sdj-59th day
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-NINTH LEGISLATURE
REGULAR SESSION, 2010
FIFTY-NINTH DAY
____________
Charleston, W. Va., Friday, March 12, 2010
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Pastor Matthew J. Watts, Grace Bible
Church, Charleston, West Virginia.
Pending the reading of the Journal of Thursday, March 11,
2010,
On motion of Senator Browning, the Journal was approved and
the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
At the request of Senator Chafin, and by unanimous consent,
the Senate proceeded to the sixth order of business.
Senators Wells, Tomblin (Mr. President), Jenkins, Minard,
Oliverio, Williams, Browning, Yost, Foster, Laird, Stollings,
McCabe, Plymale, Prezioso, Green, Kessler, Fanning, Bowman, Unger,
Palumbo and Deem offered the following resolution:
Senate Resolution No. 53--Honoring the West Virginia National Guard for its dedicated service to our communities, state and
country.
Whereas, The West Virginia National Guard has a three-fold
mission: (a) Federal Mission - As a Reserve Component of the Army
and the Air Force, maintain combat ready units, soldiers and airmen
who are ready to deploy in support of the National Military
Strategy; (b) State Mission - Provide organized, trained and
equipment units to protect life and property and to preserve peace,
order and public safety when ordered by the governor; and (c)
Community Mission - To add value to the communities in which we
live, work and serve; and
Whereas, The West Virginia National Guard plays a vital role
in defending our homeland and contributing to world stability; and
Whereas, The West Virginia National Guard currently has units
supporting operations in Iraq, Afghanistan, and Kosovo; and
Whereas, The West Virginia National Guard plays a key role
during floods, fires and other natural disasters; and
Whereas, The West Virginia National Guard recently performed
a successful search and rescue mission for a Navy helicopter and
its 17 crew members that crashed in the rugged and snow covered
mountains of Pocahontas County; and
Whereas, The West Virginia National Guard executed a
remarkable rescue of a mother and four-week old premature baby who
were stranded in a home with no heat in Morgan County, after back-to-back snowstorms in February of 2010; and
Whereas, It is fitting, to salute and pay tribute to the men
and women of the West Virginia National Guard for their unyielding
commitment to serving and protecting our communities, state and
country; therefore, be it
Resolved by the Senate:
That the Senate hereby honors the West Virginia National Guard
for its dedicated service to our communities, state and country;
and, be it
Further Resolved, That the Senate is grateful for the
opportunity to honor the extraordinary men and women of the West
Virginia National Guard; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the appropriate representatives from
the West Virginia National Guard.
At the request of Senator Wells, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Thereafter, at the request of Senator Oliverio, and by
unanimous consent, the remarks by Senator Wells regarding the
adoption of Senate Resolution No. 53 were ordered printed in the
Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order.
At the request of Senator Kessler, unanimous consent being
granted, Senator Kessler offered the following resolution from the
floor:
Senate Resolution No. 54--
Honoring Mike Carey, head coach of
the West Virginia University Women's basketball team.
Whereas, Mike Carey, a Clarksburg, West Virginia, native, has
led the West Virginia University Women's basketball team
since
2001
; and
Whereas, Mike Carey's achievements as head coach
speak
volumes: four 21-win seasons in six years (a school record); three
consecutive postseason appearances (a school record); the second-
best four-year span in school history amassing 82 wins (2005-08);
10 career victories over ranked opponents including the highest-
ranked team in school history; the highest ranked road team in
school history; victories over two eventual national runner-ups;
the school's first-ever BIG EAST championship game appearance;
consecutive NCAA tournament appearances (2007, 2008) and three
trips in five years (2004, 2007, 2008)
; and
Whereas, During the 2009-2010 season, Mike Carey coached the
West Virginia University Women's basketball team
to a second place
finish in the Big East regular season and conference tournament;
and
Whereas, Under Mike Carey's leadership, the West Virginia
University Women's basketball team
has been ranked in the top 10
nationally for much of the 2009-2010 season
; and
Whereas, For his dedication and commitment to the West
Virginia University Women's basketball team
, Mike Carey was named
the 2009-2010 Big East Coach of the Year; therefore, be it
Resolved by the Senate:
That the Senate hereby honors Mike Carey, head coach of the
West Virginia University Women's basketball team
; and, be it
Further Resolved, That the Senate wishes Mike Carey and the
West Virginia University Women's basketball team
the best of luck
in the upcoming 2010 NCAA Tournament; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Mike Carey.
At the request of Senator Kessler, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Thereafter, at the request of Senator Oliverio, and by
unanimous consent, the remarks by Senator Kessler regarding the
adoption of Senate Resolution No. 54 were ordered printed in the
Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and proceeded to the seventh order of business.
Senate Concurrent Resolution No. 61, Urging EPA not veto
Spruce Mine permit.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 71, Requesting Joint
Committee on Government and Finance study certain impact of
landfills and monofills.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on the
Judiciary; and then to the Committee on Rules.
Senate Concurrent Resolution No. 72, Requesting Joint
Committee on Government and Finance study economic impact of
industrial traffic.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on
Transportation and Infrastructure; and then to the Committee on
Rules.
Senate Resolution No. 52, Honoring Gen. Louis L. Wilson, Jr.
On unfinished, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was laid over one day, retaining its place
on the calendar.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with Rule
number seventeen of the Rules of the Senate, had removed from the
Senate third reading calendar, Engrossed Committee Substitute for
House Bill No. 4652.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2663, Expanding the power of
municipal parking authority officers.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, 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)--32.
The nays were: Chafin--1.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2663) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4018, Establishing that
possession of a mixture or preparation intended for human
consumption containing salvia divinorum is unlawful.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4018) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4034, Authorizing any
municipality to enact by ordinance a vacant property registration
program.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4034) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4039, Increasing the number
of persons that may be appointed to the Marshall County Park and
Recreation Board.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4039) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, 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, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4039) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4130, Creating the West
Virginia Supreme Court of Appeals Public Campaign Financing Pilot
Program.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bowman, Browning,
Deem, Edgell, D. Facemire, Foster, Green, Guills, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost
and Tomblin (Mr. President)--26.
The nays were: Barnes, Boley, Chafin, K. Facemyer, Fanning,
Hall and Sypolt--7.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4130) passed.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the title of the bill was
withdrawn.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4130--A Bill to amend and
reenact §3-1A-1, §3-1A-4 and §3-1A-5 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a new
article, designated §3-12-1, §3-12-2, §3-12-3, §3-12-4, §3-12-5,
§3-12-6, §3-12-7, §3-12-8, §3-12-9, §3-12-10, §3-12-11, §3-12-12, §3-12-13, §3-12-14, §3-12-15, §3-12-16 and §3-12-17, all relating
to creating the West Virginia Supreme Court of Appeals Public
Campaign Financing Pilot Program; giving additional duties and per
diem pay to the State Election Commission; authorizing the State
Election Commission to use video, telephone and Internet
conferencing; providing alternative public campaign financing
option for candidates for the West Virginia Supreme Court of
Appeals in 2012; setting forth short title and certain legislative
findings and declarations; defining terms; specifying that the
provisions of the act are applicable to candidates for the West
Virginia Supreme Court of Appeals in the 2012 primary and general
elections; establishing the Supreme Court of Appeals Public
Campaign Financing Fund and sources of revenue for the fund;
authorizing transfer from the Purchasing Card Administration Fund
to the fund for three years; requiring an applicant for public
campaign financing to complete a declaration of intent and setting
forth the manner in which an application for funding may be made;
setting forth eligibility criteria for qualifying candidates;
allowing participating candidates to raise funds from private
sources and spend exploratory contributions; requiring candidates
seeking public campaign funds to collect a required number of
qualifying contributions; requiring candidates to provide detailed
receipts to contributors and to the State Election Commission for
exploratory and qualifying contributions; requiring participating candidates to comply with all provisions of the act; requiring the
State Election Commission to certify eligible candidates and
setting forth the procedure for certification; providing for
challenges to certification; providing for revocation of
certification; providing for withdrawal from program; providing for
distribution of funds from the Public Campaign Financing Fund to
qualified candidates for funding election campaigns; specifying the
amount of funds available for each candidate and when the funds
become available; setting forth restrictions on participating
candidates' contributions and spending; prohibiting participating
candidates from accepting private contributions other than as
specifically set forth in the act; providing for repayment of funds
under certain circumstances; prohibiting the use of personal funds
for certain purposes; permitting qualified candidates to raise
funds from private sources when there is insufficient money in the
Public Campaign Financing Fund to make a complete distribution to
all qualified candidates; requiring certain disclosures; requiring
candidates to keep records and report to the State Election
Commission; providing for additional funds when independent
expenditures or opponent expenditures exceed certain limits;
setting forth certain duties of the State Election Commission and
the Secretary of State; authorizing emergency and legislative
rules; authorizing the creation of a voters' guide; providing for
the deposit of certain revenue into the fund; requiring repayment of excessive expenditures by candidates; providing both civil and
criminal penalties for violations of the act; and expiring the act
in 2013.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4138, Relating to the practice of medical
imaging and radiation therapy.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4138) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, 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, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4138) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4145, Providing services and
facilities to assist student veterans at state institutions of
higher education.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4145) passed.
The following amendment to the title of the bill, from the
Committee on Military, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4145--A Bill
to
amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §18B-4-9, relating to requiring the Commission
and Council to establish and implement measures to provide services
and facilities to assist student veterans at state institutions of
higher education; and providing for annual reports to the
Legislature.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4172, Authorizing the
Division of Motor Vehicles to issue special license plates for
members of certain organizations upon approval of the commissioner.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4172) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4194, Codifying the Division
of Criminal Justice Services being incorporated into the Department
of Military Affairs and Public Safety.
On third reading, coming up in regular order, with the
unreported Government Organization amendment pending, and with the
right having been granted on yesterday, Thursday, March 11, 2010,
for other amendments to be received on third reading, was reported
by the Clerk.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §5F-2-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto three new sections, designated §15-9A-1, §15-9A-2 and
§15-9A-3, all to read as follows:
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Administration:
(1) Building Commission provided in article six, chapter five
of this code;
(2) Public Employees Insurance Agency provided in article
sixteen, chapter five of this code;
(3) Governor's Mansion Advisory Committee provided in article
five, chapter five-a of this code;
(4) Commission on Uniform State Laws provided in article
one-a, chapter twenty-nine of this code;
(5) West Virginia Public Employees Grievance Board provided in
article three, chapter six-c of this code;
(6) Board of Risk and Insurance Management provided in article
twelve, chapter twenty-nine of this code;
(7) Boundary Commission provided in article twenty-three,
chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one,
chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter
twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article two, chapter six-b of this code;
(11) Consolidated Public Retirement Board provided in article
ten-d, chapter five of this code; and
(12) Real Estate Division provided in article ten, chapter
five-a of this code.
(b) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter
twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided
in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety
provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in
article one, chapter twenty-two-a of this code. The following
boards are transferred to the Office of Miners' Health, Safety and
Training for purposes of administrative support and liaison with
the office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety
and Technical Review Committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine,
chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the
Division of Tourism and the Tourism Commission provided in article
two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources
Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter
nineteen of this code;
(6) Geological and Economic Survey provided in article two,
chapter twenty-nine of this code; and
(7) Workforce West Virginia provided in chapter twenty-one-a
of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Services;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article two-f, chapter
five-b of this code.
(c) The Economic Development Authority provided in article
fifteen, chapter thirty-one of this code is continued as an
independent agency within the executive branch.
(d) The Water Development Authority and Board provided in article one, chapter twenty-two-c of this code is continued as an
independent agency within the executive branch.
(e) The following agencies and boards, including all of the
allied, advisory and affiliated entities, are transferred to the
Department of Environmental Protection for purposes of
administrative support and liaison with the office of the Governor:
(1) Air Quality Board provided in article two, chapter
twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three,
chapter twenty-two-c of this code;
(3) Environmental Quality Board, or its successor board,
provided in article three, chapter twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter
twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in
article seven, chapter twenty-two-c of this code;
(6) Shallow Gas Well Review Board provided in article eight,
chapter twenty-two-c of this code; and
(7) Oil and Gas Conservation Commission provided in article
nine, chapter twenty-two-c of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Education and the Arts:
(1) Library Commission provided in article one, chapter ten of
this code;
(2) Educational Broadcasting Authority provided in article
five, chapter ten of this code;
(3) Division of Culture and History provided in article one,
chapter twenty-nine of this code;
(4) Division of Rehabilitation Services provided in section
two, article ten-a, chapter eighteen of this code.
(g) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Health and Human
Resources:
(1) Human Rights Commission provided in article eleven,
chapter five of this code;
(2) Division of Human Services provided in article two,
chapter nine of this code;
(3) Bureau for Public Health provided in article one, chapter
sixteen of this code;
(4) Office of Emergency Medical Services and Advisory Council
provided in article four-c, chapter sixteen of this code;
(5) Health Care Authority provided in article twenty-nine-b,
chapter sixteen of this code;
(6) Commission on Mental Retardation provided in article fifteen, chapter twenty-nine of this code;
(7) Women's Commission provided in article twenty, chapter
twenty-nine of this code; and
(8) The Child Support Enforcement Division provided in chapter
forty-eight of this code.
(h) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Military Affairs and
Public Safety:
(1) Adjutant General's Department provided in article one-a,
chapter fifteen of this code;
(2) Armory Board provided in article six, chapter fifteen of
this code;
(3) Military Awards Board provided in article one-g, chapter
fifteen of this code;
(4) West Virginia State Police provided in article two,
chapter fifteen of this code;
(5) Division of Homeland Security and Emergency Management and
Disaster Recovery Board provided in article five, chapter fifteen
of this code and Emergency Response Commission provided in article
five-a of said chapter;
(6) Sheriffs' Bureau provided in article eight, chapter
fifteen of this code;
(7) Division of Justice and Community Services provided in
article nine a, chapter fifteen of this code;
(7) (8) Division of Corrections provided in chapter
twenty-five of this code;
(8) (9) Fire Commission provided in article three, chapter
twenty-nine of this code;
(9) (10) Regional Jail and Correctional Facility Authority
provided in article twenty, chapter thirty-one of this code;
(10) (11) Board of Probation and Parole provided in article
twelve, chapter sixty-two of this code; and
(11) (12) Division of Veterans' Affairs and Veterans' Council
provided in article one, chapter nine-a of this code.
(i) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Revenue:
(1) Tax Division provided in article one, chapter eleven of
this code;
(2) Racing Commission provided in article twenty-three,
chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director
provided in article twenty-two, chapter twenty-nine of this code;
(4) Agency of Insurance Commissioner provided in article two,
chapter thirty-three of this code;
(5) Office of Alcohol Beverage Control Commissioner provided
in article sixteen, chapter eleven of this code and article two,
chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided in
article three, chapter thirty-one-a of this code;
(7) Lending and Credit Rate Board provided in chapter
forty-seven-a of this code;
(8) Division of Banking provided in article two, chapter
thirty-one-a of this code;
(9) The State Budget Office provided in article two of this
chapter;
(10) The Municipal Bond Commission provided in article three,
chapter thirteen of this code;
(11) The Office of Tax Appeals provided in article ten-a,
chapter eleven of this code; and
(12) The State Athletic Commission provided in article five-a,
chapter twenty-nine of this code.
(j) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Transportation:
(1) Division of Highways provided in article two-a, chapter
seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority provided in article sixteen-a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided in article two,
chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided in article two,
chapter seventeen-b of this code;
(5) Aeronautics Commission provided in article two-a, chapter
twenty-nine of this code;
(6) State Rail Authority provided in article eighteen, chapter
twenty-nine of this code; and
(7) Port Authority provided in article sixteen-b, chapter
seventeen of this code.
(k) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the position of administrator and
the powers, authority and duties of each administrator and agency
are not affected by the enactment of this chapter.
(l) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the existence, powers, authority
and duties of boards and the membership, terms and qualifications
of members of the boards are not affected by the enactment of this
chapter. All boards that are appellate bodies or are independent
decision makers shall not have their appellate or independent
decision-making status affected by the enactment of this chapter.
(m) Any department previously transferred to and incorporated
in a department by prior enactment of this section means a division
of the appropriate department. Wherever reference is made to any
department transferred to and incorporated in a department created
in section two, article one of this chapter, the reference means a
division of the appropriate department and any reference to a
division of a department so transferred and incorporated means a
section of the appropriate division of the department.
(n) When an agency, board or commission is transferred under
a bureau or agency other than a department headed by a secretary
pursuant to this section, that transfer is solely for purposes of
administrative support and liaison with the Office of the Governor,
a department secretary or a bureau. Nothing in this section
extends the powers of department secretaries under section two of
this article to any person other than a department secretary and
nothing limits or abridges the statutory powers and duties of
statutory commissioners or officers pursuant to this code.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 9A. Division of Justice and Community Services.
§15-9A-1. Legislative findings.
The West Virginia Division of Justice and Community Services
is required to perform certain administrative and executive
functions related to the improvement of the criminal justice and
juvenile justice systems, and various component agencies of state and local government with research and performance data, planning,
funding and managing programs supported by federal and state
granted funds, and through its staff activities on behalf of the
Governor's Committee on Crime, Delinquency and Correction, to
provide regulatory oversight of law enforcement training and
certification, community corrections programs established under the
provisions of article eleven-c, chapter sixty-two of this code, and
the monitoring of facilities for compliance with juvenile detention
facilities standards established by state and federal law. These
administrative and executive staffing functions are necessary to
provide for planning and coordination of services among the
components of the criminal and juvenile justice systems; program
development and implementation; and administration of grant funded
programs emphasizing safety, prevention, coordination and the
general enhancement of the criminal justice system as a whole, as
well as such other federal grant funded activities as the Governor
may from time to time designate for administration by the Division.
§15-9A-2. Division established; appointment of director.
(a) The Division of Justice and Community Services is created.
The purpose of the division is to provide executive and
administrative support to the Governor's Committee on Crime
Delinquency and Correction in the coordination of planning for the
criminal justice system, to administer federal and state grant
programs assigned to it by the actions of the Governor or Legislature, and to perform such other duties as the legislature
may from time to time assign to the Division.
(b) The director of the division shall be named by the
Governor to serve at his will and pleasure.
(c) The director of the division shall take and subscribe to
an oath of office in conformity with article IV, section five of
the Constitution of the State of West Virginia.
§15-9A-3 Duties and powers of the director.
(a) The director is responsible for the control and
supervision of the division.
(b) The director shall be charged with executive and
administrative responsibility to (i) carry out the specific duties
imposed on the Governor's Committee on Crime, Delinquency and
Correction under the provisions of article nine, chapter fifteen;
article twenty-nine, chapter thirty; and article eleven-c, chapter
sixty-two of this code; (ii) maintain appropriate liaison with
federal, state and local agencies and units of government, or
combinations thereof, in order that all programs, projects and
activities for strengthening and improving law enforcement and the
administration of criminal justice may function effectively at all
levels of government, and (iii) seek sources of federal grant
assistance programs that may benefit the state when authorized by
the Governor and manage the dispersal of those funds through grant
contracts to sub-grantees in a manner consistent with state and federal law, and with sound and accountable management practices
for the efficient and effective use of public funds.
(c) The director may:
(1) Employ necessary personnel, assign them the duties
necessary for the efficient management and operation of the
division;
(2) Work to bridge gaps between federal, state and local units
of government, as well as private/non-profit organizations and the
general public;
(3) Provide staff assistance in the coordination of all facets
of the criminal and juvenile justice systems on behalf of the
Governor's Committee on Crime Delinquency and Correction, including
but not limited to law enforcement, jails, corrections, community
corrections and victim services;
(4) Acquire criminal justice resources and coordinate the
allocation of these resources to state, local and not-for-profit
agencies;
(5) Maintain a web based data base for all community
correction programs;
(6) Through the Criminal Justice Statistical Analysis Center,
collect, compile, and analyze crime and justice data in the state,
generating statistical and analytical products for criminal justice
professionals professional and policy makers to establish a basis
for sound policy and practical considerations for the criminal justice system and make such recommendations for system improvement
as may be warranted by such research;
(7) Receive and disburse federal and state grants.
Nothing in this chapter shall be construed as authorizing the
division to undertake direct operational responsibilities in law
enforcement or the administration of criminal justice.
There being no further amendments offered,
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4194) was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
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, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4194) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 4194--A Bill to amend and reenact §5F-2-1 of the Code of West Virginia, 1931, as amended, and
that said code be amended by adding thereto three new sections
designated §15-9A-1, §15-9A-2 and §15-9A-3, all relating to
codifying the Division of Justice and Community Services being
incorporated in and administered as a part of the Department of
Military Affairs and Public Safety.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Barnes, Boley, 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, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4194) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4207, Making it unlawful to
send obscene, anonymous, harassing and threatening communications
by computer, mobile phone, personal digital assistant or other
mobile device.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4207) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4207--A Bill
to amend and
reenact §61-3C-14a of the Code of West Virginia, 1931; and to amend
and reenact §61-8-16 of said code, all relating to crimes using
computers and electronic devices; creating offenses for the
unlawful transmission of obscene, anonymous, harassing and
threatening communications and data by mobile phone, personal
digital assistant or other mobile device; clarifying provisions
pertaining to the unlawful obscene, anonymous, harassing and
threatening communications by traditional voice communication by telephone; prohibiting using computers or electronic devices to
cause eavesdropping and data interception programs onto mobile
phones and similar devices of another without that person's
knowledge and consent; creating the misdemeanor offense of unlawful
impersonation of another by computer or other electronic means;
creating a felony offense for certain repeat offenses using a
computer, mobile phone or other mobile device; and establishing
penalties.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4248, Relating to the
solicitation of charitable funds.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4248) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4285, Relating to the
licensing of residential mortgage brokers, lenders and loan
originators by the Division of Banking.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4285) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4373, Eliminating the twelve-month
look-back period for certain children who have had employer
sponsored insurance.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4373) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4504, Adopting the Uniform
State Military Code of Justice into West Virginia law.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4504) passed.
On motion of Senator Kessler, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4504--A Bill
to amend and
reenact §15-1E-1, §15-1E-2, §15-1E-3, §15-1E-4, §15-1E-5, §15-1E-6,
§15-1E-7, §15-1E-8, §15-1E-9, §15-1E-10, §15-1E-11, §15-1E-12, §15-
1E-13, §15-1E-14, §15-1E-15, §15-1E-16, §15-1E-17, §15-1E-18, §15-
1E-19, §15-1E-20, §15-1E-21, §15-1E-22, §15-1E-23, §15-1E-24, §15-
1E-25, §15-1E-26, §15-1E-27, §15-1E-28, §15-1E-29, §15-1E-30, §15-
1E-31, §15-1E-32, §15-1E-33, §15-1E-34, §15-1E-35, §15-1E-36, §15-
1E-37, §15-1E-38, §15-1E-39, §15-1E-40, §15-1E-41, §15-1E-42, §15-
1E-43, §15-1E-44, §15-1E-45, §15-1E-46, §15-1E-47, §15-1E-48, §15-
1E-49, §15-1E-50, §15-1E-51, §15-1E-52, §15-1E-53, §15-1E-54, §15-
1E-55, §15-1E-56, §15-1E-57, §15-1E-58, §15-1E-59, §15-1E-60, §15-
1E-61, §15-1E-62, §15-1E-63, §15-1E-64, §15-1E-65, §15-1E-66, §15-
1E-67, §15-1E-68, §15-1E-69, §15-1E-70, §15-1E-71, §15-1E-72, §15-
1E-73, §15-1E-74, §15-1E-75, §15-1E-76, §15-1E-77, §15-1E-78, §15-
1E-79, §15-1E-80, §15-1E-81, §15-1E-82, §15-1E-83, §15-1E-84, §15-
1E-85, §15-1E-86, §15-1E-87, §15-1E-88, §15-1E-89, §15-1E-90, §15-1E-91, §15-1E-92, §15-1E-93, §15-1E-94, §15-1E-95, §15-1E-96, §15-
1E-97, §15-1E-98, §15-1E-99, §15-1E-100, §15-1E-101, §15-1E-102,
§15-1E-103, §15-1E-104, §15-1E-105, §15-1E-106, §15-1E-107, §15-1E-
108, §15-1E-109, §15-1E-110, §15-1E-111, §15-1E-112, §15-1E-113,
§15-1E-114, §15-1E-115, §15-1E-116, §15-1E-117, §15-1E-118, §15-1E-
119, §15-1E-120, §15-1E-121, §15-1E-122, §15-1E-123, §15-1E-124,
§15-1E-125, §15-1E-126, §15-1E-127, §15-1E-128, §15-1E-129, §15-1E-
130, §15-1E-131, §15-1E-132, §15-1E-133, §15-1E-134, §15-1E-135,
§15-1E-136, §15-1E-137 and §15-1E-138, of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto eighteen new sections, designated §15-1E-50a, §15-1E-57a,
§15-1E-58a, §15-1E-58b, §15-1E-67a, §15-1E-76a, §15-1E-76b, §15-1E-
112a, §15-1E-139, §15-1E-140, §15-1E-141, §15-1E-142, §15-1E-143,
§15-1E-144, §15-1E-145, §15-1E-146, §15-1E-147 and §15-1E-148, all
relating to adopting the Uniform State Military Code of Justice;
defining terms; designating persons subject to this code and
jurisdiction; noting the territorial applicability of the code;
detailing apprehension and restraint procedures; establishing
nonjudicial punishment authority; stating court-martial
jurisdiction; prescribing appointment and composition of courts-
martial; describing pretrial and trial procedure; specifying
sentences after conviction; delineating post-trial procedure and
review of courts-martial; establishing punitive articles; and
creating miscellaneous provisions.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4557, Reviewing all of the
Department of Health and Human Resources requests for proposals or
change orders valued at over $500,000 prior to their release.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4557) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4559, Relating to the requirements to be
certified as a registered forester.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4559) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, 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, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4559) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4615, Authorizing political
subdivisions to establish risk pools to insure their workers'
compensation risks.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, 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)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4615) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, 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, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4615) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4630, Relating to refunding
of appraisal fees.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Prior to the call of the roll, Senator Williams moved to be
excused from voting under rule number forty-three of the Rules of
the Senate, which motion prevailed.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, K. Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Unger, Wells, White, Yost and Tomblin (Mr. President)--30.
The nays were: Edgell and D. Facemire--2.
Absent: Caruth--1.
Excused from voting: Williams--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4630) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4652, Establishing a school
calendar committee for each county.
Having been removed from the Senate third reading calendar in
earlier proceedings today, no further action thereon was taken.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2773, Increasing the
monetary penalties for selling tobacco products to minors.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
the Judiciary, were reported by the Clerk, considered
simultaneously, and adopted:
On page three, section two, line fourteen, by striking out
"$100" and inserting in lieu thereof "$50";
On page five, section three, line eleven, by striking out
"$100" and inserting in lieu thereof "$50";
And,
On page five, section three, line thirteen, by striking out
"$150" and inserting in lieu thereof "$100".
The bill (Eng. Com. Sub. for H. B. No. 2773), as amended, was
then ordered to third 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, 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)--33.
The nays were: None.
Absent: Caruth--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2773) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
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, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2773) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2773--A Bill to amend and
reenact §16-9A-2 of the Code of West Virginia, 1931, as amended,
all relating to prohibited access and usage of tobacco products by
minors; increasing the monetary penalties for selling tobacco
products to minors; providing that the sale or furnishing of
tobacco products to minors may constitute grounds for dismissal as
an act of misconduct; and clarifying the impact of such a dismissal
on the discharged employees' eligibility to receive unemployment
benefits.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3152, Athletic Trainers
Registration Act.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
The Code of West Virginia, 1931, as amended, be amended by
adding thereto a new article, designated §30-20A-1, §30-20A-2, §30-
20A-3, §30-20A-4, §30-20A-5, §30-20A-6 and §30-20A-7 all to read as follows:
ARTICLE 20A. ATHLETIC TRAINERS.
§30-20A-1. Definitions.
As used in this article:
(1) "Applicant" means any person making application for an
original or renewal registration to act as an athletic trainer
under the provisions of this article.
(2) "Board" means the West Virginia Board of Physical Therapy
established under article twenty of this chapter.
(3) "Registrant" means a person registered as an athletic
trainer under the provisions of this article.
(4) "Registration" means a registration issued by the board to
practice athletic training.
§30-20A-2. Title protection.
(a) A person may not advertise or represent himself or herself
as an athletic trainer in this state and may not use the initials
"AT", the words "registered athletic trainer" or "athletic
trainer", or any other words, abbreviations, titles or insignia
that indicates, implies or represents that he or she is an athletic
trainer, unless he or she is registered by the board.
(b) Nothing contained in this article shall be construed as
preventing any person, firm, partnership or corporation from
practicing athletic training, in any manner desired.
(c) Nothing in this article may be construed to prohibit or otherwise limit the use of the term "athletic trainer" in secondary
school settings by persons who were practicing athletic training
under a West Virginia Board of Education Athletic Certification,
provided the practice is in accordance with Board of Education
policy in effect prior to July 1, 2011.
§30-20A-3. Powers and duties of the board.
The board has the following powers and duties:
(1) Establish procedures for submitting, approving and denying
applications for registration;
(2) Investigate alleged violations of the provisions of this
article;
(3) Establish a fee schedule;
(4) Issue, renew, deny, suspend, revoke or reinstate a
registration;
(5) Determine disciplinary action and issue orders;
(6) Institute appropriate legal action for the enforcement of
the provisions of this article; and
(7) Maintain an accurate registry of the names and addresses
of registrants.
§30-20A-4. Rulemaking authority.
The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, to implement the provisions of this article,
including:
(1) Procedures for the issuance and renewal of a registration;
(2) A fee schedule;
(3) Procedures for denying, suspending, revoking, reinstating
or limiting the registration of a registrant; and
(4) Any other rules necessary to effectuate the provisions of
this article.
§30-20A-5. Requirements for registration.
(a) To be eligible for registration by the board as an
athletic trainer, an applicant shall:
(1) Submit an application in the form prescribed by the board;
(2) Submit a current certification from the National Athletic
Trainers' Association Board of Certification or successor
organization; and
(3) Pay the required fee.
(b) The board shall issue a registration to an applicant
satisfying all the requirements in subsection (a) of this section:
Provided, That the board may deny an application for registration
if the applicant:
(1) Has been convicted of a felony or other crime involving
moral turpitude;
(2) Is an alcohol or drug abuser as these terms are defined in
section eleven, article one-a, chapter twenty-seven of this code:
Provided, That the board may take into consideration that an
applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-
step program or other similar group or process;
(3) Has been convicted of fraudulent, false, misleading or
deceptive advertising;
(4) Has been convicted for wrongfully prescribing medicines or
drugs, or practicing any licensed profession without legal
authority;
(5) Has had a registration or other authorization revoked,
suspended, restricted or other disciplinary action taken by the
proper authorities of another jurisdiction;
(6) Is incapacitated by a physical or mental disability which
is determined by a physician to render further practice by the
applicant inconsistent with competency and ethic requirements; or
(7) Has been convicted of sexual abuse or sexual misconduct.
(c) In determining whether an application should be denied for
any of the reasons set forth in subsection (b), the board may
consider:
(1) How recently the conduct occurred;
(2) The nature of the conduct and the context in which it
occurred; and
(3) Any other relevant conduct of the applicant.
(d) A registration issued by the board is valid for two years
from the date it was issued.
§30-20A-6. Renewal requirements.
(a) A registrant may apply to renew his or her registration by
submitting an application for renewal in the form prescribed by the
board and paying the renewal fee. The renewal application must be
signed by the applicant.
(b) A renewal of registration issued by the board is valid for
two years from the date it was issued.
(c) The board may deny an application for renewal for any
reason which would justify the denial of an original application
for a registration.
§30-20A-7. Due process procedures; grounds for disciplinary action.
(a) The board may, after notice and opportunity for hearing,
suspend, restrict or revoke a registration of, impose probationary
conditions upon or take disciplinary action against, any registrant
if the board determines the registrant:
(1) Is grossly negligent in the practice of athletic training;
(2) Obtained a registration by fraud, misrepresentation or
concealment of material facts; engaged in the practice of athletic
training under a false or assumed name; or impersonated another
registrant of a like or different name; or
(3) Has violated any of the provisions of subsection (b),
section five of this article.
(b) For purposes of subsection (a) of this section,
disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fines;
(4) Practicing under supervision or other restriction;
(5) Requiring the registrant to report to the board for
periodic interviews for a specified period of time; or
(6) Other corrective action as determined by the board.
The bill (Eng. Com. Sub. for H. B. No. 3152), as amended, was
then ordered to third 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, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Caruth and Hall--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3152) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
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, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3152) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 3152--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §30-20A-1, §30-20A-2, §30-20A-3, §30-20A-4,
§30-20A-5, §30-20A-6 and §30-20A-7 all relating to athletic
trainers; providing definitions; restricting the use of certain
titles; setting forth powers and duties of the board; setting forth
rulemaking authority; providing for registration of athletic
trainers; establishing registration criteria; establishing renewal
requirements; and allowing for disciplinary actions.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4036, Establishing the Judicial Vacancy
Advisory Commission.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4140, Relating to the board
of physical therapy.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §30-20-8a of the Code of West Virginia, 1931, as amended,
be repealed; that §30-20-1, §30-20-2, §30-20-3, §30-20-4, §30-20-5,
§30-20-6, §30-20-7, §30-20-8, §30-20-9, §30-20-10, §30-20-11, §30-
20-12, §30-20-13, §30-20-14 and §30-20-15 be amended and reenacted;
and that said code be amended by adding thereto seven new sections,
designated §30-20-16, §30-20-17, §30-20-18, §30-20-19, §30-20-20,
§30-20-21 and §30-20-22 all to read as follows:
ARTICLE 20. PHYSICAL THERAPISTS.
§30-20-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to
practice physical therapy in this state without a license or permit
issued under the provisions of this article, or advertise or use
any title or description tending to convey the impression that they
are a physical therapist or a physical therapist assistant unless the person has been duly licensed or permitted under the provisions
of this article, and the license or permit has not expired, been
suspended or revoked.
(b) A business entity may not render any service or engage in
any activity which, if rendered or engaged in by an individual,
would constitute the practice of physical therapy, except through
a licensee or permittee.
(c) A person who is not licensed under this article as a
physical therapist may not characterize himself or herself as a
"physical therapist", "physiotherapist", or "doctor of physical
therapy", nor may a person use the designation "PT", "DPT", "LPT",
"CPT", or "RPT".
(d) A person who is not licensed under this article as a
physical therapist assistant may not characterize himself or
herself as a "physical therapist assistant", nor may a person use
the designation "PTA".
§30-20-2. Applicable law.
The practices licensed under the provisions of this article
and the Board of Physical Therapy are subject to article one of
this chapter, the provisions of this article, and any rules
promulgated hereunder.
§30-20-3. Definitions.
As used in this article:
(1) "Applicant" means any person making application for an original or renewal license or a temporary permit under the
provisions of this article.
(2) "Board" means the West Virginia Board of Physical Therapy.
(3) "Business entity" means any firm, partnership,
association, company, corporation, limited partnership, limited
liability company or other entity providing physical therapy
services.
(4) "Consultation" means a physical therapist renders an
opinion or advice to another physical therapist or health care
provider through telecommunications.
(5) "Direct supervision" means the actual physical presence of
the physical therapist in the immediate treatment area where the
treatment is being rendered.
(6) "General supervision" means the physical therapist must be
available at least by telecommunications.
(7) "License" means a physical therapist license or license to
act as a physical therapist assistant issued under the provisions
of this article.
(8) "Licensee" means a person holding a license under the
provisions of this article.
(9) "On-site supervision" means the supervising physical
therapist is continuously on-site and present in the building where
services are provided, is immediately available to the person being
supervised, and maintains continued involvement in appropriate aspects of each treatment session.
(10) "Permit" or "temporary permit" means a temporary permit
issued under the provisions of this article.
(11) "Permittee" means any person holding a temporary permit
issued pursuant to the provisions of this article.
(12) "Physical therapy aide" means a person trained under the
direction of a physical therapist who performs designated and
routine tasks related to physical therapy services under the
direction supervision of a physical therapist.
(13) "Physical therapist" means a person engaging in the
practice of physical therapy who holds a license or permit issued
under the provisions of this article.
(14) "Physical therapist assistant" means a person holding a
license or permit issued under the provisions of this article who
assists in the practice of physical therapy by performing patient
related activities delegated to him or her by a physical therapist
and performs under the supervision of a physical therapist and
which patient related activities commensurate with his or her
education and training, including physical therapy procedures, but
not the performance of evaluative procedures or determination and
modification of the patient plan of care.
(15) "Practice of physical therapy" or "physiotherapy" means
the care and services as described in section nine of this article.
(16) "Telecommunication" means audio, video or data communication.
§30-20-4. West Virginia Board of Physical Therapy.
(a) The West Virginia Board of Physical Therapy is continued.
The members of the board in office on July 1, 2010, shall, unless
sooner removed, continue to serve until their respective terms
expire and until their successors have been appointed and
qualified.
(b) To be effective July 1, 2010, the Governor shall appoint,
by and with the advice and consent of the Senate:
(1) One person who is a physical therapist assistant for a
term of five years; and
(2) One citizen member, who is not licensed under the
provisions of this article and who does not perform any services
related to the practice of the professions regulated under the
provisions of this article or have a financial interest in any
health care profession, for a term of three years.
(c) Commencing July 1, 2010, the board shall consist of the
following seven members:
(1) Five physical therapists;
(2) One physical therapist assistant; and
(3) One citizen member.
(d) After the initial appointment term, the term shall be for
five years. All appointments to the board shall be made by the
Governor by and with the advice and consent of the Senate.
(e) Each licensed member of the board, at the time of his or
her appointment, must have held a license in this state for a
period of not less than five years immediately preceding the
appointment.
(f) Each member of the board must be a resident of this state
during the appointment term.
(g) A member may not serve more than two consecutive full
terms. A member may continue to serve until a successor has been
appointed and has qualified.
(h) A vacancy on the board shall be filled by appointment by
the Governor for the unexpired term of the member whose office is
vacant and the appointment shall be made within sixty days of the
vacancy.
(i) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(j) A licensed member of the board immediately and
automatically forfeits membership to the board if his or her
license to practice is suspended or revoked.
(k) Any member of the board immediately and automatically
forfeits membership to the board if he or she is convicted of a
felony under the laws of any jurisdiction or becomes a nonresident
of this state.
(l) The board shall elect annually one of its members as
chairperson who serves at the will of the board.
(m) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
chapter.
(n) A majority of the members of the board constitutes a
quorum.
(o) The board shall hold at least two annual meetings. Other
meetings may be held at the call of the chairperson or upon the
written request of two members, at the time and place as designated
in the call or request.
(p) Prior to commencing his or her duties as a member of the
board, each member shall take and subscribe to the oath required by
section five, article four of the Constitution of this state.
§30-20-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this
article, by rule, in article one of this chapter and elsewhere in
law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer
examinations;
(2) Establish requirements for licenses and permits;
(3) Establish procedures for submitting, approving and
rejecting applications for licenses and permits;
(4) Determine the qualifications of any applicant for licenses
and permits;
(5) Prepare, conduct, administer and grade examinations for
licenses;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third
party administers, including the number of persons taking the
examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix
the compensation of the executive secretary;
(9) Maintain an office, and hire, discharge, establish the job
requirements and fix the compensation of employees, investigators
and contracted employees necessary to enforce the provisions of
this article;
(10) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the
board;
(11) Conduct disciplinary hearings of persons regulated by the
board;
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of
the provisions of this article;
(14) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
(15) Keep accurate and complete records of its proceedings,
and certify the same as may be necessary and appropriate;
(16) Establish the continuing education requirements for
licensees;
(17) Issue, renew, combine, deny, suspend, restrict, revoke or
reinstate licenses and permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code to implement the
provisions of this article; and
(20) Take all other actions necessary and proper to effectuate
the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer examinations
required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this
state; and
(3) Confer with the Attorney General or his or her assistant
in connection with legal matters and questions.
§30-20-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, to implement the provisions of this article,
including:
(1) Standards and requirements for licenses and permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare or administer,
or both, examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses and
permits;
(8) A fee schedule;
(9) The scope of practice and supervision of physical
therapist assistants;
(10) Responsibilities of a physical therapist and physical
therapist assistant concerning the practice and supervision of
physical therapy aides;
(11) Continuing education requirements for licensees;
(12) Establishing a maximum ratio of physical therapist
assistants, or physical therapy aides involved in the practice of
physical therapy, or any combinations that can be supervised by a
physical therapist at any one time;
(13) Exceptions to the ratio of physical therapist assistants
a physical therapist may supervise including emergencies, safety
and temporary situations;
(14) Permitting a physical therapist assistant to directly
supervise a physical therapy aide in an emergency situation;
(15) The procedures for denying, suspending, restricting, revoking, reinstating or limiting the practice of licensees and
permittees;
(16) Adopt a standard for ethics;
(17) Requirements for inactive or revoked licenses or permits;
and
(18) Any other rules necessary to effectuate the provisions of
this article.
(b) The board shall promulgate emergency rules pursuant to the
provisions of section fifteen, article three, chapter twenty-nine-a
of this code, to establish a maximum ratio of physical therapist
assistants, or physical therapy aides involved in the practice of
physical therapy, or any combinations that can be supervised by a
physical therapist at any one time.
(c) All of the board's rules in effect on July 1, 2010, shall
remain in effect until they are amended or repealed and references
to provisions of former enactments of this article are interpreted
to mean provisions of this article.
§30-20-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines,
received by the board shall be deposited in a separate special
revenue fund in the State Treasury designated the "West Virginia
Board of Physical Therapy Fund", which is continued. The fund is
used by the board for the administration of this article. Except
as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to
year. No compensation or expense incurred under this article is a
charge against the General Revenue Fund.
(b) Any amounts received as fines pursuant to this article
shall be deposited into the General Revenue Fund of the State
Treasury.
§30-20-8. License to practice physical therapy.
(a) To be eligible for a license to engage in the practice of
physical therapy, the applicant must:
(1) Submit an application to the board;
(2) Be at least eighteen years of age;
(3) Be of good moral character;
(4) Have graduated from an accredited school of physical
therapy approved by the Commission on Accreditation in Physical
Therapy Education or a successor organization;
(5) Pass a national examination as approved by the board;
(6) Not be an alcohol or drug abuser, as these terms are
defined in section eleven, article one-a, chapter twenty-seven of
this code: Provided, That an applicant in an active recovery
process, which may, in the discretion of the board, be evidenced by
participation in a twelve-step program or other similar group or
process, may be considered;
(7) Not have been convicted of a felony in any jurisdiction
within ten years preceding the date of application for license which conviction remains unreversed;
(8) Not have been convicted of a misdemeanor or felony in any
jurisdiction if the offense for which he or she was convicted
related to the practice of physical therapy, which conviction
remains unreversed; and
(9) Has fulfilled any other requirement specified by the
board.
(b) A physical therapist shall use the letters "PT"
immediately following his or her name to designate licensure under
this article.
(c) A license to practice physical therapy issued by the board
prior to July 1, 2010, is considered a license issued under this
article: Provided, That a person holding a license issued prior to
July 1, 2010, must renew the license pursuant to the provisions of
this article.
§30-20-9. Scope of practice of a physical therapist.
A physical therapist may:
(1) Examine, evaluate and test patients or clients with
mechanical, physiological and developmental impairments, functional
limitations, and disabilities or other health and movement related
conditions in order to determine a diagnosis, prognosis and plan of
treatment intervention, and to assess the ongoing effects of
intervention: Provided, That electromyography examination and
electrodiagnostic studies other than the determination of chronaxia and strength duration curves shall not be performed except under
the supervision of a physician electromyographer and
electrodiagnostician;
(2) Alleviate impairments, functional limitations and
disabilities by designing, implementing and modifying treatment
interventions that may include, but are not limited to: therapeutic
exercise; functional training in self-care in relation to motor
control function; mobility; in home, community or work integration
or reintegration; manual therapy techniques including mobilization
of the joints; therapeutic massage; fabrication of assistive,
adaptive, orthothic, prosthetic, protective and supportive devices
and equipment; airway clearance techniques; integumentary
protection and repair techniques; patient-related instruction;
mechanical and electrotherapeutic modalities; and physical agent or
modalities including, but not limited to, heat, cold, light, air,
water and sound;
(3) Reduce the risk of injury, impairment, functional
limitation and disability, including the promotion and maintenance
of fitness, health and wellness in populations of all ages; and
(4) Engage in administration, consultation and research.
§30-20-10. License to act as a physical therapist assistant.
(a) To be eligible for a license to act as a physical
therapist assistant, the applicant must:
(1) Submit an application to the board;
(2) Be at least eighteen years of age;
(3) Be of good moral character;
(4) Have graduated from a two-year college level education
program for physical therapist assistants which meets the standards
established by the Commission on Accreditation in Physical Therapy
Education and the board;
(5) Have passed the examination approved by the board for a
license to act as a physical therapist assistant;
(6) Not be an alcohol or drug abuser, as these terms are
defined in section eleven, article one-a, chapter twenty-seven of
this code: Provided, That an applicant in an active recovery
process, which may, in the discretion of the board, be evidenced by
participation in a twelve-step program or other similar group or
process, may be considered;
(7) Not have been convicted of a felony in any jurisdiction
within ten years preceding the date of application for license
which conviction remains unreversed;
(8) Not have been convicted of a misdemeanor or felony in any
jurisdiction if the offense for which he or she was convicted
related to the practice of physical therapy, which conviction
remains unreversed; and
(10) Meet any other requirements established by the board.
(b) A physical therapist assistant shall use the letters "PTA"
immediately following his or her name to designate licensure under this article.
(c) A license to act as a physical therapist assistant issued
by the board prior to July 1, 2010, is considered a license issued
under this article: Provided, That a person holding a license
issued prior to July 1, 2010, must renew the license pursuant to
the provisions of this article.
§30-20-11. License to practice physical therapy from another
jurisdiction.
(a) The board may issue a license to practice physical therapy
to an applicant who holds a valid license or other authorization to
practice physical therapy from another state, if the applicant:
(1) Holds a license or other authorization to practice
physical therapy in another state which was granted after
completion of educational requirements substantially equivalent to
those required in this state;
(2) Passed an examination that is substantially equivalent to
the examination required in this state;
(3) Does not have charges pending against his or her license
or other authorization to practice, and has never had a license or
other authorization to practice revoked;
(4) Has not previously failed an examination for a license to
practice physical therapy in this state;
(5) Has paid the applicable fee;
(6) Is a citizen of the United States or is eligible for employment in the United States; and
(7) Has fulfilled any other requirement specified by the
board.
(b) The board may issue a license to practice physical therapy
to an applicant who has been educated outside of the United States,
if the applicant:
(1) Provides satisfactory evidence that the applicant's
education is substantially equivalent to the educational
requirements for physical therapists under the provisions of this
article;
(2) Provides written proof that the applicant's school of
physical therapy is recognized by its own ministry of education;
(3) Has undergone a credentials evaluation as directed by the
board that determines that the candidate has met uniform criteria
for educational requirements as further established by rule;
(4) Has paid the applicable fee;
(5) Is eligible for employment in the United States; and
(6) Complete any additional requirements as required by the
board.
(c) The board may issue a restricted license to an applicant
who substantially meets the criteria established in subsection (b)
of this section.
§30-20-12. Temporary permits.
(a) Upon completion of the application and payment of the nonrefundable fees, the board may issue a temporary permit, for a
period not to exceed 90 days, to an applicant to practice as a
physical therapist in this state or act as a physical therapist
assistant in this state, if the applicant has completed the
educational requirements set out in this article, pending the
examination and who works under a supervising physical therapist
with the scope of the supervision to be defined by legislative
rule.
(b) The temporary permit expires thirty days after the board
gives written notice to the permittee of the results of the first
examination held following the issuance of the temporary permit, if
the permittee receives a passing score on the examination. The
permit shall expire immediately if the permittee receives a failing
score on the examination.
