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SENATE (2009)(RS):| Bill History | Topical Index | Committee Schedule | Calendar | Journal | Menu |

Senate Journal


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sdj-60th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2009

SIXTIETH DAY

____________

Charleston, W. Va., Saturday, April 11, 2009

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

     Prayer was offered by the Reverend Joel R. Harshberger, Retired United Methodist Clergy, Kingwood, West Virginia. Dennis Harrison of Charleston, West Virginia, then proceeded in the playing of "Scotland the Brave" and "Amazing Grace" on the bagpipes.
     Pending the reading of the Journal of Friday, April 10, 2009,
     On motion of Senator Bowman, 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.
     On motion of Senator Chafin, the Senate recessed for five minutes to permit Emily Mervine to address the Senate on behalf of the Walter Rollins Scholars, Stephen Schelling on behalf of the Legislative Information Journalism Internship Program and Carlo Sciara on behalf of the Judith A. Herndon Fellowship Program.
     Upon expiration of the recess, the Senate reconvened and, at the request of Senator Chafin, unanimous consent being granted, proceeded to the sixth order of business.
     Senators Chafin, Stollings, Helmick, Fanning, Kessler, Yost and Foster offered the following resolution:
     Senate Concurrent Resolution No. 82--Requesting the Joint Committee on Government and Finance study the benefits of dedicating a portion of revenue generated from coal, oil and gas severance taxes for the benefit of counties and municipalities where the revenue was generated.
     Whereas, Counties that produce coal, oil and gas provide the state with one of its primary sources of revenue in the form of severance taxes; and
     Whereas, The counties that produce coal, oil and gas bear great burdens attendant to the production, extraction and transportation of the materials that produce this irreplaceable stream of revenue; and
     Whereas, The producing counties do not receive a share of the revenue generated from coal, oil and gas commensurate with the burdens they bear and the value they provide; therefore, be it
     Resolved by the Legislature of West Virginia:
     That the Joint Committee on Government and Finance is hereby requested to study the benefits of dedicating a portion of revenue generated from coal, oil and gas severance taxes for the benefit of counties and municipalities where the revenue was generated; and, be it
     Further Resolved, That the Joint Committee on Government and Finance's study include creating a special revenue fund, providing for the distribution of the moneys in the fund and providing permissible uses for distributed moneys; and, be it
     Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
     Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
     Which, under the rules, lies over one day.
     Senators Unger, Wells, Snyder, Kessler and Yost offered the following resolution:
     Senate Resolution No. 57--Congratulating the Martinsburg Bulldogs boys' basketball team for winning the 2009 Class AAA state championship.
     Whereas, The Martinsburg Bulldogs boys' basketball team is led by head coach Dave Rogers; and
     Whereas, The Martinsburg Bulldogs boys' basketball team had a dominant year, finishing with a record of 26-2 in route to winning the AAA state championship; and
     Whereas, The Martinsburg Bulldogs boys' basketball team displayed its strong will and determination for an entire season and will be remembered as one of the best teams ever assembled in West Virginia boys' basketball history; and
     Whereas, The Martinsburg Bulldogs boys' basketball team is a shining example of what can be accomplished through teamwork, dedication and spirit; therefore, be it
     Resolved by the Senate:
     That the Senate hereby congratulates the Martinsburg Bulldogs boys' basketball team for winning the 2009 Class AAA state championship; and, be it
     Further Resolved, That the Senate commends each coach, team member and staff member for their outstanding accomplishments; and, be it
     Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Martinsburg Bulldogs boys' basketball team.
     At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     Senators Caruth, Fanning, Wells, McCabe, Kessler, Palumbo, Yost and Foster offered the following resolution:
     Senate Resolution No. 58--Memorializing the life of Glenn Thomas "Tom" Searls, reporter, writer and dedicated West Virginian.
     Whereas, Tom Searls was born in Marmet, Kanawha County, the son of Glenn Cheetwood and Carol Canterberry Searls; and
     Whereas, Tom Searls was a 1972 graduate of East Bank High School and was the editor of the school newspaper; and
     Whereas, Tom Searls was a graduate of Marshall University and was twice elected president of the student body. He also worked as a reporter and editor for the university's newspaper, The Parthenon. Throughout his life, he remained a loyal Thundering Herd fan; and
     Whereas, Tom Searls began his professional journalism career with the Welch Day News, Welch, West Virginia. He also worked for the Raleigh Register, Beckley, West Virginia, the Johnson City Press, Johnson City, Tennessee, the Bluefield Daily Telegraph, Bluefield, West Virginia, the Dominion Post, Morgantown, West Virginia, and United Press International (UPI) in West Virginia and Ohio; and
     Whereas, Tom Searls began working at the Charleston Gazette in 1991 and was assigned to the state capitol as a correspondent. He was well suited for the job because of his love of politics and history; and
     Whereas, Tom Searls was well respected by his peers and was the recipient of a number of journalistic awards. He was especially proud of the winning the Al Nakkula Award for police reporting from the University of Colorado School of Journalism and Mass Communication in 2000; and
     Whereas, Sadly, Tom Searls passed away on August 14, 2008; therefore, be it
     Resolved by the Senate:
     That the Senate hereby memorializes the life of Glenn Thomas "Tom" Searls, reporter, writer and dedicated West Virginian; and, be it
     Further Resolved, That the Senate hereby expresses its sincere sadness at the passing of Tom Searls; and, be it
     Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the family of the late Tom Searls.
     At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration and reference to a committee dispensed with.
     The question being on the adoption of the resolution (S. R. No. 58), and on this question, Senator Wells demanded the yeas and nays.
     The roll being taken, 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, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Plymale--1.
     So, a majority of those present and voting having voted in the affirmative, the President declared the resolution (S. R. No. 58) adopted.
     Thereafter, at the request of Senator Sypolt, and by unanimous consent, the remarks by Senators Caruth, Barnes and Wells regarding the adoption of Senate Resolution No. 58 were ordered printed in the Appendix to the Journal.
     At the request of Senator Caruth, unanimous consent being granted, the remarks by Senators McCabe, Foster and Palumbo regarding the adoption of Senate Resolution No. 58 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.
Petitions

     Senator Yost presented a petition from Kim White and numerous West Virginia residents, requesting the Legislature to examine and modify Child Protective Services' child placement guidelines.
     Referred to the Committee on Health and Human Resources.
     At the request of Senator Snyder, and by unanimous consent, the Senate proceeded to the thirteenth order of business.
     At the request of Senator Snyder, the name of Senator Snyder was removed as a sponsor of Engrossed Committee Substitute for Senate Bill No. 461 (Extending selenium effluent limits compliance time) and Senate Resolution No. 28 (Urging Congress pass Employee Free Choice Act).
     At the request of Senator Chafin, unanimous consent being granted, the Senate returned to the fourth order of business.
     Senator Stollings, from the Committee on Confirmations, submitted the following report, which was received:
     Your Committee on Confirmations has had under consideration
     Senate Executive Message No. 2, dated February 24, 2009, requesting confirmation by the Senate of the nominations mentioned therein. The following list of names from Executive Message No. 2 is submitted:
      1. For Member, West Virginia University Board of Governors, Dr. Charles Vest, Washington, D. C., for the term ending June 30, 2012.
      2. For Member, West Virginia University Board of Governors, Oliver Luck, Houston, Texas, for the term ending June 30, 2012.
      3. For Member, West Virginia University Board of Governors, Ray Lane, Atherton, California, for the term ending June 30, 2012.
      4. For Member, Fairmont State University Board of Governors, H. Skip Tarasuk, Jr., Fairmont, Marion County, for the term ending June 30, 2012.
      5. For Member, Fairmont State University Board of Governors, James Kettering, Fairmont, Marion County, for the term ending June 30, 2011.
      6. For Member, Fairmont State University Board of Governors, Ron Tucker, Fairmont, Marion County, for the term ending June 30, 2012.
      7. For Member, Fairmont State University Board of Governors, Mark Pallotta, Fairmont, Marion County, for the term ending June 30, 2012.
      8. For Member, Parkways, Economic Development and Tourism Authority, Victor Grigoraci, Charleston, Kanawha County, for the term ending May 31, 2011.
      9. For Member, Public Port Authority, Mark Carroll, Buckhannon, Upshur County, for the term ending June 30, 2011.
  10.     For Member, Clay Center Board of Directors, Jane Kopp, Huntington, Cabell County, for the term ending June 30, 2010.
  11.     For Member, Clay Center Board of Directors, Laurance Jones III, Looneyville, Roane County, for the term ending June 30, 2011.
  12.     For Member, Clay Center Board of Directors, Harry Esbenshade, Vienna, Wood County, for the term ending June 30, 2010.
  13.     For Member, Clay Center Board of Directors, Bobby Nicholas, Morgantown, Monongalia County, for the term ending June 30, 2009.
  14.     For Member, Clay Center Board of Directors, Diane Dailey, Martinsburg, Berkeley County, for the term ending June 30, 2010.
  15.     For Member, Clay Center Board of Directors, Shirley Phillips, Ghent, Raleigh County, for the term ending June 30, 2011.
  16.     For Member, Clay Center Board of Directors, Joan Weisburg, Huntington, Cabell County, for the term ending June 30, 2011.
  17.     For Member, Board of Dental Examiners, Dr. Craig Meadows, Shenandoah Junction, Jefferson County, for the term ending June 30, 2013.
  18.     For Member, Real Estate Appraiser Licensing and Certification Board, Charles Robilliard, Hepzibah, Harrison County, for the term ending June 30, 2011.
  19.     For Member, Marshall University Board of Governors, Letitia Neese Chafin, Williamson, Mingo County, for the term ending June 30, 2012.
  20.     For Member, Marshall University Board of Governors, John G. Hess, Barboursville, Cabell County, for the term ending June 30, 2012.
  21.     For Member, Marshall University Board of Governors, Verna Gibson, Sarasota, Florida, for the term ending June 30, 2012.
  23.     For Member, Public Employees Insurance Agency Finance Board, Bill Ihlenfeld, Wheeling, Ohio County, for the term ending June 30, 2012.
  24.     For Member, Public Employees Insurance Agency Finance Board, The Honorable Joe Smith, Charleston, Kanawha County, for the term ending June 30, 2012.
  25.     For Member, Manufactured Housing Construction and Safety Board, Thomas Belasco, Bridgeport, Harrison County, for the term ending June 30, 2012.
  26.     For Member, Manufactured Housing Construction and Safety Board, Samuel L. Bonasso, Fairmont, Marion County, for the term ending June 30, 2014.
  27.     For Member, Manufactured Housing Construction and Safety Board, Jack Albert, Charleston, Kanawha County, for the term ending June 30, 2014.
  28.     For Member, Manufactured Housing Construction and Safety Board, Robert F. Miller, Charleston, Kanawha County, for the term ending June 30, 2012.
  30.     For Member, Commission on Holocaust Education, Brenda Williams, Buckhannon, Upshur County, for the term ending June 30, 2011.
  31.     For Member, Pierpont Community and Technical College Board of Governors, Earl McConnell, Fairmont, Marion County, for the term ending June 30, 2012.
  32.     For Member, Pierpont Community and Technical College Board of Governors, Dixie Copley, Fairmont, Marion County, for the term ending June 30, 2010.
  33.     For Member, Pierpont Community and Technical College Board of Governors, Linda Aman, Jane Lew, Lewis County, for the term ending June 30, 2010.
  34.     For Member, Pierpont Community and Technical College Board of Governors, James Griffin, Bridgeport, Harrison County, for the term ending June 30, 2010.
  35.     For Member, Pierpont Community and Technical College Board of Governors, Larry Mazza, Bridgeport, Harrison County, for the term ending June 30, 2010.
  36.     For Member, Pierpont Community and Technical College Board of Governors, L. Eugene Weaver, Fairmont, Marion County, for the term ending June 30, 2012.
  37.     For Member, Pierpont Community and Technical College Board of Governors, Kyle Hamilton, Fairmont, Marion County, for the term ending June 30, 2012.
  38.     For Member, Pierpont Community and Technical College Board of Governors, Jeff Tucker, Bridgeport, Harrison County, for the term ending June 30, 2012.
  39.     For Member, Pierpont Community and Technical College Board of Governors, John P. Jones, Jr., Fairmont, Marion County, for the term ending June 30, 2012.
  40.     For Member, Southern West Virginia Community and Technical College Board of Governors, Glenn Yost, Logan, Logan County, for the term ending June 30, 2012.
  41.     For Member, Southern West Virginia Community and Technical College Board of Governors, Thomas A. Heywood, Charleston, Kanawha County, for the term ending June 30, 2012.
  42.     For Member, Southern West Virginia Community and Technical College Board of Governors, Jada Hunter, Williamson, Mingo County, for the term ending June 30, 2012.
  43.     For Member, Shallow Gas Well Review Board, Randy Hansford, Ghent, Raleigh County, to serve at the will and pleasure of the Governor.
  44.     For Member, School Building Authority, Connie Perry, Berkeley Springs, Morgan County, for the term ending July 31, 2010.
  45.     For Member, Board of Pharmacy, Lydia Main, Masontown, Preston County, for the term ending June 30, 2013.
  46.     For Member, West Virginia University Parkersburg Board of Governors, The Honorable Keith Burdette, Vienna, Wood County, for the term ending June 30, 2012.
  47.     For Member, West Virginia University Parkersburg Board of Governors, Joe Campbell, Parkersburg, Wood County, for the term ending June 30, 2012.
  48.     For Member, West Virginia University Parkersburg Board of Governors, Gerard El Chaar, Vienna, Wood County, for the term ending June 30, 2010.
  49.     For Member, West Virginia University Parkersburg Board of Governors, William H. Hopkins, Parkersburg, Wood County, for the term ending June 30, 2012.
  50.     For Member, West Virginia University Parkersburg Board of Governors, Curtis P. Miller, Vienna, Wood County, for the term ending June 30, 2012.
  51.     For Member, West Virginia University Parkersburg Board of Governors, The Honorable Gregory K. Smith, Vienna, Wood County, for the term ending June 30, 2012.
  52.     For Member, West Virginia University Parkersburg Board of Governors, Rock Wilson, Pennsboro, Ritchie County, for the term ending June 30, 2010.
  53.     For Member, West Virginia University Parkersburg Board of Governors, Cindy Bullock, Vienna, Wood County, for the term ending June 30, 2010.
  54.     For Member, Affordable Housing Trust Fund Board of Directors, Kevin Wilfong, Fairmont, Marion County, for the term ending June 30, 2011.
  55.     For Member, Affordable Housing Trust Fund Board of Directors, Ray Joseph, Charleston, Kanawha County, for the term ending June 30, 2011.
  56.     For Member, Affordable Housing Trust Fund Board of Directors, Virginia Lewis, Charleston, Kanawha County, for the term ending June 30, 2011.
  57.     For Member, Affordable Housing Trust Fund Board of Directors, Mary Skeens, Charleston, Kanawha County, for the term ending June 30, 2011.
  58.     For Member, Affordable Housing Trust Fund Board of Directors, Fred McDonald, Bridgeport, Harrison County, for the term ending June 30, 2011.
  59.     For Member, Affordable Housing Trust Fund Board of Directors, Marlo Scruggs, St. Albans, Kanawha County, for the term ending June 30, 2011.
  60.     For Member, Affordable Housing Trust Fund Board of Directors, Al Means, Martinsburg, Berkeley County, for the term ending June 30, 2011.
  61.     For Member, Marshall University Community and Technical College Board of Governors, Ruth Cline, Huntington, Cabell County, for the term ending June 30, 2012.
  62.     For Member, Marshall University Community and Technical College Board of Governors, Mark George, Huntington, Cabell County, for the term ending June 30, 2012.
  63.     For Member, Marshall University Community and Technical College Board of Governors, Bob Bailey, Huntington, Cabell County, for the term ending June 30, 2010.
  64.     For Member, Marshall University Community and Technical College Board of Governors, Mark Bugher, Huntington, Cabell County, for the term ending June 30, 2012.
  65.     For Member, Marshall University Community and Technical College Board of Governors, Susan Richardson, Huntington, Cabell County, for the term ending June 30, 2010.
  66.     For Member, Marshall University Community and Technical College Board of Governors, Mike Herron, Hurricane, Putnam County, for the term ending June 30, 2012.
  67.     For Member, Marshall University Community and Technical College Board of Governors, Jeffrey Porter, Huntington, Cabell County, for the term ending June 30, 2010.
  68.     For Member, Marshall University Community and Technical College Board of Governors, Jim Hale, Huntington, Cabell County, for the term ending June 30, 2012.
  69.     For Member, Public Energy Authority, Dean Cordle, Winfield, Putnam County, for the term ending June 30, 2011.
  70.     For Member, Board of Optometry, Dr. Gregory S. Moore, South Charleston, Kanawha County, for the term ending June 30, 2010.
  71.     For Member, Board of Optometry, Dr. Matthew Berardi, Fairmont, Marion County, for the term ending June 30, 2011.
  72.     For Member, Statewide Independent Living Council, Brenda Lamkin, Buckhannon, Upshur County, for the term ending June 30, 2011.
  73.     For Member, Statewide Independent Living Council, William C. Davis, Morgantown, Monongalia County, for the term ending June 30, 2011.
  74.     For Member, Statewide Independent Living Council, Brenda Goodfellow, Sistersville, Tyler County, for the term ending June 30, 2011.
  75.     For Member, Statewide Independent Living Council, David Sanders, Belle, Kanawha County, for the term ending June 30, 2011.
  76.     For Member, Statewide Independent Living Council, David Stewart, Charleston, Kanawha County, for the term ending June 30, 2011.
  77.     For Member, Statewide Independent Living Council, Scott Adkins, St. Albans, Kanawha County, for the term ending June 30, 2009.
  78.     For Member, Statewide Independent Living Council, Beverly Jones, Hurricane, Putnam County, for the term ending June 30, 2011.
  79.     For Member, Statewide Independent Living Council, Colin Mitchell, Harpers Ferry, Jefferson County, for the term ending June 30, 2011.
  80.     For Member, Statewide Independent Living Council, James Qualls, Huntington, Cabell County, for the term ending June 30, 2011.
  81.     For Member, Statewide Independent Living Council, Kevin Smith, Vienna, Wood County, for the term ending June 30, 2011.
  82.     For Member, Statewide Independent Living Council, Burl Anderson, Weirton, Hancock County, for the term ending June 30, 2011.
  83.     For Member, Marshall University Community and Technical College Board of Governors, Jason Moses, Huntington, Cabell County, for the term ending June 30, 2010.
  84.     For Member, Bluefield State College Board of Governors, Larry Ratliff, Cedar Bluff, Virginia, for the term ending June 30, 2011.
  85.     For Member, Probable Cause Review Board, Reverend James E. Shepherd II, Huntington, Cabell County, for the term ending June 30, 2010.
  86.     For Member, Ethics Commission, Joseph Trupo, Bridgeport, Harrison County, for the term ending June 30, 2013.
  87.     For Member, Elections Commission, Gary Collias, Charleston, Kanawha County, for the term ending June 30, 2014.
  88.     For Member, West Virginia University Parkersburg Board of Governors, Kennad Lee Skeen II, Ripley, Jackson County, for the term ending June 30, 2010.
  89.     For Member, Contractor Licensing Board, Jacob Meck, Green Bank, Pocahontas County, for the term ending June 30, 2011.
  90.     For Member, West Liberty State College Board of Governors, Richard Carter, Wheeling, Ohio County, for the term ending June 30, 2012.
  91.     For Member, West Liberty State College Board of Governors, Paul Limbert, Wheeling, Ohio County, for the term ending June 30, 2009.
  92.     For Member, West Liberty State College Board of Governors, Jim R. Stultz, Moundsville, Marshall County, for the term ending June 30, 2012.
  93.     For Member, Emergency Services Advisory Council, Steven McEntire, Clarksburg, Harrison County, for the term ending June 30, 2011.
  94.     For Member, Emergency Services Advisory Council, Richard Rock, Clarksburg, Harrison County, for the term ending June 30, 2011.
  95.     For Member, Emergency Services Advisory Council, Joe Coburn, Princeton, Mercer County, for the term ending June 30, 2011.
  96.     For Member, Emergency Services Advisory Council, John Ashcraft, New Cumberland, Hancock County, for the term ending June 30, 2009.
  97.     For Member, Emergency Services Advisory Council, Jim Kranz, Charleston, Kanawha County, for the term ending June 30, 2011.
  98.     For Member, Emergency Services Advisory Council, Connie Hall, Coal City, Raleigh County, for the term ending June 30, 2011.
  99.     For Member, Emergency Services Advisory Council, George Sovick III, Dunbar, Kanawha County, for the term ending June 30, 2011.
  100.    For Member, Emergency Services Advisory Council, Paul Seamann, Beckley, Raleigh County, for the term ending June 30, 2011.
  101.    For Member, Emergency Services Advisory Council, Marcel Malfregot, Jr., Clarksburg, Harrison County, for the term ending June 30, 2011.
  102.    For Member, Emergency Services Advisory Council, A. Gordon Merry, Huntington, Cabell County, for the term ending June 30, 2011.
  103.    For Member, Emergency Services Advisory Council, Scott Edwards, Hurricane, Putnam County, for the term ending June 30, 2011.
  104.    For Member, Emergency Services Advisory Council, Roger Curry, Fairmont, Marion County, for the term ending June 30, 2011.
  105.    For Member, Emergency Services Advisory Council, Donna Steward, Springfield, Hampshire County, for the term ending June 30, 2011.
  106.    For Member, Emergency Services Advisory Council, Glen Satterfield, Fairmont, Marion County, for the term ending June 30, 2011.
  107.    For Member, West Virginia State University Community and Technical College Board of Governors, Robert Manley, Charleston, Kanawha County, for the term ending June 30, 2010.
  108.    For Member, New River Community and Technical College Board of Governors, Leslie Baker, Beckley, Raleigh County, for the term ending June 30, 2009.
  109.    For Member, New River Community and Technical College Board of Governors, Deborah A. Hill, Summersville, Nicholas County, for the term ending June 30, 2009.
  110.    For Member, New River Community and Technical College Board of Governors, Albert A. Martine, Daniels, Raleigh County, for the term ending June 30, 2010.
  111.    For Member, New River Community and Technical College Board of Governors, Robert Farley, Princeton, Mercer County, for the term ending June 30, 2010.
  112.    For Member, New River Community and Technical College Board of Governors, Edward Knight, Lewisburg, Greenbrier County, for the term ending June 30, 2011.
  113.    For Member, New River Community and Technical College Board of Governors, Marilyn Leftwich, White Sulphur Springs, Greenbrier County, for the term ending June 30, 2011.
  114.    For Member, New River Community and Technical College Board of Governors, David Nalker, Lewisburg, Greenbrier County, for the term ending June 30, 2012.
  115.    For Member, New River Community and Technical College Board of Governors, Vickie Nutter, Craigsville, Nicholas County, for the term ending June 30, 2012.
  116.    For Member, New River Community and Technical College Board of Governors, E. T. Smith, Princeton, Mercer County, for the term ending June 30, 2012.
  117.    For Member, Broadband Deployment Council, Michael Kelemen, Hurricane, Putnam County, for the term ending December 31, 2011.
  118.    For Member, West Virginia State University Community and Technical College Board of Governors, Ian Burdett, South Charleston, Kanawha County, for the term ending June 30, 2010.
  119.    For Member, West Virginia State University Community and Technical College Board of Governors, Janna Inghram, Charleston, Kanawha County, for the term ending June 30, 2010.
  120.    For Member, West Virginia State University Community and Technical College Board of Governors, Donna Atkinson, Charleston, Kanawha County, for the term ending June 30, 2010.
  121.    For Member, West Virginia State University Community and Technical College Board of Governors, Greg Barker, Leon, Mason County, for the term ending June 30, 2012.
  122.    For Member, West Virginia State University Community and Technical College Board of Governors, Mark Dempsey, Charleston, Kanawha County, for the term ending June 30, 2012.
  123.    For Member, West Virginia State University Community and Technical College Board of Governors, Jan Vineyard, Charleston, Kanawha County, for the term ending June 30, 2012.
  124.    For Member, Marshall University Board of Governors, Dr. Joseph Touma, Huntington, Cabell County, for the term ending June 30, 2012.
  125.    For Member, Parole Board, Michael Trupo, Bridgeport, Harrison County, for the term ending June 30, 2013.
  126.    For Member, Board of Education, Louis Wade Linger, Jr., Fairmont, Marion County, for the term ending November 4, 2017.
  127.    For Member, Natural Resources Commission, Peter L. Cuffaro, Wheeling, Ohio County, for the term ending June 30, 2015.
  128.    For Interim Executive Officer, Center for Professional Development Board, Dr. Dixie Billheimer, Huntington, Cabell County, to serve at the will and pleasure of the Governor.
  129.    For Chief Administrative Law Judge, Workers' Compensation Board of Review, Rebecca Roush, Mason, Mason County, for the term ending December 1, 2011.
  130.    For Member, Board of Directors of the West Virginia United Health System, Inc., Mark R. Nesselroad, Morgantown, Monongalia County, for the term ending October 15, 2010.
  131.    For Superintendent, State Police, Timothy S. Pack, South Charleston, Kanawha County, to serve at the will and pleasure of the Governor.
  132.    For Member, Board of Accountancy, Lee Fisher, Little Birch, Braxton County, for the term ending June 30, 2010.
  133.    For Member, Board of Accountancy, Robert S. Maust, Morgantown, Monongalia County, for the term ending June 30, 2011.
  134.    For Member, Board of Accountancy, Reed Spangler, Charleston, Kanawha County, for the term ending June 30, 2011.
  135.    For Member, Board of Accountancy, James M. Sturgeon, Charleston, Kanawha County, for the term ending June 30, 2010.
  136.    For Member, Board of Accountancy, John S. Bodkin, Jr., Wheeling, Ohio County, for the term ending June 30, 2009.
  137.    For Member, Board of Accountancy, Harold Davis, Lenore, Mingo County, for the term ending June 30, 2009.
  138.    For Member, Board of Accountancy, Don Nestor, Buckhannon, Upshur County, for the term ending June 30, 2010.
  139.    For Member, Board of Medicine, Reverend Richard Bowyer, Fairmont, Marion County, for the term ending June 30, 2013.
  140.    For Chief Administrative Law Judge, Office of Tax Appeals, Michele Duncan Bishop, Alum Creek, Kanawha County, for the term ending June 30, 2012.
  141.    For Member, Concord University Board of Governors, Brace R. Mullett, Charleston, Kanawha County, for the term ending June 30, 2010.
  142.    For Member, Water Development Board, John Miller III, Gerrardstown, Berkeley County, for the term ending June 30, 2014.
  143.    For Member, Workers' Compensation Board of Review, Rita F. Hedrick-Helmick, Charleston, Kanawha County, for the term ending December 31, 2014.
  144.    For Member, Blue Ridge Community and Technical College Board of Governors, Taylor Perry, Martinsburg, Berkeley County, for the term ending June 30, 2011.
  145.    For Member, Blue Ridge Community and Technical College Board of Governors, Maria Lorensen, Martinsburg, Berkeley County, for the term ending June 30, 2011.
  146.    For Member, Blue Ridge Community and Technical College Board of Governors, Jane Peters, Charles Town, Jefferson County, for the term ending June 30, 2012.
  147.    For Member, Blue Ridge Community and Technical College Board of Governors, Jim Rodgers, Martinsburg, Berkeley County, for the term ending June 30, 2013.
  148.    For Member, Blue Ridge Community and Technical College Board of Governors, Teresa E. McCabe, Martinsburg, Berkeley County, for the term ending June 30, 2010.
  149.    For Member, Blue Ridge Community and Technical College Board of Governors, Tina Combs, Martinsburg, Berkeley County, for the term ending June 30, 2009.
  150.    For Member, Blue Ridge Community and Technical College Board of Governors, Albert T. Britton, Charles Town, Berkeley County, for the term ending June 30, 2010.
  151.    For Member, Catastrophic Illness Commission, Frances Roberts-Buchanan, Lesage, Cabell County, for the term ending August 31, 2013.
  152.    For Member, Catastrophic Illness Commission, Jacques Williams, Morgantown, Monongalia County, for the term ending August 31, 2012.
  153.    For Member, Catastrophic Illness Commission, Sandra Cotton, Morgantown, Monongalia County, for the term ending August 31, 2013.
  154.    For Member, Catastrophic Illness Commission, John Davidson, Charleston, Kanawha County, for the term ending August 31, 2009.
  155.    For Member, Catastrophic Illness Commission, Patricia Davis, Romney, Hampshire County, for the term ending August 31, 2009.
  156.    For Acting Commissioner, Division of Motor Vehicles, Joe E. Miller, Hurricane, Putnam County, to serve at the will and pleasure of the Governor.
  157.    For Member, Workforce Investment Council, Joanne Jaeger Tomblin, Chapmanville, Logan County, for the term ending June 30, 2012.
  158.    For Member, Workforce Investment Council, Bob Newell, Parkersburg, Wood County, for the term ending June 30, 2012.
  159.    For Member, Workforce Investment Council, Jerry Berry, Hinton, Summers County, for the term ending June 30, 2012.
  160.    For Member, Workforce Investment Council, Roy Smith, Charleston, Kanawha County, for the term ending June 30, 2012.
  161.    For Member, Workforce Investment Council, Bill Rock, Snowshoe, Pocahontas County, for the term ending June 30, 2012.
  162.    For Member, Workforce Investment Council, Kenny Perdue, Charleston, Kanawha County, for the term ending June 30, 2012.
  163.    For Member, Workforce Investment Council, David Bell, Vienna, Wood County, for the term ending June 30, 2012.
  164.    For Member, Workforce Investment Council, Nancy Kessinger, Beckley, Raleigh County, for the term ending June 30, 2012.
  165.    For Member, Workforce Investment Council, Bill Menke, Belle, Kanawha County, for the term ending June 30, 2012.
  166.    For Member, Workforce Investment Council, Joe Chronley, Williamstown, Wood County, for the term ending June 30, 2012.
  167.    For Member, Workforce Investment Council, Jim Rock, New Martinsville, Wetzel County, for the term ending June 30, 2012.
  168.    For Member, Board of Medicine, Dr. Badshah J. Wazir, Charleston, Kanawha County, for the term ending September 30, 2013.
  169.    For Member, Commission on the Arts, Susan Stevenson Landis, Daniels, Raleigh County, for the term ending June 30, 2011.
  170.    For Member, Commission on the Arts, Selina Midkiff, Charleston, Kanawha County, for the term ending June 30, 2010.
  171.    For Member, Commission on the Arts, Penny Watkins, Huntington, Cabell County, for the term ending June 30, 2010.
  172.    For Member, Commission on the Arts, Sam Winans, Parkersburg, Wood County, for the term ending June 30, 2011.
  173.    For Member, Commission on the Arts, Dr. Bernie Schultz, Morgantown, Monongalia County, for the term ending June 30, 2011.
  174.    For Member, Commission on the Arts, Stephen G. Skinner, Shenandoah Junction, Berkeley County, for the term ending June 30, 2011.
  175.    For Member, Workforce Investment Council, Jason Parsons, Morgantown, Monongalia County, for the term ending June 30, 2012.
  176.    For Member, Workforce Investment Council, Wayne Morgan, Charleston, Kanawha County, for the term ending June 30, 2012.
  177.    For Member, Workforce Investment Council, John Sorrenti, Weirton, Hancock County, for the term ending June 30, 2012.
  178.    For Member, Workforce Investment Council, Frank Ellis, Wheeling, Ohio County, for the term ending June 30, 2012.
  179.    For Member, Workforce Investment Council, Kim Tieman, Charleston, Kanawha County, for the term ending June 30, 2012.
  180.    For Member, Board of Medicine, Beth Hayes, Bluefield, Mercer County, for the term ending September 30, 2012.
  181.    For Member, Committee for the Purchase of Commodities and Services from the Handicapped, Penney Hall, Winfield, Putnam County, for the term ending January 31, 2011.
  182.    For Member, Committee for the Purchase of Commodities and Services from the Handicapped, Jan Smith, Fairmont, Marion County, for the term ending January 31, 2011.
  183.    For Member, Committee for the Purchase of Commodities and Services from the Handicapped, Deborah Lovely, Charleston, Kanawha County, for the term ending January 31, 2011.
  184.    For Member, Committee for the Purchase of Commodities and Services from the Handicapped, Philip Mason, Fairmont, Marion County, for the term ending January 31, 2011.
  185.    For Member, Committee for the Purchase of Commodities and Services from the Handicapped, Jan Lilly Stewart, Dunbar, Kanawha County, for the term ending January 31, 2011.
  186.    For Member, Committee for the Purchase of Commodities and Services from the Handicapped, Everett Sullivan, Dunbar, Kanawha County, for the term ending January 31, 2011.
  187.    For Member, West Virginia University Board of Governors, Diane Lewis, Morgantown, Monongalia County, for the term ending June 30, 2009.
  188.    For Member, Athletic Commission, Brian Simpson, Beckley, Raleigh County, for the term ending June 30, 2009.
  189.    For Member, State Personnel Board, Elizabeth Walker, Charleston, Kanawha County, for the term ending June 30, 2013.
  190.    For Member, Parkways, Economic Development and Tourism Authority, Douglas M. Epling, Beckley, Raleigh County, for the term ending May 31, 2017.
  191.    For Member, Outdoor Heritage Conservation Fund Board of Trustees, David Warner, Shanks, Hampshire County, for the term ending June 30, 2012.
  192.    For Member, Outdoor Heritage Conservation Fund Board of Trustees, Bob Baird, Gallipolis Ferry, Mason County, for the term ending June 30, 2011.
  193.    For Member, Outdoor Heritage Conservation Fund Board of Trustees, Rodney Bartgis, Elkins, Randolph County, for the term ending June 30, 2012.
  194.    For Member, Outdoor Heritage Conservation Fund Board of Trustees, Calvert Armbrecht, Charleston, Kanawha County, for the term ending June 30, 2012.
  195.    For Member, Outdoor Heritage Conservation Fund Board of Trustees, Terrell Ellis, Charleston, Kanawha County, for the term ending June 30, 2011.
  196.    For Member, Outdoor Heritage Conservation Fund Board of Trustees, George Constantz, High View, Hampshire County, for the term ending June 30, 2011.
  197.    For Member, Outdoor Heritage Conservation Fund Board of Trustees, Jeffrey Lusk, Cyclone, Wyoming County, for the term ending June 30, 2010.
  198.    For Member, Outdoor Heritage Conservation Fund Board of Trustees, Thomas Pauley, Huntington, Cabell County, for the term ending June 30, 2010.
  199.    For Member, Outdoor Heritage Conservation Fund Board of Trustees, Jim Summers, Worthington, Marion County, for the term ending June 30, 2010.
  200.    For Member, Board of Medicine, Dr. Khalid Hasan, Beckley, Raleigh County, for the term ending September 30, 2014.
  201.    For Member, Board of Medicine, Dr. Vettivelu Maheswaran, Charles Town, Jefferson County, for the term ending September 30, 2014.
  202.    For Member, Regional Jail and Correctional Facility Authority, Jeff Sandy, Parkersburg, Wood County, for the term ending June 30, 2013.
  203.    For Member, Higher Education Policy Commission, Dr. John Leon, Fairmont, Marion County, for the term ending June 30, 2013.
  204.    For Member, Higher Education Policy Commission, Dr. Bruce Berry, Morgantown, Monongalia County, for the term ending June 30, 2013.
  205.    For Member, West Virginia Workforce Investment Council, Diane W. Strong-Treister, Charleston, Kanawha County, for the term ending June 30, 2012.
  206.    For Member, Auctioneers Board of Review, James Frio, Valley Grove, Ohio County, for the term ending January 1, 2011.
  207.    For Member, Board of Examiners in Counseling, Robert R. Mays, Jr., Holden, Logan County, for the term ending June 30, 2014.
  208.    For Member, State Conservation Committee, Eli McCoy, Charleston, Kanawha County, for the term ending June 30, 2011.
  209.    For Member, Workforce Investment Council, Ralph Baxter, Wheeling, Ohio County, for the term ending June 30, 2012.
  210.    For Member, Workforce Investment Council, Reverend Matthew Watts, Charleston, Kanawha County, for the term ending June 30, 2012.
  211.    For Member, Workforce Investment Council, Nelson Robinson, Charleston, Kanawha County, for the term ending June 30, 2012.
  212.    For Member, Workforce Investment Council, Chris Kroger, Morgantown, Monongalia County, for the term ending June 30, 2012.
  213.    For Member, Workforce Investment Council, Butch Pennington, Martinsburg, Berkeley County, for the term ending June 30, 2012.
  214.    For Member, Workforce Investment Council, Jeff Moore, Buffalo, Putnam County, for the term ending June 30, 2012.
  215.    For Member, Board of Hearing Aid Dealers, Marsha Mattingly, Huntington, Cabell County, for the term ending July 13, 2013.
  216.    For Member, Commission on the Arts, Elaine D'Alessandri, Morgantown, Monongalia County, for the term ending June 30, 2010.
  217.    For Member, Commission on the Arts, Ralph Ballard, Lewisburg, Greenbrier County, for the term ending June 30, 2011.
  218.    For Member, Commission on the Arts, Carol Templeton, Milton, Cabell County, for the term ending June 30, 2010.
  219.    For Member, Workforce Investment Council, Homer Sweeney, Cross Lanes, Kanawha County, for the term ending June 30, 2012.
  220.    For Member, Workforce Investment Council, Angela Markham, South Charleston, Kanawha County, for the term ending June 30, 2012.
  221.    For Member, Workforce Investment Council, Mark Downs, Fairmont, Marion County, for the term ending June 30, 2012.
  222.    For Member, Public Port Authority, Gerald Sites, Petersburg, Grant County, for the term ending June 30, 2011.
  223.    For Member, Public Port Authority, The Honorable Charles Lanham, Point Pleasant, Mason County, for the term ending June 30, 2011.
  224.    For Member, Public Port Authority, Robert E. Mayhew, Romney, Hampshire County, for the term ending June 30, 2011.
  225.    For Member, Tourism Commission, The Honorable Oshel B. Craigo, Winfield, Putnam County, for the term ending May 1, 2011.
  226.    For Member, Tourism Commission, Clifford Sutherland, Morgantown, Monongalia County, for the term ending May 1, 2012.
  227.    For Member, Tourism Commission, Patsy Hardy, Parkersburg, Wood County, for the term ending May 1, 2011.
  228.    For Member, Ethics Commission, The Honorable Jon Blair Hunter, Morgantown, Monongalia County, for the term ending June 30, 2012.
  229.    For Member, Capitol Building Commission, The Honorable David McKinley, Wheeling, Ohio County, for the term ending June 30, 2010.
  230.    For Member, Records Management and Preservation Board, Kenneth Lemaster, Martinsburg, Berkeley County, to serve at the will and pleasure of the Governor.
  231.    For Executive Director, Jobs Investment Trust Board, Andrew Zulauf, Charleston, Kanawha County, to serve at the will and pleasure of the Governor.
  232.    For Member, Hospital Finance Board, Jack Gordon Roop, Crab Orchard, Raleigh County, for the term ending January 9, 2012.
  233.    For Member, Board of the College Prepaid Tuition and Savings Program, Andre Cummings, Morgantown, Monongalia County, for the term ending June 30, 2013.
  234.    For Member, Board of the College Prepaid Tuition and Savings Program, Peggy Hawse, Moorefield, Hardy County, for the term ending June 30, 2012.
  235.    For Member, Board of the College Prepaid Tuition and Savings Program, Steve Davis, Cross Lanes, Kanawha County, for the term ending June 30, 2010.
  236.    For Member, Broadband Deployment Council, Elaine Harris, St. Albans, Kanawha County, for the term ending December 31, 2011.
  237.    For Member, Broadband Deployment Council, B. Keith Fulton, Hurricane, Putnam County, for the term ending December 31, 2011.
  238.    For Member, Broadband Deployment Council, Jan I. Fox, South Point, Ohio, for the term ending December 31, 2011.
  239.    For Member, Broadband Deployment Council, Lee Fisher, Little Birch, Braxton County, for the term ending December 31, 2011.
  240.    For Member, Broadband Deployment Council, Mike Friloux, Tulsa, Oklahoma, for the term ending December 31, 2011.
  241.    For Member, Broadband Deployment Council, Jamie Sullivan, Powell, Ohio, for the term ending December 31, 2011.
  242.    For Member, West Virginia University Institute of Technology Community and Technical College Board of Governors, Sally Smith, Charleston, Kanawha County, for the term ending June 30, 2010.
  243.    For Member, West Virginia University Institute of Technology Community and Technical College Board of Governors, Barry Holstein, Sissonville, Kanawha County, for the term ending June 30, 2012.
  244.    For Member, West Virginia University Institute of Technology Community and Technical College Board of Governors, Karen Price, Charleston, Kanawha County, for the term ending June 30, 2012.
  245.    For Member, West Virginia University Institute of Technology Community and Technical College Board of Governors, Thomas Dover, Charleston, Kanawha County, for the term ending June 30, 2012.
  246.    For Member, West Virginia University Institute of Technology Community and Technical College Board of Governors, David Lewia, Elkview, Kanawha County, for the term ending June 30, 2010.
  247.    For Member, West Virginia University Institute of Technology Community and Technical College Board of Governors, David Barnhart, Oak Hill, Fayette County, for the term ending June 30, 2010.
  248.    For Member, Women's Commission, Dr. Kathie Williams, Huntington, Cabell County, for the term ending June 30, 2011.
  249.    For Member, Women's Commission, Diana Bell, Wheeling, Ohio County, for the term ending June 30, 2011.
  250.    For Member, Women's Commission, Robin Young, Charleston, Kanawha County, for the term ending June 30, 2011.
  251.    For Member, Women's Commission, Kelly Davis, Ellamore, Randolph County, for the term ending June 30, 2011.
  252.    For Member, Women's Commission, Judy Shepherd, Edmond, Fayette County, for the term ending June 30, 2010.
  253.    For Member, Women's Commission, Stacy North, Morgantown, Monongalia County, for the term ending June 30, 2009.
  254.    For Member, Board of Hearing Aid Dealers, William Parrish, Parkersburg, Wood County, for the term ending July 13, 2013.
     Senate Executive Message No. 4, dated March 12, 2009, requesting confirmation by the Senate of the nomination mentioned therein. The following name from Executive Message No. 4 is submitted:
     1.   For Commissioner, Division of Banking, Sara Cline, Charleston, Kanawha County, to serve at the will and pleasure of the Governor.
     And,
     Senate Executive Message No. 8, dated April 8, 2009, requesting confirmation by the Senate of the nomination mentioned therein. The following name from Executive Message No. 8 is submitted:
     1.   For Member, Council for Community and Technical College Education, Greg Wooten, Logan, Logan County, for the term ending December 20, 2012.
     And reports the same back with the recommendation that the Senate do advise and consent to all of the nominations listed above.
                              Respectfully submitted,
                               Ron Stollings,
                               Chair.
__________

