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House Journal


Day 00 (01-14-2009)
Day 01 (02-11-2009)
Day 02 (02-12-2009)
Day 03 (02-13-2009)
Day 06 (02-16-2009)
Day 07 (02-17-2009)
Day 08 (02-18-2009)
Day 09 (02-19-2009)
Day 10 (02-20-2009)
Day 13 (02-23-2009)
Day 14 (02-24-2009)
Day 15 (02-25-2009)
Day 16 (02-26-2009)
Day 17 (02-27-2009)
Day 20 (03-02-2009)
Day 21 (03-03-2009)
Day 22 (03-04-2009)
Day 23 (03-05-2009)
Day 24 (03-06-2009)
Day 27 (03-09-2009)
Day 28 (03-10-2009)
Day 29 (03-11-2009)
Day 31 (03-13-2009)
Day 34 (03-16-2009)
Day 35 (03-17-2009)
Day 36 (03-18-2009)
Day 37 (03-19-2009)
Day 38 (03-20-2009)
Day 41 (03-23-2009)
Day 43 (03-25-2009)
Day 44 (03-26-2009)
Day 45 (03-27-2009)
Day 48 (03-30-2009)
Day 49 (03-31-2009)
Day 50 (04-01-2009)
Day 51 (04-02-2009)
Day 52 (04-03-2009)
Day 55 (04-06-2009)
Day 56 (04-07-2009)
Day 57 (04-08-2009)
Day 58 (04-09-2009)
Day 59 (04-10-2009)
Day 60 (04-11-2009)
Day 105 (05-26-2009)
Day 106 (05-27-2009)
Day 108 (05-29-2009)
Day 109 (05-30-2009)
Day 110 (05-31-2009)
hdj2009-05-26-105



__________*__________




Tuesday, May 26, 2009

ONE HUNDRED FIFTH DAY

[Mr. Speaker, Mr. Thompson, in the Chair]



Pursuant to the adjournment taken on April 12, 2009, the House of Delegates met at 12:00 o'clock meridian in accordance with S. C. R. 83, and was called to order by the Honorable Richard Thompson, Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Sunday, April 12, 2009, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Messages from the Executive

The Speaker laid before the House of Delegates communications from His Excellency, the Governor, setting forth his disapproval of bills heretofore passed by both houses, as follows:
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston, WV 25305

April 22, 2009

Veto Message
The Honorable Richard Thompson
Speaker
West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Dear Speaker Thompson:
Pursuant to the provisions of Section Fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Committee Substitute for House Bill No. 2423.
Enrolled Committee Substitute for House Bill No. 2423 makes several amendments to an article of the West Virginia Code pertaining to the Board of Medical Imaging and Radiation Therapy Technology. Included in the bill are amendments adding certain definitions to the article, clarifying the procedure for appointing persons to the board, removing certain licensure exemptions, extending the time period for the validity of certain apprentice licenses and making other technical changes to the Code. Although I support the intent of the Bill, the title of Enrolled Committee Substitute for House Bill No. 2423 provides simply that it relates "to the Board of Medical Imaging and Radiation Therapy Technology." I must therefore veto Enrolled Committee Substitute for House Bill No. 2423 because the title does not sufficiently reflect the amendments the Bill purports to make. Nevertheless, I would encourage the Legislature to promptly consider this measure again in the near future.
Sincerely,
Joe Manchin, III
Governor.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The Clerk then reported Enrolled Committee Substitute for H. B. 2423.
In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsidered the bill, in an effort to meet the objections of the Governor.
The Speaker propounded "Shall the bill pass, in an effort to meet the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 507), and there were--yeas 83, nays none, absent and not voting 17, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Campbell, Craig, Eldridge, Ellem, Fragale, Hartman, Hutchins, Lane, Manchin, Manypenny, McGeehan, Michael, J. Miller, Ross, Tabb and Webster.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. Com. Sub. for H. B. 2423) passed, as a result of the objections of the Governor.
On motion of Delegates Boggs and Morgan, the title of the bill was amended to read as follows:
Com. Sub. for H. B. 2423 - "A Bill to amend and reenact §30-23-4, §30-23-5, §30-23-6, §30-23-9, §30-23-10, §30-23-13, §30-23-14, §30-23-16, §30-23-17 and §30-23-19 of the Code of West Virginia, 1931, as amended, all relating to the practice of medical imaging and radiation therapy technology; updating terminology; revising the powers and duties of the board; removing the licensure exemption for limited practice; clarifying scopes of practice; revising licensure requirements; revising supervision requirements for apprentices; and extending the length of time an apprentice may be licensed."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 508), and there were--yeas 85, nays none, absent and not voting 15, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Craig, Eldridge, Ellem, Fragale, Hartman, Hutchins, Manchin, Manypenny, McGeehan, Michael, J. Miller, Ross, Tabb and Webster.
So, 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. 2423) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston, WV 25305