(c) A temporary permit may be revoked by a majority vote of
the board.
(d) An applicant may be issued only one temporary permit, and
upon the expiration of the temporary permit, may not practice as a
physical therapist or act as physical therapist assistant until he
or she is fully licensed under the provisions of this article.
§30-20-13. Special volunteer physical therapist license, physical
therapist assistant license; civil immunity for voluntary
services rendered to indigents.
(a) There is established a special volunteer license for physical therapists or physical therapist assistants, as the case
may be, retired or retiring from active practice who wish to donate
their expertise for the care and treatment of indigent and needy
patients in the clinical setting of clinics organized, in whole or
in part, for the delivery of health care services without charge.
The special volunteer license provided by this section shall be
issued by the West Virginia Board of Physical Therapy to physical
therapists or physical therapist assistants licensed or otherwise
eligible for licensure under this article and the legislative rules
promulgated hereunder without the payment of an application fee,
license fee or renewal fee, and the initial license shall be issued
for the remainder of the licensing period, and renewed consistent
with the boards other licensing requirements. The board shall
develop application forms for the special volunteer license
provided in this section which shall contain the applicant's
acknowledgment that:
(1) The applicant's practice under the special volunteer
license will be exclusively devoted to providing physical therapy
care to needy and indigent persons in West Virginia;
(2) The applicant may not receive any payment or compensation,
either direct or indirect, or have the expectation of any payment
or compensation, for any physical therapy services rendered under
the special volunteer license;
(3) The applicant shall supply any supporting documentation that the board may reasonably require; and
(4) The applicant shall continue to participate in continuing
education as required by the board for special volunteer physical
therapists or physical therapist assistants license, as the case
may be.
(b) Any physical therapist or physical therapist assistant who
renders any physical therapy service to indigent and needy patients
of a clinic organized, in whole or in part, for the delivery of
health care services without charge under a special volunteer
license authorized under subsection (a) of this section without
payment or compensation or the expectation or promise of payment or
compensation is immune from liability for any civil action arising
out of any act or omission resulting from the rendering of the
physical therapy service at the clinic unless the act or omission
was the result of gross negligence or willful misconduct on the
part of the physical therapist or physical therapist assistant. In
order for the immunity under this subsection to apply, there must
be a written agreement between the physical therapist or physical
therapist assistant and the clinic stating that the physical
therapist or physical therapist assistant will provide voluntary
uncompensated physical therapy services under the control of the
clinic to patients of the clinic before the rendering of any
services by the physical therapist or physical therapist assistant
at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not
less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this
section, a clinic organized, in whole or in part, for the delivery
of health care services without charge is not relieved from imputed
liability for the negligent acts of a physical therapist or
physical therapist assistant rendering voluntary physical therapy
services at or for the clinic under a special volunteer license
authorized under this section.
(d) For purposes of this section, "otherwise eligible for
licensure" means the satisfaction of all the requirements for
licensure for a physical therapist or physical therapist assistant,
as the case may be, except the fee requirements.
(e) Nothing in this section may be construed as requiring the
board to issue a special volunteer license to any physical
therapist or physical therapist assistant whose license is or has
been subject to any disciplinary action or to any physical
therapist or physical therapist assistant who has surrendered a
license or caused a license to lapse, expire and become invalid in
lieu of having a complaint initiated or other action taken against
his or her license, or who has elected to place a license in
inactive status in lieu of having a complaint initiated or other
action taken against his or her license or who has been denied a
license.
(f) Any policy or contract of liability insurance providing
coverage for liability sold, issued or delivered in this state to
any physical therapist or physical therapist assistant covered
under the provisions of this article shall be read so as to contain
a provision or endorsement whereby the company issuing such policy
waives or agrees not to assert as a defense on behalf of the policy
holder or any beneficiary there of the policy, to any claim covered
by the terms of the policy within the policy limits, the immunity
from liability of the insured by reason of the care and treatment
of needy and indigent patients by a physical therapist or physical
therapist assistant who holds a special volunteer license.
§30-20-14. Renewal requirements.
(a) All persons regulated by this article shall annually or
biannually before January 1, renew his or her license by completing
a form prescribed by the board and submitting any other information
required by the board.
(b) The board shall charge a fee for each renewal of a license
and shall charge a late fee for any renewal not paid by the due
date.
(c) The board shall require as a condition of renewal that
each licensee complete continuing education.
(d) The board may deny an application for renewal for any
reason which would justify the denial of an original application
for a license.
§30-20-15. Delinquent and expired license requirements.
(a) If a license is not renewed when due, then the board shall
automatically place the licensee on delinquent status.
(b) The fee for a person on delinquent status shall increase
at a rate, determined by the board, for each month or fraction
thereof that the renewal fee is not paid, up to a maximum of
thirty-six months.
(c) Within thirty-six months of being placed on delinquent
status, if a licensee wants to return to active practice, he or she
must complete all the continuing education requirements and pay all
the applicable fees as set by rule.
(d) After thirty-six months of being placed on delinquent
status, a license is automatically placed on expired status and
cannot be renewed. A person whose license has expired must reapply
for a new license.
§30-20-16. Inactive license requirements.
(a) A licensee who does not want to continue an active
practice shall notify the board in writing and be granted inactive
status.
(b) A person granted inactive status is not subject to the
payment of any fee and may not practice physical therapy or act as
a physical therapist assistant in this state.
(c) When the person wants to return to the practice of
physical therapy or act as a physical therapist assistant, the person shall submit an application for renewal along with all
applicable fees as set by rule.
§30-20-17. Exemptions from licensure.
(a) The following persons are exempt from licensing
requirements under the provisions of this article:
(1) A person who practices physical therapy pursuant to a
course of study at an institution of higher learning, including,
but not limited to, activities conducted at the institution of
higher learning and activities conducted outside the institution if
under the on-site supervision of a physical therapist;
(2) A person who practices physical therapy in the United
States Armed Services, United States Public Health Service or
Veterans Administration pursuant to federal regulations for state
licensure of health care providers;
(3) A physical therapist who is licensed in another
jurisdiction of the United States or credentialed to practice
physical therapy in another country if that person is teaching,
demonstrating or providing physical therapy services in connection
with teaching or participating in an educational seminar of no more
than sixty calendar days in a calendar year;
(4) A physical therapist who is licensed in another state if
that person is consulting;
(5) A physical therapist who is licensed in another
jurisdiction, if that person by contract or employment is providing physical therapy to individuals affiliated with or employed by
established athletic teams, athletic organizations or performing
arts companies temporarily practicing, competing or performing in
the state for no more than sixty calendar days in a calendar year;
(6) A physical therapist who is licensed in another
jurisdiction who enters this state to provide physical therapy
during a declared local, state or national disaster or emergency.
This exemption applies for no longer than sixty calendar days in a
calendar year following the declaration of the emergency. The
physical therapist shall notify the board of their intent to
practice;
(7) A physical therapist licensed in another jurisdiction who
is forced to leave his or her residence or place of employment due
to a declared local, state or national disaster or emergency and
due to the displacement seeks to practice physical therapy. This
exemption applies for no longer than sixty calendar days in a
calendar year following the declaration of the emergency. The
physical therapist shall notify the board of their intent to
practice; and
(8) A person administering simple massages and the operation
of health clubs so long as not intended to constitute or represent
the practice of physical therapy.
(9) A physical therapist assistant assisting an exempt
physical therapist.
(10) Nothing contained in this article prohibits a person from
practicing within his or her scope of practice as authorized by
law.
§30-20-18. Display of license.
(a) The board shall prescribe the form for a license and
permit, and may issue a duplicate license or permit upon payment of
a fee.
(b) Any person regulated by the article shall conspicuously
display his or her license or permit at his or her principal
business location.
§30-20-19. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The board may upon its own motion based on credible
information, and shall upon the written complaint of any person,
cause an investigation to be made to determine whether grounds
exist for disciplinary action under this article or the legislative
rules promulgated pursuant to this article.
(b) Upon initiation or receipt of the complaint, the board
shall provide a copy of the complaint to the licensee or permittee.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee or permittee has violated subsection (g) of this
section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee or permittee has violated subsection (g) of this section
or rules promulgated pursuant to this article, the board may enter
into a consent decree or hold a hearing for the suspension or
revocation of the license or permit or the imposition of sanctions
against the licensee or permittee. Any hearing shall be held in
accordance with the provisions of this article.
(e) Any member of the board or the executive secretary of the
board may issue subpoenas and subpoenas duces tecum to obtain
testimony and documents to aid in the investigation of allegations
against any person regulated by the article.
(f) Any member of the board or its executive secretary may
sign a consent decree or other legal document on behalf of the
board.
(g) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend, restrict or revoke the license or
permit of, or impose probationary conditions upon or take
disciplinary action against, any licensee or permittee for any of
the following reasons once a violation has been proven by a
preponderance of the evidence:
(1) Obtaining a license or permit by fraud, misrepresentation
or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the board;
(4) Intentional violation of a lawful order or legislative
rule of the board;
(5) Having had a license or other authorization revoked or
suspended, other disciplinary action taken, or an application for
licensure or other authorization revoked or suspended by the proper
authorities of another jurisdiction;
(6) Aiding or abetting unlicensed practice; or
(7) Engaging in an act while acting in a professional capacity
which has endangered or is likely to endanger the health, welfare
or safety of the public.
(h) For the purposes of subsection (g) of this section,
effective July 1, 2010, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Restrictions;
(4) Administrative fine, not to exceed $1,000 per day per
violation;
(5) Mandatory attendance at continuing education seminars or
other training;
(6) Practicing under supervision or other restriction; or
(7) Requiring the licensee or permittee to report to the board
for periodic interviews for a specified period of time.
(i) In addition to any other sanction imposed, the board may require a licensee or permittee to pay the costs of the proceeding.
§30-20-20. Procedures for hearing; right of appeal.
(a) Hearings are governed by the provisions of section eight,
article one of this chapter.
(b) The board may conduct the hearing or elect to have an
administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law
judge, at the conclusion of a hearing he or she shall prepare a
proposed written order containing findings of fact and conclusions
of law. The proposed order may contain proposed disciplinary
actions if the board so directs. The board may accept, reject or
modify the decision of the administrative law judge.
(d) Any member or the executive secretary of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee or
permittee has violated provisions of this article or the board's
rules, a formal written decision shall be prepared which contains
findings of fact, conclusions of law and a specific description of
the disciplinary actions imposed.
§30-20-21. Judicial review.
Any licensee or permittee adversely affected by a decision of
the board entered after a hearing may obtain judicial review of the
decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting
from judicial review in accordance with article six, chapter
twenty-nine-a of this code.
§30-20-22. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a licensee or
permittee has committed a criminal offense under this article, the
board may bring its information to the attention of an appropriate
law-enforcement official.
(b) A person violating section one of this article is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than $100 nor more than $5,000 or confined in jail not more
than six months, or both fined and confined.
The bill (Eng. Com. Sub. for H. B. No. 4140), as amended, was
then ordered to third 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, 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)--33.
The nays were: None.
Absent: Caruth--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4140) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
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, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4140) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 4140--A Bill to repeal §30-
20-8a of the Code of West Virginia, 1931, as amended; to amend and
reenact §30-20-1, §30-20-2, §30-20-3, §30-20-4, §30-20-5, §30-20-6,
§30-20-7, §30-20-8, §30-20-9, §30-20-10, §30-20-11, §30-20-12, §30-
20-13, §30-20-14 and §30-20-15; and to amend said code by adding
thereto seven new sections, designated §30-20-16, §30-20-17, §30-20-18, §30-20-19, §30-20-20, §30-20-21 and §30-20-22 all relating
to the Board of Physical Therapy; prohibiting the practice of
physical therapy without a license; providing other applicable
sections; providing definitions; providing for board composition;
setting forth the powers and duties of the board; clarifying
rulemaking authority; continuing a special revenue account;
establishing license requirements; clarifying a scope of practice;
providing for licensure for persons licensed in another state;
establishing renewal requirements; providing permit requirements;
establishing a special volunteer license; clarifying requirements
for a license that is delinquent, expired or inactive; providing
exemptions from licensure; requiring display of license; setting
forth grounds for disciplinary actions; allowing for specific
disciplinary actions; providing procedures for investigation of
complaints; providing for judicial review and appeals of decisions;
setting forth hearing and notice requirements; providing for civil
causes of action and providing criminal penalties.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4143, Relating to emergency
medical services.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 4C. EMERGENCY MEDICAL SERVICES ACT.
§16-4C-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(a) "Ambulance" means any privately or publicly-owned vehicle
or aircraft which is designed, constructed or modified; equipped or
maintained; and operated for the transportation of patients,
including, but not limited to, emergency medical services vehicles;
rotary and fixed wing air ambulances; gsa kkk-A-1822 federal
standard type I, type II and type III vehicles; and specialized
multipatient medical transport vehicles operated by an emergency
medical services agency;
(b) "Commissioner" means the Commissioner of the Bureau of for
Public Health;
(c) "Council" means the Emergency Medical Service Advisory
Council created pursuant to section five of this article;
(d) "Director" means the Director of the Office of Emergency
Medical Service in the Bureau for Public Health.
(d) (e) "Emergency Medical Services" means all services which
are set forth in Public Law 93-154 "The Emergency Medical Services
Systems Act of 1973" and those included in and made a part of the emergency medical services plan of the Department of Health and
Human Resources inclusive of, but not limited to, responding to the
medical needs of an individual to prevent the loss of life or
aggravation of illness or injury;
(e) (f) "Emergency medical service agency" means any agency
licensed under section six-a of this article to provide emergency
medical services;
(f) "Emergency medical service attendant" means a person
certified by the commissioner pursuant to the provisions of section
eight of this article to render the services authorized pursuant to
the provisions of section fourteen of this article;
(g) "Emergency medical service personnel" means any person
certified by the commissioner to provide emergency medical services
authorized in section eight of this article and includes, but is
not limited to, emergency medical service attendant, emergency
medical technician-basic and emergency medical technician-paramedic
as set forth by legislative rule;
(h) "Emergency medical service provider" means any authority,
person, corporation, partnership or other entity, public or
private, which owns or operates a licensed emergency medical
services agency providing emergency medical service in this state;
(i) "Emergency medical technician-basic" means a person
certified by the commissioner pursuant to the provisions of section
eight of this article to render the services authorized pursuant to the provisions of section fourteen of this article;
(j) "Emergency medical technician-paramedic" means a person
certified by the commissioner pursuant to the provisions of section
eight of this article to render services as authorized pursuant to
the provisions of section fourteen of this article;
(k) (i) "Governing body" has the meanings ascribed to it as
applied to a municipality in subdivision (1), subsection (b),
section two, article one, chapter eight of this code;
(l) (j) "Line officer" means the emergency medical service
personnel, present at the scene of an accident, injury or illness,
who has taken the responsibility for patient care;
(m) (k) "Medical command" means the issuing of orders by a
physician from a medical facility to emergency medical service
personnel for the purpose of providing appropriate patient care;
(n) (l) "Municipality" has the meaning ascribed to it in
subdivision (1), subsection (a), section two, article one, chapter
eight of this code;
(o) (m) "Patient" means any person who is a recipient of the
services provided by emergency medical services;
(p) (n) "Service reciprocity" means the provision of emergency
medical services to citizens of this state by emergency medical
service personnel certified to render those services by a
neighboring state;
(q) (o) "Small emergency medical service provider" means any emergency medical service provider which is made up of less than
twenty emergency medical service personnel; and
(r) (p) "Specialized multipatient medical transport" means a
type of ambulance transport provided for patients with medical
needs greater than those of the average population, which may
require the presence of a trained emergency medical technician
during the transport of the patient: Provided, That the
requirement of "greater medical need" may not prohibit the
transportation of a patient whose need is preventive in nature.
§16-4C-6. Powers and duties of commissioner.
The commissioner shall have has the following powers and
duties:
(a) In accordance with chapter twenty-nine-a of this code, to
propose rules regarding the age, training, retraining, testing,
certification and recertification, and fees for the certification
and recertification, of emergency medical service personnel.
However, the commissioner may not propose any rule required by this
article until it has been submitted for review to the emergency
medical services advisory council and this council has had at least
thirty days to review such proposed rule. The council may take no
action unless a quorum is present; To propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code: Provided, That the rules have
been submitted at least thirty days in advance for review by the Emergency Medical Services Advisory Council, who may act only in
the presence of a quorum. The rules may include:
(1) Standards and requirements for certification and
recertification of emergency medical service personnel, including,
but not limited to:
(A) Age, training, testing and continuing education;
(B) Procedures for certification and recertification, and for
denying, suspending, revoking, reinstating and limiting a
certification or recertification;
(C) Levels of certification and the scopes of practice for
each level;
(D) Standards of conduct; and,
(E) Causes for disciplinary action and sanctions which may be
imposed.
(2) Standards and requirements for licensure and licensure
renewals of emergency medical service agencies, including:
(A) Operational standards, levels of service, personnel
qualifications and training, communications, public access, records
management, reporting requirements, medical direction, quality
assurance and review, and other requirements necessary for safe and
efficient operation;
(B) Inspection standards and establishment of improvement
periods to ensure maintenance of the standards;
(C) Fee schedules for licensure, renewal of licensure and other necessary costs;
(D) Procedures for denying, suspending, revoking, reinstating
or limiting an agency licensure;
(E) Causes for disciplinary action against agencies; and
(F) Administrative penalties, fines and other disciplinary
sanctions which may be imposed on agencies;
(3) Standards and requirements for emergency medical service
vehicles, including classifications and specifications;
(4) Standards and requirements for training institutions,
including approval or accreditation of sponsors of continuing
education, course curricula and personnel;
(5) Standards and requirements for a State Medical Direction
System, including qualifications for a State Emergency Medical
Services Medical Director and Regional Medical Directors, the
establishment of a State Medical Policy and Care Committee and the
designation of Regional Medical Command Centers;
(6) Provision of services by emergency medical services
personnel in hospital emergency rooms; and
(7) Any other rules necessary to carry out the provisions of
this article.
(b) To apply for, receive and expend advances, grants,
contributions and other forms of assistance from the state or
federal government or from any private or public agencies or
foundations to carry out the provisions of this article;.
(c) To design, develop and annually review a Statewide
Emergency Medical Services Implementation Plan. The plan shall
recommend aid and assistance and all other acts necessary to carry
out the purposes of this article:
(1) To encourage local participation by area, county and
community officials and regional emergency medical services boards
of directors; and
(2) To develop a system for monitoring and evaluating
emergency medical services programs throughout the state;.
(d) To provide professional and technical assistance and to
make information available to Regional Emergency Medical Services
Boards of Directors and other potential applicants or program
sponsors of emergency medical services for purposes of developing
and maintaining a statewide system of services;.
(e) To assist local government agencies, Regional Emergency
Medical Services Boards of Directors and other public or private
entities in obtaining federal, state or other available funds and
services;.
(f) To cooperate and work with federal, state and local
governmental agencies, private organizations and other entities as
may be necessary to carry out the purposes of this article;.
(g) To acquire in the name of the state by grant, purchase,
gift, devise or any other methods appropriate real and personal
property as may be reasonable and necessary to carry out the purposes of this article;.
(h) To make grants and allocations of funds and property so
acquired or which may have been appropriated to the agency to other
agencies of state and local government as may be appropriate to
carry out the purposes of this article;.
(i) To expend and distribute by grant or bailment funds and
property to all state and local agencies for the purpose of
performing the duties and responsibilities of the agency all funds
which it may have so acquired or which may have been appropriated
by the Legislature of this state;.
(j) To develop a program to inform the public concerning
emergency medical services;.
(k) To review and disseminate information regarding federal
grant assistance relating to emergency medical services;.
(l) To prepare and submit to the Governor and Legislature
recommendations for legislation in the area of emergency medical
services;.
(m) To review, make recommendations for and assist in all
projects and programs that provide for emergency medical services
whether or not the projects or programs are funded through the
Office of Emergency Medical Services. A review and approval shall
be required for all emergency medical services projects, programs
or services for which application is made to receive state or
federal funds for their operation after the effective date of this act; and
(n) To take all necessary and appropriate action to encourage
and foster the cooperation of all emergency medical service
providers and facilities within this state.
(o) Nothing in this article may be construed to allow the
commissioner to dissolve, invalidate or eliminate any existing
emergency medical service program or ambulance providers in service
at the time of adoption of the amendment to this article in the
regular session of the Legislature in the year 1984, or to deny
them fair access to federal and state funding, medical facilities
and training programs.
§16-4C-6a. Emergency medical services agency licensure.
(a) Any person who proposes to establish or maintain an
emergency medical services agency shall file an application with
the commissioner The application is to include which includes the
identity of the applicant, any parent or affiliated entity, the
proposed level of service and the number of emergency medical
service response vehicles of the agency or proposed agency. The
commissioner may require that additional information be included on
each application.
(b) Upon receipt and review of the application the
commissioner shall issue a license if he or she finds that the
applicant meets the requirements and quality standards, to be
established by the commissioner, for an emergency medical services agency license, and if the applicant has certified under penalty of
perjury that he or she is current with all lawful obligations owed
the State of West Virginia, excluding obligations owed in the
current quarter, including, but not limited to, payment of taxes
and workers' compensation premiums: Provided, That the
certification set forth in this paragraph shall be paragraph is
required for the original application and subsequent renewal
thereof renewals.
Upon review and consultation with the advisory council the
commissioner may, pursuant to the provisions of article three,
chapter twenty-nine-a of this code, establish reasonable fee
schedules for application and licensure.
§16-4C-8. Standards for emergency medical service personnel.
(a) Every ambulance operated by an emergency medical service
agency shall carry at least two personnel. At least one person
shall be certified in cardiopulmonary resuscitation or first aid
and the person in the patient compartment shall be certified as an
emergency medical technician-basic at a minimum except that in the
case of a specialized multipatient medical transport, only one
staff person is required and that person shall be certified, at a
minimum, at the level of an emergency medical technician-basic.
The requirements of this subsection will remain in effect until
revised by the legislative rule to be promulgated pursuant to
subsection (b) of this section.
(b) As a minimum the training for each class of emergency
medical service personnel shall include:
(1) Emergency medical service attendant: Shall have earned
and possess valid certificates from the department or by
authorities recognized and approved by the commissioner;
(2) Emergency medical technician-basic: Shall have
successfully completed the course for certification as an emergency
medical technician-basic as established by the commissioner or
authorities recognized and approved by the commissioner; and
(3) Emergency medical technician-paramedic: Shall have
successfully completed the course for certification as an emergency
medical technician-paramedic established by the commissioner or
authorities recognized and approved by the commissioner.
(c) Subsection (b) of this section may not be considered to
limit the power of the commissioner to prescribe training,
certification and recertification standards.
(b) On or before May 28, 2010, the commissioner shall submit
a proposed legislative rule to the Emergency Medical Services
Advisory Council for review, and on or before June 30, 2010, shall
file the proposed legislative rule with the office of the Secretary
of State, in accordance with the provisions of chapter
twenty-nine-a, article three of this code, to establish
certification standards for emergency medical vehicle operators and
to revise the requirements for emergency medical service personnel.
(c) As of the effective date of the legislative rule to be
promulgated pursuant to subsection (b) of this section, emergency
medical service personnel who operate ambulances shall meet the
requirements set forth in the legislative rule.
(d) Any person desiring emergency medical service personnel
certification shall apply to the commissioner using forms and
procedures prescribed by the commissioner. Upon receipt of the
application, the commissioner shall determine whether the applicant
meets the certification requirements and may examine the applicant,
if necessary to make that determination.
(e) The applicant shall submit to a national criminal
background check, the requirement of which is declared to be not
against public policy.
(1) The applicant shall meet all requirements necessary to
accomplish the national criminal background check, including
submitting fingerprints, and authorizing the West Virginia Office
of Emergency Medical Services, the West Virginia State Police and
the Federal Bureau of Investigation to use all records submitted
and produced for the purpose of screening the applicant for
certification.
(2) The results of the national criminal background check may
not be released to or by a private entity.
(3) The applicant shall submit a fee of $75 for initial
certification and a fee of $50 for recertification. The fees set forth in this subsection remain in effect until modified by
legislative rule.
(f) If the Commissioner determines that the applicant meets
all of the requirements, he or she shall issue an appropriate
emergency medical service personnel certificate which shall be
valid for a period as determined by the Commissioner.
(g) State and county continuing education and recertification
programs for all levels of emergency medical service providers
shall be available to emergency medical service providers at a
convenient site within one hundred miles of the provider's primary
place of operation at sites determined by the regional emergency
medical services offices. The continuing education program shall
be provided at a cost specified in a fee schedule to be promulgated
by legislative rule in accordance with article three, chapter
twenty-nine-a of this code by the Secretary of the Department of
Health and Human Resources to all nonprofit emergency medical
service personnel.
(f) An application for an original, renewal or temporary
emergency medical service personnel certificate or emergency
medical services agency license, shall be acted upon by the
commissioner and the certificate or license delivered or mailed, or
a copy of any order of the commissioner denying any such
application delivered or mailed to the applicant, within fifteen
days after the date upon which the complete application including test scores and background checks, if applicable, was received by
the commissioner.
(g) Any person may report to the commissioner or the Director
of the Office of Emergency Medical Services information he or she
may have that appears to show that a person certified by the
commissioner may have violated the provisions of this article or
legislative rules promulgated pursuant to this article. A person
who is certified by the commissioner, who knows of or observes
another person certified by the commissioner violating the
provisions of this article or legislative rules promulgated
pursuant to this article, has a duty to report the violation to the
commissioner or director. Any person who reports or provides
information in good faith is immune from civil liability.
(h) The commissioner may issue a temporary emergency medical
service personnel certificate to an applicant, with or without
examination of the applicant, when he or she finds that issuance to
be in the public interest. Unless suspended or revoked, a
temporary certificate shall be valid initially for a period not
exceeding one hundred twenty days and may not be renewed unless the
commissioner finds the renewal to be in the public interest. The
expiration date of a temporary certificate shall be extended until
the holder is afforded at least one opportunity to take an
emergency medical service personnel training course within the
general area where he or she serves as an emergency medical service personnel, but the expiration date may not be extended for any
longer period of time or for any other reason.
§16-4C-9. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The commissioner may at any time upon his or her own
motion, and shall, upon the verified written complaint of any
person, cause an investigation to be conducted to determine whether
there are any grounds exist for the suspension or revocation of a
certificate, temporary certificate or license issued disciplinary
action under the provisions of this article or legislative rules
promulgated pursuant to this article.
(b) An investigator or other person who, under the direction
of the commissioner or the director, gathers or reports information
in good faith to the commissioner or the director, is immune from
civil liability.
(c) After reviewing any information obtained through an
investigation, the commissioner or director shall determine if
probable cause exists that the licensee or certificate holder has
violated any provision of this article or rules promulgated
pursuant to this article.
(d) Upon a finding that probable cause exists that the
licensee or certificate holder has violated any provision of this
article or rules promulgated pursuant to this article, the
commissioner or director shall provide a copy of the complaint to the licensee or certificate holder.
(e) The commissioner or the director may enter into a consent
decree or hold a hearing for the suspension or revocation of the
license or certification or the imposition of sanctions against the
licensee or certificate holder.
(f) The commissioner or the director issue subpoenas and
subpoenas duces tecum to obtain testimony and documents to aid in
the investigation of allegations against any person or agency
regulated by the article.
(g) The commissioner or the director may sign a consent decree
or other legal document related to the complaint.
(b) (h) The commissioner shall suspend or revoke any
certificate, temporary certificate or license when he or she finds
the holder thereof has:
(1) Obtained a certificate, temporary certificate or license
by means of fraud or deceit; or
(2) Been grossly incompetent, and/or grossly negligent as
defined by the commissioner in accordance with rules or by
prevailing standards of emergency medical services care; or
(3) Failed or refused to comply with the provisions of this
article or any reasonable legislative rule promulgated by the
commissioner hereunder or any order or final decision of the
commissioner; or
(4) Engaged in any act during the course of duty which has endangered or is likely to endanger the health, welfare or safety
of the public.
(i) The commissioner or the director may, after notice and
opportunity for hearing, deny or refuse to renew, suspend or revoke
the license or certification of, impose probationary conditions
upon or take disciplinary action against, any licensee or
certificate holder for any violation of this article or any rule
promulgated pursuant to this article, once a violation has been
proven by a preponderance of the evidence.
(j) Disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative penalties and fines;
(4) Mandatory attendance at continuing education seminars or
other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or holder of a certificate to
report to the commissioner or director for periodic interviews for
a specified period of time;
(7) Other disciplinary action considered by the commissioner
or director to be necessary to protect the public, including
advising other parties whose legitimate interests may be at risk;
or
(8) Other sanctions as set forth by legislative rule promulgated pursuant to this article.
(c) (k) The commissioner shall suspend or revoke any
certificate or, temporary certificate or license if he or she finds
the existence of any grounds which would justify the denial of an
application for the certificate, temporary permit or license
certificate or license if application were then being made for it.
§16-4C-10. Procedures for hearing; right of appeal; judicial
review.
An application for an original, renewal or temporary emergency
medical service personnel certificate or emergency medical services
agency license, shall be acted upon by the commissioner and the
certificate delivered or mailed, or a copy of any order of the
commissioner denying any such application delivered or mailed to
the applicant, within fifteen days after the date upon which the
application including test scores, if applicable, was received by
the commissioner.
Whenever the commissioner refuses to issue an emergency
medical service personnel certificate or a temporary emergency
medical service personnel certificate or emergency medical services
agency license, or suspends or revokes an emergency medical service
personnel certificate, or a temporary emergency medical service
personnel certificate, he or she shall make and enter an order to
that effect, which shall specify the reasons for the denial,
suspension or revocation, and shall cause a copy of the order to be served in person or by certified mail, return receipt requested, on
the applicant or certificate or license holder, as the case may be.
Whenever a certificate or license is suspended or revoked, the
commissioner shall in the order of suspension or revocation direct
the holder thereof to return his or her certificate to the
commissioner. It shall be the duty of the certificate or license
holder to comply with any such order following expiration of the
period provided for an appeal to the commissioner.
Any applicant or certificate or license holder, adversely
affected by an order made and entered by the commissioner may
appeal to the commissioner for an order vacating or modifying the
order or for such order as the commissioner should have entered.
The person so appealing shall be known as the appellant. An appeal
shall be perfected by filing a notice of appeal with the
commissioner within ten days after the date upon which the
appellant received the copy of the order. The notice of appeal
shall be in a form and contain the information prescribed by the
commissioner, but in all cases shall contain a description of any
order appealed from and the grounds for the appeal. The filing of
the notice of appeal shall operate to stay or suspend execution of
any order which is the subject matter of the appeal. All of the
pertinent provisions of article five, chapter twenty-nine-a of this
code apply to and govern the hearing on appeal and the
administrative procedures in connection with and following the hearing, with like effect as if the provisions of said article were
set forth in extenso herein.
The commissioner shall set a hearing date which shall be not
less than ten days after he or she received the notice of appeal
unless there is a postponement or continuance. The commissioner
may postpone or continue any hearing on his or her own motion, or
for good cause shown upon the application of the appellant. The
appellant shall be given notice of the hearing in person or by
certified mail, return receipt requested. Any such hearing shall
be held in Charleston, Kanawha County, West Virginia, unless
another place is specified by the commissioner.
After the hearing and consideration of all of the testimony,
evidence and record in the case, the commissioner shall make and
enter an order affirming, modifying or vacating his or her initial
order or shall make and enter any new order. The order shall be
accompanied by findings of fact and conclusions of law as specified
in section three, article five, chapter twenty-nine-a of this code,
and a copy of the order and accompanying findings and conclusions
shall be served upon the appellant, in person or by certified mail,
return receipt requested.
(a) Hearings are governed by the provisions of article five,
chapter twenty-nine a of this code.
(b) The commissioner or director may conduct the hearing or
elect to have an Administrative Law Judge conduct the hearing.
(c) If the hearing is conducted by an Administrative Law
Judge, the Administrative Law Judge shall prepare a proposed
written order at the conclusion of a hearing containing findings of
fact and conclusions of law. The proposed order may contain
proposed disciplinary actions if the commissioner or director so
directs. The commissioner may accept, reject or modify the
decision of the Administrative Law Judge.
(d) The commissioner or director has the authority to
administer oaths, examine any person under oath and issue subpoenas
and subpoenas duces tecum.
(e) If, after a hearing, the commissioner or director
determines the licensee or holder of a certificate has violated any
provision of this article or the legislative rules promulgated
pursuant to this article, a formal written decision shall be
prepared which contains findings of fact, conclusions of law and a
specific description of the disciplinary actions imposed.
(f) The order of the Commissioner or director is final unless
vacated or modified upon judicial review. thereof
(g) Any appellant licensee or certificate holder adversely
affected by a final order made and entered by the commissioner or
director is entitled to judicial review. thereof All of the
pertinent provisions of section four, article five, chapter
twenty-nine-a of this code shall apply to and govern the review
with like effect as if the provisions of said the section were set forth in extenso herein.
(h) The judgment of the circuit court shall be is final unless
reversed, vacated or modified on appeal to the Supreme Court of
Appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
§16-4C-12. Violations; criminal penalties.
(a) When, as a result of an investigation under this article
or otherwise, the commissioner or director has reason to believe
that a licensee or certificate holder has committed a criminal
offense, the commissioner or director may bring the information to
the attention of an appropriate law-enforcement official.
(b) Any person who violates any condition of licensure law or
rule or operates an ambulance with an insufficient number of
emergency medical service personnel aboard when not lawfully
permitted to do so, or who represents himself or herself as a
certified emergency medical service personnel knowing the
representation to be untrue, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $100 nor more than
one thousand dollars $5,000.
§16-4C-16. Limitation of liability; mandatory errors and omissions
insurance.
(1) (a) Every person, corporation, ambulance service,
emergency medical service provider, emergency ambulance authority,
emergency ambulance service or other person which employs emergency medical service personnel with or without wages for ambulance
service or provides ambulance service in any manner, shall obtain
a policy of insurance insuring the person or entity and every
employee, agent or servant thereof, against loss from the liability
imposed by law for damages arising from any error or omission in
the provision of emergency medical services as enumerated by this
article, in an amount no less than $1,000,000 per incident.
Provided, That each emergency medical services agency having less
than this amount on the first day of January, one thousand nine
hundred ninety-six, shall obtain the policy of insurance required
in this section in the amount of one million dollars on or before
the first day of March, one thousand nine hundred ninety-seven.
New applicants shall obtain the insurance required in this section
in the amount of one million dollars
(2) (b) No emergency medical service personnel or emergency
medical service provider may be is liable for civil damages or
injuries in excess of the amounts for which the person or entity is
actually insured, unless the damages or injuries are intentionally
or maliciously inflicted.
(3) (c) Every person or entity required by this section to
obtain a policy of insurance as contemplated by this section shall
furnish proof of the existence of the policy to the commissioner on
or before January 1 of each calendar year. proof of the existence
of the policy of insurance required by this section
(4) (d) In the event that Any person or entity who fails to
secure a policy of insurance before the person or entity undertakes
the provision of providing emergency medical services or emergency
medical service agency, whichever occurs last, and keeps the policy
of insurance in force thereafter, that person or entity is not
entitled to the limited immunity liability created by subsection
(2) (b) of this section: Provided, That any physician, who gives
instructions to emergency medical service personnel without being
compensated, therefor or who treats any patient transported in an
ambulance or treats any patient prior to the transport, without
being compensated, therefor is entitled to the limited immunity
liability provided in subsection (2) (b) of this section.
On motion of Senator Kessler, the following amendment to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 4143) was reported by the Clerk and adopted:
On page twenty-two, section twelve, subsection (b), by
striking out "$5,000" and inserting in lieu thereof the following:
"$1,000: Provided, That after July 1, 2010, the fine shall not be
more than $5,000".
The question now being on the adoption of the Judiciary
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. Com. Sub. for H. B. No. 4143), as amended, was
then ordered to third 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.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4143) 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 present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4143) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4143--A Bill to repeal §16-
4C-5a of the Code of West Virginia, 1931, as amended; to amend and
reenact §16-4C-3, §16-4C-6, §16-4C-6a, §16-4C-8, §16-4C-9, §16-4C-
10, §16-4C-12 and §16-4C-16 of said code, all relating to emergency
medical services; revising definitions; revising powers and duties
of the commissioner; revising rulemaking authority; revising
requirement to review statewide emergency medical services
implementation plan; revising requirements to operate emergency
medical vehicle; revising standards for emergency medical service
personnel; requiring applicants to allow the State Police access to
personal background information; removing nonutilized code
sections; requiring certified persons to report violations;
providing immunity from civil liability for reporting violations;
clarifying procedures for complaint investigation, hearings, rights
of appeal and judicial review; removing automatic stay on appeal;
increasing criminal penalties; clarifying limitations on immunity
in the absence of required insurance policy; and removing
antiquated language.
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. 4143) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4177, Dedicating five percent of coal
severance tax to the county of origin.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Finance, were reported by the Clerk, considered simultaneously, and
adopted:
On page one, after the article heading by inserting the
following:
§11-13A-4a. Measure of tax on integrated producer and processor
of timber products.
For purposes of this section, the term "green lumber" means
boards of wood, that have been sawed from various species of logs
in various lengths, widths and thicknesses, but that have not undergone any further processing, including, but not limited to,
drying, in a dry kiln, or otherwise.
A person who produces timber and further saws, mills or
otherwise manufactures the same into green lumber or other wood
products excluding manufacturing by-products for sale, profit or
commercial use, shall report twenty-five percent of his gross
proceeds from the sale thereof as the gross value of the timber be
produced for purposes of the tax imposed under section three-b of
this article. Where no sale is made of such saw, milled or
otherwise manufactured green lumber or other wood products by such
a producer, the amount of the gross value of the same shall be
determined according to the provisions of section two of this
article used in determining the gross value of similar natural
resource products, after application of post severance processing
that is generally applied by the industry to obtain commercially
marketable or usable natural resource products, which determination
may be based on data contained in regularly published independent
market reports of the current, arms-length sale of similar products
in the vicinity where such post severance processing occurs and
twenty-five percent of the amount so determined shall be reported
as the gross value of the timber produced for purposes of the tax
imposed under section three-b of this article: Provided, That in
the case of green lumber that, before its sale, has undergone
subsequent processing in a dry kiln, the gross value of such green lumber, before it was transported to the dry kiln for such
processing, shall be the gross value, twenty-five percent of which
is reported as the gross value of the timber produced for purposes
of the tax imposed under section three-b of this article.;
And,
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section designated §11-13A-4a; and that
§11-13A-5a of said code be amended and reenacted, all to read as
follows:.
The bill (Eng. H. B. No. 4177), as amended, was then ordered
to third 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.
Having been engrossed, the bill (Eng. H. B. No. 4177) was then
read a third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed House Bill No. 4177 pass?"
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 present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4177) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 4177--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section
designated §11-13A-4a; and to amend and reenact §11-13A-5a of said
code, all relating to the severance and business privilege tax act;
clarifying the measure of tax on integrated producer and processor
of timber products; and dedicating five percent of coal severance
tax to the county of origin and specifying permissible uses for the money.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Unger, and by unanimous
consent, the remarks by Senator Stollings regarding the passage of
Engrossed House Bill No. 4177 were ordered printed in the Appendix
to the Journal.
Eng. Com. Sub. for House Bill No. 4188, Anti-Criminal Street
Gang Act.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the bill was withdrawn.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §30-29-3 and §30-29-10 of the Code of West Virginia,
1931, as amended, be amended and reenacted, and that said code be
further amended by adding thereto a new article, designated article
§61-13-1, §61-13-2, §61-13-3, §61-13-4, §61-13-5 and §61-13-6, all
to read as follows:
§30-29-3. Duties of the Governor's committee and the subcommittee.
Upon recommendation of the subcommittee, the Governor's
committee shall, by or pursuant to rule or regulation rules
proposed for legislative approval in accordance with article three,
chapter twenty-nine-a of this code:
(a) Provide funding for the establishment and support of law-
enforcement training academies in the state;
(b) Establish standards governing the establishment and
operation of the law-enforcement training academies, including
regional locations throughout the state, in order to provide access
to each law-enforcement agency in the state in accordance with
available funds;
(c) Establish minimum law-enforcement instructor
qualifications;
(d) Certify qualified law-enforcement instructors;
(e) Maintain a list of approved law-enforcement instructors;
(f) Promulgate standards governing the qualification of law-
enforcement officers and the entry-level law-enforcement training
curricula. These standards shall require satisfactory completion
of a minimum of four hundred classroom hours, shall provide for
credit to be given for relevant classroom hours earned pursuant to
training other than training at an established law-enforcement
training academy if earned within five years immediately preceding
the date of application for certification, and shall provide that
the required classroom hours can be accumulated on the basis of a part-time curricula spanning no more than twelve months, or a full-
time curricula;
(g) Establish standards governing in-service law-enforcement
officer training curricula and in-service supervisory level
training curricula;
(h) Certify organized criminal enterprise investigation
techniques with a qualified anti-racial profiling training course
or module;
(i) Establish standards governing mandatory training to
effectively investigate organized criminal enterprises as defined
in article thirteen, chapter sixty-one of this code, while
preventing racial profiling, as defined in section ten of this
article, for entry level training curricula and for law-enforcement
officers who have not received such training as certified by the
Governor's committee as required in this section;
(j) Establish, no later than July 1, 2011, procedures for
implementation of a course in investigation of organized criminal
enterprises which includes an anti-racial training module to be
available on the internet or otherwise to all law-enforcement
officers. The procedures shall include the frequency with which a
law-enforcement officer shall receive training in investigation of
organized criminal enterprises and anti-racial profiling, and a
time frame for which all law-enforcement officers must receive such
training: Provided, That all law-enforcement officers in this state shall receive such training no later than July 1, 2012. In
order to implement and carry out the intent of this section, the
Governor's committee may promulgate emergency rules pursuant to
section fifteen, article three, chapter twenty-nine-a of this code;
(i) (k) Certify law-enforcement officers, as provided in
section five of this article;
(j) (l) Seek supplemental funding for law-enforcement training
academies from sources other than the fees collected pursuant to
section four of this article;
(k) (m) Any responsibilities and duties as the Legislature
may, from time to time, see fit to direct to the committee; and
(l) (n) Submit, on or before September 30 of each year, to the
Governor, and upon request to individual members of the
Legislature, a report on its activities during the previous year
and an accounting of funds paid into and disbursed from the special
revenue account establish pursuant to section four of this article.
§30-29-10. Prohibition of racial profiling.
(a) The Legislature finds that the use by a law-enforcement
officer of race, ethnicity, or national origin in deciding which
persons should be subject to traffic stops, stops and frisks,
questioning, searches, and seizures is a problematic law-
enforcement tactic. The reality or public perception of racial
profiling alienates people from police, hinders community policing
efforts, and causes law-enforcement officers and law-enforcement agencies to lose credibility and trust among the people law-
enforcement is sworn to protect and serve. Therefore, the West
Virginia Legislature declares that racial profiling is contrary to
public policy and should not be used as a law-enforcement
investigative tactic.
(b) For purposes of this section:
(1) The term "law-enforcement officer" means any duly
authorized member of a law-enforcement agency who is authorized to
maintain public peace and order, prevent and detect crime, make
arrests and enforce the laws of the state or any county or
municipality thereof.
(2) The term "municipality" means any incorporated town or
city whose boundaries lie within the geographic boundaries of the
state.
(3) The term "racial profiling" means the practice of a law-
enforcement officer relying, to any degree, on race, ethnicity, or
national origin in selecting which individuals to subject to
routine investigatory activities, or in deciding upon the scope and
substance of law-enforcement activity following the initial routine
investigatory activity. Racial profiling does not include reliance
on race, ethnicity, or national origin in combination with other
identifying factors when the law-enforcement officer is seeking to
apprehend a specific suspect whose race, ethnicity, or national
origin is part of the description of the suspect.
(4) The term "state and local law-enforcement agencies" means
any duly authorized state, county or municipal organization
employing one or more persons whose responsibility is the
enforcement of laws of the state or any county or municipality
thereof.
(c) No law-enforcement officer shall engage in racial
profiling.
(d) All state and local law-enforcement agencies shall
establish and maintain policies and procedures designed to
eliminate racial profiling. Policies and procedures shall include
the following:
(1) A prohibition on racial profiling;
(2) Independent procedures for receiving, investigating, and
responding to complaints alleging racial profiling by law-
enforcement officers;
(3) Procedures to discipline law-enforcement officers who
engage in racial profiling;
(4) Procedures to insure the inclusion of training in the
investigation of organized criminal enterprises and anti-racial
profiling training in new officer training and to law-enforcement
officers who have not received such training as certified by the
Governor's committee; and
(4) (5) Any other policies and procedures deemed necessary by
state and local law-enforcement agencies to eliminate racial profiling.
ARTICLE 13. ANTI-ORGANIZED CRIMINAL ENTERPRISE ACT.
§61-13-1. Findings.
(a) The Legislature hereby finds that there is evidence of an
increasing incidence of larger scale organized criminal activity in
various parts of this State and that new statutes are necessary to
protect the lives and property of the overwhelming majority of West
Virginians who are law-abiding citizens. The evidence presented to
the Legislature reflects that persons engaged in larger scale
ongoing criminal enterprises are of all ages, multiple racial and
ethnic origin and all pose a rising threat.
(b) The Legislature further finds that there is a tendency
among certain of these enterprises to actively recruit, sometimes
coercively, people into joining such organizations as well as
organized efforts to intimidate witnesses who may be in a position
to offer testimony regarding the organized criminal enterprises and
that such behavior cannot be tolerated.
(c) The Legislature further finds that lawful use of public
nuisance and forfeiture laws can substantially aid in a reduction
of larger scale organized criminal enterprises.
(d) The Legislature further finds that criminal statutes
tailored to the particular problems represented by such organized
criminal enterprises combined with community education and existing
alternative sentencing laws can aid in reducing this new threat.
§61-13-2. Definitions.
As used in this article:
"Organized criminal enterprise" means a combination of five or
more persons engaging over a period of not less than six months in
one or more of the qualifying offenses set forth in this section.
"Qualifying offense" means a violation of the felony
provisions of section eleven, article forty-one, chapter thirty-
three of this code; the felony provisions of chapter 60A of this
code; the felony provisions of article two of this chapter; the
provisions of sections one, two, three, four, five, eleven, twelve,
thirteen, fourteen, eighteen, nineteen, twenty-four, twenty-four-a,
twenty-four-b and twenty-four-d, article three of this chapter; the
felony provisions of sections article three-c of this chapter; the
felony provisions of article three-e of this chapter; the felony
provisions of article four of this chapter; the provisions of
section eight, article eight of this chapter; the felony provisions
of article eight-a of this chapter and the felony provisions of
article eight-c of this chapter.
§61-13-3. Offenses.
(a) Any person who knowingly and willfully becomes a member of
an organized criminal enterprise and who knowingly promotes,
furthers or assists in the commission of any qualifying offense
himself or herself or in combination with another member of an
organized criminal enterprise shall be guilty of a felony and, upon conviction, shall be confined in a state correctional facility for
not more than ten years or fined not more than $25,000, or both.
The offense set forth in this subsection is separate and distinct
from that of any qualifying offense and may be punished separately.
(b) Any person who knowingly solicits, invites, recruits,
encourages or causes another to become a member of an organized
criminal enterprise or to assist members of an organized criminal
enterprise to aid or assist in the commission of a qualifying
offense by one or more members of an organized criminal enterprise
shall be guilty of a felony and, upon conviction, be confined in a
state correctional facility for not more than five years or fined
not more than $10,000, or both.
(c) Any person who shall, by threats, menaces, or otherwise,
intimidate, or attempt to intimidate, a witness for the state in
any prosecution under the provisions of this article, for the
purpose of preventing the attendance of such witness at the trial
of such case or to change testimony, or shall in any way or manner
prevent, or attempt to prevent, the attendance of any such witness
at such trial, shall be guilty of a felony, and, upon conviction,
shall be confined not more than ten years.