     The time having arrived for the special order of business to consider the list of nominees for public office submitted by His Excellency, the Governor, the special order thereon was called by the President.
     Thereupon, Senator Tomblin (Mr. President) laid before the Senate the following executive messages:
     Senate Executive Message No. 1, dated February 24, 2009 (shown in the Senate Journal of February 25, 2009, pages 2 to 27, inclusive).
     Senate Executive Message No. 4, dated March 12, 2009 (shown in the Senate Journal of March 13, 2009, pages 3 and 4).
     And,
     Senate Executive Message No. 8, dated April 8, 2009 (shown in the Senate Journal of that day, pages 33 and 34).
     Senator Stollings then moved that the Senate advise and consent to all of the executive nominations referred to in the foregoing report from the Committee on Confirmations, except the nominations of Letitia Neese Chafin to the Marshall University Board of Governors (being nomination number 19 in Executive Message No. 2), Rita F. Hedrick-Helmick to the Workers' Compensation Board of Review (being nomination number 143 in Executive Message No. 2) and Joanne Jaeger Tomblin to the Workforce Investment Council (being nomination number 157 in Executive Message No. 2).
     The question being on the adoption of the aforestated motion by Senator Stollings,
     The roll was then taken; and
     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, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the motion by Senator Stollings had prevailed and that all the executive nominations referred to in the foregoing report from the Committee on Confirmations, except the nominations of Letitia Neese Chafin to the Marshall University Board of Governors (being nomination number 19 in Executive Message No. 2), Rita F. Hedrick-Helmick to the Workers' Compensation Board of Review (being nomination number 143 in Executive Message No. 2) and Joanne Jaeger Tomblin to the Workforce Investment Council (being nomination number 157 in Executive Message No. 2) had been confirmed.
     Senator Stollings then moved that the Senate advise and consent to the nomination of Letitia Neese Chafin to the Marshall University Board of Governors (being nomination number 19 in Executive Message No. 2).
     Prior to the call of the roll, Senator Chafin moved to be excused from voting under rule number forty-three of the Rules of the Senate, which motion prevailed.
     The roll was then taken; and
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, 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: None.
     Excused from voting: Chafin--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the motion by Senator Stollings had prevailed and the nomination of Letitia Neese Chafin to the Marshall University Board of Governors had been confirmed.
     Senator Stollings then moved that the Senate advise and consent to the nomination of Rita F. Hedrick-Helmick to the Workers' Compensation Board of Review (being nomination number 143 in Executive Message No. 2).
     Prior to the call of the roll, Senator Helmick moved to be excused from voting under rule number forty-three of the Rules of the Senate, which motion prevailed.
     The roll was then taken; and
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, 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: None.
     Excused from voting: Helmick--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the motion by Senator Stollings had prevailed and the nomination of Rita F. Hedrick-Helmick to the Workers' Compensation Board of Review had been confirmed.
(Senator Chafin in the Chair.)

     Senator Stollings then moved that the Senate advise and consent to the nomination of Joanne Jaeger Tomblin to the Workforce Investment Council (being nomination number 157 in Executive Message No. 2).
     Prior to the call of the roll, Senator Tomblin (Mr. President) moved to be excused from voting under rule number forty-three of the Rules of the Senate, which motion prevailed.
     The roll was then taken; and
     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 and Yost--33.
     The nays were: None.
     Absent: None.
     Excused from voting: Tomblin (Mr. President)--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the Chair declared the motion by Senator Stollings had prevailed and the nomination of Joanne Jaeger Tomblin to the Workforce Investment Council had been confirmed.
__________

     Consideration of executive nominations having been concluded,
(Senator Tomblin, Mr. President, in the Chair.)

     Without objection, the Senate returned to the third order of business.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, 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. 227, Authorizing Department of Revenue promulgate legislative rules.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF TAX AND REVENUE TO PROMULGATE LEGISLATIVE RULES.

§64-7-1. State Tax Department.
     (a) The legislative rule filed in the State Register on August 29, 2008, authorized under the authority of section five, article ten, chapter eleven of this code, relating to the State Tax Department (Valuation of Intangible Personal Property Including Stock Accounts Receivable and Stock in Banks and Capital of Savings and Loan Associations, 110 CSR 1L), is authorized.
     (b) The legislative rule filed in the State Register on August 29, 2008, authorized under the authority of section seven-d, article ten, chapter eleven of this code, modified by the State Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 12, 2009, relating to the State Tax Department (Combined Returns Pursuant to an Investigation by the Tax Commissioner, 110 CSR 10K), is authorized.
     (c) The legislative rule filed in the State Register on August 29, 2008, authorized under the authority of section nine, article thirteen-x, chapter eleven of this code, modified by the State Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 12, 2009, relating to the State Tax Department (Film Industry Investment Tax Credit, 110 CSR 13X), is authorized with the following amendments:
     On page five, paragraph 3.1.b.1. by striking out the words "Tax Commissioner" and inserting in lieu thereof the words "Film Office";
     On page five, paragraph 3.1.b.2. by striking out the words "this article" and inserting in lieu thereof "W.Va. Code, §11-13X-1 et seq.";
     On page six, by striking out "4.1.d." and inserting in lieu thereof "4.1.c.3.";
     On page six, by striking out all of subdivision 4.1.e. and inserting in lieu thereof a new subdivision, designated subdivision 4.1.d., to read as follows:
     4.1.d. Upon approval of an eligibility application, the eligible company shall begin production within one hundred twenty (120) days of approval, or shall otherwise forfeit the right to claim any tax credit for the approved qualified project. The forfeiture does not preclude the eligible company from resubmitting an eligibility application for the same project at a future date. Upon written request by the eligible company, and prior to the expiration of the one hundred twenty (120) day deadline, the reviewing committee may extend the deadline at its discretion.;
     On page six, by striking out "4.2.c.1." and inserting in lieu thereof "4.2.a.";
     On page six, by striking out "4.2.c.2." and inserting in lieu thereof "4.2.b.";
     On page six, by striking out "4.2.c.3." and inserting in lieu thereof "4.2.c.";
     On page six, by striking out "4.2.c.4." and inserting in lieu thereof "4.2.d.";
     On page seven, by striking out "4.2.d" and inserting in lieu thereof "4.2.e.";
     On page nine, subsection 5.5, by striking out the words "be considered" and inserting in lieu thereof the words "maintain its initial position in the queue";
     On page nine, by striking out all of subdivisions 5.5.a. and 5.5.b.;
     On page nine, by inserting two new subsections, designated subsections 5.6 and 5.7, to read as follows:
     5.6. Requests for Increase in Tax Credit Allocation. - If an eligible company seeks an increase in the amount of tax credits for an approved qualified project, the eligible company shall submit an application for modification to the Film Office, which shall be submitted by and bear the same signature as the person who submitted the original eligibility application, or a duly authorized representative. The reviewing committee shall place requests for an increase in the order of receipt of all applications, assign each request a new application number and review each request separately from the original eligibility application. The reviewing committee shall consider the application at its next scheduled meeting, but within thirty (30) days of receipt, and may request additional information from the applicant to assist in its evaluation of the request. The reviewing committee shall determine approval using the same criteria of the review process and based on the availability of any remaining credits for the fiscal year in which the request is received. The Film Office shall notify the eligible company in writing of the reviewing committee's decision.
     5.7. Other Revisions to Application. - If an eligible company seeks to revise its original eligibility application for a qualified project for reasons other than those identified in subsection 5.6 of this rule, the eligible company shall submit an application for modification to the Film Office, which shall be submitted by and bear the same signature as the person who submitted the original eligibility application, or a duly authorized representative. The reviewing committee shall consider the application at its next scheduled meeting, but within thirty (30) days of receipt, and may request additional information from the applicant to assist in its evaluation of the request. The reviewing committee shall determine the approval using the same criteria of the review process. The Film Office shall notify the eligible company in writing of the reviewing committee's decision.;
     And by renumbering the remaining subsections;
     And,
     On page ten, subsection 6.1., by striking out "4.1.e." and inserting in lieu thereof "4.1.d.".
     (d) The legislative rule filed in the State Register on August 29, 2008, authorized under the authority of section five, article ten, chapter eleven of this code, modified by the State Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 12, 2009, relating to the State Tax Department (Electronic Filing and Payment of Special District Excise Tax, 110 CSR 39), is authorized.
     (e) The legislative rule filed in the State Register on August 29, 2008, authorized under the authority of section two-b, article ten, chapter eight of this code, modified by the State Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 12, 2009, relating to the State Tax Department (Withholding or Denial of Personal Income Tax Refunds from Taxpayers Who Owe Municipal Costs, Fines, Forfeitures or Penalties, 110 CSR 40), is authorized.
     (f) The legislative rule filed in the State Register on August 29, 2008, authorized under the authority of section five-s, article ten, chapter eleven of this code, modified by the State Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 12, 2009, relating to the State Tax Department (Exchange of Information Agreement between the State Tax Division and the Department of Health and Human Resources Office of the Inspector General Medicaid Fraud Control Unit, 110 CSR 50E), is disapproved.
§64-7-2. Insurance Commissioner.
     (a) The legislative rule filed in the State Register on August 29, 2008, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on February 20, 2009, relating to the Insurance Commissioner (Long-term Care Insurance, 114 CSR 32), is authorized.
     (b) The legislative rule filed in the State Register on August 29, 2008, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on February 20, 2009, relating to the Insurance Commissioner (Actuarial Opinion and Memorandum, 114 CSR 41), is authorized.
     (c) The legislative rule filed in the State Register on August 29, 2008, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on October 22, 2008, relating to the Insurance Commissioner (Continuing Education for Individual Insurance Producers, 114 CSR 42), is authorized, with the following amendment:
     On page 11, subdivision 8.5.a., by striking out the words "within fifteen (15) days of the date of hearing" and inserting in lieu thereof the words "not less than fifteen (15) days prior to the date of hearing".
     (d) The legislative rule filed in the State Register on August 14, 2008, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on February 20, 2009, relating to the Insurance Commissioner (Viatical Settlements, 114 CSR 80), is authorized.
     (e) The legislative rule filed in the State Register on August 14, 2008, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on February 20, 2009, relating to the Insurance Commissioner (Discount Medical Plan Organizations and Discount Prescription Drug Plan Organizations, 114 CSR 83), is authorized.
     (f) The legislative rule filed in the State Register on August 29, 2008, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on February 20, 2009, relating to the Insurance Commissioner (Professional Employer Organizations, 114 CSR 85), is authorized with the following amendments:
     On page 1, subsection 2.1., after the words "voting stock" by striking the word "or" and inserting in lieu thereof the word "of";
     On page 1, subdivision 2.3.a, after the word "hiring" by inserting the words "his, her or";
     On page 2, subsection 3.1., after the words "itself out as providing" by omitting the comma, and after the words "professional employer" by inserting the word "organization";
     On page 2, subdivision 3.2.b, after the words "fee of" by striking the word "$300" and inserting in lieu thereof the words "$200, and an annual report fee of $100";
     On page 2, subdivision 3.2.h., by striking out said subdivision 3.2.h. in its entirety and inserting in lieu thereof a new subdivision 3.2.h. to read as follows:
     h. A statement of management which includes the name and evidence of business experience of any person who serves as a president, chief executive officer or otherwise has the authority to act as a senior executive officer of the PEO.;
     On page 3, subdivision 3.2.l., in the last sentence of the subdivision, after the words "certificate of authority" by inserting the words "to do business in the state, issued by the Secretary of State,";
     And,
     On page 3, subsection 3.4 after the words "file for renewal of" by striking the word "their" and inserting in lieu thereof the word "its", and after the words "accompanied by a fee of" by striking the word "$300" and inserting in lieu thereof the words "$200 for the application fee and $100 for the annual report."
     (g) The legislative rule filed in the State Register on August 29, 2008, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on October 22, 2008, relating to the Insurance Commissioner (Preneed Life Insurance Minimum Standards for Determining Reserve Liabilities and Nonforfeiture Values, 114 CSR 86), is authorized.
64-7-4. Racing Commission.
     The legislative rule filed in the State Register on July 29, 2006, authorized under the authority of section six, article twenty-three, chapter nineteen of this code, approved for promulgation by the Legislature on March 11, 2006, and refiled in the State Register on May 5, 2006, relating to the Racing Commission (Greyhound Racing, 178 CSR 2) is authorized with the following amendment:
"§178-2-53. Training Tracks.
     2-53.1. General physical requirements.
     53.1.a. Any public training track must be approved and licensed by the commission. Only a public training track meeting the following criteria shall be eligible to receive funds as provided in WVC §19-23-10.
     53.1.b. The state may own or operate or both own and operate any training track built in this state, or a training track may be on land leased at fair market value for a period of twenty years. The state may contract operations to a private entity. Any lease or contract for services will follow the requirements of article three, chapter five-a of this code and the requirements of the Department of Administration regarding purchasing.
     53.1.b.1. The track compound shall have (1) a minimum area of twenty acres for development of the initial facility and an additional ten acres available for future expansion, (2) a ten- thousand-gallons-per-minute sewer plant, (3) adequate ingress and egress for safety and accessability and (4) adequate public parking.
     53.1.b.2. The track shall be at least 1,320 feet in circumference or 1/4 mile in length, and the track shall have adequate in-ground heating elements to ensure year-round training.
     53.1.b.3. The track shall have an approved racing surface, rails, lure, timing equipment, and starting box. The track surface shall consist of at least six inches of silt surface, followed by at least six inches of fill sand, followed by two inches of rigid insulation with an under-slab membrane.
     53.2. Security requirements.
     53.2.a. Security shall be adequate to ensure the safety of persons and dogs. The training track must have the following minimum security measures at a kennel compound.
     53.2.b. The kennel compound must be surrounded by a perimeter fence which will reduce the likelihood of unauthorized entry. The perimeter fence must be approved by the commission's chief investigator.
     53.2.b.1. The training track must have an appropriate check in and out system which will ensure that only those individuals who are licensees or authorized visitors and whose duties clearly require entry to the area will be allowed access.
     53.2.b.2. No law-enforcement officer, employee of the commission, or employee of a licensee, when in the performance of official duties, may be denied entry to the kennel compound. All visitors to the kennel compound will be accompanied by a commission representative, the licensee sponsoring the visitor or the licensee's security personnel.
     53.2.b.3. Access records will be available to the commission, its investigative personnel and the board of judges on request.
     53.2.b.4. In a case of an emergency a veterinarian licensed by the West Virginia State Board of Veterinarian Examiners may be allowed in the kennel compound if accompanied by appropriate personnel.
     53.2.b.5. At least one fire extinguisher shall be installed on the exterior wall of each kennel enclosure. The type and size of fire extinguisher must meet the State Fire Marshal's standards.
     53.2.b.6. A veterinarian licensed by West Virginia may possess, transport or use any drug or medication which by federal or state law requires a prescription within the confines of the kennel compound.
     53.2.b.6.A. A person having a legally valid prescription which includes a complete statement of the uses and purposes of the medication upon the medicine container may possess, transport or use a drug or medication which by federal or state law requires a prescription within the confines of the kennel compound if a copy of the prescription has been filed with the commission veterinarian and he or she has approved the use of the medication prior to its use on a greyhound.
     53.2.b.6.B. Over the counter drugs are allowed in the kennel compound however, the medication must be in the original container bearing the manufacturer's label with the serial or lot number.
     53.2.b.6.C. While in the compound all medications must be stored in locked cabinets in the kennel.
     53.2.b.6.D. The trainer must provide a list of all drugs or medications in the trainer's kennel to the commission veterinarian on a form provided by the commission veterinarian. The trainer is responsible for updating the list on a daily basis so that at all times it reflects the current drugs or medications in the trainer's kennel. A copy of the current list with the commission veterinarian's initials or signature on it must be posted in the trainer's kennel next to the medication cabinet.
     53.3. Operation and Maintenance of Kennel Compound
     53.3.a. No living quarters are provided and overnight stays will not be permitted except for emergencies. For emergency needs that require 24 hour assistance to a sick or injured greyhound the stay must first be approved by the training track's chief of security.
     53.3.b. The following restrictions apply to entry to the compound during the race meet, beginning with the start of official schooling. The kennel compound is a restricted area which requires special security controls and identity verification by security for all persons entering and leaving the compound:
     53.3.b.1. The person is a race-meet licensee official, a designated facility employee, or a West Virginia Racing Commission official or employee, each of whom shall present proper identification to the kennel compound security officer;
     53.3.b.2. Designated service-company personnel such as a licensed food vendor, electrical maintenance and repair, equipment and building servicing, telephone and utilities service, or garbage collection. These individuals do not require a kennel compound pass, but they must properly identify themselves and their purpose for entering and leaving the facility with the security officer prior to entering and leaving the facility.
     53.3.b.3. Visitors to the compound are discouraged; however, the facility licensee may develop a visitor pass system subject to the approval of the commission.
     53.3.b.4. Alcoholic beverages are not allowed in the kennel compound.
     53.4.1. The facility licensee shall be responsible for providing garbage and waste disposal;
     53.4.2. Each kennel is responsible for the daily pick up of all turn-out pen waste;
     53.4.3. Each kennel is responsible for the regular watering of turn-out pens to minimize odor;
     53.4.4. A 5 mile per hour speed limit shall be posted in the kennel compound."
§64-7-5. Lottery Commission.
     The legislative rule filed in the State Register on April, 20, 2004, under the authority of section four hundred two, article twenty-two-b, chapter twenty-nine of this code, approved for promulgation by the Legislature on March 12, 2004, relating to the lottery commission (Limited Video Lottery, 179 CSR 5), is authorized with the following amendments:
"§179-5-35. Prohibition Against Extending Credit.
     35.1. A video lottery retailer shall not extend credit, in any manner, to a player to enable the player to play a video lottery game.
     35.2. For purposes of this rule, the cashing of any check by a video lottery retailer to enable a player to play a video lottery game shall constitute an extension of credit.";
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 227--A Bill to amend and reenact article 7, chapter 64 of the Code of West Virginia, 1931, as amended, relating generally to the promulgation of administrative rules by the Department of Revenue; legislative mandate or authorization for the promulgation of certain legislative rules; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule- Making Review Committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee and as amended by the Legislature; repealing certain legislative rules; authorizing the State Tax Department to repeal a legislative rule relating to valuation of intangible personal property, including stock accounts receivable and stock in banks and capital of savings and loan associations; authorizing the State Tax Department to promulgate a legislative rule relating to combined returns pursuant to an investigation by the Tax Commissioner; authorizing the State Tax Department to promulgate a legislative rule relating to the film industry investment tax credit; authorizing the State Tax Department to promulgate a legislative rule relating to electronic filing and payment of special district excise tax; authorizing the State Tax Department to promulgate a legislative rule relating to the withholding or denial of personal income tax refunds from taxpayers who owe municipal costs, fines, forfeitures or penalties; disapproving the State Tax Department's proposed legislative rule relating to an exchange of information agreement between the State Tax Division and the Department of Health and Human Resources Office of the Inspector General Medicaid Fraud Control Unit; authorizing the Insurance Commissioner to promulgate a legislative rule relating to coordination of health benefits; authorizing the Insurance Commissioner to promulgate a legislative rule relating to long-term care insurance; authorizing the Insurance Commissioner to promulgate a legislative rule relating to actuarial opinion and memorandum; authorizing the Insurance Commissioner to promulgate a legislative rule relating to continuing education for individual insurance producers; authorizing the Insurance Commissioner to promulgate a legislative rule relating to viatical settlements; authorizing the Insurance Commissioner to promulgate a legislative rule relating to discount medical plan organizations and discount prescription drug plan organizations; authorizing the Insurance Commissioner to promulgate a legislative rule relating to professional employer organizations; authorizing the Insurance Commissioner to promulgate a legislative rule relating to preneed life insurance minimum standards for determining reserve liabilities and nonforfeiture values; authorizing the Racing Commission to promulgate a legislative rule relating to greyhound racing; and authorizing the Lottery Commission to promulgate a legislative rule relating to limited video lottery.
     On motion of Senator Kessler, the following amendment to the House of Delegates amendments to the bill was reported by the Clerk and adopted:
     On page fifteen, section five, by striking out all of subsection 35.2 and inserting in lieu thereof a new subsection 35.2, to read as follows:
     35.2. For purposes of this rule, a video lottery retailer shall be deemed to be extending credit when he or she knows or has reason to know that the proceeds of the check will be used solely to play or continue to play a video lottery game.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments, as amended.
     Engrossed Committee Substitute for Senate Bill No. 227, as amended, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 227) passed with its House of Delegates amended title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 227) takes effect from passage.
     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 with its House of Delegates amended title, to take effect July 1, 2009, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 249, Relating to annual school calendar.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §18-5-45 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §18-5A-5 of said code be amended and reenacted, all to read as follows:
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-45. School calendar.