May 14, 2009

Veto Message
The Honorable Richard Thompson
Speaker
West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Dear Speaker Thompson:
Pursuant to the provisions of Section Fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Committee Substitute for House Bill No. 2535.
Unfortunately, I must object to this legislation because its proposed title is inconsistent with the body of the Bill. The title and enacting section of the Bill purport to amend the Code of West Virginia by adding a new article one-hundred thirty-two to chapter eleven of the Code. However, the Body of the Bill would, if approved, add article thirteen-z to chapter eleven of the Code. I find that the discrepancies between the Bill's proposed title and the body of the Bill render the legislation constitutionally deficient. Accordingly, I must veto Enrolled Committee Substitute for House Bill No. 2535.
Nevertheless, I would encourage the Legislature to promptly reconsider this measure. In so doing, however, I would urge the Legislature to consider additional technical amendments to the Bill that would clarify certain provisions in accordance with recommendations made by the State Tax Department.
Your very truly,
Joe Manchin, III
Governor.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The Clerk then reported Enrolled Committee Substitute for H. B. 2535.
In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.
On motion of Delegates Boggs and White, Enr. Com. Sub. for H. B. 2535 was amended, in an effort to meet the objections of the Governor, as follows:
On page one, by amending the enacting section to read as follows:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §11-13Z-1, §11-13Z-2 and §11-13Z-3, all to read as follows" followed by a colon.
The Speaker propounded, "Shall the bill pass, as amended, in an effort to meet the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 509), and there were--yeas 85, nays none, absent and not voting 15, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Craig, Doyle, Eldridge, Ellem, Fragale, Hartman, Hutchins, Manchin, Manypenny, McGeehan, Michael, J. Miller, Ross and Tabb.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. Com. Sub. for H. B. 2535) passed, as a result of the objections of the Governor.
On motion of Delegates Boggs and White, the title of the bill was amended to read as follows:
Enr. Com. Sub. for H. B. 2535 - "An Act to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11-13Z-1, §11-13Z-2 and §11-13Z-3, all relating to providing for a tax credit for solar energy systems; and requiring the Tax Commissioner to promulgate rules for claiming and applying the tax credit."
Delegate Boggs moved that the bill take effect July 1, 2009.
On this question, the yeas and nays were taken (Roll No. 510), and there were--yeas 86, nays none, absent and not voting 14, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Craig, Doyle, Ellem, Fragale, Hartman, Hutchins, Manchin, Manypenny, McGeehan, Michael, J. Miller, Ross and Tabb.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. Com. Sub. for H. B. 2535) takes effect July 1, 2009.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston, WV 25305

May 8, 2009

Veto Message
The Honorable Richard Thompson
Speaker
West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Dear Speaker Thompson:
Pursuant to the provisions of Section Fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Committee Substitute for House Bill No. 2701.
I must object to this Bill because its proposed title does not reflect the amendments it purports to make to the Code of West Virginia. The title indicates that this Bill relates "to making escape by any person from the custody of the Division of Juvenile Services a misdemeanor". However, Enrolled Committee Substitute for House Bill No. 2701 fails to do so, and instead makes "any person in the custody of the director of Division of Juvenile Services" guilty of a misdemeanor. Accordingly, I find the title of the Bill inconsistent with the substance of the Bill, so as to render Enrolled Committee Substitute for House Bill No. 2701 constitutionally defective. For this reason, I must veto this legislation.
Very truly yours,
Joe Manchin, III
Governor.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.

The Clerk then reported Enrolled Committee Substitute for H. B. 2701.
In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.
On motion of Delegates Boggs and Webster, Enr. Com. Sub. for H. B. 2701 was amended in an effort to meet the objections of the Governor, by amending the bill as follows:
On page one, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-12b. Escape from custody of the Director of Juvenile Services.