§61-13-4. Premises used by organized criminal enterprises;
nuisances; actions for injunction, abatement and
damages; other remedies for unlawful use;
exceptions.
(a) Every private building or place used by members of an
organized criminal enterprise for the commission of qualifying
offenses is a nuisance and may be the subject of an injunction or
cause of action for damages or for abatement of the nuisance as
provided for an article nine of this chapter.
(b) Any person may file a petition for injunctive relief with
the appropriate court seeking eviction from or closure of any
premises used for the operation of an organized criminal
enterprise. Upon proof by the plaintiff that the premises are
being used by members of an organized criminal enterprise for the
commission of a qualifying offense or offenses, the court may order
the owner of record or the lessee of the premises to remove or
evict the persons from the premises and order the premises sealed,
prohibit further use of the premises, or enter such order as may be
necessary to prohibit the premises from being used for the
commission of a pattern of criminal gang activity and to abate the
nuisance.
§61-13-5. Forfeiture.
(a) The following are declared to be contraband and no person
shall have a property interest in them:
(1) All property which is directly or indirectly used or
intended for use in any manner to facilitate a violation of this
article; and
(2) Any property constituting or derived from gross profits or other proceeds obtained from a violation of this article.
(b) In any action under this section, the court may enter such
restraining orders or take other appropriate action, including
acceptance of performance bonds, in connection with any interest
that is subject to forfeiture.
(c) Forfeiture actions under this section shall use the
procedures set forth in article seven, chapter sixty-A of this
code.
§61-13-6. Exempted activities; limitations on scope.
Nothing in this section shall be construed to prevent lawful
assembly and petition for the lawful redress of grievances,
including, but not limited to: any labor or employment relations
issue; demonstration at the seat of federal, state, county, or
municipal government; or activities protected by the West Virginia
Constitution or the United States Constitution or any statute of
this state or the United States.
The bill (Eng. Com. Sub. for H. B. No. 4188), as amended, was
then ordered to third 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.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4188) 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 present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4188) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4188--A Bill to amend and
reenact §30-29-3 and §30-29-10 of the Code of West Virginia, 1931,
as amended, and to further amend said code by adding thereto a new
article, designated §61-13-1, §61-13-2, §61-3-3, §61-3-4, §61-3-5 and §61-3-6, all relating to requiring an organized criminal
organization investigation component with accompanying anti-racial
profiling education and training for law enforcement; creating
anti-organized criminal enterprise act; authorizing rulemaking,
including emergency rules; creating timetable for developing
procedures and rules; creating offenses of being a member of an
organized criminal enterprise; criminalizing witness intimidation
in organized criminal enterprise prosecutions; establish qualifying
offenses; creating the offense of soliciting or inviting membership
in an organized criminal enterprise; making premises used by
organized criminal enterprises subject to public nuisance laws;
allowing for forfeiture of property used for or obtained through
organized criminal enterprises; establishing exempted activities;
offenses; and penalties.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4201, Creating the Livestock
Care Standards Board.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 1C. CARE OF LIVESTOCK.
§19-1C-1. Legislative findings.
(a) The Legislature finds that the following are important to
protect the health and welfare of the citizens of West Virginia:
(1) Establishing standards governing the care and well-being
of livestock in this state;
(2) Maintaining food safety;
(3) Encouraging locally grown and raised food; and
(4) Protecting West Virginia farms and families.
(b) Therefore, to protect the public interest, the Legislature
finds that it is necessary to create a Livestock Care Standards
Board.
§19-1C-2. Definitions.
For the purposes of this article:
(1) "Board" means the Livestock Care Standards Board.
(2) "Livestock" has the same definition as set out in
subsection (d), section two, article ten-b of this chapter.
§19-1C-3. Livestock Care Standards Board.
(a) On July 1, 2010, there is hereby created the Livestock
Care Standards Board.
(b) Prior to July 1, 2010, the Governor shall appoint, by and
with the advice and consent of the Senate, the following eleven
members:
(1) One member who is a veterinarian licensed in this state engaging in large animal practice, for a term of two years;
(2) The dean of the agriculture department of a college or
university located in this state, for a term of three years;
(3) One member representing a county humane society that is
organized under state law, for a term of four years;
(4) One member who is knowledgeable about food safety in this
state, for a term of five years;
(5) Two members of the public representing West Virginia
consumers, one for a term of two years and one for a term of four
years;
(6) Two members representing state agricultural organizations
that represent farmers, one of whom must be a member of the largest
organization in the state representing farmers for a term of three
years, and the other must be a member of a statewide livestock
organization, for a term of five years; and
(7) Three members representing family farms engaged in animal
production, at least two of whom are family farmers, for the
following terms: one for three years, one for four years and one
for five years.
(c) After the initial appointment terms, the appointment term
is five years. Appointed members may be reappointed for additional
terms.
(d) Commencing July 1, 2010, the board consists of the
following thirteen members:
(1) The Commissioner of the Department of Agriculture or his
or her designee, ex officio non-voting, who is the chairperson of
the board;
(2) The Director of the Animal Health Division, ex officio
non-voting;
(3) One member who is a veterinarian licensed in this state
engaging in large animal practice;
(4) The dean of the agriculture department of a college or
university located in this state;
(5) One member representing a county humane society that is
organized under state law;
(6) One member who is knowledgeable about food safety in this
state;
(7) Two members of the public representing West Virginia
consumers;
(8) Two members representing state agricultural organizations
that represent farmers, one of whom must be a member of the largest
organization in the state representing farmers, and the other must
be a member of a statewide livestock organization; and
(9) Three members representing family farms engaged in animal
production, at least two of whom are family farmers.
(e) All members must be residents of this state during their
terms. No more than seven members of the board may be of the same
political party and no more than five may be from the same congressional district at any given time.
(f) All appointed members serve until their successor has been
appointed and qualified. Vacancies shall be filled in the same
manner as the original appointment for the remainder of the
unexpired term.
§19-1C-4. Powers and duties of the board.
(a) The board has the following powers and duties to:
(1) Establish standards governing the care and well-being of
livestock in this state;
(2) Maintain food safety;
(3) Encourage locally grown and raised food; and
(4) Protect West Virginia farms and families.
(b) The board is also authorized to establish standards by
legislative rule, pursuant to the provisions of article three,
chapter twenty-nine-a of this code, governing the care and well-
being of livestock in this state, including:
(1) The agricultural best management practices for the care
and well-being of livestock and poultry in this state;
(2) Biosecurity, disease prevention, animal morbidity and
mortality data;
(3) Food safety practices; and
(4) The protection of local, affordable food supplies for
consumers.
(c) The Department of Agriculture shall administer and enforce the standards established by the board that are approved by the
Legislature.
§19-1C-5. Compensation of board members.
(a) The ex officio members of the board may not receive
compensation for serving on the board.
(b) The appointed members of the board shall receive
compensation for each day or portion of a day engaged in the
discharge of official duties, which compensation may not exceed the
amount paid to members of the Legislature for their interim duties
as recommended by the Citizens Legislative Compensation Commission
and authorized by law.
(c) Each member of the board shall be reimbursed actual and
necessary expenses incurred for each day or portion of a day
engaged in the discharge of official duties in a manner consistent
with the guidelines of the Travel Management Office of the
Department of Administration.
§19-1C-6. Meetings of the board.
The board shall meet at least annually, and the chairperson
may call additional meetings of the board upon the written request
of three members.
The bill (Eng. Com. Sub. for H. B. No. 4201), as amended, was
then ordered to third 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.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4201) 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 present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4201) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4223, Increasing the safety
of school children that use school buses.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Plymale, as chair of the Committee
on Education, and by unanimous consent, the unreported Education
committee amendment to the bill was withdrawn.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §17C-12-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 12. SPECIAL STOPS REQUIRED.
§17C-12-7. Overtaking and passing school bus; penalties; signs
and warning lights upon buses; requirements for
sale of buses; mounting of cameras; educational
information campaign; limitation on idling.
(a) The driver of a vehicle, upon meeting or overtaking from
either direction any school bus which has stopped for the purpose
of receiving or discharging any school children, shall stop the
vehicle before reaching the school bus when there is in operation
on the school bus flashing warning signal lights, as referred to in
section eight of this article, and the driver shall may not proceed until the school bus resumes motion, or is signaled by the school
bus driver to proceed or the visual signals are no longer actuated.
This section applies wherever the school bus is receiving or
discharging children including, but not limited to, any street,
highway, parking lot, private road or driveway: Provided, That the
driver of a vehicle upon a controlled access highway need not stop
upon meeting or passing a school bus which is on a different
roadway or adjacent to the highway and where pedestrians are not
permitted to cross the roadway.
(b) Any driver acting in violation of this subsection (a) of
this section is guilty of a misdemeanor and, upon conviction for a
first offense, shall be fined not less than fifty dollars $150 or
more than two hundred dollars $500, or imprisoned confined in the
county jail not more than six months, or both fined and imprisoned
confined. Upon conviction of a second violation of subsection (a),
the driver shall be fined $500, or confined in jail not more than
six months, or both fined and confined. Upon conviction of a third
or subsequent violation of subsection (a), the driver shall be
fined $500, and confined not less than twenty-four hours in jail
but not more than six months.
(c) In addition to the penalties prescribed in subsections (b)
of this section, the Commissioner of Motor Vehicles shall, upon
conviction, suspend the driver's license of the person so
convicted:
(1) Of a first offense under subsection (b) of this section,
for a period of thirty days;
(2) Of a second offense under subsection (b) of this section,
for a period of ninety days; or
(3) Of a third or subsequent offense under subsection (b) of
this section, for a period of one hundred and eighty days.
(d) Any driver of a vehicle who willfully violates the
provisions of subsection (a) of this section and the violation
causes serious bodily injury to any person other than the driver,
is guilty of a felony and, upon conviction, shall be confined in a
state correctional facility not less than one year nor more than
three years and fined not less than $500 nor more than $2,000.
(e) Any driver of a vehicle who willfully violates the
provisions of subsection (a) of this section, and the violation
causes death, is guilty of a felony and, upon conviction, shall be
confined in a state correctional facility not less than one year
nor more than ten years and fined not less than $1,000 nor more
than $3,000.
If the identity of the driver cannot be ascertained, then any
owner or lessee of the vehicle in violation of this subsection is
guilty of a misdemeanor and, upon conviction shall be fined of not
less than twenty-five dollars nor more than one hundred dollars.
The conviction shall not subject the owner or lessee to further
administrative or other penalties for the offense, notwithstanding other provisions of this code to the contrary.
(b) (f) Every bus used for the transportation of school
children shall bear upon the front and rear of the bus a plainly
visible sign containing the words "school bus" in letters not less
than eight inches in height. When a contract school bus is being
operated upon a highway for purposes other than the actual
transportation of children either to or from school, all markings
on the contract school bus indicating "school bus" shall be covered
or concealed. Any school bus sold or transferred to another owner
by a county board of education, agency or individual shall have all
flashing warning lights disconnected and all lettering removed or
permanently obscured, except when sold or transferred for the
transportation of school children.
(g) Every county board of education is hereby authorized to
mount a camera on any school bus for the purpose of enforcing this
section or for any other lawful purpose.
(h) To the extent that state, federal or other funds are
available, the State Police shall conduct an information campaign
to educate drivers concerning the provisions of this section and
the importance of school bus safety.
(c) (i) The State Board of Education shall write a policy
promulgate a rule in accordance with the provisions of article
three-b, chapter twenty-nine-a of this code governing the idling of
school buses.
The bill (Eng. Com. Sub. for H. B. No. 4223), as amended, was
then ordered to third 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.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4223) 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 present and voting having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4223) passed.
At the request of Senator Plymale, as chair of the Committee
on Education, and by unanimous consent, the unreported Education
committee amendment to the title of the bill was withdrawn.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4223--A Bill to amend and
reenact §17C-12-7 of the Code of West Virginia, 1931, as amended,
relating generally to increasing the safety of school children that
use school buses; increasing the penalties for overtaking and
passing a school bus stopped for the purpose of receiving and
discharging children; authorizing the mounting of cameras on school
buses; and requesting an educational information campaign on school
bus safety.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4247, Providing counties the discretion to
accompany an electronic poll book with a printed poll book.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
At the request of Senator Chafin, unanimous consent being
granted, the Senate proceeded to the consideration of
Eng. House Bill No. 4593, Relating to high school graduation improvement.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §18-8-1 and §18-8-4 the Code of West Virginia, 1931, as
amended, be amended and reenacted; that said code be amended by
adding thereto a new section, designated §18-8-6; that §18-9A-21 of
said code be amended and reenacted; and that §62-15-4 of said code
be amended and reenacted, all to read as follows:
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-1. Compulsory school attendance; exemptions.
(a) Compulsory school attendance shall begin with the school
year in which the sixth birthday is reached prior to September 1,
or upon enrolling in a publicly supported kindergarten program and
continue to the sixteenth birthday. Exemption from the foregoing
requirements of compulsory public school attendance established in
section one-a of this article shall be made on behalf of any child
for the causes or conditions set forth in this section. Each cause
or condition set forth in this section shall be is subject to
confirmation by the attendance authority of the county.
(b) A child shall be is exempt from the compulsory school attendance requirement set forth in subsection (a) of this section
section one-a of this article if the requirements of this
subsection, relating to instruction in a private, parochial or
other approved school, are met. The instruction shall be in a
school approved by the county board and for a time equal to the
instructional term set forth in section forty-five, article five of
this chapter. In all private, parochial or other schools approved
pursuant to this subsection it shall be is the duty of the
principal or other person in control, upon the request of the
county superintendent, to furnish to the county board such
information and records as may be required with respect to
attendance, instruction and progress of pupils students enrolled.
between the entrance age and sixteen years
(c) A child shall be is exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
section one-a of this article if the requirements of either
subdivision (1) of this subsection or subdivision (2) of this
subsection, both relating to home instruction, are met.
(1) The instruction shall be in the home of the child or
children or at some other place approved by the county board and
for a time equal to the instructional term set forth in section
forty-five, article five of this chapter. If the request for home
instruction is denied by the county board, good and reasonable
justification for the denial shall be furnished in writing to the applicant by the county board. The instruction shall be conducted
by a person or persons who, in the judgment of the county
superintendent and county board, are qualified to give instruction
in subjects required to be taught in public elementary schools in
the state. The person or persons providing the instruction, upon
request of the county superintendent, shall furnish to the county
board information and records as may be required from time to time
periodically with respect to attendance, instruction and progress
of pupils enrolled between the entrance age and sixteen years
students receiving the instruction. The state board shall develop
guidelines for the home schooling of special education students
including alternative assessment measures to assure that
satisfactory academic progress is achieved.
(2) The child meets the requirements set forth in this
subdivision: Provided, That the county superintendent may seek
from the circuit court of the county an order denying home
instruction of the child. The order may be granted upon a showing
of clear and convincing evidence that the child will suffer neglect
in the child's his or her education or that there are other
compelling reasons to deny home instruction.
(A) Annually, the person or persons providing home instruction
shall present to the county superintendent or county board a notice
of intent to provide home instruction and the name, address, age
and grade level of any child of compulsory school age to be instructed: Provided, That if a child is enrolled in a public
school, notice of intent to provide home instruction shall be given
at least two weeks prior to withdrawing such the child from public
school;
(B) The person or persons providing home instruction shall
submit satisfactory evidence of a high school diploma or
equivalent;
(C) The person or persons providing home instruction shall
outline a plan of instruction for the ensuing school year; and
(D) On or before June 30 of each year annually, the person or
persons providing home instruction shall obtain an academic
assessment of the child for the previous school year and submit the
results to the county superintendent. When the academic assessment
takes place outside of a public school, the parent or legal
guardian shall pay the cost. The requirement of an academic
assessment shall be is satisfied in one of the following ways:
(i) The child receiving home instruction takes a nationally
normed standardized achievement test to be administered under
standardized conditions as set forth by the published instructions
of the selected test in the subjects of reading, language,
mathematics, science and social studies. Provided, That in no
event may The child's parent or legal guardian may not administer
the test in any event. The publication date of the chosen test
shall may not be more than ten years from the date of the administration of the test is administered. The child shall be is
considered to have made acceptable progress when the mean of the
child's test results in the required subject areas for any single
year meets or exceeds the fiftieth percentile or, if below the
fiftieth percentile, shows improvement from the previous year's
results;
(ii) The child participates in the testing program currently
in use in the state's public schools. The test shall be
administered to the child at a public school in the county of
residence. Determination of acceptable progress will shall be
based on current guidelines of the state testing program;
(iii) The county superintendent is provided with a written
narrative indicating that a portfolio of samples of the child's
work has been reviewed and that the child's academic progress for
the year is in accordance with the child's abilities. If the
narrative indicates that the child's academic progress for the year
is in accordance with the child's abilities, the child shall be is
considered to have made acceptable progress. This narrative shall
be prepared by a certified teacher whose certification number shall
be provided. The narrative shall include a statement about the
child's progress in the areas of reading, language, mathematics,
science and social studies and shall note any areas which, in the
professional opinion of the reviewer, show need for improvement or
remediation; or
(iv) The child completes an alternative academic assessment of
proficiency that is mutually agreed upon by the parent or legal
guardian and the county superintendent. Criteria for acceptable
progress shall be mutually agreed upon by the same parties; and
(E) When the annual assessment fails to show acceptable
progress as defined under the appropriate assessment option set
forth in paragraph (D) of this subdivision, the person or persons
providing home instruction shall initiate a remedial program to
foster acceptable progress. and The county board shall notify the
parents or legal guardian of the child, in writing, of the services
available to assist in the assessment of the child's eligibility
for special education services. Provided, That the Identification
of a disability shall does not preclude the continuation of home
schooling. In the event that the child does not achieve acceptable
progress as defined under the appropriate assessment option set
forth in paragraph (D) of this subdivision for a second consecutive
year, the person or persons providing instruction shall submit to
the county superintendent additional evidence that appropriate
instruction is being provided.
(3) This subdivision applies to both home instruction
exemptions set forth in subdivisions (1) and (2) of this
subsection. The county superintendent or a designee shall offer
such assistance, including textbooks, other teaching materials and
available resources, all subject to availability, as may assist the person or persons providing home instruction. subject to their
availability Any child receiving home instruction may upon
approval of the county board exercise the option to attend any
class offered by the county board as the person or persons
providing home instruction may consider appropriate subject to
normal registration and attendance requirements.
(d) A child shall be is exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
section one-a of this article if the requirements of this
subsection, relating to physical or mental incapacity, are met.
Physical or mental incapacity consists of incapacity for school
attendance and the performance of school work. In all cases of
prolonged absence from school due to incapacity of the child to
attend, the written statement of a licensed physician or authorized
school nurse is required. shall be required under the provisions of
this article: Provided, That in all cases, Incapacity shall be
narrowly defined and in no any case shall the provisions of this
article may not allow for the exclusion of the mentally,
physically, emotionally or behaviorally handicapped child otherwise
entitled to a free appropriate education.
(e) A child shall be is exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
section one-a of this article if conditions rendering school
attendance impossible or hazardous to the life, health or safety of the child exist.
(f) A child shall be is exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
section one-a of this article upon regular graduation from a
standard senior high school or alternate secondary program
completion as determined by the state board.
(g) A child shall be is exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
section one-a of this article if the child is granted a work permit
pursuant to this subsection. After due investigation the county
superintendent may after due investigation grant work permits to
youths under sixteen years of age, subject to state and federal
labor laws and regulations. Provided, That A work permit may not
be granted on behalf of any youth who has not completed the eighth
grade of school.
(h) A child shall be is exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
section one-a of this article if a serious illness or death in the
immediate family of the pupil child has occurred. It is expected
that the county attendance director will ascertain the facts in all
cases of such absences about which information is inadequate and
report the facts to the county superintendent.
(i) A child shall be is exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section section one-a of this article if the requirements of this
subsection, relating to destitution in the home, are met.
Exemption based on a condition of extreme destitution in the home
may be granted only upon the written recommendation of the county
attendance director to the county superintendent following careful
investigation of the case. A copy of the report confirming the
condition and school exemption shall be placed with the county
director of public assistance. This enactment contemplates every
reasonable effort that may properly be taken on the part of both
school and public assistance authorities for the relief of home
conditions officially recognized as being so destitute as to
deprive children of the privilege of school attendance. Exemption
for this cause shall not be is not allowed when the destitution is
relieved through public or private means.
(j) A child shall be is exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
section one-a of this article if the requirements of this
subsection, relating to church ordinances and observances of
regular church ordinances, are met. The county board may approve
exemption for religious instruction upon written request of the
person having legal or actual charge of a child or children.
Provided, That the exemption shall be This exemption is subject to
the rules prescribed by the county superintendent and approved by
the county board.
(k) A child shall be is exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
section one-a of this article if the requirements of this
subsection, relating to alternative private, parochial, church or
religious school instruction, are met. Exemption shall be made for
any child attending any private school, parochial school, church
school, school operated by a religious order or other nonpublic
school which elects to comply with the provisions of article
twenty-eight of this chapter.
(l) The Completion of the eighth grade shall does not exempt
any child under sixteen years of age the termination age designated
in section one-a of this article from the compulsory attendance
provision of this article.
§18-8-4. Duties of attendance director and assistant directors;
complaints, warrants and hearings.
(a) The county attendance director and the assistants shall
diligently promote regular school attendance. They The director
and assistants shall:
(1) Ascertain reasons for inexcusable absences from school of
pupils students of compulsory school age and students who remain
enrolled beyond the sixteenth birthday the compulsory school age as
defined under section one-a of this article; and shall
(2) Take such steps as are, in their discretion, best
calculated to correct attitudes of parents and pupils students which result in absences from school even though not clearly in
violation of law.
(b) In the case of five consecutive or ten total unexcused
absences of a child student during a school year, the attendance
director or assistant shall:
(1) Serve written notice to the parent, guardian or custodian
of such child the student that the attendance of such child the
student at school is required and that within ten days of receipt
of the notice the parent, guardian or custodian, accompanied by the
child student, shall report in person to the school the child
student attends for a conference with the principal or other
designated representative of the school in order to discuss and
correct the circumstances causing the inexcusable absences of the
child student; and if the parent, guardian or custodian does not
comply with the provisions of this article, then the attendance
director or assistant shall make complaint against the parent,
guardian or custodian before a magistrate of the county. If it
appears from the complaint that there is probable cause to believe
that an offense has been committed and that the accused has
committed it, a summons or a warrant for the arrest of the accused
shall issue to any officer authorized by law to serve the summons
or to arrest persons charged with offenses against the state. More
than one parent, guardian or custodian may be charged in a
complaint. Initial service of a summons or warrant issued pursuant to the provisions of this section shall be attempted within ten
calendar days of receipt of the summons or warrant and subsequent
attempts at service shall continue until the summons or warrant is
executed or until the end of the school term during which the
complaint is made, whichever is later.
(c) The magistrate court clerk, or the clerk of the circuit
court performing the duties of the magistrate court as authorized
in section eight, article one, chapter fifty of this code, shall
assign the case to a magistrate within ten days of execution of the
summons or warrant. The hearing shall be held within twenty days
of the assignment to the magistrate, subject to lawful continuance.
The magistrate shall provide to the accused at least ten days'
advance notice of the date, time and place of the hearing.
(d) When any doubt exists as to the age of a child student
absent from school, the attendance director shall have has
authority to require a properly attested birth certificate or an
affidavit from the parent, guardian or custodian of such child the
student, stating age of the child. The county attendance director
or assistant, shall have student. In the performance of his or her
duties, the county attendance director has authority to take
without warrant any child student absent from school in violation
of the provisions of this article and to place such child the
student in the school in which such child he or she is or should be
enrolled.
(e) The county attendance director shall devote such time as
is required by section three of this article to the duties of
attendance director in accordance with this section during the
instructional term and at such other times as the duties of an
attendance director are required. All attendance directors hired
for more than two hundred days may be assigned other duties
determined by the superintendent during the period in excess of two
hundred days. The county attendance director shall be is
responsible under direction of the county superintendent for the
efficient administration of efficiently administering school
attendance in the county.
(f) In addition to those duties directly relating to the
administration of attendance, the county attendance director and
assistant directors shall also shall perform the following duties:
(1) Assist in directing the taking of the school census to see
that it is taken at the time and in the manner provided by law;
(2) Confer with principals and teachers on the comparison of
school census and enrollment for the detection of possible
nonenrollees;
(3) Cooperate with existing state and federal agencies charged
with enforcement of enforcing child labor laws;
(4) Prepare a report for submission by the county
superintendent to the State Superintendent of Schools on school
attendance, at such times and in such detail as may be required. The state board shall promulgate a legislative rule pursuant to
article three-b, chapter twenty-nine-a of this code that sets forth
student absences that shall be are excluded for accountability
purposes. The absences that shall be are excluded by the rule
shall include, but are not be limited to, excused student absences,
students not in attendance due to disciplinary measures and absent
students for whom the attendance director has pursued judicial
remedies to compel attendance to the extent of his or her
authority. The attendance director shall file with the county
superintendent and county board of education at the close of each
month a report showing activities of the school attendance office
and the status of attendance in the county at the time;
(5) Promote attendance in the county by the compilation of
compiling data for schools and by furnishing suggestions and
recommendations for publication through school bulletins and the
press, or in such manner as the county superintendent may direct;
(6) Participate in school teachers' conferences with parents
and students;
(7) Assist in such other ways as the county superintendent may
direct for improving school attendance;
(8) Make home visits of students who have excessive unexcused
absences, as provided above, or if requested by the chief
administrator, principal or assistant principal; and
(9) Serve as the liaison for homeless children and youth.
§18-8-6. The High School Graduation Improvement Act.
(a) This section is known and may be cited as "The High School
Graduation Improvement Act."
(b) The Legislature makes the following findings:
(1) West Virginia has a dire need to implement a comprehensive
approach to addressing the high school drop-out crisis, and to
develop policies and strategies that successfully assist at-risk
students to stay in school, earn a high school diploma, and
ultimately become productively contributing members of society;
(2) The current demands for a highly skilled workforce require
a high school diploma at the very minimum;
(3) The state has several dynamic programs that are capable of
actively engaging students in learning, providing students with a
sense of relevancy in academics, and motivating students to succeed
in school and ultimately earn a high school diploma;
(4) Raising the compulsory school attendance age alone will
neither increase the graduation rate nor decrease the drop-out
rate. It is imperative that the state shift the focus from merely
compelling students to attend school to instead providing vibrant
and engaging programs that allow students to recognize the value of
a high school diploma or workforce credential and inspire students
to graduate from high school, especially those students who are at
risk of dropping out of school;
(5) Investing financially in this focus shift will result in the need for fewer resources to be committed to enforcing
compulsory attendance laws and fewer incidents of disruptive
student behavior;
(6) Absenteeism is proven to be the highest predictor of
course failure. Truant students face low self-confidence in their
ability to succeed in school because their absences cause them to
fall behind their classmates, and the students find dropping out
easier than catching up;
(7) There is a strong relationship between truancy and
dropping out of high school. Frequent absences are one of the most
common indicators that a student is disengaging from the learning
process and likely to drop out of school early. Intervention after
fewer absences is likely to have a positive impact on a student's
persistence to graduation;
(8) Students cite many reasons for dropping out of school,
some of which include engaging in drug culture, lack of positive
influence, role model or parental involvement, absence of
boundaries and direction, lack of a positive home environment, peer
pressure, and poor community expectations;
(9) Dropping out of school has a profound negative impact on
an individual's future, resulting in limited job choices,
substantially lower wages and less earned over a life-time than
high school graduates, and a greater likelihood of depending on
public assistance and engaging in criminal activity;
(10) Career-technical education is a dynamic system in West
Virginia which offers numerous concentrations that provide students
with industry-recognized credentials, while also preparing them for
post-secondary education;
(11) All career-technical education students in the state have
an opportunity to earn free college credit through the Earn a
Degree-Graduate Early (EDGE) program;
(12) The current high school graduation rate for secondary
career-technical education completers is significantly higher than
the state graduation rate;
(13) Students involved in career-technical education learn a
marketable skill, are likely to find jobs, and become prepared for
post-secondary education;
(14) A significant number of students who could benefit from
participating in a career-technical program are denied access due
to a number of factors, such as dropping out of high school prior
to enrolling in career-technical education, requirements that
students repeat academic courses that they have failed, and
scheduling conflicts with the high schools;
(15) There has been a dramatic change over the years from
vocational education, which was very basic and lacked high level
skills, to the career-technical programs of today which are
computer based, require national tests and certification, and often
result in jobs with high salaries;
(16) West Virginia's employers and technical education job
placement rates show that the state needs graduates with technical
skills to compete in the current and future job markets;
(17) The job placement rate for students graduating from
career-technical programs statewide is greater than ninety-five
percent;
(18) Among the reasons students cite for dropping out of
school are feelings of hopelessness when they have failed classes
and can not recover credits in order to graduate;
(19) The state offers full-day programs consisting of credit
recovery, hands on experiences in career-technical programs and
basic education, which are valuable resources for re-engaging
students who have dropped out of school, or have a potential for or
are at risk of dropping out;
(20) A student is significantly more likely to graduate from
high school if he or she completes four units of training in
technical education;
(21) Learning is increased and retained at a higher level if
the content is taught through a relevant and applied experience,
and students who are able to experience academics through real life
projects have a higher probability of mastering the appropriate
concepts;
(22) Programs such as "GED Option" and "Techademics" are
valuable resources for providing relevant and applied experience for students;
(23) The Techademics programs administered by the department
of education has embedded math competencies in career-technical
program curricula whereby students simultaneously earn credit for
mastery of math competencies and career-technical courses;
(24) Students would greatly benefit if West Virginia were
designated as a "GED Option" state. Currently a student is
ineligible to take the General Educational Development (GED) exam
if he or she is enrolled in school, which requires the student to
drop out of high school in order to participate in a GED
preparation program or take the exam, even if the student desires
to remain enrolled;
(25) A GED Option state designation by the American Council on
Education would allow students in this state to remain enrolled in
school and continue acquiring academic and career-technical credits
while pursuing a GED diploma. The GED Option would be blended with
the West Virginia virtual schools or a career-technical education
pathway. Upon completion, rather than being a dropout, the student
would have a GED diploma and a certification in the chosen career-
technical or virtual school pathway;
(26) The Mountaineer Challenge Academy is a positive option
for students at risk of dropping out of school, as it provides
students with structure, stability, and a focus on positive change,
all in an environment where negative influences and distractions can be left behind;
(27) Students attending the Mountaineer Challenge Academy
would greatly benefit if the GED Option were implemented at the
Academy;
(28) The Health Sciences and Technology Academy (HSTA) program
prepares rural, minority and economically disadvantaged students
for college and careers in the health sciences, and demonstrates
tremendous success in its high percentage of students who graduate
from high school and participate in post-secondary education.
(29) The West Virginia GEAR UP (Gaining Early Awareness and
Readiness for Undergraduate Programs) program is aimed at
increasing the academic performance and rigorous preparation of
students, increasing the number of high-poverty, at-risk students
who are prepared to enter and succeed in post-secondary education,
and increasing the high school graduation rate;
(30) The GEAR UP program successfully aids students in
planning, applying and paying for education and training beyond
high school;
(31) Each dropout involved in drugs or crime or dependent on
public assistance creates a huge fiscal burden on society;
(32) The intense treatment and individual monitoring provided
through the state's juvenile drug courts have proven to be highly
effective in treating drug addictions, and rehabilitating drug
addicted youth and improving their educational outcomes;
(33) Services provided by juvenile drug courts include
substance abuse treatment, intervention, assessment, juvenile and
family counseling, heavy supervision by probation officers
including school-based probation officers who provide early
intervention and diversion services, and addressing some of the
underlying reasons why students are not successful in school;
(34) School participation and attendance are required for
students participating in juvenile drug courts, and along with
academic progress are closely monitored by the courts;
(35) Juvenile drug courts are an important strategy to improve
substance abuse treatment outcomes, and serve to save the state
significant cost on incarceration of the juveniles, along with the
future costs to society of individuals who remain substance
abusers;
(36) Juvenile drug courts produce greater cost benefits than
other strategies that address criminal activity related to
substance abuse and addiction that bring individuals into the
criminal justice system;
(37) Funding for the increased number of students enrolled in
school during the 2010-2011 school year due to the compulsory
school attendance age increase established by this act will not be
reflected in the state aid formula allocation until the 2011-2012
school year, which will require additional funds to be provided to
county boards for the 2010-2011 school year to accommodate the increased enrollment;
(38) The state will benefit both fiscally and through improved
quality of life if scarce state resources are targeted toward
programs that result in providing a competitive advantage as adults
for those students who are at risk of dropping out of school;
(39) Funds invested toward education and ensuring that
students complete high school pay tremendous dividends through the
moneys saved on incarceration, unemployment and underemployment as
those students reach adulthood; and
(40) Increasing the compulsory school attendance age will have
little effect in aiding students to complete high school if
additional resources, both fiscal and programmatic, are not
dedicated to supporting student achievement, providing real-life
relevancy in curriculum, and engaging students in learning,
particularly for those students who have become so disengaged from
school and learning that they are at risk of dropping out of
school.
(c) The Legislature intends as follows:
(1) The state will continue to explore diverse instructional
delivery strategies to accommodate various learning styles and will
focus on a state-wide dropout intervention and prevention program
to provide support for students having academic difficulty;
(2) A general credit recovery program shall be implemented
statewide, including delivery through West Virginia virtual schools;
(3) The state board will continue to improve the way career-
technical education is offered, including expansion of the
Techademics program;
(4) Up to five additional juvenile drug courts shall be
established by January 1, 2012;
(5) The state will invest additional state funds and other
resources in strategies and programs that engage disconnected and
discouraged students in a positive learning environment as a
critical first step to ensuring that students persist and graduate;
and
(6) County boards will develop plans to demonstrate how they
will use available funds to implement the intent of this section.
(d) Each county board shall include in its alternative
education program plan required by section six, article two, of
this chapter a plan to improve student retention and increase the
graduation rate in the county. The plan is subject to approval of
the state board, and shall include strategies the county board will
implement to achieve the following goals:
(1) Increasing the graduation rate for the county;
(2) Identifying at the earliest age possible those students
who are at risk of dropping out of school prior to graduation; and
(3) Providing additional options for delivering to at-risk
students academic credentials and career-technical training if appropriate or desired by the student. The options may include
such programs as Techademics, Earn a Degree-Graduate Early (EDGE),
Health Sciences and Technology Academy (HSTA), Gaining Early
Awareness and Readiness for Undergraduate Programs (GEAR UP),
truancy diversion, early intervention, dropout prevention,
prevention resource officers, GED option, credit recovery,
alternative learning environments, or any other program or strategy
approved by the state board.
(e) As soon as is practicable the state superintendent or his
or her designee shall pursue designation of West Virginia as a "GED
Option" state by the American Council on Education. If so
designated, the state board shall:
(1) Develop and implement a program whereby a student may
pursue a GED diploma while remaining enrolled in high school; and
(2) Ensure that the GED Option is offered to students
attending the Mountaineer Challenge Academy.
(f) The state board shall continue to expand:
(1) The Techademics program to include each major academic
subject and increase the academic credit available through the
program to students; and
(2) The Health Sciences and Technology Academy to ensure that
the program is available for any school containing any of the grade
levels of eligible students.
(g) The state board shall ensure that the dropout information required by section twenty-four, article one-b, chapter fifteen of
this code is provided annually to the Mountaineer Challenge
Academy.
(h) Some career and technical education programs only except
students in certain upper high school grade levels due to lack of
capacity to accept the students in the lower high school grade
levels. This can be detrimental to efforts to keep students
identified as at risk of dropping out of school prior to graduation
in school. Therefore, those career and technical education
programs that only students in certain upper high school grade
levels to enroll may make exceptions for those at risk students and
enroll any of those at risk students who are in grades nine and
above.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-21. Funding for alternative education programs.
(a) An appropriation may be made to the state department to be
distributed to county boards for the operation of alternative
education and prevention programs established in accordance with
policies and procedures adopted by the state board under section
six, article two of this chapter. The appropriation shall be an
amount equal to twelve eighteen dollars per student in net
enrollment, subject to appropriation by the Legislature. The state
board shall distribute ninety-seven ninety-eight percent of the
total appropriation to the county boards proportionate to each county's net enrollment. The remaining three two percent of the
appropriation shall be retained by the state department to support
the provision of services to the county boards in administering
programs established in accordance with policies and procedures
adopted by the state board under section six, article two of this
chapter. Provided, That
(b) Nothing in this section shall may be construed to require
any specific level of funding by the Legislature.
(c) The increase from $12 per student in net enrollment to $18
per student in net enrollment pursuant to the amendment and
enactment of this section during the 2010 regular session of the
Legislature is not subject to the provisions of section three-a.
ARTICLE 15. DRUG OFFENDER ACCOUNTABILITY AND TREATMENT ACT.
§62-15-4. Court authorization and structure.
(a) Each judicial circuit or two or more adjoining judicial
circuits may establish a drug court or regional drug court program
under which drug offenders will be processed to address
appropriately, the identified substance abuse problem as a
condition of pretrial release, probation, incarceration, parole or
other release from a correctional facility.
(b) The structure, method, and operation of each drug court
program may differ and should be based upon the specific needs of
and resources available to the judicial circuit or circuits where
the drug court program is located.
(c) A drug court program may be preadjudication or post-
adjudication for an adult offender.
(d) Participation in drug court, with the consent of the
prosecution and the court, shall be pursuant to a written
agreement.
(e) A drug court may grant reasonable incentives under the
written agreement if it finds that the drug offender:
(1) Is performing satisfactorily in drug court;
(2) Is benefitting from education, treatment and
rehabilitation;
(3) Has not engaged in criminal conduct; or
(4) Has not violated the terms and conditions of the
agreement.
(f) A drug court may impose reasonable sanctions on the drug
offender, including incarceration for the underlying offense or
expulsion from the program, pursuant to the written agreement, if
it finds that the drug offender:
(1) Is not performing satisfactorily in drug court;
(2) Is not benefitting from education, treatment or
rehabilitation;
(3) Has engaged in conduct rendering him or her unsuitable for
the program;
(4) Has otherwise violated the terms and conditions of the
agreement; or
(5) Is for any reason unable to participate.
(g) Upon successful completion of drug court, a drug
offender's case shall be disposed of by the judge in the manner
prescribed by the agreement and by the applicable policies and
procedures adopted by the drug court. This may include, but is not
limited to, withholding criminal charges, dismissal of charges,
probation, deferred sentencing, suspended sentencing, split
sentencing, or a reduced period of incarceration.
(h) Drug court shall include the Ten Key Components and the
drug court team shall act to ensure compliance with them.
(i) Nothing contained in this article shall confer confers a
right or an expectation of a right to participate in a drug court
nor does it obligate a drug court to accept every drug offender.
(j) Neither the establishment of a drug court nor anything
herein shall may be construed as limiting the discretion of the
jurisdiction's prosecutor to act on any criminal case which he or
she deems advisable to prosecute.
(k) Each drug court judge may establish rules and may make
special orders as necessary that do not conflict with rules and
orders promulgated by the Supreme Court of Appeals which has
administrative authority over the courts. The Supreme Court of
Appeals shall provide uniform referral, procedure and order forms
that shall be used in all drug courts in this state.
(l) In addition to the number of juvenile drug courts operating on the effective date of this section, up to five
additional juvenile drug courts or regional juvenile drug court
programs may be established by January 1, 2012, as determined by
the Supreme Court of Appeals.
The bill (Eng. H. B. No. 4593), as amended, was then ordered
to third 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.
Having been engrossed, the bill (Eng. H. B. No. 4593) 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 present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4593) passed.
At the request of Senator Plymale, as chair of the Committee
on Education, and by unanimous consent, the unreported Education
committee amendment to the title of the bill was withdrawn.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 4593--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §18-8-6; to amend and reenact §18-8-1 and §18-8-4 of
said code; to amend and reenact §18-9A-21 of said code; and to
amend and reenact §62-15-4 of said code, all relating to improving
student participation, success and high school graduation rates;
reducing the number of days of unexcused absences at which
proceedings to enforce attendance begin; establishing the "High
School Graduation Improvement Act"; establishing legislative
findings and intent; requiring county board of education plan for
improving student retention and increasing graduation rate;
requiring state board of education to develop, expand and assist
certain programs; explicitly allowing career and technical education programs only accepting students in certain upper high
school grades to make exceptions for certain at risk students who
are in grade nine and above; increasing funding for alternative
education programs; and authorizing establishment of additional
juvenile drug courts.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 5 p.m.
today.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, and by unanimous consent, returned
to the second order of business and the introduction of guests.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had returned to the
Senate calendar on third reading, Engrossed Committee Substitute
for House Bill No. 4652.
The Senate again proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 4652, Establishing a school
calendar committee for each county.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for
House Bill No. 4652 pass?"
On the passage of the bill, the yeas were: Bowman, Browning,
Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo,
Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White,
Williams, Yost and Tomblin (Mr. President)--27.
The nays were: Barnes, Boley, Caruth, Guills, Hall, Oliverio
and Sypolt--7.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4652) passed.
On motions of Senators Wells, Plymale and Edgell, the
following amendment to the title of the bill was reported by the
Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4652--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §18-5-45a, relating to school calendars;
requiring each county superintendent to create a county school
calendar committee; providing for designation and election of
members; requiring the committee to develop multiple school
calendar options for presentation to all employees for vote; requiring the generation of new calendar options if the county
board or state board rejects the selected calendar; requiring the
process to continue until a school calendar is approved by the
county board and state board; requiring county board approval of
school calendar prior to June 1 of each year; and establishing
process for school districts served by a multi-county career and
technical education center.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Bowman, Browning, Chafin,
Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green,
Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost
and Tomblin (Mr. President)--27.
The nays were: Barnes, Boley, Caruth, Guills, Hall, Oliverio
and Sypolt--7.
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. 4652) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Sypolt, and by unanimous
consent, the remarks by Senator Barnes regarding the passage of
Engrossed Committee Substitute for House Bill No. 4652 were ordered printed in the Appendix to the Journal.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 4281, Replacing references
to "mental retardation" with "intellectual disability".
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §27-1A-12 of the Code of West Virginia, 1931, as amended,
be repealed; that §27-2-1a and §27-2-1b of said code be repealed;
that §9-4C-1 and §9-4C-5 of said code be amended and reenacted;
that §9-5-11c of said code be amended and reenacted; that §11-27-10
and §11-27-11 of said code be amended and reenacted; that §16-1-4
of said code be amended and reenacted; that §16-2D-2 and §16-2D-5
of said code be amended and reenacted; that §16-5F-2 of said code
be emended and reenacted; that §16-5O-2 of said code be amended and
reenacted; that §16-22-1 and §16-22-2 of said code be amended and
reenacted; that §16-29A-3 of said code be amended and reenacted;
that §16-30-7 and §16-30-24 of said code be amended and reenacted;
that §27-1-3, §27-1-6, §27-1-7 and §27-1-9 of said code be amended
and reenacted; that §27-1A-1, §27-1A-4 and §27-1A-6 of said code be
amended and reenacted; that §27-2-1 of said code be amended and reenacted; that §27-2A-1 of said code be amended and reenacted;
that §27-5-9 of said code be amended and reenacted; that §27-9-1 of
said code be amended and reenacted; that §27-12-1 of said code be
amended and reenacted; that §29-15-1, §29-15-5 and §29-15-6 of said
code be amended and reenacted; that §44A-1-1 and §44A-1-2 of said
code be amended and reenacted; and that §49-4A-6 be amended and
reenacted, all to read as follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 4C. HEALTH CARE PROVIDER MEDICAID ENHANCEMENT ACT.
§9-4C-1. Definitions.
The following words when used in this article have the
meanings ascribed to them in this section, except in those
instances where the context clearly indicates a different meaning:
(a) "Ambulance service provider" means a person rendering
ambulance services within this state and receiving reimbursement,
directly as an individual provider or indirectly as an employee or
agent of a medical clinic, partnership or other business entity.
(b) "General health care provider" means an audiologist, a
behavioral health center, a chiropractor, a community care center,
an independent laboratory, an independent X ray service, an
occupational therapist, an optician, an optometrist, a physical
therapist, a podiatrist, a private duty nurse, a psychologist, a
rehabilitative specialist, a respiratory therapist and a speech
therapist rendering services within this state and receiving reimbursement, directly as an individual provider or indirectly as
an employee or agent of a medical clinic, partnership or other
business entity.
(c) "Inpatient hospital services provider" means a provider of
inpatient hospital services for purposes of Section 1903(w) of the
Social Security Act.
(d) "Intermediate care facility for
the mentally retarded
individuals with an intellectual disability services provider"
means a provider of intermediate care facility services for
the
mentally retarded individuals with an intellectual disability for
purposes of Section 1903(w) of the Social Security Act.
(e) "Nursing facility services provider" means a provider of
nursing facility services for purposes of Section 1903(w) of the
Social Security Act.
(f) "Outpatient hospital service provider" means a hospital
providing preventative, diagnostic, therapeutic, rehabilitative or
palliative services that are furnished to outpatients.
(g) "Secretary" means the Secretary of the Department of
Health and Human Resources.
(h) "Single state agency" means the single state agency for
Medicaid in this state.
§9-4C-5. Facility providers' medicaid enhancement board.
(a) The outpatient hospital medicaid enhancement board created
by this section shall cease to exist on the effective date of this article.
(b) There is hereby continued the facility providers' medicaid
enhancement board to consist of seven members. In order to carry
out the purpose of this article, the board shall represent
ambulatory surgical centers, inpatient hospital service providers,
outpatient hospital service providers, nursing facility service
providers and intermediate care facility for
the mentally retarded
individuals with an intellectual disability service providers.
(c) The board shall consist of one representative from each of
the aforementioned classes of health care providers, one lay person
and the secretary, or his or her designee, who shall serve as an ex
officio, nonvoting member. The governor shall make all
appointments within thirty days after the effective date of this
article.
(d) After initial appointment of the board, any appointment to
fill a vacancy shall be for the unexpired term only, shall be made
in the same manner as the initial appointment, and the terms of all
members shall expire on the first day of July, one thousand nine
hundred ninety-six.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-11c. Right of the Department of Health and Human Resources to
recover medical assistance.
(a) Upon the death of a person who was fifty-five years of age
or older at the time the person received welfare assistance consisting of nursing facility services, home and community-based
services, and related hospital and prescription drug services, the
Department of Health and Human Resources, in addition to any other
available remedy, may file a claim or lien against the estate of
the recipient for the total amount of medical assistance provided
by Medicaid for nursing facility services, home and community-based
services, and related hospital and prescription drug services
provided for the benefit of the recipient. Claims so filed shall
be classified as and included in the class of debts due the state.
(b) The department may recover pursuant to subsection (a) only
after the death of the individual's surviving spouse, if any and
only after such time as the individual has no surviving children
under the age of twenty-one, or when the individual has no
surviving children who meet the Social Security Act's definition of
blindness or permanent and total disability.
(c) The state shall have the right to place a lien upon the
property of individuals who are inpatients in a nursing facility,
intermediate care facility for
the mentally retarded individuals
with an intellectual disability, or other medical institution who,
after notice and an opportunity for a hearing, the state has deemed
to be permanently institutionalized. This lien shall be in an
amount equal to Medicaid expenditures for services provided by a
nursing facility, intermediate care facility for
the mentally
retarded individuals with an intellectual disability or other medical institution, and shall be rendered against the proceeds of
the sale of property except for a minimal amount reserved for the
individual's personal needs. Any such lien
shall dissolve
dissolves upon that individual's discharge from the medical
institution. The secretary has authority to compromise or
otherwise reduce the amount of this lien in cases where enforcement
would create a hardship.
