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sdj-106th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

EXTENDED SESSION, 2009

ONE HUNDRED SIXTH DAY

____________

Charleston, W. Va., Wednesday, May 27, 2009

     The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)

     Prayer was offered by the Honorable Dan Foster, a senator from the seventeenth district.
     Pending the reading of the Journal of Tuesday, May 26, 2009,
     On motion of Senator Williams, the Journal was approved and the further reading thereof dispensed with.
     The Senate proceeded to the third order of business.
Executive Communications

     Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

April 22, 2009

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
     Pursuant to the provisions of Section 14, 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.
                              Very truly yours,
                               Joe Manchin III,
                               Governor.
cc:  The Honorable Earl Ray Tomblin
     The Honorable Natalie E. Tennant
     A message from The Clerk of the House of Delegates announced the reconsideration, amendment and passage as amended, to take effect from passage, of a bill disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
     Enr. Com. Sub. for House Bill No. 2423, Relating to the Board of Medical Imaging and Radiation Therapy Technology.
     On motion of Senator Chafin, the message was taken up for immediate consideration.
     Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 2423), heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled Committee Substitute for House Bill No. 2423, the same was put and prevailed.
     On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendment to the title of the bill:
     By striking out the title and substitute therefor a new title, to read as follows:
     Enr. Com. Sub. for House Bill No. 2423--An Act 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.
     The question now being on the passage of the bill, disapproved by the Governor and amended by the House of Delegates.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for H. B. No. 2423) passed with its title, as amended, as a result of the objections of the Governor.
     Senator Chafin moved that the bill take effect passage.
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for H. B. No. 2423) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Senator Tomblin (Mr. President) then laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 14, 2009

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
     Pursuant to the provisions of Section 14, 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 bill 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.
                              Very truly yours,
                               Joe Manchin III,
                               Governor.
cc:  The Honorable Earl Ray Tomblin
     The Honorable Natalie E. Tennant
     A message from The Clerk of the House of Delegates announced the reconsideration, amendment and passage as amended, to take effect July 1, 2009, of a bill disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
     Enr. Com. Sub. for House Bill No. 2535, Creating a tax credit for certain solar energy systems.
     On motion of Senator Chafin, the message was taken up for immediate consideration.
     Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 2535), heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled Committee Substitute for House Bill No. 2535, the same was put and prevailed.
     On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendments to the bill:
     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 article, designated §11-13Z-1, §11-13Z-2 and §11-13Z-3, all to read as follows:;
     And,
     By striking out the title and substitute therefor a new title, to read as follows:
     Enr. Com. Sub. for House Bill No. 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.
     The question now being on the passage of the bill, disapproved by the Governor and amended by the House of Delegates.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for H. B. No. 2535) passed with its title, as amended, as a result of the objections of the Governor.
     Senator Chafin moved that the bill take effect July 1, 2009.
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for H. B. No. 2535) takes effect July 1, 2009.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Senator Tomblin (Mr. President) next laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 8, 2009

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
     Pursuant to the provisions of Section 14, 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.
cc:  The Honorable Earl Ray Tomblin
     The Honorable Natalie E. Tennant
     A message from The Clerk of the House of Delegates announced the reconsideration, amendment and passage as amended, of a bill disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
     Enr. Com. Sub. for House Bill No. 2701, Relating to an escape of any person from the custody of the Division of Juvenile Services.
     On motion of Senator Chafin, the message was taken up for immediate consideration.
     Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 2701), heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled Committee Substitute for House Bill No. 2701, the same was put and prevailed.
     On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendments to the bill:
     By striking out everything after 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.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Enr. Com. Sub. for House Bill No. 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.
     The question now being on the passage of the bill, disapproved by the Governor and amended by the House of Delegates.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for H. B. No. 2701) passed with its title, as amended, as a result of the objections of the Governor.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 6, 2009