     (a) As used in this section, the following terms have the following meanings:
     (1) "Instructional day" means a day within the instructional term which meets the following criteria:
     (A) Instruction is offered to students for at least the minimum amounts of time provided by state board rule;
     (B) Instructional time is used for instruction, cocurricular activities and approved extracurricular activities and, pursuant to the provisions of subdivision (12), subsection (b), section five, article five-a of this chapter, faculty senates; and
     (C) Such other criteria as the state board determines appropriate.
     (2) "Accrued instructional time" means instructional time accruing during the instructional term from time added to the instructional day beyond the time required by state board rule for an instructional day. Accrued instructional time may be accumulated and used in larger blocks of time during the school year for instructional or noninstructional activities as further defined by the state board.
     (3) "Extracurricular activities" are activities under the supervision of the school such as athletics, noninstructional assemblies, social programs, entertainment and other similar activities as further defined by the state board.
     (4) "Cocurricular activities" are activities that are closely related to identifiable academic programs or areas of study that serve to complement academic curricula as further defined by the state board.
     (b) Findings. --
     (1) The primary purpose of the school system is to provide instruction for students.
     (2) The school calendar, as defined in this section, is designed to define the school term both for employees and for instruction.
     (3) The school calendar traditionally has provided for one hundred eighty actual days of instruction but numerous circumstances have combined to cause the actual number of instructional days to be less than one hundred eighty.
     (4) The quality and amount of instruction offered during the instructional term is affected by the extracurricular and cocurricular activities allowed to occur during scheduled instructional time.
     (5) Within reasonable guidelines, the school calendar should be designed at least to guarantee that one hundred eighty actual days of instruction are possible.
     (6) School systems typically provide for instructional days that exceed the number of minutes per day of instructional time required by the state board. As a result, the total instructional time provided by these systems during their instructional terms exceeds the total instructional time required by one hundred eighty actual standard length days of instruction.
     (c) The county board shall provide a school term for its schools that contains the following:
     (1) An A minimum employment term for teachers of no less than two hundred days, exclusive of Saturdays and Sundays. The beginning and ending dates of the minimum two hundred-day employment term may not exceed forty-three weeks; and
     (2) Within the employment term, an instructional term for students of no less than one hundred eighty separate instructional days.
     (d) The instructional term for students shall include one instructional day in each of the months of October, December, February, April and June which is an instructional support and enhancement day scheduled by the board to include both instructional activities for students and professional activities for teachers to improve student instruction. Instructional support and enhancement days are subject to the following provisions:
     (1) Two hours of the instructional support and enhancement day shall be used for instructional activities for students. The instructional activities for students are subject to the following provisions:
     (A) The instructional activities for students require the direct supervision or involvement by teachers;
     (B) The instructional activities for students shall be limited to two hours;
     (C) The instructional activities for students shall be determined and scheduled at the local school level;
     (D) The instructional activities for students may include, but are not limited to, both in-school and outside of school activities such as student mentoring, tutoring, counseling, student research and other projects or activities of an instructional nature, community service, career exploration, parent student/parent and teacher conferences, visits to the homes of students, college and financial aid workshops and college visits;
     (E) To ensure that the students who attend are properly supervised, the instructional activities for students shall be arranged by appointment with the individual school through the principal, a teacher or other professional personnel at the school; and
     (F) Each school shall establish a policy relating to the use of the two-hour block scheduled for instructional activities for students;
     (2) The instructional support and enhancement day shall include a two-hour block of time for professional activities for teachers during which the faculty senate shall have the opportunity to meet;
     (3) All time remaining in the school day after meeting the requirements of subdivisions (1) and (2) of this subsection, not including the duty-free lunch period, shall be used for other professional activities for teachers to improve student instruction which may include, but are not limited to, professional staff development, curriculum team meetings, individualized education plan meetings, student assistance team meetings, local school improvement council meetings and other meetings between teachers, principals, aides, and paraprofessionals, parents and students to improve student instruction as determined and scheduled at the local school level;
     (4) Notwithstanding any other provision of law or policy to the contrary, the presence of any specific number of students in attendance at the school for any specific period of time shall not be required on instructional support and enhancement days and the transportation of students to the school shall not be required;
     (5) Instructional support and enhancement days are also a scheduled work day for all service personnel and shall be used for training or other tasks related to their job classification if their normal duties are not required; and
     (6) Nothing in this section may be construed to require that the instructional activities for students, faculty senate meetings and other professional activities for teachers be scheduled in any certain order.
     (e) The instructional term shall commence no earlier than August 26 and terminate no later than June 8.
     (f) Noninstructional days shall total twenty and shall be comprised of the following:
     (1) Seven holidays as specified in section two, article five, chapter eighteen-a of this code;
     (2) Election day as specified in section two, article five, chapter eighteen-a of this code;
     (3) Six days to be designated by the county board to be used by the employees outside the school environment; and
     (4) Six days to be designated by the county board for any of the following purposes:
     (A) Curriculum development;
     (B) Preparation for opening and closing school;
     (C) Professional development;
     (D) Teacher-pupil-parent conferences;
     (E) Professional meetings; and
     (F) Making up days when instruction was scheduled but not conducted.
     (g) At least three of the days described in subdivision (4), subsection (f) of this section shall be scheduled prior to the twenty-sixth day of August first day of the instructional term for the purposes of preparing for the opening of school and staff development. At least one of these days shall be reserved solely for the use of the teacher for classroom preparation.
     (h) At least one of the days described in subdivision (4), subsection (f) of this section shall be scheduled after June 8 for the purpose of preparing for the closing of school. If one hundred eighty separate instruction days occur prior to June 8, this day may be scheduled on or before June 8.
     (i) At least four of the days described in subdivision (3), subsection (f) of this section shall be scheduled after March 1.
     (j) At least two of the days described in subdivision (4), subsection (f) of this section will be scheduled for professional development. The professional development conducted on these days will be consistent with the goals established by the state board pursuant to the provisions of section twenty-three-a, article two of this chapter.
     (k) Subject to the provisions of subsection (h) of this section, all noninstructional days will be scheduled prior to June 8.
     (l) The state board may not schedule the primary statewide assessment program prior to the fifteenth day of May of the instructional year unless the state board determines that the nature of the test mandates an earlier testing date.
     (m) If, on or after the first day of March, the county board determines that it is not possible to complete one hundred eighty separate days of instruction, the county board shall schedule instruction on any available noninstructional day, regardless of the purpose for which the day originally was scheduled, and the day will be used for instruction, subject to the following:
     
(1) The noninstructional days scheduled for professional development shall be the last available noninstructional days to be rescheduled as instructional days;
     
(2) On or after the first day of March, the county board also may require additional minutes of instruction in the school day to make up for lost instructional days in excess of the days available through rescheduling and, if in its judgment it is reasonable and necessary to improve student performance, to avoid scheduling instruction on noninstructional days previously scheduled for professional development; and
     
(3) The provisions of this subsection do not apply to: (1) Holidays; and (2) election day.
     
(n) (m) The following applies to accrued instructional time:
     (1) Accrued instructional time may be accumulated and used in larger blocks of time, including full days, during the school year for instructional or noninstructional activities as further defined by the state board;
_____
(1) (2) Except as provided in subsection (m) of this section, Accrued instructional time may not be used to avoid scheduling in the initial approved school calendar one hundred eighty separate days of instruction;
     (2) (3) Accrued instructional time may not be used to lengthen the time provided in law for faculty senates;
     (3) (4) The use of accrued instructional time for extracurricular activities will be limited by the state board;
     (4) (5) Accrued instructional time may be used by schools and counties to provide additional time for professional staff development and continuing education as may be needed to improve student performance and meet the requirements of the federal mandates affecting elementary and secondary education. The amount of accrued instructional time used for this purpose may not exceed three full instructional days;
     (6) The minutes of accrued instructional time added per day shall be totaled for each day on which they are accrued. The total, less accrued instructional time used for noninstructional purposes, shall be included along with the separate instructional days for reporting the instructional days attained by the county. Accrued instructional time shall be considered as an instructional day equivalent on the reporting as follows: For elementary schools, three hundred fifteen minutes equals one day; for middle schools, three hundred thirty minutes equals one day; and for high schools, three hundred forty-five minutes equals one day;
_____(7) When accrued instructional time is used at a school with grade levels for which a different number of instructional minutes per day are required by the state board, the minutes of accrued instructional time deducted shall be the minutes required for the lowest grade level;
_____(8) When accrued instructional time is used at the countywide level, such as accounting for the recovery of instructional time lost due to cancellations, the amount of accrued instructional time at the school in the county with the least amount of accrued instructional time shall be used;
and
     (5) (9) Other requirements or restrictions the The state board may provide in the rule required to be promulgated by this section, other requirements and restrictions on accrued instructional time not inconsistent with this section.
     (n) If, on or after February 1, the county board determines that it is not possible within the school calendar as scheduled to complete one hundred eighty separate days of instruction, the county board shall schedule instruction on any available noninstructional day, beginning with the next available day, including any day of accrued instructional time and any remaining instructional support and enhancement day, and the day will be used for instruction, subject to the following:
_____(1) A two-hour block of time shall be provided for the faculty senate to meet on an instructional support and enhancement day rescheduled for instruction; and
_____(2) The provisions of this subsection do not apply to: (A) Holidays; and (B) election day.
_____The county board also may, on or after February 1, increase the additional minutes of instruction required in the school day to make up for lost instructional days in excess of the days available through rescheduling and, if in its judgment it is reasonable and necessary to improve student performance, to avoid scheduling instruction on noninstructional days previously scheduled for professional development.

     (o) The following applies to cocurricular activities:
     (1) The state board shall determine what activities may be considered cocurricular;
     (2) The state board shall determine the amount of instructional time that may be consumed by cocurricular activities; and
     (3) Other requirements or restrictions the state board may provide in the rule required to be promulgated by this section.
     (p) The following applies to extracurricular activities:
     (1) Except as provided by subdivision (3) of this subsection, extracurricular activities may not be scheduled during instructional time;
     (2) The use of accrued instructional time for extracurricular activities will be limited by the state board; and
     (3) The state board shall provide for the attendance by students of certain activities sanctioned by the Secondary School Activities Commission when those activities are related to statewide tournaments or playoffs or are programs required for Secondary School Activities Commission approval.
     (q) Noninstructional interruptions to the instructional day shall be minimized to allow the classroom teacher to teach.
     (r) Nothing in this section prohibits establishing year-round schools in accordance with rules to be established by the state board.
     (s) Prior to implementing the school calendar, the county board shall secure approval of its proposed calendar from the state board or, if so designated by the state board, from the state superintendent.
     (t) The county board may contract with all or part of the personnel for a longer term.
     (u) The minimum instructional term may be decreased by order of the state superintendent in any county declared a federal or state disaster area and where the event causing the declaration is substantially related to a reduction of instructional days.
     (v) Where the employment term overlaps a teacher's or service personnel's participation in a summer institute or institution of higher education for the purpose of advancement or professional growth, the teacher or service personnel may substitute, with the approval of the county superintendent, the participation for up to five of the noninstructional days of the employment term.
     (w) The state board shall promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code for the purpose of implementing the provisions of this section.
     (x) The provisions of this section in effect prior to July 1, 2009, are effective for the school year beginning on July 1, 2009. The provisions of this section that become effective July 1, 2009, are effective for the school year beginning on July 1, 2010, and each school year thereafter.
ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
§18-5A-5. Public school faculty senates established; election of officers; powers and duties.

     (a) There is established at every public school in this state a faculty senate which is comprised of all permanent, full-time professional educators employed at the school who shall all be voting members. Professional educators, as used in this section, means professional educators as defined in chapter eighteen-a of this code. A quorum of more than one half of the voting members of the faculty shall be present at any meeting of the faculty senate at which official business is conducted. Prior to the beginning of the instructional term each year, but within the employment term, the principal shall convene a meeting of the faculty senate to elect a chair, vice chair and secretary and discuss matters relevant to the beginning of the school year. The vice chair shall preside at meetings when the chair is absent. Meetings of the faculty senate shall be held during the times provided in accordance with subdivision (12), subsection (b) of this section as determined by the faculty senate. Emergency meetings may be held during noninstructional time at the call of the chair or a majority of the voting members by petition submitted to the chair and vice chair. An agenda of matters to be considered at a scheduled meeting of the faculty senate shall be available to the members at least two employment days prior to the meeting. For emergency meetings the agenda shall be available as soon as possible prior to the meeting. The chair of the faculty senate may appoint such any committees as may be desirable necessary to study and submit recommendations to the full faculty senate, but the acts of the faculty senate shall be voted upon by the full body.
     (b) In addition to any other powers and duties conferred by law, or authorized by policies adopted by the state or county board of education or bylaws which may be adopted by the faculty senate not inconsistent with law, the powers and duties listed in this subsection are specifically reserved for the faculty senate. The intent of these provisions is neither to restrict nor to require the activities of every faculty senate to the enumerated items except as otherwise stated. Each faculty senate shall organize its activities as it deems determines most effective and efficient based on school size, departmental structure and other relevant factors.
     (1) Each faculty senate shall control funds allocated to the school from legislative appropriations pursuant to section nine, article nine-a of this chapter. From such those funds, each classroom teacher and librarian shall be allotted fifty dollars at least $100 for expenditure during the instructional year for academic materials, supplies or equipment which, in the judgment of the teacher or librarian, will assist him or her in providing instruction in his or her assigned academic subjects or shall be returned to the faculty senate: Provided, That nothing contained herein in this subdivision prohibits the funds from being used for programs and materials that, in the opinion of the teacher, enhance student behavior, increase academic achievement, improve self-esteem and address the problems of students at-risk. The remainder of funds shall be expended for academic materials, supplies or equipment in accordance with a budget approved by the faculty senate. Notwithstanding any other provisions of the law to the contrary, funds not expended in one school year are available for expenditure in the next school year: Provided, however, That the amount of county funds budgeted in a fiscal year may not be reduced throughout the year as a result of the faculty appropriations in the same fiscal year for such the materials, supplies and equipment. Accounts shall be maintained of the allocations and expenditures of such the funds for the purpose of financial audit. Academic materials, supplies or equipment shall be interpreted broadly, but does not include materials, supplies or equipment which will be used in or connected with interscholastic athletic events.
     (2) A faculty senate may establish a process for faculty members to interview new prospective professional educators and paraprofessional employees at the school and submit recommendations regarding employment to the principal, who also may also make independent recommendations, for submission to the county superintendent: Provided, That such the process shall be chaired by the school principal and must permit the timely employment of persons to perform necessary duties.
     (3) A faculty senate may nominate teachers for recognition as outstanding teachers under state and local teacher recognition programs and other personnel at the school, including parents, for recognition under other appropriate recognition programs and may establish such appropriate recognition programs for operation at the school.
     (4) A faculty senate may submit recommendations to the principal regarding the assignment scheduling of secretaries, clerks, aides and paraprofessionals at the school.
     (5) A faculty senate may submit recommendations to the principal regarding establishment of the master curriculum schedule for the next ensuing school year.
     (6) A faculty senate may establish a process for the review and comment on sabbatical leave requests submitted by employees at the school pursuant to section eleven, article two of this chapter.
     (7) Each faculty senate shall elect three faculty representatives to the local school improvement council established pursuant to section two of this article.
     (8) Each faculty senate may nominate a member for election to the county staff development council pursuant to section eight, article three, chapter eighteen-a of this code.
     (9) Each faculty senate shall have an opportunity to make recommendations on the selection of faculty to serve as mentors for beginning teachers under beginning teacher internship programs at the school.
     (10) A faculty senate may solicit, accept and expend any grants, gifts, bequests, donations and any other funds made available to the faculty senate: Provided, That the faculty senate shall select a member who has the duty of maintaining a record of all funds received and expended by the faculty senate. which The record shall be kept in the school office and is subject to normal auditing procedures.
     (11) Any faculty senate may review the evaluation procedure as conducted in their its school to ascertain whether the evaluations were conducted in accordance with the written system required pursuant to section twelve, article, two, chapter eighteen-a of this code and the general intent of this Legislature regarding meaningful performance evaluations of school personnel. If a majority of members of the faculty senate determine that such the evaluations were not so conducted, they shall submit a report in writing to the state board: of Education Provided, That nothing herein in this subdivision creates any new right of access to or review of any individual's evaluations.
     (12) A local board shall provide to each faculty senate a two-hour block of time for a faculty senate meeting on a day scheduled for the opening of school prior to the beginning of the instructional term, and a two-hour block of time on each instructional support and enhancement day scheduled by the board for instructional activities for students and professional activities for teachers pursuant to section forty-five, article five of this chapter. A faculty senate may meet for an unlimited block of time per month during noninstructional days to discuss and plan strategies to improve student instruction and to conduct other faculty senate business. A faculty senate meeting scheduled on a noninstructional day shall be considered as part of the purpose for which the noninstructional day is scheduled. This time may be utilized used and determined at the local school level and includes, but is not limited to, faculty senate meetings.
     (13) Each faculty senate shall develop a strategic plan to manage the integration of special needs students into the regular classroom at their respective schools and submit the strategic plan to the superintendent of the county board of education periodically pursuant to guidelines developed by the State Department of Education. Each faculty senate shall encourage the participation of local school improvement councils, parents and the community at large in developing the strategic plan for each school.
     Each strategic plan developed by the faculty senate shall include at least: (A) A mission statement; (B) goals; (C) needs; (D) objectives and activities to implement plans relating to each goal; (E) work in progress to implement the strategic plan; (F) guidelines for placing additional staff into integrated classrooms to meet the needs of exceptional needs students without diminishing the services rendered to the other students in integrated classrooms; (G) guidelines for implementation of collaborative planning and instruction; and (H) training for all regular classroom teachers who serve students with exceptional needs in integrated classrooms.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     End. Com. Sub. for Com. Sub. for Senate Bill No. 249--A Bill to amend and reenact §18-5-45 of the Code of West Virginia, 1931, as amended, relating to the annual school calendar; making additional findings; providing forty-three week "window" for employment term; adding additional specificity to types of meetings and participants on instructional support and enhancement days; providing noninstructional days for opening school are prior to the first day of instructional term rather than certain date, allowing additional days to be scheduled and reserving at least one day for classroom preparation by teacher; consolidating provisions applicable to accrued instructional time and allowing use for full days but not to avoid scheduling one hundred eighty days; providing for reporting days of accrued instructional time along with separate days; specifying accounting of accrued instructional time at schools with certain different grade levels and for countywide use; providing for rescheduling of noninstructional time on or after February 1, if one hundred eighty separate days as scheduled are not possible; exceptions; providing for additional lengthening of school day on or after February 1, to make up for lost instructional time and avoid rescheduling professional development under certain condition; providing for effect of 2009 amendment beginning 2010-2011 school year; increasing the minimum allotment to classroom teachers and librarians of faculty senate funds; and making various technical and preferred language changes.
     On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 249) 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 with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 278, Creating felony offense of willful failure to provide certain drug benefits.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 15E. DISCOUNT MEDICAL PLAN ORGANIZATIONS AND DISCOUNT PRESCRIPTION DRUG PLAN ORGANIZATIONS ACT.

§33-15E-15. Criminal penalties.
     (a) Any A person that willfully operates as or aids and abets another operating as a discount medical plan organization in violation of subsection (a), section four of this article is guilty of a felony and, upon conviction thereof, shall be fined not more than $20,000 for each unauthorized act or imprisoned in the state correctional facility not less than one nor more than five years, or both fined and imprisoned.
     (b) (1) A No person that collects fees shall collect a fee for purported membership in a discount medical plan or discount prescription drug plan and knowingly and willfully fails fail to provide the promised benefits with a value of one thousand dollars or more of the plan.
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(1) Any person who violates this subsection and in doing so collects fees totaling $1,000 or more is guilty of a felony and, upon conviction thereof, shall be fined not more than $2,500 or imprisoned in a state correctional facility not less than one nor more than ten years, or, in the discretion of the court, be confined in jail for not more than one year, or both fined and imprisoned or confined.
     (2) A person that collects fees for purported membership in a discount medical plan or discount prescription drug plan and knowingly and willfully fails to provide benefits with a value of less than one thousand dollars, Any person who violates this subsection and in doing so collects fees totaling less than $1,000 is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed two thousand five hundred dollars more than $2,500 or confined in jail for a term not to exceed more than one year, or both fined and confined.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 278--A Bill to amend and reenact §33-15E-15 of the Code of West Virginia, 1931, as amended, relating to the criminal offenses for failing to provide benefits of a discount medical plan or discount prescription drug plan; clarifying that the severity of the offense is dependant on the total of fees collected; and providing for an alternate sentence upon conviction of the felony offense.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 278, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 278) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 282, Relating to retail liquor licenses' classification.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page forty, section eighteen, line one, after the word "Sundays" by inserting the words "before one o'clock p.m. or on";
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 282--A Bill to amend and reenact §60-3A-2, §60-3A-2a, §60-3A-4, §60-3A-6, §60- 3A-7, §60-3A-8, §60-3A-10, §60-3A-10b, §60-3A-11, §60-3A-12 and §60-3A-18 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §60-3A- 10d, all relating to the sale of liquor; classifying retail licenses for the sale of liquor; setting forth legislative findings; defining certain terms; authorizing the Alcohol Beverage Control Commissioner to issue retail licenses for the sale of liquor; establishing certain standards for the issuance of licenses within market zones; limiting the issuance of retail licenses to operate mixed retail liquor outlets; authorizing the commissioner to adopt certain standards for retail outlets; increasing the maximum percentage of retail licenses a person may own; providing a purchase option for active retail licensees seeking to operate a freestanding liquor retail outlet; providing for financing for the purchase of a retail license for a freestanding liquor retail outlet; authorizing emergency rules; permitting the Sunday sale of liquor after one p.m.; and permitting the sale of liquor on election day.
     On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 282) 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 with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 322, Exempting certain life insurance policies from Medicaid assignment.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page two, section eleven, lines nine through eleven, by striking out the words "That life insurance policies with a death benefit of $25,000 or less are exempt from assignment under the provisions of this section." and inserting in lieu thereof the following: That the first $25,000 of the death benefit of a life insurance policy is exempt from assignment under the provisions of this section.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 322--A Bill to amend and reenact §9-5-11 of the Code of West Virginia, 1931, as amended, relating to exempting the first $25,000 of the death benefit of a life insurance policy from assignment by Medicaid recipients to the Department of Health and Human Resources.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Senate Bill No. 322, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 322) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Com. Sub. for Senate Bill No. 326, Mandating certain dental anesthesia insurance coverage.
     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:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL;

BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES,

COMMISSIONS, OFFICES, PROGRAMS, ETC.

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

     (a) The agency shall establish a group hospital and surgical insurance plan or plans, a group prescription drug insurance plan or plans, a group major medical insurance plan or plans and a group life and accidental death insurance plan or plans for those employees herein made eligible, and to establish and promulgate rules for the administration of these plans, subject to the limitations contained in this article. Those plans shall include:
     (1) Coverages and benefits for X ray and laboratory services in connection with mammograms when medically appropriate and consistent with current guidelines from the United States Preventive Services Task Force; pap smears, either conventional or liquid-based cytology, whichever is medically appropriate and consistent with the current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists; and a test for the human papilloma virus (HPV) when medically appropriate and consistent with current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists, when performed for cancer screening or diagnostic services on a woman age eighteen or over;
     (2) Annual checkups for prostate cancer in men age fifty and over;
     (3) Annual screening for kidney disease as determined to be medically necessary by a physician using any combination of blood pressure testing, urine albumin or urine protein testing and serum creatinine testing as recommended by the National Kidney Foundation;
     (4) For plans that include maternity benefits, coverage for inpatient care in a duly licensed health care facility for a mother and her newly born infant for the length of time which the attending physician considers medically necessary for the mother or her newly born child: Provided, That no plan may deny payment for a mother or her newborn child prior to forty-eight hours following a vaginal delivery, or prior to ninety-six hours following a caesarean section delivery, if the attending physician considers discharge medically inappropriate;
     (5) For plans which provide coverages for post-delivery care to a mother and her newly born child in the home, coverage for inpatient care following childbirth as provided in subdivision (4) of this subsection if inpatient care is determined to be medically necessary by the attending physician. Those plans may also include, among other things, medicines, medical equipment, prosthetic appliances and any other inpatient and outpatient services and expenses considered appropriate and desirable by the agency; and
     (6) Coverage for treatment of serious mental illness.
     (A) The coverage does not include custodial care, residential care or schooling. For purposes of this section, "serious mental illness" means an illness included in the American Psychiatric Association's diagnostic and statistical manual of mental disorders, as periodically revised, under the diagnostic categories or subclassifications of: (i) Schizophrenia and other psychotic disorders; (ii) bipolar disorders; (iii) depressive disorders; (iv) substance-related disorders with the exception of caffeine-related disorders and nicotine-related disorders; (v) anxiety disorders; and (vi) anorexia and bulimia. With regard to any covered individual who has not yet attained the age of nineteen years, "serious mental illness" also includes attention deficit hyperactivity disorder, separation anxiety disorder and conduct disorder.
     (B) Notwithstanding any other provision in this section to the contrary, in the event that the agency can demonstrate actuarially that its total anticipated costs for the treatment of mental illness for any plan will exceed or have exceeded two percent of the total costs for such plan in any experience period, then the agency may apply whatever cost-containment measures may be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two percent of the total costs for the plan.
     (C) The agency shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its plan. With regard to both medical-surgical and mental health benefits, it may make determinations of medical necessity and appropriateness, and it may use recognized health care quality and cost management tools, including, but not limited to, limitations on inpatient and outpatient benefits, utilization review, implementation of cost-containment measures, preauthorization for certain treatments, setting coverage levels, setting maximum number of visits within certain time periods, using capitated benefit arrangements, using fee-for-service arrangements, using third-party administrators, using provider networks and using patient cost sharing in the form of copayments, deductibles and coinsurance.
     (7) Coverage for general anesthesia for dental procedures and associated outpatient hospital or ambulatory facility charges provided by appropriately licensed health care individuals in conjunction with dental care if the covered person is:
_____
(A) Seven years of age or younger, or is developmentally disabled, and is an individual for whom a successful result cannot be expected from dental care provided under local anesthesia because of a physical, intellectual or other medically compromising condition of the individual and for whom a superior result can be expected from dental care provided under general anesthesia;
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(B) A child who is twelve years of age or younger with documented phobias, or with documented mental illness, and with dental needs of such magnitude that treatment should not be delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of teeth or other increased oral or dental morbidity and for whom a successful result cannot be expected from dental care provided under local anesthesia because of such condition and for whom a superior result can be expected from dental care provided under general anesthesia.
     (b) The agency shall make available to each eligible employee, at full cost to the employee, the opportunity to purchase optional group life and accidental death insurance as established under the rules of the agency. In addition, each employee is entitled to have his or her spouse and dependents, as defined by the rules of the agency, included in the optional coverage, at full cost to the employee, for each eligible dependent; and with full authorization to the agency to make the optional coverage available and provide an opportunity of purchase to each employee.
     (c) The finance board may cause to be separately rated for claims experience purposes:
     (1) All employees of the State of West Virginia;
     (2) All teaching and professional employees of state public institutions of higher education and county boards of education;
     (3) All nonteaching employees of the Higher Education Policy Commission, West Virginia Council for Community and Technical College Education and county boards of education; or
     (4) Any other categorization which would ensure the stability of the overall program.
     (d) The agency shall maintain the medical and prescription drug coverage for Medicare-eligible retirees by providing coverage through one of the existing plans or by enrolling the Medicare-eligible retired employees into a Medicare-specific plan, including, but not limited to, the Medicare/Advantage Prescription Drug Plan. In the event that a Medicare-specific plan would no longer be available or advantageous for the agency and the retirees, the retirees shall remain eligible for coverage through the agency.
§5-16-9. Authorization to execute contracts for group hospital, and surgical insurance, group major medical insurance, group prescription drug insurance, group life and accidental death insurance and other accidental death insurance; mandated benefits; limitations; awarding of contracts; reinsurance; certificates for covered employees; discontinuance of contracts.

     (a) The director is hereby given exclusive authorization to execute such contract or contracts as are necessary to carry out the provisions of this article and to provide the plan or plans of group hospital and surgical insurance coverage, group major medical insurance coverage, group prescription drug insurance coverage and group life and accidental death insurance coverage selected in accordance with the provisions of this article, such contract or contracts to be executed with one or more agencies, corporations, insurance companies or service organizations licensed to sell group hospital and surgical insurance, group major medical insurance, group prescription drug insurance and group life and accidental death insurance in this state.
     (b) The group hospital or surgical insurance coverage and group major medical insurance coverage herein provided for shall include coverages and benefits for X ray and laboratory services in connection with mammogram and pap smears when performed for cancer screening or diagnostic services and annual checkups for prostate cancer in men age fifty and over. Such benefits shall include, but not be limited to, the following:
     (1) Mammograms when medically appropriate and consistent with the current guidelines from the United States Preventive Services Task Force;
     (2) A pap smear, either conventional or liquid-based cytology, whichever is medically appropriate and consistent with the current guidelines from the United States Preventative Services Task Force or The American College of Obstetricians and Gynecologists, for women age eighteen and over;
     (3) A test for the human papilloma virus (HPV) for women age eighteen or over, when medically appropriate and consistent with the current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists for women age eighteen and over; and
     (4) A checkup for prostate cancer annually for men age fifty or over;
     (5) Annual screening for kidney disease as determined to be medically necessary by a physician using any combination of blood pressure testing, urine albumin or urine protein testing and serum creatinine testing as recommended by the National Kidney Foundation; and
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(6) Coverage for general anesthesia for dental procedures and associated outpatient hospital or ambulatory facility charges provided by appropriately licensed health care individuals in conjunction with dental care if the covered person is:
_____
(A) Seven years of age or younger, or is developmentally disabled, and is either an individual for whom a successful result cannot be expected from dental care provided under local anesthesia because of a physical, intellectual or other medically compromising condition of the individual and for whom a superior result can be expected from dental care provided under general anesthesia; or
_____
(B) A child who is twelve years of age or younger with documented phobias, or with documented mental illness, and with dental needs of such magnitude that treatment should not be delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of teeth or other increased oral or dental morbidity and for whom a successful result cannot be expected from dental care provided under local anesthesia because of such condition and for whom a superior result can be expected from dental care provided under general anesthesia.
     (c) The group life and accidental death insurance herein provided for shall be in the amount of $10,000 for every employee. The amount of the group life and accidental death insurance to which an employee would otherwise be entitled shall be reduced to $5,000 upon such employee attaining age sixty-five.
     (d) All of the insurance coverage to be provided for under this article may be included in one or more similar contracts issued by the same or different carriers.
     (e) The provisions of article three, chapter five-a of this code, relating to the division of purchases of the Department of Finance and Administration, shall not apply to any contracts for any insurance coverage or professional services authorized to be executed under the provisions of this article. Before entering into any contract for any insurance coverage, as authorized in this article, the director shall invite competent bids from all qualified and licensed insurance companies or carriers, who may wish to offer plans for the insurance coverage desired: Provided, That the director shall negotiate and contract directly with health care providers and other entities, organizations and vendors in order to secure competitive premiums, prices and other financial advantages. The director shall deal directly with insurers or health care providers and other entities, organizations and vendors in presenting specifications and receiving quotations for bid purposes. No commission or finder's fee, or any combination thereof, shall be paid to any individual or agent; but this shall not preclude an underwriting insurance company or companies, at their own expense, from appointing a licensed resident agent, within this state, to service the companies' contracts awarded under the provisions of this article. Commissions reasonably related to actual service rendered for the agent or agents may be paid by the underwriting company or companies: Provided, however, That in no event shall payment be made to any agent or agents when no actual services are rendered or performed. The director shall award the contract or contracts on a competitive basis. In awarding the contract or contracts the director shall take into account the experience of the offering agency, corporation, insurance company or service organization in the group hospital and surgical insurance field, group major medical insurance field, group prescription drug field and group life and accidental death insurance field, and its facilities for the handling of claims. In evaluating these factors, the director may employ the services of impartial, professional insurance analysts or actuaries or both. Any contract executed by the director with a selected carrier shall be a contract to govern all eligible employees subject to the provisions of this article. Nothing contained in this article shall prohibit any insurance carrier from soliciting employees covered hereunder to purchase additional hospital and surgical, major medical or life and accidental death insurance coverage.
     (f) The director may authorize the carrier with whom a primary contract is executed to reinsure portions of the contract with other carriers which elect to be a reinsurer and who are legally qualified to enter into a reinsurance agreement under the laws of this state.
     (g) Each employee who is covered under any contract or contracts shall receive a statement of benefits to which the employee, his or her spouse and his or her dependents are entitled under the contract, setting forth the information as to whom the benefits are payable, to whom claims shall be submitted, and a summary of the provisions of the contract or contracts as they affect the employee, his or her spouse and his or her dependents.
     (h) The director may at the end of any contract period discontinue any contract or contracts it has executed with any carrier and replace the same with a contract or contracts with any other carrier or carriers meeting the requirements of this article.
     (i) The director shall provide by contract or contracts entered into under the provisions of this article the cost for coverage of children's immunization services from birth through age sixteen years to provide immunization against the following illnesses: Diphtheria, polio, mumps, measles, rubella, tetanus, hepatitis-b, haemophilus influenzae-b and whooping cough. Additional immunizations may be required by the Commissioner of the Bureau of for Public Health for public health purposes. Any contract entered into to cover these services shall require that all costs associated with immunization, including the cost of the vaccine, if incurred by the health care provider, and all costs of vaccine administration, be exempt from any deductible, per visit charge and/or copayment provisions which may be in force in these policies or contracts. This section does not require that other health care services provided at the time of immunization be exempt from any deductible and/or copayment provisions.
CHAPTER 33. INSURANCE.

ARTICLE 15. ACCIDENT AND SICKNESS INSURANCE.
§33-15-4j. Required coverage for dental anesthesia services.
     (a) Notwithstanding any provision of any policy, provision, contract, plan or agreement to which this article applies, any entity regulated by this article shall, on or after July 1, 2009, provide as benefits to all subscribers and members coverage for dental anesthesia services as hereinafter set forth.
     (b) For purposes of this article and section, "dental anesthesia services" means general anesthesia for dental procedures and associated outpatient hospital or ambulatory facility charges provided by appropriately licensed health care individuals in conjunction with dental care provided to an enrollee or insured if the enrollee or insured is:
     (A) Seven years of age or younger, or is developmentally disabled, and is an individual for whom a successful result cannot be expected from dental care provided under local anesthesia because of a physical, intellectual or other medically compromising condition of the enrollee or insured and for whom a superior result can be expected from dental care provided under general anesthesia; or
     (B) A child who is twelve years of age or younger with documented phobias, or with documented mental illness, and with dental needs of such magnitude that treatment should not be delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of teeth or other increased oral or dental morbidity and for whom a successful result cannot be expected from dental care provided under local anesthesia because of such condition and for whom a superior result can be expected from dental care provided under general anesthesia.
     (c) Prior authorization. -- An entity subject to this section may require prior authorization for general anesthesia and associated outpatient hospital or ambulatory facility charges for dental care in the same manner that prior authorization is required for these benefits in connection with other covered medical care.
     (d) An entity subject to this section may restrict coverage for general anesthesia and associated outpatient hospital or ambulatory facility charges unless the dental care is provided by:
     (1) A fully accredited specialist in pediatric dentistry;      (2) A fully accredited specialist in oral and maxillofacial surgery; and
     (3) A dentist to whom hospital privileges have been granted.
     (e) Dental care coverage not required. -- The provisions of this section may not be construed to require coverage for the dental care for which the general anesthesia is provided.
     (f) Temporal mandibular joint disorders. -- The provisions of this section do not apply to dental care rendered for temporal mandibular joint disorders.
     (g) A policy, provision, contract, plan or agreement may apply to dental anesthesia services the same deductibles, coinsurance and other limitations as apply to other covered services.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3t. Required coverage for dental anesthesia services.
     (a) Notwithstanding any provision of any policy, provision, contract, plan or agreement to which this article applies, any entity regulated by this article shall, on or after July 1, 2009, provide as benefits to all subscribers and members coverage for dental anesthesia services as hereinafter set forth.
     (b) For purposes of this article and section, "dental anesthesia services" means general anesthesia for dental procedures and associated outpatient hospital or ambulatory facility charges provided by appropriately licensed health care individuals in conjunction with dental care provided to an enrollee or insured if the enrollee or insured is:
     (1) Seven years of age or younger, or is developmentally disabled, and is an individual for whom a successful result cannot be expected from dental care provided under local anesthesia because of a physical, intellectual or other medically compromising condition of the enrollee or insured and for whom a superior result can be expected from dental care provided under general anesthesia; or
     (2) A child who is twelve years of age or younger with documented phobias, or with documented mental illness, and with dental needs of such magnitude that treatment should not be delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of teeth or other increased oral or dental morbidity and for whom a successful result cannot be expected from dental care provided under local anesthesia because of such condition and for whom a superior result can be expected from dental care provided under general anesthesia.
     (c) Prior authorization. -- An entity subject to this section may require prior authorization for general anesthesia and associated outpatient hospital or ambulatory facility charges for dental care in the same manner that prior authorization is required for these benefits in connection with other covered medical care.
     (d) An entity subject to this section may restrict coverage for general anesthesia and associated outpatient hospital or ambulatory facility charges unless the dental care is provided by:
     (1) A fully accredited specialist in pediatric dentistry;
     (2) A fully accredited specialist in oral and maxillofacial surgery; and
     (3) A dentist to whom hospital privileges have been granted.
     (e) Dental care coverage not required. -- The provisions of this section may not be construed to require coverage for the dental care for which the general anesthesia is provided.
     (f) Temporal mandibular joint disorders. -- The provisions of this section do not apply to dental care rendered for temporal mandibular joint disorders.
     (g) A policy, provision, contract, plan or agreement may apply to dental anesthesia services the same deductibles, coinsurance and other limitations as apply to other covered services.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE CORPORATIONS.