(d) No lien may be imposed on such individual's home when the
home is the lawful residence of: (1) The spouse of the individual;
(2) The individual's child who is under the age of twenty-one; (3)
The individual's child meets the Social Security Act's definition
of blindness or permanent and total disability; or (4) The
individual's sibling has an equity interest in the home and was
residing in the home for a period of at least one year immediately
before the date of the individual's admission to a medical
institution.
(e) The filing of a claim, pursuant to this section,
shall
neither
reduce nor diminish reduces or diminishes the general
claims of the Department of Health and Human Resources, except that
such the department
shall may not receive double recovery for the
same expenditure. The death of the recipient
shall neither
extinguish nor diminish extinguishes or diminishes any right of
such the department to recover. Nothing in this section affects or
prevents a proceeding to enforce a lien pursuant to this section or a proceeding to set aside a fraudulent conveyance.
(f) Any claim or lien imposed pursuant to this section is
effective for the full amount of medical assistance provided by
Medicaid for nursing facility services, home and community-based
services, and related hospital and prescription drug services.
Said The lien attaches and is perfected automatically as of the
beginning date of medical assistance, the date when a recipient
first receives treatment for which the Department of Health and
Human Resources may be obligated to provide medical assistance. A
claim may be waived by
such the department, if
such the department
determines, pursuant to applicable federal law and rules and
regulations, that the claim will cause substantial hardship to the
surviving dependents of the deceased.
(g) Upon the effective date of this section, the Attorney
General, on behalf of the State of West Virginia, shall commence an
action in a court of competent jurisdiction to test the validity,
constitutionality, and the ability of the Congress of the United
States to mandate the implementation of this section. This
subsection does not limit the right of others, including
recipients, to intervene in any litigation, nor does it limit the
discretion of the Attorney General or appropriate counsel to seek
affected persons to act as parties to the litigation, either
individually or as a class.
ARTICLE 6. SOCIAL SERVICES FOR ADULTS.
§9-6-1. Definitions.
The following words and terms, when used in this article,
shall have the same meaning hereinafter ascribed to them unless the
context clearly indicates a different meaning:
(1) "Adult protective services agency" means any public or
nonprofit private agency, corporation, board or organization
furnishing protective services to adults;
(2) "Abuse" means the infliction or threat to inflict physical
pain or injury on or the imprisonment of any incapacitated adult or
facility resident;
(3) "Neglect" means: (A) The failure to provide the
necessities of life to an incapacitated adult or facility resident
with intent to coerce or physically harm the incapacitated adult or
resident; and (B) the unlawful expenditure or willful dissipation
of the funds or other assets owned or paid to or for the benefit of
an incapacitated adult or resident;
(4) "Incapacitated adult" means any person who by reason of
physical, mental or other infirmity is unable to independently
carry on the daily activities of life necessary to sustaining life
and reasonable health;
(5) "Emergency" or "emergency situation" means a situation or
set of circumstances which presents a substantial and immediate
risk of death or serious injury to an incapacitated adult;
(6) "Legal representative" means a person lawfully invested with the power and charged with the duty of taking care of another
person or with managing the property and rights of another person,
including, but not limited to, a guardian, conservator, medical
power of attorney representative, trustee or other duly appointed
person;
(7) "Nursing home" or "facility" means any institution,
residence, intermediate care facility for
the mentally retarded
individuals with an intellectual disability, care home or any other
adult residential facility, or any part or unit thereof, that is
subject to the provisions of articles five-c, five-d, five-e or
five-h, chapter sixteen of this code;
(8) "Regional long-term care ombudsman" means any paid staff
of a designated regional long-term care ombudsman program who has
obtained appropriate certification from the Bureau for Senior
Services and meets the qualifications set forth in section seven,
article five-l, chapter sixteen of this code;
(9) "Facility resident" means an individual living in a
nursing home or other facility, as that term is defined in
subdivision (7) of this section;
(10) "Responsible family member" means a member of a
resident's family who has undertaken primary responsibility for the
care of the resident and who has established a working relationship
with the nursing home or other facility in which the resident
resides. For purposes of this article, a responsible family member may include someone other than the resident's legal representative;
(11) "State long-term care ombudsman" means an individual who
meets the qualifications of section five, article five-l, chapter
sixteen of this code and who is employed by the State Bureau for
Senior Services to implement the state long-term care ombudsman
program;
(12) "Secretary" means the Secretary of the Department of
Health and Human Resources.
CHAPTER 11. TAXATION.
ARTICLE 27. HEALTH CARE PROVIDER TAXES.
§11-27-10. Imposition of tax on providers of intermediate care
facility services for individuals with an
intellectual disability.
(a)
Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of providing
intermediate care facility services for
the mentally retarded
individuals with an intellectual disability, there is
hereby levied
and shall be collected from every person rendering such service an
annual broad-based health care related tax.
(b)
Rate and measure of tax. -- The tax imposed in subsection
(a) of this section
shall be is five and one-half percent of the
gross receipts derived by the taxpayer from furnishing intermediate
care facility services in this state to
the mentally retarded
individuals with an intellectual disability.
(c)
Definitions. --
(1) "Gross receipts" means the amount received or receivable,
whether in cash or in kind, from patients, third-party payors and
others for intermediate care facility services furnished by the
provider, including retroactive adjustments under reimbursement
agreements with third-party payors, without any deduction for any
expenses of any kind:
Provided, That accrual basis providers
shall
be are allowed to reduce gross receipts by their contractual
allowances, to the extent
such those allowances are included
therein, and by bad debts, to the extent the amount of
such those
bad debts was previously included in gross receipts upon which the
tax imposed by this section was paid.
(2) "Contractual allowances" means the difference between
revenue (gross receipts) at established rates and amounts
realizable from third-party payors under contractual agreements.
(3) "Intermediate care facility services for
the mentally
retarded individuals with an intellectual disability" means those
services that are intermediate care facility services for
the
mentally retarded individuals with an intellectual disability for
purposes of Section 1903(w) of the Social Security Act.
(d)
Effective date. -- The tax imposed by this section
shall
apply applies to gross receipts received or receivable by providers
after May 31, 1993.
§11-27-11. Imposition of tax on providers of nursing facility services, other than services of intermediate care
facilities for individuals with an intellectual
disability.
(a)
Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of providing nursing
facility services, other than those services of intermediate care
facilities for
the mentally retarded individuals with an
intellectual disability, there is
hereby levied and shall be
collected from every person rendering such service an annual
broad-based health care related tax:
Provided, That hospitals
which provide nursing facility services may adjust nursing facility
rates to the extent necessary to compensate for the tax without
first obtaining approval from the health care authority:
Provided,
however, That the rate adjustment is limited to a single adjustment
during the initial year of the imposition of the tax which
adjustment
shall be is exempt from prospective review by the health
care authority and further which is limited to an amount not to
exceed the amount of the tax which is levied against the hospital
for the provision of nursing facility services pursuant to this
section. The health care authority shall retroactively review the
rate increases implemented by the hospitals under this section
during the regular rate review process. A hospital which fails to
meet the criteria established by this section for a rate increase
exempt from prospective review
shall be is subject to the penalties imposed under article twenty-nine-b, chapter sixteen of the code.
(b)
Rate and measure of tax. -- The tax imposed in subsection
(a) of this section
shall be is five and one-half percent of the
gross receipts derived by the taxpayer from furnishing nursing
facility services in this state, other than services of
intermediate care facilities for
the mentally retarded individuals
with an intellectual disability. This rate shall be increased to
five and ninety-five one hundredths percent of the gross receipts
received or receivable by providers of nursing facility services
after June 30, 2004 and shall again be decreased to five and
one-half percent of the gross receipts received or receivable by
providers of nursing services after October 31, 2007.
(c)
Definitions. --
(1) "Gross receipts" means the amount received or receivable,
whether in cash or in kind, from patients, third-party payors and
others for nursing facility services furnished by the provider,
including retroactive adjustments under reimbursement agreements
with third-party payors, without any deduction for any expenses of
any kind:
Provided, That accrual basis providers
shall be are
allowed to reduce gross receipts by their bad debts, to the extent
the amount of
such those bad debts was previously included in gross
receipts upon which the tax imposed by this section was paid.
(2) "Nursing facility services" means those services that are
nursing facility services for purposes of Section 1903(w) of the Social Security Act.
(d)
Effective date. -- The tax imposed by this section
shall
apply applies to gross receipts received or receivable by providers
after May 31, 1993.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-4. Proposal of rules by the secretary.
The secretary may propose rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code
that are necessary and proper to effectuate the purposes of this
chapter. The secretary may appoint or designate advisory councils
of professionals in the areas of hospitals, nursing homes, barbers
and beauticians, postmortem examinations, mental health and
mental
retardation intellectual disability centers and any other areas
necessary to advise the secretary on rules.
The rules may include, but are not limited to, the regulation
of:
(a) Land usage endangering the public health:
Provided, That
no rules may be promulgated or enforced restricting the subdivision
or development of any parcel of land within which the individual
tracts, lots or parcels exceed two acres each in total surface area
and which individual tracts, lots or parcels have an average
frontage of not less than one hundred fifty feet even though the
total surface area of the tract, lot or parcel equals or exceeds two acres in total surface area, and which tracts are sold, leased
or utilized only as single-family dwelling units. Notwithstanding
the provisions of this subsection, nothing in this section may be
construed to abate the authority of the department to: (1)
Restrict the subdivision or development of a tract for any more
intense or higher density occupancy than a single-family dwelling
unit; (2) propose or enforce rules applicable to single-family
dwelling units for single-family dwelling unit sanitary sewerage
disposal systems; or (3) restrict any subdivision or development
which might endanger the public health, the sanitary condition of
streams or sources of water supply;
(b) The sanitary condition of all institutions and schools,
whether public or private, public conveyances, dairies,
slaughterhouses, workshops, factories, labor camps, all other
places open to the general public and inviting public patronage or
public assembly, or tendering to the public any item for human
consumption and places where trades or industries are conducted;
(c) Occupational and industrial health hazards, the sanitary
conditions of streams, sources of water supply, sewerage facilities
and plumbing systems and the qualifications of personnel connected
with any of those facilities, without regard to whether the
supplies or systems are publicly or privately owned; and the design
of all water systems, plumbing systems, sewerage systems, sewage
treatment plants, excreta disposal methods and swimming pools in this state, whether publicly or privately owned;
(d) Safe drinking water, including:
(1) The maximum contaminant levels to which all public water
systems must conform in order to prevent adverse effects on the
health of individuals and, if appropriate, treatment techniques
that reduce the contaminant or contaminants to a level which will
not adversely affect the health of the consumer. The rule shall
contain provisions to protect and prevent contamination of
wellheads and well fields used by public water supplies so that
contaminants do not reach a level that would adversely affect the
health of the consumer;
(2) The minimum requirements for: Sampling and testing;
system operation; public notification by a public water system on
being granted a variance or exemption or upon failure to comply
with specific requirements of this section and rules promulgated
under this section; record keeping; laboratory certification; as
well as procedures and conditions for granting variances and
exemptions to public water systems from state public water systems
rules; and
(3) The requirements covering the production and distribution
of bottled drinking water and may establish requirements governing
the taste, odor, appearance and other consumer acceptability
parameters of drinking water;
(e) Food and drug standards, including cleanliness, proscription of additives, proscription of sale and other
requirements in accordance with article seven of this chapter as
are necessary to protect the health of the citizens of this state;
(f) The training and examination requirements for emergency
medical service attendants and emergency medical care
technician-paramedics; the designation of the health care
facilities, health care services and the industries and occupations
in the state that must have emergency medical service attendants
and emergency medical care technician-paramedics employed and the
availability, communications and equipment requirements with
respect to emergency medical service attendants and to emergency
medical care technician-paramedics:
Provided, That any regulation
of emergency medical service attendants and emergency medical care
technician-paramedics may not exceed the provisions of article
four-c of this chapter;
(g) The health and sanitary conditions of establishments
commonly referred to as bed and breakfast inns. For purposes of
this article, "bed and breakfast inn" means an establishment
providing sleeping accommodations and, at a minimum, a breakfast
for a fee:
Provided, That the secretary may not require an owner
of a bed and breakfast providing sleeping accommodations of six or
fewer rooms to install a restaurant-style or commercial food
service facility:
Provided, however, That the secretary may not
require an owner of a bed and breakfast providing sleeping accommodations of more than six rooms to install a restaurant-type
or commercial food service facility if the entire bed and breakfast
inn or those rooms numbering above six are used on an aggregate of
two weeks or less per year;
(h) Fees for services provided by the Bureau for Public Health
including, but not limited to, laboratory service fees,
environmental health service fees, health facility fees and permit
fees;
(i) The collection of data on health status, the health system
and the costs of health care;
(j) Opioid treatment programs duly licensed and operating
under the requirements of chapter twenty-seven of this code. The
health care authority shall develop new certificate of need
standards, pursuant to the provisions of article two-d of this
chapter, that are specific for opioid treatment program facilities.
No applications for a certificate of need for opioid treatment
programs shall be approved by the health care authority as of the
effective date of the 2007 amendments to this subsection. The
secretary shall promulgate revised emergency rules to govern
licensed programs:
Provided, That there is a moratorium on the
licensure of new opioid treatment programs that do not have a
certificate of need as of the effective date of the 2007 amendments
to this subsection, which shall continue until the Legislature
determines that there is a necessity for additional opioid treatment facilities in West Virginia. The secretary shall file
revised emergency rules with the Secretary of State to regulate
opioid programs in compliance with subsections (1) through (9),
inclusive, of this section:
Provided, however, That any opioid
treatment program facility that has received a certificate of need
pursuant to article two-d, of this chapter by the health care
authority shall be permitted to proceed to license and operate the
facility. All existing opioid treatment programs shall be in
compliance within one hundred eighty days of the effective date of
the revised emergency rules as required herein. The revised
emergency rules shall provide at a minimum:
(1) That the initial assessment prior to admission for entry
into the opioid treatment program shall include an initial drug
test to determine whether an individual is either opioid addicted
or presently receiving methadone for an opioid addiction from
another opioid treatment program. The patient may be admitted to
the program if there is a positive test for either opioids or
methadone or there are objective symptoms of withdrawal, or both,
and all other criteria set forth in the rule for admission into an
opioid treatment program are met:
Provided, That admission to the
program may be allowed to the following groups with a high risk of
relapse without the necessity of a positive test or the presence of
objective symptoms: Pregnant women with a history of opioid abuse,
prisoners or parolees recently released from correctional facilities, former clinic patients who have successfully completed
treatment but who believe themselves to be at risk of imminent
relapse and HIV patients with a history of intravenous drug use.
(2) That within seven days of the admission of a patient, the
opioid treatment program shall complete an initial assessment and
an initial plan of care. Subsequently, the opioid treatment
program shall develop a treatment plan of care by the thirtieth day
after admission and attach to the patient's chart no later than
five days after such plan is developed. The treatment plan is to
reflect that detoxification is an option for treatment and
supported by the program.
(3) That each opioid treatment program shall report and
provide statistics to the Department of Health and Human Resources
at least semiannually which includes the total number of patients;
the number of patients who have been continually receiving
methadone treatment in excess of two years, including the total
number of months of treatment for each such patient; the state
residency of each patient; the number of patients discharged from
the program, including the total months in the treatment program
prior to discharge and whether the discharge was for:
(A) Termination or disqualification;
(B) Completion of a program of detoxification;
(C) Voluntary withdrawal prior to completion of all
requirements of detoxification as determined by the opioid treatment program; or
(D) An unexplained reason.
(4) That random drug testing of patients be conducted during
the course of treatment. For purposes of these rules, random drug
testing shall mean that each patient of an opioid treatment program
facility has a statistically equal chance of being selected for
testing at random and at unscheduled times. Any refusal to
participate in a random drug test shall be considered a positive
test:
Provided, That nothing contained in this section or the
legislative rules promulgated in conformity herewith will preclude
any opioid treatment program from administering such additional
drug tests as determined necessary by the opioid treatment program.
(5) That all random drug tests conducted by an opioid
treatment program shall, at a minimum, test for the following:
(A) Opiates, including oxycodone at common levels of dosing;
(B) Methadone and any other medication used by the program as
an intervention;
(C) Benzodiazepine including diazepam, lorazepan, clonazepam
and alprazolam;
(D) Cocaine;
(E) Methamphetamine or amphetamine; and
(F) Other drugs determined by community standards, regional
variation or clinical indication.
A positive test is a test that results in the presence of any drug or substance listed in this schedule and any other drug or
substance prohibited by the opioid treatment program;
(6) That a positive drug test result after the first six
months in an opioid treatment program shall result in the
following:
(A) Upon the first positive drug test result, the opioid
treatment program shall:
(1) Provide mandatory and documented weekly counseling to the
patient, which shall include weekly meetings with a counselor who
is licensed, certified or enrolled in the process of obtaining
licensure or certification in compliance with the rules and on
staff at the opioid treatment program;
(2) Immediately revoke the take home methadone privilege for
a minimum of thirty days; and
(B) Upon a second positive drug test result within six months
of a previous positive drug test result, the opioid treatment
program shall:
(1) Provide mandatory and documented weekly counseling, which
shall include weekly meetings with a counselor who is licensed,
certified or enrolled in the process of obtaining licensure or
certification in compliance with the rules and on staff at the
opioid treatment program;
(2) Immediately revoke the take-home methadone privilege for
a minimum of sixty days; and
(3) Provide mandatory documented treatment team meetings with
the patient.
(C) Upon a third positive drug test result within a period of
six months the opioid treatment program shall:
(1) Provide mandatory and documented weekly counseling, which
shall include weekly meetings with a counselor who is licensed,
certified or enrolled in the process of obtaining licensure or
certification in compliance with the rules and on staff at the
opioid treatment program;
(2) Immediately revoke the take-home methadone privilege for
a minimum of one hundred twenty days; and
(3) Provide mandatory and documented treatment team meetings
with the patient which will include, at a minimum: The need for
continuing treatment; a discussion of other treatment alternatives;
and the execution of a contract with the patient advising the
patient of discharge for continued positive drug tests.
(D) Upon a fourth positive drug test within a six-month
period, the patient shall be immediately discharged from the opioid
treatment program or, at the option of the patient, shall
immediately be provided the opportunity to participate in a
twenty-one day detoxification plan, followed by immediate discharge
from the opioid treatment program.
(7) That the opioid treatment program must report and provide
statistics to the Department of Health and Human Resources demonstrating compliance with the random drug test rules including
confirmation that:
(A) The random drug tests were truly random in regard to both
the patients tested and to the times random drug tests were
administered by lottery or some other objective standard so as not
to prejudice or protect any particular patient.
(B) The total number and the number of positive results; and
(C) The number of expulsions from the program.
(8) That all opioid treatment facilities be open for business
seven days per week:
Provided, That the opioid treatment center
may be closed for eight holidays and two training days per year.
(9) That the Office of Health Facility Licensure and
Certification develop policies and procedures in conjunction with
the Board of Pharmacy that will allow access to the Prescription
Drug Registry maintained by the Board of Pharmacy before
administration of methadone or other treatment in an opioid
treatment program, after any positive drug test, and at each
ninety-day treatment review to ensure the patient is not seeking
prescription medication from multiple sources.
(k) The secretary shall propose a rule for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a
or of this code for the distribution of state
aid to local health departments and basic public health services
funds.
(1) The rule shall include the following provisions:
(A) Base allocation amount for each county;
(B) Establishment and administration of an emergency fund of
no more than two percent of the total annual funds of which unused
amounts are to be distributed back to local boards of health at the
end of each fiscal year;
(C) A calculation of funds utilized for state support of local
health departments;
(D) Distribution of remaining funds on a per capita weighted
population approach which factors coefficients for poverty, health
status, population density and health department interventions for
each county and a coefficient which encourages counties to merge in
the provision of public health services;
(E) A hold-harmless provision to provide that each local
health department receives no less in state support for a period of
three years beginning in the 2009 budget year.
(2) The Legislature finds that an emergency exists and,
therefore, the secretary shall file an emergency rule to implement
the provisions of this section pursuant to the provisions of
section fifteen, article three, chapter twenty-nine-a of this code.
The emergency rule is subject to the prior approval of the
Legislative Oversight Commission on Health and Human Resources
Accountability prior to filing with the Secretary of State.
(l) Other health-related matters which the department is authorized to supervise and for which the rule-making authority has
not been otherwise assigned.
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-2. Definitions.
Definitions of words and terms defined in articles five-f and
twenty-nine-b of this chapter are incorporated in this section
unless this section has different definitions.
As used in this article, unless otherwise indicated by the
context:
(a) "Affected person" means:
(1) The applicant;
(2) An agency or organization representing consumers;
(3) Any individual residing within the geographic area served
or to be served by the applicant;
(4) Any individual who regularly uses the health care
facilities within that geographic area;
(5) The health care facilities which provide services similar
to the services of the facility under review and which will be
significantly affected by the proposed project;
(6) The health care facilities which,
prior to before receipt
by the state agency of the proposal being reviewed, have formally
indicated an intention to provide similar services in the future;
(7) Third-party payors who reimburse health care facilities
similar to those proposed for services;
(8) Any agency that establishes rates for health care
facilities similar to those proposed; or
(9) Organizations representing health care providers.
(b) "Ambulatory health care facility" means a free-standing
facility that provides health care to noninstitutionalized and
nonhomebound persons on an outpatient basis. For purposes of this
definition, a free-standing facility is not located on the campus
of an existing health care facility. This definition does not
include any facility engaged solely in the provision of lithotripsy
services or the private office practice of any one or more health
professionals licensed to practice in this state pursuant to the
provisions of chapter thirty of this code:
Provided, That this
exemption from review
shall may not be construed to include
practices where major medical equipment otherwise subject to review
under the provisions of this article is acquired, offered or
developed:
Provided, however, That this exemption from review
shall may not be construed to include certain health services
otherwise subject to review under the provisions of subdivision
(1), subsection (a), section four of this article.
(c) "Ambulatory surgical facility" means a free-standing
facility that provides surgical treatment to patients not requiring
hospitalization. For purposes of this definition, a free-standing
facility is not physically attached to a health care facility.
This definition does not include the private office practice of any one or more health professionals licensed to practice surgery in
this state pursuant to the provisions of chapter thirty of this
code:
Provided, That this exemption from review
shall may not be
construed to include practices where major medical equipment
otherwise subject to review under the provisions of this article is
acquired, offered or developed:
Provided, however, That this
exemption from review
shall may not be construed to include health
services otherwise subject to review under the provisions of
subdivision (1), subsection (a), section four of this article.
(d) "Applicant" means: (1) The governing body or the person
proposing a new institutional health service who is, or will be,
the health care facility licensee wherein the new institutional
health service is proposed to be located; and (2) in the case of a
proposed new institutional health service not to be located in a
licensed health care facility, the governing body or the person
proposing to provide the new institutional health service.
Incorporators or promoters who will not constitute the governing
body or persons responsible for the new institutional health
service may not be an applicant.
(e) "Bed capacity" means the number of beds licensed to a
health care facility or the number of adult and pediatric beds
permanently staffed and maintained for immediate use by inpatients
in patient rooms or wards in an unlicensed facility.
(f) "Campus" means the adjacent grounds and buildings, or grounds and buildings not separated by more than a public
right-of-way, of a health care facility.
(g) "Capital expenditure" means:
(1) An expenditure made by or on behalf of a health care
facility, which:
(A) (i) Under generally accepted accounting principles is not
properly chargeable as an expense of operation and maintenance; or
(ii) is made to obtain either by lease or comparable arrangement
any facility or part thereof or any equipment for a facility or
part; and
(B) (i) Exceeds the expenditure minimum; or (ii) is a
substantial change to the bed capacity of the facility with respect
to which the expenditure is made; or (iii) is a substantial change
to the services of such facility;
(2) The donation of equipment or facilities to a health care
facility, which if acquired directly by that facility would be
subject to review;
(3) The transfer of equipment or facilities for less than fair
market value if the transfer of the equipment or facilities at fair
market value would be subject to review; or
(4) A series of expenditures, if the sum total exceeds the
expenditure minimum and if determined by the state agency to be a
single capital expenditure subject to review. In making this
determination, the state agency shall consider: Whether the expenditures are for components of a system which is required to
accomplish a single purpose; whether the expenditures are to be
made over a two-year period and are directed towards the
accomplishment of a single goal within the health care facility's
long-range plan; or whether the expenditures are to be made within
a two-year period within a single department such that they will
constitute a significant modernization of the department.
(h) "Expenditure minimum" means $2,700,000 for the calendar
year 2009. The state agency shall adjust the expenditure minimum
annually and publish an update of the amount on or before December
31 of each year. The expenditure minimum adjustment shall be based
on the DRI inflation index published in the
Global Insight DRI/WEFA
Health Care Cost Review, or its successor or appropriate
replacement index. This amount shall include the cost of any
studies, surveys, designs, plans, working drawings, specifications
and other activities, including staff effort and consulting and
other services essential to the acquisition, improvement, expansion
or replacement of any plant or equipment.
(i) "Health", used as a term, includes physical and mental
health.
(j) "Health care facility" means a publicly or privately owned
facility, agency or entity that offers or provides health care
services, whether a for-profit or nonprofit entity and whether or
not licensed, or required to be licensed, in whole or in part, and includes, but is not limited to, hospitals; skilled nursing
facilities; kidney disease treatment centers, including
free-standing hemodialysis units; intermediate care facilities;
ambulatory health care facilities; ambulatory surgical facilities;
home health agencies; hospice agencies; rehabilitation facilities;
health maintenance organizations; and community mental health and
mental retardation intellectual disability facilities. For
purposes of this definition, "community mental health and
mental
retardation intellectual disability facility" means a private
facility which provides such comprehensive services and continuity
of care as emergency, outpatient, partial hospitalization,
inpatient or consultation and education for individuals with mental
illness,
mental retardation intellectual disability or drug or
alcohol addiction.
(k) "Health care provider" means a person, partnership,
corporation, facility, hospital or institution licensed or
certified or authorized by law to provide professional health care
service in this state to an individual during that individual's
medical, remedial or behavioral health care, treatment or
confinement.
(l) "Health maintenance organization" means a public or
private organization which:
(1) Is required to have a certificate of authority to operate
in this state pursuant to section three, article twenty-five-a, chapter thirty-three of this code; or
(2) (A) Provides or otherwise makes available to enrolled
participants health care services, including substantially the
following basic health care services: Usual physician services,
hospitalization, laboratory, X ray, emergency and preventive
services and out-of-area coverage;
(B) Is compensated except for copayments for the provision of
the basic health care services listed in paragraph (A) of this
subdivision to enrolled participants on a predetermined periodic
rate basis without regard to the date the health care services are
provided and which is fixed without regard to the frequency, extent
or kind of health service actually provided; and
(C) Provides physicians' services: (i) Directly through
physicians who are either employees or partners of the
organization; or (ii) through arrangements with individual
physicians or one or more groups of physicians organized on a group
practice or individual practice basis.
(m) "Health services" means clinically related preventive,
diagnostic, treatment or rehabilitative services, including
alcohol, drug abuse and mental health services.
(n) "Home health agency" means an organization primarily
engaged in providing professional nursing services either directly
or through contract arrangements and at least one of the following
services: Home health aide services, other therapeutic services, physical therapy, speech therapy, occupational therapy, nutritional
services or medical social services to persons in their place of
residence on a part-time or intermittent basis.
(o) "Hospice agency" means a private or public agency or
organization licensed in West Virginia for the administration or
provision of hospice care services to terminally ill persons in the
persons' temporary or permanent residences by using an
interdisciplinary team, including, at a minimum, persons qualified
to perform nursing services; social work services; the general
practice of medicine or osteopathy; and pastoral or spiritual
counseling.
(p) "Hospital" means a facility licensed as such pursuant to
the provisions of article five-b of this chapter, and any acute
care facility operated by the state government, that primarily
provides inpatient diagnostic, treatment or rehabilitative services
to injured, disabled or sick persons under the supervision of
physicians and includes psychiatric and tuberculosis hospitals.
(q) "Intermediate care facility" means an institution that
provides health-related services to individuals with mental or
physical conditions that require services above the level of room
and board, but do not require the degree of services provided in a
hospital or skilled-nursing facility.
(r) "Long-range plan" means a document formally adopted by the
legally constituted governing body of an existing health care facility or by a person proposing a new institutional health
service which contains the information required by the state agency
in rules adopted pursuant to section eight of this article.
(s) "Major medical equipment" means a single unit of medical
equipment or a single system of components with related functions
which is used for the provision of medical and other health
services and costs in excess of $2,700,000 in the calendar year
2009. The state agency shall adjust the dollar amount specified in
this subsection annually and publish an update of the amount on or
before December 31 of each year. The adjustment of the dollar
amount shall be based on the DRI inflation index published in the
Global Insight DRI/WEFA Health Care Cost Review or its successor or
appropriate replacement index. This term does not include medical
equipment acquired by or on behalf of a clinical laboratory to
provide clinical laboratory services if the clinical laboratory is
independent of a physician's office and a hospital and it has been
determined under Title XVIII of the Social Security Act to meet the
requirements of paragraphs ten and eleven, Section 1861(s) of such
act, Title 42 U.S.C. §1395x. In determining whether medical
equipment is major medical equipment, the cost of studies, surveys,
designs, plans, working drawings, specifications and other
activities essential to the acquisition of such equipment shall be
included. If the equipment is acquired for less than fair market
value, the term "cost" includes the fair market value.
(t) "Medically underserved population" means the population of
an area designated by the state agency as having a shortage of
personal health services. The state agency may consider unusual
local conditions that are a barrier to accessibility or
availability of health services. The designation shall be in rules
adopted by the state agency pursuant to section eight of this
article, and the population so designated may include the state's
medically underserved population designated by the federal
Secretary of Health and Human Services under Section 330(b)(3) of
the Public Health Service Act, as amended, Title 42 U.S.C. §254.
(u) "New institutional health service" means any service as
described in section three of this article.
(v) "Nonhealth-related project" means a capital expenditure
for the benefit of patients, visitors, staff or employees of a
health care facility and not directly related to preventive,
diagnostic, treatment or rehabilitative services offered by the
health care facility. This includes, but is not limited to,
chapels, gift shops, news stands, computer and information
technology systems, educational, conference and meeting facilities,
but excluding medical school facilities, student housing, dining
areas, administration and volunteer offices, modernization of
structural components, boiler repair or replacement, vehicle
maintenance and storage facilities, parking facilities, mechanical
systems for heating, ventilation systems, air conditioning systems and loading docks.
(w) "Offer", when used in connection with health services,
means that the health care facility or health maintenance
organization holds itself out as capable of providing, or as having
the means to provide, specified health services.
(x) "Person" means an individual, trust, estate, partnership,
committee, corporation, association and other organizations such as
joint-stock companies and insurance companies, a state or a
political subdivision or instrumentality thereof or any legal
entity recognized by the state.
(y) "Physician" means a doctor of medicine or osteopathy
legally authorized to practice by the state.
(z) "Proposed new institutional health service" means any
service as described in section three of this article.
(aa) "Psychiatric hospital" means an institution that
primarily provides to inpatients, by or under the supervision of a
physician, specialized services for the diagnosis, treatment and
rehabilitation of mentally ill and emotionally disturbed persons.
(bb) "Rehabilitation facility" means an inpatient facility
operated for the primary purpose of assisting in the rehabilitation
of disabled persons through an integrated program of medical and
other services which are provided under competent professional
supervision.
(cc) "Review agency" means an agency of the state, designated by the Governor as the agency for the review of state agency
decisions.
(dd) "Skilled nursing facility" means an institution, or a
distinct part of an institution, that primarily provides inpatient
skilled nursing care and related services, or rehabilitation
services, to injured, disabled or sick persons.
(ee) "State agency" means the Health Care Authority created,
established and continued pursuant to article twenty-nine-b of this
chapter.
(ff) "State health plan" means the document approved by the
Governor after preparation by the former statewide health
coordinating council or that document as approved by the Governor
after amendment by the former health care planning council or the
state agency.
(gg) "Substantial change to the bed capacity" of a health care
facility means any change, associated with a capital expenditure,
that increases or decreases the bed capacity or relocates beds from
one physical facility or site to another, but does not include a
change by which a health care facility reassigns existing beds as
swing beds between acute care and long-term care categories:
Provided, That a decrease in bed capacity in response to federal
rural health initiatives is excluded from this definition.
(hh) "Substantial change to the health services" of a health
care facility means: (1) The addition of a health service offered by or on behalf of the health care facility which was not offered
by or on behalf of the facility within the twelve-month period
before the month in which the service is first offered; or (2) the
termination of a health service offered by or on behalf of the
facility:
Provided, That "substantial change to the health
services" does not include the providing of ambulance service,
wellness centers or programs, adult day care or respite care by
acute care facilities.
(ii) "To develop", when used in connection with health
services, means to undertake those activities which upon their
completion will result in the offer of a new institutional health
service or the incurring of a financial obligation in relation to
the offering of such a service.
§16-2D-5. Powers and duties of state agency.
(a) The state agency shall administer the certificate of need
program as provided by this article.
(b) The state agency is responsible for coordinating and
developing the health planning research efforts of the state and
for amending and modifying the state health plan which includes the
certificate of need standards. The state agency shall review the
state health plan, including the certificate of need standards and
make any necessary amendments and modifications. The state agency
shall also review the cost effectiveness of the certificate of need
program. The state agency may form task forces to assist it in addressing these issues. The task forces shall be composed of
representatives of consumers, business, providers, payers and state
agencies.
(c) The state agency may seek advice and assistance of other
persons, organizations and other state agencies in the performance
of the state agency's responsibilities under this article.
(d) For health services for which competition appropriately
allocates supply consistent with the state health plan, the state
agency shall, in the performance of its functions under this
article, give priority, where appropriate to advance the purposes
of quality assurance, cost effectiveness and access, to actions
which would strengthen the effect of competition on the supply of
the services.
(e) For health services for which competition does not or will
not appropriately allocate supply consistent with the state health
plan, the state agency shall, in the exercise of its functions
under this article, take actions, where appropriate to advance the
purposes of quality assurance, cost effectiveness and access and
the other purposes of this article, to allocate the supply of the
services.
(f) Notwithstanding the provisions of section seven of this
article, the state agency may charge a fee for the filing of any
application, the filing of any notice in lieu of an application,
the filing of any exemption determination request or the filing of any request for a declaratory ruling. The fees charged may vary
according to the type of matter involved, the type of health
service or facility involved or the amount of capital expenditure
involved:
Provided, That any fee charged pursuant to this
subsection may not exceed a dollar amount to be established by
procedural rule. The state agency shall evaluate and amend any
procedural rule promulgated prior to the amendments to this
subsection made during the 2009 regular session of the Legislature.
The fees charged shall be deposited into a special fund known as
the Certificate of Need Program Fund to be expended for the
purposes of this article.
(g) A hospital, nursing home or other health care facility may
not add any intermediate care or skilled nursing beds to its
current licensed bed complement. This prohibition also applies to
the conversion of acute care or other types of beds to intermediate
care or skilled nursing beds:
Provided, That hospitals eligible
under the provisions of section four-a of this article and
subsection (I) of this section may convert acute care beds to
skilled nursing beds in accordance with the provisions of these
sections, upon approval by the state agency. Furthermore, a
certificate of need may not be granted for the construction or
addition of any intermediate care or skilled nursing beds except in
the case of facilities designed to replace existing beds in unsafe
existing facilities. A health care facility in receipt of a certificate of need for the construction or addition of
intermediate care or skilled nursing beds which was approved prior
to the effective date of this section shall incur an obligation for
a capital expenditure within twelve months of the date of issuance
of the certificate of need. Extensions may not be granted beyond
the twelve-month period. The state agency shall establish a task
force or utilize an existing task force to study the need for
additional nursing facility beds in this state. The study shall
include a review of the current moratorium on the development of
nursing facility beds; the exemption for the conversion of acute
care beds to skilled nursing facility beds; the development of a
methodology to assess the need for additional nursing facility
beds; and certification of new beds both by Medicare and Medicaid.
The task force shall be composed of representatives of consumers,
business, providers, payers and government agencies.
(h) No additional intermediate care facility for
the mentally
retarded individuals with an intellectual disability (ICF/
MR ID)
beds
shall may be granted a certificate of need, except that
prohibition does not apply to ICF/MR beds approved under the
Kanawha County Circuit Court order of August 3, 1989, civil action
number MISC-81-585 issued in the case of E.H. v. Matin, 168 W.V.
248, 284 S.E. 2d 232 (1981).
(I) Notwithstanding the provisions of subsection (g) of this
section and further notwithstanding the provisions of subsection (b), section three of this article, an existing acute care hospital
may apply to the Health Care Authority for a certificate of need to
convert acute care beds to skilled nursing beds:
Provided, That
the proposed skilled nursing beds are Medicare-certified only:
Provided, however, That any hospital which converts acute care beds
to Medicare-certified only skilled nursing beds shall not bill for
any Medicaid reimbursement for any converted beds. In converting
beds, the hospital shall convert a minimum of one acute care bed
into one Medicare-certified only skilled nursing bed. The Health
Care Authority may require a hospital to convert up to and
including three acute care beds for each Medicare-certified only
skilled nursing bed:
Provided further, That a hospital designated
or provisionally designated by the state agency as a rural primary
care hospital may convert up to thirty beds to a distinct-part
nursing facility, including skilled nursing beds and intermediate
care beds, on a one-for-one basis if the rural primary care
hospital is located in a county without a certified freestanding
nursing facility and the hospital may bill for Medicaid
reimbursement for the converted beds:
And provided further, That
if the hospital rejects the designation as a rural primary care
hospital, then the hospital may not bill for Medicaid
reimbursement. The Health Care Authority shall adopt rules to
implement this subsection which require that:
(1) All acute care beds converted shall be permanently deleted from the hospital's acute care bed complement and the hospital may
not thereafter add, by conversion or otherwise, acute care beds to
its bed complement without satisfying the requirements of
subsection (b), section three of this article for which purposes an
addition, whether by conversion or otherwise, shall be considered
a substantial change to the bed capacity of the hospital
notwithstanding the definition of that term found in subsection
(ff), section two of this article.
(2) The hospital shall meet all federal and state licensing
certification and operational requirements applicable to nursing
homes including a requirement that all skilled care beds created
under this subsection shall be located in distinct-part, long-term
care units.
(3) The hospital shall demonstrate a need for the project.
(4) The hospital shall use existing space for the Medicare-
certified only skilled nursing beds. Under no circumstances shall
the hospital construct, lease or acquire additional space for
purposes of this section.
(5) The hospital shall notify the acute care patient, prior to
discharge, of facilities with skilled nursing beds which are
located in or near the patient's county of residence. Nothing in
this subsection negatively affects the rights of inspection and
certification which are otherwise required by federal law or
regulations or by this code or duly adopted rules of an authorized state entity.
(j) (1) Notwithstanding the provisions of subsection (g) of
this section, a retirement life care center with no skilled nursing
beds may apply to the Health Care Authority for a certificate of
need for up to sixty skilled nursing beds provided the proposed
skilled beds are Medicare-certified only. On a statewide basis, a
maximum of one hundred eighty skilled beds which are Medicare-
certified only may be developed pursuant to this subsection. The
state health plan is not applicable to projects submitted under
this subsection. The Health Care Authority shall adopt rules to
implement this subsection which shall include a requirement that:
(A) The one hundred eighty beds are to be distributed on a
statewide basis;
(B) There be a minimum of twenty beds and a maximum of sixty
beds in each approved unit;
(C) The unit developed by the retirement life care center
meets all federal and state licensing certification and operational
requirements applicable to nursing homes;
(D) The retirement center demonstrates a need for the project;
(E) The retirement center offers personal care, home health
services and other lower levels of care to its residents; and
(F) The retirement center demonstrates both short- and
long-term financial feasibility.
(2) Nothing in this subsection negatively affects the rights of inspection and certification which are otherwise required by
federal law or regulations or by this code or duly adopted rules of
an authorized state entity.
(k) The state agency may order a moratorium upon the offering
or development of a new institutional health service when criteria
and guidelines for evaluating the need for the new institutional
health service have not yet been adopted or are obsolete. The
state agency may also order a moratorium on the offering or
development of a health service, notwithstanding the provisions of
subdivision (5), subsection (b), section three of this article,
when it determines that the proliferation of the service may cause
an adverse impact on the cost of health care or the health status
of the public. A moratorium shall be declared by a written order
which shall detail the circumstances requiring the moratorium.
Upon the adoption of criteria for evaluating the need for the
health service affected by the moratorium, or one hundred eighty
days from the declaration of a moratorium, whichever is less, the
moratorium shall be declared to be over and applications for
certificates of need are processed pursuant to section six of this
article.
(l) (1) The state agency shall coordinate the collection of
information needed to allow the state agency to develop recommended
modifications to certificate of need standards as required in this
article. When the state agency proposes amendments or modifications to the certificate of need standards, it shall file
with the Secretary of State, for publication in the State Register,
a notice of proposed action, including the text of all proposed
amendments and modifications, and a date, time and place for
receipt of general public comment. To comply with the public
comment requirement of this section, the state agency may hold a
public hearing or schedule a public comment period for the receipt
of written statements or documents.
(2) When amending and modifying the certificate of need
standards, the state agency shall identify relevant criteria
contained in section six of this article or rules adopted pursuant
to section eight of this article and apply those relevant criteria
to the proposed new institutional health service in a manner that
promotes the public policy goals and legislative findings contained
in section one of this article. In doing so, the state agency may
consult with or rely upon learned treatises in health planning,
recommendations and practices of other health planning agencies and
organizations, recommendations from consumers, recommendations from
health care providers, recommendations from third-party payors,
materials reflecting the standard of care, the state agency's own
developed expertise in health planning, data accumulated by the
state agency or other local, state or federal agency or
organization and any other source deemed relevant to the
certificate of need standards proposed for amendment or modification.
(3) All proposed amendments and modifications to the
certificate of need standards, with a record of the public hearing
or written statements and documents received pursuant to a public
comment period, shall be presented to the Governor. Within thirty
days of receiving the proposed amendments or modifications, the
Governor shall either approve or disapprove all or part of the
amendments and modifications and, for any portion of amendments or
modifications not approved, shall specify the reason or reasons for
nonapproval. Any portions of the amendments or modifications not
approved by the Governor may be revised and resubmitted.
(4) The certificate of need standards adopted pursuant to this
section which are applicable to the provisions of this article are
not subject to article three, chapter twenty-nine-a of this code.
The state agency shall follow the provisions set forth in this
subsection for giving notice to the public of its actions, holding
hearings or receiving comments on the certificate of need
standards. The certificate of need standards in effect on November
29, 2005, and all prior versions promulgated and adopted in
accordance with the provisions of this section are and have been in
full force and effect from each of their respective dates of
approval by the Governor.
(m) The state agency may exempt from or expedite rate review,
certificate of need and annual assessment requirements and issue grants and loans to financially vulnerable health care facilities
located in underserved areas that the state agency and the Office
of Community and Rural Health Services determine are collaborating
with other providers in the service area to provide cost effective
health care services.
ARTICLE 5F. HEALTH CARE FINANCIAL DISCLOSURE.
§16-5F-2. Definitions.
As used in this article:
(1) "Annual report" means an annual financial report for the
covered facility's or related organization's fiscal year prepared
by an accountant or the covered facility's or related
organization's Auditor.
(2) "Board" means the West Virginia Health Care
cost review
Authority.
(3) "Covered facility" means any hospital, skilled nursing
facility, kidney disease treatment center, including a
free-standing hemodialysis unit; intermediate care facility;
ambulatory health care facility; ambulatory surgical facility; home
health agency; hospice agency; rehabilitation facility; health
maintenance organization; or community mental health or
mental
retardation intellectual disability facility, whether under public
or private ownership or as a profit or nonprofit organization and
whether or not licensed or required to be licensed, in whole or in
part, by the state:
Provided, That nonprofit, community-based primary care centers providing primary care services without regard
to ability to pay which provide the board with a year-end audited
financial statement prepared in accordance with generally accepted
auditing standards and with governmental auditing standards issued
by the Comptroller General of the United States shall be deemed to
have complied with the disclosure requirements of this section.
(4) "Related organization" means an organization, whether
publicly owned, nonprofit, tax-exempt or for profit, related to a
covered facility through common membership, governing bodies,
trustees, officers, stock ownership, family members, partners or
limited partners, including, but not limited to, subsidiaries,
foundations, related corporations and joint ventures. For the
purposes of this subdivision "family members" shall mean brothers
and sisters whether by the whole or half blood, spouse, ancestors
and lineal descendants.
(5) "Rates" means all rates, fees or charges imposed by any
covered facility for health care services.
(6) "Records" includes accounts, books, charts, contracts,
documents, files, maps, papers, profiles, reports, annual and
otherwise, schedules and any other fiscal data, however recorded or
stored.
ARTICLE 5O. MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL.
§16-5O-2. Definitions.
As used in this article, unless a different meaning appears from the context, the following definitions apply:
(a) "Administration of medication" means:
(1) Assisting a person in the ingestion, application or
inhalation of medications, including prescription drugs, or in the
use of universal precautions or rectal or vaginal insertion of
medication, according to the legibly written or printed directions
of the attending physician or authorized practitioner, or as
written on the prescription label; and
(2) Making a written record of such assistance with regard to
each medication administered, including the time, route and amount
taken:
Provided, That for purposes of this article,
"administration" does not include judgment, evaluation,
assessments, injections of medication, monitoring of medication or
self-administration of medications, including prescription drugs
and self-injection of medication by the resident.
(b) "Authorizing agency" means the department's Office of
Health Facility Licensure and Certification.
(c) "Department" means the Department of Health and Human
Resources.
(d) "Facility" means an
ICF/MR,
ICF/ID a personal care home,
residential board and care home, behavioral health group home,
private residence in which health care services are provided under
the supervision of a registered nurse or an adult family care home
that is licensed by or approved by the department.
(e) "Facility staff member" means an individual employed by a
facility but does not include a health care professional acting
within the scope of a professional license or certificate.
(f) "Health care professional" means a medical doctor or
doctor of osteopathy, a podiatrist, registered nurse, practical
nurse, registered nurse practitioner, physician's assistant,
dentist, optometrist or respiratory care professional licensed
under chapter thirty of this code.
(g)
ICF/MR "ICF-ID" means an intermediate care facility for
the mentally retarded individuals with an intellectual disability
which is certified by the department.
(h) "Medication" means a drug, as defined in section one
hundred one, article one, chapter sixty-a of this code, which has
been prescribed by a duly authorized health care professional to be
ingested through the mouth, applied to the outer skin, eye or ear,
or applied through nose drops, vaginal or rectal suppositories.
(i) "Registered professional nurse" means a person who holds
a valid license pursuant to article seven, chapter thirty of this
code.
(j) "Resident" means a resident of a facility.
(k) "Secretary" means the Secretary of the Department of
Health and Human Resources or his or her designee.
(l) "Self-administration of medication" means the act of a
resident, who is independently capable of reading and understanding the labels of drugs ordered by a physician, in opening and
accessing prepackaged drug containers, accurately identifying and
taking the correct dosage of the drugs as ordered by the physician,
at the correct time and under the correct circumstances.
(m) "Supervision of self-administration of medication" means
a personal service which includes reminding residents to take
medications, opening medication containers for residents, reading
the medication label to residents, observing residents while they
take medication, checking the self administered dosage against the
label on the container and reassuring residents that they have
obtained and are taking the dosage as prescribed.
ARTICLE 22. DETECTION AND CONTROL OF PHENYLKETONURIA,
GALACTOSEMIA, HYPOTHYROIDISM, AND CERTAIN
OTHER DISEASES IN NEWBORN CHILDREN.
§16-22-1. Findings.
The Legislature finds that phenylketonuria, galactosemia,
hypothyroidism, and certain other diseases are usually associated
with
mental retardation intellectual disability or other severe
health hazards. Laboratory tests are readily available to aid in
the detection of these diseases and hazards to the health of those
suffering
thereof from these diseases may be lessened or prevented
by early detection and treatment. Damage from these diseases, if
untreated in the early months of life, is usually rapid and not
appreciably affected by treatment.