(a) Any person who escapes from the custody of the director of Division of Juvenile Services, regardless of where he or she is confined or detained, shall be guilty of a misdemeanor, and upon conviction, shall be confined in jail, or in the case of a person under the age of eighteen, in a juvenile facility, for not more than one year.
(b) Venue for the prosecution of a violation of this section shall be in the county in which the escape occurs: Provided, That if the person is under the age of eighteen, upon agreement of all parties, the prosecution of the escape may be transferred to the circuit court from which the juvenile was originally committed."
The Speaker propounded "Shall the bill pass, as amended, in an effort to meet the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 511), and there were--yeas 87, nays none, absent and not voting 13, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Doyle, Ellem, Fragale, Hartman, Hutchins, Manchin, Manypenny, McGeehan, Michael, J. Miller, Ross and Tabb.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. Com. Sub. for H. B. 2701) passed, as a result of the objections of the Governor.
On motion of Delegates Boggs and Webster, the title of the bill was amended to read as follows:
Enr. Com. Sub. for H. B. 2701 - "An Act to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-5-12b, relating to escape by any person from the custody of the Commissioner of Juvenile Services; establishing criminal penalties; providing venue for the proceedings; and allowing for the transfer of jurisdiction back to the original committing court in certain circumstances."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston, WV 25305

May 6, 2009

The Honorable Richard Thompson
Speaker
West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Veto Message
Dear Speaker Thompson:
Pursuant to the provisions of Section Fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Committee Substitute for House Bill No. 2771.
I must object to this Bill because its proposed title does not reflect certain amendments it purports to make to the Code of West Virginia. Enrolled Committee Substitute for House Bill No. 2771 would amend the West Virginia Alcohol and Drug-Free Workplace Act. Currently, the Act requires contractors who perform work for the State of West Virginia to implement certain drug and alcohol testing policies. This Bill would expand the Act's provisions to require drug and alcohol testing for employees of contractors who also perform work for counties, municipalities and political subdivisions. Unfortunately, the Bill's title fails to reflect this material expansion of the Act's requirements. Accordingly, I find that a reasonable person would not be able to discern the amendments without reading the entire text of the Bill. For this reason, I must veto Enrolled Committee Substitute for House Bill No. 2771. Nevertheless, I encourage the Legislature to reconsider this measure and promptly return it for my approval.
Very truly yours,
Joe Manchin, III
Governor.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The Clerk then reported Enrolled Committee Substitute for H. B. 2771.
In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.
On motion of Delegate Boggs, the House of Delegates proceeded to reconsider the bill (Enr. Com. Sub. for H. B. 2771), in an effort to meet the objections of the Governor.
The Speaker propounded "Shall the bill pass, in an effort to meet the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 512), and there were--yeas 83, nays 4, absent and not voting 13, with the nays and absent and not voting being as follows:
Nays: Blair, Cowles, Overington and Schadler.
Absent And Not Voting: Beach, Doyle, Ellem, Fragale, Hartman, Hutchins, Manchin, Manypenny, McGeehan, Michael, J. Miller, Ross and Tabb.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. Com. Sub. for H. B. 2771) passed, as a result of the objections of the Governor.
On motion of Delegates Boggs and Webster, the title of the bill was amended to read as follows:
Enr. Com. Sub. for H. B. 2771 - "An Act to amend and reenact §21-1D-2 and §21-1D-8 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §21-1D-5a and §21-1D-7b, all relating to West Virginia Alcohol and Drug-Free Workplace Act; applying the provisions of the Act only to contracts valued in excess of $100,000; clarifying the definitions of the phrases 'drug test' 'drug of abuse', and 'reasonable cause'; including a new definition for the phrase 'preemployment drug test'; requiring drug and alcohol testing for employees of contractors who perform work for counties, municipalities and political subdivisions; providing an exemption for workers covered by United States Department of Transportation drug testing guidelines; requiring contractors to provide an annual certified drug-free workplace report to public authorities; and limiting the application of the offense for a third or subsequent violation of the Act to violations occurring within the previous five years."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston, WV 25305

May 8, 2009

Veto Message
The Honorable Richard Thompson
Speaker
West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Dear Speaker Thompson:
Pursuant to the provisions of Section Fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled House Bill No. 2920.
The Bill repeals West Virginia Code §61-11-20, which makes the second conviction for petit larceny a felony punishable by one year in prison. The Bill also increases the penalty for being an accessory after the fact to certain crimes, including first or second degree murder, voluntary manslaughter, and assault or batter. Although I support the intent of this legislation, the Bill does not contain an enacting section and therefore is constitutionally invalid. Accordingly, I must veto Enrolled House Bill No. 2920.
Very truly yours,
Joe Manchin, III
Governor.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.