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
     Pursuant to the provisions of Section 14, 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.
cc:  The Honorable Earl Ray Tomblin
     The Honorable Natalie E. Tennant
     A message from The Clerk of the House of Delegates announced the reconsideration, amendment and passage as amended, of a bill disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
     Enr. Com. Sub. for House Bill No. 2771, Relating to the West Virginia Alcohol and Drug-Free Workplace Act.
     On motion of Senator Chafin, the message was taken up for immediate consideration.
     Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 2771), heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled Committee Substitute for House Bill No. 2771, the same was put and prevailed.
     On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendment to the title of the bill:
     By striking out the title and substitute therefor a new title, to read as follows:
     Enr. Com. Sub. for House Bill No. 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.
     The question now being on the passage of the bill, disapproved by the Governor and amended by the House of Delegates.
     On the passage of the bill, the yeas were: Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--30.
     The nays were: Barnes, Boley, Caruth and Sypolt--4.
     Absent: None.
     So a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for H. B. No. 2771) passed with its title, as amended, as a result of the objections of the Governor.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Senator Tomblin (Mr. President) then laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 8, 2009

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
     Pursuant to the provisions of Section 14, 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 battery. 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.
cc:  The Honorable Earl Ray Tomblin
     The Honorable Natalie E. Tennant
     A message from The Clerk of the House of Delegates announced the reconsideration, amendment and passage as amended, of a bill disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
     Enr. House Bill No. 2920, Eliminating the felony conviction for a second or subsequent conviction of petit larceny.
     On motion of Senator Chafin, the message was taken up for immediate consideration.
     Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate reconsider the bill (Enr. H. B. No. 2920), heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled House Bill No. 2920, the same was put and prevailed.
     On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendments to the bill:
     On page two, section six, line fourteen, after the word "who" by inserting the word "knowingly";
     By striking out the enacting section and inserting in lieu thereof a new 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:;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Enr. House Bill No. 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.
     The question now being on the passage of the bill, disapproved by the Governor and amended by the House of Delegates.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
     The nays were: D. Facemire--1.
     Absent: None.
     So a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. H. B. No. 2920) passed with its title, as amended, as a result of the objections of the Governor.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Senator Tomblin (Mr. President) next laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 12, 2009

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
     Pursuant to the provisions of Section 14, 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.
cc:  The Honorable Earl Ray Tomblin
     The Honorable Natalie E. Tennant
     A message from The Clerk of the House of Delegates announced the reconsideration, amendment and passage as amended, of a bill disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
     Enr. Com. Sub. for House Bill No. 2926, Establishing a procedure for challenging a candidate's qualifications for elected office.
     On motion of Senator Chafin, the message was taken up for immediate consideration.
     Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 2926), heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled Committee Substitute for House Bill No. 2926, the same was put and prevailed.
     On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendment to the bill:
     On page four, section fifteen, line five, by striking out the words "of this chapter" and inserting in lieu thereof a comma and the words "chapter three of this Code,".
     The question now being on the passage of the bill, disapproved by the Governor and amended by the House of Delegates.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for H. B. No. 2926) passed with its title, as amended, as a result of the objections of the Governor.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 8, 2009

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
     Pursuant to the provisions of Section 14, 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.
                              Very truly yours,
                               Joe Manchin III,
                               Governor.
cc:  The Honorable Earl Ray Tomblin
     The Honorable Natalie E. Tennant
     A message from The Clerk of the House of Delegates announced the reconsideration, amendment and passage as amended, of a bill disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
     Enr. Com. Sub. for House Bill No. 3120, Increasing the WV Prosecuting Attorneys Institute's executive council's elected members from five to seven and permitting the appointment of special prosecutors in juvenile delinquency, child abuse or neglect proceedings.
     On motion of Senator Chafin, the message was taken up for immediate consideration.
     Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 3120), heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled Committee Substitute for House Bill No. 3120, the same was put and prevailed.
     On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendments to the bill:
     By striking out the enacting section and inserting in lieu thereof a new 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:;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Enr. Com. Sub. for House Bill No. 3120--An Act to repeal §7-4- 6a of the Code of West Virginia, 1931, as amended; and to amend and reenact §7-4-6 of said code, relating to the West Virginia Prosecuting Attorneys Institute; increasing the membership of the executive council; permitting the appointment of special prosecutors in matters of juvenile delinquency and child abuse and neglect; and repealing outdated section that continued the Prosecuting Attorneys Institute.
     The question now being on the passage of the bill, disapproved by the Governor and amended by the House of Delegates.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for H. B. No. 3120) passed with its title, as amended, as a result of the objections of the Governor.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Senator Tomblin (Mr. President) then laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 11, 2009