§16-22-2. Program to combat intellectual disability or other
severe health hazards; rules; facilities for making
tests.
The state Bureau of Public Health is
hereby authorized to
establish and carry out a program designed to combat
mental
retardation intellectual disability or other severe health hazards
in our state's population due to phenylketonuria, galactosemia,
hypothyroidism, and certain other diseases specified by the state
Public Health Commissioner, and may adopt reasonable rules and
regulations necessary to carry out such a program. The Bureau of
Public Health shall establish and maintain facilities at its state
hygienic laboratory for testing specimens for the detection of
phenylketonuria, galactosemia, hypothyroidism, and certain other
diseases specified by the state Public Health Commissioner. Tests
shall be made by such laboratory of specimens upon request by
physicians, hospital medical personnel and other individuals
attending newborn infants. The state Bureau of Public Health is
authorized to establish additional laboratories throughout the
state to perform tests for the detection of phenylketonuria,
galactosemia, hypothyroidism, and certain other diseases specified
by the state Public Health Commissioner.
ARTICLE 29A. WEST VIRGINIA HOSPITAL FINANCE AUTHORITY ACT.
§16-29A-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) "Authority" means the West Virginia Hospital Finance
Authority created by section four of this article, the duties,
powers, responsibilities and functions of which are specified in
this article;
(2) "Board" means the West Virginia Hospital Finance Board
created by section four of this article, which shall manage and
control the authority;
(3) "Bond" means a revenue bond issued by the authority to
effect the purposes of this article;
(4) "Construction" means and includes new construction,
reconstruction, enlargement, improvement and providing furnishings
or equipment;
(5) "Direct provider of health care" means a person or
organization whose primary current activity is the provision of
health care to individuals and includes a licensed or certified
physician, osteopath, dentist, nurse, podiatrist or physician's
assistant or an organization comprised of these health
professionals or employing these health professionals;
(6) "Hospital" means a corporation, association, institution
or establishment for the care of those who require medical
treatment, which may be a public or private corporation or
association, or state-owned or operated establishment and
specifically includes nursing homes which are licensed under chapter sixteen of this code or those facilities certified under
the Social Security Act as intermediate care facilities for
the
mentally retarded individuals with an intellectual disability;
(7) "Hospital facilities" means any real or personal property
suitable and intended for, or incidental or ancillary to, use by a
hospital and includes: Outpatient clinics; laboratories;
laundries; nurses', doctors' or interns' residences; administration
buildings; facilities for research directly involved with hospital
care; maintenance, storage or utility facilities; parking lots and
garages; and all necessary, useful or related equipment,
furnishings and appurtenances and all lands necessary or convenient
as a site for the foregoing and specifically includes any capital
improvements to any of the foregoing. "Hospital facilities"
specifically includes office facilities not less than eighty
percent of which are intended for lease to direct providers of
health care and which are geographically or functionally related to
one or more other hospital facilities, if the authority determines
that the financing of the office facilities is necessary to
accomplish the purposes of this article;
(8) "Hospital loan" means a loan made by the authority to a
hospital and specifically includes financings by the authority for
hospital facilities pursuant to lease-purchase agreements,
installment sale or other similar agreements;
(9) "Note" means a short-term promise to pay a specified amount of money, payable and secured as provided pursuant to this
article and issued by the authority to effect the purposes of this
article;
(10) "Project costs" means the total of the reasonable or
necessary costs incurred for carrying out the works and
undertakings for the acquisition or construction of hospital
facilities under this article. "Project costs" includes, but is
not limited to, all of the following costs: The costs of
acquisition or construction of the hospital facilities; studies and
surveys; plans, specifications, architectural and engineering
services; legal, organization, marketing or other special services;
financing, acquisition, demolition, construction, equipping and
site development of new and rehabilitated buildings;
rehabilitation, reconstruction, repair or remodeling of existing
buildings; interest and carrying charges during construction and
before full earnings are achieved and operating expenses before
full earnings are achieved or a period of one year following the
completion of construction, whichever occurs first; and a
reasonable reserve for payment of principal of and interest on
bonds or notes of the authority. "Project costs" shall also
include reimbursement of a hospital for the foregoing costs
expended by a hospital from its own funds or from money borrowed by
the hospital for such purposes before issuance and delivery of
bonds or notes by the authority for the purpose of providing funds to pay the project costs. "Project costs" also specifically
includes the refinancing of any existing debt of a hospital
necessary in order to permit the hospital to borrow from the
authority and give adequate security for the hospital loan. The
determination of the authority with respect to the necessity of
refinancing and adequate security for a hospital loan is
conclusive;
(11) "Revenue" means any money or thing of value collected by,
or paid to, the authority as principal of or interest, charges or
other fees on hospital loans or any other collections on hospital
loans made by the authority to hospitals to finance, in whole or in
part, the acquisition or construction of any hospital facilities or
other money or property which is received and may be expended for
or pledged as revenues pursuant to this article;
(12) "Veterans skilled nursing facility" means a skilled
nursing care facility constructed and operated to serve the needs
of veterans of the Armed Forces of the United States who are
citizens of this state.
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-7. Determination of incapacity.
(a) For the purposes of this article, a person may not be
presumed to be incapacitated merely by reason of advanced age or
disability. With respect to a person who has a diagnosis of mental
illness or
mental retardation intellectual disability, such a diagnosis is not a presumption that the person is incapacitated.
A determination that a person is incapacitated shall be made by the
attending physician, a qualified physician, a qualified
psychologist or an advanced nurse practitioner who has personally
examined the person.
(b) The determination of incapacity shall be recorded
contemporaneously in the person's medical record by the attending
physician, a qualified physician, advanced nurse practitioner or a
qualified psychologist. The recording shall state the basis for
the determination of incapacity, including the cause, nature and
expected duration of the person's incapacity, if these are known.
(c) If the person is conscious, the attending physician shall
inform the person that he or she has been determined to be
incapacitated and that a medical power of attorney representative
or surrogate decisionmaker may be making decisions regarding
life-prolonging intervention or mental health treatment for the
person.
§16-30-24. Need for a second opinion regarding incapacity for
persons with psychiatric mental illness,
intellectual disability or addiction.
For persons with psychiatric mental illness,
mental
retardation intellectual disability or addiction who have been
determined by their attending physician or a qualified physician to
be incapacitated, a second opinion by a qualified physician or qualified psychologist that the person is incapacitated is required
before the attending physician is authorized to select a surrogate.
The requirement for a second opinion
shall does not apply in those
instances in which the medical treatment to be rendered is not for
the person's psychiatric mental illness.
CHAPTER 27. MENTALLY ILL PERSONS.
ARTICLE 1. WORDS AND PHRASES DEFINED.
§27-1-3. Intellectual disability.
"
Mental retardation Intellectual disability" means
significantly subaverage intellectual functioning which manifests
itself in a person during his
or her developmental period and which
is characterized by his
or her inadequacy in adaptive behavior.
Notwithstanding any provision to the contrary, if any service
provision or reimbursement is affected by the changes in
terminology adopted in the 2010 Regular Session of the Legislature,
the terms "intellectual disability" or "individuals with an
intellectual disability" shall assume their previous terminology.
It is not the intent of the Legislature to expand the class of
individuals affected by this terminology change.
§27-1-6. State hospital.
"State hospital" means any hospital, center or institution, or
part
thereof of any hospital, center or institution, established,
maintained and operated by the Department of Health, or by the
Department of Health in conjunction with a political subdivision of the state, to provide inpatient or outpatient care and treatment
for the mentally ill,
mentally retarded intellectually disabled or
addicted. The terms "hospital" and "state hospital" exclude
correctional and regional jail facilities.
§27-1-7. Administrator and clinical director.
(a) The administrator of a state-operated treatment facility
shall be is its chief executive officer and
shall have has the
authority to manage and administer the financial, business and
personnel affairs of such facility. All other persons employed at
the state-operated treatment facility
shall be are under the
jurisdiction and authority of the administrator of the treatment
facility who need not be a physician.
(b) The clinical director
shall have has the responsibility
for decisions involving clinical and medical treatment of patients
in a state-operated mental health facility. The clinical director
must be a physician duly licensed to practice medicine in this
state who has completed training in an accredited program of
post-graduate education in psychiatry.
(c) In any facility designated by the Secretary of the
Department of Health and Human Resources as a facility for
the
mentally retarded individuals with an intellectual disability in
which programs and services are designed primarily to provide
education, training and rehabilitation rather than medical or
psychiatric treatment, the duties and responsibilities, other than those directly related to medical treatment services, assigned to
the clinical director by this section or elsewhere in this chapter,
shall be are assigned to and become the responsibility of the
administrator of
such that facility, or of a person with expertise
in the field of
mental retardation intellectual disability, who
need not be a physician, designated by the administrator.
§27-1-9. Mental health facility.
"Mental health facility" means any inpatient, residential or
outpatient facility for the care and treatment of the mentally ill,
mentally retarded intellectually disabled or addicted which is
operated, or licensed to operate, by the Department of Health
and
Human Resources and includes state hospitals as defined in section
six of this article. The term also includes veterans
administration hospitals, but does not include any regional jail,
juvenile or adult correctional facility, or juvenile detention
facility.
ARTICLE 1A. DEPARTMENT OF HEALTH.
§27-1A-1. Statement of policy.
The purpose of this article is to improve the administration
of the state hospitals, raise the standards of treatment of the
mentally ill and
mentally retarded intellectually disabled in the
state hospitals, encourage the further development of outpatient
and diagnostic clinics, establish better research and training
programs, and promote the development of mental health.
§27-1A-4. Powers and duties of the secretary.
The commissioner shall be the executive head of the
department, and as such shall have In addition to the powers and
duties set forth in any other provision of this code, the Secretary
of the Department of Health and Human Resources has the following
powers and duties:
(a) To develop and maintain a state plan which sets forth
needs of the state in the areas of mental health and
mental
retardation intellectual disability; goals and objectives for
meeting those needs; plan of operation for achieving the stated
goals and objectives, including organizational structure; and
statement of requirements in personnel funds and authority for
achieving the goals and objectives.
(b) To appoint deputies and assistants to supervise the
departmental programs, including hospital and residential services,
and such other assistants and employees as may be necessary for the
efficient operation of the department and all its programs.
(c) To promulgate rules
and regulations clearly specifying the
respective duties and responsibilities of program directors and
fiscal administrators, making a clear distinction between the
respective functions of these officials.
(d) To delegate to any of his
or her appointees, assistants or
employees all powers and duties vested in the commissioner,
including the power to execute contracts and agreements in the name of the department as provided in this article, but the commissioner
shall be responsible for the acts of such appointees, assistants
and employees.
(e) To supervise and coordinate the operation of the state
hospitals named in article two of this chapter and any other state
hospitals, centers or institutions hereafter created for the care
and treatment of the mentally ill or
mentally retarded
intellectually disabled, or both.
(f) To transfer a patient from any state hospital to any other
state hospital or clinic under his
or her control and, by agreement
with the state
Commissioner of public institutions Division of
Corrections, transfer a patient from a state hospital to an
institution, other than correctional, under the supervision of the
state
Commissioner of public institutions Division of Corrections.
(g) To make periodic reports to the Governor and to the
Legislature on the condition of the state hospitals, centers and
institutions or on other matters within his
or her authority, which
shall include recommendations for improvement of any mental health
facility and any other matters affecting the mental health of the
people of the state.
The
Commissioner of mental health shall have Secretary of the
Department of Health and Human Resources has all of the authority
vested in the divisions of the
former Department
of Mental Health,
as hereinafter provided.
The
Commissioner Secretary of the Department of Health and
Human Resources is hereby authorized and empowered to accept and
use for the benefit of a state hospital, center or institution, or
for any other mental health purpose specified in this chapter, any
gift or devise of any property or thing which lawfully may be
given. If such a gift or devise is for a specific purpose or for
a particular state hospital, center or institution, it shall be
used as specified. Any gift or devise of any property or thing
which lawfully may be given and whatever profit may arise from its
use or investment shall be deposited in a special revenue fund with
the State Treasurer, and shall be used only as specified by the
donor or donors.
Whenever it shall become necessary, the department of mental
health may condemn any interest, right or privilege, land or
improvement, which in its opinion may be necessary, in the manner
provided by law, for the acquisition by this state of property for
public purposes.
§27-1A-6. Division of professional services; powers and duties of
supervisor; liaison with other state agencies.
There
shall be is a Division of Professional Services is
hereby established in the Department of Mental Health. The
supervisor of this division shall assist the director in the
operation of the programs or services of the department and shall
be a qualified psychiatrist.
The supervisor of this division
shall have has the following
powers and duties:
(1) To develop professional standards, provide supervision of
state hospitals, analyze hospital programs and inspect individual
hospitals.
(2) To assist in recruiting professional staff.
(3) To take primary responsibility for the education and
training of professional and subprofessional personnel.
(4) To carry on or stimulate research activities related to
medical and psychiatric facilities of the department, and render
specialized assistance to hospital superintendents.
(5) To establish liaison with appropriate state agencies and
with private groups interested in mental health,
such as including
the state
Department of Bureau for Public Health,
the board of
Probation and Parole Division of Corrections, the Department of
Education, the Board of Governors of West Virginia University, and
the West Virginia Association for Mental Health, Incorporated.
(6) To license, supervise and inspect any hospital, center or
institution, or part
thereof of any hospital, center or
institution, maintained and operated by any political subdivision
or by any person, persons, association or corporation to provide
inpatient care and treatment for the mentally ill, or
mentally
retarded individuals with an intellectual disability, or both.
(7) To perform any other duties assigned to the division by the
director of the department Secretary of the Department of
Health and Human Resources.
ARTICLE 2. MENTAL HEALTH FACILITIES.
§27-2-1. State hospitals and other facilities; transfer of control
and property from Department of Mental Health to
Department of Health and Human Resources; civil service
coverage.
The state hospitals heretofore established at Weston,
Spencer
Huntington
Barboursville and Lakin,
Guthrie, Roney's Point, St.
Marys and Lewisburg shall be are continued and known respectively
as the
Weston Hospital, Spencer Hospital Huntington Hospital
Barboursville Hospital William R. Sharpe, Jr. Hospital,
Mildred-Mitchell Bateman Hospital and Lakin Hospital.
Guthrie
Center, Roney's Point Center, Colin Anderson Center and the
Greenbrier School for Retarded Children. Said These state
hospitals and centers
shall be are managed, directed and controlled
by the Department of Health
and Human Resources. Any person
employed by the Department of Mental Health who on the effective
date of this article is a classified civil service employee shall,
within the limits contained in section two, article six of chapter
twenty-nine of this code, remain in the civil service system as a
covered employee. The
Director of the Department of Health
Secretary of the Department of Health and Human Resources is
hereby
authorized to bring
said the state hospitals into structural compliance with appropriate fire and health standards. All
references in this code or elsewhere in law to the "West Virginia
Training School" shall be taken and construed to mean and refer to
the "Colin Anderson Center."
The control of the property, records, and financial and other
affairs of state mental hospitals and other state mental health
facilities is
hereby transferred from the Department of Mental
Health to the Department of Health
and Human Resources. As the
chief executive officer, the Director of Health secretary shall, in
respect to the control and management of
such the state hospitals
and other state mental health facilities, perform the same duties
and functions as were heretofore exercised or performed by the
Department of Mental Health Director of Health. The title to all
property of
such the state hospitals and other state facilities is
hereby transferred to and vested in the Department of Health
and
Human Resources.
Notwithstanding any other provisions of this code to the
contrary, whenever in this code there is a reference to the
Department of Mental Health, it shall be construed to mean and
shall be is a reference to the
Director of the Department of Health
Secretary of the Department of Health and Human Resources.
ARTICLE 2A. MENTAL HEALTH - INTELLECTUAL DISABILITY CENTERS.
§27-2A-1. Comprehensive community mental health-intellectual
disability centers; establishment, operation and location; access to treatment.
(a) The
Director of Health Department of Health and Human
Resources is authorized and directed to establish, maintain and
operate comprehensive community mental health centers and
comprehensive
mental retardation intellectual disability
facilities, at
such locations within the state
as may be that are
determined by the
director secretary in accordance with the state's
comprehensive mental health plan and the state's comprehensive
mental retardation intellectual disability plan. Such facilities
may be integrated with a general health care or other facility or
remain separate as the
board of Health Secretary of the Department
of Health and Human Resources may by rules prescribe:
Provided,
That nothing contained herein
shall may be construed to allow the
Department of Health and Human Resources to assume the operation of
comprehensive regional mental health centers or comprehensive
mental retardation intellectual disability facilities which have
been heretofore established according to law and which, as of the
effective date of this article, are being operated by local
nonprofit organizations.
(b) Any new mental health centers and comprehensive mental
retardation facilities herein provided
for may be operated and
controlled by the Department of Health
and Human Resources or
operated, maintained and controlled by local nonprofit
organizations and licensed according to rules
and regulations promulgated by the
board of Health Secretary of the Department of
Health and Human Resources. All comprehensive regional mental
health and
mental retardation intellectual disability facilities
licensed in the state shall:
(1) Have a written plan for the provision of diagnostic,
treatment, supportive and aftercare services, and written policies
and procedures for implementing these services;
(2) Have sufficient employees appropriately qualified to
provide these services;
(3) Maintain accurate medical and other records for all
patients receiving services;
(4) Render outpatient services in the aftercare of any patient
discharged from an inpatient hospital, consistent with the needs of
the individual. No person who can be treated as an outpatient at
a community mental health center
shall may be admitted
involuntarily into a state hospital.
(5) Have a chief administrative officer directly responsible
to a legally constituted board of directors of a comprehensive
mental health or
mental retardation intellectual disability
facility operated by a local nonprofit organization, or to the
Director of the Department of Health Secretary of the Department of
Health and Human Resources if the comprehensive mental health or
mental retardation intellectual disability center or facility is
operated by the Department of Health
and Human Resources; and
(6) Have a written plan for the referral of patients for
evaluation and treatment for services not provided.
The state's share of costs of operating
such the facilities
may be provided from funds appropriated for this purpose within the
budget of the Department of Health
and Human Resources. The
director secretary of that department shall administer these funds
among all comprehensive mental health and
mental retardation
intellectual disability facilities
as may be that are required to
best provide comprehensive community mental health care and
services to the citizens of the state.
After July 1, but not later than August 1 of each year, the
chief administrative officer of each comprehensive regional mental
health center and
mental retardation intellectual disability
facility shall submit a report to the
Director Secretary of the
Department of Health
and Human Resources and to the Legislative
Auditor containing a listing of:
(1) All funds received by the center or facility;
(2) All funds expended by the center or facility;
(3) All funds obligated by the center or facility;
(4) All services provided by the center or facility;
(5) The number of persons served by the center or facility;
and
(6) Other information as the
Board of Health shall by
regulation prescribe Secretary of the Department of Health and Human Resources prescribes by regulation.
ARTICLE 4. VOLUNTARY HOSPITALIZATION.
§27-4-1. Authority to receive voluntary patients.
The chief medical officer of a mental health facility, subject
to the availability of suitable accommodations and to the rules
and
regulations promulgated by the
board of Health Secretary of the
Department of Health and Human Resources, shall admit for
diagnosis, care and treatment any individual:
(a) Over eighteen years of age who is mentally ill,
mentally
retarded intellectually disabled or addicted, or who has manifested
symptoms of mental illness,
mental retardation intellectual
disability or addiction and who makes application for
hospitalization; or
(b) Under eighteen years of age who is mentally ill,
mentally
retarded intellectually disabled or addicted or who has manifested
symptoms of mental illness,
mental retardation intellectual
disability or addiction and there is application for
hospitalization therefor in his
or her behalf: (1) By the parents
of such person, or (2) if only one parent is living, then by
such
that parent, or (3) if the parents are living separate and apart,
by the parent who has the custody of
such the person, or (4) if
there is a guardian who has custody of
such the person, then by
such that guardian. Such admission shall be conditioned upon the
consent of the prospective patient if he
or she is twelve years of age or over.
(c) No person under eighteen years of age
shall may be
admitted under this section to any state hospital unless
said that
person has first been reviewed and evaluated by a local mental
health facility and recommended for admission.
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-9. Rights of patients.
(a) No person may be deprived of any civil right solely by
reason of his or her receipt of services for mental illness,
mental
retardation intellectual disability or addiction, nor does the
receipt of the services modify or vary any civil right of the
person, including, but not limited to, civil service status and
appointment, the right to register for and to vote at elections,
the right to acquire and to dispose of property, the right to
execute instruments or rights relating to the granting, forfeiture
or denial of a license, permit, privilege or benefit pursuant to
any law, but a person who has been adjudged incompetent pursuant to
article eleven of this chapter and who has not been restored to
legal competency may be deprived of such rights. Involuntary
commitment pursuant to this article does not of itself relieve the
patient of legal capacity.
(b) Each patient of a mental health facility receiving
services from the facility shall receive care and treatment that is
suited to his or her needs and administered in a skillful, safe and humane manner with full respect for his or her dignity and personal
integrity.
(c) Every patient has the following rights regardless of
adjudication of incompetency:
(1) Treatment by trained personnel;
(2) Careful and periodic psychiatric reevaluation no less
frequently than once every three months;
(3) Periodic physical examination by a physician no less
frequently than once every six months; and
(4) Treatment based on appropriate examination and diagnosis
by a staff member operating within the scope of his or her
professional license.
(d) The chief medical officer shall cause to be developed
within the clinical record of each patient a written treatment plan
based on initial medical and psychiatric examination not later than
seven days after he or she is admitted for treatment. The
treatment plan shall be updated periodically, consistent with
reevaluation of the patient. Failure to accord the patient the
requisite periodic examinations or treatment plan and reevaluations
entitles the patient to release.
(e) A clinical record shall be maintained at a mental health
facility for each patient treated by the facility. The record
shall contain information on all matters relating to the admission,
legal status, care and treatment of the patient and shall include all pertinent documents relating to the patient. Specifically, the
record shall contain results of periodic examinations,
individualized treatment programs, evaluations and reevaluations,
orders for treatment, orders for application for mechanical
restraint and accident reports, all signed by the personnel
involved.
(f) Every patient, upon his or her admission to a hospital and
at any other reasonable time, shall be given a copy of the rights
afforded by this section.
(g) The Secretary of the Department of Health and Human
Resources shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code to protect the personal rights of
patients not inconsistent with this section.
ARTICLE 9. LICENSING OF HOSPITALS.
§27-9-1. License from director of health; regulations.
No hospital, center or institution, or part
thereof of any
hospital, center or institution, to provide inpatient, outpatient
or other service designed to contribute to the care and treatment
of the mentally ill or
mentally retarded intellectually disabled,
or prevention of such disorders,
shall may be established,
maintained or operated by any political subdivision or by any
person, persons, association or corporation unless a license
therefor
shall be is first obtained from the
Director of Health Secretary of the Department of Health and Human Resources. The
application for such license shall be accompanied by a plan of the
premises to be occupied, and such other data and facts as the
director commissioner may require.
He The secretary may make such
terms and regulations in regard to the conduct of
such any licensed
hospital, center or institution, or part
thereof of any licensed
hospital, center or institution, as he
may think or she thinks
proper and necessary.
He The secretary, or any person authorized
by
him, shall have the secretary has authority to investigate and
inspect
such any licensed hospital, center or institution, or part
thereof of any licensed hospital, center or institution; and the
Director of Health secretary may revoke the license of any
such
hospital, center or institution, or part
thereof of any hospital,
center or institution, for good cause after reasonable notice to
the superintendent or other person in charge
thereof of the
hospital, center or institution.
ARTICLE 12. OFFENSES.
§27-12-1. Malicious making of medical certificate or complaint as
to mental condition.
Any physician who
shall sign signs a certificate respecting
the mental condition of any person without having made the
examination as provided
for by this chapter, or
shall make makes
any statement in any such certificate maliciously for the purpose
of having such person declared mentally ill,
mentally retarded intellectually disabled or an inebriate, and any person who
shall
maliciously
make makes application to any circuit court or mental
hygiene commission for the purpose of having another person
declared mentally ill,
mentally retarded intellectually disabled,
or an inebriate,
shall be is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not exceeding $500, or
imprisoned not exceeding one year, or both fined and imprisoned at
the discretion of the court.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 15. STATE COMMISSION ON INTELLECTUAL DISABILITY.
§29-15-1. Creation and composition.
There is
hereby created the State Commission on
mental
retardation Intellectual Disability hereinafter referred to as the
commission.
The commission shall consist of seven members, who, ex
officio, shall be the state Superintendent of Schools, the Director
of Health, the Director of Mental Health, the Commissioner of
Public Institutions, the Commissioner of Welfare the Director of
the West Virginia Division of Vocational Rehabilitation and the
Commissioner of the West Virginia Department of Employment
Security.
Pursuant to subsection (f), section one, article two, chapter
five-f of this code, the commission created by this section is now
incorporated into and administered as part of the Department of
Health and Human Resources. All references to the commission in this article shall be construed to mean the Department of Health
and Human Resources.
§29-15-5. Purposes.
The
commission Department of Health and Human Resources shall
take action to carry out the following purposes:
(a) Plan for and take other steps leading to comprehensive
state and community action to combat
mental retardation
intellectual disability.
(b) Determine what action is needed to combat
mental
retardation intellectual disability in the state and the resources
available for this purpose.
(c) Develop public awareness of the
mental retardation
intellectual disability problem and of the need for combating it.
(d) Coordinate state and local activities relating to the
various aspects of
mental retardation intellectual disability and
its prevention, treatment, or amelioration.
(e) Consult with and advise the Governor and Legislature on
all aspects of
mental retardation intellectual disability.
(f) Consult with and advise state agencies, boards or
departments with
mental retardation intellectual disability
responsibilities relative to the effective discharge of such
responsibilities.
§29-15-6. State agency for federal intellectual disability
program.
The
commission Department of Health and Human Resources is
hereby designated and established as the sole state agency for
receiving appropriations under and carrying out the purposes of
section five of Public Law 88-156, eighty-eighth Congress approved
October 24, 1963, and any law amending, revising, supplementing or
superseding section five of said Public Law 88-156.
The
commission shall constitute department constitutes the
designated state agency for handling all programs of the federal
government relating to
mental retardation intellectual disability
requiring action within the state which are not the specific
responsibility of another state agency under the provisions of
federal law, rules or regulations, or which have not been
specifically entrusted to another state agency by the Legislature.
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND
CONSERVATORSHIP ACT.
ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.
§44A-1-1. Short title and legislative findings.
This chapter
shall be is known and may be cited as the "West
Virginia Guardianship and Conservatorship Act."
The Legislature finds that section six, article eight of the
Constitution of the State of West Virginia gives it the
discretionary authority to pass legislation which ". . . provides
that all matters of probate, the appointment and qualification of
personal representatives, guardians, committees and curators, and the settlements of their accounts . . ." be under the exclusive
jurisdiction of circuit courts. The Legislature further finds and
declares that the use of the word "all" does not require an
interpretation that the Legislature must place every aspect of such
matters with circuit courts, but, that because of the discretionary
authority given, the Legislature may transfer, from time to time,
only those matters which it believes would be better served under
the jurisdiction of circuit courts.
The Legislature
hereby further finds and declares that legal
proceedings requiring a tribunal to determine whether persons
should be appointed to manage the personal or financial affairs of
individuals deemed mentally incompetent,
mentally retarded
intellectually disabled, mentally handicapped or missing involve
considerations of constitutionally protected rights which can best
be resolved within the circuit courts of this state.
§44A-1-2. Determinations and appointments under prior law.
(a) Any person determined to be "mentally incompetent",
"mentally retarded" an "intellectually disabled" or "mentally
handicapped" and for such reason deemed to be in need of a guardian
or committee pursuant to any order entered and in effect
prior to
before the effective date of this chapter is deemed to be a
"protected person" within the meaning of this chapter,
from and
after its effective date, unless any such determination be revoked
or otherwise modified.
(b) Any person heretofore appointed to serve as a committee
for an incompetent person and any person appointed to serve as a
guardian for
a mentally retarded an individual with an intellectual
disability or for a mentally handicapped person, is, as of the
effective date of this chapter, deemed to be: (1) A guardian,
within the meaning of this chapter, if the order appointing such
person provides that the person so appointed has responsibility
only for the personal affairs of a mentally incompetent
mentally
retarded,
intellectually disabled or mentally handicapped person;
(2) a conservator, within the meaning of this chapter, if the order
appointing such person provides that the person so appointed had
responsibility only for managing the estate and financial affairs
of a mentally incompetent
mentally retarded intellectually disabled
or mentally handicapped person; or (3) a guardian and a
conservator, within the meaning of this chapter, if the order
appointing such person does not set forth limitations of
responsibility for both the personal affairs and the financial
affairs of
a mentally incompetent
mentally retarded intellectually
disabled, or mentally handicapped person.
(c)
From and After the effective date of this chapter, the
circuit courts
shall have exclusive jurisdiction of all matters
involving determinations of mental incompetency,
mental retardation
intellectual disability or mental handicap, including the
jurisdiction of any proceedings pending as of
such that effective date. All orders entered
prior to before the effective date of
this chapter in
such those cases shall remain in full force and
effect until terminated, revoked or modified as provided herein.
(d) All persons heretofore appointed to serve as a committee
or as a guardian
shall retain their authority, powers and duties in
such that capacity, except to the extent that their authority,
powers and duties as
such guardian or conservator under the
provisions of this chapter are more specifically enumerated, in
which event
such the committee or guardian
shall have has the
authority, powers and duties so enumerated.
Wherever in the Constitution, the Code of West Virginia, acts
of the Legislature or elsewhere in law a reference is made to a
committee for an incompetent person, such reference shall be read,
construed and understood to mean guardian and/or conservator as
defined in this chapter.
(e) The provisions of this chapter providing for the
presentation of reports by guardians and the presentation of
accountings by conservators
shall may not be retroactively applied,
and applicable law in effect
prior to before the effective date of
this chapter
shall control controls as to any reports or
accountings to be made or filed for any period
prior to before the
effective date of this chapter.
(f) As used in this section, "prior law" refers to article
eleven, chapter twenty-seven of this code, relating to the appointment of committees for mentally incompetent persons, and to
article ten-a, chapter forty-four, relating to the appointment of
guardians for
mentally retarded individuals with an intellectual
disability and mentally handicapped persons, as
such those articles
were in effect
prior to before the effective date of this chapter.
CHAPTER 49. CHILD WELFARE.
ARTICLE 4A. WEST VIRGINIA FAMILY SUPPORT PROGRAM.
§49-4A-6. Regional and state family support councils.
(a) Each regional family support agency shall establish a
regional family support council comprised of at least seven
members, of whom at least a majority shall be persons with
developmental disabilities or their parents or primary caregivers.
Each regional family support council shall meet at least quarterly
to advise the regional family support agency on matters related to
local implementation of the family support program and to
communicate information and recommendations regarding the family
support program to the state Family Support Council.
(b) The Secretary of the Department of Health and Human
Resources shall appoint a state Family Support Council comprised of
at least twenty-two members, of whom at least a majority shall be
persons with developmental disabilities or their parents or primary
caregivers. A representative elected by each regional council
shall serve on the state council. The state council shall also
include a representative from each of the following agencies: The state Developmental Disabilities Planning Council, the state
Protection and Advocacy Agency, the University Affiliated Center
for Developmental Disabilities, the Office of Special Education,
the Association of Community Mental Health/
mental retardation
Intellectual Disability Programs and the Early Intervention
Interagency Coordinating Council.
(c) The state council shall meet at least quarterly. The
state council will participate in the development of program
policies and procedures, annual contracts and perform such other
duties as are necessary for statewide implementation of the family
support program.
(d) Members of the state and regional councils who are a
member of the family or the primary caregiver of a developmentally
disabled person shall be reimbursed for travel and lodging expenses
incurred in attending official meetings of their councils. Child
care expenses related to the developmentally disabled person shall
also be reimbursed. Members of regional councils who are eligible
for expense reimbursement shall be reimbursed by their respective
regional family support agencies.
On motion of Senator Kessler, the following amendment to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 4281) was reported by the Clerk and adopted:
On pages sixty-five and sixty-six, by striking out all of
section one.
The question now being on the adoption of the Judiciary
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. Com. Sub. for H. B. No. 4281), as amended, was
then ordered to third 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.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4281) 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 present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4281) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4281--A Bill to repeal
§27-1A-12 of the Code of West Virginia, 1931, as amended; to repeal
§27-2-1a and §27-2-1b of said code; to amend and reenact §9-4C-1
and §9-4C-5 of said code; to amend and reenact §9-5-11c of said
code; to amend and reenact §11-27-10 and §11-27-11 of said code; to
amend and reenact §16-1-4 of said code; to amend and reenact
§16-2D-2 and §16-2D-5 of said code; to amend and reenact §16-5F-2
of said code; to amend and reenact §16-5O-2 of said code; to amend
and reenact §16-22-1 and §16-22-2 of said code; to amend and
reenact §16-29A-3 of said code; to amend and reenact §16-30-7 and
§16-30-24 of said code; to amend and reenact §27-1-3, §27-1-6,
§27-1-7 and §27-1-9; to amend and reenact §27-1A-1, §27-1A-4 and
§27-1A-6 of said code; to amend and reenact §27-2-1 of said code;
to amend and reenact §27-2A-1 of said code; to amend and reenact
§27-5-9 of said code; to amend and reenact §27-9-1 of said code; to
amend and reenact §27-12-1 of said code; to amend and reenact
§29-15-1, §29-15-5 and §29-15-6 of said code; to amend and reenact §44A-1-1 and §44A-1-2 of said code; and to amend and reenact
§49-4A-6 of said code, all relating to updating code references
relating to intellectually disabled persons; replacing the term
"mentally retarded" with "intellectually disabled" or "individuals
with an intellectual disability"; renaming an intermediate care
facility for the mentally retarded (ICF-MR) to an intermediate care
facility for individuals with an intellectual disability (ICF-ID);
altering definitions of terms; providing that previous terminology
will control in certain situations; clarifying the powers and
duties of the Secretary of the Department of Health and Human
Resources; and deleting obsolete references.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4324, Extending the
expiration date of employment of retired teachers beyond the
post-retirement employment limit.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Chafin, and by unanimous consent,
the bill was advanced to third reading with the right for
amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 4339, Relating to collecting
debts through the United States Treasury Offset Program.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4354, Relating to conditions
and arrests in domestic violence matters.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4513, Establishing
requirements for Marcellus gas well operations use of water
resources.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Energy, Industry and Mining, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §22-6-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §22-6-42; that §22C-8-2 of said
code be amended and reenacted; and that §22C-9-2 of said code be
amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 6. OFFICE OF OIL AND GAS; OIL AND GAS WELLS;
ADMINISTRATION; ENFORCEMENT.
§22-6-1. Definitions.
Unless the context in which used clearly requires a different meaning, as used in this article:
(a) "Casing" means a string or strings of pipe commonly placed
in wells drilled for natural gas or petroleum or both;
(b) "Cement" means hydraulic cement properly mixed with water;
(c) "Chair" means the chair of the West Virginia Shallow Gas
Well Review Board as provided in section four, article eight,
chapter twenty-two-c of this code;
(d) "Coal operator" means any person or persons, firm,
partnership, partnership association or corporation that proposes
to or does operate a coal mine;
(e) "Coal seam" and "workable coal bed" are interchangeable
terms and mean any seam of coal twenty inches or more in thickness,
unless a seam of less thickness is being commercially worked, or
can in the judgment of the department foreseeably be commercially
worked and will require protection if wells are drilled through it;
(f) "Director" means the director of the Division of
Environmental Protection as established in article one of this
chapter or such other person to whom the director has delegated
authority or duties pursuant to sections six or eight, article one
of this chapter.
(g) (f) "Deep well" means any well other than a shallow well
or coalbed methane well, drilled
and completed in to a formation
at
or below the top of the uppermost member of the "Onondaga Group";
(h) (g) "Expanding cement" means any cement approved by the office of oil and gas which expands during the hardening process,
including, but not limited to, regular oil field cements with the
proper additives;
(i) (h) "Facility" means any facility utilized in the oil and
gas industry in this state and specifically named or referred to in
this article or in article eight or nine of this chapter, other
than a well or well site;
(j) (i) "Gas" means all natural gas and all other fluid
hydrocarbons not defined as oil in this section;
(k) (j) "Oil" means natural crude oil or petroleum and other
hydrocarbons, regardless of gravity, which are produced at the well
in liquid form by ordinary production methods and which are not the
result of condensation of gas after it leaves the underground
reservoirs;
(l) (k) "Owner" when used with reference to any well, shall
include any person or persons, firm, partnership, partnership
association or corporation that owns, manages, operates, controls
or possesses such well as principal, or as lessee or contractor,
employee or agent of such principal;
(m) (l) "Owner" when used with reference to any coal seam,
shall include any person or persons who own, lease or operate such
coal seam;
(n) (m) "Person" means any natural person, corporation, firm,
partnership, partnership association, venture, receiver, trustee, executor, administrator, guardian, fiduciary or other
representative of any kind, and includes any government or any
political subdivision or any agency thereof;
(o) (n) "Plat" means a map, drawing or print showing the
location of a well or wells as herein defined;
(p) (o) "Review board" means the West Virginia shallow gas
well review board as provided
for in section four, article eight,
chapter twenty-two-c of this code;
(q) (p) "Safe mining through of a well" means the mining of
coal in a workable coal bed up to a well which penetrates such
workable coal bed and through such well so that the casing or plug
in the well bore where the well penetrates the workable coal bed is
severed;
(q) "Secretary" means the Secretary of the Department of
Environmental Protection as established in article one of this
chapter or such other person to whom the secretary has delegated
authority or duties pursuant to sections six or eight, article one
of this chapter;
(r) "Shallow well" means any gas well,
other than a coalbed
methane well, drilled
and completed in a formation above the top of
the uppermost member of the "Onondaga Group" no deeper than one
hundred feet below the top of the "Onondaga Group": Provided, That
in drilling a shallow well the operator may penetrate into the
"Onondaga Group" to a reasonable depth, not in excess of twenty feet, in order to allow for logging and completion operations, but
in no event may the "Onondaga Group" formation
or any formation
below the "Onondaga Group" be otherwise produced, perforated or
stimulated in any manner;
(s) "Stimulate" means any action taken by a well operator to
increase the inherent productivity of an oil or gas well,
including, but not limited to, fracturing, shooting or acidizing,
but excluding cleaning out, bailing or workover operations;
(t) "Waste" means: (i) Physical waste, as the term is
generally understood in the oil and gas industry; (ii) the
locating, drilling, equipping, operating or producing of any oil or
gas well in a manner that causes, or tends to cause a substantial
reduction in the quantity of oil or gas ultimately recoverable from
a pool under prudent and proper operations, or that causes or tends
to cause a substantial or unnecessary or excessive surface loss of
oil or gas; or (iii) the drilling of more deep wells than are
reasonably required to recover efficiently and economically the
maximum amount of oil and gas from a pool; (iv) substantially
inefficient, excessive or improper use, or the substantially
unnecessary dissipation of, reservoir energy, it being understood
that nothing in this chapter shall be construed to authorize any
agency of the state to impose mandatory spacing of shallow wells
except for the provisions of section eight, article nine, chapter
twenty-two-c of this code and the provisions of article eight, chapter twenty-two-c of this code; (v) inefficient storing of oil
or gas:
Provided, That storage in accordance with a certificate of
public convenience issued by the Federal Energy Regulatory
Commission shall be conclusively presumed to be efficient and; (vi)
other underground or surface waste in the production or storage of
oil, gas or condensate, however caused. Waste does not include gas
vented or released from any mine areas as defined in section two,
article one, chapter twenty-two-a of this code or from adjacent
coal seams which are the subject of a current permit issued under
article two of chapter twenty-two-a of this code:
Provided,
however, That nothing in this exclusion is intended to address
ownership of the gas;
(u) "Well" means any shaft or hole sunk, drilled, bored or dug
into the earth or into underground strata for the extraction or
injection or placement of any liquid or gas, or any shaft or hole
sunk or used in conjunction with such extraction or injection or
placement. The term "well" does not include any shaft or hole
sunk, drilled, bored or dug into the earth for the sole purpose of
core drilling or pumping or extracting therefrom potable, fresh or
usable water for household, domestic, industrial, agricultural or
public use;
(v) "Well work" means the drilling, redrilling, deepening,
stimulating, pressuring by injection of any fluid, converting from
one type of well to another, combining or physically changing to allow the migration of fluid from one formation to another or
plugging or replugging of any well;
(w) "Well operator" or "operator" means any person or persons,
firm, partnership, partnership association or corporation that
proposes to or does locate, drill, operate or abandon any well as
herein defined;
(x) "Pollutant" shall have the same meaning as provided in
subsection (17), section three, article eleven, chapter twenty-two
of this code; and
(y) "Waters of this state" shall have the same meaning as the
term "waters" as provided in subsection (23), section three,
article eleven, chapter twenty-two of this code.
§22-6-42. Additional permitting requirements for gas wells
withdrawing more than two hundred ten thousand gallons of
water from waters of this state in a calendar month for
fracturing or stimulating gas production; rule-making
authority.
(a) When a gas well operator applies for a well work permit
under section six of this article, and it is reasonably
ascertainable that the operator is likely to withdraw more than two
hundred ten thousand gallons of water in a calendar month from any
waters of this State for use in drilling and completing the well,
the Secretary shall require the operator to submit a water
resources management plan with its application for a well work permit in addition to any other information required to be
submitted under this article. The water resources management plan
shall include the following information:
(1) The type of water source from which withdrawals will be
made and the planned percentage of water withdrawals that will be
made from surface water or groundwater;
(2) The location of each water source from which withdrawals
are planned, including the name of the water source, if any, the
county in which the water withdrawal will occur, and the latitude
and longitude of the planned water withdrawal location and
identification of any public water supply intakes within one mile
downstream of the withdrawal location;
(3) The planned volume of water withdrawals from each water
source based on the best information available at the time;
(4) The months when water withdrawals are planned; and
(5) The planned methods of disposing or reusing any water
associated with drilling and completing the well, would include but
not be limited to, disposing of water into oil and gas wells in
which the fresh water casing has been cemented to the surface:
Provided, That such wells are approved as disposal wells by the
Director of the Oil and Gas Division of the Department of
Environmental Protection.
(b) Withdrawal of water for purposes of this section by an
operator shall comply with water quality standards promulgated pursuant to section seven-b, article eleven, chapter twenty-two of
this code.
(c) The operator shall provide the information required by
subsection (a) of this section based on the information available
and reasonable planning efforts by operators at the time the well
work permit application is submitted.
(d) The Secretary may prescribe forms on which the information
in subsection (a) of this section is to be reported.
(e) The Secretary shall propose rules for legislative approval
in accordance with the provisions of article three, chapter twenty-
nine-a of this code addressing records that must be kept regarding
the management and disposal of water from any well covered by a
well work permit issued pursuant to an application that is subject
to subsection (a) of this section which shall include records
containing: a listing of the additives as presented on material
safety data sheets that are used in water used for fracturing or
stimulating wells; quantities of water utilized and disposed of by
operators; methods for water management or disposal; location of
water disposal site or facility; and a name and address of the
water hauler and the producer for which the water was hauled.
(f) This section is intended to be consistent with and shall
not supersede, revise, repeal or otherwise modify, articles eleven
and twenty-six, of this chapter, and shall not revise, repeal or
otherwise modify the common law doctrine of riparian rights under West Virginia law.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 8. SHALLOW GAS WELL REVIEW BOARD.
§22C-8-2. Definitions.
Unless the context in which used clearly requires a different
meaning, as used in this article:
(1) "Board" means the Shallow Gas Well Review Board provided
for in section four of this article;
(2) "Chair" means the chair of the Shallow Gas Well Review
Board provided
for in section four of this article;
(3) "Coal operator" means any person who proposes to or does
operate a coal mine;
(4) "Coal seam" and "workable coal bed" are interchangeable
terms and mean any seam of coal twenty inches or more in thickness,
unless a seam of less thickness is being commercially worked, or
can in the judgment of the
division department foreseeably be
commercially worked and will require protection if wells are
drilled through it;
(5) "Commission" means the oil and gas conservation commission
provided
for in section four, article nine of this chapter;
(6) "Commissioner" means the oil and gas conservation
commissioner provided
for in section four, article nine of this
chapter;
(7) "Correlative rights" means the reasonable opportunity of
each person entitled thereto to recover and receive without waste
the gas in and under a tract or tracts, or the equivalent thereof;
(8) "Deep well" means any well other than a shallow well
or
coalbed methane well, drilled
and completed in to a formation
at or
below the top of the uppermost member of the "Onondaga Group";
(9)
"Division" Department means the state
Division Department
of Environmental Protection provided
for in chapter twenty-two of
this code;
(10) "Director" means the director of the Division of
Environmental Protection as established in article one, chapter
twenty-two of this code or such other person to whom the director
delegates authority or duties pursuant to sections six or eight,
article one, chapter twenty-two of this code;
(11) (10) "Drilling unit" means the acreage on which the board
decides one well may be drilled under section ten of this article;
(12) (11) "Gas" means all natural gas and all other fluid
hydrocarbons not defined as oil in subdivision (15) of this
section;
(13) (12) "Gas operator" means any person who owns or has the
right to develop, operate and produce gas from a pool and to
appropriate the gas produced therefrom either for such person or
for such person and others. In the event that there is no gas
lease in existence with respect to the tract in question, the person who owns or has the gas rights therein shall be considered
a "gas operator" to the extent of seven eighths of the gas in that
portion of the pool underlying the tract owned by such person, and
a "royalty owner" to the extent of one eighth of such gas;
(14) (13) "Just and equitable share of production" means, as
to each person, an amount of gas in the same proportion to the
total gas production from a well as that person's acreage bears to
the total acreage in the drilling unit;
(15) (14) "Oil" means natural crude oil or petroleum and other
hydrocarbons, regardless of gravity, which are produced at the well
in liquid form by ordinary production methods and which are not the
result of condensation of gas after it leaves the underground
reservoir;
(16) (15) "Owner" when used with reference to any coal seam,
shall include any person or persons who own, lease or operate such
coal seam;
(17) (16) "Person" means any natural person, corporation,
firm, partnership, partnership association, venture, receiver,
trustee, executor, administrator, guardian, fiduciary or other
representative of any kind, and includes any government or any
political subdivision or any agency thereof;
(18) (17) "Plat" means a map, drawing or print showing the
location of one or more wells or a drilling unit;
(19) (18) "Pool" means an underground accumulation of gas in a single and separate natural reservoir (ordinarily a porous
sandstone or limestone). It is characterized by a single natural-
pressure system so that production of gas from one part of the pool
tends to or does affect the reservoir pressure throughout its
extent. A pool is bounded by geologic barriers in all directions,
such as geologic structural conditions, impermeable strata, and
water in the formation, so that it is effectively separated from
any other pools which may be present in the same district or in the
same geologic structure;
(20) (19) "Royalty owner" means any owner of gas in place, or
gas rights, to the extent that such owner is not a gas operator as
defined in subdivision (13) of this section;
(20) "Secretary" means the Secretary of the Department of
Environmental Protection as established in article one, chapter
twenty-two of this code or such other person to whom the secretary
delegates authority or duties pursuant to section six or eight,
article one, chapter twenty-two of this code;
(21) "Shallow well" means any gas well
other than a coalbed
methane well, drilled
and completed in a formation above the top of
the uppermost member of the "Onondaga Group" no deeper than one
hundred feet below the top of the "Onondaga Group": Provided, That
in drilling a shallow well the well operator may penetrate into the
"Onondaga Group" to a reasonable depth, not in excess of twenty
feet, in order to allow for logging and completion operations, but in no event may the "Onondaga Group" formation
or formation below
the Onondaga Group" be
otherwise produced, perforated or stimulated
in any manner;
(22) "Tracts comprising a drilling unit" means that all
separately owned tracts or portions thereof which are included
within the boundary of a drilling unit;
(23) "Well" means any shaft or hole sunk, drilled, bored or
dug into the earth or into underground strata for the extraction,
injection or placement of any liquid or gas, or any shaft or hole
sunk or used in conjunction with such extraction, injection or
placement. The term "well" does not include any shaft or hole
sunk, drilled, bored or dug into the earth for the sole purpose of
core drilling or pumping or extracting therefrom potable, fresh or
usable water for household, domestic, industrial, agricultural or
public use; and
(24) "Well operator" means any person who proposes to or does
locate, drill, operate or abandon any well.