The Clerk then reported Enrolled H. B. 2920.
In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.
On motion of Delegates Boggs and Webster, Enrolled House Bill 2920 was amended, in an effort to meet the objections of the Governor, as follows:
On page one, following the enacting clause, by inserting an enacting section, to read as follows:
"That §61-11-20 of the Code of West Virginia, 1931, as amended, be repealed, and that §61- 11-6 of said code be amended and reenacted to read as follows" followed by a colon.
And,
On page two, section six, line fourteen, following the words "any person who", by inserting the word "knowingly".
The Speaker propounded "Shall the bill pass, as amended, in an effort to meet the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 513), and there were--yeas 87, nays 2, absent and not voting 11, with the nays and absent and not voting being as follows:
Nays: Eldridge and Sobonya.
Absent And Not Voting: Beach, Ellem, Fragale, Hartman, Hutchins, Manypenny, McGeehan, Michael, J. Miller, Ross and Tabb.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. H. B. 2920) passed, as a result of the objections of the Governor.
Enr. H. B. 2920 - "An Act to repeal §61-11-20 of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-11-6 of said code, all relating to crimes and their punishment; eliminating the felony offense of second or subsequent petit larceny; providing elements of and increasing the penalty for accessory after the fact for certain crimes against the person; and excluding certain persons from being considered an accessory after the fact."

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

OFFICE OF THE GOVERNOR

Charleston, WV 25305

May 12, 2009

The Honorable Richard Thompson
Speaker
West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Veto Message
Dear Speaker Thompson:
Pursuant to the provisions of Section Fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Committee Substitute for House Bill No. 2926.
Enrolled Committee Substitute for House Bill No. 2926 relates, in part, to the creation of a procedure for challenging a county commission candidate's qualifications to hold elected office. I have no objection to the policy behind this Bill. However, an erroneous cross-reference within section fifteen, article one, chapter seven of the Bill would, upon approval, create some ambiguity as to the Bill's application. The cross-reference at issue refers to a candidate for the office of a county commission as someone whose nomination has been certified and filed pursuant to article five, chapter seven of the West Virginia Code. Unfortunately, this cross-reference is a typographical error; the cross-reference should read article five, chapter three.
For this reason, I must veto Enrolled Committee Substitute for House Bill No. 2926. Nevertheless, I would ask the Legislature to reconsider the Bill and return it for my approval.
Very truly yours,
Joe Manchin, III
Governor.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.

The Clerk then reported Enrolled Committee Substitute for H. B. 2926.
In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.
On motion of Delegates Boggs and Webster, Enrolled Committee Substitute for House Bill 2926 was amended, in an effort to meet the objections of the Governor, as follows:
On page four, section fifteen, line five, after the word "five" by inserting a comma and striking out the words "of this".
And,
On page four, section fifteen, line five after the word "chapter" by inserting the words "three of this Code" and a comma.
The Speaker propounded "Shall the bill pass, as amended, in an effort to meet the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 514), and there were--yeas 89, nays none, absent and not voting 11, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Ellem, Fragale, Hartman, Hutchins, Manypenny, McGeehan, Michael, J. Miller, Ross and Tabb.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. Com. Sub. for H. B. 2926) passed, as a result of the objections of the Governor.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston, WV 25305

May 8, 2009

Veto Message
The Honorable Richard Thompson
Speaker
West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Dear Speaker Thompson:
Pursuant to the provisions of Section Fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Committee Substitute for House Bill No. 3120.
I must object to this Bill because its proposed enacting clause does not reference a section of the West Virginia Code purportedly repealed by the Bill. Accordingly, I find the enacting clause inconsistent with the title of the Bill so as to render the Bill constitutionally defective. For this reason, I must veto this legislation.
Sincerely,
Joe Manchin, III
Governor.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.

The Clerk then reported Enrolled Committee Substitute for H. B. 3120.
In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.
On motion of Delegate Boggs and Webster, Enrolled Committee Substitute for House Bill 3120 was amended, in an effort to meet the objections of the Governor, as follows:
On page one, by amending the enacting section to read as follows:
"That §7-4-6a of the Code of West Virginia, 1931, as amended, be repealed, and that §7-4-6 of said code be amended and reenacted to read as follows" followed by a colon.
The Speaker propounded "Shall the bill pass, as amended, in an effort to meet the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 515), and there were--yeas 89, nays none, absent and not voting 11, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Ellem, Fragale, Hartman, Hutchins, Manypenny, McGeehan, Michael, Miller, J, Ross and Tabb.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. Com. Sub. for H. B. 3120) passed, as a result of the objections of the Governor.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston, WV 25305

May 11, 2009

Veto Message
The Honorable Richard Thompson
Speaker
West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Dear Speaker Thompson:
Pursuant to the provisions of Section Fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled House Bill No. 3170.
Unfortunately, I must object to this legislation because its proposed title does not reflect material language set forth in the Bill. According to the Bill's title, the West Virginia Supreme Court of Appeals would be authorized to coordinate education programs and update materials and forms for guardians and conservators. However, a close reading of the Bill indicates that this authorization would include the promulgation of legislative rules. Moreover, the Bill would require the Supreme Court of Appeals to propose legislative rules consistent with the West Virginia Administrative Procedures Act, a requirement that is currently found nowhere in the Code. I find that a reasonable person would be unable to discern this material requirement without reading the entire text of the Bill. Therefore, I must veto Enrolled House Bill No. 3170.
Nevertheless, I encourage the Legislature to reconsider this Bill, correct any deficiencies in the title, address the rulemaking authority of the Court and return the Bill for my approval.
Sincerely,
Joe Manchin, III
Governor.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.

