good to fair), or Grade 3 (poor), according to the table in Appendix 4 of this rule.

     3.14. “Owner of surface less timber” means any person who owns an interest in the surface where the timber rights have been sold to someone else. 

     3.15. “Owner of Timber” means any person who owns an interest in timber, including a lessor or sublessor and an owner of a contract right to cut timber.  The owner of timber must have a right to cut timber for sale on his, her or its own account for use in his, hers, or its trade or business in order to have property rights that are subject to ad valorem property taxes. 

    3.16.  “Site Index” means a method of measuring the  potential of a site to grow trees to the height that the average dominant and co-dominant trees on the site will attain at a given age.  The site index will be determined using the applicable Integrated Moisture Index (IMI) as shown on Appendix 4 of this rule.

     3.17. “Stumpage Price” means the market value of standing trees (on the stump) prior to felling and removal, and is expressed in dollars per unit of volume (MBF or cords).  For appraisal purposes, real stumpage price will be adjusted to real price changes over various harvest periods (i.e., 35,45, 55 or 80 years) during the 80 year rotation cycle.  The real price  change shall be determined using historical West Virginia  saw timber and pulpwood prices  based upon 16 inch (dbh) logs  provided by the West Virginia Division of Forestry  (i.e. data from the last 20 years or more depending on data availability). . Stumpage price projections over various harvest periods shall be calculated using the real price change derived from historical saw timber and pulpwood prices in West Virginia. Thus, since stumpage prices provided by the Division of Forestry are in nominal terms, those prices shall be converted to real dollars (i.e. real terms) before stumpage projections are calculated.  A five-year weighted moving average shall be computed in order to minimize the effects of short-term fluctuations.  Stumpage prices shall be computed for each stumpage price region in order to reflect regional differences in markets, topography, and accessibility.

      3.18.  “Stumpage Price Region” means a geographical region of the State, usually consisting of several counties, in which conditions of the timber, timber markets, topography, and accessibility are sufficiently similar to result in similar stumpage prices at any given time.  The counties involved in each stumpage price region have been identified by the Division of Forestry and are found in Appendix 3 of this rule.

     3.19. “Timber” means trees of any marketable species, whether planted or of natural growth, standing or down, located on public or privately owned land, which are suitable for commercial or industrial use.

      3.20. “Timberland (Woodland/Wasteland)” means any surface real property, except Managed Timberland and farm woodlots of not less than ten contiguous acres, which is primarily in forest and which has, in consideration of their size, sufficient numbers of commercially-valuable species of trees to constitute at least forty percent (40%) normal stocking of forest trees, as shown Appendix 2 of this rule, which are well distributed over the growing site.  Additionally, land that has been recently harvested of merchantable timber and is growing into or being planted as a new forest may be classified as timberland.

§ 110-1H-4. Classification of Timberland and Managed Timberland.

    4.1. Managed Timberland.  --  For property to qualify for managed timberland valuation, the owner of the surface real property identified on the county tax mapping system shall annually certify in writing to the Division of Forestry that the property satisfies the requirements of managed timberland, as defined in Section 3 of this rule, and enter into a contract with the Division of Forestry to use the real estate in a planned program of multiple purpose forest management, including erosion control during timbering operations, as specified in the West Virginia Forest Practices Standards and the West Virginia Silvicultural Nonpoint Source Management Program, and as explained in  Section 13 of this rule.  Multipurpose forest management contemplates the periodic selection of timber on the property for harvesting as an integral part of silvicultural management practices.  The silvicultural manipulation subjects the property to periodic commercial use that may have an effect on the property's classification for property tax purposes.  Therefore, in recognition of the silvicultural manipulation, the following guidelines shall be observed by the Division of Forestry when classifying managed timberland for property tax purposes.

     4.1.1. Property containing managed timberland, which may have been properly taxed as Class II property prior to the managed timberland application, shall remain as Class II property unless there is some other event or change in the use of the property that disqualifies it from being taxed as Class II property.

        4.1.2. Property containing managed timberland, which may have been properly taxed as Class III or Class IV property prior to the managed timberland application, shall be taxed as Class III or Class IV property depending upon location.

    4.2. Timberland.  --  Timberland shall be taxed as Class II, Class III, or Class IV property in accordance with provisions of West Virginia Code § 11-8-5.  In order for timberland to be taxed as Class II property, the timberland shall be used and occupied by the owner exclusively for residential purposes.  (This section does not apply to farm woodlots - See, Valuation of Farmland and Structures Situated Thereon For Ad Valorem Property Tax Purposes, 110 C.S.R. 1H, § 110-1H-5.)

    4.3. Surface less timber -- Property where the owner of the surface does not include the timber rights is not eligible for managed timberland classification and shall be valued by the assessor.

    4.4. Timber -- Property where the owner of the timber rights does not include the surface, is not eligible for managed timberland classification and shall be valued by the assessor.

§ 110-1H-5. Valuation of Farm Wood Lots.

    Farm wood lots shall be included in the valuation of farm property under W. Va. Code

§ 11-1A-10, except when the farm wood lot is a separate parcel or tract entered in the land books, and/or except when the primary use of the farm wood lot is in commercial forestry or in a managed timberland contract.

§ 110-1H-6. Timberland Improvements.

    Improvements such as roads and service buildings that are a required (usual) part of timber management operations are not subject to an additional market value appraisal over and above the appraisal of the managed timberland.  Improvements that are not a necessary part of the timber management operations, such as dwellings, cottages, hunting camps, other recreational facilities, and associated real estate are subject to additional market value appraisals.  Additionally, haul roads, strip and/or mountaintop removal mines, plant facilities, powerline and gas/oil pipeline rights-of-way, and gas/oil well pads shall not be valued as managed timberland.

§ 110-1H-7. Appraised Value of Timberland.

    The appraised value per acre of timberland shall be determined based upon market comparables and shall be estimated by the county assessor.  There are at least five (5) various timberland rates based on the timberland classification schedule described in Appendix 1 of this rule.  Assessors shall tri-annually review and grade these non-managed timberland properties in order to assign the proper rate per acre to the property.  The rate per acre shall be established by the assessor in conformity with requirements of subsection 2.2 of this rule.

§ 110-1H-8. Valuation of Less Than 10 Acres.

    A parcel, or contiguous parcels, of timberland totaling less than ten (10) acres shall not be considered for classification as managed timberland and shall be valued by the county assessor based upon market comparables.

§ 110-1H-9. Harvest Volumes Per Acre

    Harvest Volumes per acre shall be based on site index and the ability of the site to yield timber measured in thousands of board feet (MBF) per acre (Scribner rule) or cords per acre with harvest intervals at thirty-five (35), fifty-five (55) and eighty (80) years for Grade 1 and Grade 2 soils, and at forty-five (45) and eighty (80) years for Grade 3 soil. 

§ 110-1H-10. Appraised Value Per Acre of Managed Timberland.

    The appraised value per acre of managed timberland is the present worth of an infinite periodic net income from the land less a property tax adjustment for Class II, and a blend of Class III and Class IV tax rates for Class III and Class IV properties using, for all measures required by this rule to compute such appraised value per acre of managed timberland, real values and not nominal values. Except as required by the provisions of subsection 2.2 of this rule, in no case shall the appraised value per acre for any grade of managed timberland in any county be less than eighty percent  of the value per acre  of the comparable grade of managed timberland in the immediately preceding tax year in that same county.   The appraised value is the net present worth of all revenues and costs associated with growing timber on the land in perpetuity.  Net income is the difference between projected revenues (e.g. harvest revenues in years 35, 55 and 80) and projected costs (e.g. management costs).

§ 110-1H-11. Procedure for Determining Value Per Acre of Managed Timberland.

    The following is a step-by-step procedure for determining the appraised value per acre of managed timberland. 

    11.1. The Tax Commissioner shall enter the surface ownership maps (typically 1 inch = 400 feet or 1 inch = 800 feet)  into a Geographic Information System (GIS).  The GIS shall be used to register the surface ownership parcels to the same geographic coordinate system and scale as that of the Integrated Moisture Index.  This process allows the calculation of the area of each soil productivity grade in each parcel.    

    11.2. Average stumpage price (5 year weighted moving average) is determined by the State Tax Commissioner, based on stumpage price reports from the Division of Forestry and other available sources.

    11.3. Total harvest income per acre over a rotation cycle of thirty-five (35) years, fifty-five (55) years and eighty (80) years for Grade 1 and 2 soils, and forty-five (45) years and eighty (80) years for Grade 3 soils shall be  compounded at the end of the rotation (i.e. harvest income value at year 80) less applicable state and federal  tax payments, if any.

     11.4.  End of rotation (80 year) total management costs per acre shall be determined by  compounding the annual management costs at the end of the rotation (i.e. management cost value in year 80) using the after tax management costs and accrued interest on those costs.

     11.5.  Appraised value per acre for managed timberland shall be determined by first deducting the cumulative end of rotation total management costs from the cumulative end of rotation total harvest income per acre as defined in paragraph 3.7 of this rule; second, calculating the present worth of that difference, assuming an infinite periodic income from the managed timberland; and third, adjusting that value by the annual ad valorem property tax rate (either Class II or a blended Class III/IV).

    11.6. The GIS shall be used to calculate the appraised value of managed timberland property on an annual basis.  The appraised value of each managed timberland property shall be calculated using the formula found in Appendix 6 of this rule.

            11.6.1. Those acreages involved in a managed timberland application where the use of the property is not for managed timberland purposes (e.g., homesite, pasture, tillable, recreation, stripmine, etc.) shall not be classified as managed timberland and shall be appraised by the county assessor.

§ 110-1H-12. Capitalization Rate.

The average statewide capitalization rate (based on a 5-year weighted moving average of various components) for managed timberland shall be determined annually by the Tax Commissioner through the use of generally accepted methods of determining those rates.  The rate shall be based on the assumption of a discounted cash flow model based upon harvest intervals reflected in Appendix 4 of this rule.  The capitalization rate used to value managed timberland shall be developed considering the following:

      12.1. Discount Component. -- The summation technique shall be used in developing a discount component of the capitalization rate.  The five subcomponents of the discount component are:

  12.1.1. Safe Rate. -- The safe rate shall reflect a rate of return that an investor could expect on an investment of minimal risk.  This rate shall be developed through weighted averages of interest rates offered on five-year United States Treasury Bills for the five years immediately preceding the appraisal date.

12.1.2. Non-liquidity Premium. -- The non-liquidity premium rate shall be developed through an annual review to determine a reasonable estimate of time that timberland, when exposed for sale, remains on the market before being sold.  The time thus determined shall be used to identify United States Treasury Bills with similar time differentials in excess of thirteen-week Treasury Bills.  The interest differential between these securities shall be used to represent the nonliquidity rate.  For example, if it is determined that a tract of timberland remains on the market for an average of nine months (39 weeks) before being sold, the nonliquidity rate shall be derived by subtracting the rate on 13-week Treasury Bills from the rate on one year Treasury Bills.  This review shall consider the weighted average of these differences for a five year period immediately preceding the appraisal date.

12.1.3   Default Risk Premium – The Default Risk Premium, being the premium added to the safe rate to compensate for the chance that the obligor will default on a loan, is the difference between the rate on a U.S. Treasury Bond and the average rate on investment grade corporate bonds, (i.e. rate on AAA, AA, A and BBB rated bonds) of equal maturity and marketability.   The Default Risk Premium will take into account the weighted average of these differences for a five-year period immediately preceding the appraisal date.

12.1.4. Management Rate. -- The management rate represents the cost of managing the investment, not the cost of managing the timberland.  Historically, the management rate has been one-half of one percent (0.5%); therefore, this rate shall be considered the industry standard for current applications.

12.1.5. Discount Component. -- In determining the discount component of the capitalization rate, the Tax Commissioner shall take the sum of the safe rate, the nonliquidity rate, the default risk rate, and the management rate.  The resulting discount rate is a nominal discount rate. 

     12.2. Property Tax Component. -- The property tax component shall be derived by multiplying the assessment rate by the statewide five year weighted average of tax rates on Class II and on a blended rate for Class III and Class IV properties.  The discounted property tax rates shall be deducted from the discounted difference between total cumulative harvest income and end of rotation management costs.

§ 110-1H-13. Application for Certification and Valuation as Managed Timberland.

    In order to qualify, under the provisions of this rule, for managed timberland valuation purposes, the owner of the timberland shall, on or before the first day of September, enter into a contract with the Division of Forestry.  The contract shall state that the real estate is being used in a planned program of timber management and erosion control practices intended to enhance the growth of commercially desirable species through generally accepted silvicultural practices and the use of Best Management Practices as specified in the West Virginia Forest Practice Standards and the West Virginia Nonpoint Source Management Program. The contract shall be assignable with the sale of the land when the land is sold to be used for managed timberland purposes.  Annually, on or before September 1, the owner shall file an application for certification as managed timberland with the Division of Forestry.  The application shall include either (a) a commitment to maintain and protect timberland certified as managed timberland by demonstrating land-use objectives to include resource management and soil and water protection; or (b) a written plan prepared by a professional forester. Falsification of certification or failure to follow a professionally prepared plan shall result in loss of valuation as managed timberland.  In any event, the following information shall be provided:

    13.1.  The county, district, map, parcel number, deed book surface acreage and actual surveyed surface acreage, if available, for each parcel that is to be valued as managed timberland;

        13.1.1. The amount of acreage in each parcel that should be classified as managed timberland.  For those properties where managed timberland acreage is different than deed acreage, information identifying the use of the non-managed acreage is required; 

        13.1.2. The signature of owner (including all fractional interests) acknowledging that the contract with the Division of Forestry has been annually reviewed and approved and that the property is being managed in accordance with the Best Management Practices for forestry as outlined in the West Virginia Forest Practice Standards and the Best Management Practices for water quality as outlined in the West Virginia Nonpoint Source Management Program.  If a written plan is provided in accordance with Section 13 of this rule, that plan shall be approved and signed by a registered timber management forester.

    13.2. The Division of Forestry shall, on or before October 1 of each year, provide the State Tax Commissioner with a copy of the certifications and reports and provide a list of those properties certified as managed timberland and those denied certification.  After the October 1 report is filed, the Division of Forestry has until January 15 of the next calendar year to review any applications questioned by the State Tax Commissioner or county officials.

    13.3. The property owner whose managed timberland application was denied or who has been refused certification pending demonstration of specific facts may, on or before November 1 of the assessment year, file an appeal of the denial or file the requested data with the Director of the Division of Forestry.  On or before the following December 1, the Division of Forestry shall advise the Tax Commissioner of any changes of application denials.

§ 110-1H-14. Summary of Method of Determining Appraised Value.

    The formula to be used in determining the appraised value of property categorized as managed timberland is found in Appendix 5 of this rule.

APPENDIX 1

Timberland Classification Schedule

Class “A”

This land is adaptable for use as forest property.  It may be adaptable to other profitable uses.  There is a stand of trees of commercial species, the size being from fourteen (14) to twenty (20) inches d.b.h. and above.

Class “B”

This land is also adaptable for use as forest property.  It may be adaptable for other profitable uses.  There is a stand of trees of commercial species, the size being from ten (10) to fourteen (14) inches d.b.h.

Class “C”

            This land is adaptable for use as forest property.  There is a stand of trees of commercial species, the size being from six (6) to ten (10) inches d.b.h.

Class “D”

This land is adaptable for use as forest property.  There is a stand of trees of commercial species, the size being from four (4) to six (6) inches d.b.h.

Class “E”

This land is adaptable for use as forest property.  There are trees of commercial species less than four (4) inches d.b.h.  This class of timberland also includes clear cut property and property subjected to total harvest where the remaining commercial species are less than four (4) inches d.b.h.

APPENDIX 2

Minimum Number of Trees Required Per Acre to Determine

30 Square Feet of Tree Basel Area of 40%

Stocking for Classification as Forest Land

D.B.H
Range

D.B.H. in 2”
Classes

Basel Area
Per Tree

Per Acre

Per
1/5 Acre

Per
1/10 Acre

Up to 2.9”

Seedlings

 

400

80

40

3.0-4.9”

4

0.0873

400

80

40

5.0-6.9”

6

0.1964

153

31

15

7.0-8.9”

8

0.3491

86

17

9

9.0-10.9”

10

0.5454

55

11

6

11.0-12.9”

12

0.7854

38

8

4

13.0-14.9”

14

1.0690

28

6

3

15.0”+

16+

1.3983+

21

4

2

NOTE:

    (a) Area 1/5 acre, circle, diameter 105'4”; square 93.4” per side

    (b) Area 1/10 acre; circle, diameter 74'6”; square 66'

    (c) Number of seedlings present may qualify on a percentage basis; Example, 100 seedlings would be equivalent of 7.5 square feet of basal area (25% x 30 - 7.5)

  (d) Seedlings per acre are based on total pine and hardwood stems.  Where intensive pine management is practiced a minimum of 250 well distributed pine seedlings will qualify.

APPENDIX 3

Stumpage Price Regions

Region 1

Region 2

Region 3

Region 4

Region 5

Brooke

Braxton

Barbour

Berkeley

Boone

Cabell

Calhoun

Greenbrier

Grant

Fayette

Hancock

Clay

Monroe

Hampshire

Kanawha

Jackson

Doddridge

Nicholas

Hardy

Lincoln

Marshall

Gilmer

Pendleton

Jefferson

Logan

Mason

Harrison

Pocahontas

Mineral

McDowell

Ohio

Lewis

Preston

Morgan

Mercer

Pleasants

Marion

Randolph

 

Mingo

Putnam

Monongalia

Tucker

 

Raleigh

Tyler

Ritchie

Upshur

 

Summers

Wetzel

Roane

Webster

 

Wayne

Wood

Taylor

 

 

Wyoming

 

Wirt

 

 

 

APPENDIX 4

TABLE OF HARVEST VOLUMES PER ACRE WITH HARVEST INTERVALS OVER AN 80 YEARS ROTATION CYCLE

 

35 Years

55 Years

80 Years

Total

Grade 1

 

 

 

 

IMI ≥ 45

4.6 Cords

2.6 Cords

3.3 Cords

10.5 Cords

(Very Good to Execllent)

1.5 MBFs

4.4 MBFs

8.6 MBFs

14.5 MBFs

Grade 2

 

 

 

 

IMI ≥ 30 AND ≤ 44.99

3.3 Cords

7.0 Cords

4.6 Cords

14.9 Cords

(Fair to Good)

1.0 MBFs

4.4 MBFs

8.6 MBFs

14.5 MBFs

Grade 3

 

 

 

 

IMI ≤ 29.99

3.1 Cords

15.4 Cords

18.5 Cords

 

(Poor)

8 MBFs

3.7 MBFs

4.5 MBFs

 

Scribner rule.  Schnur, G. Luther.  UNITED STATES DEPARTMENT OF AGRICULTURE Tech. Bul. No. 560. 1937.  The Tax Commissioner may adopt a different timber scale and revise yields as standards of timber utilization change or as new information becomes available on timber yields of forest stands.

APPENDIX 5

For Class II Parcels:

    Appraised Value Per Acre = ((Future Value of Harvest Revenues – Future Value of Management Costs)/((1 + Real Discount Rate)n) -1)) less discounted property tax Class II rate.

Where:

n = 80 years

Future Value of Harvest Revenues – value of harvest revenues in year 80 using compounding formula below

Vn = Vo(1 + i) n - 1

Where:  Vo = harvest revenue in year o ) (i.e. 35, 45, 55 or 80)

               i = capitalization rate

               n = rotation length

              Vn = future value of harvest revenues

Future Value of Management Costs – value of management costs in year 80 using the formula for calculating the future value of a terminating annual series as given below:

Vn = a{(1 + i)n – 1/i}

Where:   a = annual management costs

               i = capitalization rate

               n = rotation length

              Vn = future value of management costs

For Class III & IV Parcels:

Same formula except the discounted property tax rate for Class III and Class IV properties is used.   Until the present natural resource and county computer systems can be programmed to change appraisals based on tax classifications or until a new computerized appraisal system can be put into effect, the property tax discount shall be a blended rate including both Class III and Class IV rates.

APPENDIX 6

    AV = (P1V1) + (P2V2) + (P3V3)

Where:

AV = Property Appraised Value

P1 = Total Acreage of Parcel in Soil Productivity Grade 1

P2 = Total Acreage of Parcel in Soil Productivity Grade 2

P3 = Total Acreage of Parcel in Soil Productivity Grade 3

V1 = Value of Soil Productivity Grade 1

V2 = Value of Soil Productivity Grade 2

V3 = Value of Soil Productivity Grade 3

(j) The legislative rule effective on June 29, 1964, authorized under the authority of article one, chapter eleven of this code, relating to the Tax Division (revision of levy estimates, 110 CSR 8), is repealed.

(k) The legislative rule effective on September 16, 1966, authorized under the authority of article ten, chapter eleven of this code, relating to the Tax Division (inheritance and transfer tax, 110 CSR 11), is repealed.

(l) The legislative rule effective on January 1, 1974, authorized under the authority of section five-a, article ten, chapter eleven of this code, relating to the Tax Division (annual tax on incomes of certain carriers, 110 CSR 12A), is repealed.

(m) The legislative rule effective on April 4, 1988, authorized under the authority of section five, article ten, chapter eleven of this code, relating to the Tax Division (telecommunications tax, 110 CSR 13B), is repealed.

(n) The legislative rule effective on May 1, 1996, authorized under the authority of section three, article thirteen-i, chapter eleven of this code, relating to the Tax Division (tax credit for employing former members of Colin Anderson Center, 110 CSR 13I), is repealed.

(o) The legislative rule effective on May 1, 1999, authorized under the authority of section seven, article thirteen-m, chapter eleven of this code, relating to the Tax Division (tax credits for new value-added, wood manufacturing facilities, 110 CSR 13M), is repealed.

(p) The legislative rule effective on May 1, 1999, authorized under the authority of section seven, article thirteen-n, chapter eleven of this code, relating to the Tax Division (tax credits for new steel, aluminum and polymer manufacturing operations, 110 CSR 13N), is repealed.

(q) The legislative rule effective on May 1, 1995, authorized under the authority of section five, article ten, chapter eleven of this code, relating to the Tax Division (business investment and jobs expansion tax credit, corporation headquarters relocation tax credit and small business tax credit, 110 CSR 13C), is repealed.

(r) The legislative rule effective on April 4, 1988, authorized under the authority of section one, article one-a, chapter eleven of this code, relating to the Tax Division (appraisal of property for periodic statewide reappraisals for ad valorem property tax purposes, 110 CSR 1), is repealed.

§64-7-4. Banking Commissioner.

 (a) The legislative rule effective on April 23, 1982, authorized under the authority of section four, article three, chapter thirty-one-a of this code, relating to the Banking Commissioner (West Virginia Consumer Credit and Protection Act, 106 CSR 8), is repealed.

(b) The procedural rule effective on January 10, 1975, authorized under the authority of section two, article three, chapter thirty-one-a of this code, relating to the Banking Commissioner (West Virginia Board of Banking and Financial Institutions, 107 CSR 5), is repealed.

§64-7-5. Office of the Insurance Commissioner.

(a) The legislative rule effective on May 16, 1997, authorized under the authority of section four, article twenty-five-a, chapter thirty-three of this code, relating to the Office of the Insurance Commissioner (utilization management, 114 CSR 51), is repealed.

(b) The legislative rule effective on December 28, 1981, authorized under the authority of

section ten, article two, chapter thirty-three of this code, relating to the Office of the Insurance

Commissioner (Medicare supplement insurance coverage, 114 CSR 17), is repealed.

§64-7-6. Lottery Commission.

The Legislature directs the Lottery Commission to promulgate the legislative rule filed in the State Register on May 20, 2009, authorized under the authority of section four hundred two, article twenty-two-b, chapter twenty-nine of this code, relating to the Lottery Commission (limited video lottery, 179 CSR 5), with the amendment set forth below:

On page 3, after subsection 2.11, by adding a new subsection 12.2 to read as follows:

2.12. “Licensed limited video lottery location approved by the commission” as it appears in W. Va. Code, §29-22B-1201(a) means the location in excess of the following straight-line distances from any of the following places:

2.12.a. The location is at least one hundred fifty feet from, or has an external structural connection not amounting to a common internal wall to, a premises that already has a retail license for video lottery terminals  or the perimeter of a public park;

2.12.b. The location is at least three hundred feet from a church, school or daycare center; or

12.12.c. The location is at least one hundred fifty feet from a business that sells petroleum products capable of being used as fuel in an internal combustion engine.”

And,

By renumbering the remaining subsections.

            And,

            By amending the title of the bill to read as follows:

Com. Sub. for S. B. 157 - “A Bill to amend and reenact article seven, chapter sixty-four of the Code of West Virginia, 1931, as amended, relating generally to promulgation of administrative rules by Department of Revenue; relating generally to repealing certain legislative, procedural or interpretive rules promulgated by certain agencies and boards under the Department of Revenue which are no longer authorized or are obsolete; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee;  authorizing certain of the agencies to promulgate certain legislative rules with various amendments presented to and recommended by the Legislative Rule-Making Review Committee; authorizing certain of the agencies to promulgate certain legislative rules with various amendments recommended by the Legislature; directing various agencies to amend and promulgate certain legislative rules; authorizing Alcohol Beverage Control Commission to promulgate legislative rule relating to nonintoxicating beer licensing and operations procedures; authorizing Alcohol Beverage Control Commission to promulgate legislative rule relating to private club licensing; authorizing Alcohol Beverage Control Commission to promulgate legislative rule relating to distilleries and mini-distilleries; authorizing the Racing Commission to promulgate legislative rule relating to thoroughbred racing; authorizing Racing Commission to promulgate legislative rule relating to pari-mutuel wagering;  authorizing Department of Revenue to promulgate legislative rule relating to payment of taxes by electronic funds transfer; authorizing Department of Revenue to promulgate legislative rule relating to an exchange of information agreement between Commissioner of the Tax Division of the Department of Revenue and Secretary of the Department of Commerce, Secretary of State, Secretary of the Department of Environmental Protection, Director of the Division of Forestry of the Department of Commerce and Commissioners of the Public Service Commission; repealing certain legislative and procedural rule promulgated by certain agencies and boards under the Department of Revenue; repealing the Tax Division legislative rule relating to listing of interests in natural resources for purposes of first statewide appraisal; repealing the Tax Division legislative rule relating to guidelines for assessors to assure fair and uniform nonutility personal property values; repealing the Tax Division legislative rule relating to review by circuit court on certiorari; repealing the Tax Division legislative rule relating to review of appraisals by the county commission sitting as an administrative appraisal review board; repealing the Tax Division legislative rule relating to additional review and implementation of property appraisals; repealing the Tax Division legislative rule relating to review by circuit court on certiorari; directing the State Tax Department to amend and promulgate legislative rule relating to valuation of timberland and managed timberland; repealing the Tax Division legislative rule relating to revision of levy estimates; repealing the Tax Division legislative rule relating to inheritance and transfer tax; repealing the Tax Division legislative rule relating to annual tax on incomes of certain carriers; repealing the Tax Division legislative rule relating to the telecommunications tax; repealing the Tax Division legislative rule relating to tax credit for employing former members of Colin Anderson Center; repealing the Tax Division legislative rule relating to tax credits for new value-added, wood manufacturing facilities; repealing the Tax Division legislative rule relating to tax credits for new steel, aluminum and polymer manufacturing operations; repealing the Tax Division legislative rule relating to the business investment and jobs expansion tax credit, corporation headquarters relocation tax credit and small business tax credit; repealing the Tax Division legislative rule relating to appraisal of property for periodic statewide reappraisals for ad valorem property tax purposes; repealing the Banking Commissioner legislative rule relating to the West Virginia Consumer Credit and Protection Act; repealing the Banking Commissioner procedural rule relating to West Virginia Board of Banking and Financial Institutions; repealing the Office of the Insurance Commissioner legislative rule relating to utilization management; repealing the Office of the Insurance Commissioner legislative rule relating to Medicare supplement insurance coverage; and  directing the Lottery Commission to amend and promulgate legislative rule relating to limited video lottery.”

            On motion of Delegate Cowles, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.

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

            A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with a title amendment, and the passage, as amended, of

            Com. Sub. for S. B. 267, Modifying removal procedure for certain county, school district and municipal officers.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House concurred in the following Senate title amendment:

Com. Sub. for S. B. 267 - “A Bill to amend and reenact §6-6-1 and §6-6-7 of the Code of West Virginia, 1931, as amended, relating to modifying the procedure for removal of certain county, school district and municipal officers; modifying definitions; and providing political subdivisions be responsible for costs associated with removal proceedings when the outcome is in favor of a challenged officer acting in good faith.”

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 578), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Shaffer.

Absent and Not Voting: Moore and O'Neal.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 267) passed.

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

Conference Committee Report Availability

            At 4:59 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for S. B. 597,  Relating generally to Health Care Authority.

            At 4:59 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 4174, Exempting activity at indoor shooting ranges from the prohibition of shooting or discharging a firearm within five hundred feet of any church or dwelling house.

Messages from the Senate

            A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with a title amendment, and the passage, as amended, of

            Com. Sub. for S. B. 298, Allowing restaurants, private clubs and wineries sell alcoholic beverages on Sundays.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House concurred in the following Senate title amendment:

Com. Sub. for S. B. 298 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §7-1-3pp; to amend and reenact §11-16-18 of said code; to amend and reenact §60-4-3a and §60-4-3b of said code; to amend and reenact §60-7-12 of said code; and to amend and reenact §60-8-34 of said code, all relating to regulation of alcoholic liquor, wine and non-intoxicating beer generally; allowing county commissions to conduct a county option election on the question of whether to allow restaurants, private clubs, Class A retailers, wineries and wine serving entities to sell alcoholic liquors, wine and non-intoxicating beer as their licenses allow, and distilleries and mini-distilleries to offer complimentary samples of alcohol beginning at 10:00 a.m. on Sundays for on-premises consumption only; and establishing publication requirements for providing notice of election.”

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 579), and there were--yeas 83, nays 13, absent and not voting 4, with the nays and absent and not voting being as follows:

Nays: Frich, Hicks, Marcum, Moye, Perdue, R. Phillips, Rodighiero, Rowan, Shaffer, Sobonya, Sponaugle, P. White and Mr. Speaker, Mr. Armstead.

Absent and Not Voting: Lane, McCuskey, Moore and Rowe.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 298) passed.

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

A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with a title amendment, and the passage, as amended, of

S. B. 311, Allowing permanent exception for mortgage modification or refinancing loan under federal Making Home Affordable program.