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
     Pursuant to the provisions of Section 14, 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 proposed 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 else 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 rule- making authority of the court and return the bill for my approval.
                              Very truly yours,
                               Joe Manchin III,
                               Governor.
cc:  The Honorable Earl Ray Tomblin
     The Honorable Natalie E. Tennant
     A message from The Clerk of the House of Delegates announced the reconsideration, amendment and passage as amended, of a bill disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
     Enr. House Bill No. 3170, Relating to WV Guardianship and Conservatorship Act.
     On motion of Senator Chafin, the message was taken up for immediate consideration.
     Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate reconsider the bill (Enr. H. B. No. 3170), heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled House Bill No. 3170, the same was put and prevailed.
     On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendments to the bill:
     On page six, section ten, line twenty, after the word "conservators" by striking out the comma and inserting the word "and";
     And,
     On page six, section ten, lines twenty-one through twenty- five, 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 question now being on the passage of the bill, disapproved by the Governor and amended by the House of Delegates.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. H. B. No. 3170) passed with its title, as amended, as a result of the objections of the Governor.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Senator Tomblin (Mr. President) next laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 4, 2009

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
     Pursuant to the provisions of Section 14, 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 be 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.
cc:  The Honorable Earl Ray Tomblin
     The Honorable Natalie E. Tennant
     A message from The Clerk of the House of Delegates announced the reconsideration, amendment and passage as amended, of a bill disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
     Enr. Com. Sub. for House Bill No. 3194, Making it a misdemeanor to knowingly file false information with the Secretary of State.
     On motion of Senator Chafin, the message was taken up for immediate consideration.
     Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 3194), heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled Committee Substitute for House Bill No. 3194, the same was put and prevailed.
     On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendment to the bill:
     On page one, section one hundred fourteen, line two, by striking out the word "article" and inserting in lieu thereof the word "chapter".
     The question now being on the passage of the bill, disapproved by the Governor and amended by the House of Delegates.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for H. B. No. 3194) passed with its title, as amended, as a result of the objections of the Governor.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 7, 2009

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
     Pursuant to the provisions of Section 14, 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.
                              Very truly yours,
                               Joe Manchin III,
                               Governor.
cc:  The Honorable Earl Ray Tomblin
     The Honorable Natalie E. Tennant
     A message from The Clerk of the House of Delegates announced the reconsideration, amendment and passage as amended, of a bill disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
     Enr. House Bill No. 3197, Authorizing municipalities to permit nonpolice officers to issue citations for littering.
     On motion of Senator Chafin, the message was taken up for immediate consideration.
     Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate reconsider the bill (Enr. H. B. No. 3197), heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled House Bill No. 3197, the same was put and prevailed.
     On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendment to the title of the bill:
     By striking out the title and substitute therefor a new title, to read as follows:
     Enr. House Bill No. 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.
     The question now being on the passage of the bill, disapproved by the Governor and amended by the House of Delegates.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. H. B. No. 3197) passed with its title, as amended, as a result of the objections of the Governor.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     Senator Tomblin (Mr. President) then laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 4, 2009

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
     Pursuant to the provisions of Section 14, 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 plan 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.
cc:  The Honorable Earl Ray Tomblin
     The Honorable Natalie E. Tennant
     A message from The Clerk of the House of Delegates announced the reconsideration, amendment and passage as amended, of a bill disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
     Enr. Com. Sub. for House Bill No. 3288, Relating to mental health parity.
     On motion of Senator Chafin, the message was taken up for immediate consideration.
     Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 3288), heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled Committee Substitute for House Bill No. 3288, the same was put and prevailed.
     On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendment to the bill:
     By striking out everything after the enacting section 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 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 question now being on the passage of the bill, disapproved by the Governor and amended by the House of Delegates.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for H. B. No. 3288) passed with its title, as amended, as a result of the objections of the Governor.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     On motion of Senator Chafin, the Senate recessed until 6 p.m. today.
     Upon expiration of the recess, the Senate reconvened and resumed business under the third order.
Executive Communications