§33-24-7j. Required coverage for dental anesthesia services.
     (a) Notwithstanding any provision of any policy, provision, contract, plan or agreement to which this article applies, any entity regulated by this article shall, on or after July 1, 2009, provide as benefits to all subscribers and members coverage for dental anesthesia services as hereinafter set forth.
     (b) For purposes of this article and section, "dental anesthesia services" means general anesthesia for dental procedures and associated outpatient hospital or ambulatory facility charges provided by appropriately licensed health care individuals in conjunction with dental care provided to an enrollee or insured if the enrollee or insured is:
     (1) Seven years of age or younger, or is developmentally disabled, and is an individual for whom a successful result cannot be expected from dental care provided under local anesthesia because of a physical, intellectual or other medically compromising condition of the enrollee or insured and for whom a superior result can be expected from dental care provided under general anesthesia; or
     (2) A child who is twelve years of age or younger with documented phobias, or with documented mental illness, and with dental needs of such magnitude that treatment should not be delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of teeth or other increased oral or dental morbidity and for whom a successful result cannot be expected from dental care provided under local anesthesia because of such condition and for whom a superior result can be expected from dental care provided under general anesthesia.
     (c) Prior authorization. -- An entity subject to this section may require prior authorization for general anesthesia and associated outpatient hospital or ambulatory facility charges for dental care in the same manner that prior authorization is required for these benefits in connection with other covered medical care.
     (d) An entity subject to this section may restrict coverage for general anesthesia and associated outpatient hospital or ambulatory facility charges unless the dental care is provided by:
     (1) A fully accredited specialist in pediatric dentistry;
     (2) A fully accredited specialist in oral and maxillofacial surgery; and
     (3) A dentist to whom hospital privileges have been granted.
     (e) Dental care coverage not required. -- The provisions of this section may not be construed to require coverage for the dental care for which the general anesthesia is provided.
     (f) Temporal mandibular joint disorders. -- The provisions of this section do not apply to dental care rendered for temporal mandibular joint disorders.
     (g) A policy, provision, contract, plan or agreement may apply to dental anesthesia services the same deductibles, coinsurance and other limitations as apply to other covered services.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-8h. Required coverage for dental anesthesia services.

     (a) Notwithstanding any provision of any policy, provision, contract, plan or agreement to which this article applies, any entity regulated by this article shall, on or after July 1, 2009, provide as benefits to all subscribers and members coverage for dental anesthesia services as hereinafter set forth.
     (b) For purposes of this article and section, "dental anesthesia services" means general anesthesia for dental procedures and associated outpatient hospital or ambulatory facility charges provided by appropriately licensed health care individuals in conjunction with dental care provided to an enrollee or insured if the enrollee or insured is:
     (1) Seven years of age or younger, or is developmentally disabled, and is an individual for whom a successful result cannot be expected from dental care provided under local anesthesia because of a physical, intellectual or other medically compromising condition of the enrollee or insured and for whom a superior result can be expected from dental care provided under general anesthesia; or
     (2) A child who is twelve years of age or younger with documented phobias, or with documented mental illness, and with dental needs of such magnitude that treatment should not be delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of teeth or other increased oral or dental morbidity and for whom a successful result cannot be expected from dental care provided under local anesthesia because of such condition and for whom a superior result can be expected from dental care provided under general anesthesia.
     (c) Prior authorization. -- An entity subject to this section may require prior authorization for general anesthesia and associated outpatient hospital or ambulatory facility charges for dental care in the same manner that prior authorization is required for these benefits in connection with other covered medical care.
     (d) An entity subject to this section may restrict coverage for general anesthesia and associated outpatient hospital or ambulatory facility charges unless the dental care is provided by:
     (1) A fully accredited specialist in pediatric dentistry;
     (2) A fully accredited specialist in oral and maxillofacial surgery; and
     (3) A dentist to whom hospital privileges have been granted.
     (e) Dental care coverage not required. -- The provisions of this section may not be construed to require coverage for the dental care for which the general anesthesia is provided.
     (f) Temporal mandibular joint disorders. -- The provisions of this section do not apply to dental care rendered for temporal mandibular joint disorders.
     (g) A policy, provision, contract, plan or agreement may apply to dental anesthesia services the same deductibles, coinsurance and other limitations as apply to other covered services.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-8i. Third-party reimbursement for dental anesthesia services.

     (a) Notwithstanding any provision of any policy, provision, contract, plan or agreement to which this article applies, any entity regulated by this article shall, on or after July 1, 2009, provide as benefits to all subscribers and members coverage for dental anesthesia services as hereinafter set forth.
     (b) For purposes of this section, "dental anesthesia services" means general anesthesia for dental procedures and associated outpatient hospital or ambulatory facility charges provided by appropriately licensed health care individuals in conjunction with dental care provided to a subscriber or member if the subscriber or member is:
     (1) Seven years of age or younger, or is developmentally disabled, and is an individual for whom a successful result cannot be expected from dental care provided under local anesthesia because of a physical, intellectual or other medically compromising condition of the subscriber or member and for whom a superior result can be expected from dental care provided under general anesthesia; or
     (2) A child who is twelve years of age or younger with documented phobias, or with documented mental illness, and with dental needs of such magnitude that treatment should not be delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of teeth or other increased oral or dental morbidity and for whom a successful result cannot be expected from dental care provided under local anesthesia because of such condition and for whom a superior result can be expected from dental care provided under general anesthesia.
     (c) Prior authorization. -- An entity subject to this section may require prior authorization for general anesthesia and associated outpatient hospital, ambulatory facility or similar charges for dental care in the same manner that prior authorization is required for these benefits in connection with other covered medical care.
     (d) An entity subject to this section may restrict coverage for general anesthesia and associated outpatient hospital or ambulatory facility charges unless the dental care is provided by:
     (1) A fully accredited specialist in pediatric dentistry;
     (2) A fully accredited specialist in oral and maxillofacial surgery; and
     (3) A dentist to whom hospital privileges have been granted.
     (e) Dental care coverage not required. -- The provisions of this section may not be construed to require coverage for the dental care for which the general anesthesia is provided.
     (f) Temporal mandibular joint disorders. -- The provisions of this section do not apply to dental care rendered for temporal mandibular joint disorders.
     (g) A policy, provision, contract, plan or agreement may apply to dental anesthesia services the same deductibles, coinsurance and other limitations as apply to other covered services.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Committee Substitute for Senate Bill No. 326, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 326) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 347, Correcting code reference related to extended supervision for certain sex offenders.
     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:
     Bu striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-26. Extended supervision for certain sex offenders; sentencing; conditions; supervision provisions; supervision fee.

     (a) Notwithstanding any other provision of this code to the contrary, any defendant convicted after the effective date of this section of a violation of section twelve, article eight, chapter sixty-one of this code or a felony violation of the provisions of article eight-b, eight-c or eight-d of said chapter shall, as part of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court, a period of supervised release of up to fifty years: Provided, That the period of supervised release imposed by the court pursuant to this section for a defendant convicted after the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, of a violation of sections three or seven, article eight-b, chapter sixty-one of this code and sentenced pursuant to section nine-a of said article, shall be no less than ten years: Provided, however, That a defendant designated after the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, as a sexually violent predator pursuant to the provisions of section two-a, article twelve, chapter fifteen of this code shall be subject, in addition to any other penalty or condition imposed by the court, to supervised release for life: Provided further, That, pursuant to the provisions of subsection (g) of this section, a court may modify, terminate or revoke any term of supervised release imposed pursuant to subsection (a) of this section.
     (b) Any person required to be on supervised release for a minimum term of ten years or for life pursuant to the provisos of subsection (a) also shall be further prohibited from:
     (1) Establishing a residence or accepting employment within one thousand feet of a school or child care facility or within one thousand feet of the residence of a victim or victims of any sexually violent offenses for which the person was convicted;
     (2) Establishing a residence or any other living accommodation in a household in which a child under sixteen resides if the person has been convicted of a sexually violent offense against a child, unless the person is one of the following:
     (i) The child's parent;
     (ii) The child's grandparent; or
     (iii) The child's stepparent and the person was the stepparent of the child prior to being convicted of a sexually violent offense, the person's parental rights to any children in the home have not been terminated, the child is not a victim of a sexually violent offense perpetrated by the person, and the court determines that the person is not likely to cause harm to the child or children with whom such person will reside: Provided, That nothing in this subsection shall preclude a court from imposing residency or employment restrictions as a condition of supervised release on defendants other than those subject to the provision of this subsection.
     (c) The period of supervised release imposed by the provisions of this section shall begin upon the expiration of any period of probation, the expiration of any sentence of incarceration or the expiration of any period of parole supervision imposed or required of the person so convicted, whichever expires later.
     (d) Any person sentenced to a period of supervised release pursuant to the provisions of this section shall be supervised by the probation office of the sentencing court or by the community corrections program established in said circuit unless jurisdiction is transferred elsewhere by order of the sentencing court.
     (e) A defendant sentenced to a period of supervised release shall be subject to any or all of the conditions applicable to a person placed upon probation pursuant to the provisions of section nine, article twelve of this chapter sixty-one of this code: Provided, That any defendant sentenced to a period of supervised release pursuant to this section shall be required to participate in appropriate offender treatment programs or counseling during the period of supervised release unless the court deems such the offender treatment programs or counseling to no longer be appropriate or necessary and makes express findings in support thereof.
     Within ninety days of the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, the Secretary of the Department of Health and Human Resources shall propose rules and emergency rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code establishing qualifications for sex offender treatment programs and counselors based on accepted treatment protocols among licensed mental health professionals.
     (f) The sentencing court may, based upon defendant's ability to pay, impose a supervision fee to offset the cost of supervision. Said fee shall not exceed $50 per month. Said fee may be modified periodically based upon the defendant's ability to pay.
     (g) Modification of conditions or revocation. -- The court may:
     (1) Terminate a term of supervised release and discharge the defendant released at any time after the expiration of two years of supervised release, pursuant to the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interests of justice;
     (2) Extend a period of supervised release if less than the maximum authorized period was previously imposed or modify, reduce or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, consistent with the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision;
     (3) Revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release without credit for time previously served on supervised release if the court, pursuant to the West Virginia Rules of Criminal Procedure applicable to revocation of probation, finds by clear and convincing evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this subdivision may not be required to serve more than the period of supervised release;
     (4) Order the defendant to remain at his or her place of residence during nonworking hours and, if the court so directs, to have compliance monitored by telephone or electronic signaling devices, except that an order under this paragraph may be imposed only as an alternative to incarceration.
     (h) Written statement of conditions. -- The court shall direct that the probation officer provide the defendant with a written statement at the defendant's sentencing hearing that sets forth all the conditions to which the term of supervised release is subject and that it is sufficiently clear and specific to serve as a guide for the defendant's conduct and for such supervision as is required.
     (i) Supervised release following revocation. -- When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment supervised release authorized under subsection (a) of this section, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such term of supervised release shall not exceed the term of supervised release authorized by this section less any term of imprisonment that was imposed upon revocation of supervised release.
     (j) Delayed revocation. -- The power of the court to revoke a term of supervised release for violation of a condition of supervised release and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (h) (i) of this section, a further term of supervised release extends beyond the expiration of the term of supervised release for any period necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 347--A Bill to amend and reenact §62-12-26 of the Code of West Virginia, 1931, as amended, relating to making corrections to internal code references and other terminology related to extended supervision for certain sex offenders.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Senate Bill No. 347, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 347) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body to the title of the bill, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Senate Bill No. 425, Disclosing certain refinanced loan's higher annual percentage rate.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendment to the title of the bill was reported by the Clerk:
     Eng. Senate Bill No. 425--A Bill to amend and reenact §46A-4- 111 of the Code of West Virginia, 1931, as amended, relating to refinancing or consolidating certain loans or consumer credit sales by regulated consumer lenders; requiring disclosure of a higher annual percentage rate in any refinancing or consolidation of a nonrevolving consumer loan or consumer credit sale; and requiring a documentation of a reasonable, net tangible benefit to the borrower of any refinancing or consolidation of a nonrevolving consumer loan or consumer credit sale secured by residential real estate.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the title of the bill.
     Engrossed Senate Bill No. 425, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 425) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
     Eng. Senate Bill No. 468, Requiring redemption property purchaser pay in certified funds.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 470, Regulating all-terrain vehicles on Hatfield-McCoy Trail.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §20-15-1, §20-15-2, §20-15-3, §20-15-4, §20-15-5 and §20-15-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 15. ATV, UTV AND MOTORCYCLE RESPONSIBILITY ACT.
§20-15-1. Legislative findings.
     The West Virginia Legislature finds that trail-oriented recreation for off-highway vehicle enthusiasts offered by the Hatfield-McCoy Regional Recreation Authority significantly contributes to the economy of West Virginia and is enjoyed by a large and growing number of residents and nonresidents alike. Since it is recognized that there are inherent risks in the operation of such off-highway vehicles which should be understood by each operator and which cannot be eliminated by the Hatfield-McCoy Regional Recreation Authority or its authorized outfitters or licensees, it is the purpose of this article to define the areas of responsibility and affirmative acts which authorized outfitters must perform or risk being liable for loss, damage or injury suffered by participants and to define the risk which the participants expressly assume and for which there can be no recovery.
§20-15-2. Definitions.
     The terms in this article have the following meaning, unless the context clearly requires a different meaning:
     (1) "All-terrain vehicle" or "ATV" shall mean means any motor vehicle fifty-two inches or less in width, having an unladen weight of eight hundred pounds or less, traveling on four or more low pressure tires with a seat designed to be straddled by the rider, designed for or capable of travel over unimproved terrain designed for off-highway use and designed to travel on not less than three low-pressure tires, having a seat designed to be straddled by the operator and handlebars for steering control and intended by the manufacturer to be used by a single operator or by an operator and no more than one passenger.
     (2) "Motorcycle" means any motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than two wheels in contact with the ground "Authorized outfitter" or "licensee" means a commercial outfitter, which is a person, partnership, limited liability company (LLC), corporation, other organization, or any combination thereof, licensed by the Hatfield- McCoy Regional Recreation Authority, who operates from any temporary or permanent camp, private or public lodge or private home, who provides guided tours or the rental of all-terrain vehicles, utility-terrain vehicles or motorcycles for use on assigned lands for monetary profit or gain.
     (3) "Authorized outfitter" or "licensee" means a commercial outfitter, which is a person, partnership, limited liability company ("LLC"), corporation, other organization, or any combination thereof, licensed by the Hatfield-McCoy Regional Recreation Authority, who operate from any temporary or permanent camp, private or public lodge, or private home, who provide guided tours or the rental of all-terrain vehicles or motorcycles for use on assigned lands for monetary profit or gain "Low-pressure tire" means every tire in which twenty pounds per square inch or less of compressed air is designed to support the load.
     (4) "Participant" means any person using the services or equipment of an authorized outfitter or licensee, including passengers of an all-terrain vehicle or motorcycle "Motorcycle" means any motor vehicle manufactured with no more than two wheels and having a seat or saddle for the use of the operator.
_____
(5) "Participant" means any person using the facilities of the Hatfield-McCoy Regional Recreation Authority.
_____
(6) "Utility-terrain vehicle" or "UTV" means any motor vehicle with four or more low-pressure tires designed for off-highway use having bench or bucket seating for each occupant and a steering wheel for control.
§20-15-3. Scope.
     
The provisions of this This article shall only apply to the Hatfield-McCoy Regional Recreation Authority, authorized outfitters or licensees licensed by the Hatfield-McCoy Regional Recreation Authority and any participant as defined in section two of this article.
§20-15-4. Duties of authorized outfitters or licensees.
     (a) Every authorized outfitter or licensee shall:
     (1) Mark for identification purposes all equipment and vehicles used in the business;
     (2) Maintain all equipment and vehicles used in the business in such condition that the equipment and vehicles are safe to operate or use as intended and recommended by the manufacturer;
     (3) Provide facilities, equipment and services conforming to safety and other requirements established by the rules promulgated by the Hatfield-McCoy Regional Recreation Authority;
     (4) Provide facilities, equipment and services as advertised or as agreed to by the authorized outfitter or licensee and the participant;
     (5) Provide protective helmets which are size appropriate and which meet the current performance specifications established by the American National Standards Institute standard, z 90.1, the United States Department of Transportation federal motor vehicle safety standard no. 218 or Snell safety standards for protective headgear for vehicle users as defined by subdivision (5), subsection (a), section one, article one, chapter seventeen-f of this code, to all persons using all-terrain vehicles, utility-terrain vehicles or motorcycles;
     (6) Provide all-terrain vehicles or motorcycles which are age and size appropriate as recommended by the manufacturer;
     (7) Make reasonable and prudent efforts to ensure that participants utilizing the facilities, equipment or services of the authorized outfitter or licensee have received the safety training required by the provisions of the legislative rule for the use of the Hatfield-McCoy Regional Recreation Area;
     (8) Make certain that every guide offered to participants by the authorized outfitter or licensee has a current standard first aid training certificate and CPR certificate issued by the American Red Cross or its equivalent and ATV safety training through the ATV Safety Institute by the Hatfield-McCoy Recreation Authority or its designee;
     (9) Make certain that employees carry first aid kits when acting as guides; and
     (10) Make known to any participant utilizing the facilities, equipment or services of the authorized outfitter or licensee any dangerous condition as to trail lands, facilities or equipment to be traversed or used which is known by the outfitter or licensee.
     (b) An authorized outfitter or licensee may not rent or lease an all-terrain vehicle, utility-terrain vehicle or motorcycle to a person under the age of eighteen years or allow any owner-operated all-terrain vehicle, utility-terrain vehicle or motorcycle on any guided tour when operated by any person under the age of eighteen years without first obtaining a written statement, signed by the minor's parent or guardian certifying that:
     (1) Any machine to be operated by the minor or his or her parent or guardian is of a model that is recommended by the manufacturer as appropriate to the minor's age and size;
     (2) All rules governing the use of the vehicle and the Hatfield-McCoy Recreation Area have been explained to the minor in sufficient detail to enable the minor to abide by the rules; and
     (3) Any minor under the age of sixteen will remain under the supervision of and the sight of the parent or guardian at all times.
     (c) An authorized outfitter or licensee shall provide a participant with written notification of his or her duties as prescribed in section five of this article, and the participant shall sign the notification and shall be kept on file by the outfitter or licensee for not less than five years may not rent or lease a utility-terrain vehicle to any person who is not at least sixteen years of age and in possession of a valid driver's license.
_____
(d) An authorized outfitter or licensee shall provide a participant utilizing the facilities, equipment or services of the authorized outfitter or licensee with written notification of his or her duties as prescribed in section five of this article. The participant shall sign the notification prior to using the equipment. The signed notification, or an electronically stored copy thereof, shall be kept on file by the outfitter or licensee for not less than five years.
§20-15-5. Duties of participants.
     (a) All participants:
     (1) Shall comply with any requirements established by law, including those in section one, article one, chapter seventeen-f of this code which defines those acts prohibited by operators of all-terrain vehicles;
     (2) Shall comply with the rules or regulations established for use of the Hatfield-McCoy Recreation Area;
     (3) Shall, as to the operator Hatfield-McCoy Regional Recreation Authority, authorized outfitter or licensee, expressly assume the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in operating an all-terrain vehicle, utility-terrain vehicle or motorcycle owned by the authorized outfitter or licensee, and caused by any of the following:
     (A) Variations in terrain, slope or angle of terrain;
     (B) Surface or subsurface conditions including: Rocks, trees or other forms of forest growth or debris;
     (C) Collisions with signs, markers, width restrictors, culverts, bridges, pipes, equipment, vehicles or any other objects or fixtures used in trail management, maintenance, construction or development;
     (D) Collisions with signs, markers, pipes, equipment, vehicles or any component thereof used in natural resource maintenance, development or extraction;
     (E) Collisions with electrical transmission poles, towers, lines, guy wires or any component thereof;
     (4) Shall obey all rules or instructions announced by the Hatfield-McCoy Regional Recreation Authority, authorized outfitter or licensee, with regard to the operation of the all-terrain vehicle or motorcycle he or she is operating; and
     (5) Shall wear all safety equipment provided by the authorized outfitter or licensee, or which might otherwise be required by law.
     (b) Each participant shall have the sole individual responsibility for:
     (1) Knowing the range of his or her own ability to negotiate any slope or trail;
     (2) Operating the ATV, UTV or motorcycle within the limits of the participant's own ability;
     (3) Maintaining reasonable control of speed and course at all times;
     (4) Heeding all posted warnings;
     (5) Operating only on trails designated by the Hatfield-McCoy Regional Recreation Authority; and
     (6) Refraining from acting in a manner which may cause or contribute to the injury of any person.
     (c) If while riding an ATV, UTV or motorcycle any participant collides with any object or person, the responsibility for the collision shall be solely that of the participant or participants involved and not that of the Hatfield-McCoy Regional Recreation Authority, authorized outfitter or licensee unless the Hatfield- McCoy Regional Recreation Authority, authorized outfitter or licensee or his or her their agent caused the collision in a tortious manner.
     (d) After an accident, a participant may not leave the area where the accident took place without:
     (1) Leaving personal identification, including his or her name and address;
     (2) Notifying the proper authorities; and
     (3) Obtaining assistance when he or she knows or reasonably should know that any other person involved in the accident is in need of medical or other assistance.
     (e) Where a participant is a lawful passenger, that participant may not distract or perform any act which might interfere with the safe operation of the all-terrain vehicle, utility-terrain vehicle or motorcycle of which he or she is a passenger.
     (f) Any person under the age of sixteen years shall remain under the direct supervision and within sight of a parent or guardian both of whom must otherwise comply with state or federal laws and any rules or regulations promulgated thereunder.
     (g) A participant may not make any alterations or tamper with the all-terrain vehicle, utility-terrain vehicle or motorcycle he or she is operating or of which he or she is a passenger in any way which would interfere with the continued safe operation of that machine.
§20-15-6. Liability of authorized outfitters and licensees.
     (a) Any authorized outfitter or licensee is liable for injury, loss or damage caused by failure to follow the duties set forth in section four of this article where the violation of duty is causally related to the injury, loss or damage suffered.
     (b) An authorized outfitter or licensee is not liable for any injury, loss or damage caused by the negligence of any person who is not an agent or employee of the authorized outfitter or licensee.
     (c) An authorized outfitter or licensee is not liable for any injury, loss or damage caused by a participant's violation of any duty described in section five of this article.
     (d) An authorized outfitter or licensee is not liable for any injury, loss or damage caused solely by the participant's failure to negotiate the terrain or environment over which or through which the participant is operating his or her all-terrain vehicle, utility-terrain vehicle or motorcycle as described in section five of this article.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 470--A Bill to amend and reenact §20-15-1, §20-15-2, §20-15-3, §20-15-4, §20- 15-5 and §20-15-6 of the Code of West Virginia, 1931, as amended, all relating to regulating all-terrain vehicles and utility-terrain vehicles on the Hatfield-McCoy Trail; standardizing the definition of "all-terrain vehicle"; defining and regulating "utility-terrain vehicle"; defining and regulating "motorcycle"; extending the limitations of liability of the Hatfield-McCoy Regional Recreation Authority; and making stylistic and technical corrections.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 470, as amended by the House of Delegates, was then 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, 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: Barnes--1.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 470) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Senate Bill No. 481, Requiring employers provide certain documentation to Public Employees Insurance Agency.
     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:
     On page two, section twelve-a, line five, after the word "include" by striking out the comma and the words "but not be limited to,".
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Senate Bill No. 481, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 481) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
     Eng. Senate Bill No. 490, Authorizing Mercer County Commission appoint emergency operations center board.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
     Eng. Senate Bill No. 494, Authorizing Insurance Commissioner order restitution in certain cases.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
     Eng. Senate Bill No. 495, Authorizing Insurance Commissioner permit certain groups life insurance policies.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
     Eng. Senate Bill No. 507, Relating to Clean Coal Technology Council's powers and duties.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, 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. 552, Relating to affordable health insurance plan proposals.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §33-15D-1, §33-15D-2, §33-15D-3, §33-15D-4, §33-15D-5, §33-15D-6, §33-15D-7, §33-15D-8, §33-15D-9, §33-15D-10 and §33-15D- 11 of the Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding a new section thereto, designated §33-16-3t; that §33-16F-1, §33-16F-2, §33-16F-3, §33- 16F-4, §33-16F-5, §33-16F-6, §33-16F-7 and §33-16F-8 of said code be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §33-16F-9 and §33-16F-10, all to read as follows:
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3t. Special enrollment period under the American Recovery and Reinvestment Act of 2009.

     (a) The Legislature finds that recent attempts to assist unemployed persons during the economic downturn beginning at the end of 2008 included a federal initiative to provide subsidies to certain persons who have lost their employer-sponsored health insurance coverage. As part of the American Recovery and Reinvestment Act of 2009, certain involuntarily terminated employees and their dependents were given an second opportunity to elect subsidized COBRA coverage. This federal initiative also included relief to certain persons not covered by the federal COBRA laws, but access to such relief was made dependent on the states acting to require that such persons be given notice of their right to elect such coverage. Therefore, the Legislature intends that this section be interpreted in such a manner as to maximize the opportunity of West Virginians to obtain these much needed subsidies.
     (b) Definitions. -- As used in this section:
     (1) "Assistance eligible individual" means any qualified beneficiary who was eligible for continuation coverage between September 1, 2008, and February 17, 2009, due to a covered employee's termination from employment during this period and who elected such coverage.
     (2) "Continuation coverage" means accident and sickness insurance coverage offered to persons pursuant to policy provisions required by subsection (e), section three of this article.
     (3) "Covered employee" means a person who was involuntarily terminated by a small employer between September 1, 2008, and February 16, 2009, and at the time of his or her termination either: (i) Was eligible for but did not elect to enroll in continuation coverage; or (ii) enrolled but subsequently discontinued enrollment in continuation coverage.
     (4) "Qualified beneficiary" has the same meaning as that term is defined in §607(3) of the Employee Retirement Income Security Act of 1974, 29 U. S. C. §1167(3).
     (5) "Small employer" means any employer that had fewer than twenty (20) employees during fifty percent (50%) or more of its typical business days in the previous calendar year.
     (c) An individual who does not have an election of continuation coverage in effect on February 17, 2009, but who would be an assistance eligible individual if such election were in effect, may elect continuation coverage pursuant to this section. Such election shall be made no later than sixty days after the date the administrator of the group health plan (or other entity involved) provides the notice required by section 3001(a)(7) of the American Recovery and Reinvestment Act of 2009. The administrator of the group health plan (or other entity involved) shall provide such individuals with additional notice of the right to elect coverage pursuant to this subsection prior to April 18, 2009.
     (d) Continuation coverage elected pursuant to subsection (c) of this section shall commence with the first period of coverage beginning on or after February 17, 2009: Provided, That continuation coverage elected pursuant to this subsection shall not extend beyond the maximum eighteen-month period provided for by subsection (e), section three of this article.
     (e) With respect to an individual who elects continuation coverage pursuant to subsection (b) of this section, the period beginning on the date of the involuntary termination and ending on the date of the first period of coverage on or after February 17, 2009, shall be disregarded for purposes of determining the sixty- three day period referred to in subsection (b), section three-m of this article.
ARTICLE 16F. WEST VIRGINIA AFFORDABLE HEALTH CARE PLAN.
§33-16F-1. Legislative intent.

     The Legislature finds that the inability of a significant number of state residents to obtain affordable health insurance coverage adversely affects everyone in our state. Therefore, it is the intent of the Legislature to expand the availability of health care options for uninsured residents by developing affordable health care products that emphasize coverage for basic and preventive health care services, provide inpatient hospital and emergency care services and offer optional catastrophic coverage.
§33-16F-2. Definitions.
     As used in this article:
     "West Virginia affordable health care plan" means a health insurance plan approved under this article.
     "West Virginia affordable health care plan entity" or "plan entity" means an entity licensed under this chapter that develops and proposes a West Virginia affordable health care plan and, if the plan is approved, is responsible for administering the plan and paying claims of plan enrollees.
     "Enrollee" means an individual who has been determined to be eligible for and is receiving health insurance coverage under a West Virginia affordable health care plan.
§33-16F-3. Plan proposals; approval of plans.
     (a) The commissioner shall announce, no later than July 1, 2009, an invitation to prospective West Virginia affordable health care plan entities to submit West Virginia affordable health care plan proposals. The invitation shall include guidelines for the review of West Virginia affordable health care plan applications, policies and associated rates.
     (b) In reviewing proposals under this article, the commissioner shall consider the proposed plans' effectiveness in improving the health status of individuals, their impact on maintaining and improving health and their potential to reduce the unnecessary consumption of health care services.
§33-16F-4. Required plan provisions; grounds for disapproval; alternative plans.

     (a) To be approved, plan entities must assure that each proposed plan will provide cost containment through the use of plan design features such as limits on the number of services, caps on benefit payments or copayments for services.
     (b) To provide consumer choice, plan entities must develop and submit two alternative benefit option plans having different cost and benefit levels, including at least one plan that provides catastrophic coverage. Plans providing catastrophic coverage must, at a minimum, provide coverage for preventive health services and inpatient hospital stays and may also include coverage of one or more of the following: Hospital emergency care services and outpatient facility services; outpatient surgery; or outpatient diagnostic services.
     (c) All plans must offer prescription drug benefit coverage.
     (d) Plan enrollment materials must provide information in plain language on policy benefit coverage, benefit limits, cost- sharing requirements, exclusions and a clear representation of what is not covered in the plan. The enrollment materials must include a standard disclosure form developed by the commissioner that must be reviewed and executed by all consumers purchasing West Virginia affordable health care plan coverage.
     (e) The commissioner shall disapprove any plan that:
     (1) Contains any ambiguous, inconsistent or misleading provisions or any exceptions or conditions that deceptively affect or limit the benefits purported to be assumed in the general coverage provided by the plan;
     (2) Provides benefits that are unreasonable in relation to the premium charged; or
     (3) Contains provisions that are unfair or inequitable, contrary to the public policy of this state, encourage misrepresentation or result in unfair discrimination in sales practices.
§33-16F-5. Eligibility of individuals and groups.
     (a) Individuals. -- Eligibility to enroll in an individual West Virginia affordable health care plan is limited to any resident of this state who:
     (1) Is not covered by a private insurance policy and is not eligible for coverage under an employer-sponsored group plan or through a public health insurance program, such as Medicare, Medicaid or the state Children's Health Insurance Program; and
     (2) Has not been covered by any health insurance program at any time during the past six months, unless coverage under a health insurance program was terminated within the previous six months due to loss of a job that provided an employer-sponsored health benefit plan or death of, or divorce from, a spouse who was provided an employer-sponsored health benefit plan or, with respect to a public health insurance program, eligibility for such program was lost due to an inability to meet income or categorical requirements: Provided, That an individual may not be excluded from enrollment in a West Virginia affordable health care plan on the ground that he or she is eligible for or is enrolled in a COBRA plan.
     (b) Group. -- An otherwise eligible group may not obtain coverage under a West Virginia affordable health care plan unless the group has not had coverage under any health insurance plan at any time during the previous six months.
§33-16F-6. Regulation and marketing of plans.
     (a) The commissioner shall issue guidelines to ensure that West Virginia affordable health care plans meet minimum standards for quality of and access to care.
     (b) Initial filings and changes in West Virginia affordable health care plan benefits, premiums and policy forms are subject to regulatory oversight by the commissioner.
     (c) The commissioner shall develop a public awareness program to be implemented throughout the state for the promotion of the plans approved under this article, which may include assistance from state health insurance benefits advisors.
     (d) Each West Virginia affordable health care plan must maintain enrollment data and provide network data and reasonable records to enable the commissioner to assess the plans.
§33-16F-7. Applicability of certain provisions; commissioner's authority to forbear from applying certain provisions.