On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House concurred in the following Senate title amendment:

S. B. 311 - A Bill to amend and reenact §31-17-8 and §31-17-17 of the Code of West Virginia, 1931, as amended, all relating to exceptions from certain requirements for certain mortgage modifications or refinancing loans; authorizing exception from certain requirements for mortgage modifications or refinancing loans made in participation with and in compliance with the federal Homes Affordable Modification Program or any other mortgage modification or refinancing loan eligible under any government sponsored enterprise requirements or funded through any federal or state program or litigation settlement; and allowing exceptions from nullification or actions brought for certain mortgage modifications or refinancing loans made in participation with and in compliance with the federal Homes Affordable Modification Program or any other mortgage modification or refinancing loan eligible under any government sponsored enterprise requirements or funded through any federal or state program or litigation settlement.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 580), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent and Not Voting: Lane, McCuskey, Moore and Rowe.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 311) passed.

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

A message from the Senate, by

The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to

Com. Sub. for S. B. 378, Relating to truancy intervention.

On motion of Delegate Cowles, the House of Delegates refused to recede from its amendment and requested the Senate to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.

Whereupon,

The Speaker appointed as conferees on the part of the House of Delegates the following:

Delegates Cowles, Zatezalo and Byrd.

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

A message from the Senate, by

The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to

Com. Sub. for S. B. 454, Licensing and regulating medication-assisted treatment programs for substance use disorders.

On motion of Delegate Cowles, the House of Delegates refused to recede from its amendment, insisting on its position.

            A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendment, and the passage, as amended, of a bill of the House of Delegates, as follows:

            Com. Sub. for S. B. 621, Exempting taxicab companies with independent contract drivers from providing workers’ compensation coverage.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments with further amendment:

On page two, section one, subsection (b), by deleting all of subdivision (8) and inserting a new subdivision (8) to read as follows:

“(8) Taxicab drivers of taxicab companies operating under Article 2, Chapter 24Aof this code, who provide taxicab service pursuant to a written or electronic agreement that identifies the taxicab driver as an independent contractor consistent with the United States Internal Revenue code requirements for persons acting as independent contractors: Provided, that any such taxicab driver identified as an independent contractor shall not be eligible for workers compensation benefits under this chapter as an employee of the taxicab company.”

On page two, section one, subsection (8), by striking-out the words “Taxicab drivers for a taxi company operating under” and inserting in lieu thereof the words “Taxicab companies for taxicab drivers operating under”.

            The question being on the passage of the bill as amended by the Senate and further amended by the House, the yeas and nays were taken (Roll No. 581), and there were--yeas 92, nays 4, absent and not voting 4, with the nays and absent and not voting being as follows:

Nays: Fleischauer, Lynch, Pushkin and Shaffer.

Absent and Not Voting: Lane, McCuskey, Moore and Rowe.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 621) passed.

On motion of Delegate Shott, the title of the bill was amended to read as follows:

Com. Sub. for S. B. 621 - “A Bill to amend and reenact §23-2-1 the Code of West Virginia, 1931, as amended,  relating to exempting taxicab companies whose drivers are independent contractors from providing workers’ compensation coverage for the drivers.”

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

            A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendment, and the passage, as amended, of

            Com. Sub. for S. B. 634, Creating William R. Laird IV Second Chance Driver’s License Act.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House concurred in the Senate amendment to the House of Delegates amendment as follows:

On page one, section two, line two, after the word “costs”, by inserting the words “to obtain a stay of the driver’s license suspension or revocation”.

On page four, section five, line thirty-seven, by striking out “(a)” and inserting in lieu thereof “(c)”.

On page six, section seven, line five, by striking out the word “Commissioner” and inserting in lieu thereof the word “commissioner”.

And,

On page seven, section nine, line one, by striking out the word “money” and inserting in lieu thereof the word “moneys”.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 582), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:

Nays: Moffatt.

Absent and Not Voting: Lane, McCuskey, Moore and Rowe.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 634) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 2110, Relating generally to the tax treatment of manufacturing entities.

Speaker Pro Tempore Anderson in the Chair

            Mr. Speaker, Mr. Armstead, arose from his seat and requested to be excused from voting on the passage of Com. Sub. for H. B. 2110 under the provisions of House Rule 49.

            The Speaker Pro Tempore replied that any impact on Mr. Speaker, Mr. Armstead would be as a member of a class of persons possibly to be affected by the passage of the bill, and refused to excuse the Delegate from voting.

Mr. Speaker, Mr. Armstead, in the Chair

            On motion of Delegate Cowles, the bill was taken up for immediate consideration.

The following Senate amendment was reported by the Clerk:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 6F. SPECIAL METHOD FOR APPRAISING QUALIFIED CAPITAL ADDITIONS TO MANUFACTURING FACILITIES.

§11‑6F‑2. Definitions.

As used in this article, the term:

(a) ‘Certified capital addition property’ means all real property and personal property included within or to be included within a qualified capital addition to a manufacturing facility that has been certified by the State Tax Commissioner in accordance with section four of this article: Provided, That airplanes and motor vehicles licensed by the Division of Motor Vehicles shall in no event constitute certified capital addition property.

(b) ‘Manufacturing’ means any business activity classified as having a sector identifier, consisting of the first two digits of the six‑digit North American Industry Classification System code number of thirty‑one, thirty‑two or thirty‑three or the six digit code number 211112.

(c) ‘Manufacturing facility’ means any factory, mill, chemical plant, refinery, warehouse, building or complex of buildings, including land on which it is located, and all machinery, equipment, improvements and other real property and personal property located at or within the facility used in connection with the operation of the facility in a manufacturing business.

(d) ‘Personal property’ means all property specified in subdivision (q), section ten, article two, chapter two of this code and includes, but is not limited to, furniture, fixtures, machinery and equipment, pollution control equipment, computers and related data processing equipment, spare parts and supplies.

(e) ‘Qualified capital addition to a manufacturing facility’ means either:

(1) All real property and personal property, the combined original cost of which exceeds $50 million to be constructed, located or installed at or within two miles of a manufacturing facility owned or operated by the person making the capital addition that has a total original cost before the capital addition of at least $100 million. If the capital addition is made in a steel, chemical or polymer alliance zone as designated from time‑to‑time by executive order of the Governor, then the person making the capital addition may for purposes of satisfying the requirements of this subsection join in a multiparty project with a person owning or operating a manufacturing facility that has a total original cost before the capital addition of at least $100 million if the capital addition creates additional production capacity of existing or related products or feedstock or derivative products respecting the manufacturing facility, consists of a facility used to store, handle, process or produce raw materials for the manufacturing facility, consists of a facility used to store, handle or process natural gas to produce fuel for the generation of steam or electricity for the manufacturing facility or consists of a facility that generates steam or electricity for the manufacturing facility, including but not limited to a facility that converts coal to a gas or liquid for the manufacturing facility's use in heating, manufacturing or generation of electricity. Beginning on and after July 1, 2011, when the new capital addition is a facility that is or will be classified under the North American Industry Classification System with a six digit code number 211112, or is a manufacturing facility that uses product produced at a facility with code number 211112, then wherever the term ‘100 million’ is used in this subsection, the term ‘20 million’ shall be substituted and where the term ‘50 million’ is used, the term ‘10 million’ shall be substituted; and that beginning on and after July 1, 2016, when the new capital addition is a facility that is or will be classified under the North American Industry Classification System with a six‑digit North American Industry Classification System code a product produced at a facility with code numbers 332992 and 332994, then wherever the term ‘100 million’ is used in this subsection, the term ‘2 million’ shall be substituted and where the term ‘50 million’ is used, the term ‘1 million’ shall be substituted; or

(2) (A) All real property and personal property, the combined original cost of which exceeds $2 billion million to be constructed, located or installed at a facility, or a combination of facilities by a single entity or combination of entities engaged in a unitary business, that:

(i) Is or will be classified under the North American Industry Classification System with a six digit code number 211112, 332992 or 332994; or

(ii) Is a manufacturing facility that uses one or more products produced at a facility with code number 211112;, 332992 or 332994; or

(iii) Is a manufacturing facility that uses one or more products produced at a facility described in subparagraph (ii) of this subdivision.

(B) No preexisting investment made, or in place before the capital addition shall be required for property specified in this subdivision (2). The requirements set forth in subdivision (1) of this subsection shall not apply to property specified in this subdivision (2) relating to:

(i) Location or installation of investment at or within two miles of a manufacturing facility owned or operated by the person making the capital addition;

(ii) Total original cost of preexisting investment before the capital addition of at least $100 million or $20 million; or

(iii) Multiparty projects.

(f) ‘Real property’ means all property specified in subdivision (p), section ten, article two, chapter two of this code and includes, but is not limited to, lands, buildings and improvements on the land such as sewers, fences, roads, paving and leasehold improvements: Provided, That for capital additions certified on or after July 1, 2011, the value of the land before any improvements shall be subtracted from the value of the capital addition and the unimproved land value shall not be given salvage value treatment.

ARTICLE 13S. MANUFACTURING INVESTMENT TAX CREDIT.

§11‑13S‑3. Definitions.

(a) Any term used in this article has the meaning ascribed by this section unless a different meaning is clearly required by the context of its use or by definition in this article.

(b) For purpose of this article, the term:

(1) ‘Eligible taxpayer’ means an industrial taxpayer who purchases new property for the purpose of industrial expansion or for the purpose of industrial revitalization of an existing industrial facility in this state.

(2) ‘Industrial expansion’ means capital investment in a new or expanded industrial facility in this state.

(3) ‘Industrial facility’ means any factory, mill, plant, refinery, warehouse, building or complex of buildings located within this state, including the land on which it is located, and all machinery, equipment and other real and tangible personal property located at or within the facility primarily used in connection with the operation of the manufacturing business.

(4) ‘Industrial revitalization’ or ‘revitalization’ means capital investment in an industrial facility located in this state to replace or modernize buildings, equipment, machinery and other tangible personal property used in connection with the operation of the facility in an industrial business of the taxpayer including the acquisition of any real property necessary to the industrial revitalization.

(5) ‘Industrial taxpayer’ means any taxpayer who is primarily engaged in a manufacturing business.

(6) ‘Manufacturing’ means any business activity classified as having a sector identifier, consisting of the first two digits of the six‑digit North American Industry Classification System code number, of thirty‑one, thirty‑two or thirty‑three or the six digit code number 211112.

(7) ‘Property purchased for manufacturing investment’ means real property, and improvements thereto, and tangible personal property but only if the property was constructed or purchased on or after January 1, 2003, for use as a component part of a new, expanded or revitalized industrial facility. This term includes only that tangible personal property with respect to which depreciation, or amortization in lieu of depreciation, is allowable in determining the federal income tax liability of the industrial taxpayer, that has a useful life, at the time the property is placed in service or use in this state, of four years or more. Property acquired by written lease for a primary term of ten years or longer, if used as a component part of a new or expanded industrial facility, is included within this definition.

(A) ‘Property purchased for manufacturing investment’ does not include:

(i) Repair costs, including materials used in the repair, unless for federal income tax purposes, the cost of the repair must be capitalized and not expensed;

(ii) Motor vehicles licensed by the Department of Motor Vehicles;

(iii) Airplanes;

(iv) Off‑premises transportation equipment;

(v) Property which is primarily used outside this state; and

(vi) Property which is acquired incident to the purchase of the stock or assets of an industrial taxpayer which property was or had been used by the seller in his or her industrial business in this state or in which investment was previously the basis of a credit against tax taken under any other article of this chapter.

(B) Purchases or acquisitions of land or depreciable property qualify as purchases of property purchased for manufacturing investment for purposes of this article only if:

(i) The property is not acquired from a person whose relationship to the person acquiring it would result in the disallowance of deductions under section 267 or 707(b) of the United States Internal Revenue Code of 1986, as amended;

(ii) The property is not acquired from a related person or by one component member of a controlled group from another component member of the same controlled group. The Tax Commissioner may waive this requirement if the property was acquired from a related party for its then fair market value; and

(iii) The basis of the property for federal income tax purposes, in the hands of the person acquiring it, is not determined, in whole or in part, by reference to the federal adjusted basis of the property in the hands of the person from whom it was acquired or under Section 1014(e) of the United States Internal Revenue Code of 1986, as amended.

(8) ‘Qualified manufacturing investment’ means that amount determined under section five of this article as qualified manufacturing investment.

(9) ‘Taxpayer’ means any person subject to any of the taxes imposed by article thirteen‑a, twenty‑three or twenty‑four of this chapter or any combination of those articles of this chapter.

§11‑13S‑4. Amount of credit allowed for manufacturing investment.

(a) Credit allowed. ‑‑ There is allowed to eligible taxpayers and to persons described in subdivision (5), subsection (b) of this section a credit against the taxes imposed by articles thirteen‑a, twenty‑three and twenty‑four of this chapter: Provided, That a tax credit for any eligible taxpayer operating a business activity classified as having a sector identifier, consisting of the six digit code number 211112 such eligible taxpayer must comply with the provisions of subsection (e) of this section for all construction related thereto in order to be eligible for any credit under this article. The amount of credit shall be determined as hereinafter provided in this section.

(b) Amount of credit allowable. ‑‑ The amount of allowable credit under this article is equal to five percent of the qualified manufacturing investment (as determined in section five of this article): Provided, That the amount of allowable credit under this article is equal to fifty percent of the qualified manufacturing investment (as determined in section five of this article) for any eligible taxpayer operating a business activity classified as having a sector identifier, consisting of the six digit code number 332992 or 332994. This credit and shall reduce the severance tax, imposed under article thirteen‑a of this chapter, the business franchise tax imposed under article twenty‑three of this chapter and the corporation net income tax imposed under article twenty‑four of this chapter, in that order, subject to the following conditions and limitations:

(1) The amount of credit allowable is applied over a ten‑year period, at the rate of one‑tenth thereof per taxable year, beginning with the taxable year in which the property purchased for manufacturing investment is first placed in service or use in this state;

(2) Severance tax. ‑‑ The credit is applied to reduce the severance tax imposed under article thirteen‑a of this chapter (determined before application of the credit allowed by section three, article twelve‑b of this chapter and before any other allowable credits against tax and before application of the annual exemption allowed by section ten, article thirteen‑a of this chapter). The amount of annual credit allowed may not reduce the severance tax, imposed under article thirteen‑a of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax: Provided, That for tax years beginning on and after January 1, 2009, the amount of annual credit allowed may not reduce the severance tax, imposed under article thirteen‑a of this chapter, below forty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax. When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen‑d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the severance tax, imposed under article thirteen‑a of this chapter, below fifty percent of the amount which would be imposed for such taxable year (determined before application of the credit allowed by section three, article twelve‑b of this chapter and before any other allowable credits against tax and before application of the annual exemption allowed by section ten, article thirteen‑a of this chapter): Provided, however, That when in any taxable year beginning on and after January 1, 2009, the taxpayer is entitled to claim credit under this article and article thirteen‑d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the severance tax imposed under article thirteen‑a of this chapter, below forty percent of the amount which would be imposed for such taxable year as determined before application of the credit allowed by section three, article twelve‑b of this chapter and before any other allowable credits against tax and before application of the annual exemption allowed by section ten, article thirteen‑a of this chapter;

(3) Business franchise tax. ‑‑

After application of subdivision (2) of this subsection, any unused credit is next applied to reduce the business franchise tax imposed under article twenty‑three of this chapter (determined after application of the credits against tax provided in section seventeen, article twenty‑three of this chapter, but before application of any other allowable credits against tax). The amount of annual credit allowed will not reduce the business franchise tax, imposed under article twenty‑three of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax: Provided, That for tax years beginning on and after January 1, 2009, the amount of annual credit allowed will not reduce the business franchise tax, imposed under article twenty‑three of this chapter, below forty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax. When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen‑d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the amount of the business franchise tax, imposed under article twenty‑three of this chapter, below fifty percent of the amount which would be imposed for the taxable year (determined after application of the credits against tax provided in section seventeen, article twenty‑three of this chapter, but before application of any other allowable credits against tax): Provided, however, That when in any taxable year beginning on and after January 1, 2009, the taxpayer is entitled to claim credit under this article and article thirteen‑d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the amount of the business franchise tax, imposed under article twenty‑three of this chapter, below forty percent of the amount which would be imposed for the taxable year as determined after application of the credits against tax provided in section seventeen, article twenty‑three of this chapter, but before application of any other allowable credits against tax;

(4) Corporation net income tax. ‑–

After application of subdivision (3) of this subsection, any unused credit is next applied to reduce the corporation net income tax imposed under article twenty‑four of this chapter (determined before application of any other allowable credits against tax). The amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty‑four of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax: Provided, That for tax years beginning on and after January 1, 2009, the amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty‑four of this chapter, below forty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax. When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen‑d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the corporation net income tax, imposed under article twenty‑four of this chapter, below fifty percent of the amount which would be imposed for the taxable year (determined before application of any other allowable credits against tax): Provided, however, That when in any taxable year beginning on and after January 1, 2009, the taxpayer is entitled to claim credit under this article and article thirteen‑d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the corporation net income tax, imposed under article twenty‑four of this chapter, below forty percent of the amount which would be imposed for the taxable year as determined before application of any other allowable credits against tax;

(5) Pass‑through entities. ‑–

(A) If the eligible taxpayer is a limited liability company, small business corporation or a partnership, then any unused credit (after application of subdivisions (2), (3) and (4) of this subsection) is allowed as a credit against the taxes imposed by article twenty‑four of this chapter on owners of the eligible taxpayer on the conduit income directly derived from the eligible taxpayer by its owners. Only those portions of the tax imposed by article twenty‑four of this chapter that are imposed on income directly derived by the owner from the eligible taxpayer are subject to offset by this credit.

(B) The amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty‑four of this chapter, below fifty percent of the amount which would be imposed on the conduit income directly derived from the eligible taxpayer by each owner for such taxable year in the absence of this credit against the taxes (determined before application of any other allowable credits against tax): Provided, That for tax years beginning on and after January 1, 2009, the amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty‑four of this chapter, below forty percent of the amount which would be imposed on the conduit income directly derived from the eligible taxpayer by each owner for such taxable year in the absence of this credit against the taxes as determined before application of any other allowable credits against tax.

(C) When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen‑d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the corporation net income tax imposed on the conduit income directly derived from the eligible taxpayer by each owner below fifty percent of the amount that would be imposed for such taxable year on the conduit income (determined before application of any other allowable credits against tax): Provided, That when in any taxable year beginning on and after January 1, 2009, the taxpayer is entitled to claim credit under this article and article thirteen‑d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the corporation net income tax imposed on the conduit income directly derived from the eligible taxpayer by each owner below forty percent of the amount that would be imposed for such taxable year on the conduit income as determined before application of any other allowable credits against tax;

(6) Small business corporations, limited liability companies, partnerships and other unincorporated organizations shall allocate any unused credit after application of subdivisions (2), (3) and (4) of this subsection among their members in the same manner as profits and losses are allocated for the taxable year; and

(7) No credit is allowed under this article against any tax imposed by article twenty‑one of this chapter.

(c) No carryover to a subsequent taxable year or carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance. Any unused credit is forfeited.

(d) Application for credit required. ‑-

(1) Application required. ‑‑ Notwithstanding any provision of this article to the contrary, no credit is allowed or may be applied under this article for any qualified investment property placed in service or use until the person claiming the credit makes written application to the Tax Commissioner for allowance of credit as provided in this section. This application shall be in the form prescribed by the Tax Commissioner and shall provide the number and type of jobs created, if any, by the manufacturing investment, the average wage rates and benefits paid to employees filling the new jobs and any other information the Tax Commissioner may require. This application shall be filed with the Tax Commissioner no later than the last day for filing the annual return, determined by including any authorized extension of time for filing the return, required under article twenty‑one or twenty‑four of this chapter for the taxable year in which the property to which the credit relates is placed in service or use.

(2) Failure to file. ‑‑ The failure to timely apply the application for credit under this section results in forfeiture of fifty percent of the annual credit allowance otherwise allowable under this article. This penalty applies annually until the application is filed.

(e) (1) Any person or entity undertaking any construction related to any business activity included within North American Industrial Code six‑digit code number 211112, the value of which is an amount equal to or greater than $500,000, shall hire at least seventy‑five percent of employees for said construction from the local labor market, to be rounded off, with at least two employees from outside the local labor market permissible for each employer per project, ‘the local labor market’ being defined as every county in West Virginia and any county outside of West Virginia if any portion of that county is within fifty miles of the border of West Virginia.

(2) Any person or entity unable to employ the minimum number of employees from the local labor market shall inform the nearest office of the bureau of employment programs' division of employment services of the number of qualified employees needed and provide a job description of the positions to be filled.

(3) If, within three business days following the placing of a job order, the division is unable to refer any qualified job applicants to the person or entity engaged in said construction or refers less qualified job applicants than the number requested, then the division shall issue a waiver to the person or entity engaged in said construction stating the unavailability of applicants and shall permit the person or entity engaged in said construction to fill any positions covered by the waiver from outside the local labor market. The waiver shall be either oral or in writing and shall be issued within the prescribed three days. A waiver certificate shall be sent to the person or entity engaged in said construction for its permanent project records.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 2110 - “A Bill to amend and reenact §11‑6F‑2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §11‑13S‑3 and §11‑13S‑4 of said code, all relating to the tax treatment of manufacturing entities generally; amending definition of manufacturing for purposes of special method for appraising qualified capital additions to manufacturing facilities for property tax purposes; amending definition of manufacturing for purposes of manufacturing investment tax credit; amending the formula for calculating credit allowed for manufacturing investment to include Small Arms Ammunition Manufacturing and Small Arms, Ordinance and Ordinance Accessories Manufacturing; and increasing the amount of such allowable credit.”

On motion of Delegate Cowles, the House of Delegates concurred in the amendment of the Senate, with further amendment as follows:

On page three, section two, line forty-six, after the number “2”, by striking out the word “million” and inserting in lieu thereof the word “billion”.

On page three, section two, line forty-nine, after the number “211112”, by striking out the comma and the words “332992 or 332994”.

On page three, section two, line fifty-one, after the number “211112”, by striking out the comma and the words “332992 or 332994”.

On page three, section two, beginning on line fifty-four, by inserting the following and renumbering the remaining paragraphs accordingly:

(B) All real property and personal property, the combined original cost of which exceeds $2 million to be constructed, located or installed at a facility, or a combination of facilities by a single entity or combination of entities engaged in a unitary business, that is or will be classified under North American Industry Classification System with a six digit code number 332992 or 332994.

And,

On page three, section two, on line sixty, after the word “100 million”, by striking out  “or $20 million” and inserting in lieu thereof a comma and “$20 million or $2 million”.

The bill, as amended by the Senate, and further amended by the House, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 583), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:

Nays: Fleischauer.

Absent and Not Voting: Lane, McCuskey, Moore and Rowe.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2110) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            H. B. 2494, Creating a provisional plea process in criminal cases.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page one, 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 section, designated §61-11-22a to read as follows:

Chapter 61. Crimes and their punishment.

ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.

§61-11-22a. Deferred adjudication.

(a) Upon the entry of a guilty plea to a felony or misdemeanor before a circuit or magistrate court of this state entered in compliance with the provisions of West Virginia Rule of Criminal Procedure 11 or Rule 10 of the West Virginia Rules of Criminal Procedure for Magistrate Courts and applicable judicial decisions, the court may, upon motion, defer acceptance of the guilty plea and defer further adjudication thereon and release the defendant upon such terms and conditions as the court deems just and necessary. Terms and conditions may include, but are not limited to, periods of incarceration, drug and alcohol treatment, counseling and participation in programs offered under articles eleven-a, eleven-b and eleven-c, chapter sixty-two of this code.

(b) If the offense to which the plea of guilty is entered is a felony, the circuit court may defer adjudication for a period not to exceed five years. If the offense to which the plea of guilty is entered is a misdemeanor, the court may defer adjudication for a period not to exceed two years.

(c) If the defendant complies with the court-imposed terms and conditions he or she shall be permitted to withdraw his or her plea of guilty and the matter dismissed or, as may be agreed upon by the court and the parties, enter a plea of guilty or no contest to a lesser offense.

(d) In the event the defendant is alleged to have violated the terms and conditions imposed upon him or her by the court during the period of deferral the prosecuting attorney may file a motion to accept the defendant’s plea of guilty and, following notice, a hearing shall be held on the matter.

(e) In the event the court determines that there is reasonable cause to believe that the defendant violated the terms and conditions imposed at the time the plea was entered, the court may accept the defendant’s plea to the original offense and impose a sentence in the court’s discretion in accordance with the statutory penalty of the offense to which the plea of guilty was entered or impose such other terms and conditions as the court deems appropriate.

(f) The procedures set forth in this section are separate and distinct from that set forth in West Virginia Rule of Criminal Procedure 11(a)(2).

            And,

            By amending the title of the bill to read as follows:

            H. B. 2494 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-11-22a, relating to codifying deferred adjudication process for persons charged with felony and misdemeanor offenses in circuit and magistrate court; authorizing courts, upon motion, to defer acceptance and adjudication of entered guilty pleas for certain periods based upon severity of offense; authorizing court to impose such conditions and terms as it deems just and necessary as a condition of participation; authorizing periods of incarceration and participation in referenced programs as conditions of participation in the deferred adjudication process; authorizing acceptance of previously entered guilty plea upon violation of the terms and conditions of deferral; authorizing court to impose additional terms and conditions upon defendant if violation occurs; and clarifying that procedure hereby authorized is distinct from conditional plea under Rule 11(a)(2) of the West Virginia Rules of Criminal Procedure.”

On motion of Delegate Cowles, the House of Delegates concurred in the Senate amendments with further amendment on page one, section twenty-two-a, line ten, by striking out the word “five” and inserting in lieu thereof the word “three”.

            The bill, as amended by the Senate, and further amended by the House, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 584), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent and Not Voting: Lane, McCuskey, Moore and Rowe.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2494) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 2665, Relating to participation in Motor Vehicle Alcohol Test and Lock Program.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration.

            The following Senate amendments were reported by the Clerk:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 5. SERIOUS TRAFFIC OFFENSES.

§17C-5-2b. Deferral of further proceedings for certain first offenses upon condition of participation in motor vehicle alcohol test and lock program; procedure on charge of violation of conditions.

(a) Except as provided in subsections (g) of this section, whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to driving under the influence alcohol, any controlled substance or any other drug:

(1) Notifies the court within thirty days of his or her arrest of his or her intention to participate in a deferral pursuant to this section; and

(2) Pleads guilty to or is found guilty of driving under the influence of alcohol under subsection (d), section two of this article, the court, without entering a judgment of guilt and with the consent of the accused, shall defer further proceedings and, notwithstanding any provisions of this code to the contrary, place him or her on probation, which conditions shall include that he or she successfully completes the Motor Vehicle Alcohol Test and Lock Program as provided in section three-a, article five-a of this chapter. Participation therein shall be for a period of at least one hundred and sixty five days after he or she has served the fifteen days of license suspension imposed pursuant to section two, article five-a of this chapter.

(b) A defendant=s election to participate in deferral under this section shall constitute a waiver of his or her right to an administrative hearing as provided in section two, article five-a of this chapter.

(c) (1) If the prosecuting attorney files a motion alleging that the defendant during the period of the Motor Vehicle Alcohol Test and Lock program has been removed therefrom by the Division of Motor Vehicles, or has failed to successfully complete the program before making a motion for dismissal pursuant to subsection (d) of this section, the court may issue such process as is necessary to bring the defendant before the court.

(2) A motion alleging such violation filed pursuant to subdivision (1) of this subsection must be filed during the period of the Motor Vehicle Alcohol Test and Lock Program or, if filed thereafter, must be filed within a reasonable time after the alleged violation was committed.

(3) When the defendant is brought before the court, the court shall afford the defendant an opportunity to be heard. If the court finds that the defendant has been rightfully removed from the Motor Vehicle Alcohol Test and Lock Program by the Division of Motor Vehicles, the court may order, when appropriate, that the deferral be terminated, and thereupon enter an adjudication of guilt and proceed as otherwise provided.

(4) Should the defendant fail to complete or be removed from the Motor Vehicle Alcohol Test and Lock Program, the defendant waives the appropriate statute of limitations and the defendant’s right to a speedy trial under any applicable federal or state constitutional provisions, statutes or rules of court during the period of enrollment in the program.

(d) When the defendant shall have completed satisfactorily the Motor Vehicle Alcohol Test and Lock Program and complied with its conditions, the defendant may move the court for an order dismissing the charges. This motion shall be supported by affidavit of the defendant and by certification of the Division of Motor Vehicles that the defendant has successfully completed the Motor Vehicle Alcohol Test and Lock Program. A copy of the motion shall be served on the prosecuting attorney who shall within thirty days after service advise the judge of any objections to the motion, serving a copy of such objections on the defendant or the defendant’s attorney. If there are no objections filed within the thirty-day period, the court shall thereafter dismiss the charges against the defendant. If there are objections filed with regard to the dismissal of charges, the court shall proceed as set forth in subsection (c) of this section.

(e) Except as provided herein, unless a defendant adjudicated pursuant to this subsection be convicted of a subsequent violation of this article, discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime except for those provided in article five-a of this chapter. Except as provided in subsection (k), (l) and (m), section two of this article regarding subsequent offenses, the effect of the dismissal and discharge shall be to restore the person in contemplation of law to the status he or she occupied prior to arrest and trial. No person as to whom a dismissal and discharge have been effected shall be thereafter held to be guilty of perjury, false swearing, or otherwise giving a false statement by reason of his or her failure to disclose or acknowledge his or her arrest or trial in response to any inquiry made of him or her for any purpose other than any inquiry made in connection with any subsequent offense as that term is defined in subsection (m), section two of this article.

(f) There may be only one discharge and dismissal under this section with respect to any person.

(g) No person shall be eligible for dismissal and discharge under this section: (1) In any prosecution in which any violation of any other provision of this article has been charged; (2) if the person holds a commercial driver’s license or operates commercial motor vehicle(s),; or (3) if the person has previously had his or her driver=s license revoked under section two-a of this article or under any statute of the United States or of any state relating to driving under the influence alcohol, any controlled substance or any other drug; or (4) if the person refused the secondary chemical test pursuant to section seven of this article.

(h) (1) After a period of not less than one year which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this section, the person may apply to the court for an order to expunge from all official records all recordations of his or her arrest, trial, and conviction, pursuant to this section except for those maintained by the Division of Motor Vehicles: Provided, That any person who has previously been convicted of a felony may not make a motion for expungement pursuant to this section.

(2) If the prosecuting attorney objects to the expungement, the objections shall be filed with the court within thirty days after service of a motion for expungement and copies of the objections shall be served on the defendant or the defendant’s attorney.