ARTICLE 9. OIL AND GAS CONSERVATION.
§22C-9-2. Definitions.
(a) Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "Commission" means the Oil and Gas Conservation Commission
and "commissioner" means the Oil and Gas Conservation Commissioner
as provided
for in section four of this article;
(2)
"Director" "Secretary" means the
director Secretary of the
division Department of Environmental Protection and "chief" means
the chief of the office of oil and gas;
(3) "Person" means any natural person, corporation,
partnership, receiver, trustee, executor, administrator, guardian,
fiduciary or other representative of any kind, and includes any
government or any political subdivision or any agency thereof;
(4) "Operator" means any owner of the right to develop,
operate and produce oil and gas from a pool and to appropriate the
oil and gas produced therefrom, either for such person or for such
person and others; in the event that there is no oil and gas lease
in existence with respect to the tract in question, the owner of
the oil and gas rights therein shall be considered as "operator" to
the extent of seven eighths of the oil and gas in that portion of
the pool underlying the tract owned by such owner, and as "royalty
owner" as to one-eighth interest in such oil and gas; and in the
event the oil is owned separately from the gas, the owner of the
substance being produced or sought to be produced from the pool
shall be considered as "operator" as to such pool;
(5) "Royalty owner" means any owner of oil and gas in place,
or oil and gas rights, to the extent that such owner is not an
operator as defined in subdivision (4) of this section;
(6) "Independent producer" means a producer of crude oil or
natural gas whose allowance for depletion is determined under Section 613A of the federal Internal Revenue Code in effect on July
1, 1997;
(7) "Oil" means natural crude oil or petroleum and other
hydrocarbons, regardless of gravity, which are produced at the well
in liquid form by ordinary production methods and which are not the
result of condensation of gas after it leaves the underground
reservoir;
(8) "Gas" means all natural gas and all other fluid
hydrocarbons not defined as oil in subdivision (7) of this section;
(9) "Pool" means an underground accumulation of petroleum or
gas in a single and separate natural reservoir (ordinarily a porous
sandstone or limestone). It is characterized by a single natural-
pressure system so that production of petroleum or gas from one
part of the pool affects the reservoir pressure throughout its
extent. A pool is bounded by geologic barriers in all directions,
such as geologic structural conditions, impermeable strata, and
water in the formations, so that it is effectively separated from
any other pools that may be presented in the same district or on
the same geologic structure;
(10) "Well" means any shaft or hole sunk, drilled, bored or
dug into the earth or underground strata for the extraction of oil
or gas;
(11) "Shallow well" means any well
other than coalbed methane
well, drilled
and completed in a formation above the top of the uppermost member of the "Onondaga Group" no deeper than one hundred
feet below the top of the "Onondaga Group": Provided, That
in
drilling a shallow well the operator may penetrate into the
"Onondaga Group" to a reasonable depth, not in excess of twenty
feet, in order to allow for logging and completion operations, but
in no event may the "Onondaga Group" formation
or any formation
below the "Onondaga Group" be
otherwise produced, perforated or
stimulated in any manner;
(12) "Deep well" means any well
or coalbed methane well, other
than a shallow well, drilled
and completed to in a formation
at or
below the top of the uppermost member of the "Onondaga Group";
(13) "Drilling unit" means the acreage on which one well may
be drilled;
(14) "Waste" means and includes:
(A) Physical waste, as that term is generally understood in
the oil and gas industry;
(B) The locating, drilling, equipping, operating or producing
of any oil or gas well in a manner that causes, or tends to cause,
a reduction in the quantity of oil or gas ultimately recoverable
from a pool under prudent and proper operations, or that causes or
tends to cause unnecessary or excessive surface loss of oil or gas;
or
(C) The drilling of more deep wells than are reasonably
required to recover efficiently and economically the maximum amount of oil and gas from a pool. Waste does not include gas vented or
released from any mine areas as defined in section two, article
one, chapter twenty-two-a of this code or from adjacent coal seams
which are the subject of a current permit issued under article two
of chapter twenty-two-a of this code:
Provided, That nothing in
this exclusion is intended to address ownership of the gas;
(15) "Correlative rights" means the reasonable opportunity of
each person entitled thereto to recover and receive without waste
the oil and gas in and under his
or her tract or tracts, or the
equivalent thereof; and
(16) "Just and equitable share of production" means, as to
each person, an amount of oil or gas or both substantially equal to
the amount of recoverable oil and gas in that part of a pool
underlying such person's tract or tracts.
(b) Unless the context clearly indicates otherwise, the use of
the word "and" and the word "or" shall be interchangeable, as, for
example, "oil and gas" shall mean oil or gas or both.
The bill (Eng. Com. Sub. for H. B. No. 4513), as amended, was
then ordered to third 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.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4513) 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 present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4513) passed.
The following amendment to the title of the bill, from the
Committee on Energy, Industry and Mining, was reported by the Clerk
and adopted:
Eng. Com. Sub. for House Bill No. 4513--A Bill to amend and
reenact §22-6-1 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §22-6-
42; to amend and reenact §22C-8-2 of said code; and to amend and
reenact §22C-9-2 of said code, all relating to environmental
regulation of the development of shallow gas well operations;
clarifying the definitions of "shallow well" and "deep well";
establishing gas well operator water resource reporting
requirements; and authorizing the Department of Environmental
Protection to promulgate legislative rules.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4521, Creating a sales tax holiday for
purchases of guns and ammunition.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Wells, the following amendment to the
bill was reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-9n. Annual exemption for purchase of goods in West Virginia.
There is established an annual sales tax holiday on the
purchase of all items as defined in the Streamlined Sales Tax
Agreement in West Virginia, imposed by this article, beginning the
first weekend in July at 12:01 a. m. on that Friday and ending at midnight on Sunday of the same weekend of every calendar year.
This section shall be known as the West Virginia Patriotism Act and
the purchase of goods shall be available only to active duty,
reserve and National Guard military personnel and retired military
personnel.
Following discussion,
Senator Snyder moved that the amendment offered by Senator
Wells to the bill be tabled.
Following a point of inquiry to the President, with resultant
response thereto,
The question being on the adoption of Senator Snyder's
aforestated motion, the same was put and did not prevail.
Senator K. Facemyer arose to a point of order that the
amendment offered by Senator Wells to Engrossed House Bill No. 4521
was not germane to the bill.
Which point of order, the President ruled not well taken.
The question being on the adoption of the amendment offered by
Senator Wells to the bill, and on this question, Senator Wells
demanded the yeas and nays.
The roll being taken, the yeas were: Barnes, Boley, D.
Facemire, Foster, Guills, Snyder and Wells--7.
The nays were: Bowman, Browning, Caruth, Chafin, Deem,
Edgell, K. Facemyer, Fanning, Green, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Stollings, Sypolt, Unger, White, Williams, Yost and
Tomblin (Mr. President)--27.
Absent: None.
So, a majority of those present and voting not having voted in
the affirmative, the President declared the amendment offered by
Senator Wells to the bill (Eng. H. B. No. 4521) rejected.
The bill was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4525, Changing the
composition, powers and responsibilities of the board of Coal Mine
Health and Safety.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Green, as chair of the Committee on
Energy, Industry and Mining, and by unanimous consent, the
unreported Energy, Industry and Mining committee amendment to the
bill was withdrawn.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING;
ADMINISTRATION; ENFORCEMENT.
§22A-1-21. Penalties.
(a) (1) Any operator of a coal mine in which a violation occurs of any health or safety rule or who violates any other
provisions of this chapter shall be assessed a civil penalty by the
director under subdivision (3) of this subsection, which shall be
not more than $3,000, for each violation, unless the director
determines that it is appropriate to impose a special assessment
for said violation, pursuant to the provisions of subdivision (2),
subsection (b) of this section. Each violation constitutes a
separate offense. In determining the amount of the penalty, the
director shall consider the operator's history of previous
violations, whether the operator was negligent, the appropriateness
of the penalty to the size of the business of the operator charged,
the gravity of the violation and the demonstrated good faith of the
operator charged in attempting to achieve rapid compliance after
notification of a violation.
Not later than June 1, 2002, the
director shall promulgate as a rule the procedure for assessing
such civil penalties. This rule will be in effect upon filing,
without regard to the provisions of chapter twenty-nine-a of this
code.
(2)
Any Revisions
to rules relating to the assessment of civil
penalties shall be proposed
for promulgation as legislative rules
in accordance with the provisions of article three, chapter twenty-
nine-a of this code.
(3) Any miner who knowingly violates any health or safety
provision of this chapter or health or safety rule promulgated pursuant to this chapter is subject to a civil penalty assessed by
the director under subdivision (4) of this subsection which shall
not be more than $250 for each occurrence of the violation.
(4) A civil penalty under subdivision (1) or (2) of subsection
(a) of this section or subdivision (1) or (2) of subsection (b) of
this section shall be assessed by the director only after the
person charged with a violation under this chapter or rule
promulgated pursuant to this chapter has been given an opportunity
for a public hearing and the director has determined, by a decision
incorporating the director's findings of fact in the decision, that
a violation did occur and the amount of the penalty which is
warranted and incorporating, when appropriate, an order in the
decision requiring that the penalty be paid. Any hearing under
this section shall be of record.
(5) If the person against whom a civil penalty is assessed
fails to pay the penalty within the time prescribed in the order,
the director may file a petition for enforcement of the order in
any appropriate circuit court. The petition shall designate the
person against whom the order is sought to be enforced as the
respondent. A copy of the petition shall immediately be sent by
certified mail, return receipt requested, to the respondent and to
the representative of the miners at the affected mine or the
operator, as the case may be. The director shall certify and file
in the court the record upon which the order sought to be enforced was issued. The court has jurisdiction to enter a judgment
enforcing, modifying and enforcing as modified, or setting aside,
in whole or in part, the order and decision of the director or it
may remand the proceedings to the director for any further action
it may direct. The court shall consider and determine de novo all
relevant issues, except issues of fact which were or could have
been litigated in review proceedings before a circuit court under
section twenty of this article and, upon the request of the
respondent, those issues of fact which are in dispute shall be
submitted to a jury. On the basis of the jury's findings the court
shall determine the amount of the penalty to be imposed. Subject
to the direction and control of the Attorney General, attorneys
appointed for the director may appear for and represent the
director in any action to enforce an order assessing civil
penalties under this subdivision.
(b) (1) Any operator who knowingly violates a health or safety
provision of this chapter or health or safety rule promulgated
pursuant to this chapter, or knowingly violates or fails or refuses
to comply with any order issued under section fifteen of this
article, or any order incorporated in a final decision issued under
this article, except an order incorporated in a decision under
subsection (a) of this section or subsection (b), section twenty-
two of this article, shall be assessed a civil penalty by the
director under subdivision (5), subsection (a) of this section of not more than $5,000 and for a second or subsequent violation
assessed a civil penalty of not more than $10,000, unless the
director determines that it is appropriate to impose a special
assessment for said violation, pursuant to the provisions of
subdivision (2) of this subsection.
(2) In lieu of imposing a civil penalty pursuant to the
provisions of subsection (a) of this section or subdivision (1) of
this subsection, the director may impose a special assessment if an
operator violates a health or safety provision of this chapter or
health or safety rule promulgated pursuant to this chapter and the
violation is of serious nature and involves one or more of the
following by the operator:
(A) Violations involving fatalities and serious injuries;
(B) Failure or refusal to comply with any order issued under
section fifteen of this article;
(C) Operation of a mine in the face of a closure order;
(D) Violations involving an imminent danger;
(E) Violations involving an extraordinarily high degree of
negligence or gravity or other unique aggravating circumstances; or
(F) A discrimination violation under section twenty-two of
this article.
In situations in which the director determines that there are
factors present which would make it appropriate to impose a special
assessment, the director shall assess a civil penalty of at least $5,000 and of not more than $10,000.
(c) Whenever a corporate operator knowingly violates a health
or safety provision of this chapter or health or safety rules
promulgated pursuant to this chapter, or knowingly violates or
fails or refuses to comply with any order issued under this law or
any order incorporated in a final decision issued under this law,
except an order incorporated in a decision issued under subsection
(a) of this section or subsection (b), section twenty-two of this
article, any director, officer or agent of the corporation who
knowingly authorized, ordered or carried out the violation, failure
or refusal is subject to the same civil penalties that may be
imposed upon a person under subsections (a) and (b) of this
section.
(d) Whoever knowingly makes any false statement,
representation or certification in any application, record, report,
plan or other document filed or required to be maintained pursuant
to this law or any order or decision issued under this law is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $5,000 or imprisoned in the
county jail not
more than six months, or both fined and imprisoned. The conviction
of any person under this subsection shall result in the revocation
of any certifications held by the person under this chapter which
certified or authorized the person to direct other persons in coal
mining by operation of law and bars that person from being issued any license under this chapter, except a miner's certification, for
a period of not less than one year or for a longer period as may be
determined by the director.
(e) Whoever willfully distributes, sells, offers for sale,
introduces or delivers in commerce any equipment for use in a coal
mine, including, but not limited to, components and accessories of
the equipment, who willfully misrepresents the equipment as
complying with the provisions of this law, or with any
specification or rule of the director applicable to the equipment,
and which does not comply with the law, specification or rule, is
guilty of a misdemeanor and, upon conviction thereof, is subject to
the same fine and imprisonment that may be imposed upon a person
under subsection (d) of this section.
(f) There is
created continued in the Treasury of the State of
West Virginia a Special Health, Safety and Training Fund. All
civil penalty assessments collected under this section shall be
collected by the director and deposited with the Treasurer of the
State of West Virginia to the credit of the Special Health, Safety
and Training Fund. The fund shall be used by the director who is
authorized to expend the moneys in the fund for the administration
of this chapter.
ARTICLE 2A. USE OF DIESEL-POWERED EQUIPMENT IN UNDERGROUND COAL
MINES.
PART 3. WEST VIRGINIA DIESEL EQUIPMENT COMMISSION.
§22A-2A-301. The West Virginia Diesel Equipment Commission.
The West Virginia Diesel Equipment Commission, consisting of
six members, is
hereby created in the Office of Miners' Health,
Safety and Training of the bureau of commerce continued, and
commencing July 1, 2010, is a separate independent commission
within the Department of Commerce.
§22A-2A-304. Nomination and appointment of members.
(a) Prior to the appointment of a person to the commission,
the Governor shall request the nomination of a candidate for the
appointment. If the position is to be filled by a person who can
reasonably be expected to represent the viewpoint or interests of
underground coal operators in this state, the Governor shall
request the nomination from the major trade association
representing underground coal operators in this state. If the
position is to be filled by a person who can reasonably be expected
to represent the viewpoint or interests of working miners in this
state, the Governor shall request the nomination from the highest
ranking officer of the major employee organization representing
coal miners in this state.
The Director of the Office of Miner's
Health, Safety and Training or his or her designee and the Health
Safety Administrator shall serve as a nonvoting ex officio member.
(b) The Governor shall appoint a member to serve for the term
for which the person was nominated, and until his or her successor
has been nominated and appointed:
Provided, That if a successor is not appointed within one hundred twenty days after the expiration
of a member's term, a vacancy is deemed to exist. The Governor may
reject a nomination and decline to appoint a nominee only if the
person does not have the qualifications, integrity and
responsibility necessary to enable the person to perform his or her
duties as a member of the commission.
(c) Appointments to fill vacancies on the commission shall be
for the unexpired term of the member to be replaced.
§22A-2A-310. Duties of commission following promulgation of
initial rules.
(a) After the promulgation of the initial rules, the
commission shall have as its primary duties the implementation of
this article and the evaluation and adoption of state of the art
technology and methods, reflected in engines and engine components,
emission control equipment and procedures, that when applied to
diesel-powered underground mining machinery shall reasonably reduce
or eliminate diesel exhaust emissions and enhance protections of
the health and safety of miners. The technology and methods
adopted by the commission shall have been demonstrated to be
reliable. In making a decision to adopt new technology and methods,
the commission shall consider the highest achievable measures of
protection for miners' health and safety through available
technology, engineering controls and performance requirements and
shall further consider the cost, availability, adaptability and suitability of any available technology, engineering controls and
performance requirements as they relate to the use of diesel
equipment in underground coal mines. Any state of the art
technology or methods adopted by the commission shall not reduce or
compromise the level of health and safety protection of miners.
(b) Upon application of a coal mine operator, the commission
shall consider site-specific requests for the use of diesel
equipment in underground coal mines and for the use of alternative
diesel-related health and safety technologies and methods. The
commission's action on applications submitted under this subsection
shall be on a mine-by-mine basis. Upon receipt of a site-specific
application, the commission shall conduct an investigation, which
investigation shall include consultation with the mine operator and
the authorized representatives of the miners at the mine.
Authorized representatives of the miners shall include a Mine
Health and Safety Committee elected by miners at the mine, a person
or persons employed by an employee organization representing miners
at the mine or a person or persons authorized as the representative
or representatives of miners of the mine in accordance with MSHA
regulations at 30 C.F.R. Pt. 40 (relating to representative of
miners). Where there is no authorized representative of the miners,
the commission shall consult with a reasonable number of miners at
the mine. Upon completion of the investigation, the commission may
approve the application for the site-specific request:
Provided, That an application for a site-specific request under this
subsection may be approved only upon a majority vote of all six
members of the commission. All six members must be present when a
vote is taken.
(1) Within one hundred eighty days of receipt of an
application for use of alternative technologies or methods, the
commission shall complete its investigation. The time period may
be extended with the consent of the applicant.
(2) The commission shall have thirty days in which to render
a final decision approving or rejecting the application.
(3) The commission members shall not approve an application
made under this section if, at the conclusion of the investigation,
the commission members have made a determination that the use of
the alternative technology or method will reduce or compromise the
level of health and safety protection of miners.
(4) The written approval of an application for the use of
alternative technologies or methods shall include the results of
the commission's investigation and describe the specific conditions
of use for the alternative technology or method.
(5) The written decision to reject an application for the use
of alternative technologies or methods shall include the results of
the commission's investigation and shall outline in detail the
basis for the rejection.
(c) The commission shall establish conditions for the use of diesel-powered equipment in shaft and slope construction operations
at coal mines.
(d) In performing its functions, the commission shall have
access to the services of the Board of Coal Mine Health and Safety.
The board shall
make clerical available provide administrative
support and assistance
pursuant to section six, article six of this
chapter, to enable the commission to carry out its duties.
(e) Any action taken by the commission to either approve or
reject the use of an alternative technology or method, or establish
conditions under subsection (c) of this section, shall be final and
binding and not subject to further review except where a decision
by the commission may be deemed to be an abuse of discretion or
contrary to law. If any party affected by a decision of the
commission believes that the decision is an abuse of discretion or
contrary to law, that party may file a petition for review with the
circuit court of Kanawha County in accordance with the provisions
of the administrative procedures act relating to judicial review of
governmental determinations. The court, in finding that any
decision made by the commission is an abuse of discretion or
contrary to law, shall vacate and, if appropriate, remand the case.
(f) The powers and duties of the commission shall be limited
to the matters regarding the use of diesel-powered equipment in
underground coal mines.
(g) Appropriations for the funding of the commission and to effectuate the purposes of this article shall be made to a budget
account hereby established for that purpose in the General Revenue
Fund.
Expenditures from this fund are provided for in section six,
article six of this chapter.
(h) The commission may issue a clarifying resolution about the
initial rules and other matters consistent with the powers and
duties of the commission under this article. A unanimous vote is
required for any clarifying resolution by the commission.
ARTICLE 6. Board of Coal Mine Health and Safety.
§22A-6-3. Board continued; membership; method of nomination and
appointment; meetings; vacancies; quorum.
(a) The Board of Coal Mine Health and Safety
heretofore
established, is continued,
as provided by this article. and
commencing July 1, 2010, is a separate independent board within the
Department of Commerce. The board consists of
seven six voting
members
and one ex officio, nonvoting member who are residents of
this state, and who are appointed
as follows: hereinafter specified
in this section:
(1) The Governor shall appoint, by and with the advice and
consent of the Senate, three members to represent the viewpoint of
those operators in this state. When such members are to be
appointed, the Governor shall request from the major trade
association representing operators in this state a list of three
nominees for each such position on the board. All such nominees shall be persons with special experience and competence in health
and safety. There shall be submitted with such list a summary of
the qualifications of each nominee. If the full lists of nominees
are submitted in accordance with the provisions of this
subdivision, the Governor shall make the appointments from the
persons so nominated. For purposes of this subdivision, the major
trade association representing operators in this state is that
association which represents operators accounting for over one half
of the coal produced in mines in this state in the year prior to
the year in which the appointment is to be made.
(2) The Governor shall appoint, by and with the advice and
consent of the Senate, three members who can reasonably be expected
to represent the viewpoint of the working miners of this state.
When members are to be appointed, the Governor shall request from
the major employee organization representing coal miners within
this state a list of three nominees for each position on the board.
The highest ranking official within the major employee organization
representing coal miners within this state shall submit a list of
three nominees for each such position on the board. The nominees
shall have a background in health and safety. The Governor shall
make the appointments from the requested list of nominees.
(3) All appointments made by the Governor under the provisions
of subdivisions (1) and (2) of this subsection shall be with the
advice and consent of the Senate;
and,
(4) The seventh member of the board is the director of the
office of miners' health, safety and training, or his or her
designee, who serves as chair of the board as an ex officio
nonvoting member, except that the director may vote if there is a
tie vote when the board is acting pursuant to subsection (e),
section four of this article or subdivision (3), subsection (f),
section seven of this article. The Director shall furnish to the
board such secretarial, clerical, technical, research and other
services as are necessary to the conduct of the business of the
board, not otherwise furnished by the board; and,
(5) (4) The Director of the Office of Miner's Health, Safety
and Training or his or her designee shall serve as an ex officio,
nonvoting member.
(b) Members serving on the board on
the effective date of this
article July 1, 2010, may continue to serve until the expiration of
their terms.
Thereafter, members shall be nominated and appointed
in the manner provided for in this section and shall serve for a
The term
of is three years. Members are eligible for
reappointment.
(c)
On or after January 1, 2002, The Governor shall appoint,
subject to the approval of a majority of the members of the board
appointed under subdivisions (1) and (2), subsection (a) of this
section, a Health and Safety Administrator in accordance with the
provisions of section six of this article, who shall certify all official records of the board. The Health and Safety Administrator
shall be a full-time officer of the Board of Coal Mine Health and
Safety with the duties provided for in section six of this article.
The Health and Safety Administrator shall have such education and
experience as the Governor deems necessary to properly investigate
areas of concern to the board in the development of rules governing
mine health and safety. The Governor shall appoint as Health and
Safety Administrator a person who has an independent and impartial
viewpoint on issues involving mine safety. The Health and Safety
Administrator shall be a person who has not been during the two
years immediately preceding appointment, and is not during his or
her term, an officer, trustee, director, substantial shareholder,
contractor, consultant or employee of any coal operator, or an
employee or officer of an employee organization or a spouse of any
such person. The Health and Safety Administrator shall have the
expertise to draft proposed rules and shall prepare such rules as
are required by this code and on such other areas as will improve
coal mine health and safety.
(d) The board shall meet at least once during each calendar
month, or more often as may be necessary, and at other times upon
the call of the chair, or upon the request of any three members of
the board. Under the direction of the board, the Health and Safety
Administrator shall prepare an agenda for each board meeting giving
priority to the promulgation of rules as may be required from time to time by this code, and as may be required to improve coal mine
health and safety. The Health and Safety Administrator shall
provide each member of the board with notice of the meeting and the
agenda as far in advance of the meeting as practical, but in any
event, at least five days prior thereto. No meeting of the board
shall be conducted unless said notice and agenda are given to the
board members at least five days in advance, as provided herein,
except in cases of emergency, as declared by the
chair director, in
which event members shall be notified of the board meeting and the
agenda:
in a manner to be determined by the chair: Provided, That
upon agreement of a majority of the quorum present, any scheduled
meeting may be ordered recessed to another day certain without
further notice of additional agenda.
When proposed rules are to be finally adopted by the board,
copies of such proposed rules shall be delivered to members not
less than five days before the meeting at which such action is to
be taken. If not so delivered, any final adoption or rejection of
rules shall be considered on the second day of a meeting of the
board held on two consecutive days, except that by the concurrence
of at least four members of the board, the board may suspend this
rule of procedure and proceed immediately to the consideration of
final adoption or rejection of rules. When a member fails to
appear at three consecutive meetings of the board or at one half of
the meetings held during a one-year period, the Health and Safety Administrator shall notify the member and the Governor of such
fact. Such member shall be removed by the Governor unless good
cause for absences is shown.
(e) Whenever a vacancy on the board occurs, nominations and
appointments shall be made in the manner prescribed in this
section:
Provided, That in the case of an appointment to fill a
vacancy, nominations of three persons for each such vacancy shall
be requested by and submitted to the Governor within thirty days
after the vacancy occurs by the major trade association or major
employee organization, if any, which nominated the person whose
seat on the board is vacant. The vacancy shall be filled by the
Governor within thirty days of his or her receipt of the list of
nominations.
(f) A quorum of the board is
five four members which shall
include
the director of the office of miners' health, safety and
training, or his or her designee, at least two members representing
the viewpoint of operators and at least two members representing
the viewpoint of the working miners, and the board may act
officially by a majority of those members who are present, except
that no vote of the board may be taken unless all
seven six voting
members are present.
§22A-6-4. Board powers and duties.
(a) The board shall adopt as standard rules the "coal mine
health and safety provisions of this chapter". Such standard rules and any other rules shall be adopted by the board without regard to
the provisions of chapter twenty-nine-a of this code. The Board of
Coal Mine Health and Safety shall devote its time toward
promulgating rules in those areas specifically directed by this
chapter and those necessary to prevent fatal accidents and
injuries.
(b) The board shall review such standard rules and, when
deemed appropriate to improve or enhance coal mine health and
safety, revise the same or develop and promulgate new rules dealing
with coal mine health and safety.
(c) The board shall develop, promulgate and revise, as may be
appropriate, rules as are necessary and proper to effectuate the
purposes of article two of this chapter and to prevent the
circumvention and evasion thereof, all without regard to the
provisions of chapter twenty-nine-a of this code:
(1) Upon consideration of the latest available scientific data
in the field, the technical feasibility of standards, and
experience gained under this and other safety statutes, such rules
may expand protections afforded by this chapter notwithstanding
specific language therein, and such rules may deal with subject
areas not covered by this chapter to the end of affording the
maximum possible protection to the health and safety of miners.
(2) No rules promulgated by the board shall reduce or
compromise the level of safety or protection afforded miners below the level of safety or protection afforded by this chapter.
(3) Any miner or representative of any miner, or any coal
operator has the power to petition the circuit court of Kanawha
County for a determination as to whether any rule promulgated or
revised reduces the protection afforded miners below that provided
by this chapter, or is otherwise contrary to law:
Provided, That
any rule properly promulgated by the board pursuant to the terms
and conditions of this chapter creates a rebuttable presumption
that said rule does not reduce the protection afforded miners below
that provided by this chapter.
(4) The director shall cause proposed rules and a notice
thereof to be posted as provided in section eighteen, article one
of this chapter. The director shall deliver a copy of such
proposed rules and accompanying notice to each operator affected.
A copy of such proposed rules shall be provided to any individual
by the director's request. The notice of proposed rules shall
contain a summary in plain language explaining the effect of the
proposed rules.
(5) The board shall afford interested persons a period of not
less than thirty days after releasing proposed rules to submit
written data or comments. The board may, upon the expiration of
such period and after consideration of all relevant matters
presented, promulgate such rules with such modifications as it may
deem appropriate.
(6) On or before the last day of any period fixed for the
submission of written data or comments under subdivision (5) of
this section, any interested person may file with the board written
objections to a proposed rule, stating the grounds therefor and
requesting a public hearing on such objections. As soon as
practicable after the period for filing such objections has
expired, the board shall release a notice specifying the proposed
rules to which objections have been filed and a hearing requested.
(7) Promptly after any such notice is released by the board
under subdivision (6) of this section, the board shall issue notice
of, and hold a public hearing for the purpose of receiving relevant
evidence. Within sixty days after completion of the hearings, the
board shall make findings of fact which shall be public, and may
promulgate such rules with such modifications as it deems
appropriate. In the event the board determines that a proposed
rule should not be promulgated or should be modified, it shall
within a reasonable time publish the reasons for its determination.
(8) All rules promulgated by the board shall be published in
the state register and continue in effect until modified or
superseded in accordance with the provisions of this chapter.
(d) To carry out its duties and responsibilities, the board is
authorized to employ such personnel, including legal counsel,
experts and consultants, as it deems necessary. In addition, the
board, within the appropriations provided for by the Legislature, may conduct or contract for research and studies and is entitled to
the use of the services, facilities and personnel of any agency,
institution, school, college or university of this state.
(e) The director shall within sixty days of a coal mining
fatality or fatalities provide the board with all available reports
regarding such fatality or fatalities.
The board shall review all
such reports
and any recommended
rules submitted by the director, receive any additional
information, and may, on its own initiative, ascertain the cause or
causes of such coal mining fatality or fatalities. Within
one
hundred twenty ninety days of
the receipt of the Federal Mine
Safety and Health Administration's fatal accident report and the
director's report and recommended rules, the board shall review and
consider the presentation of said report and rules and, such review
of each such fatality the board shall promulgate such of said
report or rules as are necessary to prevent the recurrence of such
fatality, if a majority of
the quorum present of
all voting board
members determines that
no additional rules can assist in the
prevention of the specific type of fatality
, the board shall either
accept and promulgate the director's recommended rules, amend the
director's recommended rules or draft new rules, as are necessary
to prevent the recurrence of such fatality. If the board chooses
to amend the director's recommended rules or draft its own rules,
a vote is required within one hundred twenty days as to whether to promulgate the amended rule or the rule drafted by the board:
Provided, That the board may, by majority vote, find that
exceptional circumstances exist and the deadline cannot be met:
Provided, however, That under no circumstances shall such deadline
be extended by more than a total of ninety days. A majority vote
of the board is required to promulgate any such rule.
Likewise, The board shall annually, not later than July 1,
review the major causes of coal mining injuries during the previous
calendar year, reviewing the causes in detail, and shall promulgate
such rules as may be necessary to prevent the recurrence of such
injuries.
Further, the board shall, on or before January 10, of each
year, submit a report to the Governor, President of the Senate and
Speaker of the House, which report shall include, but is not
limited to:
(1) The number of fatalities during the previous calendar
year, the apparent reason for each fatality as determined by the
office of miners' health, safety and training and the action, if
any, taken by the board to prevent such fatality;
(2) Any rules promulgated by the board during the last year;
(3) What rules the board intends to promulgate during the
current calendar year;
(4) Any problem the board is having in its effort to
promulgate rules to enhance health and safety in the mining industry;
(5) Recommendations, if any, for the enactment, repeal or
amendment of any statute which would cause the enhancement of
health and safety in the mining industry;
(6) Any other information the board deems appropriate;
(7) In addition to the report by the board, as herein
contained, each individual member of said board has right to submit
a separate report, setting forth any views contrary to the report
of the board, and the separate report, if any, shall be appended to
the report of the board and be considered a part thereof.
§22A-6-6. Health and Safety Administrator; qualifications; duties;
employees; compensation.
(a) The Governor shall appoint the Health and Safety
Administrator of the board for a term of employment of one year.
The Health and Safety Administrator shall be entitled to have his
or her contract of employment renewed on an annual basis except
where such renewal is denied for cause:
Provided, That the
Governor has the power at any time to remove the Health and Safety
Administrator for misfeasance, malfeasance or nonfeasance:
Provided, however, That the board has the power to remove the
Health and Safety Administrator without cause upon the concurrence
of five members of the board.
(b) The Health and Safety Administrator shall work at the
direction of the board, independently of the director of the office of miners' health, safety and training and has such authority and
shall perform such duties as may be required or necessary to
effectuate this article.
(c) In addition to the Health and Safety Administrator, there
shall be such other
research employees hired by the Health and
Safety Administrator as the board determines to be necessary. The
health and safety administrator shall provide supervision and
direction to the other
research employees of the board in the
performance of their duties.
(d) The employees of the board shall be compensated at rates
determined by the board. The salary of the Health and Safety
Administrator shall be fixed by the Governor:
Provided, That the
salary of the Health and Safety Administrator shall not be reduced
during his or her annual term of employment or upon the renewal of
his or her contract for an additional term. Such salary shall be
fixed for any renewed term at least ninety days before the
commencement thereof.
(e)
(1) Appropriations for the salaries of the Health and
Safety Administrator and any other employees of the board and for
necessary office and operating expenses shall be made to a budget
account
hereby established for those purposes in the General
Revenue Fund. Such account shall be separate from any accounts or
appropriations for the Office of Miners' Health, Safety and
Training.
(2) Expenditures from the funds established in section three
hundred ten, article two-A; section seven, article six; section
four, article seven; section three, article eleven of this chapter
shall be by the Health and Safety Administrator for administrative
and operating expenses, such operating expenses include mine health
and safety, research, education and training programs as determined
by the entities.
(f) The Health and Safety Administrator shall review all coal
mining fatalities and major causes of injuries as mandated by
section four of this article. An analysis of such fatalities and
major causes of injuries shall be prepared for consideration by the
board within ninety days of the occurrence of the accident.
(g) At the direction of the board, the administrator shall
also conduct an annual study of occupational health issues relating
to employment in and around coal mines of this state and submit a
report to the board with findings and proposals to address the
issues raised in such study. The administrator is responsible for
preparing the annual reports required by subsection (e), section
four of this article and section nine of this article.
(h) The administrator shall provide administrative assistance
to the West Virginia Diesel Commission, The State Coal Mine Safety
and Technical Review Committee, Board of Coal Mine Health and
Safety, Board of Miner Training, Education and Certification, and
the Mine Safety Technology Task Force, and serve as the legislative liaison for budgetary issues. The Administrator shall serve as an
ex officio, nonvoting member on the West Virginia Diesel
Commission, The State Coal Mine Safety and Technical Review
Committee, Board of Miner Training, Education and Certification,
and the Mine Safety Technology Task Force.
(i) The administrator shall submit to each board or commission
for its approval, the proposed budget of the board or commission
before submitting it to the Secretary of Revenue.
§22A-6-7. Coal Mine Safety and Technical Review Committee;
membership; method of nomination and appointment; meetings;
quorum; powers and duties of the committee; powers and duties
of the Board of Coal Mine Health and Safety.
(a)
There is hereby continued The State Coal Mine Safety and
Technical Review Committee
is continued, and commencing July 1,
2010, is a separate independent committee within the Department of
Commerce. The purposes of this committee are to:
(1) Assist the Board of Coal Mine Health and Safety in the
development of technical data relating to mine safety issues,
including related mining technology;
(2) Provide suggestions and technical data to the board and
propose rules with general mining industry application;
(3) Accept and consider petitions submitted by individual mine
operators or miners seeking site-specific rule making pertaining to
individual mines and make recommendations to the board concerning such rule making; and
(4) Provide a forum for the resolution of technical issues
encountered by the board,
safety education and coal advocacy
programs.
(b) The committee shall consist of two members who shall be
residents of this state, and who shall be appointed as hereinafter
specified in this section:
(1) The Governor shall appoint one member to represent the
viewpoint of the coal operators in this state from a list
containing one or more nominees submitted by the major trade
association representing coal operators in this state within thirty
days of submission of such nominee or nominees.
(2) The Governor shall appoint one member to represent the
viewpoint of the working miners of this state from a list
containing one or more nominees submitted by the highest ranking
official within the major employee organization representing coal
mines within this state within thirty days of submission of the
nominee or the nominees.
(3) The members appointed in accordance with the provisions of
subdivisions (1) and (2) of this subsection shall be initially
appointed to serve a term of three years. The members serving on
the effective date of this article may continue to serve until
their terms expire.
(4) The members appointed in accordance with the provisions of subdivisions (1) and (2) of this subsection may be, but are not
required to be, members of the Board of Coal Mine Health and
Safety, and shall be compensated on a per diem basis in the same
amount as provided in section ten of this article, plus all
reasonable expenses.
(c)The committee shall meet at least once during each calendar
month, or more often as may be necessary.
(d) A quorum of the committee shall require both members, and
the committee may only act officially by a quorum.
(e) The committee may review any matter relative to mine
safety and mining technology, and may pursue development and
resolution of issues related thereto. The committee may make
recommendations to the board for the promulgation of rules with
general mining industry application. Upon receipt of a unanimous
recommendation for rule making from the committee and only thereon,
the board may adopt or reject such rule, without modification
except as approved by the committee:
Provided, That any adopted
rule shall not reduce or compromise the level of safety or
protection below the level of safety or protection afforded by
applicable statutes and rules. When so promulgated, such rules
shall be effective, notwithstanding the provisions of applicable
statutes.
(f) (1) Upon application of a coal mine operator, or on its
own motion, the committee has the authority to accept requests for site-specific rule making on a mine-by-mine basis, and make
unanimous recommendations to the board for site-specific rules
thereon. The committee has authority to approve a request if it
concludes that the request does not reduce or compromise the level
of safety or protection afforded miners below the level of safety
or protection afforded by any applicable statutes or rules. Upon
receipt of a request for site-specific rule making, the committee
may conduct an investigation of the conditions in the specific mine
in question, which investigation shall include consultation with
the mine operator and authorized representatives of the miners.
Such authorized representatives of the miners shall include any
person designated by the employees at the mine, persons employed by
an employee organization representing one or more miners at the
mine, or a person designated as a representative by one or more
persons at the mine.
(2) If the committee determines to recommend a request made
pursuant to subdivision (1) of this subsection, the committee shall
provide the results of its investigation to the Board of Coal Mine
Health and Safety along with recommendations for the development of
the site-specific rules applicable to the individual mine, which
recommendations may include a written proposal containing draft
rules.
(3) Within thirty days of receipt of the committee's
recommendation, the board shall adopt or reject, without modification, except as approved by the committee, the committee's
recommendation to promulgate site-specific rules applicable to an
individual mine adopting such site-specific rules only if it
determines that the application of the requested rule to such mine
will not reduce or compromise the level of safety or protection
afforded miners below that level of safety or protection afforded
by any applicable statutes. When so promulgated, such rules shall
be effective notwithstanding the provisions of applicable statutes.
(g) The board shall consider all rules proposed by the Coal
Mine Safety and Technical Review Committee and adopt or reject,
without modification, except as approved by the committee, such
rules, dispensing with the preliminary procedures set forth in
subdivisions (1) through (7), subsection (a), section five; and, in
addition, with respect to site-specific rules also dispensing with
the procedures set forth in subdivisions (4) through (8),
subsection (c), section four of this article.
(h) In performing its functions, the committee has access to
the services of the coal mine Health and Safety Administrator
appointed under section six of this article. The director shall
make clerical support and assistance available in order that the
committee can carry out its duties. Upon the request of both
members of the committee, the Health and Safety Administrator shall
draft proposed rules and reports or make investigations.
(i) The powers and duties provided for in this section for the committee are not intended to replace or precondition the authority
of the Board of Coal Mine Health and Safety to act in accordance
with sections one through six and eight through ten of this
article.
(j) Appropriations for the funding of the committee and to
effectuate this section shall be made to a budget account hereby
established for that purpose in the General Revenue Fund. Such
account shall be separate from any accounts or appropriations for
the office of miners' health, safety and training.
ARTICLE 7. BOARD OF MINER TRAINING, EDUCATION AND CERTIFICATION.
§22A-7-4. Board of Miner Training, Education and Certification
continued; membership; method of appointment; terms.
(a)
There is hereby continued a The Board of Miner Training,
Education and Certification
which is continued, and commencing July
1, 2010, is a separate independent board within the Department of
Commerce. The board consists of
seven six voting members
and two
ex officio, nonvoting members, who are selected in the following
manner:
(1) One member shall be appointed by the Governor to represent
the viewpoint of surface mine operators in this state. When such
member is to be appointed, the Governor shall request from the
major association representing surface coal operators in this state
a list of three nominees to the board. The Governor shall select
from said nominees one person to serve on the board. For purposes of this subsection, the major association representing the surface
coal operators in this state is that association, if any, which
represents surface mine operators accounting for over one half of
the coal produced in surface mines in this state in the year prior
to that year in which the appointment is made.
(2) Two members shall be appointed by the Governor to
represent the interests of the underground operators of this state.
When said members are to be appointed, the Governor shall request
from the major association representing the underground coal
operators in this state a list of six nominees to the board. The
Governor shall select from said nominees two persons to serve on
the board. For purposes of this subsection, the major association
representing the underground operators in this state is that
association, if any, which represents underground operators
accounting for over one half of the coal produced in underground
mines in this state in the year prior to that year in which the
appointments are made.
(3) Three members shall be appointed by the Governor who can
reasonably be expected to represent the interests of the working
miners in this state. If the major employee organization
representing coal miners in this state is divided into
administrative districts, the employee organization of each
district shall, upon request by the Governor, submit a list of
three nominees for membership on the board. If such major employee organization is not so divided into administrative districts, such
employee organization shall, upon request by the Governor, submit
a list of twelve nominees for membership on the board. The
Governor shall make such appointments from the persons so
nominated:
Provided, That in the event nominations are made by
administrative districts, not more than one member shall be
appointed from the nominees of any one district unless there are
less than three such districts in this state.
(4)
The seventh member of the board, who serves as chair,
shall be the director of the office of miners' health, safety and
training The Director of the Office of Miner's Health, Safety and
Training or his or her designee, and the Health and Safety
Administrator of the Board of Coal Mine Health and Safety shall
serve as ex officio, nonvoting members.
(5) All appointments made by the Governor under this section
shall be with the advice and consent of the Senate:
Provided, That
persons so appointed while the Senate of this state is not in
session are permitted to serve up to one year in an acting
capacity, or until the next session of the Legislature, whichever
is less.
(b) The board shall be appointed by the Governor. Members
serving on the effective date of this article may continue on the
board until their terms expire. Appointed members serve for a term
of three years. The board shall meet at the call of the chair, at the call of the director, or upon the request of any two members of
the board:
Provided, That no meeting of the board for any purpose
shall be conducted unless the board members are notified at least
five days in advance of a proposed meeting. In cases of an
emergency, members may be notified of a board meeting by the most
appropriate means of communication available.
(c) Whenever a vacancy on the board occurs, appointments shall
be made in the manner prescribed in this section:
Provided, That
in the case of an appointment to fill a vacancy nominations shall
be submitted to the Governor within thirty days after the vacancy
occurs. The vacancy shall be filled by the Governor within thirty
days of receipt of the list of nominations.
(d) Each appointed member of the board shall be paid the same
compensation, and each member of the board shall be paid the
expense reimbursement, as is paid to members of the Legislature for
their interim duties as recommended by the citizens legislative
compensation commission and authorized by law for each day or
portion thereof engaged in the discharge of official duties. Any
such amounts shall be paid out of the State Treasury upon a
requisition upon the State Auditor, properly certified by such
members of the board.
(e) A quorum of the board is four members,
with two
representing the viewpoint of the operators and two representing
the viewpoint of the labor organization. The board may act officially by a majority of those members who are present.
No vote
of the board may be taken unless all six voting members are
present.
(f)
The chair of the board shall be a nonvoting member. In
performing its functions, the board shall have access to the
services of the Board of Coal Mine Health and Safety. The Board of
Coal Mine Health and Safety shall provide administrative support
and assistance, pursuant to section six, article six of this
chapter, to enable the board to carry out its duties. Provided,
That in cases of a tie, the chair shall cast the deciding vote on
the issue or issues under consideration
(g)
The director of the office of miners' health, safety and
training shall select a member of the office's staff to serve as
the secretary to the board and the secretary shall be present or
send an authorized representative to all meetings of the board.
Appropriations to the board to effectuate the purposes of this
article shall be made to a budget account established for that
purpose.
§22A-7-6. Duties of the director and office.
The director shall
be empowered to promulgate propose rules
for legislative approval, pursuant to chapter twenty-nine-a of this
code,
such reasonable rules as that are necessary to establish a
program to implement the provisions of this article. Such program
shall include, but not be limited to, implementation of a program of instruction in each of the miner occupational specialties and
the conduct of examinations to test each applicant's knowledge and
understanding of the training and instruction which he or she is
required to have prior to the receipt of a certificate.
The director is authorized and directed to utilize state mine
inspectors, mine safety instructors, the state mine foreman
examiner, private and public institutions of education and such
other persons as may be available in implementing the program of
instruction and examinations.
The director may, at any time, make such recommendations
or
supply such information to the board as he or she may deem
appropriate.
The director shall supply any information upon request of the
board as long as the information is not in violation of any other
laws.
The director is authorized and directed to utilize such state
and federal moneys and personnel as may be available to the office
for educational and training purposes in the implementation of the
provisions of this article.
ARTICLE 11. MINE SAFETY TECHNOLOGY.
§22A-11-2. Mine Safety Technology Task Force continued;
membership; method of nomination and appointment.
(a) The Mine Safety Technology Task Force
created and existing
under the authority of the director pursuant to the provisions of section six, article one of this chapter is continued,
as provided
by this article and commencing July 1, 2010, is a separate
independent task force within the Department of Commerce.
(b) The task force shall consist of
nine seven voting members
and two ex officio, nonvoting members who are appointed as
specified in this section:
(1) The Governor shall appoint, by and with the advice and
consent of the Senate, three members to represent the viewpoint of
operators in this state. When these members are to be appointed,
the Governor shall request from the major trade association
representing operators in this state a list of three nominees for
each position on the task force. All nominees shall be persons
with special experience and competence in coal mine health and
safety. There shall be submitted with the list, a summary of the
qualifications of each nominee. For purposes of this subdivision,
the major trade association representing operators in this state is
that association which represents operators accounting for over one
half of the coal produced in mines in this state in the year prior
to the year in which the appointment is to be made.
(2) The Governor shall appoint, by and with the advice and
consent of the Senate, three members who can reasonably be expected
to represent the viewpoint of the working miners of this state.
When members are to be appointed, the Governor shall request from
the major employee organization representing coal miners within this state a list of three nominees for each position on the task
force. The highest ranking official within the major employee
organization representing coal miners within this state shall
submit a list of three nominees for each position on the board.
The nominees shall have a background in coal mine health and
safety.
(3) The Governor shall appoint, by and with the advice and
consent of the Senate, one certified mine safety professional from
the College of Engineering and Mineral Resources at West Virginia
University;
(4)
The Governor shall appoint, by and with the advice and
consent of the Senate, one attorney with experience in issues
relating to coal mine health and safety; and The Health and Safety
Administrator, pursuant to section six, article six of this
chapter, shall serve as a member of the task force as an ex
officio, nonvoting member; and
(5)
The ninth member of the task force is the director, or his
or her designee, who shall serve as chair of the task force. The
director shall furnish to the task force any secretarial, clerical,
technical, research and other services that are necessary to the
conduct of the business of the task force. The Director of the
Office of Miner's Health, Safety and Training or his or her
designee, shall serve as a ex officio, nonvoting member.
(c) Each appointed member of the task force shall serve at the will and pleasure of the Governor.
(d) Whenever a vacancy on the task force occurs, nominations
and appointments shall be made in the manner prescribed in this
section:
Provided, That in the case of an appointment to fill a
vacancy, nominations of three persons for each vacancy shall be
requested by and submitted to the Governor within thirty days after
the vacancy occurs by the major trade association or major employee
organization, if any, which nominated the person whose seat on the
task force is vacant.