     (a) Individual plans. -- Only the following provisions of article fifteen of this chapter apply to West Virginia entities offering individual plans pursuant to this article: Sections two- a, two-d, two-e, three, four, four-c, four-e, four-f, four-g, five, six, seven, eight, nine, thirteen, fourteen, sixteen, seventeen, eighteen, nineteen and twenty. Notwithstanding any other provision of this code, the provisions of article twenty-eight of this chapter and legislative rules regulating individual accident and sickness policies, including the rule contained in series 12, title 114 of the West Virginia Code of State Rules, do not apply to individual plans issued pursuant to this article unless and to the extent specifically incorporated in rules promulgated pursuant to the authority conferred by section eleven of this article.
     (b) Group plans. -- Only the following provisions of article sixteen of this chapter apply to insurers offering group plans pursuant to this article: Sections one-a, three, three-g, three-j, three-k, three-l, three-m, three-n, three-o, three-p, four, five, six, seven, nine, ten, eleven, twelve, thirteen, fourteen and fifteen; all other provisions of article sixteen of this chapter do not apply to group plans approved pursuant to this article unless and to the extent the provisions are specifically incorporated in rules promulgated by the commissioner. Notwithstanding any other provision of this code or of the code of state rules, the provisions of article sixteen-e of this chapter and of legislative rules regulating group accident and sickness policies, including the rule set forth in series 39, title 114 of the West Virginia Code of State Rules, do not apply to group plans approved pursuant to this article unless and to the extent specifically incorporated in rules promulgated by the commissioner pursuant to the authority conferred by section eleven of this article.
     (c) Small group plans. -- With respect to any group plan approved under this article and offered to any "small employer", as that term is defined in section two, article sixteen-d of this chapter, the following provisions of said article apply: Sections two, four, seven, eight, twelve, thirteen and fourteen: Provided, That only the sentence preceding the proviso in section thirteen of said article applies to small employer plans approved pursuant to this article. Notwithstanding any other provision of this code, all other provisions of article sixteen-d of this chapter do not apply to small employer plans approved pursuant to this article unless and to the extent such provisions are specifically incorporated in rules promulgated by the commissioner.
     (d) Forbearance by the commissioner. -- The commissioner may forbear from applying any other statutory or regulatory requirements to an insurer offering an individual or group plan approved pursuant to this article, including any requirements in articles twenty-four and twenty-five-a of this chapter, if he or she determines that such forbearance serves the principles set forth in section one of this article.
     (e) Existing limited benefit plans. -- Plans approved pursuant to the provisions of article fifteen-d of this chapter, as that article existed prior to its repeal during the 2009 regular legislative session, and this article, as that it existed prior to its amendment and reenactment during the 2009 regular legislative session, remain in effect and are subject to those provisions.
§33-16F-8. Assessment of the West Virginia program.
     The commissioner shall:
     (1) Provide an assessment of the West Virginia affordable health care plans and their potential applicability in other settings;
     (2) Use West Virginia affordable health care plans to gather more information to evaluate low-income, consumer-driven benefit packages; and
     (3) Submit by March 1, 2011, and annually thereafter, a report to the Governor, the President of the Senate and the Speaker of the House of Delegates that provides the information specified in this section and recommendations relating to the successful implementation and administration of the program.
§33-16F-9. Nonentitlement.
     Coverage under a West Virginia affordable health care plan is not an entitlement and a cause of action does not arise against the state, a local government entity, any other political subdivision of the state or any agency for failure to make coverage available to eligible persons under this article.
§33-16F-10. Emergency and legislative rules authorized.
     The commissioner may promulgate emergency and legislative rules under the provisions of article three, chapter twenty-nine-a of this code, to prescribe requirements regarding rate making, which may include rules establishing loss ratio standards for the plans; to place limitations on eligibility for coverage under the approved plans; to establish standards to determine whether a plan qualifies as creditable coverage; to determine what medical treatments, procedures and related health services benefits must be included in the plans; and to provide for any other matters deemed necessary to further the intent of this article.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 552--A Bill to repeal §33- 15D-1, §33-15D-2, §33-15D-3, §33-15D-4, §33-15D-5, §33-15D-6, §33- 15D-7, §33-15D-8, §33-15D-9, §33-15D-10 and §33-15D-11 of the Code of West Virginia, 1931, as amended; to amend said code by adding a new section thereto, designated, §33-16-3t; to amend and reenact §33-16F-1, §33-16F-2, §33-16F-3, §33-16F-4, §33-16F-5, §33-16F-6, §33-16F-7 and §33-16F-8 of said code; and to amend said code by adding thereto two new sections, designated §33-16F-9 and §33-16F- 10, all relating to health insurance; providing a special enrollment period for continued employee group accident and sickness insurance coverage for certain involuntarily terminated employees and their dependents; providing legislative findings; defining terms; mandating notice to individuals eligible for coverage; providing for a disregard of certain periods for purposes of calculating creditable coverage; establishing a program to provide affordable health care insurance coverage; requiring the Insurance Commissioner to invite carriers and other entities to submit proposals for affordable health insurance plans; defining terms; specifying that plans do not create an entitlement; establishing eligibility and standards for such plans; providing for evaluation of the plans and reports to the Legislature; providing for continuation of existing limited benefit plans; and authorizing emergency and legislative rules.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 552, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 552) passed with its House of Delegates amended title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 552) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the 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. 641, Disclosing solid waste origins at commercial landfills.
     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:
     On page three, section four-b, line twenty, after the word "vehicle" by inserting the words "which deposits solid waste in violation of this section".
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Committee Substitute for Senate Bill No. 641, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 641) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
     Senate Concurrent Resolution No. 12, Requesting Division of Highways name bridge in Lesage "PVT Russell Curtis Knight Memorial Bridge".
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
     Senate Concurrent Resolution No. 17, Requesting Division of Highways name bridge in Logan County "Marine Private Robert Clayton Stephenson Memorial Bridge".
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
     Senate Concurrent Resolution No. 46, Requesting Division of Highways name bridge in Braxton County "Harold V. Long Memorial Bridge".
     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, to take effect from passage, of
     Eng. Com. Sub. for House Bill No. 2170, Authorizing the Department of Commerce to promulgate legislative rules.
     A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendment to, and requested the Senate to recede therefrom, as to
     Eng. Com. Sub. for House Bill No. 2218, Authorizing the Department of Transportation to promulgate legislative rules.
     On motion of Senator Chafin, the Senate refused to recede from its amendment to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
     Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
     Senators Minard, Oliverio and Barnes.
     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 Senate amendments to, and the passage as amended, with its Senate amended title, of
     Eng. Com. Sub. for House Bill No. 2421, Requires that inoperable fire hydrants be painted black and be reported to emergency dispatch centers.
     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. 2464, Authorizing county commissions to designate locations for early voting other than the county courthouse or annex.
     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. 2504, Establishing the Silver Alert Plan, an alert system for missing cognitively impaired persons.
     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, to take effect July 1, 2009, of
     Eng. Com. Sub. for House Bill No. 2530, Relating to further defining professional student support personnel.
     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. 2532, Creating licensure for Marriage and Family Therapists.
     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. 2541, Including poultry among those domesticated farm animals or stock which the owner shall be liable for damages caused by those animals.
     A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
     Eng. Com. Sub. for House Bill No. 2621, Prohibiting the use of cell phone and text-messaging devices while operating a motor vehicle except when using a hands-free device or in the case of an emergency.
     On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
     Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
     Senators Browning, Stollings and Barnes.
     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 Senate amended title, passage as amended, of
     Eng. Com. Sub. for House Bill No. 2685, Amending the Uniform Principal and Income Act.
     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. 2694, Establishing certain requirements for modification of custodial rights for parent's or guardian's that have been deployed to the United States Armed Forces.
     A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
     Eng. Com. Sub. for House Bill No. 2695, Providing criminal penalties for a hunter who fails to render aid to a person the hunter shoots while hunting.
     On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
     Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
     Senators Bowman, Laird and Barnes.
     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 Senate amendments to, and the passage as amended, with its Senate amended title, of
     Eng. Com. Sub. for House Bill No. 2739, Enhancing the service and enforcement of domestic violence protective orders issued by state courts.
     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, to take effect from passage, of
     Eng. Com. Sub. for House Bill No. 2819, Authorizing miscellaneous agencies and boards 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, to take effect from passage, of
     Eng. Com. Sub. for House Bill No. 2863, Relating to construction of state utility projects.
     A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
     Eng. Com. Sub. for House Bill No. 2877, Increasing the monetary penalties, removing the possibility of incarceration and adding community service for a minor who misrepresents his or her age when purchasing alcohol.
     The message further announced the appointment of the following conferees on the part of the House of Delegates:
     Delegates Wooton, Lawrence and Ellem.
     A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
     Eng. House Bill No. 2920, Eliminating the felony conviction for a second or subsequent conviction of petit larceny.
     On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
     Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
     Senators Jenkins, Laird and Hall.
     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 Senate amended title, passage as amended, of
     Eng. Com. Sub. for House Bill No. 3036, Relating to notice and publication requirements for expungement petitions.
     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. 3120, Increasing the WV Prosecuting Attorneys Institute's executive council's elected members from five to seven and permitting the appointment of special prosecutors in juvenile delinquency, child abuse or neglect proceedings.
     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. 3134, Municipal vote by mail pilot program.
     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. 3194, Making it a misdemeanor to knowingly file false information with the Secretary of State.
     A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
     Eng. Com. Sub. for House Bill No. 3208, Including the hours of training county board members have acquired.
     The message further announced the appointment of the following conferees on the part of the House of Delegates:
     Delegates Paxton, Fragale and Sumner.
     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. 3288, Relating to mental health parity.
     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. 3305, Relating to the powers and duties of probation 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, of
     Eng. Com. Sub. for House Bill No. 3313, Allowing depositories and banks to meet the security requirement necessary to be a depository for boards of education by providing a letter of credit from a federal home loan bank.
     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. 3340, Relating to entry into a data state compact among the Higher Education Policy Commission, Council for Community and Technical College Education and State Board of Education.
Executive Communications

     The Clerk then presented communications from His Excellency, the Governor, advising that on April 11, 2009, he had approved Enr. Committee Substitute for Senate Bill No. 263, Enr. Committee Substitute for Senate Bill No. 307, Enr. Committee Substitute for Senate Bill No. 341, Enr. Senate Bill No. 346, Enr. Senate Bill No. 436, Enr. Committee Substitute for Senate Bill No. 453, Enr. Committee Substitute for House Bill No. 2225, Enr. Committee Substitute for House Bill No. 2305, Enr. House Bill No. 2474, Enr. House Bill No. 2652, Enr. Committee Substitute for House Bill No. 2702, Enr. Committee Substitute for House Bill No. 2703, Enr. Committee Substitute for House Bill No. 2904, Enr. House Bill No. 3066, Enr. Committee Substitute for House Bill No. 3076 and Enr. House Bill No. 3189.
     On motion of Senator Chafin, the Senate recessed until 2 p.m. today.
     Upon expiration of the recess, the Senate reconvened and resumed business under the third order.
     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. 2360, Insuring that tobacco products are not sold in any packaging other than the original.
     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. 2536, Adding language that includes railcars and locomotives in the category of railroad property that is illegal to interfere or tamper with.
     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. 2539, Authorizing professional licensing boards to combine administrative staff functions.
     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. 2557, Relating to the enforcement of new motor vehicle warranties.
     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. 2771, Relating to the West Virginia Alcohol and Drug-Free Workplace Act.
     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. House Bill No. 3155, Relating to the renewal of the West Virginia Small Business Linked Deposit Program.
     A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses, as to
     Eng. Com. Sub. for House Bill No. 2836, School Innovation Zones Act.
     The message further announced the appointment of the following conferees on the part of the House of Delegates:
     Delegates Shaver, Moye, M. Poling, Sumner and Duke.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     On further motion of Senator Chafin, two additional conferees on the part of the Senate as to Engrossed Committee Substitute for House Bill No. 2836 were requested.
     Whereupon, Senator Tomblin (Mr. President) appointed the following additional conferees on the part of the Senate:
     Senators Foster and Boley.
     Ordered, That the Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
     Eng. Com. Sub. for House Bill No. 3146, Relating to seniority rights for school service personnel.
     On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
     Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
     Senators White, Stollings and Barnes.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     The Senate proceeded to the fifth order of business.
Filed Conference Committee Reports

     The Clerk announced the following conference committee report had been filed at 2:38 p.m. today:
     Eng. Com. Sub. for House Bill No. 3208, Including the hours of training county board members have acquired.
     Senator Williams, from the committee of conference on matters of disagreement between the two houses, as to
     Eng. Senate Bill No. 445, Removing conservation supervisors' election certification requirements.
     Submitted the following report, which was received:
     Your committee of conference on the disagreeing votes of the two houses as to the amendments of the House to Engrossed Senate Bill No. 445 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
     That the House recede from its amendment, striking out everything after the enacting clause, and that both houses agree to an amendment as follows:
     On page two, section six, by striking out all of subsection (b) and inserting in lieu thereof a new subsection (b), to read as follows:
     (b) A candidate for supervisor must be a landowner and an active farmer with a minimum of five years' experience or a retired farmer who has had a minimum of five years' experience and must have the education, training and experience necessary to carry out the duties required by this article. The State Conservation Committee shall proposes for promulgation in accordance with the requirements of article three-a, chapter twenty-nine of this code legislative rules to establish criteria for the necessary education, training and experience.;
     And,
     That the House recede from its amendment to the title of the bill.
                              Respectfully submitted,
     Bob Williams, Chair, Herb Snyder, Karen L. Facemyer, Conferees on the part of the Senate.
     Mark Hunt, Chair, Robert C. Tabb, Bill Hamilton, Conferees on the part of the House of Delegates.
     On motions of Senator Williams, severally made, the report of the committee of conference was taken up for immediate consideration and adopted.
     Engrossed Senate Bill No. 445, as amended by the conference report, was then put upon its passage.
     On the passage of the bill, as amended, 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. S. B. No. 445) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     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. 2701 and Engrossed House Bill No. 3047.
     Senator Chafin also announced that in the same meeting, the Committee on Rules had returned to the Senate calendar, on third reading, Engrossed Committee Substitute for House Bill No. 2660, under rule number seventeen of the Rules of the Senate.
     Senator Chafin also announced that in the same meeting, the Committee on Rules, in accordance with rule number seventeen of the Rules of the Senate, had placed consideration of Engrossed Committee Substitute for House Bill No. 2309, Engrossed Committee Substitute for House Bill No. 2412, Engrossed House Bill No. 2485, Engrossed Committee Substitute for House Bill No. 2528, Engrossed Committee Substitute for House Bill No. 2531, Engrossed Committee Substitute for House Bill No. 2723, Engrossed Committee Substitute for House Bill No. 2788, Engrossed Committee Substitute for House Bill No. 2870, Engrossed Committee Substitute for House Bill No. 2926, Engrossed House Bill No. 2931, Engrossed Committee Substitute for House Bill No. 2976, Engrossed House Bill No. 2981, Engrossed House Bill No. 3170 and Engrossed Committee Substitute for House Bill No. 3278 preceding consideration of all other bills on today's third reading calendar; and in the same meeting, had placed consideration of Engrossed Committee Substitute for House Bill No. 2535, Engrossed Committee Substitute for House Bill No. 2885 and Engrossed House Bill No. 3197 preceding consideration of all other bills on today's second reading calendar.
     At the request of Senator Chafin, unanimous consent being granted, the Senate proceeded to the eighth order of business.
     Eng. Com. Sub. for House Bill No. 2309, Updating the law governing the practice of occupational therapy.
     On third reading, coming up out of regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2309) 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. 2309--A Bill to amend and reenact §30-28-1, §30-28-2, §30-28-3, §30-28-4, §30-28-5, §30-28-6, §30-28-7, §30-28-8, §30-28-9, §30-28-10, §30-28-11, §30-28-12, §30-28-13, §30-28-14, §30-28-15, §30-28-16, §30-28-17 and §30-28-18 of the Code of West Virginia, 1931, as amended; and to amend said article by adding thereto three new sections, designated §30-28-19, §30-28-20 and §30-28-21, all relating to the practice of occupational therapy; providing definitions; setting forth the scope of practice of occupational therapy; prohibiting practice or use of titles unless licensed; removing the requirement for referral by a physician or other health care practitioner; setting forth supervision requirements for assistants and aides; clarifying qualifications to serve as a board member; setting forth powers and duties of the board; providing exemptions from licensure; clarifying qualifications for licensure; setting forth examination requirements; providing for licensure for applicants from other jurisdictions; clarifying conditions of limited permits and temporary licenses; providing for renewal, suspension and revocation of licenses; providing for refusal to renew licenses; providing for reinstatement of lapsed licenses; setting forth complaint procedures; establishing grounds for disciplinary actions; providing for hearing procedures and rights of appeal; providing rulemaking authority; providing for criminal investigations, proceedings and penalties; establishing that a single act may constitute evidence of practice; establishing special, retired, volunteer and inactive licenses; providing civil immunity for healthcare professionals donating their expertise for the care and treatment of indigent and needy patients in a clinic setting; and providing effective dates for certain 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. 2412, Providing certain county commissions with authority to regulate the location of businesses offering exotic entertainment.
     On third reading, coming up out of regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2412) 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. 2412--A Bill to amend and reenact §7-1-3jj of the said Code of West Virginia, 1931, as amended and to amend said code by adding thereto a new article, designated §13-2H-1, §13-2H-2, §13-2H-3, 13-2H-4, §13-2H-5, §13-2H- 6, §13-2H-7, §13-2H-8, §13-2H-9, §13-2H-10 and §13-2H-11; and to amend and reenact §29-22C-27 of said code, all relating to authority of county Commissions, other political subdivisions and boards of education, generally; providing county commissions with authority to regulate the location of businesses offering exotic entertainment; exceptions thereto and authorizing municipalities, county commissions and certain boards of education to issue revenue bonds secured by lottery revenue for the purpose of acquiring or constructing public projects.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. House Bill No. 2485, Allowing pharmacy interns to vend pseudoephedrine and other chemical precursors of methamphetamine.
     On third reading, coming up out of regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2485) passed.
     The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
     Eng. House Bill No. 2485--A Bill to amend and reenact §60A-10- 3, §60A-10-4, §60A-10-5 and 60A-10-8 of the Code of West Virginia, 1931, as amended, all relating to persons who may sell pseudoephedrine and other chemical precursors of methamphetamine; and clarifying law enforcement may have access to the central repository.
     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. 2528, Updating the regulation of the practice of forestry.
     On third reading, coming up out of regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2528) 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. 2528--A Bill to amend and reenact §30-19-1, §30-19-2,§30-19-3, §30-19-4, §30-19-5, §30-19-6, §30-19-7, §30-19-8, §30-19-9, §30-19-10 and §30-19-11 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto six new sections, designated §30-19-12, §30-19-13, §30-19-14, §30-19-15, §30-19-16, and §30-19-17, all relating to State Board of Registration of Foresters; prohibiting the use of the titles registered forester and registered forestry technician; providing other applicable sections; providing definitions; providing for board composition; setting forth the powers and duties of the board; clarifying rule making authority; continuing a special revenue account; establishing certificate and permit requirements; providing for licensure for persons licensed in another state; establishing renewal requirements; 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; providing criminal penalties; and providing that a single act is evidence of practice.
     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. 2531, Updating the regulation of the practice of barbers and cosmetologists.
     On third reading, coming up out of regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2531) 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. 2723, Authorizing liens by municipalities and requiring administrative procedures for the assessment and collection of delinquent municipal fees.
     On third reading, coming up out of regular order, was reported by the Clerk.
     At the request of Senator Jenkins, unanimous consent was granted to offer amendments to the bill on third reading.
     Thereupon, on motion of Senator Jenkins, the following amendments to the bill were reported by the Clerk and adopted:
     On page six, after section thirteen, by adding thereto a new section, designated section thirteen-a, to read as follows:
§8-13-13a. Municipal fee requirements.
     (a) Without limiting the plenary power and authority of section thirteen of this article, a municipality shall in the ordinance providing for special charges for municipal services pursuant to section thirteen:
     (1) Set forth the specific purpose for which the rate, fee or charge is imposed or increased; and
     (2) Require that all collections of the rate, fee or charge may be expended only for the specific purpose for which the rate, fee or charge is imposed or increased.
     (b) The municipality shall provide a system for budgeting, accounting, record keeping and for conduct of the transactions of the municipality respecting the rate, fee or charge collected pursuant to section thirteen: Provided, That any such provisions shall not conflict with article nine, chapter six of this code.
     (c) It shall be the duty of the treasurer of the municipality, or other individual so designated, to collect and account for any of the collections and that the moneys collected pursuant to said section thirteen are expended only for the purpose authorize by the ordinance for which the rate, fee or charge is imposed or increased.
     (d) No provision of this section applies to an ordinance in effect on the effective date of the enactment of this section, except that this section does apply to an ordinance in effect on the effective date of this enactment of this section, that is subsequently amended to increase the rate, fee or charge imposed by the ordinance.;
     And,
     By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
     That §8-13-13 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §8-13-13a, all to read as follows:.
     Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2723) 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, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--32.
     The nays were: Barnes and Plymale--2.
     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. 2723) passed.
     On motion of Senator Jenkins, the following amendment to the title of the bill was reported by the Clerk and adopted:
     Eng. Com. Sub. for House Bill No. 2723--A Bill to amend and reenact §8-13-13 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §8-13-13a, relating to municipal fees; authorizing municipalities to file liens for delinquent service fees; requiring municipal ordinances to have assessment and collection procedures for the service fees; requiring administrative procedures by municipalities for imposition of liens; requiring the right to appeal to circuit court; and requirements for municipalities when they implement or increase a municipal fee.
     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. 2788, Protecting incapacitated adults from abuse or neglect by a caregiver.
     On third reading, coming up out of regular order, with an unreported Judiciary committee pending, and with the right having been granted on yesterday, Friday, April 10, 2009, for further amendments to be received on third reading, was reported by the Clerk.
     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.
     On motion of Senator Kessler, the following amendment to the bill was reported by the Clerk and adopted:
     By striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §61-2-29 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §61-2-29a and §61-2-29b, all to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; definitions; penalties.

     (a) The following words, when used in this section and sections twenty -nine-a and twenty-nine-b of this article, have the meaning ascribed, unless the context clearly indicates otherwise:
     (1) "Abuse" means the intentional infliction of bodily injury on an incapacitated adult;
     (2) "Bodily injury" means substantial physical pain, illness or any impairment of physical condition;
     (3) "Caregiver" means any person who has assumed the legal responsibility or a contractual obligation for the care of an incapacitated adult, or has voluntarily assumed responsibility for the care of an incapacitated adult. The term includes a facility operated by any public or private agency, organization or institution which provides services to, and has assumed responsibility for the care of an incapacitated adult.
     (4) "Incapacitated adult" means any person eighteen years of age or older who by reason of advanced age, physical, mental or other infirmity is unable to carry on the daily activities of life necessary to sustaining life and reasonable health;
     (5) "Neglect" means the unreasonable failure by a caregiver to provide the care necessary to assure the physical safety or health of an incapacitated adult; and
     (6) "Serious bodily injury" means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.
     (b) A caregiver who neglects an incapacitated adult or who knowingly permits another person to neglect an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not more than one year, or both fined and confined.
     (c) A caregiver who abuses an incapacitated adult or who knowingly permits another person to abuse an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not less than ninety days nor more than one year, or both fined and confined.
     (d) A caregiver of an incapacitated adult who intentionally and maliciously abuses or neglects an incapacitated adult and causes the incapacitated adult bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 and imprisoned in a state correctional facility not less than two years nor more than ten years.
     (e) A caregiver of an incapacitated adult who intentionally and maliciously abuses or neglects an incapacitated adult and causes the incapacitated adult serious bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 and imprisoned in a state correctional facility not less than three years nor more than fifteen years.
     (f) Nothing in this section or in section twenty-nine-a of this article shall be construed to mean an adult is abused or neglected for the sole reason that his or her independent decision is to rely upon treatment by spiritual means in accordance with the tenets and practices of a recognized church or religious denomination or organization in lieu of medical treatment.
     (g) Nothing in this section or in section twenty-nine-a of this article shall be construed to mean an incapacitated adult is abused or neglected if deprivation of life-sustaining treatment or other act has been provided for by the West Virginia Health Care Decisions Act, pursuant to article thirty, chapter sixteen of this code.
§61-2-29a. Death of an incapacitated adult by a caregiver.
     (a) A caregiver who intentionally and maliciously neglects an incapacitated adult causing death is guilty of a felony and, upon conviction thereof, shall be fined not more than $5000 and be imprisoned in a state correctional facility for a definite term of not less than five nor more than fifteen years.
     (b) A caregiver of an incapacitated adult who causes the death of an incapacitated adult by knowingly allowing any other person to intentionally or maliciously neglect the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be fined not more than $5000 and be imprisoned in a state correctional facility for a definite term of not less than five nor more than fifteen years.
     (c) A caregiver of an incapacitated adult who intentionally and maliciously abuses an incapacitated adult which causes the death of the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a definite term of not less than five nor more than forty years.
     (d) A caregiver of an incapacitated adult who causes the death of an incapacitated adult by knowingly allowing any other person to intentionally and maliciously abuse an incapacitated adult is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a definite term of not less than five nor more than forty years.
     (f) The provisions of this section do not apply to any caregiver or health care provider who, without malice, fails or refuses, or allows another person to, without malice, fail or refuse, to supply an incapacitated adult with necessary medical care when the medical care conflicts with the tenets and practices of a recognized religious denomination or order of which the incapacitated adult is an adherent member.
§61-2-29b. Unlawful expenditure or dissipation of funds of an incapacitated adult by as caregiver.

     (a) A caregiver of an incapacitated adult who intentionally misappropriates or misuses the funds or assets of an incapacitated adult in the amount of less than $1,000 in value for the caregiver's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail no more than one year, or both fined and confined.
     (b) A caregiver of an incapacitated adult who intentionally misappropriates or misuses the funds or assets of an incapacitated adult in the amount of $1,000 or more in value for the caregiver's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another, is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 and imprisoned in a state correctional facility not less than one nor more than ten years.
     (c) A caregiver of an incapacitated adult, who by means of intentional intimidation, infliction of bodily injury or threats of the infliction of bodily injury to an incapacitated adult, willfully misappropriates or misuses for the caregiver's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another is guilty of a felony and, upon conviction thereof, shall be fined not more than $5000 and imprisoned in a state correctional facility not less than three nor more than fifteen years.
     Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2788) 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. 2788) 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.
     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. 2788--A Bill to amend and reenact §61-2-29 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §61-2-29a and §61-2-29b, all relating to protecting incapacitated adults; providing criminal penalties for the offenses of abuse or neglect of incapacitated adults; providing definitions; establishing and revising criminal penalties for the unlawful misappropriation or misuse of funds or assets of an incapacitated adult by a caregiver; and providing exceptions.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     At the request of Senator Helmick, unanimous consent being granted, the Senate returned to the second order of business and the introduction of guests.
     The Senate again proceeded to the eighth order of business.
     Eng. Com. Sub. for House Bill No. 2870, Extending the deadline of the buyback provision provided under the Teachers' Defined Contribution Retirement System to the State Teachers Retirement System.
     On third reading, coming up out of regular order, with the right having been granted on yesterday, Friday, April 10, 2009, for amendments to be received on third reading, was reported by the Clerk.
     There being no amendments offered,
     Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2870) 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. 2870) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2870) 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. 2926, Establishing a procedure for challenging a candidate's qualifications for elected office.
     On third reading, coming up out of regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2926) 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. 2926--A Bill to amend and reenact §3-5-4 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto two new sections, designated §7-1-1b and §7-1-15, all relating to elections of county commissioners; providing legislative findings; clarifying residency requirements; and establishing a procedure for challenging a county commission candidate's qualifications for elected office.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. House Bill No. 2931, Removing a severance tax on timber for tax years 2010 through 2013.
     On third reading, coming up out of regular order, was reported by the Clerk.
     At the request of Senator Stollings, and by unanimous consent, further consideration of the bill was deferred until the conclusion of bills on today's third reading calendar.
     Eng. Com. Sub. for House Bill No. 2976, Requiring the State Fire Commission to promulgate rules pertaining to the State Building Code.
     On third reading, coming up out of regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2976) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2976) 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. 2981, Relating to primary elections and nominating procedures of third-party candidates.
     On third reading, coming up out of regular order, with the unreported Judiciary committee amendment pending, and with the right having been granted on Wednesday, April 8, 2009, for further amendments to be received on third reading, was reported by the Clerk.
     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 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-7. Filing announcements of candidacies; requirements; withdrawal of candidates when section applicable.

     (a) Any person who is eligible and seeks to hold an office or political party position to be filled by election in any primary or general election held under the provisions of this chapter shall file a certificate of announcement declaring as a candidate his or her candidacy for the nomination or election to the office.
     (b) The certificate of announcement shall be filed as follows:
     (1) Candidates for the House of delegates or the State Senate and any other office or political position to be filled by the voters of more than one county shall file a certificate of announcement with the Secretary of State if it be an office or political position to be filled by the voters of more than one county;
     (2) Candidates for an officer or political position to be filled by the voters of a single county or a subdivision of a county, except for candidates for the House of Delegates or State Senate, shall file a certificate of announcement with the clerk of the county commission if it be for an office to be filled by the voters of a single county or of a subdivision less than a county;
     (3) Candidates for an office to be filled by the voters of a municipality shall file a certificate of announcement with the recorder or city clerk if it be for an office to be filled by the voters of a municipality.
     (c) The certificate of announcement shall be filed with the proper officer not earlier than the second Monday in January next preceding the primary election day, and not later than the last Saturday in January next preceding the primary election day, and must be received before midnight, eastern standard time, of that day or, if mailed, shall be postmarked by the United States Postal Service before that hour.
     (d) The certificate of announcement shall be on a form prescribed by the Secretary of State on which the candidate shall make a sworn statement before a notary public or other officer authorized to give administer oaths, containing the following information:
     (1) The date of the election in which the candidate seeks to appear on the ballot;
     (2) The name of the office sought; the district, if any; and the division, if any;
     (3) The legal name of the candidate and the exact name the candidate desires to appear on the ballot, subject to limitations prescribed in section thirteen, article five of this chapter;
     (4) The county of residence and a statement that the candidate is a legally qualified voter of that county; and the magisterial district of residence for candidates elected from magisterial districts or under magisterial district limitations;
     (5) The specific address designating the location at which the candidate resides at the time of filing, including number and street or rural route and box number and city, state and zip code;
     (6) For partisan elections, the name of the candidate's political party and a statement that the candidate: (A) Is a member of and affiliated with that political party as evidenced by the candidate's current registration as a voter affiliated with that party; and (B) has not been registered as a voter affiliated with any other political party for a period of sixty days before the date of filing the announcement;
     (7) For candidates for delegate to national convention, the name of the presidential candidate to be listed on the ballot as the preference of the candidate on the first convention ballot; or a statement that the candidate prefers to remain "uncommitted";
     (8) A statement that the person filing the certificate of announcement is a candidate for the office in good faith;
     (9) The words "subscribed and sworn to before me this ______ day of _____________, 20____" and a space for the signature of the officer giving the oath.
     (e) The Secretary of State or the board of ballot commissioners, as the case may be, may refuse to certify the candidacy or may remove the certification of the candidacy upon receipt of a certified copy of the voter's registration record of the candidate showing that the candidate was registered as a voter in a party other than the one named in the certificate of announcement during the sixty days immediately preceding the filing of the certificate: Provided, That unless a signed formal complaint of violation of this section and the certified copy of the voter's registration record of the candidate are filed with the officer receiving that candidate's certificate of announcement no later than ten days following the close of the filing period, the candidate shall may not be refused certification for this reason.
     (f) The certificate of announcement shall be subscribed and sworn to by the candidate before some officer qualified to administer oaths, who shall certify the same. Any person who knowingly provides false information on the certificate is guilty of false swearing and shall be punished in accordance with section three, article nine of this chapter.
     (g) Any candidate for delegate to a national convention may change his or her statement of presidential preference by notifying the Secretary of State by letter received by the Secretary of State no later than the third Tuesday following the close of candidate filing. When the rules of the political party allow each presidential candidate to approve or reject candidates for delegate to convention who may appear on the ballot as committed to that presidential candidate, the presidential candidate or the candidate's committee on his or her behalf may file a list of approved or rejected candidates for delegate and the Secretary of State shall list as "uncommitted" any candidate for delegate who is disapproved by the presidential candidate.
     (h) No A person shall may not be a candidate for more than one office or office division at any election: Provided, That a candidate for an office may also be a candidate for President of the United States, for membership on political party executive committees or for delegate to a political party national convention.
     (i) Any A candidate who files a certificate of announcement for more than one office or division and does not withdraw, as provided by section eleven, article five of this chapter, from all but one office prior to the close of the filing period shall may not be certified by the Secretary of State or placed on the ballot for any office by the board of ballot commissioners.
     (j) The provisions of this section enacted during the regular session of the Legislature in the year 1991 shall apply to the primary election held in the year 1992 and every primary election held thereafter. The provisions of this section enacted during the regular session of the Legislature in the year one thousand nine hundred ninety-eight 2009 shall apply to the primary election held in the year two thousand 2010 and every primary election held thereafter.
§3-5-23. Certificate nominations; requirements and control; penalties.