(3) If the objections are filed, the court shall hold a hearing on the objections, affording all parties an opportunity to be heard. If the court determines after a hearing that the person during the period of his or her probation and during the period of time prior to his or her application to the court under this subsection has not been guilty of any serious or repeated violation of the conditions of his or her probation, it shall order the expungement.

(i) Notwithstanding any provision of this code to the contrary, any person prosecuted for a violation of subsection (d) (e), section two, article five of this chapter whose case is disposed of pursuant to the provisions of this section shall be liable for any court costs assessable against a person convicted of a violation of subsection (j) (k), section two, article five of this chapter. Payment of such costs may be made a condition of probation. The costs assessed pursuant to this subsection, whether as a term of probation or not, shall be distributed as other court costs in accordance with section two, article three, chapter fifty; section four, article two‑a, chapter fourteen; section four, article twenty‑nine, chapter thirty; and sections two, seven and ten, article five, chapter sixty‑two of this code.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 2665 - “A Bill to amend and reenact §17C-5-2b of the Code of West Virginia, 1931, as amended, relating to deferral of further proceedings for certain first offenses of driving under the influence; making ineligible for the deferral program persons who refused the secondary chemical test; and making technical corrections.”

Delegate Cowles moved that the House of Delegates refuse to concur in the Senate amendments and request the Senate to recede therefrom.

            On this motion, Delegate Sponaugle demanded the yeas and nays, which demand was sustained.

            The yeas and nays having been ordered, they were taken (Roll No. 585), and there were--yeas 13, nays 83, absent and not voting 4, with the yeas and absent and not voting being as follows:

Yeas: Speaker Armstead, Ambler, Anderson, Canterbury, Cooper, Cowles, Gearheart, Hanshaw, Ireland, Miller, O’Neal, Romine and Upson.

Absent and Not Voting: Lane, McCuskey, Moore and Rowe.

            So, a majority of the members present and voting not having voted in the affirmative, the motion was rejected.

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 586), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent and Not Voting: Lane, McCuskey, Moore and Rowe.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2665) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 2897, Young Entrepreneur Reinvestment Act.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration.

            The following Senate amendments were reported by the Clerk:

On page one, 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 section, designated §59-1-2c; and by adding thereto a new section, designated §59-1-2d to read as follows:

ARTICLE 1. FEES AND ALLOWANCES.

§59-1-2c. Young Entrepreneur Reinvestment Act; certain fees waived.

(a) Beginning on July 1, 2016, a person who is under the age of thirty who resides within West Virginia is exempt from paying the fees provided in section two of this article for filing:

(1) Articles of incorporation of a domestic, for-profit corporation, for which he or she is an incorporator;

(2) Articles of incorporation of a domestic, nonprofit corporation for which he or she is an incorporator;

(3) Articles of organization of a domestic limited liability company, for which he or she is a member;

(4) Agreement of a domestic general partnership, for which he or she is a partner; or

(5) Certificate of a domestic limited partnership, for which he or she is a partner.

(b) This section is effective until and through June 30, 2018. After June 30, 2018, this section is no longer in force and effect.

§59‑1‑2d. Voluntary donation of certain refunds.

The Secretary of State shall provide a mechanism by which any overpayment of $25 or less of any fee authorized by this or any other chapter of this code to the Secretary of State may be deposited in the West Virginia Children’s Trust Fund authorized by section four hundred one, article two, chapter forty-nine of this code: Provided, That the person due the refund must voluntarily and affirmatively choose to donate the amount of the refund to the West Virginia Children’s Trust Fund.

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 2897 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §59-1-2c and §59-1-2d, all relating to fees paid to the Secretary of State; creating Young Entrepreneur Reinvestment Act; waiving certain fees for individuals under thirty who create certain business organizations; expiring the waiver of those fees; requiring the Secretary of State to develop a mechanism for the deposit of the overpayment of certain fees into the Children’s Trust Fund; and requiring that the individual due the refund voluntarily and affirmatively chooses to donate the amount of the overpayment.”

            On motion of Delegate Cowles, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4001, Relating to candidates or candidate committees for legislative office disclosing contributions.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration.

            The following Senate amendments were reported by the Clerk:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 8. REGULATIONS AND CONTROL OF ELECTIONS.

§3-8-15. Disclosure of fund-raising events during legislative session.

(a) In addition to other reporting required under this article, any current Governor, State Senator, or member of the House of Delegates who has declared his or her candidacy for election and who has a fund-raising event, as defined in section one-a of this article, while the Legislature is in Regular Session, shall disclose the existence of the event and the receipt of contributions, including the source and amounts, in accordance with the following schedule:

(1) If the fund-raising event occurs during the first thirty days of the Regular Session, within ten calendar days after the thirtieth day of the Regular Session; or

(2) If the fund-raising event occurs between days thirty-one and sixty of the Regular Session, within ten calendar days after the sixtieth day of the Regular Session.

(b) If any disclosure deadline set forth in subsections (a) or (b) falls within ten calendar days of a regularly scheduled reporting deadline under this article, then the deadline is satisfied by the filing of the regularly scheduled report. 

(c) The reporting requirements under this section also apply to current Governors, State Senators or members of the House of Delegates who fund-raise in order to retire or pay-off debt of a campaign account while the Legislature is in regular session.

(d) The Secretary of State shall prepare a form for disclosure of these contributions and publish the information on the Secretary of State’s website within one business day of the Secretary of State receiving the completed form: Provided, That in the alternative, the Secretary of State is authorized to establish a means for electronic filing and disclosure.

(e) Pursuant to article three, chapter twenty-nine-a of this code, the Secretary of State may propose rules and emergency rules for legislative approval relating to the creation and maintenance of a publically accessible database available on the Secretary of State’s website; the establishment of forms and procedures for submission of information to the Secretary of State; and for other procedures and policies consistent with this section.

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B.  4001 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §3-8-15, relating to certain disclosures of fund-raising events while Legislature is in Regular Session; requiring current Governors, State Senators and members of the House of Delegates who have declared candidacy for election to report existence of and amounts of contributions received at fund-raising events held while Legislature in regular session; setting reporting schedule; providing exception to reporting deadline in certain cases; making reporting requirement applicable to current legislators who hold fund-raising events while Legislature is in Regular Session; requiring Secretary of State to create a form for disclosure; requiring Secretary of State to timely publish information on the Secretary of State’s website; authorizing Secretary of State to establish a means for electronic filing and disclosure in the alternative; and authorizing Secretary of State to promulgate certain legislative and emergency rules.”

            On motion of Delegate Cowles, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4237, Supporting and Strengthening Families Act.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On pages one and two, section two,  by striking out all of subdivision (2) and inserting in lieu thereof a new subdivision, designated subdivision (2), to read as follows:

“(2) ‘Qualified nonprofit organization’ means a charitable or religious institution that is exempt from federal income taxation under Section 501(a) of the Internal Revenue Code of 1986, as an organization described by Section 501(c)(3) of that code, which assists the parent or legal guardian of a child with the process of providing for the temporary care of a child through the execution of a power of attorney as described in this section.”

And,

On page six, section four, after subsection (b), by adding thereto a new subsection, designated subsection (c), to read as follows:

“(c) A copy of each power of attorney executed pursuant to this article shall be retained by the qualified nonprofit organization for a period of three years following the conclusion of the power of attorney.  The qualified nonprofit organization shall, upon request, make these records available to the Department of Health and Human Resources.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 587), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent and Not Voting: Lane, McCuskey, Moore and Rowe.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4237) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4314, Prohibiting the sale of powdered or crystalline alcohol.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page seven, section thirty-three, line one, by striking out the words “consists solely or primarily of” and inserting in lieu thereof “is comprised of ninety percent or more”. 

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4314 - “A Bill to amend and reenact §60-1-5 of the Code of West Virginia, 1931, as amended; to amend and reenact §60-3-11 of said code; to amend and reenact §60-6-7 and §60-6-8 of said code; and to amend said code by adding thereto a new section, designated §61-10-33, all relating to prohibiting the sale of powdered or crystalline alcohol and pure caffeine products; defining terms; prohibiting the commissioner from listing or stocking powdered alcohol in inventory; creating a criminal offense for anyone who manufactures or sells, aids or abets in the manufacture or sale of powdered alcohol, or possesses, uses or in any other manner provides or furnishes powdered alcohol; making a second and subsequent offense a felony and providing for increased penalties; creating a  criminal offense for any licensee who sells, possesses, possesses for sale, furnishes or provides any powdered alcohol; making a second and subsequent offense a felony and providing for increased penalties; creating a criminal offense for the sale and possession of pure caffeine products; defining relevant terms; providing exclusions; and providing penalties.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 588), and there were--yeas 92, nays 3, absent and not voting 5, with the nays and absent and not voting being as follows:

Nays: Ihle, McGeehan and Pushkin.

Absent and Not Voting: Lane, McCuskey, Moore, Reynolds and Rowe.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4314) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            H. B. 4334, Clarifying the requirements for a license to practice as an advanced practice registered nurse and expanding prescriptive authority.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the following Senate amendments were reported by the Clerk:

On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:

“That §30-15-1, §30-15-2, §30-15-3, §30-15-4, §30-15-5, §30-15-6, §30-15-7, §30-15-7a, §30-15-7b, §30-15-7c and §30-15-8, of the Code of West Virginia, 1931, as amended, be repealed; that §16-5-19 of said code be amended and reenacted; that §30-7-1, §30-7-2, §30-7-4, §30-7-6, §30-7-7, §30-7-15a, §30-7-15b and §30-7-15c of said code be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §30-7-15d and §30-7-15e, all to read as follows:

CHAPTER 16.  PUBLIC HEALTH.

ARTICLE 5. VITAL STATISTICS.

§16-5-19. Death registration.

(a) A certificate of death for each death which occurs in this state shall be filed with the section of vital statistics, or as otherwise directed by the state Registrar, within five days after death, and prior to final disposition, and shall be registered if it has been completed and filed in accordance with this section.

(1) If the place of death is unknown, but the dead body is found in this state, the place where the body was found shall be shown as the place of death.

(2) If the date of death is unknown, it shall be approximated. If the date cannot be approximated, the date found shall be shown as the date of death.

(3) If death occurs in a moving conveyance in the United States and the body is first removed from the conveyance in this state, the death shall be registered in this state and the place where it is first removed shall be considered the place of death.

(4) If death occurs in a moving conveyance while in international waters or air space or in a foreign country or its air space and the body is first removed from the conveyance in this state, the death shall be registered in this state but the certificate shall show the actual place of death insofar as can be determined.

(5) In all other cases, the place where death is pronounced shall be considered the place where death occurred.

(b) The funeral director or other person who assumes custody of the dead body shall:

(1) Obtain the personal data from the next of kin or the best qualified person or source available including the deceased person's social security number or numbers, which shall be placed in the records relating to the death and recorded on the certificate of death;

(2) Within forty-eight hours after death, provide the certificate of death containing sufficient information to identify the decedent to the physician nurse responsible for completing the medical certification as provided in subsection (c) of this section; and

(3) Upon receipt of the medical certification, file the certificate of death: Provided, That for implementation of electronic filing of death certificates, the person who certifies to cause of death will be responsible for filing the electronic certification of cause of death as directed by the state Registrar and in accordance with legislative rule.

(c) The medical certification shall be completed and signed within twenty-four hours after receipt of the certificate of death by the physician or advance practice registered nurse in charge of the patient's care for the illness or condition which resulted in death except when inquiry is required pursuant to chapter sixty-one, article twelve or other applicable provisions of this code.

(1) In the absence of the physician or advance practice registered nurse or with his or her approval, the certificate may be completed by his or her associate physician, any physician who has been placed in a position of responsibility for any medical coverage of the decedent, the chief medical officer of the institution in which death occurred, or the physician who performed an autopsy upon the decedent, provided inquiry is not required pursuant to chapter sixty-one, article twelve of this code.

(2) The person completing the cause of death shall attest to its accuracy either by signature or by an approved electronic process.

(d) When inquiry is required pursuant to article twelve, chapter sixty one, or other applicable provisions of this code, the state Medical Examiner or designee or county medical examiner or county coroner in the jurisdiction where the death occurred or where the body was found shall determine the cause of death and shall complete the medical certification within forty-eight hours after taking charge of the case.

(1) If the cause of death cannot be determined within forty-eight hours after taking charge of the case, the medical examiner shall complete the medical certification with a “Pending” cause of death to be amended upon completion of medical investigation.

(2) After investigation of a report of death for which inquiry is required, if the state Medical Examiner or designee or county medical examiner or county coroner decline jurisdiction, the state Medical Examiner or designee or county medical examiner or county coroner may direct the decedent's family physician or the physician who pronounces death to complete the certification of death: Provided, That the physician is not civilly liable for inaccuracy or other incorrect statement of death unless the physician willfully and knowingly provides information he or she knows to be false.

(e) When death occurs in an institution and the person responsible for the completion of the medical certification is not available to pronounce death, another physician may pronounce death. If there is no physician available to pronounce death, then a designated licensed health professional who views the body may pronounce death, attest to the pronouncement by signature or an approved electronic process, and, with the permission of the person responsible for the medical certification, release the body to the funeral director or other person for final disposition: Provided, That if the death occurs in an institution during court-ordered hospitalization, in a correctional facility or under custody of law-enforcement authorities, the death shall be reported directly to a medical examiner or coroner for investigation, pronouncement and certification.

(f) If the cause of death cannot be determined within the time prescribed, the medical certification shall be completed as provided by legislative rule. The attending physician or medical examiner, upon request, shall give the funeral director or other person assuming custody of the body notice of the reason for the delay, and final disposition of the body may not be made until authorized by the attending physician, medical examiner or other persons authorized by this article to certify the cause of death.

(g) Upon receipt of autopsy results, additional scientific study, or where further inquiry or investigation provides additional information that would change the information on the certificate of death from that originally reported, the certifier, or any State Medical Examiner who provides such inquiry under authority of article twelve, chapter sixty-one of this code shall immediately file a supplemental report of cause of death or other information with the section of vital statistics to amend the record, but only for purposes of accuracy.

(h) When death is presumed to have occurred within this state but the body cannot be located, a certificate of death may be prepared by the state Registrar only upon receipt of an order of a court of competent jurisdiction which shall include the finding of facts required to complete the certificate of death. The certificate of death will be marked “Presumptive” and will show on its face the date of death as determined by the court and the date of registration, and shall identify the court and the date of the order.

(i) The local registrar shall transmit each month to the county clerk of his or her county a copy of the certificates of all deaths occurring in the county, and if any person dies in a county other than the county within the state in which the person last resided prior to death, then the state Registrar shall furnish a copy of the death certificate to the clerk of the county commission of the county where the person last resided, from which copies the clerk shall compile a register of deaths, in a form prescribed by the state Registrar. The register shall be a public record.

CHAPTER 30.  PROFESSIONS AND OCCUPATIONS.

ARTICLE 7. REGISTERED PROFESSIONAL NURSES.

§30-7-1. Definitions.

As used in this article the term:

(a) The practice of ‘advanced practice registered nurse’ is a registered nurse who has acquired advanced clinical knowledge and skills preparing him or her to provide direct and indirect care to patients, who has completed a board-approved graduate-level education program and who has passed a board-approved national certification examination. An advanced practice registered nurse shall meet all the requirements set forth by the board by rule for an advance practice registered nurse which shall include, at a minimum, a valid license to practice as a certified registered nurse anesthetist, a certified nurse midwife, a clinical nurse specialist or a certified nurse practitioner.

(a) ‘Advanced practice registered nurse’ means a registered nurse who has acquired advanced clinical knowledge and skills preparing him or her to provide direct and indirect care to patients as a certified nurse practitioner, certified nurse-midwife, certified registered nurse anesthetist, or clinical nurse specialist, who has completed a board-approved graduate-level education program and who has passed a board-approved national certification examination.

(b) ‘Board’ means the West Virginia Board of Examiners for Registered Professional Nurses;

(c) ‘Collaborative relationship’ means a working relationship, structured through a written agreement, in which an advanced practice registered nurse may prescribe drugs in collaboration with a qualified physician;

(c) (d) The practice of ‘Practice of registered professional nursing’ or ‘registered professional nursing’ means the performance for compensation of any service requiring substantial specialized judgment and skill based on knowledge and application of principles of nursing derived from the biological, physical and social sciences, such as responsible supervision of a patient requiring skill in observation of symptoms and reactions and the accurate recording of the facts, or the supervision and teaching of other persons with respect to such principles of nursing, or in the administration of medications and treatments as prescribed by a licensed physician, or a licensed dentist or a licensed advanced practice registered nurse, or the application of such nursing procedures as involve understanding of cause and effect in order to safeguard life and health of a patient and others; and

(d) ‘Temporary permit’ means a permit authorizing the holder to practice registered professional nursing in this state until such permit is no longer effective or the holder is granted a license by the West Virginia State Board of Examiners for Registered Professional Nurses.

§30-7-2. License required to practice.

(a) In order to safeguard life and health, any person practicing or offering to practice registered professional nursing in this state for compensation shall hereafter be required to submit evidence that he or she is qualified so to practice, and shall be licensed as hereinafter provided. After June 30, 1965, It shall be is unlawful for any person not licensed under the provisions of this article to practice or to offer to practice registered professional nursing in this state, or to use any title, sign, card or device to indicate that such person is a registered professional nurse: Provided, That any professional nurse holding an active, unencumbered license to practice in another state, who accompanies a patient to whom he or she administers nursing care while such patient is in transit or being transported into, out of, or through this state, may practice without a license issued under this article with the following limitations: (a) Such nurse may only administer nursing care to the patient whom they are accompanying in this state; and (b) under no circumstances is any such nurse authorized to practice nursing in this state for longer than forty-eight hours within any three-month period; and (c) under no circumstances shall any such nurse hold him or herself out as a registered professional nurse licensed in this state. Such forty-eight hour period shall commence and run from the time such nurse first enters the borders of this state in the company of his or her patient and therefrom run continuously, whether or not such nurse dispenses nursing care, until such forty-eight hour period has elapsed.

(b) To practice as an advanced practice registered nurse in this state, a person must have a valid advanced practice registered nurse license issued by the board. It is unlawful for any person to practice or offer to practice as an advanced practice registered nurse, to use any title, sign, card or device to indicate or give the impression that such person is an advanced practice registered nurse or to practice as, perform the role of, or use any title, sign, card or device to indicate that the person is a certified registered nurse anesthetist, certified nurse-midwife, clinical nurse specialist or certified nurse practitioner, unless that person is currently licensed by the board as an advanced practice registered nurse.

§30-7-4. Organization and meetings of board; quorum; powers and duties generally; executive secretary; funds.

The board shall meet at least once each year and shall elect from its members a president and a secretary. The secretary shall also act as treasurer of the board. The board may hold such other meetings during the year as it may deem necessary to transact its business. A majority, including one officer, of the board shall constitute a quorum at any meeting. The board is hereby authorized and empowered to:

(a) Adopt and, from time to time, amend such rules and regulations, not inconsistent with this article, as may be necessary to enable it to carry into effect the provisions of this article;

(b) Prescribe standards for educational programs preparing persons for licensure to practice registered professional nursing under this article;

(c) Provide for surveys of such educational programs at such time as it may deem necessary;

(d) Accredit such educational programs for the preparation of practitioners of registered professional nursing as shall meet the requirements of this article and of the board;

(e) Deny or withdraw accreditation of educational programs for failure to meet or maintain prescribed standards required by this article and by the board;

(f) Examine, license and renew the licenses of duly qualified applicants;

(g) Conduct hearings upon charges calling for discipline of a licensee or revocation or suspension of a license;

(h) Keep a record of all proceedings of the board;

(i) Make a biennial report to the Governor and the Legislative Oversight Commission for Health and Human Resources Accountability;

(j) Appoint and employ a qualified person, who shall not be a member of the board, to serve as executive secretary to the board;

(k) Define the duties and fix the compensation for the executive secretary; and

(l) Employ such other persons as may be necessary to carry on the work of the board.

The executive secretary shall possess all of the qualifications prescribed in section three for members of the board, except that he or she shall (a) have had at least eight years of experience in the practice of registered professional nursing since graduation from a college or university, at least five of which shall have been devoted to the teaching in or to the administration of an educational program for the preparation of practitioners of registered nursing, or to a combination of such teaching and administration, and (b) shall have been actively engaged in the practice of registered professional nursing for at least five years preceding his or her appointment by the board.

All fees and other moneys collected by the board pursuant to the provisions of this article shall be kept in a separate fund and expended solely for the purpose of this article. No part of this special fund shall revert to the General Funds of this state. The compensation provided by this article and all expenses incurred under this article shall be paid from this special fund. No compensation or expense incurred under this article shall be a charge against the General Funds of this state.

§30-7-6. Qualifications; licensure; fees; temporary permits.

(a) To obtain a license to practice registered professional nursing, an applicant for such license shall submit to the board written evidence, verified by oath, that he or she: (a) (1) Is of good moral character; (b) (2) has completed an approved four-year high school course of study or the equivalent thereof, as determined by the appropriate educational agency; and (c) (3) has completed an accredited program of registered professional nursing education and holds a diploma of a school accredited by the board.

(b) The applicant shall also be required to pass a written examination in such subjects as the board may determine. Each written examination may be supplemented by an oral examination. Upon successfully passing such examination or examinations, the board shall issue to the applicant a license to practice registered professional nursing. The board shall determine the times and places for examinations. In the event an applicant shall have failed to pass examinations on two occasions, the applicant shall, in addition to the other requirements of this section, present to the board such other evidence of his or her qualifications as the board may prescribe.

(c) The board may, upon application, issue a license to practice registered professional nursing by endorsement to an applicant who has been duly licensed as a registered professional nurse under the laws of another state, territory or foreign country if in the opinion of the board the applicant meets the qualifications required of registered professional nurses at the time of graduation.

(d) The board may, upon application and proper identification determined by the board, issue a temporary permit to practice registered professional nursing by endorsement to an applicant who has been duly licensed as a registered professional nurse under the laws of another state, territory or foreign country. Such temporary permit authorizes the holder to practice registered professional nursing in this state while the temporary permit is effective. A temporary permit shall be effective for ninety days, unless the board revokes such permit prior to its expiration, and such permit may not be renewed. Any person applying for a temporary license under the provisions of this paragraph shall, with his or her application, pay to the board a nonrefundable fee of $10.

(e) Any person holding a valid license designated as a ‘waiver license’ may submit an application to the board for a license containing no reference to the fact that such person has theretofore been issued such ‘waiver license.’ The provisions of this section relating to examination and fees and the provisions of all other sections of this article shall apply to any application submitted to the board pursuant to the provisions of this paragraph.

(f) Any person applying for a license to practice registered professional nursing under the provisions of this article shall, with his or her application, pay to the board a fee of $40: Provided, That the fee to be paid for the year commencing July 1, 1982, shall be $70: Provided, however, That the board in its discretion may, by rule or regulation, decrease either or both said license fees. In the event it shall be necessary for the board to reexamine any applicant for a license, an additional fee shall be paid to the board by the applicant for reexamination: Provided further, That the total of such additional fees shall in no case exceed $100 for any one examination.

(g) Any person holding a license heretofore issued by the West Virginia state Board of Examiners for Registered Nurses and which license is valid on the date this article becomes effective shall be deemed to be duly licensed under the provisions of this article for the remainder of the period of any such license heretofore issued. Any such license heretofore issued shall also, for all purposes, be deemed to be a license issued under this article and to be subject to the provisions hereof.

(h) The board shall, upon receipt of a duly executed application for licensure and of the accompanying fee of $70, issue a temporary permit to practice registered professional nursing to any applicant who has received a diploma from a school of nursing approved by the board pursuant to this article after the date the board last scheduled a written examination for persons eligible for licensure: Provided, That no such temporary permit shall be renewable nor shall any such permit be valid for any purpose subsequent to the date the board has announced the results of the first written examination given by the board following the issuance of such permit.

(i) To obtain a license to practice as an advanced practice registered nurse, an applicant must submit a written application, verified by oath, to the board together with an application fee established by the board through an authorized legislative rule. The requirements for a license to practice as an advanced practice registered nurse in this state are listed below and must be demonstrated to the board through satisfactory evidence submitted with the application for a license:

(1) The applicant must be licensed in good standing with the board as a registered professional nurse;

(2) The applicant must have satisfactorily completed a graduate-level program accredited by a national accreditation body that is acceptable to the board; and

(3) The applicant must be currently certified by a national certification organization, approved by the board, in one or more of the following nationally recognized advance practice registered nursing roles: certified registered nurse anesthetist, certified nurse-midwife, clinical nurse specialist or certified nurse practitioner.

§30-7-7. Qualifications and licensure of persons not citizens of United States.

            (a) The board may, upon application, issue a license to practice registered professional nursing by endorsement to any person who is not a citizen of the United States of America if such person: (a) Has been duly licensed as a registered professional nurse under the laws of another state, territory or foreign country, and (b) shall, in any such state, territory or foreign country, have passed a written examination in the English language which, in the opinion of the board, is comparable in content and scope to the type of written examination which is authorized in the second paragraph that is required in subsection (b) of section six of this article.

(b) All other provisions of this article shall be applicable to any application for or license issued pursuant to this section.

§30-7-15a. Prescriptive authority for prescription drugs; coordination with Board of Pharmacy; rule-making authority.

(a) The board may, in its discretion, authorize an advanced practice registered nurse to prescribe prescription drugs in a collaborative relationship with a physician licensed to practice in West Virginia and in accordance with this article and all other applicable state and federal laws. An authorized advanced practice registered nurse may write or sign prescriptions or transmit prescriptions verbally or by other means of communication.

(b) For purposes of this section an agreement to a collaborative relationship for prescriptive practice between a physician and an advanced practice registered nurse shall be set forth in writing. Verification of the agreement shall be filed with the board by the advanced practice registered nurse. The board shall forward a copy of the verification to the Board of Medicine and or the Board of Osteopathic Medicine. Collaborative agreements shall include, but are not limited to, the following:

(1) Mutually agreed upon written guidelines or protocols for prescriptive authority as it applies to the advanced practice registered nurse's clinical practice;

(2) Statements describing the individual and shared responsibilities of the advanced practice registered nurse and the physician pursuant to the collaborative agreement between them;

(3) Periodic and joint evaluation of prescriptive practice; and

(4) Periodic and joint review and updating of the written guidelines or protocols.

(c) (b) The board shall promulgate legislative rules in accordance with the provisions of chapter twenty‑nine‑a of this code governing the eligibility and extent to which an advanced practice registered nurse may prescribe drugs. Such rules shall provide, at a minimum, a state formulary classifying those categories of drugs which shall not be prescribed by advanced practice registered nurse including, but not limited to, Schedules I and II of the Uniform Controlled Substances Act, antineoplastics, radiopharmaceuticals and general anesthetics. Drugs listed under Schedule III shall be limited to a seventy‑two hour thirty day supply without refill. In addition to the above referenced provisions and restrictions and pursuant to a collaborative agreement as set forth in subsections (a) and (b) of this section fifteen-b of this article, the rules shall permit the prescribing of an annual supply of any drug, with the exception of controlled substances, which is prescribed for the treatment of a chronic condition, other than chronic pain management. For the purposes of this section, a ‘chronic condition’ is a condition which lasts three months or more, generally cannot be prevented by vaccines, can be controlled but not cured by medication and does not generally disappear. These conditions, with the exception of chronic pain, include, but are not limited to, arthritis, asthma, cardiovascular disease, cancer, diabetes, epilepsy and seizures, and obesity. The prescriber authorized in this section shall note on the prescription the chronic disease being treated.

(c) The board may promulgate emergency rules to implement the provisions of this article pursuant to section fifteen, article three, chapter twenty-nine-a of this code.

 (d) The board shall consult with other appropriate boards for the development of the formulary.

 (e) (d) The board shall transmit to the Board of Pharmacy a list of all advanced practice registered nurses with prescriptive authority. The list shall include:

(1) The name of the authorized advanced practice registered nurse;

(2) The prescriber's identification number assigned by the board; and

(3) The effective date of prescriptive authority.

§30-7-15b. Eligibility for prescriptive authority; application; fee; collaborative relationships and agreements.

(a) An advanced practice registered nurse who applies for authorization to prescribe drugs shall be eligible to apply for authorization to prescribe drugs pursuant to section fifteen-a of this article after satisfying the following requirements:

(a) (1) Be licensed and certified in West Virginia as an advanced practice registered nurse;

(b) (2) Not be less than Be at least eighteen years of age;

(c) (3) Provide the board with evidence of successful completion of Have completed forty-five contact hours of education in pharmacology and clinical management of drug therapy under a program approved by the board, fifteen hours of which shall be have been completed within the two-year period immediately before the date of application prior to entering into a prerequisite collaborative relationship;

(d) (4) Provide the board with evidence that he or she is a person of good moral character and not addicted to alcohol or the use of controlled substances; and

(5) Does not have his or her advanced practice registered nursing license, certification or registration in any jurisdiction suspended, limited or revoked; and

(e) (6) Submit a completed, notarized application to the board, accompanied by a fee as established by the board by rule.

(b) The board shall authorize an applicant to prescribe prescription drugs under the terms of a collaborative agreement and in accordance with section fifteen-a of this article and applicable legislative rules if the applicant has met the prerequisites of subsection (a) of this section and the following additional prerequisites are satisfied:

(1) The board is satisfied that the collaborating physician is licensed in good standing;

(2) The collaborative agreement is sufficient in form;

(3) The applicant has completed the education requirements; and

(4) The applicant has submitted a completed application on forms developed by the board and paid an application fee established by the board in legislative rule. 

(c) A collaborative agreement for a collaborative relationship for prescriptive practice between a physician and an advanced practice registered nurse shall be set forth in writing and include, but not be limited to, the following:

(1) Mutually agreed upon written guidelines or protocols for prescriptive authority as it applies to the advanced practice registered nurse’s clinical practice;

(2) Statements describing the individual and shared responsibilities of the advanced practice registered nurse and the collaborating physician;

(3) Periodic and joint evaluation of prescriptive practice; and

(4) Periodic joint review and updating of the written guidelines or protocols.

(d) Verification of a collaborative agreement shall be filed with the board by the advanced practice registered nurse with documentation of completion of the education requirements described in subsection (a) of this section. The board shall forward a copy of the verified agreement to the board through which the collaborative physician is licensed.

(e) The board shall, upon application, authorize an advanced practice registered nurse to prescribe prescription drugs in accordance with section fifteen-a of this article without the further requirement of a collaborative agreement if the applicant has satisfied the following prerequisites:

(1) Has practiced at least three years in a duly-documented collaborative relationship with granted prescriptive authority;

(2) Licensed in good standing with the board; and

(3) Has submitted a completed application on forms developed by the board and paid an application fee established by the board in legislative rule.