(e) Each member of the task force shall be paid the expense
reimbursement, as is paid to members of the Legislature for their
interim duties as recommended by the Citizens Legislative
Compensation Commission and authorized by law for each day or
portion thereof engaged in the discharge of official duties. In
the event the expenses are paid by a third party, the member shall
not be reimbursed by the state. The reimbursement shall be paid
out of the State Treasury upon a requisition upon the State
Auditor, properly certified by the Office of Miners' Health, Safety
and Training. An employer shall not prohibit a member of the task
force from exercising leave of absence from his or her place of
employment in order to attend a meeting of the task force or a
meeting of a subcommittee of the task force, or to prepare for a
meeting of the task force, any contract of employment to the
contrary notwithstanding.
§22A-11-3. Task force powers and duties.
(a) The task force shall provide technical and other
assistance to the office related to the implementation of the new
technological requirements set forth in the provisions of section
fifty-five, article two, of this chapter, as amended and reenacted
during the regular session of the Legislature in the year 2006, and
requirements for other mine safety technologies.
(b) The task force, working in conjunction with the director,
shall continue to study issues regarding the commercial
availability, the functional and operational capability and the
implementation, compliance and enforcement of the following
protective equipment:
(1) Self-contained self-rescue devices, as provided in
subsection (f), section fifty-five, article two of this chapter;
(2) Wireless emergency communication devices, as provided in
subsection (g), section fifty-five, article two of this chapter;
(3) Wireless emergency tracking devices, as provided in
subsection (h), section fifty-five, article two of this chapter;
and
(4) Any other protective equipment required by this chapter or
rules promulgated in accordance with the law that the director
determines would benefit from the expertise of the task force.
(c) The task force shall on a continuous basis study, monitor
and evaluate:
(1) The potential for enhancing coal mine health and safety
through the application of existing technologies and techniques;
(2) Opportunities for improving the integration of
technologies and procedures to increase the performance and
survivability of coal mine health and safety systems;
(3) Emerging technological advances in coal mine health and
safety; and
(4) Market forces impacting the development of new
technologies, including issues regarding the costs of research and
development, regulatory certification and incentives designed to
stimulate the marketplace.
(d) On or before July 1 of each year, the task force shall
submit a report to the Governor and the Board of Coal Mine Health
and Safety that shall include, but not be limited to:
(1) A comprehensive overview of issues regarding the
implementation of the new technological requirements set forth in
the provisions of section fifty-five, article two of this chapter,
or rules promulgated in accordance with the law;
(2) A summary of any emerging technological advances that
would improve coal mine health and safety;
(3) Recommendations, if any, for the enactment, repeal or
amendment of any statute which would enhance technological
advancement in coal mine health and safety; and
(4) Any other information the task force considers appropriate.
(e) In performing its duties, the task force shall, where
possible, consult with, among others, mine engineering and mine
safety experts, radiocommunication and telemetry experts and
relevant state and federal regulatory personnel.
(f) Appropriations to the task force commission and to
effectuate the purposes of this article shall be made to one or
more budget accounts established for that purpose.
The bill (Eng. Com. Sub. for H. B. No. 4525), as amended, was
then ordered to third 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.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4525) 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 present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4525) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4527, Limiting the liability
of apiary owners and operators.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 13. INSPECTION AND PROTECTION OF AGRICULTURE.
§19-13-4. Registration of bees; identification of apiaries;
limitation on liability.
(a) All persons keeping bees in this state shall apply for a certificate of registration for bee keeping from the commissioner,
within ten days of the date that bees are acquired, by notifying
the commissioner, in writing, of the number and location of
colonies they own or rent, or which they keep for someone else,
whether the bees are located on their own property or someone
else's property. All apiary certificates of registration expire on
December 31, of each year and must be renewed annually.
(b) All persons owning or operating an apiary which is not
located on their own property must post the name and address of the
owner or operator in a conspicuous place in the apiary.
(c) A person who:
(1) Owns and operates an apiary;
(2) Is registered with the Commissioner; and
(3) Operates the apiary in a reasonable manner and in
conformance with the West Virginia Department of Agriculture's
written best management practices provided by rule, is not liable
for any personal injury or property damage that occurs in
connection with the keeping and maintaining of bees, bee equipment,
queen breeding equipment, apiaries and appliances. The limitation
of liability established by this section does not apply to
intentional tortious conduct or acts or omissions constituting
gross negligence.
The limitation on liability in this subsection shall not take
effect until legislative rules promulgated by the Commissioner of Agriculture are authorized by the Legislature. However, the
Commissioner of Agriculture shall have the authority to promulgate
emergency rules under this subsection.
The bill (Eng. Com. Sub. for H. B. No. 4527), as amended, was
then ordered to third 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.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4527) 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 present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4527) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4527--A Bill to amend and
reenact §19-13-4 of the Code of West Virginia, 1931, as amended,
relating to limiting the liability of apiary owners and operators;
requiring the Department of Agriculture to promulgate best
practices rules; and authorizing emergency rulemaking power.
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. 4527) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4531, Mandating that
shackling of pregnant women who are incarcerated is not allowed
except in extraordinary circumstances.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
CHAPTER 25. DIVISION OF CORRECTIONS.
ARTICLE 1. ORGANIZATION, INSTITUTIONS AND CORRECTIONS MANAGEMENT.
§25-1-16. Transfer of inmates of state institutions or facilities.
The State Commissioner of Corrections
Public Institutions
shall have authority to cause the transfer of any
patient or inmate
from any
state institution or correctional facility to any other
state or federal institution or facility which is better
fitted
equipped for the care or treatment of such
patient or inmate, or
for other good cause or reason.
Whenever
a convict in a state prison an inmate committed to
the custody of corrections becomes mentally ill
and his or her
needs cannot be properly met within the correctional facility, the
warden commissioner shall proceed in accordance with section thirty-one, article five, chapter twenty-eight of this code.
Whenever
a convict in a state prison an inmate committed to
the custody of corrections needs medical attention, other than
mental
health care, not available at said prison, the warden or
superintendent administrator of said
prison correctional facility
shall immediately notify the Commissioner of
Public Institutions,
Corrections who, after proper investigation, shall cause the
transfer of said
convict inmate to a
hospital within the State of
West Virginia facility properly equipped to render the medical
attention necessary. Such
a convict, inmate, while receiving
treatment in said hospital, shall be under
guard an appropriate
level of supervision at all times and shall forthwith be returned
to
prison his or her correctional facility upon
his recovery
release from said facility.
In providing or arranging for the necessary medical and other
care and treatment of a pregnant inmate, the warden or
administrator of the correctional facility shall take reasonable
measures to assure that pregnant inmates will not be restrained
after reaching the second trimester of pregnancy until the end of
the pregnancy: Provided, That if the inmate, based upon her
classification, discipline history, or other factors deemed
relevant by the warden or administrator poses a threat of escape,
or to the safety of herself, the public, staff or the fetus, the
inmate may be restrained in a manner reasonably necessary: Provided, however, That prior to directing the application of
restraints and where there is no threat to the safety of the
inmate, the public, staff or the fetus, the warden, administrator
or designee shall consult with an appropriate health care
professional to assure that the manner of restraint will not pose
an unreasonable risk of harm to the inmate or the fetus.
CHAPTER 31. CORPORATIONS.
ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY.
§31-20-30a. Mechanical restraints during pregnancy.
In providing or arranging for the necessary medical and other
care and treatment of inmates committed to the Regional Jail
Authority's custody, the authority shall assure that pregnant
inmates will not be restrained after reaching the second trimester
of pregnancy until the end of the pregnancy:
Provided, That if the
inmate, based upon her classification, discipline history, or other
factors deemed relevant by the authority poses a threat of escape,
or to the safety of herself, the public, staff or the fetus, the
inmate may be restrained in a manner reasonably necessary.
Provided, however, That prior to directing the application of
restraints and where there is no threat to the safety of the
inmate, the public, staff or the fetus, the director or designee
shall consult with an appropriate health care professional to
assure that the manner of restraint will not pose an unreasonable risk of harm to the inmate or the fetus.
CHAPTER 49. CHILD WELFARE.
ARTICLE 5E. DIVISION OF JUVENILE SERVICES.
§49-5E-6. Medical and other treatment of juveniles in custody of
the division; coordination of care and claims
processing and administration by the department;
authorization of certain cooperative agreements.
(a) Notwithstanding any other provision of law to the
contrary, the director, or his or her designee, is hereby
authorized to consent to the medical or other treatment of any
juvenile in the legal or physical custody of the director or the
division.
(b) In providing or arranging for the necessary medical and
other care and treatment of juveniles committed to the division's
custody, the director shall utilize service providers who provide
the same or similar services to juveniles under existing contracts
with the Department of Health and Human Resources. In order to
obtain the most advantageous reimbursement rates, to capitalize on
an economy of scale and to avoid duplicative systems and
procedures, the department shall administer and process all claims
for medical or other treatment of juveniles committed to the
division's custody.
(c) In providing or arranging for the necessary medical and
other care and treatment of juveniles committed to the division's custody, the director shall assure that pregnant inmates will not
be restrained after reaching the second trimester of pregnancy
until the end of the pregnancy: Provided, That if the inmate,
based upon her classification, discipline history or other factors
deemed relevant by the director poses a threat of escape, or to the
safety of herself, the public, staff, or the unborn child, the
inmate may be restrained in a manner reasonably necessary:
Provided, however, That prior to directing the application of
restraints and where there is no threat to the safety of the
inmate, the public, staff or the fetus, the director or designee
shall consult with an appropriate health care professional to
assure that the manner of restraint will not pose an unreasonable
risk of harm to the inmate or the fetus.
(c) (d) For purposes of implementing the mandates of this
section, the director is hereby authorized and directed to enter
into any necessary agreements with the Department of Health and
Human Resources. Any such agreement shall specify, at a minimum,
for the direct and incidental costs associated with such care and
treatment to be paid by the Division of Juvenile Services.
The bill (Eng. Com. Sub. for H. B. No. 4531), as amended, was
then ordered to third 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.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4531) 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 present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4531) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4604, Increasing the criminal penalties for persons who obstruct, flee from or make
false statements to law-enforcement officers.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-17. Obstructing officer; fleeing from officer; making false
statements to officer; penalties; definitions.
(a) Any person who by threats, menaces, acts or otherwise,
forcibly or illegally hinders or obstructs, or attempts to hinder
or obstruct, any law-enforcement officer, probation officer or
parole officer acting in his or her official capacity is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not less
than $50 nor more than $500 or confined in
the county or regional
jail not more than one year, or both
fined and confined.
(b) Any person who intentionally disarms or attempts to disarm
any law-enforcement officer,
probation officer or parole officer,
acting in his or her official capacity, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in
the a state
correctional facility not less than one nor more than five years.
(c) Any person who, with intent to impede or obstruct a law-enforcement officer in the conduct of an investigation of a
felony offense, knowingly and willfully makes a materially false
statement, is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $25 and not more than $200, or
confined in
the county or regional jail for five days, or both
Provided, That fined or confined. However, the provisions of this
section
shall do not apply to statements made by a spouse, parent,
stepparent, grandparent, sibling, half-sibling, child, stepchild or
grandchild, whether related by blood or marriage, of the person
under investigation. Statements made by the person under
investigation may not be used as the basis for prosecution under
this subsection. For the purposes of this subsection, "law-
enforcement officer"
shall does not include
a watchman,
a member of
the West Virginia State Police or college security personnel
who is
not a certified law-enforcement officer.
(d) Any person who intentionally flees or attempts to flee by
any means other than the use of a vehicle from any law-enforcement
officer, probation officer or parole officer acting in his or her
official capacity who is attempting to make a lawful arrest of the
person, and who knows or reasonably believes that the officer is
attempting to arrest him or her, is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than $50 nor more
than $500 or confined in
the county or regional jail not more than
one year, or both.
(e) Any person who intentionally flees or attempts to flee in
a vehicle from any law-enforcement officer, probation officer or
parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the
person to stop, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $500 nor more than $1,000 and
shall be
confined imprisoned in
the county or regional jail not
more than a state correctional facility less than one year
nor more
than five years, or both.
(f) Any person who intentionally flees or attempts to flee in
a vehicle from any law-enforcement officer, probation officer or
parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the
person to stop, and who operates the vehicle in a manner showing a
reckless indifference to the safety of others, is guilty of a
felony and, upon conviction thereof, shall be fined not less than
$1,000 nor more than $2,000, and shall be imprisoned in a state
correctional facility not less than one nor more than five years.
(g) Any person who intentionally flees or attempts to flee in
a vehicle from any law-enforcement officer, probation officer or
parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the
person to stop, and who causes damage to the real or personal
property of any person during or resulting from his or her flight, is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $1,000 nor more than $3,000 and shall be
confined in the county or regional jail for not less than six
months nor more than one year.
(h) Any person who intentionally flees or attempts to flee in
a vehicle from any law-enforcement officer, probation officer or
parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the
person to stop, and who causes bodily injury to any person during
or resulting from his or her flight, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state
correctional facility not less than
one three nor more than
five
ten years.
(i) Any person who intentionally flees or attempts to flee in
a vehicle from any law-enforcement officer, probation officer or
parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the
person to stop, and who causes death to any person during or
resulting from his or her flight, is guilty of a felony and, upon
conviction thereof, shall be punished by a definite term of
imprisonment in a state correctional facility which is not less
than
three five nor more than fifteen years. A person imprisoned
pursuant to the provisions of this subsection is not eligible for
parole prior to having served a minimum of three years of his or her sentence or the minimum period required by the provisions of
section thirteen, article twelve, chapter sixty-two of this code,
whichever is greater.
(j) Any person who intentionally flees or attempts to flee in
a vehicle from any law-enforcement officer, probation officer or
parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the
person to stop, and who is under the influence of alcohol,
controlled substances or drugs at the time, is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state
correctional facility not less than
one three nor more than
five
ten years.
(k) For purposes of this section, the term "vehicle" includes
any motor vehicle, motorcycle, motorboat, all-terrain vehicle or
snowmobile, as those terms are defined in section one, article one,
chapter seventeen-a of this code, whether or not it is being
operated on a public highway at the time and whether or not it is
licensed by the state.
(l) For purposes of this section, the terms "flee," "fleeing"
and "flight" do not include any person's reasonable attempt to
travel to a safe place, allowing the pursuing law-enforcement
officer to maintain appropriate surveillance, for the purpose of
complying with the officer's direction to stop.
(m) The revisions to subsections (e), (f), (g) and (h) of this article enacted during the Regular Session of the 2010 Regular
Legislative Session shall be known as the "Jerry Alan Jones Act."
The bill (Eng. Com. Sub. for H. B. No. 4604), as amended, was
then ordered to third 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.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4604) 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 present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4604) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4604--A Bill
to amend and
reenact §61-5-17 of the Code of West Virginia, 1931, as amended,
relating to increasing the criminal penalties for crimes against
law enforcement, probation and parole officers; establishing crime
for disarming or attempting to disarm probation and parole
officers; establishing new crime for reckless fleeing from law
enforcement officers and parole and probation officers; increasing
penalties for fleeing or attempting to flee in a vehicle;
increasing penalties for fleeing or attempting to flee in a vehicle
causing property damage; increasing penalties for fleeing or
attempting to flee in a vehicle causing injury; increasing
penalties for fleeing or attempting to flee in a vehicle causing
death; and designating this act as the "Jerry Alan Jones Act."
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4647, Relating to the
regulation and control of elections.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the bill was withdrawn.
Thereafter, at the request of Senator Chafin, and by unanimous
consent, the bill was advanced to third reading with the right for
amendments to be considered on that reading.
At the request of Senator Kessler, and by unanimous consent,
the Senate returned to the sixth order of business, which agenda
includes the making of main motions.
On motion of Senator Kessler, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2773, Increasing the
monetary penalties for selling tobacco products to minors.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Kessler, the Senate reconsidered its
action by which in earlier proceedings today it adopted the
Judiciary committee amendment to the title of the bill (shown in
the Senate Journal of today, page 45).
The vote thereon being reconsidered,
The question again being on the adoption of the Judiciary
committee amendment to the title of the bill.
At the request of Senator Kessler, as chair of the Committee on the Judiciary, unanimous consent was granted to withdraw the
Judiciary committee amendment to the title of the bill.
The bill was read a third time and put upon its passage.
Om 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 those present and voting having voted in the
affirmative, the President declared the bill (Eng. Com. Sub. for H.
B. No. 2773) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
On motion of Senator Minard, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 4260, Relating to insurance
adjusters.
Passed by the Senate on yesterday, Thursday, March 11, 2010,
The bill now being in the possession of the Senate,
On motion of Senator Minard, the Senate reconsidered its
action by which on yesterday, Thursday, March 11, 2010, it adopted the Banking and Insurance committee amendment to the title of the
bill (shown in the Senate Journal of yesterday, Thursday, March 11,
2010, page 38).
The vote thereon being reconsidered,
The question again being on the adoption of the Banking and
Insurance committee amendment to the title of the bill.
At the request of Senator Minard, as chair of the Committee on
the Banking and Insurance, unanimous consent was granted to
withdraw the Banking and Insurance committee amendment to the title
of the bill.
On motion of Senator Minard, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4260--A Bill
to repeal
§33-12B-2 and §33-12B-13 of the Code of West Virginia, 1931, as
amended; to amend and reenact §33-12B-1, §33-12B-3, §33-12B-5,
§33-12B-9, §33-12B-10 and §33-12B-11 of said code; to amend said
code by adding thereto a new section, designated §33-12B-10a, all
relating to insurance adjusters; providing definitions; permitting
an adjuster to designate a home state; establishing a new crop
adjuster license and its qualifications; revising the requirements
for nonresident adjusters; revising licensing renewal requirements;
requiring notification by adjusters of legal actions taken against
them; granting the Insurance Commissioner the authority to examine
the business practices of persons holding or applying for adjuster
licenses; clarifying the hearing process to be used concerning adverse administrative actions; providing for placing an adjuster
on probation for violation of the provisions of the chapter or
rules; providing for suspension or revocation of license for
failure to pay administrative penalty; increasing maximum
administrative penalty for violations; and providing for judicial
review.
The bill, as just amended, was read a third time and put upon
its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, 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 those present and voting having voted in the
affirmative, the President declared the bill (Eng. Com. Sub. for H.
B. No. 4260) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
On motion of Senator Bowman, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 4577, Relating to elevator
inspections and classifications of licensure
.
Passed by the Senate on yesterday, Thursday, March 11, 2010,
The bill now being in the possession of the Senate,
On motion of Senator Bowman, the Senate reconsidered the vote
as to the effective date, title amendment and passage of the bill.
The vote thereon having been reconsidered,
At the request of Senator Bowman, unanimous consent was
granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Bowman, the following
amendment to the bill (Eng. Com. Sub. for H. B. No. 4577) was
reported by the Clerk and adopted:
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §21-3C-1, §21-3C-2a, §21-3C-10a and §21-3C-11 of the Code
of West Virginia, 1931, as amended, be amended and reenacted, all
to read as follows:.
The bill, as just amended, was again ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4577) 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 present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4577) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 4577--
A Bill to amend and
reenact §21-3C-1, §21-3C-2a, §21-3C-10a and §21-3C-11 of the Code
of West Virginia, 1931, as amended, all relating to elevators;
exempting platform lifts from the definition of elevator;
prohibiting certain elevators from being installed in certain
settings; requiring inspections on certain elevators; creating
different classifications of licensure; and providing rule-making
authority to the division of labor.
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. 4577) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 185, Creating WV Commercial
Patent Incentives Tax Act.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 230, Relating to Board of
Optometry.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 8. OPTOMETRISTS.
§30-8-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice optometry in this state without a license or permit issued
under the provisions of this article, or advertise or use any title
or description tending to convey the impression that they are an
optometrist unless the person has been duly licensed or permitted
under the provisions of this article.
(b) A business entity may not render any service or engage in
any activity which, if rendered or engaged in by an individual,
would constitute the practice of optometry, except through a
licensee or permitee permittee.
(c) A licensee may not practice optometry as an employee of
any commercial or mercantile establishment.
(d) A licensee may not practice optometry on premises not
separate from premises whereon eyeglasses, lenses, eyeglass frames
or any other merchandise or products are sold by any other person.
For the purposes of this section, any room or suite of rooms in
which optometry is practiced shall be considered separate premises
if it has a separate and direct entrance from a street or public
hallway or corridor within a building, which corridor is
partitioned off by partitions from floor to ceiling.
(e) A person who is not licensed under this article as an
optometrist may not characterize himself or herself as an
"optometrist," "doctor of optometry," or "optometric physician,"
nor may a person use the designation or as an "OD".
§30-8-2. Applicable law.
The practice of optometry and the Board of Optometry are subject to the provisions of article one of this chapter, the
provisions of this article and the board's rules.
§30-8-3. Definitions.
As used in this article:
(a) "Appendages" means the eyelids, the eyebrows, the
conjunctiva and the lacrimal apparatus.
(b) "Applicant" means any person making application for a
license, certificate or temporary permit under the provisions of
this article.
(c) "Board" means the West Virginia Board of Optometry.
(d) "Business entity" means any firm, partnership,
association, company, corporation, limited partnership, limited
liability company or other entity owned by licensees that practices
optometry.
(e) "Certificate" means a prescription certificate issued
under section fifteen of this article.
(f) "Certificate holder" means a person authorized to
prescribe certain drugs under section fifteen of this article.
(g) "Collaborative arrangement" means a written protocol
agreement for each patient to be executed between an optometrist
and ophthalmologist, and filed with the appropriate licensing
boards, for an optometrist meeting the criteria of this article.
The ophthalmologist must be notified when the procedure takes place
by the optometrist and be available within forty miles of the
treatment site in case patient complications require a physician.
(h) (g) "Examination, diagnosis and treatment" means a method
compatible with accredited optometric education and professional
competence pursuant to this article.
(i) (h)"License" means a license to practice optometry.
(j) (i) "Licensee" means an optometrist licensed under the
provisions of this article.
(k) (j) "Ophthalmologist" means a physician specializing in
ophthalmology licenced in West Virginia to practice medicine and
surgery under article thereof this chapter or osteopathy under
article fourteen of this chapter.
(l) (k) "Permitee" "Permittee" means a person holding a
temporary permit.
(m) (l) "Practice of optometry" means the examining,
diagnosing and treating of any visual defect or abnormal condition
of the human eye or its appendages within the scope established in
this article or associated rules. For billing purposes only, an
optometrist shall be viewed as a physician-level practitioner.
(n) (m) "Temporary permit" or "permit" means a permit issued
to a person who has graduated from an approved school, has taken
the examination prescribed by the board, and is awaiting the
results of the examination.
§30-8-4. Board of Optometry.
(a) The West Virginia Board of Optometry is continued. The
members of the board in office on July 1, 2010, shall, unless
sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and
qualified.
(b) The board shall consist of the following members appointed
by the Governor, by and with the advice and consent of the Senate:
(1) Five licensed optometrists; and
(2) Two citizen members, who are not licensed under the
provisions of this article and who do not perform any services
related to the practice of the profession regulated under the
provisions of this article.
(c) Each licensed member of the board, at the time of his or
her appointment, must have held a professional license in this
state for a period of not less than three years immediately
preceding the appointment.
(d) Each member of the board must be a resident of this state
during the appointment term.
(e) The term shall be three years. A member may not serve
more than two consecutive full terms. A member may continue to
serve until a successor has been appointed and has qualified.
(f) A vacancy on the board shall be filled by appointment by
the Governor for the unexpired term of the member whose office is
vacant and the appointment shall be made within sixty days of the
vacancy.
(g) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(h) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice
is suspended or revoked, is convicted of a felony under the laws of
any jurisdiction, or becomes a nonresident of this state.
(i) The board shall elect annually a president and a
secretary-treasurer from its members who serve at the will of the
board.
(j) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
chapter.
(k) A majority of the members of the board constitutes a
quorum.
(l) The board shall hold at least two meetings a year. Other
meetings may be held at the call of the president or upon the
written request of two members at the time and place as designated
in the call or request.
(m) Prior to commencing his or her duties as a member of the
board, each member shall take and subscribe to the oath required by
section five, article four of the Constitution of this state.
§30-8-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this
article, by rule, in article one of this chapter and elsewhere in
law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer
examinations;
(2) Establish requirements for licenses, certificates and
permits;
(3) Establish procedures for submitting, approving and
rejecting applications for licenses, certificates and permits;
(4) Determine the qualifications of any applicant for
licenses, certificates and permits;
(5) Prepare, conduct, administer and grade examinations for
licenses;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations by the board or a
third party administer, including the number of persons taking the
examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix
the compensation of the executive secretary;
(9) Maintain an office and hire, discharge, establish the job
requirements and fix the compensation of employees, investigators
and contracted employees necessary to enforce the provisions of
this article;
(10) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the
board;
(11) Conduct disciplinary hearings of persons regulated by the
board;
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of the provisions of this article;
(14) Maintain an accurate registry of names and addresses of
all licensees regulated by the board;
(15) Keep accurate and complete records of its proceedings,
and certify the same as may be necessary and appropriate;
(16) Establish the continuing education requirements for
licensees;
(17) Issue, renew, combine, deny, suspend, revoke or reinstate
licenses, certificates and permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code to implement the
provisions of this article; and
(20) Take all other actions necessary and proper to effectuate
the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer the examinations
required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this
state; and
(3) Confer with the Attorney General or his or her assistant
in connection with legal matters and questions.
§30-8-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article,
including:
(1) Standards and requirements for licenses, certificates and
permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or
administer examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses,
certificates and permits;
(8) A fee schedule;
(9) A prescription drug formulary classifying those categories
of oral drugs rational to the diagnosis and treatment of visual
defects or abnormal conditions of the human eye and its appendages,
which may be prescribed by licensees from Schedules III, IV and V
of the Uniform Controlled Substances Act. The drug formulary may
also include oral antibiotics, oral nonsteroidal anti-inflammatory
drugs and oral carbonic anhydrase inhibitors.; The board shall
consult with the Board of Pharmacy and other appropriate boards
before releasing these rules for public comment;
(10) Requirements, in addition to the requirements for
obtaining a certificate, for prescribing and dispensing contact
lenses that contain and deliver pharmaceutical agents that have been approved by the Food and Drug Administration as a drug;
(11) Continuing education requirements for licensees;
(12) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of licensees, certificate
holders and permitees permittees;
(13) Requirements for inactive or revoked licenses,
certificates or permits; and
(14) Requirements for an expanded scope of practice for those
procedures that are taught at 50% of all accredited optometry
schools;
(14) (15) Any other rules necessary to effectuate the
provisions of this article.
(b) All of the board's rules in effect on July 1, 2010, shall
remain in effect until they are amended or repealed, and references
to provisions of former enactments of this article are interpreted
to mean provisions of this article.
(c) The board shall promulgate procedural and interpretive
rules in accordance with section eight, article three, chapter
twenty-nine-a of this code.
§30-8-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines,
received by the board shall be deposited in a separate special
revenue fund in the State Treasury designated the "West Virginia
Board of Optometry Fund", which is continued. The fund is used by
the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the
amount in the special revenue account from year to year. No
compensation or expense incurred under this article is a charge
against the General Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this
article, shall be deposited into the General Revenue Fund of the
State Treasury.
§30-8-8. License to practice optometry.
(a) To be eligible for a license to engage in the practice of
optometry, the applicant must:
(1) Be at least twenty-one years of age;
(2) Be of good moral character;
(3) Graduate from a school approved by the Accreditation
Council on Optometric Education or successor organization;
(4) Pass an examination prescribed by the board;
(5) Complete an interview with the board;
(6) Not be addicted to the use of alcohol, drugs or other
controlled substances;
(7) Not have been convicted of a felony in any jurisdiction
within ten years preceding the date of application for license,
which conviction has not been reversed; and
(8) Not have been convicted of a misdemeanor or felony in any
jurisdiction if the offense for which he or she was convicted
related to the practice of optometry, which conviction has not been
reversed.
(b) A registration to practice issued by the board prior to
July 1, 2010, shall for all purposes be considered a license issued
under this article: Provided, That a person holding a registration
issued prior to July 1, 2010, must renew pursuant to the provisions
of this article.
§30-8-9. Scope of Practice.
(a) An licensee may:
(1) Examine, diagnosis and treat diseases and conditions of
the human eye and its appendages within the scope established in
this article or associated rules;
(2) Administer or prescribe any drug for topical application
to the anterior segment of the human eye for use in the
examination, diagnosis or treatment of diseases and conditions of
the human eye and its appendages: Provided, That the licensee has
first obtained a certificate;
(3) (a) Administer or prescribe any drug from the drug
formulary, as established by the board pursuant to section six of
this article, for use in the examination, diagnosis or treatment of
diseases and conditions of the human eye and its appendages:
Provided, That the licensee has first obtained a certificate;
(b) New drugs and new drug indications may be added to the
drug formulary by approval of the board;
(4) Administer epinephrine by injection to treat emergency
cases of anaphylaxis or anaphylactic shock;
(5) Prescribe and dispense contact lenses that contain and deliver pharmaceutical agents and that have been approved by the
Food and Drug Administration as a drug; Provided, That the licensee
has first obtained a certificate and satisfied all requirements as
set out in legislative rule;
(6) Prescribe, fit, apply, replace, duplicate or alter lenses,
prisms, contact lenses, orthoptics, vision training, vision
rehabilitation;
(7) Perform the following procedures:
(A) Remove a foreign body from the ocular surface and adnexa
utilizing a non-intrusive method;
(B) Remove a foreign body, external eye, conjunctival,
superficial, using topical anesthesia;
(C) Remove embedded foreign bodies or concretions from
conjunctiva, using topical anesthesia, not involving sclera;
(D) Remove corneal foreign body not through to the second
layer of the cornea using topical anesthesia;
(E) Epilation of lashes by forceps;
(F) Closure of punctum by plug; and
(G) Dilation of the lacrimal puncta with or without
irrigation;
(8) Furnish or provide any prosthetic device to correct or
relieve any defects or abnormal conditions of the human eye and its
appendages;
(9) Order laboratory tests rational to the examination,
diagnosis, and treatment of a disease or condition of the human eye and its appendages;
(10) Use a diagnostic laser; and
(11) A licensee is also permitted to perform those procedures
authorized by the board prior to January 1, 2010.
(b) An A licensee may not:
(1) Perform surgery except as provided in this article, by
legislative rule or by joint written agreement between the board
and the Board of Medicine;
(2) Use a therapeutic laser: Provided, That a licensee, who
has the proper training as determined by the board, may use Argon
Laser Trabeculoplasty procedures, Selective Laser Trabeculoplasty
procedures and Peripheral Iridotomy procedures in the treatment of
glaucoma when such licensee is working in a collaborative
arrangement with an ophthalmologist: Provided, however, That a
licensee who observes progressive vision loss in a patient shall
refer that patient to an ophthalmologist;
(3) Use Schedule I and Schedule II controlled substances;
(4) Treat systemic disease; or
(5) Present to the public that he or she is a specialist in
surgery of the eye.
§30-8-10. Exceptions.
The following persons are exempt from licensure under this
article:
(1) Persons licensed to practice medicine and surgery under
article three of this chapter or osteopathy under article fourteen of this chapter;
(2) Persons and business entities who sell or manufacturer
manufacture ocular devices in a permanently established place of
business, who neither practice nor attempt to practice optometry.
§30-8-11. Issuance of license; renewal of license; renewal fee;
display of license.
(a) A licensee shall annually or biennially on or before July
1, renew his or her license by completing a form prescribed by the
board, paying the renewal fee and submitting any other information
required by the board.
(b) The board shall charge a fee for renewal of a license, and
a late fee for any renewal not paid by the due date.
(c) The board shall require as a condition of renewal of a
license that each licensee complete continuing education.
(d) The board may deny an application for renewal for any
reason which would justify the denial of an original application
for a license.
§30-8-12. Temporary permits.
(a) Upon proper application and the payment of a fee, the
board may issue, without examination, a temporary permit to engage
in the practice of optometry in this state.
(b) If the permitee permittee receives a passing score on the
examination, a temporary permit expires thirty days after the
permitee permittee receives the results of the examination.
(c) If the permitee permittee receives a failing score on the examination, the temporary permit expires immediately.
(d) An applicant under this subsection may only be issued one
temporary permit. Upon the expiration of a temporary permit, a
person may not practice as an optometrist until he or she is fully
licensed under the provisions of this article. In no event may a
permitee permittee practice on a temporary permit beyond a period
of ninety consecutive days.
(e) A temporary permitee permittee under this section shall
work under the supervision of a licensee, with the scope of such
supervision to be defined by the board by legislative rule.
§30-8-13. License from another jurisdiction; license to practice
in this state.
(a) The board may issue a license to practice to an applicant
of good moral character who holds a valid license or other
authorization to practice optometry from another jurisdiction, if
the applicant demonstrates that he or she:
(1) Holds a license or other authorization to practice
optometry in another state which requirements are substantially
equivalent to those required in this state;
(2) Does not have charges pending against his or her license
or other authorization to practice, and has never had a license or
other authorization to practice revoked;
(3) Has not previously failed an examination for professional
licensure in this state;
(4) Has paid the applicable fee;
(5) Has passed the examination prescribed by the board; and
(6) Has fulfilled any other requirement specified by the
board.
(b) In its discretion, the board may interview and examine an
applicant for licensing under this section. The board may enter
into agreements for reciprocal licensing with other jurisdictions
having substantially similar requirements for licensure.
§30-8-14. Prescriptive authority.
(a) A licensee may prescribe: (1) topical pharmaceutical
agents, (2) oral pharmaceutical agents that are included in the
drug formulary established by the board pursuant to section six of
this article or new drugs or new drug indications added by a
decision of the board, and (3) contact lenses that contain and
deliver pharmaceutical agents that have been approved by the Food
and Drug Administration as a drug, only if the licensee has first
obtained a certificate from the board.
(b) To obtain a certificate from the board, An applicant must:
(1) Submit a completed application;
(2) Pay the appropriate fee;
(3) Show proof of current liability insurance coverage;
(4) Complete the board required training;
(5) Pass an examination; and
(6) Complete any other criteria the board may establish by
rule.
(c) Certificates shall be issued to coincide with the applicant's licensing period.
§30-8-15. Administration of injectable pharmaceutical agents.
(a) A licensee may not administer pharmaceutical agents by
injection, other than epinephrine to treat emergency cases of
anaphylaxis or anaphylactic shock, unless the provisions of this
section, along with any legislative rule promulgated pursuant to
this section, have been met.
(b) Additional pharmaceutical agents by injection may be
included by agreement between the board and the Board of Medicine
or the board may propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code. These rules shall provided provide, at a
minimum, for the following:
(1) Establishment of a course, or provide a list of approved
courses, in administration of pharmaceutical agents by injection;
(2) Definitive treatment guidelines which shall include, but
not be limited to, appropriate observation for an adverse reaction
of an individual following the administration of a pharmaceutical
agent by injection;
(3) A requirement that a licensee shall have completed a board
approved injectable administration course and completed an American
Red Cross or American Heart Association basic life-support
training, and maintain certification in the same;
(4) Continuing education requirements for this area of
practice;
(5) Reporting requirements for licensees administering
pharmaceutical agents by injection to report to the primary care
physician or other licensed health care provider as identified by
the person receiving the pharmaceutical agent by injection;
(6) Reporting requirements for licensees administering
pharmaceutical agents by injection to report to the appropriate
entities;
(7) That a licensee may not delegate the authority to
administer pharmaceutical agents by injection to any other person;
and
(8) Any other provisions necessary to implement the provisions
of this section.
(c) In no event may a licensee be granted authority under this
section to administer a pharmaceutical agent by injection directly
into the globe of the eye.
§30-8-16. Special volunteer license; civil immunity for voluntary
services rendered to indigents.
(a) There is established a special volunteer license for
optometrists who are retired or are retiring from the active
practice of optometry and wish to donate their expertise for the
care and treatment of indigent and needy patients in the clinic
setting of clinics organized, in whole or in part, for the delivery
of health care services without charge.
(b) The special volunteer license shall be issued by the board
to optometrists licensed or otherwise eligible for licensure under this article without the payment of an application fee, license fee
or renewal fee, and shall be issued for the remainder of the
licensing period, and renewed consistent with the boards other
licensing requirements.
(c) The board shall develop application forms for the special
volunteer license provided in this section which shall contain the
optometrist's acknowledgment that:
(1) The optometrist's practice under the special volunteer
license will be exclusively devoted to providing optometrical care
to needy and indigent persons in West Virginia;
(2) The optometrist will not receive any payment or
compensation, either direct or indirect, or have the expectation of
any payment or compensation, for any optometrical services rendered
under the special volunteer license;
(3) The optometrist will supply any supporting documentation
that the board may reasonably require; and
(4) The optometrist agrees to continue to participate in
continuing education as required by the board for a special
volunteer license.
(d) Any optometrist who renders any optometrical service to
indigent and needy patients of a clinic organized, in whole or in
part, for the delivery of health care services without charge,
under a special volunteer license authorized under this section
without payment or compensation or the expectation or promise of
payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the
rendering of the optometrical service at the clinic unless the act
or omission was the result of the optometrist's gross negligence or
willful misconduct. In order for the immunity under this
subsection to apply, before the rendering of any services by the
optometrist at the clinic, there must be a written agreement
between the optometrist and the clinic stating that the optometrist
will provide voluntary uncompensated optometrical services under
the control of the clinic to patients of the clinic before the
rendering of any services by the optometrist at the clinic:
Provided, That any clinic entering into such written agreement is
required to maintain liability coverage of not less than $1 million
per occurrence.
(e) Notwithstanding the provisions of subsection (d) of this
section, a clinic organized, in whole or in part, for the delivery
of health care services without charge is not relieved from imputed
liability for the negligent acts of an optometrist rendering
voluntary optometrical services at or for the clinic under a
special volunteer license under this section.
(f) For purposes of this section, "otherwise eligible for
licensure" means the satisfaction of all the requirements for
licensure in this article except the fee requirements.
(g) Nothing in this section may be construed as requiring the
board to issue a special volunteer license to any optometrist whose
license is or has been subject to any disciplinary action or to any optometrist who has surrendered a license or caused such license to
lapse, expire and become invalid in lieu of having a complaint
initiated or other action taken against his or her license, or who
has elected to place a license in inactive status in lieu of having
a complaint initiated or other action taken against his or her
license, or who has been denied a license.
(h) Any policy or contract of liability insurance providing
coverage for liability sold, issued or delivered in this state to
any optometrist covered under the provisions of this article shall
be read so as to contain a provision or endorsement whereby the
company issuing such policy waives or agrees not to assert as a
defense on behalf of the policyholder or any beneficiary thereof,
to any claim covered by the terms of such policy within the policy
limits, the immunity from liability of the insured by reason of the
care and treatment of needy and indigent patients by an optometrist
who holds a special volunteer license.
§30-8-17. Optometric business entities.
(a) Only licensees may own a business entity that practices
optometry.
(b) A licensee may be employed by the business entity.
(c) A business entity shall cease to engage in the practice of
optometry when it is not wholly owned by licensees: Provided, That
the personal representative of a deceased shareholder shall have a
period, not to exceed eighteen months from the date of such
shareholder's death, to dispose of such shares.
§30-8-18. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The board may upon its own motion based on credible
information, and shall upon the written complaint of any person
cause an investigation to be made to determine whether grounds
exist for disciplinary action under this article or the legislative
rules of the board.
(b) Upon initiation or receipt of the complaint, the board
shall provide a copy of the complaint to the licensee, certificate
holder or permitee permittee.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee or permitee permittee has violated subsection (g)
of this section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the
licensee or permitee permittee has violated subsection (g) of this
section or rules promulgated pursuant to this article, the board
may enter into a consent decree or hold a hearing for the
suspension or revocation of the license, certificate or permit or
the imposition of sanctions against the licensee, certificate
holder or permitee permittee. Any hearing shall be held in
accordance with the provisions of this article, and the provisions
of articles five and six, chapter twenty-nine-a of this code.
(e) Any member of the board or the executive secretary of the
board may issue subpoenas and subpoenas duces tecum on behalf of the board to obtain testimony and documents to aid in the
investigation of allegations against any person regulated by the
article.
(f) Any member of the board or its executive secretary may
sign a consent decree or other legal document on behalf of the
board.
(g) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend or revoke the license, certificate
or permit of, impose probationary conditions upon or take
disciplinary action against, any licensee, certificate holder or
permitee permittee for any of the following reasons once a
violation has been proven by a preponderance of the evidence:
(1) Obtaining a license, certificate or permit by fraud,
misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
turpitude;
(3) Being guilty of unprofessional conduct which placed the
public at risk;
(4) Intentional violation of a lawful order;
(5) Having had an authorization to practice optometry revoked,
suspended, other disciplinary action taken, by the proper
authorities of another jurisdiction;
(6) Having had an application to practice optometry denied by
the proper authorities of another jurisdiction;
(7) Exceeded the scope of practice of optometry;
(8) Aiding or abetting unlicensed practice;
(9) Engaging in an act while acting in a professional capacity
which has endangered or is likely to endanger the health, welfare
or safety of the public; or
(10) False and deceptive advertising; this includes, but is
not limited to, the following:
(A) Advertising "free examination of eyes," or words of
similar import and meaning; or
(B) Advertising frames or mountings for glasses, contact
lenses, or other optical devices which does not accurately describe
the same in all its component parts.; or
(c) Advertising or marketing as an optometric physician if
such term was not in the practice name prior to January 1, 2010.
(h) For the purposes of subsection (g) of this section
disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per
violation;
(4) Mandatory attendance at continuing education seminars or
other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or certificate holders to report to
the board for periodic interviews for a specified period of time;
or
(7) Other corrective action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
§30-8-19. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section
eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an
administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law
judge, at the conclusion of a hearing he or she shall prepare a
proposed written order containing findings of fact and conclusions
of law. The proposed order may contain proposed disciplinary
actions if the board so directs. The board may accept, reject or
modify the decision of the administrative law judge.
(d) Any member or the executive secretary of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee,
certificate holder or permitee permittee has violated the
provisions of this article or the board's legislative rules, a
formal written decision shall be prepared which contains findings
of fact, conclusions of law and a specific description of the
disciplinary actions imposed.
§30-8-20. Judicial review.
Any licensee, certificate holder or permitee permittee adversely affected by a decision of the board entered after a
hearing may obtain judicial review of the decision in accordance
with section four, article five, chapter twenty-nine-a of this
code, and may appeal any ruling resulting from judicial review in
accordance with article six, chapter twenty-nine-a of this code.
§30-8-21. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a licensee,
certificate holder or permitee permittee has committed a criminal
offense under this article, the board may bring its information to
the attention of an appropriate law-enforcement official.
(b) A person violating section one of this article is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than $500 $1,000 nor more than $1000 $5,000 or confined in
jail not more than six months, or both fined and confined.
§30-8-22. Single act evidence of practice.
In any action brought or in any proceeding initiated under
this article, evidence of the commission of a single act prohibited
by this article is sufficient to justify a penalty, injunction,
restraining order or conviction without evidence of a general
course of conduct.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendment to the bill (Eng. Com. Sub. for S. B.
No. 230) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 480, Relating to public
higher education personnel.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
[CLERK'S NOTE: See the Journal of the House of Delegates for
this day.}
On motion of Senator Chafin, the Senate refused to concur in
the House amendments to the bill (Eng. Com. Sub. for S. B. No. 480)
and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 651, Providing state bid
preference for certain current license or permit holders.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2503, Requiring licensed
tattoo artist to inform patrons, prior to performing the tattoo
procedure, of the potential problems that a tattoo may cause in
relation to the reading of magnetic resonance imaging.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 3110, Renaming conservation officers to be
natural resources police officers.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4081, Authorizing the
Department of Military Affairs and Public Safety to promulgate
legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4110, Authorizing the
Department of Commerce to promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4176, Relating to
credentialing of health care practitioners.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4299, Providing that
nonstate retired employees who have worked for their last nonstate
employer for less than five years are responsible for their entire
premium cost.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4335, Relating to the
business registration tax.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4352, Authorizing the West
Virginia Supreme Court of Appeals to create a Business Court
Division within certain circuit court districts.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4425, Developing a pilot
program for unlicensed personnel to administer medication in a
nursing home.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4436, Providing discretion
to schools that make AYP to use assessments and adopting
instructional strategies and programs that promote student
learning.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4457, Relating to the access
to and protection of cemeteries.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4534, Increasing the
criminal penalty for failing to stop and render aid after a motor
vehicle accident; Erin's Law.
The Senate proceeded to the fourth order of business.
Senator Palumbo, from the Joint Committee on Enrolled Bills,
submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found
truly enrolled, and on the 12th day of March, 2010, presented to
His Excellency, the Governor, for his action, the following bills,
signed by the President of the Senate and the Speaker of the House
of Delegates:
(Com. Sub. for S. B. No. 89), Relating to reinstating former
police chiefs or deputy chiefs to previously held positions.
(Com. Sub. for Com. Sub. for S. B. No. 349), Requiring child
care centers have written evacuation plan.
(S. B. No. 514), Clarifying certain language in Controlled
Substances Monitoring Act.
(Com. Sub. for S. B. No. 543), Authorizing Energy and Water
Savings Revolving Loan Fund Program and PROMISE rules for Higher
Education Policy Commission.
(S. B. No. 553), Extending time to purchase full service
credit in Teachers' Defined Contribution Retirement System.
And,
(Com. Sub. for S. B. No. 631), Updating process for adopting
textbooks and other instructional material.
Respectfully submitted,
Corey Palumbo,
Chair, Senate Committee.
Danny Wells,
Chair, House Committee.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Joint Resolution No. 101, Commercial
and Industrial Tangible Personal Property Tax Exemption Amendment.
And has amended same.
Now on second reading, having been read a first time on March
10, 2010, and referred to the Committee on Finance on March 11,
2010;
And reports the same back with the recommendation that it be
adopted, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the resolution (Eng. Com. Sub. for H. J. R. No. 101)
contained in the preceding report from the Committee on Finance was
taken up for immediate consideration and read a second time.
The following amendment to the resolution, from the Committee
on Finance, was reported by the Clerk and adopted:
On pages two and three, by striking out all of section one-d
and inserting in lieu thereof a new section one-d, to read as
follows:
§1d. Discretionary exemption from ad valorem taxation of tangible
personal property directly used in commercial and
industrial businesses.
Notwithstanding any other provision of this constitution, the
Legislature may by law exempt tangible personal property directly
used in commercial and industrial businesses, but not in public
utility businesses, from ad valorem property tax. The Legislature
may prescribe and limit by law the tangible personal property qualified for such exemption. Any exemption established pursuant
to this section is limited to qualified tangible personal property
newly entered on the property tax rolls as of a prospective date
certain and thereafter. Notwithstanding section one, article ten
of this constitution, taxation shall be equal and uniform
throughout the state.
Resolved further, That in accordance with the provisions of
article eleven, chapter three of the Code of West Virginia, 1931,
as amended, such proposed amendment is hereby numbered "Amendment
No. 1" and designated as the "Commercial and Industrial Tangible
Personal Property Tax Exemption Amendment" and the purpose of the
proposed amendment is summarized as follows: "The purpose of this
amendment is to exempt from ad valorem taxation tangible personal
property newly entered on the property tax rolls as of a
prospective date certain and thereafter and directly used in
commercial and industrial businesses, but not in public utility
businesses, or such components thereof pursuant to legislative
authorization.
The resolution (Eng. Com. Sub. for H. J. R. No. 101), as
amended, was then ordered to third reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4031, Providing flexibility
in the West Virginia public school support plan for funding regional education service agencies.
With amendments from the Committee on Education pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 11, 2010;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Education to which the bill was
first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4108, Authorizing
miscellaneous agencies and boards to promulgate legislative rules.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4108) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to second reading.
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, 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: None.
Absent: Green--1.
The bill (Eng. Com. Sub. for H. B. No. 4108) was then read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO
PROMULGATE LEGISLATIVE RULES.
§64-9-1. State Board of Examiners for Licensed Practical Nurses.