The Clerk then reported Enrolled H. B. 3170.
In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.
On motion of Delegates Boggs and Webster, Enrolled House Bill 3170 was amended, in an effort to meet the objections of the Governor, by amending the bill as follows:
On page six, section ten, line twenty, after the word "conservators" and the comma by inserting the word "and".
And,
On page six, section ten, line twenty-one, after the word "forms", by striking out the words "at least every two years and shall also propose legislative rules for promulgation, in accordance with the provision of chapter twenty-nine-a of this code, regarding mandatory educational training for guardians and conservators" and inserting in lieu thereof the words "as necessary".
The Speaker propounded "Shall the bill pass, as amended, in an effort to meet the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 516), and there were--yeas 90, nays none, absent and not voting 10, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Ellem, Fragale, Hartman, Hutchins, Manypenny, McGeehan, Michael, Ross and Tabb.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. H. B. 3170) passed, as a result of the objections of the Governor.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston, WV 25305

May 4, 2009

Veto Message
The Honorable Richard Thompson
Speaker
West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Dear Speaker Thompson:
Pursuant to the provisions of Section Fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Committee Substitute for House Bill No. 3194.
Enrolled Committee Substitute for House Bill No. 3194 relates to the creation of a criminal penalty for knowingly filing materially false information regarding a limited liability company with the Secretary of State. While I fully support this legislation, I must veto this Bill because of a technical drafting error that would unduly limit its scope. The criminal penalties created by the Bill would attach to the filing of documents required to be filed by article one, chapter thirty-one-b of the West Virginia Code. To establish a comprehensive penalty that would apply to every document that must be filed with the Secretary of State pertaining to limited liability companies, the penalties should attach to any document required to filed under chapter thirty-one-b, not just documents that are required to be filed under article one of chapter thirty-one-b.
For this reason, I must veto Enrolled Committee Substitute for House Bill No. 3194. Nevertheless, I would respectfully request the Legislature to reconsider this Bill and return it promptly for my approval.
Very truly yours,
Joe Manchin, III
Governor.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.

The Clerk then reported Enrolled Committee Substitute for H. B. 3194.
In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.
On motion of Delegates Boggs and Webster, Enrolled Committee Substitute for House Bill 3194 was amended, in an effort to meet the objections of the Governor, by amending the bill as follows:
On page one, section one hundred fourteen, line two, by striking out the word "article" and inserting in lieu thereof the word "chapter".
The Speaker propounded "Shall the bill pass, as amended, in an effort to meet the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 517), and there were--yeas 90, nays none, absent and not voting 10, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Ellem, Fragale, Hartman, Hutchins, Manypenny, McGeehan, Michael, Ross and Tabb.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. Com. Sub. for H. B. 3194) passed, as a result of the objections of the Governor.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston, WV 25305

May 7, 2009

Veto Message
The Honorable Richard Thompson
Speaker
West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Dear Speaker Thompson:
Pursuant to the provisions of Section Fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled House Bill No. 3197.
This Bill proposes a new section to the Code which would allow certain municipalities to appoint special litter prevention officers, and establish by ordinance the duties and training for these special litter prevention officers. Unfortunately, I must object to this Bill because the section references in the title and the enacting clause do not match. Accordingly, I find the inconsistent section references set forth in the title and the enacting clause render the Bill constitutionally defective.
For the reasons stated herein, I must veto Enrolled House Bill No. 3197. Notwithstanding this action, I urge the Legislature to amend the title and the enacting clause and return the Bill for approval.
Sincerely,
Joe Manchin, III
Governor.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.