     (a) Groups of citizens having no party organization may nominate candidates who are not already candidates in the primary election for public office otherwise than by conventions or primary elections. In the that case, the candidate or candidates, jointly or severally, shall file a declaration with the Secretary of State if the office is to be filled by the voters of more than one county, or with the clerk of the county commission of the county if the office is to be filled by the voters of one county or political subdivision thereof; the declaration to be filed at least thirty days prior to the time of filing the certificate provided by section twenty-four of this article: Provided, That the deadline for filing the certificate for persons seeking ballot access as a candidate for the office of President or Vice President shall be filed not later than the first day of August preceding the general election. At the time of filing of the declaration each candidate shall pay the filing fee required by law, and if the declaration is not so filed or the filing fee so paid, the certificate shall not be received by the Secretary of State, or clerk of the county commission, as the case may be nomination certificate in accordance with the provisions of this section and the provisions of section twenty-four of this article.
     (b) The person or persons soliciting or canvassing signatures of duly qualified voters on the certificate or certificates, may solicit or canvass duly registered voters residing within the county, district or other political division represented by the office sought, but must first obtain from the clerk of the county commission credentials which must be exhibited to each voter canvassed or solicited, which credentials may be in the following form or effect:
     State of West Virginia, County of ..................., ss:
     This certifies that the holder of this credential is hereby authorized to solicit and canvass duly registered voters residing in .................... (here place the county, district or other political division represented by the office sought) to sign a certificate purporting to nominate ............................ (here place name of candidate heading list on certificate) for the office of ............................. and others, at the general election to be held on ........................., 20......
     Given under my hand and the seal of my office this ................. day of ........................, 20......
          .................................................
          Clerk, county commission of ................... County.
     The clerk of each county commission, upon proper application made as herein provided, shall issue such credentials and shall keep a record thereof.
     (c) The certificate shall be personally signed by duly registered voters, in their own proper handwriting or by their marks duly witnessed, who must be residents within the county, district or other political division represented by the office sought wherein the canvass or solicitation is made by the person or persons duly authorized. The signatures need not all be on one certificate. The number of signatures shall be equal to not less than two one percent of the entire vote cast at the last preceding general election for the office in the state, district, county or other political division for which the nomination is to be made, but in no event shall the number be less than twenty-five. The number of signatures shall be equal to not less than two one percent of the entire vote cast at the last preceding general election for any statewide, congressional or presidential candidate, but in no event shall the number be less than twenty-five. Where two or more nominations may be made for the same office, the total of the votes cast at the last preceding general election for the candidates receiving the highest number of votes on each ticket for the office shall constitute the entire vote. No A signature on a certificate shall may not be counted unless it be that of a duly registered voter of the county, district or other political division represented by the office sought wherein the certificate was presented.
     (d) The certificates shall state the name and residence of each of the candidates; that he or she is legally qualified to hold the office; that the subscribers are legally qualified and duly registered as voters and desire to vote for the candidates have the candidates placed on the ballot; and may designate, by not more than five words, a brief name of the party which the candidates represent and may adopt a device or emblem to be printed on the official ballot. All candidates nominated by the signing of the certificates shall have their names placed on the official ballot as candidates, as if otherwise nominated under the provisions of this chapter.
     The Secretary of State shall prescribe the form and content of the nomination certificates to be used for soliciting signatures.
     Offices to be filled by the voters of more than one county shall use separate petition forms for the signatures of qualified voters for each county.
_____Notwithstanding any other provision of this code to the contrary, a duly registered voter may sign the certificate provided in this section and may vote for candidates of his or her choosing in the corresponding primary election.
     (e) The Secretary of State, or the clerk of the county commission, as the case may be, may investigate the validity of the certificates and the signatures thereon. If, upon investigation, there is doubt as to the legitimacy and the validity of certificate, the Secretary of State may ask the Attorney General of the state, or the clerk of the county commission may ask the prosecuting attorney of the county, to institute a quo warranto proceeding against the nominee by certificate to determine his or her right to the nomination to public office and upon request being made, the Attorney General or prosecuting attorney shall institute the quo warranto proceeding. The clerk of th county commission shall, at the request of the Secretary of State or the clerk of the circuit court, compare the information from any certificate to the county voter registration records in order to assist in determining the validity of any certificates.
     (f) In addition to penalties prescribed elsewhere for violation of this chapter, any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000, or confined in jail for not more than one year, or both fined and imprisoned: in the discretion of the court Provided, That no a criminal penalty may not be imposed upon anyone who signs a nomination certificate and votes in the primary election held after the date the certificate was signed.
§3-5-24. Filing of nomination certificates; time.
     
(a) All certificates nominating candidates for office under the preceding section including a candidate for the office of presidential elector shall be filed, in the case of a candidate to be voted for by the voters of the entire state or by any subdivision thereof of the state other than a single county, with the Secretary of State, and in the case of all candidates for county and magisterial district offices, including all offices to be filled by the voters of a single county, with the clerk of the county commission, not later than the day preceding the date on which the primary election is held. After that date no certificate shall be received by such officers August 1 preceding the general election.
_____
(b) Each candidate shall pay the filing fee required by section eight of this article, at the time of the filing of the nomination certificate. If any nomination certificate is not timely filed or if the filing fee is not timely paid, the certificate may not be received by the Secretary of State, or by the clerk of the circuit court, as the case may be.
     On motion of Senator Kessler, the following amendment to the Judiciary committee amendment to the bill (Eng. H. B. No. 2981) was reported by the Clerk and adopted:
     On page eleven, section twenty-four, line sixteen, by striking out the words "circuit court" and inserting in lieu thereof the words "county commission".
     The question now being on the adoption of the Judiciary committee amendment to the bill, as amended, the same was put and prevailed.
     Having been engrossed, the bill (Eng. H. B. No. 2981) 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. 2981) 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.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. House Bill No. 3170, Clarifying the filing and review of the periodic accountings of conservators of incapacitated protected persons.
     On third reading, coming up out of regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 3170) passed.
     The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
     Eng. House Bill No. 3170--A Bill to amend and reenact §44A-1-7, §44A-1-9, §44A-1-10 and §44A-1-14 of the Code of West Virginia, 1931, as amended; to amend and reenact §44A-2-1, §44A-2-5, §44A-2-6, §44A-2-7, §44A-2-12, §44A-2-13, §44A-2-13a, §44A-2-14 and §44A-2-15 of said code; to amend and reenact §44A-3- 11 of said code; and to amend and reenact §44A-4-1 and §44A-4-5 of said code, all relating to the West Virginia Guardianship and Conservatorship Act and clarifying the filing and review of the periodic accounting os conservators of incapacitated persons generally; clarifying transfer of venue; clarifying the posting of bond by conservators; authorizing the West Virginia Supreme Court of Appeals to coordinate education program and update materials and forms; expanding temporary protective orders to include freezing accounts and producing records; increasing filing fee for guardianship and conservatorship; transferring certain funds to the Supreme Court of Appeals; using additional fee for review of reports and accountings by fiduciary commissioner or other person; clarifying who can access case files; clarifying who is responsible for proper service; clarifying duties and fees of appointed counsel; clarifying when limited conservatorship is needed; clarifying orders of the court and time of entry; authorizing appointment of fiduciary commissioner or other person to review reports; creating a notice of appointment to be filed with the clerk of the county commission; increasing temporary guardianships and conservatorships to six months; clarifying procedure for subsequent petitions; clarifying time frame for reports and accountings; increasing penalties for failure to file reports and accountings; reporting elder abuse; clarifying when appointments terminate; clarifying duties of guardian and conservator subsequent to death of protected person; and making technical corrections.
     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 amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2009, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373, Relating to PROMISE Scholarship.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §18C-7-8 of the Code of West Virginia, 1931, as amended, repealed; that said code be amended by adding thereto a new section, designated §18B-1D-9; that §18B-2A-1 of said code be amended and reenacted; that §18C-1-1 and §18C-1-5 of said code be amended and reenacted; and that §18C-7-3, §18C-7-4, §18C-7-5, §18C- 7-6, §18C-7-7 and §18C-7-8 of said code be amended and reenacted, all to read as follows:
CHAPTER 18B. HIGHER EDUCATION.

ARTICLE 1D. HIGHER EDUCATION ACCOUNTABILITY.
§18B-1D-9. Commission, Council and institutional governing board training and development.

     (a) The Commission and Council, either jointly or separately, shall coordinate periodic training and development opportunities for members of the Commission, Council and institutional governing boards.
     (b) Within six months of beginning service on the Commission, Council or a board, each new member shall complete at least three hours of training and development. The training and development shall address the following topics:
     (1) State goals, objectives and priorities for higher education;
     (2) The accountability system for higher education set forth in this article;
     (3) The general powers and duties of members; and
     (4) Ethical considerations arising from board membership.
     (c) Within two years of beginning service on a board, and within every two years of service thereafter, each board member shall complete at least six hours of training and development related to his or her duties.
     (d) Annually by July 31, the chair of the Commission, Council and each governing board shall certify to the Commission or Council, as appropriate, the number of hours of training and development that each board member received during the preceding fiscal year.
     (e) If the certification indicates that a board member has not completed the training and development required by this section, the Commission or Council, as appropriate, shall send a notice to the Governor and the Secretary of State that the board member is disqualified from continued service, and request that the Governor appoint a replacement for that board member.
     (f) The Commission and Council shall report annually by September 30, to the Legislative Oversight Commission on Education Accountability on the training and development that members of the Commission and Council and governing boards under their respective jurisdictions have received during the preceding fiscal year.
     (g) As used in this section, "board member" includes a member of the Commission, Council or a governing board.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-1. Composition of boards; terms and qualifications of members; vacancies; eligibility for reappointment.

     (a) A board of governors is continued at each of the following institutions: Bluefield State College, Blue Ridge Community and Technical College, The Community and Technical College at West Virginia University Institute of Technology, Concord University, Eastern West Virginia Community and Technical College, Fairmont State University, Glenville State College, Marshall Community and Technical College, Marshall University, New River Community and Technical College, Pierpont Community and Technical College, Shepherd University, Southern West Virginia Community and Technical College, West Liberty State College, West Virginia Northern Community and Technical College, the West Virginia School of Osteopathic Medicine, West Virginia State Community and Technical College, West Virginia State University and West Virginia University, and West Virginia University at Parkersburg.
     (b) Independent community and technical colleges established. --
     
Effective July 1, 2008, the board of advisors is abolished and A board of governors is established for Marshall Community and Technical College; Pierpont Community and Technical College, formerly a division of Fairmont State University; The Community and Technical College at West Virginia University Institute of Technology; West Virginia State Community and Technical College; and West Virginia University at Parkersburg. The State of West Virginia will be served best if the membership of each governing board is arranged to include: The academic expertise and institutional experience of faculty members and a student of the institution governed by the board; the technical or professional expertise and institutional experience of a classified employee of the institution governed by the board; awareness and understanding of the issues facing the institution governed by the board; and the diverse perspectives that arise from a governing board that is balanced in terms of gender and varied in terms of race and ethnic heritage.
_____
(c) (A) In making the initial appointments to these boards of governors, the Governor may appoint those persons who are lay members of the boards of advisors by June 30, 2008.
     
(B) At the end of the initial term, and thereafter an An appointment to fill a vacancy on the board or reappointment of a member who is eligible to serve an additional term is made in accordance with the provisions of this section.
     (c) (B) The institutional boards of governors for Marshall University and West Virginia University consist of sixteen persons. The boards of governors of the other state institutions of higher education consist of twelve persons.
     (d) Each board of governors includes the following members:
     (1) A full-time member of the faculty with the rank of instructor or above duly elected by the faculty of the respective institution;
     (2) For the governing boards of institutions under the jurisdiction of the Commission, an additional full-time member of the faculty with the rank of instructor or above duly elected by the faculty of the respective institution and representing a center of excellence designated in the institutional compact;
_____(3) For the governing boards of institutions under the jurisdiction of the Council, an additional full-time member of the faculty in a high-demand technical program consistent with subdivision six, subsection (b), section three, article one-d of this chapter, with the rank of instructor or above duly elected by the faculty of the respective institution;
_____
(4) A member of the student body in good academic standing, enrolled for college credit work and duly elected by the student body of the respective institution;
     (3) (5) A member from the institutional classified employees duly elected by the classified employees of the respective institution; and
     
(4) (6) For the institutional board of governors at Marshall University, thirteen eleven lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section, and additionally, the dean of the school of medicine or his or her designee;
     (5) (7) For the institutional board of governors at West Virginia University, twelve nine lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section, and additionally:
     (A) The chairperson of the board of Visitors of West Virginia University Institute of Technology;
     (B) A full-time employee representing the extension service at the institution, selected by the extension service employees; and
_____
(C) The dean of the school of medicine or his or her designee;
_____
(6) (8) For each institutional board of governors of the other state institutions of higher education, nine eight lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section.
     (e) Of the nine eight members appointed by the Governor, no more than five may be of the same political party. Of the thirteen eleven members appointed by the Governor to the governing board of Marshall University, no more than eight six may be of the same political party. Of the twelve nine members appointed by the Governor to the governing board of West Virginia University, no more than seven five may be of the same political party.
     (f) Of the nine eight members appointed by the Governor, at least six four shall be residents of the state. Of the thirteen eleven members appointed by the Governor to the governing board of Marshall University, at least eight six shall be residents of the state. Of the twelve nine members appointed by the Governor to the governing board of West Virginia University, at least eight five shall be residents of the state.
     (g) In making lay appointments, the Governor shall:
_____(1) Consider the need for individual skills, knowledge and experience relevant to governing the institution; the need for awareness and understanding of institutional problems and priorities, including those related to research, teaching and outreach; and the value of gender, racial and ethnic diversity;
_____
(2) Seek balance in gender and diversity in the racial and ethnic characteristics of the lay membership of each board; and
_____(3) Appoint to each governing board the superintendent of a county board of education from the area served by the institution.
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(f) (h) The student member serves for a term of one year. Each term begins on the first day of July.
     (g) The (i) Each employee and faculty member serves for a term of two years. Each term begins on the first day of July. Employee and faculty members are eligible to succeed themselves for three additional terms, not to exceed a total of eight consecutive years.
     (h) (j) The member representing classified employees serves for a term of two years. Each term begins on the first day of July. Members representing classified employees are eligible to succeed themselves for three additional terms, not to exceed a total of eight consecutive years.
     (i) (k) The appointed lay citizen members serve terms of up to four years each and are eligible to succeed themselves for no more than one additional term.
     (j) (l) A vacancy in an unexpired term of a member shall be filled for the unexpired term within thirty days of the occurrence of the vacancy in the same manner as the original appointment or election. Except in the case of a vacancy, all elections shall be held and all appointments shall be made no later than the thirtieth day of June 30 preceding the commencement of the term. Each board of governors shall elect one of its appointed lay members to be chairperson in June of each year. except for the fiscal year beginning July 1, 2008, only, when the board shall elect the chairperson in July A member may not serve as chairperson for more than four consecutive years.
     (k) (m) The appointed members of the institutional boards of governors serve staggered terms of up to four years except that four of the initial appointments to the governing boards of community and technical colleges which become that became independent July 1, 2008, are for terms of two years and five of the initial appointments are for terms of four years.
     (l) (n) A person is ineligible for appointment to membership on a board of governors of a state institution of higher education under the following conditions:
     (1) For a baccalaureate institution or university, a person is ineligible for appointment who is an officer, employee or member of any other board of governors; an employee of any institution of higher education in West Virginia; an officer or member of any political party executive committee; the holder of any other public office or public employment under the government of this state or any of its political subdivisions; an employee of any affiliated research corporation created pursuant to article twelve of this chapter; an employee of any affiliated foundation organized and operated in support of one or more state institutions of higher education; or a member of the Council or Commission. This subsection does not prevent the representative representatives from the employees, faculty, classified employees, students, or the superintendent of a county board of education serving pursuant to subsection (d) of this section from being members of the governing boards.
     (2) For a community and technical college, a person is ineligible for appointment who is an officer, employee or member of any other board of governors; a member of a board of visitors of any public institution of higher education in West Virginia; an employee of any institution of higher education; an officer or member of any political party executive committee; the holder of any other public office, other than an elected county office, or public employment, other than employment by the county board of education, under the government of this state or any of its political subdivisions; an employee of any affiliated research corporation created pursuant to article twelve of this chapter; an employee of any affiliated foundation organized and operated in support of one or more state institutions of higher education; or a member of the Council or Commission. This subsection does not prevent the representative from the faculty, classified employees, students, or chairpersons of the boards of advisors from being members of the governing boards.
     (m) (o) Before exercising any authority or performing any duties as a member of a governing board, each member shall qualify as such by taking and subscribing to the oath of office prescribed by Section five, Article IV of the Constitution of West Virginia and the certificate thereof shall be filed with the Secretary of State.
     (n) (p) A member of a governing board appointed by the Governor may not be removed from office by the Governor except for official misconduct, incompetence, neglect of duty or gross immorality and then only in the manner prescribed by law for the removal of the state elective officers by the Governor.
     (o) (q) The president of the institution shall make available resources of the institution for conducting the business of its board of governors. The members of the board of governors serve without compensation, but are reimbursed for all reasonable and necessary expenses actually incurred in the performance of official duties under this article upon presentation of an itemized sworn statement of expenses. All expenses incurred by the board of governors and the institution under this section are paid from funds allocated to the institution for that purpose.
CHAPTER 18C. STUDENT LOANS; SCHOLARSHIPS AND STATE AID.

ARTICLE 1. FINANCIAL ASSISTANCE GENERALLY.
§18C-1-1. Legislative findings; purpose; administration generally; reporting.

     (a) The Legislature finds makes the following findings:
     (1) That Although enrollments in institutions of higher education in this state and throughout the nation continue to increase at a rapid pace, there continues to exist an underdevelopment of West Virginia has not developed sufficiently the state's human talent and resources because of the inability of many able, but needy, students are not able to finance a higher education program;
     (2) That the The state can achieve its full economic and social potential only when the following elements are in place:
     (A) Every individual has the opportunity to contribute to the full extent of his or her capability; and
     (B) The state assists in removing such financial barriers to the individual's education goals as may that remain after he or she has utilized used all resources and work opportunities available;
     (b) The ultimate state goal in providing student financial aid is to create a culture that values education, to improve the quality of the state's workforce and thereby to enhance the quality of life for the citizens of West Virginia.
     (c) The Vice Chancellor for Administration jointly employed by the Commission and the Council has a ministerial duty to administer, oversee or and monitor all state and federal student loan, scholarship and state student financial aid programs which are administered at the state level in accordance with established guidelines rules under the direction of the Commission and Council and in consultation with the Higher Education Student Financial Aid Advisory Board.
     (d) Such These programs include, but are not limited to, the following programs: pursuant to the provisions of this chapter
     (1) The Guaranteed Student Loan Program, which may be administered by a private nonprofit agency;
     (2) The Medical Student Loan Program;
     (3) The Underwood-Smith Teacher Scholarship Program;
     (4) The Engineering, Science and Technology Scholarship Program;
     (5) The West Virginia Higher Education Grant Program;
     (6) The Higher Education Adult Part-Time Student Grant Program;
     (7) The West Virginia Providing Real Opportunities for Maximizing In-State Student Excellence (PROMISE) Scholarship Program;
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(7) (8) The Higher Education Student Assistance Loan Program under established pursuant to article twenty-two-d, chapter eighteen of this code;
     (8) (9) The West Virginia College Prepaid Tuition and Savings Program under established pursuant to article thirty, chapter eighteen of this code, which is administered by the State Treasurer;
     (9) (10) The state aid programs for students of optometry, pursuant to article three of this chapter;
     (10) (11) The state aid programs for students of veterinary medicine pursuant to section six-a, article eleven, chapter eighteen of this code;
     (11) (12) Any reciprocal program and contract program for student aid under established pursuant to sections three and four, article four, chapter eighteen-b of this code;
     (12) (13) Any other state-level student aid program programs in this code; and
     (13) (14) Any federal grant or contract student assistance or support programs administered at the state level.
     (e) Notwithstanding any provision of this chapter to the contrary, the Vice Chancellor for Administration shall prepare a single, comprehensive report regarding the implementation of the financial aid programs identified in subsection (d) of this section which are administered under his or her supervision. The report shall be provided to the Commission and the Council and shall be presented to the Legislative Oversight Commission on Education Accountability no later than November 30, 2009, and annually thereafter. The report shall address all financial aid issues for which reports are required in this code, as well as any findings and recommendations.
§18C-1-4. Eligibility of commuting students and children of military personnel for state funded student financial aid, grants and scholarships.

     (a) Notwithstanding any other provision of this code or rule to the contrary, a student who attended a public or private high school outside the state is eligible for state funded student financial aid, grants and scholarships if:
     (1) The student meets all other eligibility requirements for the aid, grant or scholarship; and either
     (2) The student resided in West Virginia while attending high school in another state, and:
     (A) The student resided with his or her parent or legal guardian who:
     (i) Was a resident of this state; and
     (ii) Had been a resident of this state for at least two years immediately preceding the student's attendance at the school;
     (B) The student commuted during the school term on a daily basis from this state to the school;
     (C) The student is a dependent of the parent or legal guardian upon which eligibility is based;
     (D) The student has not established domicile outside the state; and
     (E) At the discretion of the State Superintendent of Schools, as defined in section one, article one, chapter eighteen of this code:
     (i) The school is fully accredited in that state to the degree acceptable to the State Superintendent of Schools; and
     (ii) The school's curriculum requirements for graduation are equivalent to the curriculum requirements for graduation in this state, or sufficiently similar to those requirements, as determined by the State Superintendent of Schools. or
     
(b) Notwithstanding any other provision of this code or rule to the contrary, a student who attended a public or private high school outside the state is eligible for state funded student financial aid, grants and scholarships if:
_____(1) The student meets all other eligibility requirements for the aid, grant or scholarship; and
_____(2)
The student resided and attended high school in another state or a United States territory, United States possession or foreign country and:
     (A) The student resided with his or her parent or legal guardian; and
     (B) The student's parent or legal guardian:
     (i) Served in the United States armed forces while the student attended high school in such state, territory, possession or country;
     (ii) Was stationed for military purposes in such state, territory, possession or country; and
     (iii) Maintained legal residence in West Virginia while stationed in such state, territory, possession or country.
     (b) This section may not be construed to alter, amend or extend any application deadlines or other requirements established by law or policy.
     (c) The provisions of this section expire on the thirtieth day of June, two thousand ten.
§18C-1-5. Higher Education Student Financial Aid Advisory Board.

     (a) The Higher Education Student Financial Aid Advisory Board is established.
     (b) The purpose of the board is to provide financial aid expertise and policy guidance to the Commission, the Council the PROMISE Scholarship Board, and the Vice Chancellor for Administration and the Executive Director of the PROMISE Scholarship Programs on all matters related to federal, state and private student financial aid resources and programs.
     (c) It is the intent of the Legislature that the advisory board have the following responsibilities:
     (1) Recommend methods to balance the needs of state students from all levels of financial need and academic ability by focusing attention on multiple financial aid programs which meet a variety of state objectives;
     (2) Recommend methods for achieving a comprehensive system of student financial aid (A) to maximize the return on the state's investment in such student financial aid programs by increasing the skills, qualifications and education achievement of the citizens receiving the benefits; and
     
(B) (3) To establish Recommend methods for coordinating administration among to coordinate state-funded student financial aid programs so that the state achieves the appropriate blend of student financial aid programs to expand the range of economic opportunities available to state citizens;
     (d) The Advisory Board consists of twelve members as follows:
     
(1) The chair of the Higher Education Policy Commission or a designee who is a member of the Commission;
     
(2) The chair of the West Virginia Council for Community and Technical College Education or a designee who is a member of the Council;
     
(3) The State Superintendent of Schools or a designee;
     
(4) The Secretary of Education and the Arts or a designee;
     
(5) The State Treasurer or a designee;
     
(6) A member of the PROMISE Scholarship Board selected by that board;
     
(7) Three financial aid administrators, excluding the president of the West Virginia Association of Student Financial Aid Administrators.
     
(A) All financial aid administrators are appointed by the Vice Chancellor for Administration in consultation with the Commission and the Council, as appropriate. Of the initial appointments, the vice chancellor shall appoint one member to a two-year term, one member to a three-year term and one member to a four-year term. Thereafter, all terms are for four years.
     
(B) It is the duty of the Vice Chancellor for Administration to select financial aid administrators so that the following types of institutions have representatives serving on the board on a rotating basis:
     
(i) State institutions of higher education which are doctoral- degree granting research universities;
     
(ii) State institutions of higher education which primarily grant baccalaureate degrees;
     
(iii) State institutions of higher education which are free-standing community and technical colleges;
     
(iv) State institutions of higher education which are administratively linked community and technical colleges; and
     
(v) Private institutions of higher education which are regionally accredited and located within the state.
     
(8) Three at-large private sector members who are appointed jointly by the Commission and the Council. Of the initial appointments, the Commission and the Council jointly shall appoint one member to a two-year term, one member to a three-year term and one member to a four-year term. Thereafter, all terms are for four years.
     
(A) At-large members shall:
     
(i) Be representative of the state's business and economic community;
     
(ii) Demonstrate knowledge, skill and experience in an academic, business or financial field; and
     
(iii) Reside within this state.
     
(B) An at-large member may not be:
     
(i) A member of a governing board or institutional board of advisors of any public or private institution of higher education; nor
     
(ii) A publicly elected official or an employee of any state, county or municipal agency.
     
(e) No more than two of the at-large members may be from the same political party and no more than one may reside in any congressional district.
     
(1) After the initial appointments, each appointed member serves a term of four years and may be reappointed upon expiration of the term.
     
(2) In the event of a vacancy among appointed members, the Commission and the Council shall appoint a person for the remainder of the unexpired term to represent the same interests as those of the original appointee. A person appointed to fill a vacancy is eligible for reappointment. Unless a vacancy occurs due to death or resignation, an appointed member continues to serve until a successor has been appointed and qualified as provided in this section.
     
(4) Recommend ways to improve state-level administration of financial aid programs for the benefit of students and institutions;
_____(5) Recommend ways to improve financial aid outreach activities;
_____(6) Make recommendations, consistent with the nature of the PROMISE scholarship program as a merit-based student financial aid program.
_____(7) Recommend rules that align with the goals, objectives and priorities set forth in section one-a, article one, chapter eighteen-b of this code and article one-d of said chapter and with other state and system public policy goals, objectives and priorities.
_____(d) Advisory board membership. --
_____(1) The advisory board shall consist of seven members selected as follows:
_____(A) Three members appointed by the Commission;
_____(B) Two members appointed by the Council;
_____(C) One member appointed by the West Virginia Independent Colleges and Universities; and
_____(D) One member appointed by the West Virginia School Counselor Association.
_____(2) Members appointed by the Commission and the Council shall possess a broad knowledge of state and federal higher education student financial aid programs and have experience in administering these programs, preferably at the campus or system level.
_____(3) The initial appointments of members shall be made as follows:
_____(A) The Commission shall appoint one member to a one-year term, one member to a two-year term and one member to a three-year term;
_____(B) The Council shall appoint one member to a one-year term and one member to a three-year term;
_____(C) The West Virginia Independent Colleges and Universities shall appoint one member to a one-year term; and
_____
(D) The West Virginia School Counselor Association shall appoint one member to a two-year term.
_____(4) After the initial terms are completed, appointments shall be made as follows:
_____(A) Members shall be appointed for three-year terms; and
_____(B) Members are eligible to succeed themselves for one additional consecutive term.
_____(5) The term of each member begins on July 1 of the year in which the appointment is made and ends on June 30 of the year in which the appointment expires.
_____(e) The first meeting of the advisory board shall be called by the Vice Chancellor for Administration, at which time the members shall elect a chairperson for an initial term ending on July 31, 2010. The chairperson may succeed himself or herself for an additional one-year term as chairperson. Thereafter, the term of the chairperson is for one year beginning on August 1 of the year in which elected and ending on July 31 of the following year. A member may not serve more than two consecutive terms as chairperson.
_____(f) In the event of a vacancy, a successor shall be appointed by the entity which appointed the vacating member for the unexpired term of the vacating member. A person appointed to fill a vacancy is eligible for reappointment for one additional consecutive term unless the time remaining in the unexpired term is less than six months in which case the person filling the vacancy is eligible for reappointment for two additional terms.
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(f) (g) Members of the advisory board serve without compensation, but are entitled to reimbursement by the Commission for expenses, including travel expenses, which are actually incurred by the member in the official conduct of the business of the advisory board. Members are reimbursed in a manner consistent with rules of the Higher Education Policy Commission.
ARTICLE 7. WEST VIRGINIA PROVIDING REAL OPPORTUNITIES FOR MAXIMIZING IN-STATE STUDENT EXCELLENCE SCHOLARSHIP PROGRAM.

§18C-7-3. Definitions.

     
(a) General. -- For the purposes of this article, terms have the meaning ascribed to them in section two, article one of this chapter, unless the context in which the term is used clearly requires a different meaning or a specific definition is provided in this section.
_____(b)
Definitions. --
_____
(a) (1) "Eligible institution" means:
     (1) (A) A state institution of higher education as defined in section two, article one, chapter eighteen-b of this code;
     (2) (B) Alderson-Broaddus College, Appalachian Bible College, Bethany College, Davis and Elkins College, Mountain State University, Ohio Valley University, the University of Charleston, West Virginia Wesleyan College and Wheeling Jesuit University, all in West Virginia. Any institution listed in this subdivision ceases to be an eligible institution if it meets either of the following conditions:
     (A) (i) Loses It loses regional accreditation; or
     (B) (ii) Changes It changes its status as a private, not-for- profit institution;
     (3) (C) Any for-profit institution that meets the following criteria:
_____(i) Is regionally accredited through the Higher Learning Commission of the North Central Association of Colleges and Schools; and
_____(ii) Has a physical campus in West Virginia at which the eligible student attends classes;
_____(D)
Any other public or private regionally accredited institution in this state public or private, approved by the board commission.
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(b) "Board" means the West Virginia PROMISE Scholarship Board of the West Virginia PROMISE Scholarship Program as provided for in section four of this article.
     
(c) (2) "Tuition" means the quarter, semester or term charges imposed by a an eligible state institution of higher education and, additionally, all mandatory fees required as a condition of enrollment by all students. For the purposes of this article, the following conditions apply:
_____(A) West Virginia University, Potomac State College and West Virginia University Institute of Technology are considered separate institutions for purposes of determining tuition rates; and
_____(B) The tuition amount paid by undergraduate health sciences students at West Virginia University is considered to be the same as the amount of tuition paid by all other West Virginia University undergraduate students.
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(d) (3) "Enrolled" means either currently enrolled or in the process of enrolling in an eligible institution.
§18C-7-4. Dissolution of the PROMISE Scholarship Board; transfer of funds.

     (a) The West Virginia PROMISE Scholarship Board is hereby dissolved.
     (b) All funds administered by the former PROMISE Scholarship Board shall be administered by the Higher Education Policy Commission.
§18C-7-5. Powers and duties of the West Virginia Higher Education Policy Commission regarding the PROMISE Scholarship.

     (a) Powers of board Commission. -- In addition to the powers granted by any other provision of this article code, the board Commission has the powers necessary or convenient to carry out the purposes and provisions of this article including, but not limited to, the following express powers:
     (1) To adopt and amend bylaws;
     
(2) (1) To propose promulgate legislative rules to the Commission for promulgation in accordance with the provisions of article three-a, chapter twenty-nine-a of this code to effectuate the purposes of this article;
     (3) (2) To invest any of its funds at the board's discretion, the funds of the West Virginia PROMISE Scholarship Fund established in section seven of this article with the West Virginia Investment Management Board in accordance with the provisions of article six, chapter twelve of this code. Any investments made under pursuant to this article shall be made with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of conducting an enterprise of a like character and with like aims. Fiduciaries shall diversify plan investments to the extent permitted by law so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so;
     (4) (3) To execute contracts and other necessary instruments;
     (5) (4) To impose reasonable requirements for residency for students applying for the PROMISE scholarship. Except as provided in section four, article one of this chapter, the requirements shall include that an eligible a student must shall have met the following requirements to be eligible:
     (A) Completed at least one half of the credits required for high school graduation in a public or private high school in this state; or
     (B) Received instruction in the home or other approved place pursuant to Exemption B subsection (c), section one, article eight, chapter eighteen of this code for the two years immediately preceding application;
     (C) This subdivision may subsection does not be construed to establish residency requirements for matriculation or fee payment purposes at state institutions of higher education;
     (6) (5) To contract for necessary goods and services, to employ necessary personnel and to engage the services of private persons for administrative and technical assistance in carrying out the responsibilities of the scholarship program. Any services provided or secured to implement or administer the provisions of this section remain under the direction and authority of the Vice Chancellor for Administration;
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(A) The board is encouraged to utilize the employees of the Vice Chancellor for Administration to provide administrative and technical assistance.
     