     The following communications from His Excellency, the Governor, were reported by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 26, 2009

Senate Executive Message No. 10
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
     The following amends and replaces the "FY 2009 Official Estimate" "State Road Fund - Statement of Revenues by Source" which I submitted to you on January 9, 2008, as part of my Executive Budget Document for the fiscal year ending June 30, 2009:
State Road Fund

Statement of Revenues by Source

(Expressed in Thousands)

  FY 2009
  Official
Source of Revenue        Estimate
Gasoline and Motor Carrier Road Tax                         $                380,000
Registration Fees                                           
        90,003

Registration Fee: Highway Litter Control                   
        1,699

Sales (Privilege) Tax                                       
        166,413

Less Transfer to Industrial Access Road Fund                
        (3,000)

Miscellaneous Income                                        
        46,0971

Federal Reimbursement:
  Interstate Construction                                   
        130,5002

  Other Federal Aid Programs                                
        277,800

  Appalachian Program                                       
        91,262

  Federal Economic Stimulus                                 
________ 40,000

  Total                                                     
________$1,220,7743

1 Revised from   $       36,360   to   $  46,097 -  Increase of   $        9,737.
2 Revised from           120,600   to      130,500 -  Increase of           9,900.
3 Revised from        1,210,137 to   1,220,774
- Increase of    19,637.

  To date in FY 2009, the State Road Fund has received approximately $12.7 million in transfers from the Motor Fuel Excise Tax Shortfall Reserve Fund. Those statutory transfers are recorded as miscellaneous income. Since Motor Fuel Excise Tax receipts have exceeded revenue estimates for the fiscal year, the transferred funds are additional revenue. At the same time, investment earnings have plummeted, forcing the agency to reduce its earnings forecast approximately $3 million. The net effect is a $9.7 million increase in miscellaneous revenues.
  All federal revenue is received as a reimbursement of actual expenditures. The revised FY 2009 budget reflects increased federal spending. Consequently, the revenues have increased also.
                   Sincerely,
                    Joe Manchin III,
                    Governor.

STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 26, 2009

Senate Executive Message No. 11
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
  The following amends and replaces the "FY 2010 Official Estimate" "State Road Fund - Statement of Revenues by Source" which I submitted to you on February 11, 2009, as part of my Executive Budget Document for the fiscal year ending June 30, 2010:
State Road Fund

Statement of Revenues by Source

(Expressed in Thousands)

  FY 2010
  Official
Source of Revenue        Estimate
Gasoline and Motor Carrier Road Tax                         $        380,000
Registration Fees                                                   89,407
Registration Fee: Highway Litter Control                           1,691
Sales (Privilege) Tax                                               160,550
Less Transfer to Industrial Access Road Fund                        (3,000)
Miscellaneous Income                                                34,5081
Federal Reimbursement:
  Interstate Construction                                           130,5002
  Other Federal Aid Programs                                        286,4153
  Appalachian Program                                               89,6004
  Federal Economic Stimulus                                 ________ 204,572
  Total                                                     ________$ 1,347,2435
1 Revised from   $       37,208   to   $  34,508 -  Decrease of   $        2,700.
2 Revised from           90,000   to      103,500 -  Increase of           13,500.
3 Revised from         263,006 to   286,415
- Increase of    23,409.

4 Revised from         81,272 to   89,600  - Increase of          8,328.
5 Revised from        1,304,706 to   1,347,243
- Increase of    42,537.