The Clerk then reported Enrolled H. B. 3197.
The Speaker propounded "Shall the bill pass, in an effort to meet the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 518), and there were--yeas 83, nays 7, absent and not voting 10, with the nays and absent and not voting being as follows:
Nays: Ashley, Duke, Evans, Lane, J. Miller, Schadler and Walters.
Absent And Not Voting: Beach, Ellem, Fragale, Hartman, Hutchins, Manypenny, McGeehan, Michael, Ross and Tabb.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. H. B. 3197) passed, as a result of the objections of the Governor.
On motion of Delegates Boggs and Webster, the title of the bill was amended to read as follows:
Enr. Com. Sub. for H. B. 3197 - "An Act to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §8-12-16b, relating to authorizing municipalities to appoint special litter prevention officers by ordinance; and authorizing special litter prevention officers to perform their duties as provided for by ordinance."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston, WV 25305

May 4, 2009

Veto Message
The Honorable Richard Thompson
Speaker
West Virginia House of Delegates
State Capitol
Charleston, WV 25305
Dear Speaker Thompson:
Pursuant to the provisions of Section Fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Committee Substitute for House Bill No. 3288.
Enrolled Committee Substitute for House Bill No. 3288 was passed on April 10, 2009, and would amend West Virginia Code §5-16-7 to require the West Virginia Public Employees Insurance Agency ("PEIA") demonstrate that its total costs for treatment of mental illness for any plan exceeds two percent of the total costs before PEIA may apply additional cost-containment measures.
Although I support the substantive intent of this Bill, a veto is warranted because another bill subsequently enacted by the Legislature, Enrolled Committee Substitute for Senate Bill No. 326, also amended West Virginia Code §5-16-7. Having passed after this Bill, the provisions of Enrolled Committee Substitute for Senate Bill No. 326 would control, making my approval of this Bill fruitless. For this reason, I must veto Enrolled Committee Substitute for House Bill No. 3288. Nevertheless, I would encourage the Legislature to promptly consider this measure again in the near future.
Very truly yours,
Joe Manchin, III
Governor.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.

The Clerk then reported Enrolled Committee Substitute for H. B. 3288.
In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider the bill, in an effort to meet the objections of the Governor.
On motion of Delegates Boggs and Perry, Enrolled Committee Substitute for House Bill 3288 was amended, in an effort to meet the objections of the Governor, by amending the bill as follows:
On page one, after the enacting section, by striking the remainder of the bill and inserting in lieu thereof the following:
"CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL;
BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES,

COMMISSIONS, OFFICES, PROGRAMS, ETC.