(f) Notwithstanding the provisions of subsection (e) of this section, the board may require an advanced practice registered nurse to practice in a collaborative agreement if the board determines, by order arising out of the board’s complaint process, that a collaborative relationship is necessary for the rehabilitation of a licensee or for protection of the public.

§30-7-15c. Form of prescriptions; termination of authority; renewal; notification of termination of authority.

(a) Prescriptions authorized by an advanced practice registered nurse must comply with all applicable state and federal laws; must be signed by the prescriber with the initials ‘A.P.R.N.’ or the designated certification title of the prescriber; and must include the prescriber's identification number assigned by the board or the prescriber's national provider identifier assigned by the National Provider System pursuant to 45 C. F. R. §162.408.

(b) Prescriptive authorization shall be terminated if the advanced practice registered nurse has:

(1) Not maintained current authorization as an advanced practice registered nurse; or

(2) Prescribed outside the advanced practice registered nurse's scope of practice or has prescribed drugs for other than therapeutic purposes; or

(3) Has not filed verification of a collaborative agreement with the board if such an agreement is required.

(c) Prescriptive authority for an advanced practice registered nurse must be renewed biennially. Documentation of eight contact hours of pharmacology during the previous two years must be submitted at the time of renewal.

(d) The board shall notify the Board of Pharmacy, the Board of Medicine and the Board of Osteopathic Medicine within twenty-four hours after termination of, or change in, an advanced practice registered nurse's prescriptive authority.

§30-7-15d. Advanced practice registered nurse signatory authority.

(a) An advanced practice registered nurse may provide an authorized signature, certification, stamp, verification, affidavit or endorsement on documents within the scope of their practice, including but not limited to, the following documents:

(1) Death certificates: Provided, That the advanced practice registered nurse has received training from the board on the completion of death certificates;

(2) ‘Physician orders for life sustaining treatment’, ‘physician orders for scope of treatment’ and ‘do not resuscitate’ forms;

(3) Handicap hunting certificates; and

(4) Utility company forms requiring maintenance of utilities regardless of ability to pay.

(b) An advanced practice registered nurse may not sign a certificate of merit for a medical malpractice claim against a physician.

§30-7-15e. Joint Advisory Council on Limited Prescriptive Authority.

(a) There is hereby created the Joint Advisory Council on Limited Prescriptive Authority. The purpose of the Council is to advise the board regarding collaborative agreements and prescriptive authority for advanced practice registered nurses.

(b) The Council shall be composed of thirteen members with representation as follows:

(1) Two allopathic physicians appointed by the Board of Medicine who are in a collaborative relationship with advanced practice registered nurses;

(2) Two osteopathic physicians who are in active collaborative relationships appointed by the Board of Osteopathic Medicine who are in a collaborative relationship with advanced practice registered nurses;

(3) Six advanced practice registered nurses appointed by the Board of Examiners for Registered Professional Nurses whom have at least three years full-time practice experience, and shall include at least one certified nurse practitioner, one certified nurse-midwife, and one certified registered nurse anesthetist, all of whom actively prescribe prescription drugs;

(4) One licensed pharmacist appointed by the Board of Pharmacy;

(5) One consumer representative; and

(6) One representative from a school of public health.

(c) All members of the Council who are healthcare providers shall have at least three years full-time practice experience and hold active state licenses.

(d) Each member shall serve for a term of three years.  The terms of newly appointed members shall be staggered so that no more than five appointments shall expire annually.  Two newly appointed members appointed pursuant to subdivision (1) of this section shall be appointed to a two year term. One newly appointed member appointed pursuant to subdivision (2) of this section shall be appointed to a two year term.  One newly appointed member appointed pursuant to subdivision (3) of this section shall be appointed to a two year term.  The member appointed pursuant to subdivision (4) of this section shall be appointed to a three year term.  No member shall serve more than two consecutive terms.

            (e) A majority of members appointed to the Council shall constitute a quorum to conduct official business.

            (f)  The Council shall choose its own chairman and shall meet at the call of the chairman at least biannually.

            (g) The Council may perform the following duties:

            (1) Review and evaluate applications for advanced practice registered nurses to prescribe without a collaborative agreement;

            (2) Assist advanced practice registered nurses with entering into collaborative agreements in non-emergency situations, including providing the name/contact information for physicians with whom the advanced practice registered nurses may collaborate;

            (3) Advise the board in emergency situations of a rescinded collaborative agreement, giving a sixty day grace period;

            (4) Assist the board in developing and proposing emergency rules; 

            (5) Review and advise on complaints against advanced practice registered nurses;

            (6) Develop pilot project allowing independent prescribing of controlled substances by advanced practice registered nurses and study results to assure patient/public safety;

            (7) Develop other studies and/or pilot projects, including but not limited to:

            (A) Issues of access, outcomes and cost effectiveness of services;

            (B) The development of recommendations for reciprocity;

            (C) The optimal length of time for transition into independent prescribing; and

(D) Methods to foster effective interprofessional communication.”

On motion of Delegate Cowles the House concurred in the Senate amendment with further amendment on page nine, section 15e, by striking out section 15e in its entirety and inserting in lieu thereof a new section 15e to read as follows:

§30-7-15e. Joint Advisory Council on Limited Prescriptive Authority.

(a) On July 1, 2016, there is created the Joint Advisory Council on Limited Prescriptive Authority. The purpose of the Council is to advise the board regarding collaborative agreements and prescriptive authority for advanced practice registered nurses.

(b) The Governor shall appoint:

(1) Two allopathic physicians as recommended by the Board of Medicine who are in a collaborative relationship with advanced practice registered nurses;

(2) Two osteopathic physicians who are in active collaborative relationships as recommended by the Board of Osteopathic Medicine who are in a collaborative relationship with advanced practice registered nurses;

(3) Six advanced practice registered nurses as recommended by the Board of Examiners for Registered Professional Nurses whom have at least three years full-time practice experience, and shall include at least one certified nurse practitioner, one certified nurse-midwife, and one certified registered nurse anesthetist, all of whom actively prescribe prescription drugs;

(4) One licensed pharmacist as recommended by the Board of Pharmacy;

(5) One consumer representative; and

(6) One representative from a school of public health of an institution of higher education.

(c) All members of the Council who are healthcare providers shall have at least three years full-time practice experience and hold active state licenses.

(d) Each member shall serve for a term of three years.  The Governor shall stagger the terms so that no more than five appointments shall expire annually. Prior to the election of a chairman, the board shall be called together by the representative from a school of public health of an institution of higher education.

            (e) A majority of members appointed to the Council shall constitute a quorum to conduct official business.

            (f)  The Council shall choose its own chairman and shall meet at the call of the chairman at least biannually.

            (g) The Council may perform the following duties:

            (1) Review and evaluate applications for advanced practice registered nurses to prescribe without a collaborative agreement;

            (2) Assist advanced practice registered nurses with entering into collaborative agreements in non-emergency situations, including providing the contact information for physicians with whom the advanced practice registered nurses may collaborate;

            (3) Advise the board in emergency situations of a rescinded collaborative agreement, giving a sixty day grace period;

            (4) Assist the board in developing and proposing emergency rules; 

            (5) Review and advise on complaints against advanced practice registered nurses;

            (6) Develop pilot project allowing independent prescribing of controlled substances by advanced practice registered nurses and study results to assure patient/public safety;

            (7) Develop other studies and/or pilot projects, including but not limited to:

            (A) Issues of access, outcomes and cost effectiveness of services;

            (B) The development of recommendations for reciprocity;

            (C) The optimal length of time for transition into independent prescribing; and

(D) Methods to foster effective interprofessional communication.

And,

By amending the title to read as follows:

H. B. 4334 - “A Bill to repeal §30-15-1, §30-15-2, §30-15-3, §30-15-4, §30-15-5, §30-15-6, §30-15-7, §30-15-7a, §30-15-7b, §30-15-7c and §30-15-8, of the Code of West Virginia, 1931, as amended; to amend and reenact §16-5-19 of said code; to amend and reenact §30-7-1, §30-7-2, §30-7-4, §30-7-6, §30-7-7, §30-7-15a, §30-7-15b and §30-7-15c of said code; and to amend said code by adding thereto two new sections, designated §30-7-15d and §30-7-15e, all relating to the regulation of the practice of advanced practice registered nurses; providing advanced practice registered nurses authority relating to death certificates; defining terms; requiring a license to practice as an advanced practice registered nurse; modifying license requirements for an advanced practice registered nurse; modifying requirements for prescriptive authority; providing rule-making authority; providing emergency rule-making authority; modifying prescriptive authority of certain controlled substances; providing collaborative practice requirements; modifying the requirements for application for prescription authority; permitting the board review qualifications of applicants; authorizing advanced practice registered nurses be granted prescriptive authority without the requirement of a collaborative agreement upon application; requiring an advanced practice registered nurses complete certain prerequisites; requiring certain reports; permitting the board to discipline advanced practice registered nurses; eliminating required qualifications of the executive secretary of the board; creating a Joint Advisory Council; providing the council’s composition; providing council members’ terms; providing powers of the council; providing duties of the council; providing advance practice registered nurses with certain signatory authority; and requiring certain training.”

            The bill, as amended by the Senate, and further amended by the House, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 589), and there were--yeas 91, nays 5, absent and not voting 4, with the nays and absent and not voting being as follows:

Nays: Flanigan, Statler, Storch, Waxman and Zatezalo.

Absent and Not Voting: Lane, McCuskey, Moore and Rowe.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4334) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4636, Increasing the penalties for violating the Whistle-blower Law.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration.

            The following Senate amendments were reported by the Clerk:

On page one, section six, line eleven, after the word “information,” by striking out the remainder of the subsection and inserting in lieu thereof “the court may order the person’s suspension from public service for not more than six months.  The public body may also issue appropriate discipline against the person, up to and including termination.”

And,

Amending the title of the bill to read as follows:

Com. Sub. for H. B. 4636 - “A Bill to amend and reenact §6C-1-6 of the Code of West Virginia, 1931, as amended, relating to increasing the penalties for violating the whistle-blower law; increasing the civil fine; authorizing the court to suspend a person from public service in certain circumstances; and authorizing appropriate discipline by the person’s employer up to and including termination from employment.”

            On motion of Delegate Cowles, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            H. B. 4740, Permitting that current members of the National Guard or Reserves may be excused from jury duty.

Delegate J. Nelson requested to be excused from voting on H. B. 4740 under the provisions of House Rule 49.

            The Speaker replied that any impact on the Delegate would be as a member of a class of persons possibly to be affected by the passage of the bill, and refused to excuse the Member from voting.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:

“That §52-1-11 of the code of West Virginia, 1931, as amended, be amended and reenacted, to read as follows:

ARTICLE 1.  PETIT JURIES.

§52-1-11. Excuses from jury service.

(a) The court, upon request of a prospective juror or on its own initiative, shall determine on the basis of information provided on the juror qualification form or interview with the prospective juror or other competent evidence whether the prospective juror should be excused from jury service. The clerk shall enter this determination in the space provided on the juror qualification form.

(b) A person who is not disqualified for jury service under section eight of this article may be excused from jury service by the court upon a showing of undue hardship, extreme inconvenience, or public necessity, for a period the court deems necessary, at the conclusion of which the person shall reappear for jury service in accordance with the court's direction.

(c) A person who is not disqualified for jury service under section eight of this article may be excused from jury service by the court if the person is a current member of the National Guard or reserves.

And,

By amending the title of the bill to read as follows:

H. B. 4740 - “A Bill to amend and reenact §52-1-11 of the Code of West Virginia, 1931, as amended, relating to excuses from jury service; and permitting that current members of the National Guard or reserves may be excused from jury duty.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 590), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

Absent and Not Voting: Deem, Lane, McCuskey, Moore and Rowe.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4740) passed.

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

            Com. Sub. for S. B. 454, Licensing and regulating medication-assisted treatment programs for substance use disorders, still being in possession of the Clerk, was taken up for further consideration.

            On motion of Delegate Cowles, the motion to insist on the position of the House was reconsidered.

 

            On motion of Delegate Cowles, the House of Delegates refused to recede from its position and requested the Senate to agree to the appointment of a Committee of Conference of three.

Whereupon,

            The Speaker appointed as conferees on the part of the House of Delegates the following:

            Delegates Stansbury, Rohrbach and Campbell.

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

At 7:25 p.m., on motion of Delegate Cowles, the House of Delegates recessed until 7:45 p.m.

Conference Committee Report Availability

            At 7:49 p.m., the Clerk announced availability in his office of the reports of the Committees of Conference on Com. Sub. for H. B. 4013 and  Com. Sub. for S. B. 454.

At 7:54 p.m., the Clerk announced availability in his office of the reports of the Committees of Conference on Com. Sub. for S. B. 378 and Com. Sub. for H. B. 4174.

Messages from the Senate

            A message from the Senate, by

            The Clerk of the Senate, announced the adoption of the report of the Committee of Conference on, and the passage, as amended by said report, to take effect from passage, and requested the concurrence of the House of Delegates in the passage, of

Com. Sub. for S. B. 597, Relating generally to Health Care Authority.

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill the House of Delegates, as follows:

            Com. Sub. for H. B. 2366, Relating generally to the solicitation of minors.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 3C. WEST VIRGINIA COMPUTER CRIME AND ABUSE ACT.

§61-3C-14b. Soliciting, etc. a minor via computer; soliciting a minor and traveling to engage the minor in prohibited sexual activity; penalty penalties.

(a) Any person over the age of eighteen, who knowingly uses a computer to solicit, entice, seduce or lure, or attempt to solicit, entice, seduce or lure, a minor known or believed to be at least four years younger than the person using the computer or a person he or she believes to be such a minor, to commit in order to engage in any illegal act proscribed by the provisions of article eight, eight-b, eight-c or eight-d of this chapter, or any felony offense under section four hundred one, article four, chapter sixty-a of this code, is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 or imprisoned in a state correctional facility not less than two nor more than ten years, or both.

(b) Any person over the age of eighteen who uses a computer in the manner proscribed by the provisions of subsection (a) of this section and who additionally engages in any overt act designed to bring himself or herself into the minor’s, or the person believed to be a minor’s, physical presence with the intent to engage in violations of article eight, eight-b, eight-c or eight-d of this chapter with such a minor, is guilty of a felony and shall be fined not more than $25,000 or imprisoned in a state correctional facility for a determinate sentence of not less than five nor more than fifteen years, or both fined and imprisoned: Provided, That subsection (a) of this section shall be deemed a lesser included offense to that created by this subsection.

ARTICLE 8A. PREPARATION, DISTRIBUTION OR EXHIBITION OF OBSCENE MATTER TO MINORS.

§61-8A-4. Use of obscene matter with intent to seduce minor.

Any adult, having knowledge of the character of the matter, who knows or believes that a person is a minor at least four years younger than the adult, and who distributes, offers to distribute or displays by any means any obscene matter to the minor or person he or she believes to be a minor at least four years younger than the adult, and such distribution, offer to distribute, or display is undertaken with the intent or for the purpose of facilitating the sexual seduction or abuse of the minor engaging in a violation of the provisions of articles eight, eight-b, eight-c or eight-d of this chapter with the minor or person whom he or she believes is a minor at least four years younger than he or she, is guilty of a felony and, upon conviction thereof, shall be fined not more than $25,000, or confined imprisoned in a state correctional facility for not more than five years, or both. For a second and each subsequent commission of such offense, such person is guilty of a felony and, upon conviction, shall be fined not more than $50,000 or confined imprisoned in a state correctional facility for not more than ten years, or both.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 2366  - “A Bill to amend and reenact §61-3C-14b of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-8A-4 of said code, all relating generally to the solicitation of minors by use of a computer; clarifying the law pertaining to the use of a computer to solicit a minor for sexual activity; removing controlled substance violations as an alleged purpose; creating a new felony offense of soliciting a minor through use of a computer for specified illegal sexual acts and committing any overt act designed to bringing himself or herself within the physical presence of the minor or someone believed to be a minor to engage in prohibited sexual activity with the minor or person believed to be a minor; requiring a four year age difference between an adult and minor; establishing penalties; establishing the offense as a lesser included crime; and prohibiting the use or distribution of obscene materials by an adult to solicit or seduce a person who is or is believed to be a minor at least four years younger than the adult for unlawful sexual activity.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 591), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent and Not Voting: Moore, Reynolds and Walters.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2366) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            H. B. 4309, Increasing criminal penalties for conviction of certain offenses of financial exploitation of an elderly person.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration.

            The following Senate amendments were reported by the Clerk:

On page one, 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 §55-7I-1, §55-7I-2, §55-7I-3, §55-7I-4, §55-7I-5 and §55-7I-6; and to amend and reenact §61-2-29b of said code, all to read as follows:

Chapter 55. ACTIONS, SUITS AND ARBITRATION;
JUDICIAL SALE.

ARTICLE 7i. Financial exploitation of an elderly person, protected person or incapacitated adult.

§55-7I-1. Action for financial exploitation of an elderly person, protected person or incapacitated adult; definitions.

(a) Any elderly person, protected person or incapacitated adult against whom an act of financial exploitation has been committed may bring an action under this article against any person who has committed an act of financial exploitation against him or her.

(b) For the purposes of this article:

(1) ‘Incapacitated adult’ has the same meaning as prescribed under section twenty-nine, article two, chapter sixty-one of this code;

(2) ‘Elderly person’ means a person who is sixty-five years or older;

(3) ‘Financial exploitation’ or ‘financially exploit’ means the intentional misappropriation or misuse of funds or assets of an elderly person, protected person or incapacitated adult, but shall not apply to a transaction or disposition of funds or assets where the defendant made a good-faith effort to assist the elderly person, protected person or incapacitated adult with the management of his or her money or other things of value; and

(4) ‘Protected person’ means any person who is defined as a Aprotected person@ in section four, article one, chapter forty-four-a of this code and who is subject to the protections of chapter forty-four-a or forty-four-c of this code.

§55-7I-2. Restriction of defenses, standing alone, based on legal relationship.

Notwithstanding any provision of this code to the contrary, acting in a position of trust and confidence, including, but not limited to, as guardian, conservator, trustee or attorney for or holding power of attorney for an elderly person, protected person or incapacitated adult shall not, standing alone, constitute a defense to an action brought under this article.

§55-7I-3. Court authorized remedies.

(a) In an action brought against a person under this article upon a finding that an elderly person, protected person or incapacitated adult has been financially exploited, the court may order:

(1) The return of property or assets improperly obtained, controlled or used; and

(2) An award of actual damages to the person who brought the action for any damages incurred or for the value of the property or assets lost as a result of the violation or violations of this article.

(b) In addition to the remedies provided in subsection (a) of this section, a court may order the following:

(1) For violations committed by a person who is not in a position of trust and confidence, payment of two times the amount of damages incurred or value of property or assets lost; and

 (2) For violations committed by a person in a position of trust and confidence, and payment of treble damages.

§55-7I-4. Attorneys’ fees; court costs and burden of proof; statute of limitations.

(a) The court may award reasonable attorneys’ fees and costs to a person that brings an action under this section and prevails.

(b) The standard of proof in proving that a person committed financial exploitation in an action pursuant to this article is a preponderance of the evidence.

(c) An action under this article shall be brought within two years from the date of the violation or from the date of discovery, whichever is later in time.

§55-7I-5. Action to freeze assets; burden of proof; options the court may exercise.

(a) An elderly person, protected person or incapacitated adult may bring an action to enjoin the alleged commission of financial exploitation and may petition the court to freeze the assets of the person allegedly committing the financial exploitation in an amount equal to, but not greater than, the alleged value of lost property or assets for purposes of restoring to the victim the value of the lost property or assets. The burden of proof required to freeze the assets of a person allegedly committing financial exploitation shall be a preponderance of the evidence. Upon a finding that the elderly person, protected person or incapacitated adult has been formally exploited, the court may:

(1) Grant injunctive relief;

(2) Order the violator to, in escrow an amount of money equivalent to the value of the misappropriated assets for distribution to the aggrieved elderly person, protected person or incapacitated adult;

(3) Order the violator to return to the elderly person, protected person or incapacitated person any real or personal property which was misappropriated; or

(4) Provide for the appointment of a receiver;

 (b) In an action under section one of this article, the court may void or limit the application of contracts or clauses resulting from the financial exploitation.

(c) In an action brought under this article, upon the filing of the complaint or on the appearance of any defendant, claimant or other party, or at any later time, the court may require the plaintiff, defendant, claimant or other party or parties to post security, or additional security, in a sum the court directs to pay all costs, expenses and disbursements that are awarded against that party or that the party may be directed to pay by any interlocutory order, by the final judgment or after appeal.

§55-7I-6. Penalty for violation of injunction; retention of jurisdiction.

Any person who violates the terms of an order issued under section five of this article shall be subject to proceeding for contempt of court. The court issuing the injunction may retain jurisdiction if, in its discretion, it determines that to do so is in the best interest of the elderly person, protected person or incapacitated adult. Whenever the court determines that an injunction issued under section five of this article has been violated, the court may award reasonable costs to the party asserting that a violation has occurred.

Chapter 61. Crimes and their punishment.

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-29b. Financial exploitation of an elderly person, protected person or incapacitated adult; penalties; definitions.

(a) Any person who financially exploits an elderly person, protected person or an incapacitated adult shall be guilty of larceny and subject to the penalties contained in section thirteen, article three of this chapter in the amount of less than $1,000 is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for not more than one year, or both fined and confined.

(b) Any person who financially exploits an elderly person, protected person or an incapacitated adult in the amount of $1,000 or more is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 and imprisoned in a state correctional facility not less than two nor more than twenty years.

(c) Any person convicted of a violation of this section shall, in addition to any other penalties at law, be subject to an order of restitution.

(b) (d) In determining the value of the money, goods, property or services referred to in subsection (a) of this section, it shall be permissible to cumulate amounts or values where such money, goods, property or services were fraudulently obtained as part of a common scheme or plan.

(c) (e) Financial institutions and their employees, as defined by section one, article two-a, chapter thirty-one-a of this code and as permitted by subsection thirteen, section four of said article, others engaged in financially related activities, as defined by section one, article eight-c, chapter thirty-one-a of this code, caregivers, relatives and other concerned persons are permitted to report suspected cases of financial exploitation to state or federal law-enforcement authorities, the county prosecuting attorney and to the Department of Health and Human Resources, Adult Protective Services Division or Medicaid Fraud Division, as appropriate. Public officers and employees are required to report suspected cases of financial exploitation to the appropriate entities as stated above. The requisite agencies shall investigate or cause the investigation of the allegations.

(d) (f) When financial exploitation is suspected and to the extent permitted by federal law, financial institutions and their employees or other business entities required by federal law or regulation to file suspicious activity reports and currency transaction reports shall also be permitted to disclose suspicious activity reports or currency transaction reports to the prosecuting attorney of any county in which the transactions underlying the suspicious activity reports or currency transaction reports occurred.

(e) (g) Any person or entity that in good faith reports a suspected case of financial exploitation pursuant to this section is immune from civil liability founded upon making that report.

(f) (h) For the purposes of this section:

(1) ‘Incapacitated adult’ means a person as defined by section twenty-nine of this article;

(2) ‘Elderly person’ means a person who is sixty-five years or older;

(3) ‘Financial exploitation’ or ‘financially exploit’ means the intentional misappropriation or misuse of funds or assets of an elderly person, protected person or incapacitated adult, but shall not apply to a transaction or disposition of funds or assets where the accused made a good-faith effort to assist the elderly person, protected person or incapacitated adult with the management of his or her money or other things of value; and

(4) ‘Protected person’ means any person who is defined as a Aprotected person@ in section four, article one, chapter forty-four-a of this code and who is subject to the protections of chapter forty-four-a or forty-four-c of this code.

(g) (i) Notwithstanding any provision of this code to the contrary, acting as guardian, conservator, trustee or attorney for or holding power of attorney for an elderly person, protected person or incapacitated adult shall not, standing alone, constitute a defense to a violation of subsection (a) of this section.”

And,

By amending the title of the bill to read as follows:

H. B. 4309 - “A Bill to amend the Code of West Virginia, 1931, by adding thereto a new article, designated §55-7I-1, §55-7I-2, §55-7I-3, §55-7I-4, §55-7I-5 and §55-7I-6; and to amend and reenact §61-2-29b of said code, all relating generally to protections against financial exploitation of elderly persons, protected persons and incapacitated adults; establishing a cause of action against a person who commits an act of financial exploitation against an elderly person, protected person or incapacitated adult; defining terms; restricting certain defenses which, standing alone, are based on legal relationship to an elderly person, protected person or incapacitated adult; providing for court-authorized remedies; authorizing the award of punitive damages; providing for award of costs and attorneys’ fees; establishing the standard of proof; establishing the statute of limitations for actions brought under the article; authorizing the court to freeze assets and order injunctive relief; providing options the court may exercise if a person violates an injunction; providing a penalty for violating an injunction; clarifying criminal penalties for conviction of certain offenses of financial exploitation of an elderly person, protected person or incapacitated adult; and increasing the criminal penalty for the offense of financial exploitation of $1,000 or more.”

On motion of Delegate Shott, the House of Delegates concurred in the Senate amendments with further amendment, on page two, section three, line twelve, by striking out the word “and”.

            The bill, as amended by the Senate and further amended by the House, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 592), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: McGeehan.

Absent and Not Voting: Moore and Reynolds.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4309) passed.

            On motion of Delegate Shott, the title of the bill was amended to read as follows:

 

             H. B. 4309 - “A Bill to amend the Code of West Virginia, 1931, by adding thereto a new article, designated §55-7I-1, §55-7I-2, §55-7I-3, §55-7I-4, §55-7I-5 and §55-7I-6; and to amend and reenact §61-2-29b of said code, all relating generally to protections against financial exploitation of elderly persons, protected persons and incapacitated adults; establishing a cause of action against a person who commits an act of financial exploitation against an elderly person, protected person or incapacitated adult; defining terms; restricting certain defenses which, standing alone, are based on legal relationship to an elderly person, protected person or incapacitated adult; providing for court-authorized remedies; authorizing the award of increased damages in certain circumstances; providing for award of costs and attorneys’ fees; establishing the standard of proof; establishing the statute of limitations for actions brought under the article; authorizing the court to freeze assets and order injunctive relief; providing options the court may exercise upon a formal finding of exploitation; authorizing the court to require posting security, or additional security, under certain circumstances; clarifying criminal penalties for conviction of certain offenses of financial exploitation of an elderly person, protected person or incapacitated adult; and increasing the criminal penalty for the offense of financial exploitation of $1,000 or more.”

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4662, Permitting the Superintendent of the State Police to collect $3 dollars from the sale of motor vehicle inspection stickers.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:

“That §17C-16-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted: and that §17C-16-6 of said code be amended and reenacted, all to read as follows:

ARTICLE 16. INSPECTION OF VEHICLES.

§17C-16-5. Permit for official inspection stations; fees for and certificate of inspection.

(a) The Superintendent of the State Police is responsible for the inspection as provided in this article and shall prescribe requirements and qualifications for official inspection stations. He or she shall select and designate the stations and shall issue permits for official inspection stations and furnish instructions and all necessary forms for the inspection of vehicles as required in this article and the issuance of official certificates of inspection and approval. The certificate of inspection shall be a paper sticker or decal to be affixed to the windshield of a motor vehicle, shall be serially numbered and shall properly identify the official inspection station which issued it. A charge of $1 $3 per sticker shall be charged by the State Police to the inspection station, and the funds received shall be deposited into the State Treasury and credited to the account of the State Police for application in the administration and enforcement of the provisions of this article and for the purchase of vehicles, equipment for vehicles, and maintenance of vehicles. Any balance remaining in the fund on the last day of June of each fiscal year, not required for the administration and enforcement of the provisions of this article, shall be transferred to the state road fund. The superintendent may exchange stickers or make refunds to official inspection stations for stickers on hand when permits are revoked or when, for any reason, the stickers become obsolete.

(b) A person shall apply for a permit upon an official form prescribed by the superintendent and the superintendent shall grant permits only when the superintendent is satisfied that the station is properly equipped and has competent personnel to make the inspections and adjustments and that the inspections and adjustments will be properly conducted. The superintendent, before issuing a permit, may require the applicant to file a bond with surety approved by the superintendent, conditioned that such applicant, as a station operator, will make compensation for any damage to a vehicle during an inspection or adjustment due to negligence on the part of the station operator or employees thereof.

(c) The superintendent shall properly supervise and cause inspections to be made of the stations. Upon finding that a station is not properly equipped or conducted, the superintendent may, upon a first violation, suspend the permit for a period of up to one year. Upon a second or subsequent finding that a station is not properly equipped or conducted, the superintendent shall permanently revoke and require the surrender of the permit. The superintendent may reinstate the permit of any person whose permit was permanently revoked prior to the effective date of this section upon a first finding that a station was not properly equipped or conducted, upon application, at any time after the expiration of six months from the time of revocation and shall reinstate the permit, upon application, after the expiration of one year. He or she shall maintain and post at his or her office and at any other places as he or she may select lists of all stations holding permits and of those whose permits have been suspended or revoked.

§17C-16-6. Assignment, transfer and posting of official inspection station permit; issuance and record of certificate of inspection; inspection fee.

(a) No permit for an official inspection station shall be assigned or transferred or used at any location other than designated in the permit and every permit shall be posted in a conspicuous place at the station location designated in the permit.

(b) The person operating the station shall issue a certificate of inspection and approval, upon an official form, to the owner of a vehicle upon inspecting the vehicle and determining that its equipment required under this article is in good condition and proper adjustment, but otherwise no certificate shall be issued, except one issued pursuant to section two of this article. When required by the superintendent, a record and report shall be made of every inspection and every certificate issued.

(c) A fee of not more than $12 $14 may be charged for an inspection and any necessary headlight adjustment to proper focus, not including any replacement parts required, and the issuance of the certificate, but the imposition of the charge is not mandatory.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4662 - “A Bill to amend and reenact §17C-16-5 and §17C-16-6 of the Code of West Virginia, 1931, as amended, all relating to permitting the Superintendent of the State Police to collect $3 from the sale of motor vehicle inspection stickers to purchase, equip and maintain vehicles; and increasing the allowable fee from $12 to $14 for vehicle inspection and any necessary headlight adjustment.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 593), and there were--yeas 79, nays 19, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Blair, Butler, Espinosa, Faircloth, Folk, Frich, Gearheart, Householder, Howell, Ihle, Kurcaba, Marcum, McGeehan, Moffatt, J. Nelson, P. Smith, Sobonya, Stansbury and P. White.

Absent and Not Voting: Moore and Reynolds.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4662) passed.