  The reduction of Miscellaneous Income of $2,700,000 is due to anticipated lower investment earnings caused by extremely low interest rates.
  Total increase in federal revenue is $45,236,800. Changes is federal revenue forecasts are driven by adjustments in estimated federal expenditures. All federal revenue is received as a reimbursement of actual expenditures. The revised FY 2010 budget reflects increased federal spending. Consequently, the revenues have increased also.
  Net effect of the above changes is a $42,536,800 increase in revenue projection.
                   Sincerely,
                    Joe Manchin III,
                    Governor.
State Road Fund

Statement of Revenues, Expenditures and Changes in Cash Liquidity

  Cash and Investment Balance - July 1, 2008
                      $ 208,821,743

Plus:
Revenue Estimate - FY 2009
         1,220,774,000

Total Estimated Receipts and Balance                       
        $ 1,429,595,743

Less:
Regular Division of Highways Appropriations

     FY 2009
                           $1,280,617,000

  Highways Supplemental Appropriation FY 2009                15,000,000
  Regular Division of Motor Vehicles
     Appropriation FY 2009
    34,846,113

  Claims Against the State Road Fund
_ 713,890________(1,331,177,003)

  Estimated Balance - June 30, 2009
                      $ 98,418,740

Plus:
Revenue Estimate - FY 2010
                       1,347,243,304

  Estimated Balance
                                                       $ 1,445,662,044

Less:
Recommended Division of Highways

     Appropriations FY 2010
              $1,329,147,000

  Recommended Division of Motor Vehicles
     Appropriation FY 2010
    37,481,469

  Recommended Claims Against the
     State Road Fund FY 2010
    508,581________(1,367,137,050)

  Estimated Cash and Investments Balance -
     June 30, 2010
                                                       $ 78,524,994
State Road Fund

Statement of Revenues by Source

(Expressed in Thousands)

FY 2006
FY 2007
FY 2008
FY 2009

      Actual
Actual
Actual
Official
FY 2010
FY 2011
FY 2012
FY 2013
FY 2014

Source of Revenue
Collections
Collections
Collections
Estimate
Estimate
Estimate  Estimate
Estimate
Estimate

Gasoline and Motor Carrier
  Road Tax              $320,757                     $349,172        $404,223       $380,000       $380,000        $382,940        $386,850  $386,850  $353,310  
Registration Fees         86,976                       87,058  86,396 90,003 89,407        91,773        89,514  88,272        90,083
Registration Fee:
  Highway Litter Control   1,692                        1,549   1,878  1,699  1,691        1,721        1,690  1,668  1,690
Sales (Privilege) Tax    171,479                      173,306 169,463       166,413       160,550        166,533  166,426  166,402  166,323
Less Transfer to Industrial
  Access Road Fund       (3,005)                      (3,034) (3,352)       (3,000)       (3,000)        (3,000)  (3,000)  (3,000)  (3,000)
Miscellaneous Income      24,569                       12,623  38,428 46,097 34,508        32,537        31,869        27,322  27,467
Federal Reimbursement:
  Interstate Construction 58,447                       49,027  74,887       130,500       103,500        67,500        69,300 49,500  49,500
  Other Federal Aid Programs    236,998                      246,360 206,910       277,800       286,415        193,345 248,460    276,340  276,340
  Appalachian Program     97,375                       94,257  75,356 91,262 89,600        61,391                                         42,400 34,400  34,400
  Federal Economic Stimulus      ___________ ________ _______ 40,000_______ 204,572________ __ __ __
Total
                     $995,288________$1,010,318_______$1,054,189_______$1,220,774________$1,347,243_$994,740__$1,033,509__$1,027,754__$996,113
     In compliance with Article VI, Section 51 of the Constitution, the Senate consented to receive the foregoing amendments to the Budget Bill, which were referred to the Committee on Finance.
     Senator Tomblin (Mr. President) then laid before the Senate the following communication from His Excellency, the Governor, consisting of executive nominations for appointees:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 27, 2009