(B) Any services provided for the board by such employees remain under the direction and authority of the vice chancellor.
     
(7) (6) To solicit and accept gifts, including bequests or other testamentary gifts made by will, trust or other disposition, grants, loans and other aid from any source and to participate in any federal, state or local governmental programs in carrying out the purposes of this article;
     (8) (7) To define the terms and conditions under which scholarships are awarded with the minimum requirements being set forth in section six of this article; and
     (9) (8) To establish other policies, procedures and criteria necessary to implement and administer the provisions of this article.
     (b) Duties of board Commission. -- In addition to any duty required by any other provision of this article code, the board Commission has the following responsibilities:
     (1) To operate the program in a fiscally responsible manner and within the limits of available funds;
     (2) To operate the PROMISE Scholarship program as a merit- based program;
     (3) To raise adjust academic eligibility requirements before taking any other steps to limit student awards should projections indicate that available funds will not be sufficient to cover future costs; and
     (4) To maintain contact with graduates who have received PROMISE scholarships and to provide a written statement of intent to recipients who are selected to receive a PROMISE scholarship after the effective date of this section notifying them that acceptance of the scholarship entails a responsibility to supply the following:
     (A) Information requested by the board Commission to determine the number and percentage of recipients who shall:
     (i) (i) Continue to live in West Virginia after graduation;
     (ii) (ii) Obtain employment in West Virginia after graduation; and
     (iii) (iii) Enroll in post-graduate education programs; and
     
(B) For PROMISE scholars who enroll in post-graduate education programs, the name of the state in which each post-graduate institution is located; and
     (B) (C) Such Any other relevant information as the board may Commission reasonably request requests to implement the provisions of this subdivision;
     (5) To analyze and use the data collected pursuant to subdivision (4) of this subsection to, and:
     (A) Report the findings annually to the Joint Standing Committee on Education by the tenth day of January, two thousand seven and annually thereafter Legislative Oversight Commission on Education Accountability; and
     (B) Make annual recommendations annually to the Joint Standing Committee on Education Legislative Oversight Commission on Education Accountability regarding any actions the board Commission considers necessary or expedient to encourage PROMISE recipients to live and work in the state after graduation.
§18C-7-6. PROMISE scholarship program requirements; legislative rule.

     (a) A PROMISE scholarship annual award meets shall meet the following conditions:
     (1) Equals but does not exceed the cost of tuition for a student enrolled in a state institution of higher education;
     
(2) Equals an amount determined by the board, but not to exceed the cost of tuition at state institutions of higher education, for a student enrolled in an eligible institution that is not a state institution of higher education;
     
(1) For a student enrolled in a state institution of higher education, the annual award is equal to the lesser of the cost of tuition or $4,750, except that a student who was awarded and used a PROMISE scholarship annual award prior to January 1, 2010, shall continue to receive the annual award calculated under the same terms and conditions that applied on the day before the effective date of this article;
_____(2) For a student enrolled in an eligible institution other than a state institution of higher education, the annual award is equal to, but may not exceed, the lesser of the cost of tuition or $4,750, except that a student who was awarded and used a PROMISE scholarship annual award prior to January 1, 2010, shall continue to receive the annual award calculated under the same terms and conditions that applied on the day before the effective date of this article;
_____(3) The annual award may exceed $4,750, if the Commission determines that adequate funds are available, but in any case, may not be greater than the actual cost of tuition;
_____
(3) Is (4) The annual award shall be used by an eligible institution to supplement, but may not to supplant, a tuition and fee waiver for which the individual is eligible pursuant to section five, six-a, or seven or seven-b, article ten, chapter eighteen-b of this code.
     (b) The total cost of all scholarships awarded by the board Commission in any year may not exceed the amount of funds available to the board Commission during that fiscal year.
     (c) An individual shall meet the following conditions in In order to be eligible to receive a PROMISE scholarship award an individual shall:
     (1) Submit a scholarship award application to the board Commission:
     (A) Within two years of graduating from high school or within two years of acquiring a general equivalency degree if provided instruction in the home or other approved place pursuant to Exemption B subsection (c), section one, article eight, chapter eighteen of this code; or
     (B) Within seven years of initially entering military service, and within one year of discharge from such military service, if the individual has entered the United States armed services within two years after graduating from high school;
     (2) Apply for and submit to the board a Free Application for Federal Student Aid;
     (3) Maintain a grade point average of at least 3.0 on a 4.0 grading scale in the required core and elective course work necessary to prepare students for success in post-secondary education at the associate and baccalaureate degree levels as determined by the board Commission, if the individual has completed not more than one semester or term at an institution of higher education, excluding credits earned in advanced placement, international baccalaureate, dual credit and comparable courses while the student is enrolled in high school;
     (4) Maintain appropriate academic progress toward the completion of a degree at the undergraduate education level as determined by the board Commission if the individual has completed more than one semester or term at an institution of higher education, excluding credits earned in advanced placement, international baccalaureate, dual credit and comparable courses while the student is enrolled in high school;
     (5) Be a United States citizen or legal immigrant to the United States;
_____
(6) Meet additional objective standards as the board Commission considers necessary to promote academic excellence and to maintain the financial stability of the fund; and
_____
(6) (7) Enroll in an eligible institution. Any A student enrolled at an eligible institution who receives a PROMISE scholarship award may retain and renew the scholarship to complete his or her undergraduate education at that institution or any other eligible institution under the following circumstances:
     (A) If the The institution at which the student is enrolled loses its status as an eligible institution pursuant to the provisions of subdivision (2), subsection (a), section three subdivision (1), subsection (b) of this article; and
     (B) If The student meets all other renewal requirements of this code and of board Commission rules.
     (7) (d) It is the intent of the Legislature that the board Commission shall strongly encourage prospective candidates for the PROMISE scholarship to perform at least twenty hours of unpaid community service while in high school to help prepare them for success in post-graduate post-secondary education. The community service may include, but is not limited to, participation with nonprofit, governmental or community-based organizations designed to with any or all of the following purposes:
     (A) (1) Improve Improving the quality of life for community residents;
     (B) (2) Meet Meeting the needs of community residents; or
     (C) (3) Foster Fostering civic responsibility.
     (d) The board shall recommend a legislative rule to the Commission to implement the provisions of this article.
     
(e) The Commission shall promulgate a legislative rule in accordance with the provisions of article three-a, chapter twenty- nine-a of this code.
     (1) The rule shall include at least the following provisions:
     (A) The amount of a PROMISE scholarship award may not exceed the cost of tuition at state institutions of higher education;
     
(B) (A) The amount of a PROMISE scholarship award in combination with aid from all other sources may not exceed the cost of education at the institution the recipient is attending. This provision does not apply to members of the West Virginia National Guard, recipients of an Underwood-Smith teacher scholarship and recipients of a West Virginia engineering, science and technology scholarship;
     (C) (B) Additional objective standards as the board Commission considers necessary:
     (i) To promote academic excellence;
     (ii) To maintain the financial stability of the fund; and
     (iii) To operate the program within the limits of available funds.
     (D) (C) Provisions for making the highest and best use of the PROMISE Scholarship Program in conjunction with the West Virginia Prepaid Tuition Trust Act West Virginia College Prepaid Tuition and Savings Program Act set forth in article thirty, chapter eighteen of this code;
     (E) (D) A provision defining the relationship of PROMISE scholarship awards to all other sources of student financial aid to ensure maximum coordination. The provision shall include the following:
     (i) Methods to maximize student eligibility for federal student financial aid;
     (ii) A requirement that PROMISE scholarship awards not supplant tuition and fee waivers; and
     (iii) Clarification of the relationship between the PROMISE Scholarship Program, tuition savings plans and other state-funded student financial aid programs;
     (F) (E) A method for awarding scholarships within the limits of available appropriations, including circumstances when program funds are not sufficient to provide awards to all eligible applicants. The board Commission may not utilize use any of the following methods:
     (i) Making the Providing for an annual PROMISE scholarship award for an amount that is less than the cost of full tuition for a student enrolled in a state institution of higher education amounts provided for in this section; or
     (ii) Eliminating any current recipient from eligibility; and
_____
(G) (F) A method for applicants to appeal determinations of eligibility and renewal.
     (2) The rule may provide for or require the following at the board's Commission's discretion:
     (A) Requiring repayment of the amount of the scholarship, in whole or in part, if a scholarship recipient chooses to work outside the state after graduation. Provided, That The rule may not require a recipient to repay a scholarship, in whole or in part, unless the prospective recipient has been informed of this requirement in writing before initial acceptance of the PROMISE scholarship award;
     (B) Targeting a portion of the scholarship funds to be used for applicants enrolled in an engineering, science, technology or other designated program;
     (C) Determining what other sources of funding for higher education are to be deducted from the PROMISE scholarship award; and
     (D) Providing additional criteria as determined by the board Commission.
     (3) The Legislature finds that an emergency exists and, therefore, the board Commission shall file a rule to implement the provisions of this section as an emergency rule pursuant to the provisions of article three-a, chapter twenty-nine-a of this code. The rule is subject to the prior approval of the Legislative Oversight Commission on Education Accountability.
     (4) Any rule promulgated by the Commission pursuant to previous enactments of this article in effect on the effective date of the amendment and reenactment of this article in the year 2009 remains in effect until amended, modified, repealed or replaced by the Commission.
§18C-7-7. West Virginia PROMISE Scholarship Fund continued.

     (a) The special revenue fund in the State Treasury designated and known as the PROMISE Scholarship Fund is continued. The fund consists of moneys from the following sources:
     (1) All appropriations to the fund from the West Virginia Lottery, video lottery and taxes on amusement devices;
     (2) All appropriations by the Legislature for the PROMISE Scholarship Fund;
     (3) Any gifts, grants or contributions received for the PROMISE Scholarship Program; and
     (4) All interest or other income earned from investment of the fund.
     (b) The allocations to the fund are subject to appropriation by the Legislature. Nothing in this article requires any specific level of funding by the Legislature nor guarantees nor entitles any individual to any benefit or grant of funds.
     (c) For the fiscal year beginning July 1, 2006, it is the intent of the Legislature that the aggregate of the amount of moneys transferred to the fund pursuant to section eighteen-a, article twenty-two, chapter twenty-nine of this code, and such any other amounts of public moneys that may be transferred to the fund by appropriation of the Legislature, shall equal, but may not exceed, $40 million. For each fiscal year thereafter until and including the fiscal year ending June 30, 2011 2009, it is the intent of the Legislature that this aggregate be an amount two percent greater than the aggregate established by this subsection for the prior fiscal year. For the fiscal year beginning July 1, 2011, and in each fiscal year thereafter, it is the intent of the Legislature that this aggregate not exceed the aggregate established by this subsection for the fiscal year beginning July 1, 2011. For the fiscal year beginning July 1, 2009, it is the intent of the Legislature that the aggregate of the amount of moneys transferred to the fund pursuant to section eighteen-a, article twenty-two, chapter twenty-nine of this code and any other amounts of public moneys that may be transferred to the fund by appropriation of the Legislature, shall equal $45 million. For the fiscal year beginning July 1, 2010, it is the intent of the Legislature that the aggregate of the amount of moneys transferred to the fund shall equal $48 million. For the fiscal year beginning July 1, 2011, and every fiscal year thereafter, it is the intent of the Legislature that the aggregate of the amount of moneys transferred to the fund shall equal $47,500,000.
     (d) The board Commission may expend the moneys in the fund to implement the provisions of this article.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373--A Bill to repeal §18C-7-8 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §18B-1D-9; to amend and reenact §18B-2A-1 of said code; to amend and reenact §18C-1-1 and §18C-1-5 of said code; and to amend and reenact §18C-7-3, §18C-7-4, §18C-7-5, §18C-7-6, §18C-7-7 and §18C- 7-8 of said code, all relating to higher education in West Virginia generally; requiring training and development opportunities for members of the Higher Education Policy Commission, the Council for Community and Technical College Education and the institutional governing boards; revising criteria for membership of the institutional governing boards and the manner in which the membership is determined; requiring the governor to consider certain factors and seek a certain balance when appointing members; reconstituting the Higher Education Student Financial Aid Advisory Board; providing for member appointments; setting forth member qualifications and terms of office; setting forth duties of the advisory board; changing conditions upon which students who attended high school outside the state may be eligible for financial aid; establishing tuition rate for all West Virginia University graduate students; dissolving the PROMISE Scholarship Board and transferring its powers and duties to the Higher Education Policy Commission and under the administration of the Vice Chancellor for Administration; requiring the vice chancellor to submit an annual report; defining terms; authorizing investment of certain funds with the West Virginia Investment Management Board; increasing by two percent the aggregate percentage amount the Legislature intends to allocate to PROMISE scholarship program for a certain fiscal year; setting a minimum amount for the PROMISE scholarship annual award and authorizing the Higher Education Policy Commission to provide annual awards greater than the minimum under certain circumstances if funds are available; increasing flexibility for adjusting requirements to receive a PROMISE scholarship; providing conditions under which PROMISE scholarship annual awards are continued to certain students under certain circumstances; establishing citizenship and immigrant conditions of eligibility for a PROMISE scholarship; clarifying that a PROMISE scholarship may supplement certain tuition and fee waivers; and authorizing the Higher Education Policy Commission to promulgate rules.
     On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 373) 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 with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 414, Relating to Pharmaceutical Cost Management Council and health care delivery systems.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §5-16-7b of the Code of West Virginia,1931, as amended, be repealed; that §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A- 3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17 of said code be repealed; that §5F-2-2 of said code be amended and reenacted; that §16-29H-1, §16-29H-2, §16-29H-3, §16-29H-4 and §16- 29H-5 of said code be amended and reenacted; and that said code be amended by adding thereto five new sections, designated §16-29H-6, §16-29H-7, §16-29H-8, §16-29H-9 and §16-29-10, all to read as follows
CHAPTER 5F. ORGANIZATION OF THE EXECUTIVE

BRANCH OF STATE GOVERNMENT.

ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-2. Power and authority of secretary of each department.
     (a) Notwithstanding any other provision of this code to the contrary, the secretary of each department shall have plenary power and authority within and for the department to:
     (1) Employ and discharge within the office of the secretary employees as may be necessary to carry out the functions of the secretary, which employees shall serve at the will and pleasure of the secretary;
     (2) Cause the various agencies and boards to be operated effectively, efficiently and economically and develop goals, objectives, policies and plans that are necessary or desirable for the effective, efficient and economical operation of the department;
     (3) Eliminate or consolidate positions, other than positions of administrators or positions of board members and name a person to fill more than one position;
     (4) Transfer permanent state employees between departments in accordance with the provisions of section seven of this article;
     (5) Delegate, assign, transfer or combine responsibilities or duties to or among employees, other than administrators or board members;
     (6) Reorganize internal functions or operations;
     (7) Formulate comprehensive budgets for consideration by the Governor and transfer within the department funds appropriated to the various agencies of the department which are not expended due to cost savings resulting from the implementation of the provisions of this chapter: Provided, That no more than twenty-five percent of the funds appropriated to any one agency or board may be transferred to other agencies or boards within the department: Provided, however, That no funds may be transferred from a special revenue account, dedicated account, capital expenditure account or any other account or funds specifically exempted by the Legislature from transfer, except that the use of appropriations from the State Road Fund transferred to the office of the Secretary of the Department of Transportation is not a use other than the purpose for which the funds were dedicated and is permitted: Provided further, That if the Legislature by subsequent enactment consolidates agencies, boards or functions, the appropriate secretary may transfer the funds formerly appropriated to the agency, board or function in order to implement consolidation. The authority to transfer funds under this section shall expire on thirtieth day of June, two thousand five; June 30, 2010;
     (8) Enter into contracts or agreements requiring the expenditure of public funds and authorize the expenditure or obligation of public funds as authorized by law: Provided, That the powers granted to the secretary to enter into contracts or agreements and to make expenditures or obligations of public funds under this provision shall not exceed or be interpreted as authority to exceed the powers granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;
     (9) Acquire by lease or purchase property of whatever kind or character and convey or dispose of any property of whatever kind or character as authorized by law: Provided, That the powers granted to the secretary to lease, purchase, convey or dispose of such property shall be exercised in accordance with the provisions of articles three, ten and eleven, chapter five-a of this code: Provided, however, That the powers granted to the secretary to lease, purchase, convey or dispose of such property shall not exceed or be interpreted as authority to exceed the powers granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;
     (10) Conduct internal audits;
     (11) Supervise internal management;
     (12) Promulgate rules, as defined in section two, article one, chapter twenty-nine-a of this code, to implement and make effective the powers, authority and duties granted and imposed by the provisions of this chapter in accordance with the provisions of chapter twenty-nine-a of this code;
     (13) Grant or withhold written consent to the proposal of any rule, as defined in section two, article one, chapter twenty-nine-a of this code, by any administrator, agency or board within the department. Without written consent, no proposal for a rule shall have any force or effect;
     (14) Delegate to administrators the duties of the secretary as the secretary may deem appropriate, from time to time, to facilitate execution of the powers, authority and duties delegated to the secretary; and
     (15) Take any other action involving or relating to internal management not otherwise prohibited by law.
     (b) The secretaries of the departments hereby created shall engage in a comprehensive review of the practices, policies and operations of the agencies and boards within their departments to determine the feasibility of cost reductions and increased efficiency which may be achieved therein, including, but not limited to, the following:
     (1) The elimination, reduction and restriction of the state's vehicle or other transportation fleet;
     (2) The elimination, reduction and restriction of state government publications, including annual reports, informational materials and promotional materials;
     (3) The termination or rectification of terms contained in lease agreements between the state and private sector for offices, equipment and services;
     (4) The adoption of appropriate systems for accounting, including consideration of an accrual basis financial accounting and reporting system;
     (5) The adoption of revised procurement practices to facilitate cost-effective purchasing procedures, including consideration of means by which domestic businesses may be assisted to compete for state government purchases; and
     (6) The computerization of the functions of the state agencies and boards.
     (c) Notwithstanding the provisions of subsections (a) and (b) of this section, none of the powers granted to the secretaries herein shall be exercised by the secretary if to do so would violate or be inconsistent with the provisions of any federal law or regulation, any federal-state program or federally delegated program or jeopardize the approval, existence or funding of any program.
     (d) The layoff and recall rights of employees within the classified service of the state as provided in subsections (5) and (6), section ten, article six, chapter twenty-nine of this code shall be limited to the organizational unit within the agency or board and within the occupational group established by the classification and compensation plan for the classified service of the agency or board in which the employee was employed prior to the agency or board's transfer or incorporation into the department: Provided, That the employee shall possess the qualifications established for the job class. The duration of recall rights provided in this subsection shall be limited to two years or the length of tenure, whichever is less. Except as provided in this subsection, nothing contained in this section shall be construed to abridge the rights of employees within the classified service of the state as provided in sections ten and ten-a, article six, chapter twenty-nine of this code.
     (e) Notwithstanding any other provision of this code to the contrary, the secretary of each department with authority over programs which have an impact on the delivery of health care services in the state or are payors for health care services or are payors for prescription drugs, including, but not limited to, the Public Employees Insurance Agency, the Department of Health and Human Resources, the Bureau for Senior Services, the Children's Health Insurance Program, the Health Care Authority, the Office of the Insurance Commissioner, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions including nursing homes and veterans' homes, the Division of Rehabilitation, public health departments, the Bureau for Medical Services and other programs, which have an impact on the delivery of health care services or are payors for health care services or that are payors for prescription drugs, in West Virginia shall cooperate with the Office of the Pharmaceutical Advocate Governor's Office of Health Enhancement and Lifestyle Planning established pursuant to section four, article sixteen-d, chapter five article twenty-nine-h, chapter sixteen of this code for the purpose of purchasing prescription drugs improving the health care delivery services in West Virginia for any program over which they have authority.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 29H. GOVERNOR'S OFFICE OF HEALTH ENHANCEMENT AND LIFESTYLE PLANNING.

§16-29H-1. Legislative findings.

     The Legislature finds:
     (1) Rising health care costs have a significant impact not only on the citizens of the state but also the state's ability to develop a competitive advantage in seeking new business. Reducing this level of costs and developing new, more effective options for reducing growth in health care spending is essential to ensuring the health of West Virginia's citizens and to the advancement of a well developed workforce.
     (2) West Virginia spends thirteen percent more per person on health care than the national average. Moreover, the growth in spending in the state is higher than the national average. These rising costs have contributed to fewer employers, particularly small employers, offering health insurance as a benefit of employment. This is an occurrence that may further drive up health care costs throughout the state.
     (3) West Virginia is among the highest in such health care indicators as childhood and adult obesity which provides a direct connection to higher rates of diabetes, hypertension, hyperlipidemia, heart disease, pulmonary disorders and comorbid depression experienced in West Virginia. Nearly one third of the rise in health care costs can be attributed to the rise in obesity throughout the state and the nation. Additionally, high rates of chronic illness represents a substantial reduction in worker productivity.
     (4) To address the concerns over rising costs, West Virginia must change the way it pays for care, shifting the focus to primary care and prevention. Seventy-five percent of health care spending is associated with treatment of chronic diseases requiring on going medical management over time. Patients with chronic diseases, however, only receive fifty-six percent of the clinically recommended preventive services. This lack of preventive services creates a seventy-five percent increase in health care spending.
     (5) Health care delivery in West Virginia needs to be modernized. This will require substantial changes in how health care is delivered to the chronically ill, an increase in information technology tools used for patient management, a simplification of health care processing and a broad overhaul in our perceptions of wellness and prevention.
     (6) West Virginians must be challenged to engage in a more healthy lifestyle, they must alter the focus of their perception of health care from one of episodic care to prevention and wellness efforts. Equally as important, is that healthcare providers must be engaged with their patients and in the process of delivery of health care and strive for continuous improvement of the quality of care they provide.
     (7) West Virginia must develop a health care system that is sufficient to meet the needs of its citizens; equitable, fair and sustainable but that is also accountable for quality, access, cost containment and service delivery.
§16-29H-2. Creation of the Governor's Office of Health Enhancement and Lifestyle Planning; duties.

     (a) There is created the Governor's Office of Health Enhancement and Lifestyle Planning. The purpose of this office is to coordinate all state health care system reform initiatives among executive branch agencies, departments, bureaus and offices. The office shall be under the direct supervision of the director, who is responsible for the exercise of the duties and powers assigned to the office under the provisions of this article.
     (b) All state agencies that have responsibility for the development, improvement and implementation of any aspect of West Virginia's health care system, including, but not limited to, the Public Employees Insurance Agency, the Bureau for Senior Services, the Children's Health Insurance Program, Office of the Pharmaceutical Advocate, the Health Care Authority, the West Virginia Health Information Network, the Insurance Commission, the Department of Health and Human Resources, state colleges and universities, the Pharmaceutical Advocate, public hospitals, state or local institutions such as nursing homes, veteran's homes, the Division of Rehabilitation and public health departments, shall cooperate with the Governor's Office of Health Enhancement and Lifestyle Planning established for the purpose of coordinating the health care delivery system in West Virginia for any program over which they have authority.
§16-29H-3. Director of the Governor's Office of Health Enhancement and Lifestyle Planning appointment; qualifications; oath; salary.

     (a) The office is under the supervision of the director. The director is the executive and administrative head of the office and shall be appointed by the Governor with advice and consent of the Senate. The director shall be qualified by training and experience to direct the operations of the Governor's Office of Health Enhancement and Lifestyle Planning and serves at the will and pleasure of the Governor. The duties of the director include, but are not limited to, the management and administration of the Governor's Office of Health Enhancement and Lifestyle Planning.
     (b) The director:
     (1) Serves on a full time basis and may not be engaged in any other profession or occupation;
     (2) May not hold political office in the government of the state either by election or appointment while serving as the director;
     (3) Shall be a citizen of the United States and West Virginia and become a resident of the state within ninety days of appointment;
     (4) Is entitled to receive an annual salary as set by the Legislature subject to appropriation; and
     (5) Is ineligible for civil service coverage as provided in section four, article six, chapter twenty-nine of this code. Any other employee hired by the director is also ineligible for civil service coverage.
     (c) Before entering upon the discharge of the duties as director, the director shall take and subscribe to the oath of office prescribed in section five, article IV of the Constitution of West Virginia. The executed oath shall be filed in the Office of the Secretary of State.
§16-29H-4. Director of the Governor's Office of Health Enhancement and Lifestyle; powers and duties, hiring of staff.

     (a) The director has the power and authority to:
     (1) Purchase or enter into contracts or agreements as necessary to achieve the purposes of this article;
     (2) File suit;
     (3) At the request of a state agency that has responsibility for any aspect of West Virginia's health care system, evaluate and advise the agency on ways that can better achieve the purposes of this article. In addition, the director may determine in collaboration with the agencies responsible for health systems in the state to improve efficiencies and reduce costs through inter- agency agreements to enter into contracts. Contracts may only be renegotiated if there is a demonstrated and measurable cost savings for the state and the agencies are in agreement;
     (4) Enter into contracts with public or private entities in this state, governments of other states and jurisdictions and their individual departments, agencies, authorities, institutions, programs, quasi-public corporations and political subdivisions in the event that such contracts would be a collaboration between the health system agencies involved and agreed to by all parties;
     (5) Participate in regional or multistate purchasing alliances or consortia, formed for the purpose of pooling the combined purchasing power of the individual members and increasing purchasing power with agreement of all participating parties and financially advantageous to each party. This power does not affect individual state agencies from participating in any purchasing alliance or consortium as established in their own program. If the director participates in any cooperative purchasing agreement, alliance or consortium which is comprised of at least five million covered lives, the cooperative purchasing agreement, alliance or consortium may employ an agreed-upon pricing schedule that, in the judgment of the director and the other participating entities, will maximize savings to the broadest percentage of the population of this state: Provided, That any pharmaceutical manufacturer that deals with such cooperative purchasing agreements, alliances or consortia may request a waiver from such pricing schedule in West Virginia or any other participating state for a particular drug that should be granted if the director finds that the development, production, distribution costs, other reasonable costs and reasonable profits excluding marketing, advertising and promotional costs not essential to bringing the product to market are more than the schedule price of the pharmaceutical or in those cases in which the pharmaceutical in question has a sole source. The director shall determine fees to be paid by the applicant at the time of the waiver application and proof required to be submitted at the time of the waiver request to support the validity of the request;
     (6) Make recommendations to the Governor and the Legislature regarding strategies that could more effectively make the health care delivery system in West Virginia more timely, more patient- centered, provide greater patient access and quality of service and control health care costs;
     (7) Develop and implement other programs, projects and initiatives to achieve the purposes of this article, including initiating, evaluating and promoting primary-care medical homes pursuant to section six of this article and other strategies that result in greater access to health care, assure greater quality of care and result in reduced costs for health care delivery services to the citizens of West Virginia: Provided, That interagency agreements shall be utilized for services that would be duplicative;
     (8) Work with the Health Care Authority to ensure that the Preventive Health Care Pilots are implementing a primary-care medical home model as defined in this article;
     (9) Develop a five-year strategic plan as set forth in section six of this article for implementation of West Virginia's health care system reform initiatives together with recommendations for administration, policy, legislative rules or legislation. This plan shall be reported to the Joint Committee on Government and Finance, the Legislative Oversight Commission on Health and Human Resources Accountability and the Governor on or before December 31, 2009;
     (10) Provide professional development on emerging health care policies and contracting for health care services; and
     (11) Evaluate and offer, if resources become available, a grant program for local communities to encourage healthy lifestyles in collaboration with the Healthy Lifestyles Coalition.
     (b) The director shall employ such professional, clerical, technical and administrative personnel as may be necessary to carry out the provisions of this article and with consideration of the appropriation provided by the Legislature.
     (c) The director shall prepare and submit to the Governor and the Legislature annual proposed appropriations for the next fiscal year which shall include sums necessary to support the activities of the Governor's Office of Health Enhancement and Lifestyle Planning.
     (d) The director shall submit an annual report separate from the strategic plan by January 1 of each year to the Governor and the Legislative Oversight Commission on Health and Human Resources Accountability on the condition, operation and functioning of the Governor's Office of Health Enhancement and Lifestyle Planning.
     (e) The director shall supervise the fiscal management and responsibilities of the Governor's Office of Health Enhancement and Lifestyle Planning.
     (f) The director shall keep an accurate and complete record of all the Governor's Office of Health Enhancement and Lifestyle Planning proceedings, records and file all bonds and contracts and assume responsibility for the custody and preservation of all papers and records of the office.
     (g) The director may convene a series of focus groups, polls and any other available research tool to determine issues of importance to all stakeholders after a thorough review of available research currently in existence. The development of these survey tools shall be done in conjunction with employers, health care providers and consumers. Data received from this research should be easily available to the public and utilized in the development and design of health benefit programs. The data should also be accessible to providers to allow them to meet the needs of the health care market.
     (h) The director may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty- nine-a of this code to accomplish the goals and purposes of this article.
§16-29H-5. Creation of the Health Enhancement and Lifestyle Planning Advisory Council.