            Delegate Cowles moved that the bill take effect July 1, 2016.

            On this question, the yeas and nays were taken (Roll No. 594), and there were--yeas 84, nays 14, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Blair, Folk, Hicks, Householder, Howell, Ihle, Marcum, McGeehan, Moffatt, J. Nelson, Overington, Skinner, Sobonya and Stansbury.

Absent and Not Voting: Moore and Reynolds.

            So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4662) takes effect July 1, 2016.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4317, Limiting factors in parenting plans.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page one, section two hundred nine, line twelve, by striking out the word “report” and inserting in lieu thereof the word “reports”.

And,

On page one, section two hundred nine, line twelve, after the word “abuse”, by inserting the following:

“: Provided, That a person’s withdrawal of or failure to pursue a report of domestic violence or child abuse shall not alone be sufficient to consider that report fraudulent”.

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4317 - “A Bill to amend and reenact §48-9-209 of the Code of West Virginia, 1931, as amended, relating to limiting factors in parenting plans; clarifying the court’s consideration of fraudulent reports of domestic violence and child abuse in imposing limits on a parenting plan in order to protect a child from harm; clarifying that a person’s withdrawal of or failure to pursue a report of domestic violence or child abuse is not alone sufficient to establish that report as fraudulent; requiring court to impose limits that are reasonably calculated to protect the child or the child’s parent from harm if a parent who would otherwise be allocated responsibility under a parenting plan has made one or more fraudulent reports of domestic violence or child abuse; and correcting an internal code reference to clarify a parent’s ability to move the court to disclose whether other parent was the source of fraudulent reports of domestic violence or child abuse.”

On motion of Delegate Cowles, the House of Delegates concurred in the Senate amendments with further amendment, on page three, line fifty-five, by inserting the following before the words “A parent”:

            “Notwithstanding any provision of this code to the contrary” and a comma.

            On page three, line fifty-five, by striking out  “A” and replacing in lieu thereof “a”.

            And,

On page three, lines fifty-six and fifty-seven, by striking out the words “pursuant to subdivision (4), subsection (b), section one hundred one, article five, chapter forty-nine of this code”.

            The bill, as amended by the Senate and further amended by the House, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 595), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent and Not Voting: Moore and Reynolds.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4317) passed.

On motion of Delegate Shott the title of the bill was amended to read as follows:

Com. Sub. for H. B. 4317 - “A Bill to amend and reenact §48-9-209 of the Code of West Virginia, 1931, as amended, relating to limiting factors in parenting plans; clarifying the court’s consideration of fraudulent reports of domestic violence and child abuse in imposing limits on a parenting plan in order to protect a child from harm; clarifying that a person’s withdrawal of or failure to pursue a report of domestic violence or child abuse is not alone sufficient to establish that report as fraudulent; requiring court to impose limits that are reasonably calculated to protect the child or the child’s parent from harm if a parent who would otherwise be allocated responsibility under a parenting plan has made one or more fraudulent reports of domestic violence or child abuse; and clarifying that a parent who believes that the other parent has made one or more fraudulent reports of domestic violence or child abuse may move the court to disclose whether the other parent was the source of the allegation.”

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4388, Relating to stroke centers.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 5B. HOSPITALS AND SIMILAR INSTITUTIONS.

§16-5B-18.  Designation of comprehensive, primary and acute stroke-ready hospitals; reporting requirements; rulemaking.

       (a) A hospital, as that term is defined in section one of this article, may apply to the Department of Health and Human Resources to be recognized and certified as a comprehensive stroke center, a primary stroke center or an acute stroke-ready hospital.  The appropriate designation shall be granted by the Department of Health and Human Resources based upon criteria recognized by the American Heart Association, the Joint Commission or other nationally recognized organization as set forth in legislative rules as provided in subsection (d) of this section.

       (b) The Department of Health and Human Resources shall provide annually, by June 1, a list of all hospitals they have designated pursuant to the provisions of subsection (a) of this section to the medical director of each licensed emergency medical service agency in this state.  This list shall be maintained by the Department of Health and Human Resources and shall be updated annually on its website.

       (c) The Secretary of the Department of Health and Human Resources shall establish by legislative rule, as set forth in subsection (d) of this section, prehospital care protocols related to assessment, treatment and transport of patients identified as stroke patients.  These protocols shall be applicable to all emergency medical service agencies, as defined in section three, article four-c of this chapter.  These protocols shall include development and implementation of plans for the triage and transport within specified timeframes of onset of symptoms of acute stroke patients to the nearest comprehensive, primary or acute stroke ready hospital.

            (d) The Secretary of the Department of Health and Human Resources shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to accomplish the goals of this section.  These rules shall be proposed after consultation with an advisory committee selected by the Secretary of the Department of Health and Human Resources.  The advisory committee shall consist of representatives of the Department of Health and Human Resources, an association with the primary purpose of promoting better heart health, a registered emergency medical technician, hospitals located in rural areas of the state and hospitals located in urban areas of this state.

These rules shall include:

(1) An application process;

(2) The criteria for designation and certification as a comprehensive stroke center, a primary stroke center or an acute stroke ready center;

(3) A means for providing a list of designated hospitals to emergency medical service agencies;

(4) Protocols for assessment, treatment and transport of stroke patients by licensed emergency medical service agencies; and

            (5) Any other requirements necessary to accomplish the intent of this section.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 596), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent and Not Voting: Moore and Reynolds.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4388) passed.

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

Conference Committee Report

            Delegate Ellington, from the Committee of Conference on matters of disagreement between the two houses, as to

            Eng. Com. Sub. for S. B. 597, Relating generally to Health Care Authority.

            Submitted the following report, which was received:

            Your Committee of Conference on the disagreeing votes of the two houses as to the amendments of the House to Engrossed Committee Substitute for Senate Bill No. 597 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:

            That the Senate recede from its position and accept the amendments as proposed by the House, and agree to the same as follows:

That §16-29B-26 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a two new sections, designated §16-29B-28 and §16-29B-29, all to read as follows:

ARTICLE 29B. HEALTH CARE AUTHORITY.

§16-29B-26.  Exemptions from antitrust laws.

Actions of the board shall be exempt from antitrust action as provided in section five, article eighteen, chapter forty-seven of this code under state and federal antitrust laws. Any actions of hospitals and health care providers under the board’s jurisdiction, when made in compliance with orders, directives, rules, approvals or regulations issued or promulgated by the board, shall likewise be exempt. Health care providers shall be subject to the antitrust guidelines of the federal trade commission and the department of justice.

It is the intention of the Legislature that this chapter shall also immunize cooperative agreements approved and subject to supervision by the authority and activities conducted pursuant thereto from challenge or scrutiny under both state and federal antitrust law: Provided, That a cooperative agreement that is not approved and subject to supervision by the authority shall not have such immunity.

§16-29B-28. Review of Cooperative agreements.

(a)  Definitions. — As used in this section the following terms have the following meanings:

(1)  “Academic medical center” means an accredited medical school, one or more faculty practice plans affiliated with the medical school or one or more affiliated hospitals which meet the requirements set forth in 42 C. F. R. 411.355(e).

(2)  “Cooperative agreement” means an agreement between a qualified hospital which is a member of an academic medical center and one or more other hospitals or other health care providers.  The agreement shall provide for the sharing, allocation, consolidation by merger or other combination of assets, or referral of patients, personnel, instructional programs, support services and facilities or medical, diagnostic, or laboratory facilities or procedures or other services traditionally offered by hospitals or other health care providers.

(3)  “Commercial health plan” means a plan offered by any third party payor that negotiates with a party to a cooperative agreement with respect to patient care services rendered by health care providers.

(4)  “Health care provider” means the same as that term is defined in section three of this article.

(5) “Teaching hospital” means a hospital or medical center that provides clinical education and training to future and current health professionals whose main building or campus is located in the same county as the main campus of a medical school operated by a state university.

(6)  “Qualified hospital” means a teaching hospital, which meets the requirements of 42 C. F. R. 411.355(e) and which has entered into a cooperative agreement with one or more hospitals or other health care providers but is not a critical access hospital for purposes of this section.

(b) Findings. —

(1) The Legislature finds that the state’s schools of medicine, affiliated universities and teaching hospitals are critically important in the training of physicians and other healthcare providers who practice health care in this state.  They provide access to healthcare and enhance quality healthcare for the citizens of this state. 

(2) A medical education is enhanced when medical students, residents and fellows have access to modern facilities, state of the art equipment and a full range of clinical services and that, in many instances, the accessibility to facilities, equipment and clinical services can be achieved more economically and efficiently through a cooperative agreement among a teaching hospital and one or more hospitals or other health care providers.

(c)  Legislative purpose. — The Legislature encourages cooperative agreements if the likely benefits of such agreements outweigh any disadvantages attributable to a reduction in competition.  When a cooperative agreement, and the planning and negotiations of cooperative agreements, might be anticompetitive within the meaning and intent of state and federal antitrust laws the Legislature believes it is in the state’s best interest to supplant such laws with regulatory approval and oversight by the Health Care Authority as set out in this article.  The authority has the power to review, approve or deny cooperative agreements, ascertain that they are beneficial to citizens of the state and to medical education, to ensure compliance with the provisions of the cooperative agreements relative to the commitments made by the qualified hospital and conditions imposed by the Health Care Authority.

(d)  Cooperative Agreements. —

(1) A hospital which is a member of an academic medical center may negotiate and enter into a cooperative agreement with other hospitals or health care providers in the state:

(A) In order to enhance or preserve medical education opportunities through collaborative efforts and to ensure and maintain the economic viability of medical education in this state and to achieve the goals hereinafter set forth; and

(B)  When the likely benefits outweigh any disadvantages attributable to a reduction in competition that may result from the proposed cooperative agreement.

(2) The goal of any cooperative agreement would be to:

(A) Improve access to care; 

(B) Advance health status;

(C) Target regional health issues;

(D) Promote technological advancement;

(E) Ensure accountability of the cost of care;

(F) Enhance academic engagement in regional health;

(G) Preserve and improve medical education opportunities;

(H) Strengthen the workforce for health-related careers; and

(I) Improve health entity collaboration and regional integration, where appropriate.

(3) A qualified hospital located in this state may submit an application for approval of a proposed cooperative agreement to the authority.  The application shall state in detail the nature of the proposed arrangement including the goals and methods for achieving:

(A) Population health improvement;

(B) Improved access to health care services;

(C) Improved quality;

(D) Cost efficiencies;

(E) Ensuring affordability of care;

(F) Enhancing and preserving medical education programs; and

(G) Supporting the authority’s goals and strategic mission, as applicable.

(4) (A) If the cooperative agreement involves a combination of hospitals through merger, consolidation or acquisition, the qualified hospital must have been awarded a certificate of need for the project by the authority, as set forth in article two-d of this chapter prior to submitting an application for review of a cooperative agreement. 

(B) In addition to a certificate of need, the authority may also require that an application for review of a cooperative agreement as provided in this section be submitted and approved prior to the finalization of the cooperative agreement, if the cooperative agreement involves the merger, consolidation or acquisition of a hospital located within a distance of twenty highway miles of the main campus of the qualified hospital, and the authority shall have determined that combination is likely to produce anti-competitive effects due to a reduction of competition. Any such determination shall be communicated to the parties to the cooperative agreement within seven days from approval of a certificate of need for the project.  

(C) In reviewing an application for cooperative agreement, the authority shall give deference to the policy statements of the Federal Trade Commission.

(D) If an application for a review of a cooperative agreement is not required by the authority, the parties to the agreement may then complete the transaction following  a final order by the authority on the certificate of need as set forth in article two-d of this code. The qualified hospital may apply to the authority for approval of the cooperative agreement either before or after the finalization of the cooperative agreement. 

(E)  A party who has received a certificate of need prior to the enactment of this provision during the 2016 regular session of the Legislature may apply for approval of a cooperative agreement whether or not the transaction contemplated thereby has been completed.  

(F)  The complete record in the certificate of need proceeding shall be part of the record in the proceedings under this section and information submitted by an applicant in the certificate of need proceeding need not be duplicated in proceedings under this section. 

(e) Procedure for review of cooperative agreements. —

(1) Upon receipt of an application, the authority shall determine whether the application is complete. If the authority determines the application is incomplete, it shall notify the applicant in writing of additional items required to complete the application. A copy of the complete application shall be provided by the parties to the Office of the Attorney General simultaneous with the submission to the authority.  If an applicant believes the materials submitted contain proprietary information that is required to remain confidential, such information must be clearly identified and the applicant shall submit duplicate applications, one with full information for the authority’s use and one redacted application available for release to the public.     

(2) The authority shall upon receipt of a completed application, publish notification of the application on its website as well as provide notice of such application placed in the State Register. The public may submit written comments regarding the application within ten days following publication. Following the close of the written comment period, the authority shall review the application as set forth in this section.  Within thirty days of the receipt of a complete application the authority may:

(i) Issue a certificate of approval which shall contain any conditions the authority finds necessary for the approval;

(ii)  Deny the application; or

(iii) Order a public hearing if the authority finds it necessary to make an informed decision on the application. 

(3) The authority shall issue a written decision within seventy-five days from receipt of the completed application. The authority may request additional information in which case they shall have an additional fifteen days following receipt of the supplemental information to approve or deny the proposed cooperative agreement.

(4) Notice of any hearing shall be sent by certified mail to the applicants and all persons, groups or organizations who have submitted written comments on the proposed cooperative agreement as well as to all persons, groups or organizations designated as affected parties in the certificate of need proceeding. Any individual, group or organization who submitted written comments regarding the application and wishes to present evidence at the public hearing shall request to be recognized as an affected party as set forth in article two-d of this chapter. The hearing shall be held no later than forty-five days after receipt of the application. The authority shall publish notice of the hearing on the authority’s website fifteen days prior to the hearing. The authority shall additionally provide timely notice of such hearing in the State Register.

(5)  Parties may file a motion for an expedited decision. 

(f)  Standards for review of cooperative agreements. —

(1) In its review of an application for approval of a cooperative agreement submitted pursuant to this section, the authority may consider the proposed cooperative agreement and any supporting documents submitted by the applicant, any written comments submitted by any person and any written or oral comments submitted, or evidence presented, at any public hearing.

(2) The authority shall consult with the Attorney General of this state regarding his or her assessment of whether or not to approve the proposed cooperative agreement.

(3) The authority shall approve a proposed cooperative agreement and issue a certificate of approval if it determines, with the written concurrence of the Attorney General, that the benefits likely to result from the proposed cooperative agreement outweigh the disadvantages likely to result from a reduction in competition from the proposed cooperative agreement.

(4) In evaluating the potential benefits of a proposed cooperative agreement, the authority shall consider whether one or more of the following benefits may result from the proposed cooperative agreement:

(A) Enhancement and preservation of existing academic and clinical educational programs;

(B) Enhancement of the quality of hospital and hospital-related care, including mental health services and treatment of substance abuse provided to citizens served by the authority;

(C)  Enhancement of population health status consistent with the health goals established by the authority;

(D)  Preservation of hospital facilities in geographical proximity to the communities traditionally served by those facilities to ensure access to care;

(E)  Gains in the cost-efficiency of services provided by the hospitals involved;

(F)  Improvements in the utilization of hospital resources and equipment;

(G)  Avoidance of duplication of hospital resources;

(H) Participation in the state Medicaid program; and

(I) Constraints on increases in the total cost of care.

(5) The authority’s evaluation of any disadvantages attributable to any reduction in competition likely to result from the proposed cooperative agreement shall include, but need not be limited to, the following factors:

(A) The extent of any likely adverse impact of the proposed cooperative agreement on the ability of health maintenance organizations, preferred provider organizations, managed health care organizations or other health care payors to negotiate reasonable payment and service arrangements with hospitals, physicians, allied health care professionals or other health care providers;

(B) The extent of any reduction in competition among physicians, allied health professionals, other health care providers or other persons furnishing goods or services to, or in competition with, hospitals that is likely to result directly or indirectly from the proposed cooperative agreement;

(C) The extent of any likely adverse impact on patients in the quality, availability and price of health care services; and

(D) The availability of arrangements that are less restrictive to competition and achieve the same benefits or a more favorable balance of benefits over disadvantages attributable to any reduction in competition likely to result from the proposed cooperative agreement.

(6) (A) After a complete review of the record, including, but not limited to, the factors set out in subsection (e) of this section, any commitments made by the applicant or applicants and any conditions imposed by the authority, if the authority determines that the benefits likely to result from the proposed cooperative agreement outweigh the disadvantages likely to result from a reduction in competition from the proposed cooperative agreement, the authority shall approve the proposed cooperative agreement.

(B) The authority may reasonably condition approval upon the parties’ commitments to:

(i) Achieving improvements in population health;

(ii) Access to health care services;

(iii) Quality and cost efficiencies identified by the parties in support of their application for approval of the proposed cooperative agreement; and

(iv)  Any additional commitments made by the parties to the cooperative agreement.

Any conditions set by the authority shall be fully enforceable by the authority.  No condition imposed by the authority, however, shall limit or interfere with the right of a hospital to adhere to religious or ethical directives established by its governing board. 

(7) The authority’s decision to approve or deny an application shall constitute a final order or decision pursuant to the West Virginia Administrative Procedure Act (§ 29A-1-1, et seq.).  The authority may enforce commitments and conditions imposed by the authority in the circuit court of Kanawha County or the circuit court where the principal place of business of a party to the cooperative agreement is located.

(g)  Enforcement and supervision of cooperative agreements. — The authority shall enforce and supervise any approved cooperative agreement for compliance.

(1) The authority is authorized to promulgate legislative rules in furtherance of this section.  Additionally, the authority shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to accomplish the goals of this section. These rules shall include, at a minimum:

(A) An annual report by the parties to a cooperative agreement.  This report is required to include: 

(i) Information about the extent of the benefits realized and compliance with other terms and conditions of the approval;

(ii)  A description of the activities conducted pursuant to the cooperative agreement, including any actions taken in furtherance of commitments made by the parties or terms imposed by the authority as a condition for approval of the cooperative agreement;

(iii)  Information relating to price, cost, quality, access to care and population health improvement;   

(iv)  Disclosure of any reimbursement contract between a party to a cooperative agreement approved pursuant to this section and a commercial health plan or insurer entered into subsequent to the finalization of the cooperative agreement.  This shall include the amount, if any, by which an increase in the average rate of reimbursement exceeds, with respect to inpatient services for such year, the increase in the Consumer Price Index for all Urban Consumers for hospital inpatient services as published by the Bureau of Labor Statistics for such year and, with respect to outpatient services, the increase in the Consumer Price Index for all Urban Consumers for hospital outpatient services for such year; and

(v) Any additional information required by the authority to ensure compliance with the cooperative agreement.

(B) If an approved application involves the combination of hospitals, disclosure of the performance of each hospital with respect to a representative sample of quality metrics selected annually by the authority from the most recent quality metrics published by the Centers for Medicare and Medicaid Services. The representative sample shall be published by the authority on its website.   

(C) A procedure for a corrective action plan where the average performance score of the parties to the cooperative agreement in any calendar year is below the fiftieth percentile for all United States hospitals with respect to the quality metrics as set forth in (B) of this subsection. The corrective action plan is required to:

(i)  Be submitted one hundred twenty days from the commencement of the next calendar year; and

(ii) Provide for a rebate to each commercial health plan or insurer with which they have contracted an amount not in excess of one percent of the amount paid to them by such commercial health plan or insurer for hospital services during such two-year period if in any two consecutive-year period the average performance score is below the fiftieth percentile for all United States hospitals. The amount to be rebated shall be reduced by the amount of any reduction in reimbursement which may be imposed by a commercial health plan or insurer under a quality incentive or awards program in which the hospital is a participant.

(D)  A procedure where if the excess above the increase in the Consumer Price Index for all Urban Consumers for hospital inpatient services or hospital outpatient services is two percent or greater the authority may order the rebate of the amount which exceeds the respective indices by two percent or more to all health plans or insurers which paid such excess unless the party provides written justification of such increase satisfactory to the authority taking into account case mix index, outliers and extraordinarily high cost outpatient procedure utilizations.

(E) The ability of the authority to investigate, as needed, to ensure compliance with the cooperative agreement.

(F) The ability of the authority to take appropriate action, including revocation of a certificate of approval, if it determines that:

(i) The parties to the agreement are not complying with the terms of the agreement or the terms and conditions of approval;

(ii) The authority’s approval was obtained as a result of an intentional material misrepresentation;

(iii) The parties to the agreement have failed to pay any required fee; or

(iv) The benefits resulting from the approved agreement no longer outweigh the disadvantages attributable to the reduction in competition resulting from the agreement.

(G) If the authority determines the parties to an approved cooperative agreement have engaged in conduct that is contrary to state policy or the public interest, including the failure to take action required by state policy or the public interest, the authority may initiate a proceeding to determine whether to require the parties to refrain from taking such action or requiring the parties to take such action, regardless of whether or not the benefits of the cooperative agreement continue to outweigh its disadvantages. Any determination by the authority shall be final.  The authority is specifically authorized to enforce its determination in the circuit court of Kanawha County or the circuit court where the principal place of business of a party to the cooperative agreement is located.

(H)  Fees as set forth in subsection (h).

(2) Until the promulgation of the emergency rules, the authority shall monitor and regulate cooperative agreements to ensure that their conduct is in the public interest and shall have the powers set forth in subdivision (1) of this subsection, including the power of enforcement set forth in paragraph (G), subdivision (1) of this subsection. 

(h)  Fees. — The authority may set fees for the approval of a cooperative agreement. These fees shall be for all reasonable and actual costs incurred by the authority in its review and approval of any cooperative agreement pursuant to this section. These fees shall not exceed $75,000.  Additionally, the authority may assess an annual fee not to exceed $75,000 for the supervision of any cooperative agreement approved pursuant to this section and to support the implementation and administration of the provisions of this section.

(i) Miscellaneous provisions. —

(1) (A) An agreement entered into by a hospital party to a cooperative agreement and any state official or state agency imposing certain restrictions on rate increases shall be enforceable in accordance with its terms and may be considered by the authority in determining whether to approve or deny the application.  Nothing in this chapter shall undermine the validity of any such agreement between a hospital party and the Attorney General entered before the effective date of this legislation.

(B) At least ninety days prior to the implementation of any increase in rates for inpatient and outpatient hospital services and at least sixty days prior to the execution of any reimbursement agreement with a third party payor, a hospital party to a cooperative agreement involving the combination of two or more hospitals through merger, consolidation or acquisition which has been approved by the authority shall submit any proposed increase in rates for inpatient and outpatient hospital services and any such reimbursement agreement to the Office of the West Virginia Attorney General together with such information concerning costs, patient volume, acuity, payor mix and other data as the Attorney General may request.  Should the Attorney General determine that the proposed rates may inappropriately exceed competitive rates for comparable services in the hospital’s market area which would result in unwarranted consumer harm or impair consumer access to health care, the Attorney General may request the authority to evaluate the proposed rate increase and to provide its recommendations to the Office of the Attorney General.  The Attorney General may approve, reject or modify the proposed rate increase and shall communicate his or her decision to the hospital no later than 30 days prior to the proposed implementation date.  The hospital may then only implement the increase approved by the Attorney General.  Should the Attorney General determine that a reimbursement agreement with a third party payor includes pricing terms at anti-competitive levels, the Attorney General may reject the reimbursement agreement and communicate such rejection to the parties thereto together with the rationale therefor in a timely manner.

(2)  The authority shall maintain on file all cooperative agreements the authority has approved, including any conditions imposed by the authority.

(3) Any party to a cooperative agreement that terminates its participation in such cooperative agreement shall file a notice of termination with the authority thirty days after termination. 

(4)  No hospital which is a party to a cooperative agreement for which approval is required pursuant to this section may knowingly bill or charge for health services resulting from, or associated with, such cooperative agreement until approved by the authority.   Additionally, no hospital which is a party to a cooperative agreement may knowingly bill or charge for health services resulting from, or associated with, such cooperative agreement for which approval has been revoked or terminated.

(5) By submitting an application for review of a cooperative agreement pursuant to this section, the hospitals or health care providers shall be deemed to have agreed to submit to the regulation and supervision of the authority as provided in this section.

§16-29B-29.  Severability.

If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect, impair or invalidate other provisions or applications of the article, and to this end the provisions of this article are declared to be severable.

And by amending the title by inserting a new title to read as follows:

Com. Sub. for S. B. 597  - “A Bill to amend and reenact §16-29B-26 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §16-29B-28 and §16-29B-29, all relating generally to the Health Care Authority; exempting certain actions of the Health Care Authority from state and federal antitrust laws; setting forth intent to immunize cooperative agreements approved and subject to supervision by the Health Care Authority; establishing that a cooperative agreement that is not approved and subject to supervision by the Health Care Authority shall not have immunity; defining terms; setting out legislative findings and purpose; allowing cooperative agreements between certain hospitals and other hospitals or health care providers in the state; setting forth goals of a cooperative agreement; granting authority to the Health Care Authority to review proposed cooperative agreements; establishing a review process for cooperative agreements; requiring notification of application and public hearing to be published on Health Care Authority’s website and the State Register; providing for public comment period; requiring notice of public hearing to be provided to all persons, groups or organizations who have submitted written comments to proposed cooperative agreements and to individuals, groups or organizations designated as affected parties in certificate of need proceeding; requiring copy of application to be provided to the Attorney General; setting forth standards for review of cooperative agreements; requiring the Health Care Authority to consult with the Attorney General regarding assessment of approval of proposed cooperative agreement; requiring approval of Health Care Authority to have written concurrence of the Attorney General; providing that the Health Care Authority evaluate the benefits and disadvantages of the proposed cooperative agreement; providing that the Health Care Authority make a determination whether the benefits likely to result from the proposed cooperative agreement outweigh the disadvantages likely to result from a reduction in competition from the proposed cooperative agreement; providing for approval with conditions; providing that the Health Care Authority’s decision to approve or deny an application is a final order; granting enforcement powers over cooperative agreements to the Health Care Authority; providing for rulemaking; requiring reporting to the Health Care Authority; setting forth reporting requirements; providing for establishment and assessment of fees; providing that these new provisions shall not undermine the validity of an agreement between a hospital and the Attorney General entered into before the effective date of this legislation; requiring submission of certain proposed rate increases to be provided to the Attorney General for review; authorizing the Attorney General to approve, reject or modify certain proposed rate increases; providing that certain proposed rate increases may only be implemented with the approval of the Attorney General; providing the Health Care Authority maintain on file all approved cooperative agreements, including conditions imposed; requiring notification of termination of cooperative agreement be filed with the Health Care Authority; prohibiting billing or charging for health services resulting from or related to a cooperative agreement until approved by the Health Care Authority; providing that submission of application constitutes agreement to certain regulation and supervision of the Heath Care Authority; and providing for severability.”

     Respectfully submitted,

Ryan Ferns,                                                                Joe Ellington,

Craig Blair,                                                                  Patrick Lane,

Robert H. Plymale,                                                     Don Perdue,

    Conferees on the part                                                 Conferees on the part of

       of the Senate.                                                            the House of Delegates.

On motion of Delegate Ellington, the report of the Committee of Conference was adopted.

            The bill, as amended by said report, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 597), and there were--yeas 83, nays 13, absent and not voting 3, excused from voting 1, with the nays, excused from voting and absent and not voting being as follows:

Nays: Azinger, Byrd, Fast, Fleischauer, Fluharty, Folk, Hanshaw, Ihle, Kurcaba, McGeehan, Pushkin, Skinner and Wagner.

Excused from Voting: Rohrbach.

Absent and Not Voting: Moore, Reynolds and Walters.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 597) passed.

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

            On this question, the yeas and nays were taken (Roll No. 598), and there were--yeas 83, nays 14, excused from voting 1, absent and not voting 2, with the nays, excused from voting and absent and not voting being as follows:

Nays: Byrd, Fast, Fleischauer, Fluharty, Folk, Hanshaw, Howell, Ihle, Kurcaba, McGeehan, Moffatt, J. Nelson, Pushkin and Skinner.

Excused from Voting: Rohrbach.

Absent and Not Voting: Moore and Reynolds.

            So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 597) takes effect from its passage.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4176, Permitting the Regional Jail and Correctional Facility Authority to participate in the addiction treatment pilot program.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 15A.  ADDICTION TREATMENT PILOT PROGRAM.

 §62-15A-1. Definitions.

As used in this article:

(1) ‘Addiction service provider’ means a person licensed by this state to provide addiction and substance abuse services to persons addicted to opioids.

(2) ‘Adult drug court judge’ means a circuit court judge operating a drug court as defined in subsection (a), section one, article fifteen.

(3) ‘Adult Drug Court Program’ means an adult treatment court established by the Supreme Court of Appeals of West Virginia pursuant to this article.

(4) ‘Authority’ means the Regional Jail and Correctional Facility Authority.

(4) (5) ‘Circuit court’ means those courts set forth in article two, chapter fifty-one of this code.

(5) (6) ‘Court’ means the Supreme Court of Appeals of West Virginia.

(6) (7) ‘Department’@ means the Department of Health and Human Resources.

(7) (8) ‘Division’ means the Division of Corrections.

(8) (9) ‘LS/CMI assessment criteria’ means the level of service/case management inventory which is an assessment tool that measures the risk and need factors of adult offenders.

(9) (10) ‘Medication-assisted treatment’ means the use of medications, in combination with counseling and behavioral therapies, to provide a whole-patient approach to the treatment of substance use disorders.

(10) (11) ‘Prescriber’ means an individual currently licensed and authorized by this state to prescribe and administer prescription drugs in the course of their professional practice.

§62-15A-2. The Department of Health and Human Resources Pilot Program.

(a) The secretary of the department shall conduct a pilot program to provide addiction treatment, including medication-assisted treatment, to persons who are offenders within the criminal justice system, eligible to participate in a program, and selected under this section to be participants in the pilot program because of their dependence on opioids.

(b) In the case of the medication-assisted treatment provided under the pilot program, a drug may be used only if it has been approved by the United States Food and Drug Administration for use in the prevention of relapse to opioid dependence and in conjunction with psychosocial support, provided as part of the pilot program, appropriate to patient needs.

(c) The department may invite the Court, the Authority and the division to participate in the pilot program.

(d) The department may limit the number of participants.

(e) (1) If the Court=s Adult Drug Court Program is selected to participate, it shall select persons who are participants in the Adult Drug Court program, who have been clinically assessed and diagnosed with opioid addiction. Participants must either be eligible for Medicaid, or eligible for a state, federal or private grant or other funding sources that provides for the full payment of the treatment necessary to participate in the pilot program. After being enrolled in the pilot program, participants shall comply with all requirements of the Adult Drug Court Program.