Senate Executive Message No. 12
TO:
The Honorable Members of the

     West Virginia Senate
Ladies and Gentlemen:
     I respectfully submit the following nominations for your advice and consent:
      1.  For Executive Officer, Center for Professional Development Board, Dr. Dixie Billheimer, Huntington, Cabell County, to serve at the will and pleasure of the Governor.
      2.  For Member, Broadband Deployment Council, Tony Sereda, Broadview Heights, Ohio, for the term ending December 12, 2011.
      3.  For Member, Consolidated Public Retirement Board, Andrew Richardson, Charleston, Kanawha County, for the term ending June 30, 2010.
      4.  For Member, Shepherd University Board of Governors, Dr. John Younis, Shepherdstown, Jefferson County, for the term ending June 30, 2012.
      5.  For Member, Shepherd University Board of Governors, Veronique Walker, Martinsburg, Berkeley County, for the term ending June 30, 2010.
      6.  For Member, Shepherd University Board of Governors, Lacy Rice III, Washington, D. C., for the term ending June 30, 2012.
      7.  For Member, Bluefield State College Board of Governors, Anne Taylor, Princeton, Mercer County, for the term ending June 30, 2012.
      8.  For Member, West Virginia University Institute of Technology Community and Technical College Board of Governors, The Honorable Mike Burdiss, Mullens, Wyoming County, for the term ending June 30, 2012.
      9.  For Member, Real Estate Appraiser Licensing and Certification Board, Dale Clowser, Charleston, Kanawha County, for the term ending June 30, 2010.
     10.  For Member, Real Estate Appraiser Licensing and Certification Board, Mary Beth Aliveto, Bridgeport, Harrison County, for the term ending June 30, 2010.
     11.  For Member, Pierpont Community and Technical College Board of Governors, Rick Pruitte, Fairmont, Marion County, for the term ending June 30, 2010.
     12.  For Member, Aeronautics Commission, Ben Mallory, South Charleston, Kanawha County, for the term ending June 30, 2012.
     13.  For Member, Aeronautics Commission, Eldon J. Haught, Smithville, Ritchie County, for the term ending June 30, 2012.
     14.  For Member, Board of Examiners of Psychologists, Reverend Jude Molnar, Fairmont, Marion County, for the term ending June 30, 2011.
     15.  For Member, Board of Examiners of Psychologists, Toni Parsons, Morgantown, Monongalia County, for the term ending June 30, 2011.
     16.  For Member, Board of Examiners of Psychologists, William Brezinski, Athens, Mercer County, for the term ending June 30, 2011.
     17.  For Member, Public Employees Grievance Board, Bill Bissett, Huntington, Cabell County, for the term ending June 30, 2010.
     18.  For Member, Racing Commission, Joe Smith, Charleston, Kanawha County, for the term ending April 1, 2012.
     19.  For Member, Racing Commission, Greg McDermott, Wheeling, Ohio County, for the term ending April 1, 2012.
     20.  For Member, Racing Commission, Jack Rossi, Charleston, Kanawha County, for the term ending April 1, 2012.
     21.  For Member, Contractor Licensing Board, The Honorable John Pino, Oak Hill, Fayette County, for the term ending June 30, 2009.
     22.  For Member, Probable Cause Review Board, Michael Kawash, Charleston, Kanawha County, for the term ending June 30, 2009.
     23.  For Member, Board of Examiners for Licensed Practical Nurses, Francine Kirby, Princeton, Mercer County, for the term ending June 30, 2012.
     24.  For Member, Board of Examiners for Licensed Practical Nurses, Orpha Swiger, Clarksburg, Harrison County, for the term ending June 30, 2012.
     25.  For Member, Board of Examiners for Licensed Practical Nurses, Ben Vincent, Heaters, Braxton County, for the term ending June 30, 2009.
     26.  For Member, Board of Examiners for Licensed Practical Nurses, Gregory Chiartas, Charleston, Kanawha County, for the term ending June 30, 2012.
     27. For Member, Board of Examiners for Licensed Practical Nurses, Vicki Jenkins, Martinsburg, Berkeley County, for the term ending June 30, 2013.
     28.  For Member, Board of Examiners for Licensed Practical Nurses, Vickie Sue Bennett, Belington, Barbour County, for the term ending June 30, 2011.
     Notice of these appointments was previously provided to the appropriate legislative staff at the time the appointments were made.
     
Sincerely,

     
Joe Manchin III,

     
Governor.