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

(a) The agency shall establish a group hospital and surgical insurance plan or plans, a group prescription drug insurance plan or plans, a group major medical insurance plan or plans and a group life and accidental death insurance plan or plans for those employees herein made eligible, and to establish and promulgate rules for the administration of these plans, subject to the limitations contained in this article. Those plans shall include:
(1) Coverages and benefits for X ray and laboratory services in connection with mammograms when medically appropriate and consistent with current guidelines from the United States Preventive Services Task Force; pap smears, either conventional or liquid-based cytology, whichever is medically appropriate and consistent with the current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists; and a test for the human papilloma virus (HPV) when medically appropriate and consistent with current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists, when performed for cancer screening or diagnostic services on a woman age eighteen or over;
(2) Annual checkups for prostate cancer in men age fifty and over;
(3) Annual screening for kidney disease as determined to be medically necessary by a physician using any combination of blood pressure testing, urine albumin or urine protein testing and serum creatinine testing as recommended by the National Kidney Foundation;
(4) For plans that include maternity benefits, coverage for inpatient care in a duly licensed health care facility for a mother and her newly born infant for the length of time which the attending physician considers medically necessary for the mother or her newly born child: Provided, That no plan may deny payment for a mother or her newborn child prior to forty-eight hours following a vaginal delivery, or prior to ninety-six hours following a caesarean section delivery, if the attending physician considers discharge medically inappropriate;
(5) For plans which provide coverages for post-delivery care to a mother and her newly born child in the home, coverage for inpatient care following childbirth as provided in subdivision (4) of this subsection if inpatient care is determined to be medically necessary by the attending physician. Those plans may also include, among other things, medicines, medical equipment, prosthetic appliances and any other inpatient and outpatient services and expenses considered appropriate and desirable by the agency; and
(6) Coverage for treatment of serious mental illness.
(A) The coverage does not include custodial care, residential care or schooling. For purposes of this section, 'serious mental illness' means an illness included in the American Psychiatric Association's diagnostic and statistical manual of mental disorders, as periodically revised, under the diagnostic categories or subclassifications of: (i) Schizophrenia and other psychotic disorders; (ii) bipolar disorders; (iii) depressive disorders; (iv) substance-related disorders with the exception of caffeine-related disorders and nicotine-related disorders; (v) anxiety disorders; and (vi) anorexia and bulimia. With regard to any covered individual who has not yet attained the age of nineteen years, 'serious mental illness' also includes attention deficit hyperactivity disorder, separation anxiety disorder and conduct disorder.
(B) Notwithstanding any other provision in this section to the contrary, in the event that the agency can demonstrate actuarially that its total anticipated costs for the treatment of mental illness for any plan will exceed or have exceeded exceeded two percent of the total costs for such plan in any experience period, then the agency may apply whatever additional cost-containment measures may be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two percent of the total costs for the plan for the next experience period.
(C) The agency shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its plan. With regard to both medical-surgical and mental health benefits, it may make determinations of medical necessity and appropriateness, and it may use recognized health care quality and cost management tools, including, but not limited to, limitations on inpatient and outpatient benefits, utilization review, implementation of cost- containment measures, preauthorization for certain treatments, setting coverage levels, setting maximum number of visits within certain time periods, using capitated benefit arrangements, using fee-for-service arrangements, using third-party administrators, using provider networks and using patient cost sharing in the form of copayments, deductibles and coinsurance.
(7) Coverage for general anesthesia for dental procedures and associated outpatient hospital or ambulatory facility charges provided by appropriately licensed health care individuals in conjunction with dental care if the covered person is:
(A) Seven years of age or younger or is developmentally disabled, and is an individual for whom a successful result cannot be expected from dental care provided under local anesthesia because of a physical, intellectual or other medically compromising condition of the individual and for whom a superior result can be expected from dental care provided under general anesthesia;
(B) A child who is twelve years of age or younger with documented phobias, or with documented mental illness, and with dental needs of such magnitude that treatment should not be delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of teeth or other increased oral or dental morbidity and for whom a successful result cannot be expected from dental care provided under local anesthesia because of such condition and for whom a superior result can be expected from dental care provided under general anesthesia.
(b) The agency shall make available to each eligible employee, at full cost to the employee, the opportunity to purchase optional group life and accidental death insurance as established under the rules of the agency. In addition, each employee is entitled to have his or her spouse and dependents, as defined by the rules of the agency, included in the optional coverage, at full cost to the employee, for each eligible dependent; and with full authorization to the agency to make the optional coverage available and provide an opportunity of purchase to each employee.
(c) The finance board may cause to be separately rated for claims experience purposes:
(1) All employees of the State of West Virginia;
(2) All teaching and professional employees of state public institutions of higher education and county boards of education;
(3) All nonteaching employees of the Higher Education Policy Commission, West Virginia Council for Community and Technical College Education and county boards of education; or
(4) Any other categorization which would ensure the stability of the overall program.
(d) The agency shall maintain the medical and prescription drug coverage for Medicare- eligible retirees by providing coverage through one of the existing plans or by enrolling the Medicare-eligible retired employees into a Medicare-specific plan, including, but not limited to, the Medicare/Advantage Prescription Drug Plan. In the event that a Medicare-specific plan would no longer be available or advantageous for the agency and the retirees, the retirees shall remain eligible for coverage through the agency.
CHAPTER 33. INSURANCE.

ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3a. Same -- Mental health.