(2) Treatment may be provided under this subsection only by a treatment provider who is approved by the Court or Adult Drug Court Program consistent with the policies and procedures for Adult Drug Courts developed by the Court. In serving as a treatment provider, a treatment services provider shall do all of the following:

(A) Provide treatment based on an integrated service delivery model that consists of the coordination of care between a prescriber and the addiction services provider;

(B) Conduct any necessary additional professional, comprehensive substance abuse and mental health diagnostic assessments of persons under consideration for selection as pilot program participants to determine whether they would benefit from substance abuse treatment and monitoring;

(C) Determine, based on the assessments described in paragraph (B), the treatment needs of the participants served by the treatment provider;

(D) Develop, for the participants served by the treatment provider, individualized goals and objectives;

(E) Provide access to the non-narcotic, long-acting antagonist therapy included in the pilot program’s medication-assisted treatment; and

(F) Provide other types of therapies, including psychosocial therapies, for both substance abuse and any disorders that are considered by the treatment provider to be co-occurring disorders.

(f) (1) If the Division of Corrections is selected to participate, the division shall select persons, within the custody of the Division of Corrections, who are determined to be at high risk using the LS/CMI assessment criteria into the pilot program. Participants must either be eligible for Medicaid, or eligible for a state, federal or private grant or other funding sources that provide for the full payment of the treatment necessary to participate in the pilot program. After being enrolled in the pilot program, a participant shall comply with all requirements of the treatment program.

(2) A participant shall:

(A) Receive treatment based on an integrated service delivery model that consists of the coordination of care between a prescriber and the addiction services provider;

(B) Submit to professional, comprehensive substance abuse and mental health diagnostic assessments of persons under consideration for selection as pilot program participants to determine whether they would benefit from substance abuse treatment and monitoring;

(C) Receive, based on the assessments described in paragraph (B), the treatment needs of the participants served by the treatment provider;

(D) Submit to the treatment provider, individualized goals and objectives;

(E) Receive the nonnarcotic, long-acting antagonist therapy included in the pilot program's medication-assisted treatment; and

(F) Participate in other types of therapies, including psychosocial therapies, for both substance abuse and any disorders that are considered by the treatment provider to be co-occurring disorders

(g) (1) If the Regional Jail and Correctional Facility Authority is selected to participate, the authority shall select only persons who are serving a sentence for a felony or misdemeanor who are determined to be at high risk using the LS/CMI assessment criteria  for the pilot program.  Participants must either be eligible for Medicaid, or eligible for a state, federal or private grant or other funding source that provides for the full payment of the treatment necessary to participate in the pilot program.  After being enrolled in the pilot program, a participant shall comply with all requirements of the treatment program.

(2) A participant shall:

(A) Receive treatment based on an integrated service delivery model that consists of the coordination of care between a prescriber and the addiction services provider;

(B) Submit to professional, comprehensive substance abuse and mental health diagnostic assessments of persons under consideration for selection as pilot program participants to determine whether they would benefit from substance abuse treatment and monitoring;

(C) Receive, based on the assessments described in paragraph (B), the treatment needs of the participants served by the treatment provider;

(D) Submit to the treatment provider, individualized goals and objectives;

(E) Receive the nonnarcotic, long-acting antagonist therapy included in the pilot program's medication-assisted treatment; and

(F) Participate in other types of therapies, including psychosocial therapies, for both substance abuse and any disorders that are considered by the treatment provider to be co-occurring disorders.

(3) A participant who is incarcerated pursuant to a misdemeanor conviction or convictions and successfully completes this treatment pilot program may, at the discretion of the Authority, receive up to five days off of his or her sentence.

(4) If a participant begins participation in the treatment pilot program while in the custody of the Commissioner of Corrections, but is confined in a regional jai, and transferred to a Division of Corrections facility before completing the pilot treatment program the Division of Corrections shall ensure that the participant’s treatment under the program will continue and that upon successful completion the participant shall receive credit off his or her sentence as would have occurred had he or she remained in the authority facility until successful completion.

§62-15A-3. Report.

(a) The department shall prepare a report.

(b) The report shall include:

(1) Number of participants;

(2) Number of participants successfully completing the program;

(3) Offenses committed or offense convicted of;

(4) Recidivism Rate;

(5) Potential cost saving or expenditures;

(6) A statistical analysis which determines the effectiveness of the program; and

(7) Any other information the reporting entity finds pertinent.

(b) (c) The Court and the division should provide any information necessary to the department to complete the report.

(c) (d) The department shall submit the report to:

(1) The Governor;

(2) The Chief Justice of the Supreme Court of Appeals of West Virginia;

(3) The Joint Committee on Government and Finance; and

(4) The Commissioner of the Division of Corrections;

(5) The Director of the Regional Jail and Correctional Facility Authority; and

(6) The Secretary of the Department of Military Affairs and Public Safety.

(d) (e) The report shall be submitted by July 1, 2017 and shall include twelve months of data from the beginning of the administration of the program.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4176 - “A Bill to amend and reenact §62-15A-1, §62-15A-2 and §62-15A-3 of the Code of West Virginia, 1931, as amended, all relating to the addiction treatment pilot program; defining terms; permitting the Regional Jail and Correctional Facility Authority to participate in the pilot program; establishing criteria for participants authorizing inmates to receive good time credit for successful completion of the program; and including the Director of the Regional Jail and Correctional Facility Authority and the Secretary of the Department of Military Affairs and Public Safety in the list of recipients of the report required to be made by the Department of Health and Human Resources.”

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 599), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Pushkin.

Absent and Not Voting: Moore and Reynolds.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4176) passed.

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

A message from the Senate, by

The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

H. B. 4730, Relating to computer science courses of instruction.

On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page two, section twelve, line thirty-five, by striking out the word “Increase” and inserting in lieu thereof the word “Increasing”.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 600), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Folk and McGeehan.

Absent and Not Voting: Moore and Reynolds.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4730) passed.

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

A message from the Senate, by

The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

Com. Sub. for H. B. 4009, Letting Our Counties Act Locally Act.

On motion of Delegate Cowles, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page one, 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 §7-27-1, §7-27-2, §7-27-3, §7-27-4, §7-27-5, §7-27-6, §7-27-7, §7-27-8, §7-27-9, §7-27-10, §7-27-11, §7-27-12, §7-27-13, §7-27-14, §7-27-15, §7-27-16, §7-27-17, §7-27-18, §7-27-19, §7-27-20, §7-27-21, §7-27-22, §7-27-23, §7-27-24, §7-27-25, §7-27-26, §7-27-27, §7-27-28, §7-27-29, §7-27-30, §7-27-31, §7-27-32, §7-27-33, §7-27-34, §7-27-35, §7-27-36, §7-27-37, §7-27-38, §7-27-39, §7-27-40, §7-27-41, §7-27-42, §7-27-43, §7-27-44, and §7-27-45, and that said code be amended by adding thereto a new section, designated §31-15-16c; all to read as follows:

ARTICLE 27.  LETTING OUR COUNTIES ACT LOCALLY ACT.

PART I.  GENERAL.

§7-27-1.  Short title.

This article shall be known as the ‘Letting Our Counties Act Locally Act.’

§7-27-2.  Purpose and findings.

(a) The Legislature hereby makes the following findings:

(1) Roads maintained by the Department of Transportation include:

(A) Thirty-eight thousand six hundred eighty-four miles of public roads;

(B) Thirty-five thousand eight hundred ninety-three miles of state owned highways;

(C) Four hundred sixty-eight miles of state owned Interstate highway;

(D) Eighty-eight miles of West Virginia Turnpike;

(E) One thousand nine hundred seventy-two miles included in the National Highway System, twenty-three miles of which are connectors to other modes of transportation such as airports, trains and buses;

(F) Six thousand nine hundred fourteen bridges, thirty-three percent of which are more than one hundred feet in length;

(G) One all-American road;

(H) Five national byways;

(I) Fourteen state byways; and

(J) Eight backways. 

(2) A 2012 road needs assessment prepared for Governor Tomblin’s Blue Ribbon Commission by Wilbur Smith Associates reveals that:

(A) During the next seventeen years:

(i) Fifty-one thousand one hundred eight lane miles of road will need to be improved;

(ii) Ten thousand four hundred one lane miles will need modernization improvements including lane widening, road reconstruction, and shoulder improvements; and

(iii) Three thousand four hundred two lane miles will need to be constructed;

(B) Within the next twenty-five years:

(i) Eight hundred fourteen bridges will need to be replaced;

(ii) Five hundred seventy-seven bridges will need to be widened;

(iii) Eight bridges will need to be straightened; and

(iv) One bridge will need to be raised;

(C) The funding gap for road construction and maintenance over the next twenty-five years is estimated to be $36.7 billion, excluding new road construction; and

(D) The funding gap for bridges construction and maintenance was $2.4 billion, excluding new bridge construction.

(3) Modern, safe roads are critical to economic development.

(4) Modern, safe roads and bridges are essential to the growth of our communities and to the public health, welfare and safety.

(5) Counties need greater ability to influence when and where new roads are constructed and existing roads and bridges are modernized or upgraded, including the ability to recommend to the Division of Highways road and bridge construction projects and to assist in the financing of those projects.

(b) The purpose of this article is to provide county commissions with a source of funding to finance the accelerated construction of new roads and bridges in their respective counties; and the accelerated upgrading or modernizing of existing state roads and bridges in their counties, by allowing them to impose transportation sales and use taxes as provided in this article.

§7-27-3.  Definitions.

For purposes of this article:

(1) ‘Business’ means any activity engaged in by any person, or caused to be engaged in by any person, with the object of direct or indirect economic gain, benefit or advantage, and includes any purposeful revenue generating activity in a county of this state that imposes transportation sales and use taxes pursuant to this article.

(2) ‘Calendar quarter’ means the three-month time period beginning on January 1, April 1, July 1 and October 1 of each year.

(3) ‘Commissioner of Highways’ means the chief executive officer of the Division of Highways of the Department of Transportation provided in section one, article two-a, chapter seventeen of this code, or his or her designee.  The term ‘designee’ in the phrase ‘or his or her designee’, when used in reference to the Commissioner of Highways, means any officer or employee of the Division of Highways duly authorized by the commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article or rules promulgated for this article.

(4) ‘Consumer’ means any person purchasing tangible personal property, custom software or a taxable service from a retailer, as that term is defined in subdivision (14) of this section or from a seller, as that term is defined in section two, article fifteen-b, chapter eleven of this code.

(5) ‘County transportation sales tax’ means the sales tax imposed by a county commission pursuant to this article.

(6) ‘County transportation sales and use taxes’ means the transportation sales tax and the transportation use tax imposed by a county commission pursuant to this article.

(7) ‘County transportation use tax’ means the use tax imposed by a county commission pursuant to this article.

(8) ‘Custom software’ means software prepared for a particular customer to meet the specific needs or circumstances of the customer.

(9) ‘Executive Director of the West Virginia Economic Development Authority’ means the chief executive officer of the West Virginia Economic Development Authority created in section five, article fifteen, chapter thirty-one, of this code.

(10) ‘Expansion projects’ are road and bridge construction projects that add to the existing road system and include, but are not limited to, new roads, new bridges, new lanes and new interchanges.

(11) ‘Highway authority’ or ‘highway association” means any entity created by the Legislature for the advancement and improvement of the state road and highway system, including, but not limited to, the New River Parkway Authority, Midland Trail Scenic Highway Association, Shawnee Parkway Authority, Corridor G Regional Development Authority, Coalfields Expressway Authority, Robert C. Byrd Corridor H Highway Authority, West Virginia 2 and I-68 Authority, Little Kanawha River Parkway Authority, King Coal Highway Authority, Coal Heritage Highway Authority, Blue and Gray Intermodal Highway Authority and the West Virginia Eastern Panhandle Transportation Authority or, if an authority is abolished, any entity succeeding to the principal functions of the highway authority or to whom the powers given to the highway authority are given by law.

(12) ‘Modernization projects’ are road and bridge construction projects that improve safety by improving the existing roadway including, but not limited to, shoulder improvements, reducing the grade of hills, straightening curves, and improving interchanges.

(13) ‘Person’ includes any individual, firm, partnership, joint venture, joint stock company, association, public or private corporation, limited liability company, limited liability partnership, cooperative, estate, trust, business trust, receiver, executor, administrator, any other fiduciary, any representative appointed by order of any court or otherwise acting on behalf of others, or any other group or combination acting as a unit and the plural as well as the singular number.

(14) ‘Preservation projects’ are road and bridge construction projects that take care of infrastructure already in place and include, but are not limited to, pavement rehabilitation and reconstruction, and bridge repairs and replacements.

(15) ‘Project costs’ means capital costs, costs of financing, planning, designing, constructing, expanding, improving, or maintaining a road; the cost of land, equipment, machinery, installation of utilities and other similar expenditures; and all other charges or expenses necessary, appurtenant or incidental to the foregoing.

(16) ‘Purchase’ means any transfer, exchange or barter, conditional or otherwise, in any manner or by any means, for a consideration.

(17) ‘Purchaser’ means a person to whom a sale of personal property is made or to whom a service is furnished.

(18) ‘Retailer’ means and includes every person engaging in the business of selling, leasing or renting tangible personal property or custom software or furnishing a taxable service for use within the meaning of this article, or in the business of selling, at auction, tangible personal property or custom software owned by the person or others for use in the county imposing taxes pursuant to this article.  However, when, in the opinion of the Tax Commissioner, it is necessary for the efficient administration of county use taxes imposed pursuant to this article to regard any salespersons, representatives, truckers, peddlers or canvassers as the agents of the dealers, distributors, supervisors, employees or persons under whom they operate or from whom they obtain the tangible personal property sold by them, irrespective of whether they are making sales on their own behalf or on behalf of the dealers, distributors, supervisors, employers or persons, the Tax Commissioner may so regard them and may regard the dealers, distributors, supervisors, employers, or persons as retailers for purposes of county use taxes.

(19) ‘Retailer engaging in business in the county’ or any like term, unless otherwise limited by federal statute, means and includes, but is not limited to:

(A) Any retailer having or maintaining, occupying or using, within the county, directly or by a subsidiary, an office, distribution house, sales house, warehouse, or other place of business, or any agent, however called, operating within the county under the authority of the retailer or its subsidiary, irrespective of whether the place of business or agent is located in the county permanently or temporarily, or whether the retailer or subsidiary is admitted to do business within this state pursuant to article fifteen, chapter thirty-one-d of this code or article fourteen, chapter thirty-one-e of this code; or

(B) Any retailer that is related to, or part of a unitary business with, a person, entity or business that, without regard to whether the retailer is admitted to do business in this state pursuant to article fifteen, chapter thirty-one-d of this code or article fourteen, chapter thirty-one-e of this code, is a subsidiary of the retailer, or is related to, or unitary with, the retailer as a related entity, a related member or part of a unitary business, all as defined in section three-a, article twenty four, chapter eleven of this code, that:

(i) Pursuant to an agreement with or in cooperation with the related retailer, maintains an office, distribution house, sales house, warehouse or other place of business in the county;

(ii) Performs services in the county in connection with tangible personal property or services sold by the retailer, or any related entity, related member or part of the unitary business;

(iii) By any agent, or representative (by whatever name called), or employee, performs services in the county in connection with tangible personal property or services sold by the retailer, or any related entity, related member or part of the unitary business; or

(iv) Directly or indirectly, through or by an agent, representative or employee located in, or present in, the county, solicits business in the county for or on behalf of the retailer, or any related entity, related member or part of the unitary business.

(C) For purposes of paragraph (B) of this subdivision, the term ‘service’ means and includes, but is not limited to, customer support services, help desk services, call center services, repair services, engineering services, installation service, assembly service, delivery service by means other than common carrier or the United States Postal Service, technical assistance services, the service of investigating, handling or otherwise assisting in resolving customer issues or complaints while in the county, the service of operating a mail order business or telephone, Internet or other remote order business from facilities located within the county, the service of operating a website or internet-based business from a location within the county imposing the use tax or any other service.

(20) ‘Road’ means a public highway, road, bridge, tunnel, or overpass to be used for the transportation of persons or goods including bicycle and pedestrian facilities.

(21) ‘Road project’ means any project to acquire, design, construct, expand, renovate, extend, enlarge, increase, equip, improve, maintain or operate a road in this state, including, but not limited to, providing bicycle and pedestrian facilities in conjunction with a road in this state, that is under the jurisdiction of the Division of Highways.

(22) ‘Road construction project’ means and includes any road construction project included in a road construction project plan that is adopted by a county commission pursuant to this article and approved by the Commissioner of Highways as provided in this article.

(23) ‘Sale’ means any transaction resulting in the purchase or lease of tangible personal property, custom software or a taxable service from a retailer.

(24) ‘Tax Commissioner’ means the State Tax Commissioner provided in article one, chapter eleven of this code or his or her delegate.  The term ‘delegate’ in the phrase ‘or his or her delegate’, when used in reference to the Tax Commissioner, means any officer or employee of the state Tax Division duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article or rules promulgated for this article.

(25) ‘Taxpayer’ means a taxpayer, as that term is defined in section two, article fifteen-b, chapter eleven of this code, who is subject to a county transportation sales tax or county transportation use tax imposed by a county commission pursuant to this article, whether acting for himself or herself or as a fiduciary, and who is liable for payment of any additions to tax, penalties or interest imposed by article ten, chapter eleven of this code for failure to timely pay or remit the county transportation sales taxes or county transportation use taxes imposed by a county commission pursuant to this article.

(26) ‘Vendor’ means any person furnishing services subject to a county’s sales and use taxes imposed pursuant to this article, or making sales of tangible personal property or custom software subject to a county’s sales and use taxes imposed pursuant to this article.  The terms ‘vendor’, ‘retailer’ and ‘seller’ are used interchangeably in this article.

 (27) ‘West Virginia Economic Development Authority’ or ‘Authority’ means the governmental entity created in section five, article fifteen, chapter thirty-one, of this code.   

As used in this article, the terms ‘computer software,’ ‘lease,’ ‘purchase price,’ ‘retail sale,’ ‘sale at retail,’ ‘sales price,’ ‘seller,’ ‘service,’ ‘selected service,’ and ‘tangible personal property’ have the same meanings as those terms are given in section two, article fifteen-b, chapter eleven of this code.

PART II.  COUNTY ROAD AND BRIDGE CONSTRUCTION PROJECTS.

§7-27-4.  Creation of county road construction project plan.

A county commission may, upon its own initiative or upon application of: (1) a highway authority; (2) a local, county or regional economic development authority; or (3) any resident of the county, propose creation of a road construction project plan for the county, or propose an amendment to an existing road construction project plan of the county.

§7-27-5.  Public hearing and notice requirements.

(a) General. –The county commission shall hold one or more public hearings at which interested persons may express their views on the county’s proposed road construction project plan.

(b) Notice of public hearing. – Notice of the public hearing or hearings shall be published as a Class II legal advertisement in accordance with the requirements of article three, chapter fifty-nine of this code.  The published notice shall include, at a minimum:

(1) The date, time, place and purpose of the public hearing or hearings;

(2) A description of each road construction project included in the proposed road construction project plan in sufficient detail to give the public notice of the contents of the proposed road construction project plan to cause residents of the county and other interested persons to examine the proposed road construction project plan and attend the public hearing or submit written comments thereon;

(3) The places in the county where the proposed road construction project plan may be viewed: Provided, That the county commission shall include the proposed road construction project plan on its webpage; and

(4) Information regarding how the county commission anticipates funding the road construction projects contained in the road construction project plan, including, but not limited to, whether one or more projects in the proposed road construction project plan, will be financed, in whole or in part, by the imposition of a county transportation sales and use tax and the proposed rate of the taxes the county finds necessary to finance, in whole or in part, the proposed road construction project plan, and any proposed road construction special revenue bonds to be issued to finance the road construction project plan.

(c) Notice by mail. – On or before the first day of publication of the public notice required in subsection (b) of this section, the county commission shall send a copy of the notice by first-class mail to the Commissioner of Highways, the Executive Director of the West Virginia Economic Development Authority and the mayor of each municipality located within the county. When the county commission reasonably anticipates that a proposed road construction project may affect one or more bordering counties, it shall send a copy of the notice by first-class mail to the president of the county commission of the bordering county or counties.

(d) Public Hearing. – All persons who appear at any public hearing held pursuant to this section shall be afforded a reasonable opportunity to express their views on all or any part of the proposed road construction project plan.  Each public hearing shall be recorded by a court reporter, or be digitally recorded.

(e) Written comments. – Written comments may be submitted to the county commission before, during, or within five business days after the last public hearing.  Timely mailing of the written comments to the county commission, at the mailing address of the courthouse, postage prepaid, shall be deemed timely submission of the written comments.

§7-27-6.  Finalization of road construction project plan.

(a) Resolution of county commission. – After the public hearing or hearings are concluded and the public comment period is closed, and after receipt of any required resolution of the governing body of a municipality, as required in subsection (b) of this section, the county commission may, by resolution, finalize its road construction project plan: Provided, That if there is more than one road construction project in the road construction project plan, the road construction project plan shall include a prioritization of each road construction project. 

(b) Consent of municipality in which project located. – No county commission may adopt a resolution approving a road construction project plan, any portion of which is located within the boundaries of a Class I, II, III or IV municipality, without the adoption of a resolution by the governing body of that municipality consenting to the road construction project.

§7-27-7.  Submission of road construction project plan to Commissioner of Highways; contents of application.

(a) After the county commission has finalized its road construction project plan, the commission may submit the plan to the Commissioner of Highways. 

(b) Each application submitted pursuant to this article shall include:

(1) A true copy of the county’s proposed road construction project plan, or proposed amendment to a project plan previously approved by the Commissioner of Highways, that is adopted, after the public hearing, by resolution of the county commission;

(2) A true copy of the resolution adopted by the county commission approving submission of the adopted road construction project plan, or the proposed amendment to a project plan previously approved by the Commissioner of Highways, to the Commissioner of Highways for approval;

(3) A true copy of the notice of public hearing or hearings on the county’s proposed road construction plan, or proposed amendment to a previously adopted project plan, and a true copy of the proposed plan, or the proposed amendment to an existing project plan that was the subject of the public hearing;

(4) An affidavit signed by the president of the county commission confirming publication of the notice of public hearing;

(5) A true copy of the transcript of the public hearing or hearings, or a true copy of the digital recording of the public hearing or hearings,

(6) True copies of any written comments received by the commission on the proposed road construction project plan, or the proposed amendment to an existing project plan;

(7) A statement generally describing each project included in the county’s road construction project plan, or the proposed amendment to an existing project plan, and identifying:

(A) Type of project, as a road project, bridge project, or both road and bridge project;

(B) Location of the project;

(C) Length of the project (in miles or feet);

(D) Scope of the work;

(E) Classification of the project as a preservation project, modernization project, or expansion project;

(F) Estimated cost of the project;

(G) Method of financing the project; and

(H) Timeline for completion of the project.

(8) A map of the county showing the geographic location of each road construction project included in the county’s road construction project plan;

(9) When the road construction project is located, in whole or in part, within the corporate limits of any municipality, a true copy of the resolution adopted by the governing body of the municipality consenting to the road construction project;

(10) Identification of any businesses or residents that the county commission anticipates will be displaced because of the road construction project;

(11) A good faith estimate of the annual net county transportation sales and use tax collections to be deposited in the county’s sub-account in the County Road Improvement Account created pursuant to section fourteen of this article that will be available to finance the project, in whole or in part; and

(12) Any additional information the Commissioner of Highways may reasonably require to analyze a proposed road construction project.

§7-27-8.  Application to Commissioner of Highways for approval of road construction project plans.

(a) Review of applications. – The Commissioner of Highways shall review all proposed road construction project plans for conformity to statutory and regulatory requirements, the reasonableness of the project's budget, and the timetable for completion using the following criteria:

(1) The quality of the proposed road construction project and how it addresses transportation problems in the area in which the road construction project will be located;

(2) Whether there is credible evidence that, unless county transportation sales and use tax revenues are used to finance the road construction project, in whole or in part, the project would not otherwise be feasible in the time line proposed by the county commission;

(3) Whether the county transportation sales and use tax revenues will leverage or be the catalyst for the effective use of state or federal funding that is available;

(4) Whether there is substantial and credible evidence that the proposed road construction project is likely to be started and completed in a timely fashion;

(5) Whether the proposed project will, directly or indirectly, improve transportation in the area where the road construction project will occur, thereby benefitting county residents and facilitating commercial business development and expansion in the county;

(6) Whether the proposed road construction project will, directly or indirectly, assist in the creation of additional long-term employment opportunities in the area and the quality of jobs created to include, but not be limited to, wages and benefits;

(7) Whether the proposed road construction project will fulfill a pressing transportation need for the county, or part of the county, in which the road construction project would be located;

(8) Whether the county commission has a strategy for road construction in the county and whether the proposed road construction project is consistent with that strategy;

(9) Whether the road construction project is consistent with the goals of this article;

(10) Whether the road construction project is economically and fiscally sound using recognized business standards of finance and accounting; and

(11) Any other additional criteria established by the Commissioner of Highways by legislative rule. 

(b) Decision of Commissioner of Highways. – Within sixty days after receipt of the county commission’s proposed road construction project plan or an amendment to a previously approved project plan, the Commissioner of Highways shall either (1) approve the plan as submitted, in whole or in part; (2) reject the plan as submitted, in whole or in part; or (3) return the plan to the county commission for further development or review in accordance with instructions from the Commissioner of Highways.  The decision of the commissioner is final and is not subject to judicial review.

(c) Certification of road construction project. – If the Commissioner of Highways approves a county's road construction project application, in whole or in part, the commissioner shall issue to the county commission a written certificate evidencing approval of each approved project.

(d) Assignment of project plan and individual projects. – Upon approval of a road construction project plan or an amendment to an existing project, the Commissioner of Highways shall:

(1) Assign a name to the road construction project for identification purposes, which name may include a geographic or other designation; and

(2) Assign each project within the road construction project plan a project number that begins with the federal information processing (FIPS) code number for the county, followed by a hyphen and a consecutive number beginning with the number “01," with each additional road construction project in the plan being assigned the next consecutive number.

(e) Rules. – The Commissioner of Highways may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement the county road construction project application approval process and to further identify and describe the criteria and procedures he or she has established in connection therewith.

§7-27-9.   Requirement for referendum on final road construction project plan.

(a) After obtaining project certification from the Commissioner of Highways under section eight of this article the county commission shall submit the question of the adoption of a road construction project plan to the voters in a county-wide referendum to be held in conjunction with a primary or general election. The question to be voted on in the referendum shall identify the project plan by its name and location, its projected cost estimate and how the cost of the road construction project plan is to be financed. The question shall state if the road construction plan is to be financed in whole or in part by the imposition of a county transportation sales and use tax, including the rate of the tax to be imposed, and if it is to be financed in whole or in part by the issuance of special revenue bonds as authorized by this article.

(b) No county commission may proceed with a road construction plan which will be financed, in whole or in part, by the imposition of a transportation sales and use tax or by the issuance of special revenue bonds as authorized by this article unless a majority of voters casting votes in the referendum vote to approve the road construction project plan.

§7-27-10.  Amendment of road construction project plan.

(a) General. – A road construction project plan adopted by order of the county commission may be amended by the county commission at any time to add one or more projects, delete one or more projects, or redesignate the order in which projects are to be completed as funds become available.

(b) Procedure to amend project plan. – The procedures that apply to creation of a road construction project plan shall also apply to each proposed amendment to the adopted road construction project plan.

§7-27-11.  Termination of road construction project plan.

(a) General. – No road construction project plan may be in existence for a period longer than thirty years, except as otherwise provided in this section, and no revenue bond secured by collections of the taxes imposed by a county commission may have a final maturity date more than thirty years after date of issuance of the revenue bonds.

(b) Extension of plan. – Each amendment of a county’s roads construction project plan approved by the Commissioner of Highways that results in execution of an intergovernmental agreement by the county commission and the Commissioner of Highways shall extend the term of the project plan for thirty years from the date on which the intergovernmental agreement is fully executed.

(c) Termination of county transportation sales and use taxes. – The county transportation sales and use tax imposed by a county commission pursuant to this article shall expire on the first day of the calendar quarter that begins one hundred twenty days after the following:

(1) If no special revenue bonds are issued as authorized by this article, the day the county commission notifies the Tax Commissioner in writing that its road construction projects financed, in whole or in part, with transportation sales and use tax revenue have been completed; or

(2) If special revenue bonds have been issued as authorized by this article, the West Virginia Economic Development Authority certifies to the county commission and to the Tax Commissioner that all principal and interest due, or to become due, on the bonds issued under this article has been paid or is otherwise provided for.

(d) Shorter period. – The county commission may set an earlier termination date for the county transportation sales and use tax imposed pursuant to this article: Provided, That no revenue bonds may have a final maturity date later than the termination date of the county transportation sales and use tax.

(e) Termination order. – Prior to expiration of the county transportation sales and use tax, the county commission shall adopt an order terminating the county transportation sales and use tax on the date specified therein: Provided, That the order may not extinguish any person’s liability for payment of county transportation sales and use taxes that were assessed prior to termination of the taxes.  With respect to any such taxes, the rights and duties of the taxpayer and of the State of West Virginia shall be fully and completely preserved.

(f) Prohibition on termination or rate reduction. – The county commission may not repeal the order imposing a county transportation sales and use tax pursuant to this article, or reduce the rate at which the county transportation sales and use taxes are imposed so long as any revenue bonds secured by the taxes remain outstanding, unless payment of the bonds has been secured in full.

PART III. IMPLEMENTATION OF ROAD CONSTRUCTION PROJECT PLAN.

§7-27-12.  Order adopting road construction project plan or plan amendment.

Upon approval of a road construction project plan or an amendment to an existing project plan by the Commissioner of Highways, and approval of the voters in the referendum provided in section nine of this article, the county commission shall enter an order that:

(1) Describes each approved road construction project sufficiently to identify with ordinary and reasonable certainty the geographic location in the county of each road construction project included in the county’s plan;

(2) Identifies the road construction project plan by the name assigned by the Commissioner of Highways, and identifies each project within the road construction project plan by the project number assigned by the Commissioner of Highways; and

(3) Establishes a county transportation sales tax and a county transportation use tax as provided in this article at rates not to exceed one percent: Provided, That the rate of the sales tax and the rate of the use tax shall at all times be identical.

§7-27-13.   Joint road construction projects.

(a) The Legislature hereby finds and declares that the citizens of the state would benefit from coordinated road construction efforts by county commissions funded by county transportation sales and use taxes imposed pursuant to this article.