     Which communication was received and referred to the Committee on Confirmations.
     On motion of Senator Stollings, consideration of the nominations immediately hereinbefore reported was made a special order of business for tomorrow, Thursday, May 28, 2009, at 11 a.m.
     Senator Tomblin (Mr. President) then laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

May 7, 2009

The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
     Pursuant to the provisions of Section 14, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Committee Substitute for Senate Bill No. 715.
     Enrolled Committee Substitute for Senate Bill No. 715 would allow for the modification of existing West Virginia/National Pollutant Discharge Elimination System (NPDES) permits containing limitations for the discharge of phosphorous and nitrogen into the Chesapeake Bay watershed and would direct the Secretary of the Department of Environmental Protection (DEP) to establish a program of nutrient trading and off-sets.
     While I support the Legislature's efforts to reduce the amount of nutrients discharged into the Chesapeake Bay watershed, I must object to this bill because of potential conflicts with federal environmental laws. The bill would require the Secretary of DEP to modify existing permits to grant permit holders a reasonable period of time to attain affordable compliance with any requirement related to the discharge of nitrogen and phosphorous into the Chesapeake Bay watershed. However, the federal Clean Water Act requires that compliance schedules for meeting new discharge requirements be established on an "as soon as possible" basis. Therefore, West Virginia/NPDES permits may not be conditioned on affordability or the availability of funding, and such permits would not be approved by the Environmental Protection Agency.
     For this reason, I must veto Enrolled Committee Substitute for Senate Bill No. 715. If the Legislature decides to consider this measure again in the future, the provisions of the bill should be
amended to limit risk to the state's NPDES program delegation.
                              Very truly yours,
                               Joe Manchin III,
                               Governor.
     Senator Chafin moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate proceed to reconsider
     Enr. Com. Sub. for Senate Bill No. 715, Establishing Chesapeake Bay Restoration Initiative.
     Heretofore disapproved and returned by His Excellency, the Governor, with his objections.
     The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled Committee Substitute for Senate Bill No. 715, the same was put and prevailed.
     On motion of Senator Kessler, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
     On page three, section thirty, line fifty-eight, by striking out "2012" and inserting in lieu thereof "2011";
     On page four, section thirty, line seventy-three, by striking out "2012" and inserting in lieu thereof "2010";
     On page four, section thirty, line seventy-five, after the word "improvements" by inserting the words "for public facilities";
     On page four, section thirty, by striking out subsection (h) in its entirety;
     By relettering the remaining subsection;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Enr. Com. Sub. for Senate Bill No. 715--An Act to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §22-11-30, relating to the protection of the Chesapeake Bay Watershed; establishing a nutrient trading and offset program; proposing nutrient performance standards for wastewater treatment facilities; and recommending a program to fund capital improvements needed to meet nutrient removal requirements.
     The question now being on the passage of the bill, disapproved by the Governor and amended by the Senate.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for S. B. No. 715) passed with its title, as amended, as a result of the objections of the Governor.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     The Senate proceeded to the ninth order of business.
     Com. Sub. for Senate Bill No. 150, Budget bill.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Without objection, the Senate returned to the third order of business.
     A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
     Eng. Com. Sub. for House Bill No. 2010--A Bill making appropriations of public money out of the Treasury in accordance with section fifty-one, article VI of the Constitution.
     At the request of Senator Chafin, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.
     On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
     On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     The bill (Eng. Com. Sub. for H. B. No. 2010) was then read a second time.
     On motion of Senator Helmick, the following amendment to the bill was reported by the Clerk and adopted:
     By striking out everything after the enacting clause and inserting in lieu thereof the provisions of Engrossed Committee Substitute for Senate Bill No. 150.
     The bill, as amended, was ordered to third reading.
     Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2010) was then read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2010) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2010) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     The Senate proceeded to the thirteenth order of business.
     At the request of Senator White, unanimous consent being granted, it was ordered that the Journal show had Senator White been present in the chamber on yesterday, Tuesday, May 26, 2009, he would have voted "yea" on the passage of Enrolled Committee Substitute for Committee Substitute for Senate Bill No. 239, Enrolled Committee Substitute for Committee Substitute for Senate Bill No. 414, Enrolled Committee Substitute for Senate Bill No. 501, Enrolled Senate Bill No. 528 and Enrolled Committee Substitute for Senate Bill No. 695.
     On motion of Senator Chafin, the Senate adjourned until tomorrow, Thursday, May 28, 2009, at 11 a.m.
____________

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