(a) (1) Notwithstanding the requirements of subsection (b) of this section, any health benefits plan described in this article that is delivered, issued or renewed in this state shall provide benefits to all individual subscribers and members and to all group members for expenses arising from treatment of serious mental illness. The expenses do not include custodial care, residential care or schooling. For purposes of this section, 'serious mental illness' means an illness included in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, as periodically revised, under the diagnostic categories or subclassifications of: (I) (A) Schizophrenia and other psychotic disorders; (ii) (B) bipolar disorders; (iii) (C) depressive disorders; (iv) (D) substance-related disorders with the exception of caffeine-related disorders and nicotine-related disorders; (v) (E) anxiety disorders; and (vi) (F) anorexia and bulimia.
(2) Notwithstanding any other provision in this section to the contrary, in the event that an insurer can demonstrate actuarially to the Insurance Commissioner that its total anticipated costs for treatment for mental illness, for any plan will exceed or have exceeded two percent of the total costs for such plan in any experience period, then the insurer may apply whatever cost containment measurers measures may be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two percent of the total costs for the plan: Provided, That for any group with twenty-five members or less, the insurer may apply such additional cost containment measures as may be necessary if the total anticipated actual costs for the treatment of mental illness will exceed one percent of the total costs for the group plan year beginning on or after October 3, 2009, an insurer providing a 'group health plan,' as defined in section one-a of this article, with an average of more than fifty employees on business days during the preceding calendar year, may not apply cost containment measures as provided in this subdivision unless the insurer can demonstrate that the application of this section results in an increase of two percent of the actual total costs of coverage for the plan year involved with respect to medical-surgical benefits and mental health benefits under the plan: Provided, however, That such cost containment measures implemented are applicable only for the plan year following approval of the request to implement cost containment measures.
(3) The insurer shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its plan. With regard to both medical-surgical and mental health benefits, it may make determinations of medical necessity and appropriateness, and it may use recognized health care quality and cost management tools, including, but not limited to, utilization review, use of provider networks, implementation of cost containment measures, preauthorization for certain treatments, setting coverage levels including the number of visits in a given time period, using capitated benefit arrangements, using fee-for-service arrangements, using third-party administrators, and using patient cost sharing in the form of copayments, deductibles and coinsurance.
(4) The provisions of amendments to this subsection enacted during the regular session of the Legislature in the year 2009 shall apply with respect to group health plans for plan years beginning on or after January 1, two thousand three October 3, 2009.
(b) With respect to mental health benefits furnished to an enrollee of a health benefit plan offered in connection with a group health plan, for a plan year beginning on or after January 1, 1998, the following requirements shall apply to aggregate lifetime limits and annual limits.
(1) Aggregate lifetime limits:
(A) If the health benefit plan does not include an aggregate lifetime limit on substantially all medical and surgical benefits, as defined under the terms of the plan but not including mental health benefits, the plan may not impose any aggregate lifetime limit on mental health benefits;
(B) If the health benefit plan limits the total amount that may be paid with respect to an individual or other coverage unit for substantially all medical and surgical benefits (in this paragraph, 'applicable lifetime limit'), the plan shall either apply the applicable lifetime limit to medical and surgical benefits to which it would otherwise apply and to mental health benefits, as defined under the terms of the plan, and not distinguish in the application of the limit between medical and surgical benefits and mental health benefits, or not include any aggregate lifetime limit on mental health benefits that is less than the applicable lifetime limit;
(C) If a health benefit plan not previously described in this subdivision includes no or different aggregate lifetime limits on different categories of medical and surgical benefits, the commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code under which paragraph (B) of this subdivision shall apply, substituting an average aggregate lifetime limit for the applicable lifetime limit.
(2) Annual limits:
(A) If a health benefit plan does not include an annual limit on substantially all medical and surgical benefits, as defined under the terms of the plan but not including mental health benefits, the plan may not impose any annual limit on mental health benefits, as defined under the terms of the plan;
(B) If the health benefit plan limits the total amount that may be paid in a twelve-month period with respect to an individual or other coverage unit for substantially all medical and surgical benefits (in this paragraph, 'applicable annual limit'), the plan shall either apply the applicable annual limit to medical and surgical benefits to which it would otherwise apply and to mental health benefits, as defined under the terms of the plan, and not distinguish in the application of the limit between medical and surgical benefits and mental health benefits, or not include any annual limit on mental health benefits that is less than the applicable annual limit;
(C) If a health benefit plan not previously described in this subdivision includes no or different annual limits on different categories of medical and surgical benefits, the commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code under which paragraph (B) of this subdivision shall apply, substituting an average annual limit for the applicable annual limit.
(3) If a group health plan or a health insurer offers a participant or beneficiary two or more benefit package options, this subsection shall apply separately with respect to coverage under each option."
The Speaker propounded "Shall the bill pass, as amended, in an effort to meet the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 519), and there were--yeas 90, nays none, absent and not voting 10, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Ellem, Fragale, Hartman, Hutchins, Manypenny, McGeehan, Michael, Ross and Tabb.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. Com. Sub. for H. B. 3288) passed, as a result of the objections of the Governor.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
At 12:35 p.m., on motion of Delegate Boggs, the House of Delegates recessed until 5:00 p.m., and reconvened at that time.
* * * * * * *

Evening Session

* * * * * * *

Delegate Manypenny, having been absent the first session today, appeared in his seat.
At the request of Delegate Boggs, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports

Chairman White, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration:
H. B. 2010, Budget Bill, making appropriations of public money out of the treasury in accordance with section fifty-one, article six of the Constitution,
And reports back a committee substitute therefor, with the same title, as follows:
Com. Sub. for H. B. 2010 - "A Bill making appropriations of public money out of the Treasury in accordance with section fifty-one, article VI of the Constitution,"
With the recommendation that the committee substitute do pass.
On motion of Delegate Boggs, and by unanimous consent, the bill (Com. Sub. for H. B. 2010) was taken up for immediate consideration, read a first time and ordered to second reading.
Leaves of Absence

At the request of Delegate Boggs, and by unanimous consent, leaves of absence for the day were granted Delegates Beach, Ellem, Fragale, Hartman, Hutchins, Manypenny, McGeehan, Michael, Ross and Tabb.
At 5:04 p.m., the House of Delegates adjourned until 3:00 p.m.,Wednesday, May 27, 2009.

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