(b) Notwithstanding any other section of this code to the contrary, any two or more county commissions may contract to share expenses and dedicate county funds or county transportation sales and use tax revenues, on a pro rata basis, to facilitate construction of one or more road construction projects: Provided, That each of the road construction projects must be a part of a road construction project plan created and approved pursuant to this article by each county commission contracting to share expenses and funds.

(c) When a road construction project begins in one county and ends in one or more other counties of this state, the county commission of each county may, by resolution, adopt a written intergovernmental agreement with each county and the Commissioner of Highways regarding the proposed multicounty road construction project.

(d) No county commission may withdraw from an intergovernmental agreement so long as revenue bonds, the proceeds of which were used by the Commissioner of Highways to finance construction of the road, remain outstanding.

(e) No county commission that withdraws from an intergovernmental agreement shall be entitled to the return of any money or property advanced to the road construction project.

(f) Notwithstanding any provision of this code to the contrary, any county commission imposing county transportation sales and use taxes pursuant to this article may enter into an intergovernmental agreement with one or more other counties that also impose transportation sales and use taxes pursuant to this article that have an interest in completion of a proposed road construction project, with respect to the pooling of county transportation sales and use tax revenues to finance construction of the road construction project either on a cash basis or to pay debt service on revenue bonds issued by the West Virginia Economic Development Authority to fund the road construction project.

(g) The obligations of the parties under any intergovernmental agreement executed pursuant to this article may not be considered debt within the meaning of sections six or eight, article X of the Constitution of West Virginia.

(h) Any intergovernmental agreement shall be approved by resolution adopted by a majority vote of the county commission of each county participating in the agreement and by the Commissioner of Highways.  After the resolution is adopted, the agreement shall be signed by at least one member of the county commission and by the Commissioner of Highways.

(i) The Commissioner of Highways may enter into intergovernmental agreements with county commissions or other political subdivisions of the state, or with the federal government or any agency thereof, respecting the financing, planning, and construction of roads and bridges constructed pursuant to this article.

§7-27-14.  Creation of County Road Improvement Account.

(a) Account created. – There is hereby created in the State Treasury a Special Revenue Revolving Fund account known as the ‘County Road Improvement Account’ which is an interest-bearing account that shall be invested in the manner described in section nine-c, article six, chapter twelve of this code, with the interest income a proper credit to the account.

(b) County subaccount. – A separate and segregated subaccount within the account shall be established for each county that imposes a county transportation sales and use tax pursuant to this article.

(c) Additional funds. – In addition to the county transportation sales and use taxes levied and collected as provided in this article, funds paid into the account for the credit of any subaccount may also be derived from the following sources:

(1) All interest or return on the investment accruing to the subaccount;

(2) Any gifts, grants, bequests, transfers, appropriations or donations which are received from any governmental entity or unit or any person, firm, foundation or corporation; and

(3) Any appropriations by the Legislature which are made for this purpose.

(d) Expenditures from account. – The Commissioner of Highways may withdraw funds from a county’s subaccount only in accordance with one or more intergovernmental agreements or contracts executed by the county commission of that county.

§7-27-15.  Cash basis projects; issuance of road construction special revenue bonds by West Virginia Economic Development Authority.

(a) Cash basis projects. – Each county commission that has a subaccount in the County Road Improvement Account established pursuant to this article may, in its discretion and pursuant to an intergovernmental written agreement with the county commission, authorize the Commissioner of Highways to use the moneys in its subaccount to finance the costs of road construction projects in the county on a cash basis.

(b) Special revenue bonds. – The county commission may, by intergovernmental written agreement, authorize the West Virginia Economic Development Authority to issue, in the manner prescribed by this article, special revenue bonds secured by county transportation sales and use taxes imposed pursuant to this article to finance or refinance all or part of a road construction project in the county and pledge all or any part of the county transportation sales and use taxes for the payment of the principal of and interest on such bonds and the reserves therefor.

§7-27-16.  Commissioner's authority over road construction projects accepted into the state road system; use of state road funds.

(a) Notwithstanding anything in this article to the contrary, the Commissioner of Highways has final approval of any road construction project.  However, no state road funds may be used, singly or together with funds from any other source, for any purpose or in any manner contrary to or prohibited by the Constitution and laws of this state or the federal government or where such use, in the sole discretion of the Commissioner of Highways, would jeopardize receipt of federal funds.

(b) All road construction projects that shall be accepted as part of the state road system, and all real property interests and appurtenances, are under the exclusive jurisdiction and control of the Commissioner of Highways, who may exercise the same rights and authority as he or she has over other transportation facilities in the state road system.

§7-27-17.  Qualifying a transportation project as a public improvement.

All road construction projects authorized under this article are public improvements subject to article one-c, chapter twenty-one of this code, and either article twenty-two, chapter five of this code or article two-d, chapter seventeen of this code.

§7-27-18.  Reports by Commissioner of Highways.

Each year, the Commissioner of Highways shall prepare a report giving the status of each road construction project being constructed pursuant to this article and file it by October 1 with the Governor, the Joint Committee on Government and Finance of the Legislature and with each county commission with which the Commissioner of Highways has an intergovernmental agreement executed pursuant to this article.  The report shall include the following information:

(1) The identification, by county, of each road construction project for which an intergovernmental agreement has been executed pursuant to this article, and the status of the road construction project as of June 30 preceding the due date of the report;

(2) The estimated cost of each road construction project included in the report;

(3) The source or sources of funding for each road construction project included in the report;

(4) If revenue bonds have been issued by the West Virginia Economic Development Authority, the amount of the bonds issued that are outstanding as of June 30 preceding the due date of the report for each project included in the report;

(5) The balance as of June 30 preceding the due date of the report of each county's subaccount in the County Improvement Account;

(6) The amount of county transportation sales and use taxes deposited into each county's subaccount in the County Road Improvement Account during the fiscal year ending June 30 preceding the due date of the report; and

(7) The amount the Commissioner of Highways withdrew from each county's subaccount in the County Road Improvement Account during the fiscal year ending June 30 preceding the due date of the report to pay debt service on revenue bonds issued pursuant to this article or to construct projects financed on a pay-as-you-go basis.

PART IV. COUNTY ROAD CONSTRUCTION SPECIAL REVENUE BONDS.

§7-27-19.  Issuance of county road construction special revenue bonds.

Special revenue bonds may be issued by the West Virginia Economic Development Authority pursuant to an intergovernmental written agreement between the county commission and the Commissioner of Highways to finance or refinance, in whole or in part, road construction projects in an aggregate principal amount not exceeding the amount which the county commission(s) and the Authority mutually agree can be paid as to both principal and interest and reasonable margins for a reserve, if any, therefor from county transportation sales and use tax collections.  In the discretion of the Authority, special revenue bonds issued pursuant to this article may be issued for road construction projects in two or more counties.

(1) The Authority shall establish a fund to deposit county transportation sales and use tax collections to pay debt service on the bonds.

(2) The State Treasurer shall thereafter transfer from the county's subaccount all county transportation sales and use tax revenues pledged to the payment of principal and interest of the road construction special revenue bonds into the fund established under subdivision (1) of this section.

(3) The road construction special revenue bonds shall be authorized to be issued by the Authority pursuant to this article, and shall be secured, shall bear such date and shall mature at such time, not exceeding thirty years from the date of issue, shall bear interest at such rate or rates, including variable rates, be in such denominations, be in such form, carry such registration privileges, be payable in such medium of payment and at such place or places and such time or times and be subject to such terms of redemption as the Authority may authorize.  Road construction special revenue bonds may be sold by the West Virginia Economic Development Authority, at public or private sale, at or not less than the price the Authority determines.  The road construction special revenue bonds shall be executed by manual or facsimile signature of an authorized officer of the West Virginia Economic Development Authority.  In case any authorized officer whose signature, or a facsimile of whose signature, appears on any bond ceases to be an authorized officer before delivery of those bonds, the signature or facsimile is nevertheless sufficient for all purposes the same as if he or she had remained in office until the delivery.

§7-27-20.  Trustee for bondholders; contents of trust agreement; pledge or assignment of revenues and funds.

For bonds issued pursuant to this article, any bonds, including refunding bonds issued by the Authority, may be secured by a trust agreement between the Authority and a corporate trustee, which trustee may be any bank or trust company within or without the state.  Any such trust agreement may contain binding covenants with the holders of the bonds as to any matter or provisions as are considered necessary or advisable to the Authority to enhance the marketability and security of the bonds and may also contain such other provisions with respect thereto as the Authority may authorize and approve.  Any trust agreement may contain a pledge or assignment of revenues to be received in connection with the financing.

§7-27-21.  Refunding bonds.

Any bonds issued by the West Virginia Economic Development Authority pursuant to the provisions of this article or any other provision of this code and at any time outstanding may at any time and from time to time be refunded by the Authority by the issuance of its refunding bonds in such amount as it may consider necessary to refund the principal of the bonds so to be refunded, together with any unpaid interest thereon, to provide additional funds to approved project costs and to pay any premiums and commissions necessary to be paid in connection therewith.  Refunding may be effected by whether the bonds to be refunded have then matured or thereafter mature, either by sale of the refunding bonds and the application of the proceeds thereof for the redemption of the bonds to be refunded thereby or by exchange of the refunding bonds for the bonds to be refunded thereby. Refunding bonds shall be issued in conformance with the provisions of this article related to issuance of bonds.

§7-27-22.  Obligations of the West Virginia Economic Development Authority undertaken pursuant to this article not debt of state, county, municipality or any political subdivision.

(a) Bonds, including refunding bonds, issued under this article and any other obligations undertaken by the West Virginia Economic Development Authority pursuant to this article, do not constitute a debt or a pledge of the faith and credit or taxing power of this state or of any county, municipality or any other political subdivision of this state, and the holders and owners thereof have no right to have taxes levied by the Legislature or the taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon.  The bonds and other obligations are payable solely from the revenues and funds pledged for their payment as authorized by this article unless the bonds are refunded by refunding bonds issued under the authority of this article, which bonds or refunding bonds shall be payable solely from revenues and funds pledged for their payment as authorized by this article.

(b) All bonds, and all documents evidencing any other obligation, shall contain on the face thereof a statement to the effect that the bonds or other obligation as to both principal and interest are not debts of the state or any county, municipality or political subdivision thereof, but are payable solely from revenues and funds pledged for their payment as authorized by this article.

§7-27-23.  Negotiability of bonds issued pursuant to this article.

Whether or not the bonds issued pursuant to this article are of the form or character as to be negotiable instruments under the Uniform Commercial Code, the bonds are negotiable instruments within the meaning of and for all the purposes of the Uniform Commercial Code, subject only to the provisions of the bonds for registration.

§7-27-24.  Exemption from taxation.

All bonds issued by the Authority pursuant to this article, and all interest and income thereon, are exempt from all taxation by this state and any county, municipality, political subdivision or agency thereof, except inheritance taxes.

§7-27-25.  Personal liability; persons executing bonds issued pursuant to this article.

Neither the West Virginia Economic Development Authority, nor any officer or employee of the West Virginia Economic Development Authority, or any person executing the bonds issued pursuant to the provisions of this article, are liable personally on the bonds or subject to any personal liability or accountability by reason of the issuance thereof.

§7-27-26.  Cumulative authority as to powers conferred; applicability of other statutes and charters; bonds issued pursuant to this article.

The provisions of this article relating to the issuance of bonds shall be construed as granting cumulative authority for the exercise of the various powers herein conferred, and neither the powers nor any bonds issued hereunder are affected or limited by any other statutory or charter provision now or hereafter in force, other than as may be provided in this article, it being the purpose and intention of this article to create full, separate and complete additional powers.  The various powers conferred herein may be exercised independently and notwithstanding that no bonds are issued hereunder.

PART V.  COUNTY TRANSPORTATION SALES AND USE TAXES.

§7-27-27.  Criteria and requirements necessary to impose county transportation sales and use taxes.

As a prerequisite to imposing county transportation sales and use taxes, the county commission shall have entered into one or more intergovernmental agreements with the Commissioner of Highways pursuant to which the county commission agrees to finance one or more road construction projects in the county, in whole or in part, using collections of the county transportation sales and use taxes deposited in the county’s subaccount in the County Road Improvement Account.

§7-27-28.  Counties authorized to impose county transportation sales and use taxes.

(a) In addition to all other powers and duties now conferred by law upon county commissions, said county commissions, may, after first satisfying the requirements of the preceding section, adopt an order duly entered of record imposing county transportation sales and use taxes as provided in this article.

(b) Rate of county transportation sales and use taxes. – The rate of the county transportation sales tax and the rate of the county transportation use tax shall be identical and may not exceed one percent of the purchase price subject to tax under article fifteen, chapter eleven of this code, or one percent of the value upon which the county transportation use tax is imposed.

(c) County transportation sales tax base. – In general, the tax base of the county transportation sales tax imposed pursuant to this article shall be identical to the consumer sales and service tax base of this state, except that:  (1) The exemption in section nine-f, article fifteen, chapter eleven of this code may not apply; (2) the county sales tax may not apply when taxation is prohibited by federal law; and (3) the county sales tax may not apply as provided in subsection (e) of this section.

(d) County transportation use tax base. – The base of a county transportation use tax imposed pursuant to this article shall be identical to the base of the use tax imposed pursuant to article fifteen-a, chapter eleven of this code, on the use of tangible personal property, custom software and taxable services, within the boundaries of the county, except that: (1) The exemption in section nine-f, article fifteen, chapter eleven of this code may not apply; (2) the county sales tax may not apply when taxation is prohibited by federal law; and (3) the county sales tax may not apply as provided in subsection (e) of this section.

(e) Exceptions. – County sales and use taxes may not apply to:

(1) Sales and uses of motor vehicles upon which the tax imposed by section three-c, article fifteen, chapter eleven of this code was paid or is payable;

(2) Sales and uses of motor fuel upon which or with respect to which the taxes imposed by articles fourteen-a and fourteen-c, chapter eleven of this code was paid or is payable;

(3) Any sale of tangible personal property or custom software or the furnishing of a service that is exempt from the tax imposed by article fifteen, chapter eleven of this code;

(4) Any use of tangible personal property, custom software or the results of a taxable service that is exempt from the tax imposed by article fifteen-a, chapter eleven of this code, except that this exception may not apply to any use within the county when the state consumer sales and service tax imposed by article fifteen, chapter eleven of this code, was paid to the seller at the time of purchase but the county transportation sales tax was not paid to the seller; and

(5) Any sale or use of tangible personal property, custom software, taxable service that the county is prohibited from taxing by federal law or the laws of this state.

(f) Whenever tangible personal property, custom software, or a taxable service is purchased in a county of this state that does not impose county transportation sales and use taxes pursuant to this article and the tangible personal property, custom software or results of a taxable service are used in a county that does impose county transportation sales and use taxes pursuant to this article:

(1) A vendor who delivers the tangible personal property, custom software or results of a taxable service to a purchaser, or the purchaser’s donee, located in a county that imposes county transportation sales and use taxes pursuant to this article, shall collect, add the tax to the purchase price and collect the tax from the purchaser; and

(2) A person using tangible personal property or custom software in a county of this state that imposes sales and use taxes pursuant to this article, shall remit the county’s use tax to the Tax Commissioner unless the amount of sales and use taxes imposed by the county in which the tangible personal property, custom software or taxable service was purchased were lawfully paid.

§7-27-29.  Notification of Tax Commissioner, Auditor and Treasurer.

(a) Any county that imposes a county transportation sales and use tax pursuant to this article, or changes the rate of the taxes, shall notify the Tax Commissioner at least one hundred eighty days before the effective date of the imposition of the taxes or the change in the rate of taxation and provide the commissioner with a certified copy of the order of the county commission imposing the taxes or changing the rates of taxation.

(b) A copy of the notice shall at the same time be furnished to the State Auditor and the State Treasurer.

§7-27-30.  State level administration of county transportation sales and use taxes required; fee for services.

(a) State administration required. – Any county commission that imposes a county transportation sales and use tax may not administer, collect or enforce those taxes.  Authority to administer, collect and enforce county transportation sales and use taxes is vested solely in the Tax Commissioner as required by article fifteen-b, chapter eleven of this code.

(b) Fee for services. – The Tax Commissioner may assess a fee to be retained from collections authorized by this article.  Said fee shall not exceed the lesser of the cost of the service provided or five percent of the net amount of the taxes imposed pursuant to this article that are collected by the Tax Commissioner during any fiscal year, notwithstanding any provision of this code or rule to the contrary.  For purposes of calculating the cost of the service provided, the provisions of section eleven-c, article ten, chapter eleven of this code and the legislative rules promulgated pursuant thereto shall be utilized.

(c) Deposit of fees in special revenue account. – The fees retained by the Tax Commissioner pursuant to subsection (b) of this section shall be deposited in the Local Sales Tax and Excise Tax Administration Fund, created pursuant to section eleven-c, article ten, chapter eleven of this code.

§7-27-31.  County transportation sales tax collected from purchaser.

A vendor selling tangible personal property or custom software or furnishing a service in a county that imposes a county transportation sales tax pursuant to this article shall for the privilege of doing business in the county collect the county transportation sales tax from the purchaser at the same time and in the same manner that the tax imposed by article fifteen, chapter eleven of this code, is collected from the customer.  All sales of tangible personal property and custom software made in the county and all services furnished in the county are presumed to be subject to the county transportation sales tax unless an exemption or exception applies.

§7-27-32.  Payment of county transportation use tax.

A county transportation use tax imposed pursuant to this article shall be paid to the Tax Commissioner by the user of tangible personal property or custom software or the results of a taxable service in the county that imposes the county transportation use tax, unless the county's use tax is collected by a retailer located outside the county that is a retailer engaging in business in the county as defined in this article, or the retailer is an out-of-state retailer who is required to collect West Virginia state and local use taxes.

§7-27-33.  County transportation sales and use taxes in addition to other taxes.

County transportation sales and use taxes imposed pursuant to this article shall be collected and paid in addition to:

(1) The state consumer sales and service tax imposed by article fifteen, chapter eleven of this code;

(2) The state use tax imposed by article fifteen-a, chapter eleven of this code;

(3) Any hotel occupancy tax imposed pursuant to section one, article eighteen of this chapter;

(4) Any tax imposed pursuant to article twenty-two of this chapter;

(5) Any municipal sales or use tax imposed pursuant to section five-a, article one, chapter eight of this code;

(6) Any tax imposed pursuant to sections six and seven, article thirteen, chapter eight of this code;

(7) Any tax imposed by article thirty-eight, chapter eight of this code; and

(8) The tax imposed by section twenty-one, article three-a, chapter sixty of this code.

§7-27-34.  Credit for sales tax paid to another county.

(a) A person is entitled to a credit against the use tax imposed by a county commission pursuant to this article on the use of tangible personal property, custom software or the results of a taxable service in the county equal to the amount, if any, of sales tax lawfully paid to another county for the acquisition of that tangible personal property, custom software or taxable service.  However, the amount of credit allowed may not exceed the amount of use tax imposed on the use of the property or service in the county of use and no credit may be allowed for payment of county special district excise taxes imposed pursuant to article twenty-two of this chapter.

(b) For purposes of this section:

(1) ‘County’ means a county in this state or a comparable unit of local government in another state;

(2) ‘Sales tax’ includes a sales tax, or a compensating use tax, lawfully imposed on the sale or use of tangible personal property, custom software or a taxable service by the county, as appropriate, in which the sale or first use occurred; and

(3) ‘State’ includes the fifty states of the United States and the District of Columbia but does not include any of the several territories organized by Congress.

(c) No credit is allowed under this section for payment of any sales or use taxes imposed by this state or by any other state.

§7-27-35.  Sourcing rules for county transportation sales and use taxes.

Sales, purchases and uses of tangible personal property, custom software and taxable services shall be sourced for purposes of imposition and payment of county transportation sales and use taxes imposed pursuant to this article in accordance with the sourcing rules set forth in article fifteen-b, chapter eleven of this code applicable to the taxes imposed by articles fifteen and fifteen-a, chapter eleven of this code.

§7-27-36.  Application of state consumers sales and service tax provisions.

(a) Application of state sales tax. – The provision of article fifteen, chapter eleven of this code, and any subsequent amendments to that article and the administrative rules of the Tax Commissioner relating to article fifteen of chapter eleven shall apply to a county transportation sales tax imposed pursuant to this article to the extent that article and the rules are applicable to the tax imposed by the county.

(b) Application of state use tax law. – The provisions of article fifteen-a, chapter eleven of this code, and any subsequent amendments to that article and the rules of the Tax Commissioner relating to article fifteen-a of chapter eleven shall apply to a county transportation use tax imposed pursuant to this article to the extent the rules and laws are applicable.

(c) Definitions incorporated. – Any term used in this article or in an order adopted by a county commission pursuant to this article imposing county transportation sales and use taxes that is defined in articles fifteen, fifteen-a and fifteen-b, chapter eleven of this code and used in those articles in a similar context, shall have the same meaning when used in this article or in an order entered by the county commission pursuant to this article imposing county transportation sales and use taxes, unless the context in which the term is used clearly indicates that a different result is intended by the Legislature.

§7-27-37.  Application of West Virginia Tax Procedure and Administration Act.

Every provision of the West Virginia Tax Procedure and Administration Act set forth in article ten, chapter eleven of this code, and as amended from time to time by the Legislature, applies to the taxes imposed pursuant to this article, except as otherwise expressly provided in this article, with like effect as if that act were applicable only to the taxes imposed by this article and were set forth in extensor in this article or the order entered by the county commission imposing the taxes pursuant to this article.

§7-27-38.  Application of West Virginia Tax Crimes and Penalties Act.

Every provision of the West Virginia Tax Crimes and Penalties Act set forth in article nine, chapter eleven of this code, and as amended from time to time by the Legislature, applies to the taxes imposed pursuant to this article with like effect as if that act were applicable only to the taxes imposed pursuant to this article and were set forth in extensor in this article or the order entered by the county commission imposing the taxes pursuant to this article.

§7-27-39.  Local rate and boundary changes.

(a) General. – New county transportation sales and use taxes and any change in the rate of existing county transportation sales and use taxes shall first apply and be collected and paid only on the first day of a calendar quarter that begins at least sixty days after the Tax Commissioner notifies sellers of the imposition of the county taxes, or a change in the rate of those taxes, except as provided in subsection (b) of this section.

(b) Printed catalogs. – County transportation sales and use taxes and any change in the rate of taxation shall first apply to purchases from printed catalogs where the purchaser computed the tax based upon the local tax rate published in the catalog only on and after the first day of a calendar quarter that begins after the Tax Commissioner provides sellers at least one hundred twenty days' notice of imposition of the tax or a change in the rate of taxation.

(c) County boundary changes. – A county boundary change shall first apply for purposes of computation of a county transportation sales and use taxes on the first day of a calendar quarter that begins at least sixty days after the Tax Commissioner notifies sellers of the boundary change.

§7-27-40.  Deposit of county transportation sales and use taxes; payment to Division of Highways.

(a) All county sales and use taxes collected by the Tax Commissioner under this article shall be collected and paid to the credit of each county commission's subaccount in the ‘County Road Improvement Account’ established pursuant to this article.

(b) The credit shall be made to the subaccount of the county commission of the county in which the taxable sales were made and services rendered or taxable uses occurred as shown by the records of the Tax Commissioner and certified by the Tax Commissioner to the State Treasurer, namely, the location of each place of business of every vendor collecting and paying sales and use taxes to the Tax Commissioner without regard to the place of possible use by the purchaser and by every person remitting county transportation use tax to the Tax Commissioner or paying the county's use tax to the Tax Commissioner.

(c) As soon as practicable after the county transportation sales and use taxes for a particular county have been paid into the county’s subaccount of the ‘County Road Improvement Account’ in any month for the preceding reporting period, the Commissioner of Highways or the West Virginia Economic Development Authority may issue a requisition to the Auditor requesting issuance of a state warrant for the funds of the county in its subaccount, as provided for by the intergovernmental agreement or agreements executed by the Commissioner of Highways and the county commission.

(1) Upon receipt of the requisition, the Auditor shall issue his or her warrant on the State Treasurer for the funds requested and the State Treasurer shall pay the warrant out of the subaccount.

(2) If errors are made in any payment, or adjustments are otherwise necessary, whether attributable to refunds to taxpayers or to some other fact, the errors shall be corrected and adjustments made in the payments for the next six months as follows:  One sixth of the total adjustment shall be included in the payments for each month for the next six months, to be paid in full during this six months period.  In addition, the payment shall include a refund of amounts erroneously not paid to the subaccount of the county commission and not previously remitted to the county’s subaccount during the three years preceding the discovery of the error.

(3) A correction and adjustment in payments described in this subsection due to the misallocation of funds by the person remitting the tax shall be made within three years of the date of the payment error.

§7-27-41.  Effective date of county transportation sales and use tax.

(a) Notwithstanding the effective date of an order of the county commission imposing a county transportation sales and use tax, or changing the rate of tax, the tax or a rate change may not become operational and no vendor may be required to collect the tax and no purchaser or user may be required to pay the tax until the first day of a calendar quarter that begins at least sixty days after the Tax Commissioner complies with the requirements of section thirty-five, article fifteen-b, chapter eleven of this code.

(b) The Tax Commissioner shall issue his or her notice to vendors and other persons required to collect sales and use taxes within thirty days after receiving notice from the county:

(1) A certified copy of the order of the county commission imposing a county transportation sales and use tax, or changing the rate of tax, notwithstanding any other provision of this code or rule to the contrary;

(2) The rate and boundary database of the county identifying all of the five digit zip codes and nine-digit zip codes located in the county in conformity with the requirements for West Virginia to maintain full membership in the Streamlined Sales Tax Governing Board pursuant to article fifteen-b, chapter eleven of this code; and

(3) Such other information as the Tax Commissioner may reasonably require.

§7-27-42.  Early retirement of special revenue bonds; termination of county transportation sales and use taxes; excess funds.

(a) General.  – When special revenue bonds have been issued as provided in this article and the amount of county transportation sales and use taxes collected, less costs of administration, collection and enforcement, exceeds the amount needed to pay project costs and annual debt service, including the funding of required debt service and maintenance reserves, if any, the additional amount remaining in the county's subaccount in the County Road Improvement Account shall be used to retire outstanding revenue bonds before their maturity date in accordance with the terms of such bonds.

(b) Termination of county transportation sales and use taxes. – Once the special revenue bonds issued as provided in this article are no longer outstanding or have been defeased, and no additional road construction projects have been requested and approved by the Commissioner of Highways, the county transportation sales and use taxes shall be discontinued by order adopted by the county commission as provided in this article.  Termination of the county transportation sales and use taxes as provided in this section may not bar or otherwise prevent the Tax Commissioner from collecting county transportation sales and use taxes that accrued before the termination date and the rights of the state and the taxpayers as to those taxes shall be preserved.

(c) Excess funds. – After all intergovernmental agreements with the Commissioner of Highways have ended and all debt service on special revenue bonds issued to finance, in whole or in part, the road construction projects has been paid or provided for, and county transportation sales and use taxes imposed by the county have terminated, the Commissioner of Highways shall forward the unencumbered balance of moneys remaining in the county's subaccount in the County Road Improvement Account to the county commission of that county for deposit in the county's general fund.

PART VI.  MISCELLANEOUS.

§7-27-43.  Powers supplemental.

(a) County commissions. – The powers conferred by this article are in addition and supplemental to the powers conferred upon county commissions by the Legislature elsewhere in this chapter.

(b) Commissioner of Highways. – The powers conferred by this article are in addition and supplemental to the powers conferred upon the Commissioner of Highways, the Division of Highways, and the Department of Transportation by the Legislature elsewhere in this code.

(c) West Virginia Economic Development Authority. -  The powers conferred by this article are in addition and supplemental to the powers conferred upon the West Virginia Economic Development Authority by the Legislature elsewhere in this code.

§7-27-44.  Public officials exempt from personal liability.

No member of a county commission or other county officer may be personally liable on any contract or obligation executed pursuant to the authority contained in this article, nor may these contracts or obligations or the issuance of revenue bonds by the Authority secured by county transportation sales and use taxes imposed by county commissions under this article be considered as misfeasance in office.    

§7-27-45.  Severability.

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this article is for any reason held to be invalid, unlawful or unconstitutional, that decision does not affect the validity of the remaining portions of this article or any part thereof.

CHAPTER 31. CORPORATIONS

ARTICLE 15. WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY.

§31-15-16c. Bonds for county capital improvements; limitations; authority to issue revenue bonds; use of funds to pay for projects.

(a) The West Virginia Economic Development Authority may, in accordance with the provisions of this article and article twenty seven, chapter seven of this code, issue special revenue bonds from time to time, to pay for a portion of the cost of constructing, equipping, improving or maintaining road projects under article twenty seven, chapter seven of this code or to refund the bonds, at the request of the county. The principal amount of the bonds issued under this section may not exceed, in the aggregate, an amount that, in the opinion of the Authority, is necessary to provide sufficient funds for achievement of the purposes of this section and article twenty seven, chapter seven of this code, and is within the limits of moneys pledged for the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding bonds authorized by this section and article twenty seven, chapter seven of the code. Any revenue bonds issued on or after the effective date of this section which are secured by county transportation sales and use tax shall mature at a time or times not exceeding thirty years from their respective dates except as otherwise provided in article twenty-seven, chapter seven of the code. The principal, interest and redemption premium, if any, on the bonds shall be payable solely from the county’s subaccount in the County Road Improvement Account in the State Treasury established in article twenty-seven, chapter seven of this code.

(b) All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this section. The Authority may further provide in the trust agreement for priorities on the revenues paid into the county's subaccount in the County Road Improvement Account as may be necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section or article twenty seven, chapter seven of this code. The bonds issued pursuant to this section shall be separate from all other bonds which may be or have been issued from time to time under the provisions of this article or article twenty seven, chapter seven of this code. The debt service fund established for each bond issue shall be pledged solely for the repayment of bonds issued pursuant to this section and article twenty seven, chapter seven of this code. On or prior to May 1 of each year, commencing May 1, 2017, the Authority shall certify to each county commission the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds or refunding revenue bonds issued pursuant to this section, and for which moneys deposited in the debt service fund have been pledged, or will be pledged, for repayment pursuant to this section.