The legislative rule filed in the state register on the July
9, 2009, authorized under the authority of section five, article
seven-a, chapter thirty, of this code, modified by the State Board
of Examiners for Licensed Practical Nurses to meet the objections of the legislative rule-making review committee and refiled in the
state register on October 19, 2009, relating to the State Board of
Examiners for Licensed Practical Nurses (policies and procedures
for development and maintenance of educational programs in
practical nursing, 10 CSR 1), is authorized.
§64-9-2. Board of Examiners in Counseling.
(a) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section six, article
thirty-one, chapter thirty, of this code, modified by the Board of
Examiners in Counseling to meet the objections of the legislative
rule-making review committee and refiled in the state register on
November 25, 2009, relating to the Board of Examiners in Counseling
(licensed professional counselor fees, 27 CSR 2), is authorized.
(b) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section six, article
thirty-one, chapter thirty, of this code, modified by the Board of
Examiners in Counseling to meet the objections of the legislative
rule-making review committee and refiled in the state register on
October 19, 2009, relating to the Board of Examiners in Counseling
(licensed professional counselor license renewal and continuing
professional education requirements, 27 CSR 3), is authorized with
the following amendment:
On page one, subsection 1.2., by striking out "§30-31-
5(b)(18)" and inserting in lieu thereof "§30-31-6".
(c) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section six, article
thirty-one, chapter thirty, of this code, modified by the Board of
Examiners in Counseling to meet the objections of the legislative
rule-making review committee and refiled in the state register on
November 25, 2009, relating to the Board of Examiners in Counseling
(marriage and family therapists licensing, 27 CSR 8), is
authorized.
(d) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section six, article
thirty-one, chapter thirty, of this code, modified by the Board of
Examiners in Counseling to meet the objections of the legislative
rule-making review committee and refiled in the state register on
November 25, 2009, relating to the Board of Examiners in Counseling
(marriage and family therapists fees, 27 CSR 9), is authorized.
(e) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section six, article
thirty-one, chapter thirty, of this code, modified by the Board of
Examiners in Counseling to meet the objections of the legislative
rule-making review committee and refiled in the state register on
October 19, 2009, relating to the Board of Examiners in Counseling
(marriage and family license renewal and continuing professional
education, 27 CSR 10), is authorized
with the following amendments:
On page one, subsection 1.2., by striking out "§30-31-5(b)"
and inserting in lieu thereof "§30-31-6".
On page one section 2.1, by striking the words "of Marriage and Family Therapist and code of ethics." and inserting in lieu
thereof the following words, "for Marriage and Family Therapy Code
of Ethics.";
On page two section 2.7 by striking the words, "you attend"
and inserting in lieu thereof the word, "attended";
On page three section 4.1, striking the word "Therapist" and
inserting in lieu of the word, "Therapy";
On page four section 4.9 striking the word "therapist" and
inserting in lieu of the following word, "therapy";
On page four section 4.10 striking the words, "of Marriage and
Family Therapist" and inserting in lieu thereof the following
words, "for Marriage and Family Therapy";
On page six, subparagraph (I) by striking the apostrophe;
On page seven, subparagraph (D) by striking the apostrophe;
On page eight paragraph 6 by striking the words, "of Marriage
and Family Therapist" and inserting in lieu thereof the following
words, "for Marriage and Family Therapy";
On page nine, subparagraph (C) by striking out the words, "of
Marriage and Family Therapist" and inserting in lieu of the
following words, "for Marriage and Family Therapy".
§64-9-3. Board of Medicine.
The legislative rule filed in the state register on July 30,
2009, authorized under the authority of section seven, article
three, chapter thirty, of this code, relating to the Board of
Medicine (fees for services rendered by the Board of Medicine including assistance to the Board-designated physician health
program for physicians, podiatrists and physician assistants, 11
CSR 4), is authorized.
§64-9-4. Conservation Agency.
The legislative rule filed in the state register on July 29,
2009, authorized under the authority of section six, article
twenty-one-a, chapter nineteen, of this code, modified by the
Conservation Agency to meet the objections of the legislative rule-
making review committee and refiled in the state register on
October 23, 2009, relating to the Conservation Agency (operation of
the West Virginia State Conservation Committee and conservation
districts, 63 CSR 1), is authorized.
§64-9-5. Commissioner of Agriculture.
(a) The legislative rule filed in the state register on July
28, 2009, authorized under the authority of section two, article
nine, chapter nineteen, of this code, modified by the Commissioner
of Agriculture to meet the objections of the legislative rule-
making review committee and refiled in the state register on
September 22, 2009, relating to the Commissioner of Agriculture
(animal disease control, 61 CSR 1), is authorized.
(b) The legislative rule filed in the state register on July
21, 2009, authorized under the authority of section four, article
sixteen-a, chapter nineteen, of this code, modified by the
Commissioner of Agriculture to meet the objections of the
legislative rule-making review committee and refiled in the state register on September 4, 2009, relating to the Commissioner of
Agriculture (integrated pest management programs in schools and
child care centers and facilities, 61 CSR 12J), is authorized.
(c) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section one, article
twenty-nine, chapter nineteen, of this code, modified by the
Commissioner of Agriculture to meet the objections of the
legislative rule-making review committee and refiled in the state
register on September 23, 2009, relating to the Commissioner of
Agriculture (West Virginia shellfish, 61 CSR 23B), is authorized
with the following amendments:
On page 4, by striking out subdivision 4.1.i. in its entirety
and inserting in lieu thereof a new subdivision 4.1.i. to read as
follows:
"Refer violations to a court of competent jurisdiction for the
violation of this rule as allowed under West Virginia laws.
Nothing in this rule shall be construed as requiring the
commissioner to report for prosecution or institute an embargo,
detainment or quarantine for the violation of this rule when he or
she believes that the public interest may best be served by a
written notice of the violation."
On page 6, after subdivision 7.1.j. by adding a new
subsection, designated 7.2 to read as follows:
"7.2. Any person who violates the provisions of this rule
shall have his or her Shellfish Certificate suspended until the facility is in compliance with the provisions of this rule.";
On pages 6 and 7, by striking §61-23A-8 in its entirety
;
And, by renumbering the remaining section.
(d) The legislative rule filed in the state register on July
15, 2009, authorized under the authority of section six, article
twenty-nine, chapter nineteen, of this code, modified by the
Commissioner of Agriculture to meet the objections of the
legislative rule-making review committee and refiled in the state
register on January 14, 2010, relating to the Commissioner of
Agriculture (best management practices for land application of
waste products from aquaculture facilities, 61 CSR 27), is
authorized.
§64-9-6. Board of Barbers and Cosmetologists.
(a) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section six, article
twenty-seven, chapter thirty, of this code, modified by the Board
of Barbers and Cosmetologists to meet the objections of the
legislative rule-making review committee and refiled in the state
register on December 14, 2009, relating to the Board of Barbers and
Cosmetologists (qualifications, training, examination and licensure
of instructors in barbering and beauty culture, 3 CSR 2), is
authorized with the following amendments:
On page one, after the caption "SERIES 2", by striking out the
word "Licensure" and inserting in lieu thereof the word
"Certification";
On page one, subsection 1.1, by striking out the word
"licensure" and inserting in lieu thereof the word "certification";
On page one, in the "§3-2-2" caption, by striking out the word
"Licensure" and inserting in lieu thereof the word "Certification".
On page one, subsection 2.1, by striking out said subsection
2.1 in its entirety and inserting in lieu thereof a new subsection
2.1 to read as follows:
2.1.
An individual seeking certification must:
;
On page one, subdivision 2.1.3, by striking out the word
"offered" and inserting in lieu thereof the word "approved".
On page two, subdivision 2.1.9, by striking out said
subdivision 2.1.9 in its entirety and inserting in lieu thereof a
new subdivision 2.1.9 to read as follows:
"2.1.9. Submit a letter from a school owner or manager
certifying that the applicant has completed 375 hours of instructor
training and attesting to the applicant's professional
capabilities."
On page two, subdivision 2.1.11, at the beginning of said
subdivision, by striking out the word "Must";
On page two, subdivision 2.1.12, at the beginning of said
subdivision, by striking out the word "Must";
On page two, subdivision 2.1.13, by striking out the word
"license" and inserting in lieu thereof the word "certification";
On page two, subsection 3.1, by striking out the word
"licensure" and inserting in lieu thereof the word "certification";
On page two, subdivision 3.1.1, by striking out the word
"Licensure" and inserting in lieu thereof the word "Certification";
On page two, subdivision 3.1.6, by striking out said
subdivision 3.1.6 in its entirety and inserting in lieu thereof a
new subdivision 3.1.6 to read as follows:
"3.1.6. Submit a letter from a school owner or manager
certifying that the applicant has completed 375 hours of instructor
training and attesting to the applicant's professional capabilities
and employment and instructing experience."
On page three, subdivision 3.1.8, at the beginning of said
subdivision, by striking out the word "Must";
On page three, subdivision 3.1.9, at the beginning of said
subdivision, by striking out the word "Must";
On page three, subdivision 3.1.10, by striking out the word
"license" and inserting in lieu thereof the word "certification";
On page three, subsection 3.2, by striking out subsection 3.2
in its entirety and inserting in lieu thereof a new subsection 3.2
to read as follows:
3.2. An instructor certification must be renewed annually or
biennially on or before January 1.;
On page three, subsection 3.3, by striking out the word
"registered" and inserting in lieu thereof the word "certified";
On page three, subsection 3.3, by striking out the word
"license" and inserting in lieu thereof the word "certificate";
On page three, in the "§3-2-4" caption, by striking out the word "Licensure" and inserting in lieu thereof the word
"Certification";
On page three, subsection 4.1, by striking out the word
"licensure" and inserting in lieu thereof the word "certification";
On page three, subsection 4.1, in the last sentence, by
striking out the underlined word "student";
On page four, in the "§3-2-5" caption, by striking out the
word "Licensure" and inserting in lieu thereof the word
"Certification";
On page four, subsection 5.2, by striking out the last
sentence that reads: "This rule section applies to only 1800 hour
barber graduates.";
On page five, in the "§3-2-6" caption, by striking out the
word "Licensure" and inserting in lieu thereof the word
"Certification";
On page five, by striking out subsection 6.1 in its entirety
and renumbering the remaining subsections;
On page five, subsection 6.2, by striking out the word
"license" and inserting in lieu thereof the words "a certificate";
On page six, by striking out subsection 7.1 in its entirety
and inserting in lieu thereof a new subsection 7.1 to read as
follows:
7.1. An applicant from another state seeking certification as
an instructor or master instructor is eligible for certification by
reciprocity if the applicant has acquired training in another state equal to the requirements established in this rule for the
respective certificate requested: Provided, that the state in which
said applicant is certified extends the same privilege to certified
instructors from this State.;
On page six, in the "§3-2-8" caption, by striking out the word
"License" and inserting in lieu thereof the word "Certificate";
On page six, subsection 8.1, by striking out the word
"license" and inserting in lieu thereof the word "certificate";
On page six, subsection 8.2, by striking out the word 'whose'
and inserting in lieu thereof the words "who is";
On page six, subsection 8.2, by striking out the word
"licensed" and inserting in lieu thereof the word "certified";
And,
On page six, subsection 9.1, by striking out the words
"contested case".
(b) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section six, article
twenty-seven, chapter thirty, of this code, modified by the Board
of Barbers and Cosmetologists to meet the objections of the
legislative rule-making review committee and refiled in the state
register on December 14, 2009, relating to the Board of Barbers and
Cosmetologists (licensing schools of barbering and beauty culture,
3 CSR 3), is authorized
with the following amendments:
On page one, subdivision 2.1.d, by striking said subdivision
2.1.d in its entirety and inserting in lieu thereof a new subdivision 2.1.d to read as follows:
"The applicant has employed or contracted with at least 2
licensed master instructors, and such additional licensed
instructors as necessary to meet the instructor-to-student ratio
requirements of 3 CSR 4 (Title 3, Legislative Rule of the Board of
Barbers and Cosmetologists, Series 4, Operational Standards for
Schools of Barbering and Beauty Culture).";
On page two, subdivision 3.1.5, by striking out subdivision
3.1.5 in its entirety and inserting in lieu thereof a new
subdivision 3.1.5 to read as follows:
3.1.5. A copy of a proposed floor plan of the school, which
arrangement shall have at least two (2) classrooms for each
profession taught and a room for clinical and demonstration work.
On page three, subdivision 3.1.13, by striking said
subdivision 3.1.13 in its entirety and inserting in lieu thereof a
new subdivision 3.1.13 to read as follows:
"A statement by the applicant that the school is handicapped
accessible.";
On page four, subsection 3.6, by striking said subsection 3.6
in its entirety and inserting in lieu thereof a new subsection 3.6
to read as follows:
"Applicants who acquire or relocate an existing school must
meet the requirements set forth in this section.";
On page four, subsection 4.4, after the words "The Board" by
striking the word "shall" and inserting in lieu thereof the word 'may', and after the words "general grounds" by inserting the word
"suspend,"; and
On page four, subdivision 4.4.3, by striking said subdivision
4.4.3 in its entirety and inserting in lieu thereof a new
subdivision 4.4.3 to read as follows:
"A licensee, owner, administrator, manager, director or other
key interested party is convicted of a felony or misdemeanor
relating to the school or its operation.".
(c) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section six, article
twenty-seven, chapter thirty, of this code, modified by the Board
of Barbers and Cosmetologists to meet the objections of the
legislative rule-making review committee and refiled in the state
register on December 14, 2009, relating to the Board of Barbers and
Cosmetologists (operation of barber, beauty shops and schools of
barbering and beauty culture, 3 CSR 5), is authorized
with the
following amendments:
On page one, subsection 1.1, by striking out the subsection
and inserting in lieu thereof "Scope - This legislative rule
governs the sanitary requirements for salons and schools licensed
by the Board of Barbers and Cosmetologists.";
On page one, subsection 2.1, after the word "All", by striking
out the words "barber, beauty, nail and aesthetic shops/salons or
schools of barbering and beauty culture" and inserting in lieu
thereof the words "salons or schools";
On page one, subsection 2.2, after the word "All", by striking
out the words "shop's or school's" and inserting in lieu thereof
the words "salons' and schools'";
On page one, subsection 2.2, after the word "such", by
striking out the word "shop" and inserting in lieu thereof the word
"salon";
On page one, subsection 2.2, after the word "such", by
striking out the word "shops" and inserting in lieu thereof the
word "salons";
On page one, subsection 2.3, after the word "Each", by
striking out the words "barber, cosmetologist, aesthetician, nail
technician/manicurist,";
On page two, subsection 2.6, by striking out the word "in" and
inserting in lieu thereof the word "is";
On page two, subsection 2.8, after the word "All", by striking
out the words "barber, beauty, nail and aesthetic shops/";
On page two, subsection 2.9, after the word "for", by striking
out the words "barber, beauty, nail and aesthetic shops/";
On page two, subsection 2.9, after the word "in", by striking
out the words "barber or beauty shops" and inserting in lieu
thereof the word "salons";
On page two, subsection 2.9, by striking out the word "Shops"
and inserting in lieu thereof the word "salons";
On page three, subsection 2.15, after the word "each", by
striking out the word "shop" and inserting in lieu thereof the word "salon";
On page three, subsection 2.15, after the word "the", by
striking out the word "shop" and inserting in lieu thereof the word
"salon";
On page three, subsection 2.16, after the word "Each", by
striking out the words "barber, aesthetician, nail
technician/manicurist, or cosmetologist" and inserting in lieu
thereof the word "licensee";
On page three, subsection 2.16, after the word "student", by
striking out the words "barber, aesthetician, nail
technician/manicurist, or cosmetologist";
On page three, subsection 2.16, after the word "such", by
striking out the words "barber, aesthetician, nail
technician/manicurist, or cosmetologist" and inserting in lieu
thereof the word "licensee";
On page three, subsection 2.17, after the word "Every", by
striking out the words "barber, aesthetician, nail
technician/manicurist, or cosmetologist" and inserting in lieu
thereof the word "licensee";
On page three, subsection 2.19, by striking out the words
"marks and where possible" and inserting in lieu thereof the words
"and, where possible";
On page three, subsection 2.20, by striking out subsection
2.20 in its entirety and inserting in lieu thereof a new subsection
2.20 to read as follows:
2.20.
Any member of the Board, or it's inspectors may enter
or inspect any barber, beauty, nail and aesthetic shops/salons or
school of barbering or beauty culture during business hours to
check any part of the premises in order to ascertain wether or not
any part of these rules are being violated, and to take any other
action necessary to properly enforce the law;
On page four, subsection 2.21, after the word "every", by
striking out the words "barber, beauty, nail and aesthetic
shops/salons" and inserting in lieu thereof the word "salon";
On page four, subsection 2.24, after the word "All", by
striking out the words "barber, beauty, nail and aesthetic
shops/salons and beauty shops or" and inserting in lieu thereof the
words "salons and";
On page four, subsection 2.24, after the word "the", by
striking out the word "shop" and inserting in lieu thereof the
words "salon or school";
On page four, subsection 2.25, by striking out the word "have"
and inserting in lieu thereof the word "operate";
On page four, subsection 2.25, after the word "the", by
striking out the word "shop" and inserting in lieu thereof the word
"salon";
On page four, subsection 2.26, after the word "All", by
striking out the words "barber, beauty, nail and aesthetic
shops/salons and shop" and inserting in lieu thereof the word
"salon";
On page four, subsection 2.27, after the word "All", by
striking out the words "barber, beauty, nail and aesthetic
shops/salons and beauty shops" and inserting in lieu thereof the
word "salons";
On page four, subsection 2.27, by striking out the words
"water marks or stains,";
On page four, subsection 3.1, after the word "all", by
striking out the words "barber, beauty, nail and aesthetic
shops/salons, barber or beauty" and inserting in lieu thereof the
words "salons and";
On page four, subsection 3.1, after the word "all", by
striking out the words "licensed barbers, cosmetologists,
aestheticians, nail technicians/manicurists" and inserting in lieu
thereof the word "licensees";
And,
On page four, subsection 4.1, after the word "a" by striking
out the words "contested case".
(d) The legislative rule filed in the state register on July
31, 2009
, authorized under the authority of section six, article
twenty-seven, chapter thirty, of this code, relating to the Board
of Barbers and Cosmetologists (schedule of fees, 3 CSR 6), is
authorized with the following amendments:
On page one, subsection 1.1, after the word "Cosmetologists"
by striking out the remainder of the sentence;
And,
On page one, subsection 1.2, by striking out "§30-27-1" and
inserting in lieu thereof "§30-27-6".
(e) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section six, article
twenty-seven, chapter thirty, of this code, modified by the Board
of Barbers and Cosmetologists to meet the objections of the
legislative rule-making review committee and refiled in the state
register on December 14, 2009, relating to the Board of Barbers and
Cosmetologists (schedule of fines, 3 CSR 7), is authorized with the
following amendment:
On page one, section 2, after the words "any person licensed"
by striking out the words "and/or licensed facility" and inserting
in lieu thereof the following words "or holding a salon license";
On page ten, subsection 2.63, by striking out the word
"Failure" and inserting in lieu thereof the word "Failing";
On page eleven, subsection 2.64, by striking out the word
"Failure" and inserting in lieu thereof the word "Failing";
On page eleven, subsection 2.65, by striking out the words
"Failure for a shop or shop owner" and inserting in lieu thereof
the word "Failing";
On page eleven, subsection 2.66, by striking out the words
"Failure for a shop or shop manger" and inserting in lieu thereof
the word "Failing"
;
On page eleven, by striking out subsection 2.68 in its
entirety and by renumbering the remaining subsections;
And,
On page twelve, by striking out subsections 2.71 and 2.72 in
their entirety.
(f) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section six, article
twenty-seven, chapter thirty, of this code, modified by the Board
of Barbers and Cosmetologists to meet the objections of the
legislative rule-making review committee and refiled in the state
register on December 14, 2009, relating to the Board of Barbers and
Cosmetologists (continuing education, 3 CSR 11), is authorized with
the following amendments:
On page one, subsection 1.1, by striking out the words
"barbering, cosmetology, manicuring/nail technology, and
aesthetics" and inserting in lieu thereof the words "beauty culture
in West Virginia";
On page one, subsection 1.2, by striking out "§30-.27-6-9" and
inserting in lieu thereof "§30-27-6".
On page one, after the section heading "§3-11-2 Definitions"
by striking out everything after the said section heading and
inserting in lieu thereof the following, all to read as follows:
"2.1. 'Approved academic course' means a formal course of
study offered by an accredited postsecondary educational
institution as it relates to the barbering, cosmetology,
manicuring/nail technology, and aesthetics.
2.2. 'Approved provider' means a local, state or national agency, organization or association recognized by the Board.
2.3. 'Audit' means the selection of licensees for verification
of satisfactory completion of continuing education during a
specified time period, or the selection of approved providers for
verification of adherence to continuing education approved provider
requirements during a specified time period.
2.4.
'Beauty Culture' means the act or practice of aesthetics,
barbering, barbering crossover, barber permanent waving,
cosmetology, cosmetology crossover and nail care.;
2.5. 'Contact person' means a person submitting a Request for
Approval Form.
2.6. 'Continuing education' means planned, organized learning
activities engaged in following initial licensure and designed to
maintain, improve, or expand beauty knowledge and skills or to
develop new knowledge and skills related to beauty culture
practice, education, or theory development.
2.7. 'Continuing education activity' means a learning activity
that is planned, organized and administered to enhance the
professional knowledge and skills underlying the professional
performance that the licensee uses to provide services the public.
To qualify as continuing education, the activity must provide
sufficient depth and scope of a subject area.
2.8. 'Continuing education credit' means credit earned for
completing a continuing education activity, expressed in units as
provided in section 3.1 of this rule.
2.9. 'Continuing Education Provider License' means a licensed
provider of continuing education.
2.10. 'Documentation' means proof of participation in a
continuing education activity.
2.11. 'Formal offering' means an extension course, independent
study, or other course which is offered, for college credit, by a
recognized educational institution.
2.12. 'Informal offering' means a workshop, seminar,
institute, conference, lecture, or short term course, which is
offered for credit in continuing education units.
2.13. 'Objectives' means an expression in measurable and
observable terms of what the participant will learn as a result of
the educational activity.
2.14. 'Sponsor' means an organization, including professional
societies, academic institutions, individuals, corporations, or
governmental agencies, which plans, organizes, supports, endorses,
subsidizes and/or administers educational activities, and is
responsible for the content, quality and integrity of the
educational activity.
§3-11-3. Continuing Education.
3.1. Each applicant for renewal or reinstatement of a license
shall verify that he or she has satisfactorily completed four (4)
credits of continuing education during the prescribed year
reporting period.
3.1.a. Units of measurement for continuing education credits are calculated as follows:
30 to 49 minutes = 0.5 CE credits
50 to 74 minutes = 1 CE credits
75 to 99 minutes = 1.5 CE credits
100 minutes = 2 CE credits
Activities lasting less than 30 minutes are not eligible for
credit.
3.1.b. Writing an article which is published in a magazine
directly related to the profession will qualify for 4 credits of
continuing education within the continuing education reporting
period. A copy of the article must be maintained by the licensee
for a period of 3 years following the continuing education
activity.
3.2. Credits may not be granted for identical continuing
education activities submitted during any single year reporting
period. Credits may not be accumulated for use in a future single
year reporting period.
3.3. Documentation of continuing education credits must be
submitted with applications for license renewal.
§3-11-4. Exceptions to Continuing Education Requirements.
4.1. Reciprocity applicants and newly licensed applicants are
exempt from the continuing education requirements until the first
renewal period after initial West Virginia licensure.
4.2. A licensee who resides outside of West Virginia and who
holds a current license to practice in a state other than West Virginia shall satisfy the continuing education requirements for
West Virginia in order to renew his or her license in this state.
4.3. The Board may grant a waiver to a licensee who has a
physical or mental disability or illness or who is providing direct
care to a member of his or her immediate family during all or a
portion of the reporting period. A waiver provides for an
extension of time or exception from some or all of the continuing
education requirements. Any licensee may request an application
for a waiver from the Board. The Board may approve or deny an
application for waiver after review of the application. The Board
may not grant a waiver of continuing education requirements for
more than one (1) year reporting period.
§3-11-5. Failure to Meet Requirements or Exceptions to
Requirements.
5.1. The Board may place the licensee on inactive status
without penalty and may waive the continuing education
requirements, providing that the licensee notifies the Board in
writing of his or her desire to have the Board place his or her
license on inactive status before the last day of the reporting
period.
5.2. The Board may suspend the license of any person who fails
to notify the Board, in writing, prior to the last day of the
reporting period that he or she wishes to place his or her license
on the inactive status.
§3-11-6. Reinstatement of a License on Inactive Status or Issuance of a Probational Temporary License.
6.1. A person wishing to reinstate a license from inactive
status or from suspended status shall:
6.1.a. Make application for reinstatement of the license from
inactive status or suspended status;
6.1.b. Meet the continuing education requirements as set forth
in this rule; and
6.1.c. Pay the fee for reinstatement suspended license as
specified in the Board's rule, Schedule of fees for services
rendered.
§3-11-7. Audit of Licensee.
7.1 The Board may select any licensee who holds a current
license to audit for compliance with continuing education
requirements no fewer than 60 days prior to the expiration of the
license.
7.2. To comply with the audit request from the Board, a
licensee shall submit legible copies of certificates of attendance
at continuing education activities.
7.3. The licensee shall submit the required documents within
thirty (30) days of the date he or she receives notification of the
audit. The Board may grant an extension of time for submission of
the documents, on an individual basis in cases of hardship, if the
licensee makes a written request for an extension of time and
provides justification for such the request.
7.4. Licensees shall keep certificates of attendance at continuing education activities, letters verifying special approval
for informal offerings from non-approved providers, transcripts of
courses, and documentation of compliance with exceptions for a
three (3) year period following the continuing education
activities.
7.5. The Board shall complete the audit within 30 days of
receipt of required documentation and shall notify the licensee of
the satisfactory completion of the audit.
7.6. If a person fails to submit the audit information
requested by the Board, the Board may not renew the license Board
before the information is received and the audit is completed.
7.7. Licensees shall notify the Board of any changes of
mailing address, and are not absolved from the audit requirements.
§3-11-8. Minimum Standards for Approved Provider.
8.1. All providers of continuing education shall complete an
application, and pay the required fees, and obtain a Continuing
Education Provider License, before offering to provide continuing
education.
8.2. The Board shall maintain a current list of approved
providers which is available to the public upon request.
8.3. The Board shall notify providers who fail to meet the
minimum acceptable provider standards, in writing, of specific
deficiencies and offer a reasonable period of time to correct
deficiencies.
8.4. The Board may remove an approved provider who fails to meet the approved provider standards from the list of approved
providers.
8.5. The providers shall provide a certificate to the licensee
indicating the following information:
8.5.a. Name of licensee who attended the continuing education
class;
8.5.b. The date attended;
8.5.c. The value of continuing education credits; and
8.5.d. Contact information for the continuing education
provider.
8.6. The providers shall provide a list to the State Board in
a Microsoft Excel format in paper and disc form within 30 days of
the continuing education class. The list shall include:
8.6.a. Names of licensees;
8.6.b. License numbers of licensee;
8.6.c. Location of class;
8.6.d. The date held; and
8.6.e. Title of continuing education class or activity.
8.7. The application for a continuing education provider
license shall provide detailed descriptions of the subject areas,
sponsors, speakers, instructors, training courses, events,
demonstrations or shows for which the applicant seeks approval.
§3-11-9. Continuing Education Subjects/Events.
9.1. Continued education offerings shall consist of one or
more of the following subject areas or events:
9.1.a. Product information or training;
9.1.b. Events, speakers, or shows by third party
administrators held at beauty schools/conventions;
9.1.c. Tax, business, or computer training or courses;
9.1.d. Styling or application demonstrations;
9.1.e. Sanitation courses;
9.1.f. HIV/AIDS awareness and other communicable disease
awareness courses;
9.1.g. Training or courses on West Virginia state laws
governing the practices licensed by the board; and
9.1.h. Continuing education activities sponsored by the
National Cosmetology Association (NCA), National Interstate Council
of State Boards of Cosmetology (NIC), National Cosmetology Seminar,
Aesthetic International Association, National Association of
Barbering and Hairstyling, National Association of Barber Boards of
American approved courses, seminars, and demonstrations or any
other national association approved by the Board.
§3-11-10. Activities Not Acceptable for Continuing Education
Credit.
10.1. The following activities are not acceptable for
continuing education credit:
10.1.a. Job related practice;
10.1.b. Development and presentation of programs as part of
the licensee's on-going job responsibilities;
10.1.c. Orientation to and update of policies and procedures specific to the licensee's employing facility;
10.1.d. Activities which are part of a licensee's usual job
responsibility; and/or
10.1.e. In-house training from a regular employee, manager or
owner of the facility."
§64-9-7. Board of Examiners for Speech-Language Pathology and
Audiology.
The legislative rule filed in the state register on the
seventeenth day of June, two thousand nine, authorized under the
authority of section ten, article thirty-two, chapter thirty, of
this code, modified by the Board of Examiners for Speech-Language
Pathology and Audiology to meet the objections of the legislative
rule-making review committee and refiled in the state register on
July 23, 2009, relating to the Board of Examiners for Speech-
Language Pathology and Audiology (licensure of speech-pathology and
audiology, 29 CSR 1), is authorized
with the following amendment:
On page 6, subsection 12.2, by striking out the second
sentence of the subsection "These continuing education hours may
only be credited if they are acquired during the 2-year licensure
period, unless the licensee falls under 12.1.a.' and inserting in
lieu thereof a new second sentence 'Licensees who exceed the
minimum continuing education requirement may carry a maximum of 6
hours forward to the next reporting period only."
§64-9-8. Real Estate Appraiser Licensing and Certification Board.
(a) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section nine, article
thirty-eight, chapter thirty, of this code, modified by the Real
Estate Appraiser Licensing and Certification Board to meet the
objections of the legislative rule-making review committee and
refiled in the state register on September 22, 2009, relating to
the Real Estate Appraiser Licensing and Certification Board
(requirements for licensure and certification, 190 CSR 2), is
authorized.
(b)The legislative rule filed in the state register on March
23, 2009, authorized under the authority of section nine, article
thirty-eight, chapter thirty, of this code, relating to the Real
Estate Appraiser Licensing and Certification Board (renewal of
licensure or certification, 190 CSR 3), is authorized.
§64-9-9. Board of Osteopathy.
(a) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section four, article
fourteen, chapter thirty, of this code, modified by the Board of
Osteopathy to meet the objections of the legislative rule-making
review committee and refiled in the state register on October 3,
2009, relating to the Board of Osteopathy (licensing procedures for
osteopathic physicians, 24 CSR 1), is authorized.
(b) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section nine-a, article
fourteen, chapter thirty, of this code, modified by the Board of
Osteopathy to meet the objections of the legislative rule-making review committee and refiled in the state register on November 24,
2009, relating to the Board of Osteopathy (formation and approval
of professional limited liability companies, 24 CSR 4), is
authorized.
(c) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of section four, article
fourteen, chapter thirty, of this code, modified by the Board of
Osteopathy to meet the objections of the legislative rule-making
review committee and refiled in the state register on October 23,
2009, relating to the Board of Osteopathy (fees for services
rendered by the Board, 24 CSR 5), is authorized.
§64-9-10. Secretary of State.
(a) The legislative rule filed in the state register on the
July 31, 2009, authorized under the authority of two-a, article
three, chapter three, of this code, modified by the Secretary of
State to meet the objections of the legislative rule-making review
committee and refiled in the state register on November 19, 2009,
relating to the Secretary of State (early voting in person
satellite precincts, 153 CSR 13), is authorized
with the following
amendment:
On page 5, section 7.3, after the word, "workers" by inserting
a comma and the following words, "of differing political
affiliation,".
(b) The legislative rule filed in the state register on July
31, 2009
, authorized under the authority of three, article three-a, chapter three, of this code, modified by the Secretary of State to
meet the objections of the legislative rule-making review committee
and refiled in the state register on November 5, 2009, relating to
the Secretary of State (Vote-by-mail Pilot Project Phase 1: Class
IV Early Voting by Mail, 153 CSR 38), is authorized.
(c) The legislative rule filed in the state register on July
31, 2009, authorized under the authority of three, article three-a,
chapter three, of this code, modified by the Secretary of State to
meet the objections of the legislative rule-making review committee
and refiled in the state register on November 5, 2009, relating to
the Secretary of State (Vote-by-mail Pilot Project Phase 2: Voting
by Mail, 153 CSR 39), is authorized
with the following amendments:
On page 2, by inserting a new subdivision designated, 3.1.e.
to read as follows:
"3.1.e. A municipality shall submit the required information
to the Office of the Secretary of State by November 11, 2010.";
On page 2, subparagraph 3.1.d.6, by striking the word, "pubic"
and inserting the word, "public";
On page 3, subdivision 3.2.a, by striking the words, "an
ordinance" and inserting the words, "a resolution".
§64-9-11. Board of Occupational Therapy.
(a) The legislative rule filed in the state register on July
7, 2009, authorized under the authority of section seven, article
twenty-eight, chapter thirty, of this code, modified by the Board
of Occupational Therapy to meet the objections of the legislative rule-making review committee and refiled in the state register on
November 24, 2009, relating to the Board of Occupational Therapy
(administrative rules of the Board of Occupational Therapy and
licensure of occupational therapists and occupational therapy
assistants, 13 CSR 1), is authorized with the following amendments:
On page five, subsection 9.1., after the colon, by inserting
a new subdivision to read as follows:
9.1.a. Is of good moral character;;
And, by renumbering the remaining subdivisions;
On page twelve, after the words, 'are dependent upon the', by
inserting a colon;
On page twelve, by striking subdivisions 12.5.b and 12.5.c
their entirety and inserting in lieu thereof new subdivisions
12.5.b and 12.5.c to read as follows:
12.5.b. A licensed supervising occupational therapist or
occupational therapy assistant must maintain direct continuous
supervision over aides;
12.5.c. A licensed supervising occupational therapist must
maintain direct continuous supervision over occupational therapy
students. As the occupational therapy student demonstrates
competency in performance, supervision can progress to direct close
supervision at the discretion of the supervising occupational
therapist;;
And,
On page twelve, by inserting two new subdivisions designated 12.5.d and 12.5.e to read as follows:
12.5.d. A licensed supervising occupational therapist or
occupational therapy assistant must maintain direct continuous
supervision over occupational therapy assistant students. As the
occupational therapy assistant student demonstrates competency in
performance, supervision can progress to direct close supervision
at the discretion of the supervising occupational therapist /
occupational therapy assistant;
12.5.e. Direct supervision is demonstrated through co-
signatures on all paperwork or electronic notes pertaining to the
practice of occupational therapy for the person requiring direct
supervision. All paperwork or electronic notes pertaining to the
practice of occupational therapy must be signed and dated,
electronically or otherwise, by the supervising licensed
occupational therapist.
(b) The legislative rule filed in the state register on July
7, 2009, authorized under the authority of section seven, article
twenty-eight, chapter thirty, of this code, modified by the Board
of Occupational Therapy to meet the objections of the legislative
rule-making review committee and refiled in the state register on
November 24, 2009, relating to the Board of Occupational Therapy
(fees for services rendered by the Board, 13 CSR 3), is authorized
with the following amendment:
On page one, subsection 1.2., by striking out "§30-28-6" and
inserting "§30-28-7".
(c) The legislative rule filed in the state register on July
7, 2009, authorized under the authority of section seven, article
twenty-eight, chapter thirty, of this code, modified by the Board
of Occupational Therapy to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-fourth day of November 24, 2009, relating to the Board
of Occupational Therapy (continuing education and competence, 13
CSR 4), is authorized with the following amendment:
On page one, subsection 1.2., by striking out "§30-28-6" and
inserting in lieu thereof "§30-28-7".
(d) The legislative rule filed in the state register on July
7, 2009, authorized under the authority of section seven, article
twenty-eight, chapter thirty, of this code, modified by the Board
of Occupational Therapy to meet the objections of the legislative
rule-making review committee and refiled in the state register on
November 24, 2009, relating to the Board of Occupational Therapy
(competency standards for advance practice by occupational
therapists and occupational therapy assistants, 13 CSR 5), is
authorized with the following amendments:
On page one, subsection 1.2, by striking out "§30-28-6" and
inserting in lieu thereof "§30-28-7";
On page two, by striking subdivisions 4.5.a, 4.5.b, 4.5.c, and
4.5.d in their entirety and inserting in lieu thereof new
subdivisions 4.5.a, 4.5.b, and 4.5.c to read as follows:
4.5.a. Accredited educational programs;
4.5.b. Specific certification as endorsed by the American
Occupational Therapy Association or its successor, or as approved
by the WVBOT;
4.5.c. Successful completion of an appropriate continuing
education course which includes theory, indications, contra-
indications and applications;
And,
On page two, by inserting a new subdivision 4.6.a to read as
follows:
4.6.a. The Board shall conduct random audits of occupational
therapy assistants to substantiate competency in physical agent
modalities.
(e) The legislative rule filed in the state register on July
7, 2009, authorized under the authority of section seven, article
twenty-eight, chapter thirty, of this code, modified by the Board
of Occupational Therapy to meet the objections of the legislative
rule-making review committee and refiled in the state register on
November 24, 2009, relating to the Board of Occupational Therapy
(ethical standards of practice, 13 CSR 6), is authorized with the
following amendment:
On page one, subsection 1.2., by striking out "§30-28-6" and
inserting in lieu thereof "§30-28-7".
§64-9-12. Board of Psychologists.
The legislative rule filed in the state register on July 27,
2009, authorized under the authority of section six, article twenty-one, chapter thirty, of this code, modified by the Board of
Psychologists to meet the objections of the legislative rule-making
review committee and refiled in the state register on January 14,
2010, relating to the Board of Psychologists (qualifications for
licensure as a psychologist or a school psychologist, 17 CSR 3), is
authorized with the following amendment:
On page 3, section 5.1, after the words "W.Va. Code §30-21-
2.", by adding the following:
"For the purposes of this rule, the supervised professionally
oriented teaching, supervising and research activities of
applicants who are full-time, university clinical faculty members
may apply towards the required hours of supervised work
experience."
§64-9-13. Governor's Office of Health Enhancement and Lifestyle
Planning.
The legislative rule filed in the state register on October
30,2009, authorized under the authority of section eight, article
twenty-nine-H, chapter sixteen, of this code, relating to the
Governor's Office of Health Enhancement and Lifestyle Planning
(prescription drug advertising expense reporting, 210 CSR 1), is
authorized.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4108) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Helmick, Jenkins, Kessler, Laird, McCabe, Minard,
Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger,
Wells, White, Williams, Yost and Tomblin (Mr. President)--29.
The nays were: Barnes, Guills, Hall and Sypolt--4.
Absent: Green--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4108) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Browning,
Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio,
Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White,
Williams, Yost and Tomblin (Mr. President)--29.
The nays were: Barnes, Guills, Hall and Sypolt--4.
Absent: Green--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4108) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 4144, Relating to the board
of veterinary medicine.
And has amended same.
And,
Eng. Com. Sub. for House Bill No. 4186, Relating to the
practice of nursing home administration.
And has amended same.
And reports the same back with the recommendation that they
each do pass, as amended.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bills (Eng. H. B. No. 4144 and Eng. Com. Sub. for H.
B. No. 4186) contained in the preceding report from the Committee
on Government Organization were each taken up for immediate
consideration, read a first time and ordered to second reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4164, Creating of a pilot
program for the placement of children four to ten years of age in
foster care which shall be known as Jacob's Law.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4164) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4277, Authorizing the Secretary of the
Department of Environmental Protection to issue National Pollutant
Discharge Elimination System permits.
And has amended same.
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on March 10, 2010;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 4277) contained in the preceding report from the Committee on the Judiciary was taken up for
immediate consideration and read a second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On pages two through thirteen, by striking out all of sections
one and seven.
On motion of Senator Kessler, the following amendment to the
bill was next reported by the Clerk and adopted:
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §22-11-3 and §22-11-8 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:.
The bill (Eng. H. B. No. 4277), as amended, was then ordered
to third reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4486, Relating to tax
tickets and other required notifications concerning property taxes.
And has amended same.
Now on second reading, having been read a first time and
rereferred to the Committee on the Judiciary on March 11, 2010;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4486) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §11A-3-52 and 11A-3-55 of the Code of West Virginia,
1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE
AND UNAPPROPRIATED LANDS.
§11A-3-52. What purchaser must do before he can secure a deed.
(a) Within forty-five days following the approval of the sale
by the auditor pursuant to section fifty-one of this article, the
purchaser, his heirs or assigns, in order to secure a deed for the
real estate purchased, shall:
(1) Prepare a list of those to be served with notice to redeem
and request the deputy commissioner to prepare and serve the notice
as provided in sections fifty-four and fifty-five of this article;
and
(2) When the real property subject to the tax lien was
classified as Class II property, provide the deputy commissioner with the actual mailing address of the property that is subject to
the tax lien or liens purchased; and,
(2) (3) Deposit, or offer to deposit, with the deputy
commissioner a sum sufficient to cover the costs of preparing and
serving the notice.
(b) For failure to meet these requirements If the purchaser
fails to fulfill the requirements set forth in paragraph (a) of
this section, the purchaser shall lose all the benefits of his or
her purchase.
(c) After the requirements of paragraph (a) of this section
have been satisfied, the deputy commissioner may then sell the
property in the same manner as he sells lands which have been
offered for sale at public auction but which remain unsold after
such auction, as provided in section forty-eight of this article.
(b) (d) If the person requesting preparation and service of
the notice is an assignee of the purchaser, he shall, at the time
of the request, file with the deputy commissioner a written
assignment to him of the purchaser's rights, executed, acknowledged
and certified in the manner required to make a valid deed.
§11A-3-55. Service of notice.
As soon as the deputy commissioner has prepared the notice
provided for in section fifty-four of this article, he shall cause
it to be served upon all persons named on the list generated by the
purchaser pursuant to the provisions of section fifty-two of this
article. Such notice shall be mailed and, if necessary, published at least thirty days prior to the first day a deed may be issued
following the deputy commissioner's sale.
The notice shall be served upon all such persons residing or
found in the state in the manner provided for serving process
commencing a civil action or by certified mail, return receipt
requested. The notice shall be served on or before the thirtieth
day following the request for such notice.
If any person entitled to notice is a nonresident of this
state, whose address is known to the purchaser, he shall be served
at such address by certified mail, return receipt requested.
If the address of any person entitled to notice, whether a
resident or nonresident of this state, is unknown to the purchaser
and cannot be discovered by due diligence on the part of the
purchaser, the notice shall be served by publication as a Class
III-0 legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code, and the publication
area for such publication shall be the county in which such real
estate is located. If service by publication is necessary,
publication shall be commenced when personal service is required as
set forth above, and a copy of the notice shall at the same time be
sent by certified mail, return receipt requested, to the last known
address of the person to be served. The return of service of such
notice, and the affidavit of publication, if any, shall be in the
manner provided for process generally and shall be filed and
preserved by the auditor in his office, together with any return receipts for notices sent by certified mail.
In addition to the other notice requirements set forth in this
section, if the real property subject to the tax lien was
classified as Class II property at the time of the assessment, at
the same time the deputy commissioner issues the required notices
by certified mail, the deputy commissioner shall forward a copy of
the notice sent to the delinquent taxpayer by first class mail,
addressed to "Occupant", to the physical mailing address for the
subject property. The physical mailing address for the subject
property shall be supplied by the purchaser of the property,
pursuant to the provisions of section fifty-two of this article.
The bill (Eng. Com. Sub. for H. B. No. 4486), as amended, was
then ordered to third reading.
Senator McCabe, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4541, Authorizing circuit
court judges and magistrates to utilize county or municipal jails
to detain persons charged with a crime up to ninety-six hours, or,
to confine persons convicted of a crime for not more than fourteen
days.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 10, 2010;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Brooks F. McCabe, Jr.,
Vice Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4541) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, read a second time and ordered to third
reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4582, Creating reciprocity for West
Virginia small, women and minority-owned businesses who receive
such preferences in other states.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 4582) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration, read a first time and ordered to second reading.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under
consideration
Eng. Com. Sub. for House Bill No. 4666, Establishing a grant
program for substance abuse prevention.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Finance, with amendments from the
Committee on Health and Human Resources pending.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Unger, the name of Senator Unger was
removed as a sponsor of
Senate Bill No. 274 (Authorizing DEP
promulgate legislative rule relating to solid waste management),
Senate Bill No. 275 (Authorizing DEP promulgate legislative rule
relating to covered electronic devices takeback program), Senate
Bill No. 276 (Authorizing DEP promulgate legislative rule relating
to hazardous waste management systems), Senate Bill No. 277
(Authorizing DEP promulgate legislative rule relating to National
Pollutant Discharge Elimination System Program), Senate Bill No. 279 (Authorizing DEP promulgate legislative rule relating to
WV/NPDES rules for coal mining facilities), Senate Bill No. 280
(Authorizing DEP promulgate legislative rule relating to monitoring
wells), Senate Bill No. 281 (Authorizing DEP promulgate legislative
rule relating to monitoring well design standards), Senate Bill No.
282 (Authorizing Division of Energy promulgate legislative rule
relating to community development assessment and real property
valuation procedures for Office of Coalfield Community
Development), Senate Bill No. 283 (Authorizing Fire Commission
promulgate legislative rule relating to State Fire Code), Senate
Bill No. 284 (Authorizing Fire Commission promulgate legislative
rule relating to State Building Code), Senate Bill No. 285
(Authorizing Hatfield-McCoy Regional Recreation Authority
promulgate legislative rule relating to rules for use of
facilities), Senate Bill No. 288 (Authorizing DHHR promulgate
legislative rule relating to distribution of state aid funds to
local boards of health), Senate Bill No. 289 (Authorizing Health
Care Authority promulgate legislative rule relating to hospital
ambulatory health care facilities), Senate Bill No. 290
(Authorizing DHHR promulgate legislative rule relating to nurse aid
abuse registry), Senate Bill No. 292 (Authorizing Commissioner of
Highways promulgate legislative rule relating to transportation of
hazardous wastes upon roads and highways), Senate Bill No. 293
(Authorizing Insurance Commissioner promulgate legislative rule relating to WV Life and Health Insurance Guaranty Association Act
notice requirements), Senate Bill No. 294 (Authorizing Insurance
Commissioner promulgate legislative rule relating to mental health
parity), Senate Bill No. 295 (Authorizing Insurance Commissioner
promulgate legislative rule relating to viatical settlements),
Senate Bill No. 296 (Authorizing Insurance Commissioner promulgate
legislative rule relating to use of senior-specific certifications
and professional designations in sale of life insurance and
annuities), Senate Bill No. 297 (Authorizing State Board of
Examiners for Licensed Practical Nurses promulgate legislative rule
relating to policies and procedures for development and maintenance
of educational programs in practical nursing), Senate Bill No. 299
(Authorizing DMV promulgate legislative rule relating to denial,
suspension, revocation, restriction or nonrenewal of driving
privileges), Senate Bill No. 301 (Authorizing DNR promulgate
legislative rule relating to commercial whitewater outfitters),
Senate Bill No. 302 (Authorizing DNR promulgate legislative rule
relating to deer hunting), Senate Bill No. 303 (Authorizing DNR
promulgate legislative rule relating to special fishing), Senate
Bill No. 304 (Authorizing Board of Occupational Therapy promulgate
legislative rule relating to administrative rules of board and
licensure of occupational therapists and occupational therapy
assistants), Senate Bill No. 306 (Authorizing Board of Occupational
Therapy promulgate legislative rule relating to continuing education and competence), Senate Bill No. 307 (Authorizing Board
of Occupational Therapy promulgate legislative rule relating to
competency standards for advance practice by occupational
therapists and occupational therapy assistants) and Senate Bill No.
308 (Authorizing Board of Occupational Therapy promulgate
legislative rule relating to ethical standards of practice).
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules.
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Saturday, March 13, 2010, at 11 a.m.
____________