(c) After the Authority has issued bonds authorized by this section, and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this section, any balance remaining in the debt service fund may be used for the redemption of any of the outstanding bonds issued under this section which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued. Any funds not used as provided in this subsection shall be returned to the county commission of the county for which the bonds were issued.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4009 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §7-27-1, §7-27-2, §7-27-3, §7-27-4, §7-27-5, §7-27-6, §7-27-7, §7-27-8, §7-27-9, §7-27-10, §7-27-11, §7-27-12, §7-27-13, §7-27-14, §7-27-15, §7-27-16, §7-27-17, §7-27-18, §7-27-19, §7-27-20, §7-27-21, §7-27-22, §7-27-23, §7-27-24, §7-27-25, §7-27-26, §7-27-27, §7-27-28, §7-27-29, §7-27-30, §7-27-31, §7-27-32, §7-27-33, §7-27-34, §7-27-35, §7-27-36, §7-27-37, §7-27-38, §7-27-39, §7-27-40, §7-27-41, §7-27-42, §7-27-43, §7-27-44 and §7-27-45, and to amend said code by adding thereto a new section, designated §31-15-16c, all relating to road construction projects; creating a short title; setting forth legislative findings and purpose; defining terms; authorizing county commissions to propose creation of road construction project plans; requiring public hearing; setting requirements for notice of public hearing; permitting submission of written comments; authorizing finalization of road construction project plan after public hearing by resolution of county commission; requiring prioritization of projects within road construction project plan; requiring consent of municipalities when road construction project plan located within its boundaries; authorizing submission of road construction project plan to Commissioner of Highways; identifying contents of application; requiring Commissioner of Highways review all proposed road construction project plans; setting forth criteria for review of plans; requiring decision of Commissioner of Highways within sixty days of receipt; providing certification of approved project by Commissioner of Highways; requiring assignment of name to project plan and individual projects within plan by Commissioner of Highways; granting legislative rulemaking authority; requiring referendum for approval of certain road construction project plans; setting requirements for referendum election; prohibiting proceeding with road construction project plan to be financed by county transportation sales and use tax or by issuance of special revenue bonds unless approved by the voters; providing for amendments to road construction plans; providing for termination of road construction project plan; providing for termination of county transportation sales and use taxes; prohibiting termination or rate reduction as long as revenue bonds remain outstanding, unless payment of special revenue bonds has been secured in full; directing county commission to enter order describing road construction project plan after approval of plan by Commissioner of Highways and voters of county; setting forth contents of order, including establishment of county transportation sales and use taxes; limiting county transportation sales and use taxes to one percent; requiring transportation sales and use taxes to be identical; allowing joint road construction project plans; clarifying that obligations of parties under intergovernmental agreements may not be considered debt within the meaning of section six or eight, article X of the Constitution of West Virginia; authorizing county commissions and Commissioner of Highways enter into intergovernmental agreements; creating County Road Improvement Account and subaccounts; authorizing deposit of funds from certain sources into account; authorizing certain expenditures from county subaccount; allowing road construction projects be financed on cash basis or by special revenue bonds issued by West Virginia Economic Development Authority; giving Commissioner of Highways final approval of all road construction projects; providing that all road construction projects accepted into state road system are under exclusive jurisdiction and control of Commissioner of Highways; specifying that road construction projects are public improvements; requiring annual reporting by Commissioner of Highways on county road construction projects; providing procedures and requirements for issuance of special revenue bonds by West Virginia Economic Development Authority; permitting special revenue bonds to be secured by trust agreement between Authority and corporate trustee; providing procedures and requirements for refunding bonds for county road construction projects; providing that bonds are not debts of state, county or any political subdivisions; providing that bonds are negotiable instruments; providing that bonds are exempt from taxation; specifying that neither West Virginia Economic Development Authority nor its officers or employees nor any persons executing bonds have personal liability on issued bonds; providing that powers relating to road construction project plans, construction of projects and issuance of special revenue bonds are additional powers; requiring county to enter into one or more intergovernmental agreements with Commissioner of Highways prior to imposing county transportation sales and use taxes; allowing county commissions with approved road construction projects to impose county transportation sales and use taxes; limiting rate of taxes; establishing tax base for county transportation sales and use taxes; providing exceptions to tax base; setting forth provisions for when purchases are made in county without county transportation sales and use taxes and purchase are used in county that does impose county transportation sales and use taxes; requiring county to notify Tax Commissioner at least one hundred eighty days before effective date of imposition of county transportation sales and use taxes; requiring copy of notice be sent to State Auditor and State Treasurer; requiring Tax Commissioner to administer, collect and enforce county transportation sales and use tax; authorizing Tax Commissioner to assess a fee for collection of county transportation sales and use taxes; providing for calculation of cost of service; providing for deposit of fees retained by Tax Commissioner into Local Sales Tax and Excise Tax Administration Fund; requiring certain vendors to collect county transportation sales tax; providing for payment of county transportation use tax to Tax Commissioner; clarifying that county transportation sales and use taxes are to be collected and paid in addition to certain other taxes; granting purchaser credit against county transportation use tax for sales tax paid in another county; making county transportation sales and use taxes subject to sourcing rules; making applicable provisions of law related to state consumer sales and service tax provisions and state consumer use tax provisions;

making county transportation sales and use taxes subject to West Virginia Tax Procedure and Administration Act; making West Virginia Tax Crimes and Penalties Act applicable to county transportation sales and use taxes; providing for date of first application for county transportation sales and use taxes; providing for deposit of county transportation sales and use taxes into subaccount of county in County Road Improvement Account; providing for crediting of county transportation sales and use taxes; authorizing issuance of requisition to Auditor to request issuance of state warrant for funds in county subaccount; requiring actions by State Auditor and State Treasurer upon receipt of requisition; providing for correction and adjustment to payments; setting effective date of county transportation sales and use tax; requiring county commissions to develop and maintain county rate and boundary databases; requiring county commission to notify Tax Commissioner if tax has been imposed or tax rate has changed; authorizing early retirement of special revenue bonds under certain conditions; authorizing termination of county transportation sales and use taxes once special revenue bonds are no longer outstanding or have been defeased; providing for excess funds be forwarded to county commission for deposit in county’s general fund; providing that all powers are supplemental; exempting public officers from personal liability; providing for severability; authorizing West Virginia Economic Development Authority to issue bonds for county capital improvements; setting requirements on issuance of bonds; setting certain terms for revenue bonds; providing for handling of moneys deposited in account; providing for establishment of debt service fund for each bond issue; requiring West Virginia Economic Development Authority certify annually to county commission certain information regarding bond issue; providing for disposition of balance remaining in debt service fund after bond issued and requirements have been satisfied; and directing generally how the West Virginia Economic Development Authority implements and manages bonds issued for county road construction projects.”

Delegate Cowles moved that the House of Delegates concur in the Senate amendments.

On this motion, the yeas and nays were demanded, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 601), and there were--yeas 65, nays 33, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Azinger, Bates, Blair, Butler, Cadle, Duke, Espinosa, Faircloth, Fast, Folk, Foster, Frich, Gearheart, Hamrick, Hill, Householder, Howell, Ihle, Kelly, Lane, McGeehan, Moffatt, Moye, J. Nelson, Overington, Pushkin, Rowan, Rowe, P. Smith, R. Smith, Sponaugle, Upson and Wagner.

Absent and Not Voting: Moore and Reynolds.

So, a majority of the members present and voting having voted in the affirmative, motion to concur in the Senate amendments was adopted.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 602), and there were--yeas 57, nays 40, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Azinger, Bates, Blair, Butler, Cadle, Cooper, Duke, Espinosa, Faircloth, Fast, Folk, Foster, Frich, Gearheart, Hamrick, Hill, Householder, Howell, Ihle, Lane, Lynch, McGeehan, Moffatt, Moye, J. Nelson, O’Neal, Overington, Pushkin, Rodighiero, Rowe, P. Smith, R. Smith, Sobonya, Sponaugle, Stansbury, Storch, Upson, Wagner, Waxman and B. White.

Absent and Not Voting: Campbell, Moore and Reynolds.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4009) passed.

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

A message from the Senate, by

The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

Com. Sub. for H. B. 2826, Requiring the Commissioner of the Division of Highways to approve points of access to and from state highways to real property used or to be used for commercial, industrial or mercantile purposes; “Sarah Nott’s Law”.

On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

article 4.  STATE ROAD SYSTEM.

§17‑4‑49. Same ‑‑ Points of commercial, etc.; access to comply; plans, objections and procedures for new points; review of and changes in existing points; commissioner's preliminary determination; requiring notice.

(a) No new points of access to and from state highways from and to real property used or to be used for commercial, industrial or mercantile purposes may be opened, constructed or maintained without first complying with this section and sections forty-seven and forty-eight of this article.  Access points opened, constructed or maintained without compliance are unauthorized. 

(b) Plans for any new point of access shall be submitted to the Commissioner of Highways directly and the following rules shall apply:

(1) Notice of the proposed new point of access shall be filed with the commissioner, along with a plan of the proposed new point of access.

(2) The commissioner shall review the plan to ensure compliance with the policies stated in section forty-seven of this article and with any regulations issued by the commissioner under section forty-eight of this article.

(3) If the commissioner objects to a plan, he or she shall reduce his or her objections to the proposed new point of access to writing and promptly furnish notice of the objection to the owner or owners of the real property affected and advise the owner or owners of the right to demand a hearing on the proposed plan and the objections.  If a plan is not objected to within six weeks from the time it is filed with the commissioner, it is considered approved by the commissioner.

(4) In any case where the commissioner objects to the proposed new point of access, the owner or owners of the real property affected shall have reasonable opportunity for a hearing on such objections.

(c) (1) Existing points of access to and from state highways from and to real property used for commercial, industrial or mercantile purposes may be reviewed by the commissioner to determine whether such points of access comply with the policies stated in section forty-seven of this article and with any regulations issued by the commissioner under section forty-eight of this article.  The commissioner may direct reasonable changes in existing points of access to and from state highways from and to property used for commercial, industrial or mercantile purposes if he or she determines from accident reports or traffic surveys that the public safety is seriously affected by such points of access and that such reasonable changes would substantially reduce the hazard to public safety.  When such changes require construction, reconstruction or repair, such work shall be done at state expense as any other construction, reconstruction or repair.

(2) If the commissioner makes a preliminary determination that any changes should be made, the following rules apply:

(A) The commissioner shall reduce his or her preliminary determination to writing and promptly furnish notice of such preliminary determination to the owner or owners of the real property affected and of their right to demand a hearing on the preliminary determination.  The commissioner's notice shall include a description of suggested changes suitable for reducing the hazard to the public safety.

(B) In any case where the commissioner makes a preliminary determination that any changes should be made, the owner or owners of the real property affected shall have reasonable opportunity for a hearing on the preliminary determination.

(d) For points of access existing on or before July 1, 2016, to and from state highways from and to real property used for commercial, industrial or mercantile purposes if the access is more than fifty feet wide, the access is along a state highway with a speed limit of more than forty-five miles per hour and the commissioner deems it appropriate due to heavy traffic or other circumstances, the commissioner shall either place ‘no parking’ signs at each side of the driveway entrance fronting the state highway or clearly mark that right-of-way with yellow paint with the words ‘no parking’ or both to provide notice that parking is prohibited. 

(e) For points of access approved by the commissioner after July 1, 2016, to and from state highways from and to real property used for commercial, industrial or mercantile purposes if the access is more than fifty feet wide, the access is along a state highway with a speed limit of more than forty-five miles per hour and the commissioner deems it appropriate due to heavy traffic or other circumstances, the owner or owners of the real property shall be required to place ‘no parking’ signs at each side of the driveway entrance fronting the state highway or clearly mark that right-of-way with yellow paint with the words ‘no parking’ or both to provide notice that parking is prohibited.  This subsection and subsection (d) of this section shall be known as ‘Sarah Nott’s Law’.”

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 2826 - “A Bill to amend and reenact §17-4-49 of the Code of West Virginia, 1931, as amended, relating to access from and to commercial, industrial or mercantile establishments; requiring the Commissioner of the Division of Highways and owners of real property under certain circumstances to place ‘no parking’ signs or otherwise notify public that parking is prohibited; and designating law as ‘Sarah Nott’s Law’.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 603), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent and Not Voting: Moore and Reynolds.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2826) passed.

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

A message from the Senate, by

The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

H. B. 4033, Adding criminal penalties for the unauthorized practice of pharmacists care.

On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:

“That §30-5-12b of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §30-5-34 of said code be amended and reenacted, all to read as follows:

§30-5-12b. Definitions; selection of generic drug products; exceptions; records; labels; manufacturing standards; rules; notice of substitution; complaints; notice and hearing; immunity.

(a) As used in this section:

(1) ‘Brand name’ means the proprietary or trade name selected by the manufacturer and placed upon a drug or drug product, its container, label or wrapping at the time of packaging.

(2) ‘Generic name’ means the official title of a drug or drug combination for which a new drug application, or an abbreviated new drug application, has been approved by the United States Food and Drug Administration and is in effect.

(3) ‘Substitute’ means to dispense without the prescriber's express authorization a therapeutically equivalent generic drug product in the place of the drug ordered or prescribed.

(4) ‘Equivalent’ means drugs or drug products which are the same amounts of identical active ingredients and same dosage form and which will provide the same therapeutic efficacy and toxicity when administered to an individual and is approved by the United States Food and Drug Administration.

(b) A pharmacist who receives a prescription for a brand name drug or drug product shall substitute a less expensive equivalent generic name drug or drug product unless in the exercise of his or her professional judgment the pharmacist believes that the less expensive drug is not suitable for the particular patient: Provided, That no substitution may be made by the pharmacist where the prescribing practitioner indicates that, in his or her professional judgment, a specific brand name drug is medically necessary for a particular patient.

(c) A written prescription order shall permit the pharmacist to substitute an equivalent generic name drug or drug product except where the prescribing practitioner has indicated in his or her own handwriting the words ‘Brand Medically Necessary’. The following sentence shall be printed on the prescription form. ‘This prescription may be filled with a generically equivalent drug product unless the words 'Brand Medically Necessary' are written, in the practitioner's own handwriting, on this prescription form: Provided, That ‘Brand Medically Necessary’ may be indicated on the prescription order other than in the prescribing practitioner's own handwriting unless otherwise required by federal mandate.

(d) A verbal prescription order shall permit the pharmacist to substitute an equivalent generic name drug or drug product except where the prescribing practitioner shall indicate to the pharmacist that the prescription is ‘Brand Necessary’ or ‘Brand Medically Necessary’. The pharmacist shall note the instructions on the file copy of the prescription or chart order form.

(e) No person may by trade rule, work rule, contract or in any other way prohibit, restrict, limit or attempt to prohibit, restrict or limit the making of a generic name substitution under the provisions of this section. No employer or his or her agent may use coercion or other means to interfere with the professional judgment of the pharmacist in deciding which generic name drugs or drug products shall be stocked or substituted: Provided, That this section shall not be construed to permit the pharmacist to generally refuse to substitute less expensive therapeutically equivalent generic drugs for brand name drugs and that any pharmacist so refusing shall be subject to the penalties prescribed in section twenty-two thirty-four of this article.

(f) A pharmacist may substitute a drug pursuant to the provisions of this section only where there will be a savings to the buyer. Where substitution is proper, pursuant to this section, or where the practitioner prescribes the drug by generic name, the pharmacist shall, consistent with his or her professional judgment, dispense the lowest retail cost, effective brand which is in stock.

(g) All savings in the retail price of the prescription shall be passed on to the purchaser; these savings shall be equal to the difference between the retail price of the brand name product and the customary and usual price of the generic product substituted therefor: Provided, That in no event shall such savings be less than the difference in acquisition cost of the brand name product prescribed and the acquisition cost of the substituted product.

(h) (g) Each pharmacy shall maintain a record of any substitution of an equivalent generic name drug product for a prescribed brand name drug product on the file copy of a written, electronic or verbal prescription or chart order. Such record shall include the manufacturer and generic name of the drug product selected.

(i) (h) All drugs shall be labeled in accordance with the instructions of the practitioner.

(j) (i) Unless the practitioner directs otherwise, the prescription label on all drugs dispensed by the pharmacist shall indicate the generic name using abbreviations, if necessary, and either the name of the manufacturer or packager, whichever is applicable in the pharmacist's discretion. The same notation will be made on the original prescription retained by the pharmacist.

(k) (j) A pharmacist may not dispense a product under the provisions of this section unless the manufacturer has shown that the drug has been manufactured with the following minimum good manufacturing standards and practices by:

(1) Labeling products with the name of the original manufacturer and control number;

(2) Maintaining quality control standards equal to or greater than those of the United States Food and Drug Administration;

(3) Marking products with identification code or monogram; and

(4) Labeling products with an expiration date.

(l) (k) The West Virginia Board of Pharmacy shall promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code which establish a formulary of generic type and brand name drug products which are determined by the board to demonstrate significant biological or therapeutic inequivalence and which, if substituted, would pose a threat to the health and safety of patients receiving prescription medication. The formulary shall be promulgated by the board within ninety days of the date of passage of this section and may be amended in accordance with the provisions of chapter twenty-nine-a of this code.

(m) (l) No pharmacist shall substitute a generic-named therapeutically equivalent drug product for a prescribed brand name drug product if the brand name drug product or the generic drug type is listed on the formulary established by the West Virginia Board of Pharmacy pursuant to this article or is found to be in violation of the requirements of the United States Food and Drug Administration.

(n) (m) Any pharmacist who substitutes any drug shall, either personally or through his or her agent, assistant or employee, notify the person presenting the prescription of such substitution. The person presenting the prescription shall have the right to refuse the substitution. Upon request the pharmacist shall relate the retail price difference between the brand name and the drug substituted for it.

(o) (n) Every pharmacy shall post in a prominent place that is in clear and unobstructed public view, at or near the place where prescriptions are dispensed, a sign which shall read: ‘West Virginia law requires pharmacists to substitute a less expensive generic-named therapeutically equivalent drug for a brand name drug, if available, unless you or your physician direct otherwise.’ The sign shall be printed with lettering of at least one and one-half inches in height with appropriate margins and spacing as prescribed by the West Virginia Board of Pharmacy.

(p) (o) The West Virginia Board of Pharmacy shall promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code setting standards for substituted drug products, obtaining compliance with the provisions of this section and enforcing the provisions of this section.

(q) (p) Any person shall have the right to file a complaint with the West Virginia Board of Pharmacy regarding any violation of the provisions of this article. Such complaints shall be investigated by the Board of Pharmacy.

(r) (q) Fifteen days after the board has notified, by registered mail, a person, firm, corporation or copartnership that such person, firm, corporation or copartnership is suspected of being in violation of a provision of this section, the board shall hold a hearing on the matter. If, as a result of the hearing, the board determines that a person, firm, corporation or copartnership is violating any of the provisions of this section, it may, in addition to any penalties prescribed by section twenty-two of this article, suspend or revoke the permit of any person, firm, corporation or copartnership to operate a pharmacy.

(s) (r) No pharmacist or pharmacy complying with the provisions of this section shall be liable in any way for the dispensing of a generic-named therapeutically equivalent drug, substituted under the provisions of this section, unless the generic-named therapeutically equivalent drug was incorrectly substituted.

(t) (s)  In no event where the pharmacist substitutes a drug under the provisions of this section shall the prescribing physician be liable in any action for loss, damage, injury or death of any person occasioned by or arising from the use of the substitute drug unless the original drug was incorrectly prescribed.

(u) (t) Failure of a practitioner to specify that a specific brand name is necessary for a particular patient shall not constitute evidence of negligence unless the practitioner had reasonable cause to believe that the health of the patient required the use of a certain product and no other.

§30-5-34. Criminal offenses.

When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person authorized under this article has committed a criminal offense the board may bring its information to the attention of an appropriate law-enforcement official.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person authorized under this article has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.

(b) Any person who intentionally practices, or presents himself or herself out as qualified to practice pharmacist care or to assist in the practice of pharmacist care, or uses any title, word or abbreviation to indicate to or induce others to believe he or she is licensed to practice as a pharmacist or pharmacist technician without obtaining an active, valid West Virginia license to practice that profession; or

With a license that is:

(1) Expired, suspended or lapsed; or

(2) Inactive, revoked, suspended as a result of disciplinary action, or surrendered;

is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than ten thousand dollars.”

And,

By amending the title of the bill to read as follows:

H. B. 4033 - “A Bill to amend and reenact §30-5-12b and §30-5-34 of the Code of West Virginia, 1931, as amended, all relating to prohibiting the practice of pharmacist care without a license; prohibiting assistance to practice of pharmacist care without a registration; establishing a criminal penalty for the illegal practice or pharmacy care or assisting in the practice of pharmacy care; permitting the board to contact law enforcement with information concerning a criminal offense; permitting the fining of a person practicing with an encumbered license; permitting the fining of a person practicing with an encumbered registration; and establishing a fine.”

            The bill, as amended by the Senate, was then put upon its passage.

            On the passage of the bill, the yeas and nays were taken (Roll No. 603), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent and Not Voting: Moore and Reynolds.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4033) passed.

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

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

            Com. Sub. for H. B. 4040, Regulating step therapy protocols in health benefit plans.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

On page one, 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 section, designated §33-15-4m; that said code be amended by adding thereto a new section, designated §33-16-3y; that said code be amended by adding thereto a new section, designated §33-24-7n; that said code be amended by adding thereto a new section, designated §33-25-8k; and that said code be amended by adding thereto a new section, designated §33-25A-8m, all to read as follows:

chapter 33. insurance.

ARTICLE 15. ACCIDENT AND SICKNESS INSURANCE.

§33-15-5m. Step Therapy.

(a) Definitions -- As used in this article:

(1) ‘Health benefit plan’ means a policy, contract, certificate or agreement entered into, offered or issued by a health plan issuer to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services.

(2) ‘Health plan issuer’ or ‘issuer’ means an entity required to be licensed under this chapter that contracts, or offers to contract to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services under a health benefit plan, including accident and sickness insurers, nonprofit hospital service corporations, medical service corporations and dental service organizations, prepaid limited health service organizations, health maintenance organizations, preferred provider organizations, provider sponsored network, and any pharmacy benefit manager that administers a fully-funded or self-funded plan.

(3) ‘Step therapy protocol’ means a protocol or program that establishes the specific sequence in which prescription drugs for a specified medical condition, and medically appropriate for a particular patient, are covered by a health plan issuer or health benefit plan.

(4) ‘Step therapy override determination’ means a determination as to whether a step therapy protocol should apply in a particular situation, or whether the step therapy protocol should be overridden in favor of immediate coverage of the health care provider's selected prescription drug. This determination is based on a review of the patient's or prescriber's request for an override, along with supporting rationale and documentation.  

(5) ‘Utilization review organization’ means an entity that conducts utilization review, other than a health plan issuer performing utilization review for its own health benefit plan.

(b) Application of article -- A health benefit plan that includes prescription drug benefits, and which utilizes step therapy protocols, and which is issued for delivery, delivered, renewed, or otherwise contracted in this state on or after January 1, 2017, shall comply with the provisions of this article.

(c) Step therapy protocol exceptions. --

(1) When coverage of a prescription drug for the treatment of any medical condition is restricted for use by health plan issuer or utilization review organization through the use of a step therapy protocol, the patient and prescribing practitioner shall have access to a clear and convenient process to request a step therapy exception determination. The process shall be made easily accessible on the health plan issuer's or utilization review organization's website. The health plan issuer or utilization review organization must provide a prescription drug for treatment of the medical condition at least until the step therapy exception determination is made.

(2) A step therapy override determination request shall be expeditiously granted if:

(A) The required prescription drug is contraindicated or will likely cause an adverse reaction by or physical or mental harm to the patient.

(B) The required prescription drug is expected to be ineffective based on the known relevant physical or mental characteristics of the patient and the known characteristics of the prescription drug regimen.

(C) The patient has tried the required prescription drug while under their current or a previous health insurance or health benefit plan, or another prescription drug in the same pharmacologic class or with the same mechanism of action and such prescription drug was discontinued due to a lack of efficacy or effectiveness, diminished effect, or an adverse event.

(D) The required prescription drug is not in the best interest of the patient, based upon medical appropriateness.

(E) The patient is stable on a prescription drug selected by their health care provider for the medical condition under consideration.

(3) Upon the granting of a step therapy override determination, the health plan issuer or utilization review organization shall authorize coverage for the prescription drug prescribed by the patient's treating healthcare provider, provided such prescription drug is a covered prescription drug under such policy or contract.

(4) This section shall not be construed to prevent:

(A) A health plan issuer or utilization review organization from requiring a patient to try an AB-Rated generic equivalent prior to providing coverage for the equivalent branded prescription drug.

(B) A health care provider from prescribing a prescription drug that is determined to be medically appropriate.

ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.

§33-16-3y. Step Therapy.

(a) Definitions -- As used in this article:

(1) ‘Health benefit plan’ means a policy, contract, certificate or agreement entered into, offered or issued by a health plan issuer to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services.

(2) ‘Health plan issuer’ or ‘issuer’ means an entity required to be licensed under this chapter that contracts, or offers to contract to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services under a health benefit plan, including accident and sickness insurers, nonprofit hospital service corporations, medical service corporations and dental service organizations, prepaid limited health service organizations, health maintenance organizations, preferred provider organizations, provider sponsored network, and any pharmacy benefit manager that administers a fully-funded or self-funded plan.

(3) ‘Step therapy protocol’ means a protocol or program that establishes the specific sequence in which prescription drugs for a specified medical condition, and medically appropriate for a particular patient, are covered by a health plan issuer or health benefit plan.

(4) ‘Step therapy override determination’ means a determination as to whether a step therapy protocol should apply in a particular situation, or whether the step therapy protocol should be overridden in favor of immediate coverage of the health care provider's selected prescription drug. This determination is based on a review of the patient's or prescriber's request for an override, along with supporting rationale and documentation.  

(5) ‘Utilization review organization’ means an entity that conducts utilization review, other than a health plan issuer performing utilization review for its own health benefit plan.

(b) Application of article -- A health benefit plan that includes prescription drug benefits, and which utilizes step therapy protocols, and which is issued for delivery, delivered, renewed, or otherwise contracted in this state on or after January 1, 2017, shall comply with the provisions of this article.

(c) Step therapy protocol exceptions. --

(1) When coverage of a prescription drug for the treatment of any medical condition is restricted for use by health plan issuer or utilization review organization through the use of a step therapy protocol, the patient and prescribing practitioner shall have access to a clear and convenient process to request a step therapy exception determination. The process shall be made easily accessible on the health plan issuer's or utilization review organization's website. The health plan issuer or utilization review organization must provide a prescription drug for treatment of the medical condition at least until the step therapy exception determination is made.

(2) A step therapy override determination request shall be expeditiously granted if:

(A) The required prescription drug is contraindicated or will likely cause an adverse reaction by or physical or mental harm to the patient.

(B) The required prescription drug is expected to be ineffective based on the known relevant physical or mental characteristics of the patient and the known characteristics of the prescription drug regimen.

(C) The patient has tried the required prescription drug while under their current or a previous health insurance or health benefit plan, or another prescription drug in the same pharmacologic class or with the same mechanism of action and such prescription drug was discontinued due to a lack of efficacy or effectiveness, diminished effect, or an adverse event.

(D) The required prescription drug is not in the best interest of the patient, based upon medical appropriateness.

(E) The patient is stable on a prescription drug selected by their health care provider for the medical condition under consideration.

(3) Upon the granting of a step therapy override determination, the health plan issuer or utilization review organization shall authorize coverage for the prescription drug prescribed by the patient's treating healthcare provider, provided such prescription drug is a covered prescription drug under such policy or contract.

(4) This section shall not be construed to prevent:

(A) A health plan issuer or utilization review organization from requiring a patient to try an AB-Rated generic equivalent prior to providing coverage for the equivalent branded prescription drug.

(B) A health care provider from prescribing a prescription drug that is determined to be medically appropriate.

ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE CORPORATIONS.

§33-24-7n. Step Therapy.

(a) Definitions -- As used in this article:

(1) ‘Health benefit plan’ means a policy, contract, certificate or agreement entered into, offered or issued by a health plan issuer to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services.

(2) ‘Health plan issuer’ or ‘issuer’ means an entity required to be licensed under this chapter that contracts, or offers to contract to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services under a health benefit plan, including accident and sickness insurers, nonprofit hospital service corporations, medical service corporations and dental service organizations, prepaid limited health service organizations, health maintenance organizations, preferred provider organizations, provider sponsored network, and any pharmacy benefit manager that administers a fully-funded or self-funded plan.

(3) ‘Step therapy protocol’ means a protocol or program that establishes the specific sequence in which prescription drugs for a specified medical condition, and medically appropriate for a particular patient, are covered by a health plan issuer or health benefit plan.

(4) ‘Step therapy override determination’ means a determination as to whether a step therapy protocol should apply in a particular situation, or whether the step therapy protocol should be overridden in favor of immediate coverage of the health care provider's selected prescription drug. This determination is based on a review of the patient's or prescriber's request for an override, along with supporting rationale and documentation.  

(5) ‘Utilization review organization’ means an entity that conducts utilization review, other than a health plan issuer performing utilization review for its own health benefit plan.

(b) Application of article -- A health benefit plan that includes prescription drug benefits, and which utilizes step therapy protocols, and which is issued for delivery, delivered, renewed, or otherwise contracted in this state on or after January 1, 2017, shall comply with the provisions of this article.

(c) Step therapy protocol exceptions. --

(1) When coverage of a prescription drug for the treatment of any medical condition is restricted for use by health plan issuer or utilization review organization through the use of a step therapy protocol, the patient and prescribing practitioner shall have access to a clear and convenient process to request a step therapy exception determination. The process shall be made easily accessible on the health plan issuer's or utilization review organization's website. The health plan issuer or utilization review organization must provide a prescription drug for treatment of the medical condition at least until the step therapy exception determination is made.

(2) A step therapy override determination request shall be expeditiously granted if:

(A) The required prescription drug is contraindicated or will likely cause an adverse reaction by or physical or mental harm to the patient.

(B) The required prescription drug is expected to be ineffective based on the known relevant physical or mental characteristics of the patient and the known characteristics of the prescription drug regimen.

(C) The patient has tried the required prescription drug while under their current or a previous health insurance or health benefit plan, or another prescription drug in the same pharmacologic class or with the same mechanism of action and such prescription drug was discontinued due to a lack of efficacy or effectiveness, diminished effect, or an adverse event.

(D) The required prescription drug is not in the best interest of the patient, based upon medical appropriateness.

(E) The patient is stable on a prescription drug selected by their health care provider for the medical condition under consideration.

(3) Upon the granting of a step therapy override determination, the health plan issuer or utilization review organization shall authorize coverage for the prescription drug prescribed by the patient's treating healthcare provider, provided such prescription drug is a covered prescription drug under such policy or contract.

(4) This section shall not be construed to prevent:

(A) A health plan issuer or utilization review organization from requiring a patient to try an AB-Rated generic equivalent prior to providing coverage for the equivalent branded prescription drug.

(B) A health care provider from prescribing a prescription drug that is determined to be medically appropriate.

 ARTICLE 25. HEALTH CARE CORPORATIONS.