     (a) The Health Enhancement and Lifestyle Planning Advisory Council is hereby created. The advisory council is an independent, self-sustaining council that has the powers and duties specified in this article.
     (b) The advisory council is a part-time council whose members perform such duties as specified in this article. The ministerial duties of the advisory council shall be administered and carried out by the Governor's Office of Health Enhancement and Lifestyle Planning.
     (c) Each member of the advisory council shall devote the time necessary to carry out the duties and obligations of the office. Those members appointed by the Governor may pursue and engage in another business or occupation or gainful employment that is not in conflict with the duties of the advisory council.
     (d) The advisory council is self-sustaining and independent, however, it, its members, the director and employees of the Governor's Office of Health Enhancement and Lifestyle Planning are subject to article nine-a, chapter six of this code and chapters six-b, twenty-nine-a and twenty-nine-b of this code.
     (e) The advisory council is comprised of the following governmental officials: The Secretary of the Department of Health and Human Resources, or his or her designee, the Director of the Public Employees Insurance Agency, or his or her designee, the Commissioner of the Office of the Insurance Commissioner, or his or her designee, the Chair of the West Virginia Health Care Authority, or his or her designee and the Director of the West Virginia Children's Health Insurance Program or his or her designee. The council shall also consist of the following public members: One public member shall represent an organization of senior citizens with at least ten thousand members within the state, one public member shall represent the West Virginia Academy of Family Physicians, one public member shall represent the West Virginia Chamber of Commerce, one public member shall represent the largest education employee organization in the state, one public member shall represent the largest labor organization in the state, one public interest organization that represents the interests of consumers, one public member shall represent West Virginia Hospital Association, one public member shall represent the West Virginia Medical Association, one public member shall represent the West Virginia Nurse's Association and two ex officio nonvoting members shall be the Speaker of the House, or his or her designee, and the President of the Senate, or his or her designee.
     (f) Public members shall be appointed by the Governor with advice and consent of the Senate. Each public member shall serve for a term of four years. Of the public members of the advisory council first appointed, one shall be appointed for a term ending June 30, 2010, and two each for terms of three and four years. The remainder shall be appointed for the full four-year terms as provided in this section. Each public member serves until his or her successor is appointed and has qualified. The Director of the Governor's Office of Health Enhancement and Lifestyle Planning shall serve as chairperson of the advisory council.
     (g) Advisory council members may not be compensated in their capacity as members but shall be reimbursed for reasonable expenses incurred in the performance of their duties.
     (h) The advisory council shall meet within the state at such times as the chair may decide, but at least once annually. The advisory council shall also meet upon a call of seven or more members upon seventy-two hours' written notice to each member.
     (i) Seven members of the advisory council are a quorum for the transaction of any business.
     (j) A majority vote of the members present is required for any final determination by the advisory council. Voting by proxy is not allowed.
     (k) The advisory council shall keep a complete and accurate record of all its meetings according to section five, article nine-a, chapter six of this code.
     (l) Notwithstanding the provisions of section four, article six, chapter six of this code, the Governor may remove any advisory council member for incompetence, misconduct, gross immorality, misfeasance, malfeasance or nonfeasance in office.
     (m) The advisory council has general responsibility to review and provide advice and comment to the Governor's Office of Health Enhancement and Lifestyle Planning on its policies and procedures relating to the delivery of health care services or the purchase of prescription drugs. The advisory council shall offer advice to the director on matters over which the office has authority and oversight. This includes, but is not limited to:
     (1) Hiring of professional, clerical, technical and administrative personnel as may be necessary to carry out the provisions of this article;
     (2) Contracts or agreements;
     (3) Rule-making authority; and
     (4) Development of policy necessary to meet the duties and responsibilities of the Governor's Office of Health Enhancement and Lifestyle Planning pursuant to the provisions of this article.
§16-29H-6. Development of a strategic plan.
     The director shall develop a five-year strategic plan for implementation of any and all health care system reform initiatives. These initiatives shall be included, but are not limited to:
     (1) Development of pilot projects for patient-centered medical homes as set forth in section nine of this chapter;
     (2) Prioritization of chronic conditions to be targeted for purposes of resource allocation and for greater chronic care management. This should include pilot projects for community-based health teams for the development of care plans for healthy children and adults to maintain good health and for at-risk populations to prevent development of preventable chronic diseases;
     (3) Development of standardized prior authorization requirements and processes from insurers;
     (4) Coordination with the State Board of Education as set forth in article two, chapter eighteen of this code to provide for:
     (i) The preservation and allocation of recess time away from instruction and separate from physical education classes in the state schools;
     (ii) Continuing education for school food personnel and a career hierarchy for food personnel that offers rewards for continuing education hours and credits;
     (iii) School-based physical education coordinators; and
     (iv) Placement of a dietician in each regional education service area throughout the state;
     (5) Implementation of school-based initiatives to achieve greater dietary consistency in West Virginia's school system and to gain greater physical fitness from students;
     (6) Development of community-based projects designed for the construction, development and maintenance of bicycle and pedestrian trails and sidewalks;
     (7) Development and implementation of universal wellness and health promotion benefits;
     (8) Continued promotion and support for efforts to decrease the number of West Virginians using tobacco products;
     (9) Any necessary changes that will increase small businesses who offer available health insurance as a benefit of employment;
     (10) Development of goals to further improve health care delivery in West Virginia. This should include a means to evaluate progress toward achieving these goals in a simple and timely manner;
     (11) Measurement of progress of health care providers and physicians to the adoption and use of electronic medical records in their offices;
     (12) Collaboration on health information technology with the West Virginia Health Information Network, the Bureau of Medical Services and other appropriate entities which shall include:
     (i) Working through the West Virginia Health Information Network, the Bureau of Medical Services and other appropriate entities to develop a collaborative approach for health information exchange;
     (ii) Facilitating and encouraging of ongoing projects such as electronic medical record resources in community health clinics;
     (iii) Encouragement of continued development of hospital systems and deployment of hospital-supported electronic medical records when available for hospital-based, hospital-employed and nonhospital-employed physicians;
     (iv) Development of strategies to implement tax incentives, vendor discounts, enhanced reimbursement and other means to individual physician offices and clinics to encourage greater adoption and use of electronic medical records;
     (v) Development of recommended electronic medical record best practices utilizing the Certification Commission for Healthcare Information Technology as the minimum standard;
     (vi) Development of funding mechanisms that provide initial start up funds and a mechanism for sustainability of electronic medical records; and
     (vii) Exploration of federal funding to ensure the most efficient and cost effective means of meeting the state's health information technology objectives.
§16-29H-7. Coordination with higher education.
     The director shall consult with all the colleges and universities in the state, both public and private, with the state's three medical schools with community and technical colleges and with the Higher Education Policy Commission. The purpose of this collaboration would be:
     (1) The development of curricula focused on a chronic care model to reflect the multidisciplinary team approach to the delivery of health care services in West Virginia as contemplated by the development of a patient-centered medical home as that term is defined in article nine of this chapter; and
     (2) The development of technology-centered jobs that would further the state's efforts in moving toward the broader use of electronic health records.
§16-29H-8. Continuing efforts to reduce prescription drug prices.
     (a) The rule-making authority previously granted to the Pharmaceutical Cost Management Council in article three-c, chapter five-a of this code to require the reporting of pharmaceutical advertising costs is here transferred to the Governor's Office of Health Enhancement and Lifestyle Planning.
     (b) Advertising costs for prescription drugs, based on aggregate national data, shall be reported to the Governor's Office of Health Enhancement and Lifestyle Planning by all manufacturers and labelers of prescription drugs dispensed in this state that employs, directs or utilizes marketing representatives. The reporting shall assist this state in its role as a purchaser of prescription drugs and an administrator of prescription drug programs, enabling this state to determine the scope of prescription drug advertising costs and their effect on the cost, utilization and delivery of health care services and furthering the role of this state as guardian of the public interest.
     (c) The Governor's Office of Health Enhancement and Lifestyle Planning shall establish by legislative rule pursuant to the provisions of article three, chapter twenty-nine-a of this code the reporting requirements of information by labelers and manufacturers which shall include all national aggregate expenses associated with advertising and direct promotion of prescription drugs through radio, television, magazines, newspapers, direct mail and telephone communications as they pertain to residents of this state.
     (d) The following are exempt from disclosure requirements:
     (1) All free samples of prescription drugs intended to be distributed to patients;
     (2) All marketing items of a value less than $100;
     (3) All payments of reasonable compensation and reimbursement of expenses in connection with a bona fide clinical trial. As used in this subdivision, "clinical trial" means an approved clinical trial conducted in connection with a research study designed to answer specific questions about vaccines, new therapies or new ways of using known treatments;
     (4) All scholarship or other support for medical students, residents and fellows to attend significant educational, scientific or policy making conference of national, regional or specialty medical or other professional association if the recipient of the scholarship or other support is selected by the association; and
     (5) Any data that identifies specific prescription drugs or pharmaceuticals by individual name, any group of individuals or specific individual by name and any specific physician or pharmacy or group of physicians or pharmacies by name.
     (e) The Governor's Office of Health Enhancement and Lifestyle Planning is authorized to revise existing rules that establish time lines, the documentation, form and manner of reporting required as he or she, with advice of the advisory council, and determine necessary changes to effectuate the purpose of this article. The director shall include in his or her annual report to the Legislature, in an aggregate form, the information provided in the required reporting.
     (f) Notwithstanding any provision of law to the contrary, information submitted to the director pursuant to this section is confidential and is not a public record and is not available for release pursuant to the West Virginia Freedom of Information Act codified in article one, chapter twenty-nine-b of this code. Data compiled in aggregate form by the director for the purposes of reporting required by this section is a public record as defined in the West Virginia Freedom of Information Act as long as it does not reveal trade information that is protected by state or federal law or specific prescription drugs or pharmaceuticals by individual name, any group of individuals or specific individual by name and any specific physician or pharmacy or group of physicians or pharmacies by name.
     (g) The director is authorized to consider strategies by which West Virginia may manage the increasing costs of prescriptions drugs and increase access to prescription drugs for all of the state's residents, including the authority to:
     (1) Explore discount prices or rebate programs for senior and person's without drug coverage;
     (2) Explore and if in the best interest of the state and financially feasible, a counter-detailing program aimed at education health care practitioners about the relative costs and benefits of various prescription drugs with an emphasis on generic drugs;
     (3) Explore purchasing agreements with public or private sector entities that could be beneficial in the cost pf pharmaceuticals; and
     (4) Explore other strategies, as permitted under state and federal law, aimed at managing escalating prescription drug cost and increasing access for citizens of the state and develop necessary legislation to implement such strategies.
§16-29H-9. Patient-centered medical homes.
     (a) Legislative findings. --
     The Legislature finds that:
     (1) There is a need in the state to transform the health care services delivery model toward primary prevention and more proactive care management through the development of patient-centered medical homes;
     (2) The concept of a patient-centered medical home would promote a partnership between the individual patient, the patients' various health care providers, the patients' family and, if necessary, the community. It integrates the patient as an active participant in their own health and well-being;
     (3) The patient-centered medical home provides care through a multidisciplinary health team consisting of physicians, nurse practitioners, nurses, physicians assistants, behavioral health providers, pharmacists, social workers, physical therapists, dental and eye care providers and dieticians to meet the health care needs of a patient in all aspects of preventative, acute, chronic and end of life care using evidence-based medicine and technology;
     (4) In a patient-centered medical home each patient has an ongoing relationship with a personal physician. The physician would lead a team of health care providers who take responsibility for the care of the patient or for arranging care with other qualified professionals;
     (5) Transitioning health care delivery services to a patient-centered medical home would provide greater quality of care, increase patient safety and ensure greater access to health care;
     (6) Currently there are medical home pilot projects underway at the Bureau for Medical Services and the Public Employees Insurance Agency that should be reviewed and evaluated for efficiency and a means to expand these to greater segments of the state's population, most importantly the uninsured.
     (b) The patient-centered medical home is a health care setting that facilitates partnerships between individual patients and their personal physicians and, when appropriate, the patients' families and communities. A patient-centered medical home integrates patients as active participants in their own health and well being. Patients are cared for by a physician or physician practice that leads a multidisciplinary health team, which may include, but is not limited to, nurse practitioners, nurses, physician's assistants, behavioral health providers, pharmacists, social workers, physical therapists, dental and eye care providers and dieticians to meet the needs of the patient in all aspects of preventive, acute, chronic care and end of life care using evidence-based medicine and technology. At the point in time that the Center for Medicare and Medicaid Services includes the nurse practitioner as a leader of the multidisciplinary health team, this state will automatically implement this change.
     (c) The Governor's Office of Health Enhancement and Lifestyle Planning shall consult with the Bureau for Medical Services and the Public Employees Insurance Agency on current medical home pilot projects which they are operating for their membership population. The director shall evaluate these programs in consultation with the Commissioner of the Bureau for Medical Services and the Director of the Public Employees Insurance Agency for a means to expand these beyond the populations currently being served by these pilots. Once data is available on these pilots that can be reviewed for planning purposes, the director shall utilize this as a means to develop and implement additional patient-centered medical home pilot programs beyond the limited populations served by the Bureau for Medical Services and the Public Employees Insurance Agency. The director shall develop four varying types of patient-centered medical home pilots based upon experience gained from the projects currently in operation at the Bureau for Medical Services and the Public Employees Insurance Agency. These patient-centered medical homes shall be based upon the individual practices of physicians.
     (d) The four types of pilot programs shall be:
     (1) Chronic Care Model Pilots. -- This model shall focus on smaller physician practices. Primary care providers shall work with payers and providers to identify various disease states. Through the collaborative effort of the primary care provider and the payers and providers, programs shall be developed to improve management of agreed upon conditions of the patient. Through this model, the primary care provider may utilize current practices of multipayer workgroups. These groups shall be comprised of the medical directors of the major health care payers and the state payers along with medical providers and others.
     (2) Individual Medical Homes Pilots. -- These pilots shall focus on larger physician practices. They shall seek certification from the National Committee on Quality Assurance. That initial certification will be Level I certification. This would be granted by virtue of certifying the provider is in the process of attainting certification and currently have met provisional standards as set by the National Committee on Quality Assurance. This provisional certification lasts only one year with no renewal.
     (3) Community-Centered Medical Home Pilots. -- This approach shall link primary care practices with community health teams which would grow out of the current structure in place for federally qualified health centers. The community health teams shall include social and mental health workers, nurse practitioners, care coordinators and community health workers. These personnel largely exist in community hospitals, home health agencies and other settings. These pilots shall identify these resources as a separate team to collaborate with the primary care practices. The teams would focus on primary prevention such as smoking cessation programs and wellness interventions as well as working with the primary care practices to manage patients with multiple chronic conditions. Within this pilot, all health care agencies are connected and share resources. Citizens can enter the system of care from any point and receive the most appropriate level of care or be directed to the most appropriate care. Any financial incentives in this model would involve all health care payers and could be used to encourage collaboration between primary care practices and the community health teams.
     (4) Medical Homes for the Uninsured Pilots. -- These pilots shall focus on medical homes to serve the uninsured. They shall include various means of providing care to the uninsured with primary and preventative care. Through this mechanism, a variety of pilots may be developed that shall include screening, treatment of chronic disease and other aspects of primary care and prevention services. The pilots will be chosen based on their design meeting the requirements of this subsection and the resources available to provide these services.
     (e) The Governor's Office of Health Enhancement and Lifestyle Planning may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code if they deem them necessary to implement this section.
     (1) The Governor's Office of Health Enhancement and Lifestyle Planning shall establish, by guidelines, criteria to evaluate the pilot program and may require participating providers to submit such data and other information related to the pilot program as may be required by the Governor's Office of Health Enhancement and Lifestyle Planning. For purposes of this article, this information shall be exempt from disclosure under the Freedom of Information Act in article one, chapter twenty-nine-b of this code.
     (2) No later than December 1, 2009, and annually thereafter, during the operation of the pilot program, the Governor's Office of Health Enhancement and Lifestyle Planning must submit a report to the Legislative Oversight Commission of Health and Human Resources Accountability as established in article twenty-nine-e of this chapter on progress made by the pilot project, including suggested legislation, necessary changes to the pilot program and suggested expansion of the pilot program.
§16-29H-10. Exemption from Purchasing Division requirements.
     The provisions of article three, chapter five-a of this code do not apply to the agreements and contracts executed under the provisions of this article, except that the contracts and agreements shall be approved as to form and conformity with applicable law by the Attorney General.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 414--A Bill to repeal §5-16-7b of the Code of West Virginia, 1931, as amended; to repeal §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17 of said code; to amend and reenact §5F-2-2 of said code; to amend and reenact §16-29H-1, §16-29H-2, §16-29H-3, §16-29H-4 and §16-29H-5 of said code; and to amend said code by adding thereto five new sections, designated §16-29H-6, §16-29H-7, §16-29H-8, §16- 29H-9 and §16-29H-10, all relating generally to the creation of the Governor's Office of Health Enhancement and Lifestyle Planning; setting forth legislative findings; setting forth the powers and duties of the office; transferring the powers and duties of the Pharmaceutical Cost Management Council to the office; creating the position of director; setting forth the qualifications of the director; setting forth the powers and duties of the director; providing for staff; requiring the development of a five-year strategic plan; providing for legislative rule-making authority; providing for coordination with various state agencies, departments, boards, bureaus and commissions; requiring reporting to the Governor and the Legislature; establishing pilot projects for patient-centered medical homes; setting forth legislative findings; defining terms; evaluating existing medical home pilot programs; establishing criteria for pilot projects for patient- centered medical homes; defining four types of pilot projects; setting forth evaluation criteria; granting rule-making authority; and exempting from Purchasing division requirements.
     On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 414) 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 with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 498, Relating to early childhood education.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting clause and inserting in lieu thereof the following:
     That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §49-2E-1, §49-2E-2, §49-2E-3 and §49-2E-4, all to read as follows:
ARTICLE 2E. QUALITY RATING AND IMPROVEMENT SYSTEM.
§49-2E-1. Findings and intent; advisory council.
     (a) The Legislature finds that:
     (1) High quality early childhood development substantially improves the intellectual and social potential of children and reduces societal costs;
     (2) A child care program quality rating and improvement system provides incentives and resources to improve the quality child care programs; and
     (3) A child care program quality rating and improvement system provides information about the quality of child care programs to parents so they may make more informed decisions about the placement of their children.
     (b) It is the intent of the Legislature to:
     (1) Require the Secretary of the Department of Health and Human Resources promulgate a legislative rule and establish a plan for the phased implementation of a child care program quality rating and improvement system not inconsistent with the provisions of this article.
     (c) The Secretary of the Department of Health and Human Resources shall create a quality rating and improvement system advisory council to provide advice on the development of the rule and plan for the phased implementation of a child care program quality rating and improvement system and the on-going program review and policies for quality improvement. The secretary shall facilitate meetings of the advisory council. The advisory council shall include representatives from the provider community, advocacy groups, the Legislature, providers of professional development services for the early childhood community, regulatory agencies and others who may be impacted by the creation of a quality rating and improvement system.
     (d) Nothing in this article requires an appropriation, or any specific level of appropriation, by the Legislature.
§49-2E-2. Creation of statewide quality rating system; legislative rule required; minimum provisions.

     (a) 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 implement a quality rating and improvement system. The quality rating and improvement system shall be applicable to licensed child care centers and facilities and registered family child care homes. If other types of child care settings such as school-age child care programs become licensed after the implementation of a statewide quality rating and improvement system, the secretary may develop quality criteria and incentives that will allow the other types of child care settings to participate in the quality rating and improvement system. The rules shall include, but are not limited to, the following:
     (1) A four star rating system for registered family child care homes and a four star rating system for all licensed programs, including family child care facilities and child care centers, to easily communicate to consumers four progressively higher levels of quality child care. One star indicating meeting the minimum acceptable standard and four stars indicating meeting or exceeding the highest standard. The system shall reflect the cumulative attainment of the standards at each level and all lesser levels. Any program accredited by the National Association for the Education of Young Children or the National Association for Family Child Care, as applicable, on the date of implementation of the rating shall automatically be awarded four star status until its next re-accreditation visit. Thereafter, the standards set forth in the rule required by this section must be met notwithstanding national accreditation;
     (2) Program standards for registered family child care homes and program standards for all licensed programs, including family child care facilities and child care centers, that are each divided into four levels of attributes that progressively improve the quality of childcare beginning with basic state registration and licensing requirements at level one, through achievement of a national accreditation by the appropriate organization and other standards as set forth in the rule at the fourth level. Participation beyond the first level is voluntary. The program standards shall be categorized using the West Virginia State Training and Registry System Core Knowledge Areas or its equivalent;
     (3) Accountability measures that provide for a fair, valid, accurate and reliable assessment of compliance with quality standards, including, but not limited to:
     (A) Evaluations conducted by trained evaluators with appropriate early childhood education and training on the selected assessment tool and with a demonstrated inter-rater reliability of eighty-five percent or higher. The evaluations shall include an on-site inspection conducted at least annually to determine whether programs are rated correctly and continue to meet the appropriate standards. The evaluations and observations shall be conducted on at least a statistically valid percentage of center classrooms, with a minimum of one class per age group;
     (B) The use of valid and reliable observation and assessment tools, such as environmental rating scales for early childhood, infant and toddler, school-age care and family child care as appropriate for the particular setting and age group;
     (C) An annual self-assessment using the proper observation and assessment tool for programs rated at two stars; and
     (D) Model program improvement planning shall be designed to help programs improve their evaluation results and level of program quality.
     (b) The rules required pursuant to this section shall include policies relating to the review, reduction, suspension or disqualification of child care programs from the quality rating and improvement system.
     (c) The rules shall provide for implementation of the statewide quality rating system effective July 1, 2011, subject to section four of this article.
§49-2E-3. Creation of statewide quality improvement system; financial plan to support implementation and quality improvement required as part of rules.

     (a) Attached to the proposed rules required in section two of this article, the Secretary of the Department of Health and Human Resources shall submit a financial plan to support the implementation of a statewide quality rating and improvement system and help promote quality improvement. The financial plan shall be considered a part of the rule and shall include specific proposals for implementation of the provisions of this section as determined by the Secretary. The plan shall address, but is not limited to, the following:
     (1) State agency staffing requirements, including, but not limited to:
     (A) Highly trained evaluators to monitor the assessment process and ensure inter-rater reliability of eighty-five percent or higher;
     (B) Technical assistance staff responsible for career advising, accreditation support services, improvement planning, portfolio development and evaluations for improvement planning only. The goal for technical assistance staffing is to ensure that individualized technical assistance is available to participating programs;
     (C) A person within the department to collaborate with other professional development providers to maximize funding for training, scholarships and professional development. The person filling this position also shall encourage community and technical colleges to provide courses through nontraditional means such as online training, evening classes and off-campus training;
     (D) Additional infant and toddler specialists to provide high level professional development for staff caring for infants and to provide on-site assistance with infant and toddler issues;
     (E) At least one additional training specialist at each of the child care resource and referral agencies to support new training topics and to provide training for school-age child care programs. Training providers such as the child care resource and referral agencies shall purchase new training programs on topics such as business management, the Devereux Resiliency Training and Mind in the Making; and
     (F) Additional staff necessary for program administration;
     (2) Implementation of a broad public awareness campaign and communication strategies that may include, but are not limited to:
     (A) Brochures, internet sites, posters, banners, certificates, decals and pins to educate parents; and
     (B) Strategies such as earned media campaigns, paid advertising campaigns, e-mail and internet-based outreach, face-to-face communication with key civic groups and grassroots organizing techniques; and
     (3) Implementation of an internet-based management information system that meets the following requirements:
     (A) The system shall allow for multiple agencies to access and input data;
     (B) The system shall provide the data necessary to determine if the quality enhancements result in improved care and better outcomes for children;
     (C) The system shall allow access by Department of Health and Human Resources subsidy and licensing staff, child care resource and referral agencies, the agencies that provide training and scholarships, evaluators and the child care programs;
     (D) The system shall include different security levels in order to comply with the numerous confidentiality requirements;
     (E) The system shall assist in informing practice; determining training needs; and tracking changes in availability of care, cost of care, changes in wages and education levels; and
     (F) The system shall provide accountability for child care programs and recipients and assure funds are being used effectively;
     (4) Financial assistance for child care programs needed to improve learning environments, attain high ratings and sustain long-term quality without passing additional costs on to families that may include, but are not limited to:
     (A) Assistance to programs in assessment and individual program improvement planning and providing the necessary information, coaching and resources to assist programs to increase their level of quality;
     (B) Subsidizing participating programs for providing child care services to children of low-income families in accordance with the following:
     (i) Base payment rates shall be established at the seventy- fifth percentile of market rate; and
     (ii) A system of tiered reimbursement shall be established which increases the payment rates by a certain amount above the base payment rates in accordance with the rating tier of the child care program;
     (C) Grants for helping with the cost of national accreditation shall be awarded to child care centers on an equitable basis. The amount of the grants shall be based on the amount of funding available. Two types of grants shall be awarded to child care programs in accordance with the following:
     (i) An incentive grant shall be awarded based on the type of child care program and the level at which the child care program is rated with the types of child care programs having more children; and
     (ii) Child care programs rated at higher tiers being awarded a larger grant than the types of child care programs having less children and child care programs rated at lower tiers;
     (5) Support for increased salaries and benefits for program staff to increase educational levels essential to improving the quality of care that may include, but are not limited to:
     (A) Wage supports and benefits provided as an incentive to increase child care programs ratings and as an incentive to increase staff qualifications in accordance with the following:
     (i) The cost of salary supplements shall be phased in over a five-year period;
     (ii) The Secretary of the Department of Health and Human Resources shall establish a salary scale for each of the top three rating tiers that varies the salary support based on the education of the care giver and the rating tier of the program; and
     (iii) Any center with at least a tier two rating that employs at least one staff person participating in the scholarship program required pursuant to paragraph (B) of this subsection or employs degree staff may apply to the Secretary of the Department of Health and Human Resources for funding to provide health care benefits based on the Teacher Education and Compensation Helps model in which insurance costs are shared among the employees, the employer and the state; and
     (B) The provision of scholarships and establishment of professional development plans for center staff that would promote increasing the credentials of center staff over a five-year period; and
     (6) Financial assistance to the child care consumers whose income is at two hundred percent of the federal poverty level or under to help them afford the increased market price of child care resulting from increased quality.
§49-2E-4. Quality rating and improvement system pilot projects; independent third party evaluation; modification of proposed rule and financial plan; report to Legislature; limitations on implementation.

     (a) The Secretary of the Department of Health and Human Resources may promulgate emergency rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement a quality rating and improvement system in up to five counties as pilot projects beginning July 1, 2009. The pilot quality rating and improvement systems shall be in accordance with the provisions of this article for the statewide system and in accordance with the policies and procedures proposed by the Partners Implementing an Early Care and Education System Advisory Council report on Building a Child Care Quality Rating and Improvement System for West Virginia to the extent those policies and procedures are not in conflict with this article. The purpose of the pilot projects is to test the rating system, assess the quality of existing child care providers, provide a basis for estimating the financial requirements of the various elements of a statewide system as set forth in this article and to inform future policy decisions. Notwithstanding any provision of this article to the contrary, the rating or potential rating of a child care provider participating in the study may not be individually disclosed. The secretary may modify and develop additional policies consistent with this article as appropriate.
     (c) The Secretary shall contract with an independent third party evaluator to assist the department and the quality rating and improvement system advisory council with establishing and evaluating the pilot project quality rating and improvement system and conducting research on statewide implementation. The Secretary also may contract with the evaluator for on-going evaluation and research for quality improvement. The evaluator shall have access to all project data including data in the management information system provided for in section two of this article.
     (d) The Secretary shall report annually to the Legislature on the progress on development and implementation of a child care quality rating and improvement system and its impact on improving the quality of childcare in the state. The Secretary may propose amendments to the rules and financial plan necessary to promote implementation of the quality rating and improvement system and improve the quality of childcare and may recommend needed legislation. Nothing in this article requires the implementation of a quality rating and improvement system unless funds are appropriated therefore. The Secretary may prioritize the components of the financial plan for implementation and quality improvement for funding purposes. If insufficient funds are appropriated for full implementation of the quality rating and improvement system beginning on July 1, 2011, the rules shall provide for gradual implementation over a period of several years.
     (e) The Legislature recognizes that expenditures, especially one time types of expenditures or expenditures of a limited duration, may be funded with moneys derived through the American Recovery and Reinvestment Act of 2009. A study of the cost of implementing a quality rating and improvement system statewide is expected to be conducted over the next two years.
     (f) To accommodate its ongoing role and responsibility in advising both the Secretary of the Department of Health and Human Resources and the State Superintendent, the PIECES advisory group will evaluate and update its current roles and responsibilities, as well as update its current membership to reflect an equitable and proportionate level of representation. PIECES, with the guidance of the State Superintendent and the Secretary, will establish by- laws for workgroups and processes for recommendations and reports to be made to the superintendent and secretary concerning early care and education in West Virginia. The superintendent and secretary, with advisement from the West Virginia Head Start Collaboration Office, will recommend a tri-chair management structure comprised of designees of Head Start, the department of education and the department of health and human resources that allows for shared agenda development and rotating operational responsibilities on an annual basis.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 498--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §49-2E-1, §49-2E-2, §49-2E-3 and §49-2E-4, all relating to quality rating and improvement system applicable to certain child care providers; findings and intent; Secretary of Department of Health and Human Resources rules; quality rating and improvement system advisory council; statewide quality rating system rules; statewide implementation; system components; review, reduction, suspension or disqualification; statewide quality improvement system; financial plan for implementation and quality improvement; plan components; pilot projects; third party evaluator; reports to Legislature; gradual implementation; conditioning requirements on legislative appropriation; prioritization of components for funding; and PIECES advisory council.
     On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 498) 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 that that body had refused to recede from its amendments, and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
     Eng. Senate Bill No. 767, Relating to certain Medicaid program contracts.
     The message further announced the appointment of the following conferees on the part of the House of Delegates:
     Delegates Morgan, Perdue and C. Miller.
     On motion of Senator Chafin, the Senate agreed to the appointment of a conference committee on the bill.
     Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
     Senators Snyder, Minard and Sypolt.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
     Eng. House Bill No. 2801, Updating language and making technical changes and clarifications of the West Virginia Board of Medicine.
     On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
     Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
     Senators Foster, Stollings and Sypolt.
     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 that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
     Eng. Com. Sub. for House Bill No. 2832, Relating to critical skills evaluations for students in grades three and eight.
     On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses.
     Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
     Senators Oliverio, Browning, Edgell, Guills and Barnes.
     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 that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
     Eng. Com. Sub. for House Bill No. 2961, Adding two members to the institutional boards of governors of West Virginia University and Marshall University based upon race, gender and ethnicity.
     On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses.
     Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
     Senators Plymale, Wells, Oliverio, Green and Guills.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     On motion of Senator Chafin, the Senate recessed until 5 p.m. today.
     Upon expiration of the recess, the Senate reconvened and proceeded to the fifth order of business.
Filed Conference Committee Reports

     The Clerk announced the following conference committee report had been filed at 5:47 p.m. today:
     Eng. Com. Sub. for House Bill No. 2877, Increasing the monetary penalties, removing the possibility of incarceration and adding community service for a minor who misrepresents his or her age when purchasing alcohol.
     Without objection, the Senate returned to the third order of business.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, 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. 246, Relating to unemployment compensation generally.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §21A-1-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §21A-1A-5, §21A-1A-6, §21A-1A-7 and §21A-1A-28 of said code be amended and reenacted; that §21A-6-1, §21A-6-3 and §21A-6-10 of said code be amended and reenacted; and that §23-2C-3 of said code be amended and reenacted, all to read as follows:

CHAPTER 21A. UNEMPLOYMENT COMPENSATION.

ARTICLE 1. UNEMPLOYMENT COMPENSATION.

§21A-1-4. Workforce West Virginia created; divisions within Workforce West Virginia created; certain terms defined; employer violator system.

     (a) There is continued an agency designated Workforce West Virginia, composed of:
     (1) Division of Unemployment Compensation;
     (2) Division of Employment Service;
     (3) Division of Workforce Development;
     (4) Division of Research, Information and Analysis; and
     (5) Any other divisions or units that the executive director determines are necessary.
     (b) Wherever within this chapter the term "department", "bureau" or "fund" is used, it shall be taken to mean Workforce West Virginia unless otherwise indicated. Any reference in this code to the Bureau of Employment Programs means Workforce West Virginia. Any reference in this code to the Commissioner of the Bureau of Employment Programs or Employment Security means the Executive Director of Workforce West Virginia.
     (c) Workforce West Virginia shall be administered pursuant to subsection (b), section one, article two, chapter five-f of this code.
     (d) The Executive Director of Workforce West Virginia shall establish an employer violator system to identify individuals and employers who are in default on any assessment, surcharge, tax or penalty owed to the fund. The employer violator system shall prohibit violators who own, control or have a ten percent or more ownership interest, or other ownership interest as may be defined by the executive director, in any company from obtaining or maintaining any license, certificate or permit issued by the state until the violator has paid all moneys owed to the fund or has entered into and remains in compliance with a repayment agreement. The employer violator system shall work cooperatively with all state agencies to maintain an accurate, up-to-date list of violators which shall be available in electronic format and online for agencies and the public. Before an employer is added to the violator list, he or she shall be given notice and an opportunity for an expedited administrative hearing. The executive director shall propose for promulgation emergency and legislative rules to effectuate this subsection.
ARTICLE 1A. DEFINITIONS.
§21A-1A-5. Base period; alternative base period.
     
(a) "Base period" means the first four out of the last five completed calendar quarters immediately preceding the first day of the individual's benefit year.
     (b) "Alternative base period" means the last four completed calendar quarters immediately preceding the first day of the individual's benefit year.
§21A-1A-6. Base period employer; alternative base period employer.
     "Base period employer" means and "alternative base period employer" mean any employer who in the base period or alternative base period for any benefit year paid wages to an individual who filed claim for unemployment compensation within such benefit year.
§21A-1A-7. Base period wages; alternative base period wages.

     "Base period wages" means and "alternative base period wages" mean wages paid to an individual during the base period or alternative base period by all the individual's base period or alternative base period employers.
§21A-1A-28. Wages; average annual wage; threshold wage.
     (a) "Wages" means all remuneration for personal service, including commissions, gratuities customarily received by an individual in the course of employment from persons other than the employing unit, as long as such gratuities equal or exceed an amount of not less than $20 each month and which are required to be reported to the employer by the employee, bonuses and the cash value of all remuneration in any medium other than cash except for agricultural labor and domestic service. The term "wages" includes remuneration for service rendered to the state as a member of the state National Guard or Air National Guard only when serving on a temporary basis pursuant to a call made by the Governor under sections one and two, article one-d, chapter fifteen of this code.
     (b) The term "wages" does not include:
     (1) That part of the remuneration which, after remuneration equal to $8,000 or, after the amendment and reenactment of this section during the 2009 legislative session, the threshold wage is paid during a calendar year to an individual by an employer or his or her predecessor with respect to employment during any calendar year, is paid to such individual by such employer during such calendar year unless that part of the remuneration is subject to a tax under a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. For the purposes of this section, the term "employment" includes service constituting employment under any unemployment compensation law of another state; or which as a condition for full tax credit against the tax imposed by the federal Unemployment Tax Act is required to be covered under this chapter; and, except that for the purposes of sections one, ten, eleven and thirteen, article six of this chapter, all remuneration earned by an individual in employment shall be credited to the individual and included in his or her computation of base period wages: Provided, That the remuneration paid to an individual by an employer with respect to employment in another state or other states upon which contributions were required of and paid by such employer under an unemployment compensation law of such other state or states shall be included as a part of the remuneration equal to the amounts of $8,000 or, after the amendment and reenactment of this section during the 2009 legislative session, the threshold wage herein referred to. In applying such limitation on the amount of remuneration that is taxable, an employer shall be accorded the benefit of all or any portion of such amount which may have been paid by its predecessor or predecessors: Provided, however, That if the definition of the term "wages" as contained in Section 3306(b) of the Internal Revenue Code of 1954, as amended, is amended to include remuneration in excess of $8,000 or, after the amendment and reenactment of this section during the 2009 legislative session, the threshold wage paid to an individual by an employer under the federal Unemployment Tax Act during any calendar year, wages for the purposes of this definition shall include remuneration paid in a calendar year to an individual by an employer subject to this chapter or his or her predecessor with respect to employment during any calendar year up to an amount equal to the amount of remuneration taxable under the federal Unemployment Tax Act;
     (2) The amount of any payment made (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment) to, or on behalf of, an individual in its employ or any of his or her dependents, under a plan or system established by an employer which makes provision for individuals in its employ generally (or for such individuals and their dependents), or for a class or classes of such individuals (or for a class or classes of such individuals and their dependents) on account of: (A) Retirement; or (B) sickness or accident disability payments made to an employee under an approved state workers' compensation law; or (C) medical or hospitalization expenses in connection with sickness or accident disability; or (D) death;
     (3) Any payment made by an employer to an individual in its employ (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment) on account of retirement;
     (4) Any payment made by an employer on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability to, or on behalf of, an individual in its employ after the expiration of six calendar months following the last calendar month in which such individual worked for such employer;
     (5) Any payment made by an employer to, or on behalf of, an individual in its employ or his or her beneficiary: (A) From or to a trust described in Section 401(a) which is exempt from tax under Section 501(a) of the federal Internal Revenue Code at the time of such payments unless such payment is made to such individual as an employee of the trust as remuneration for services rendered by such individual and not as a beneficiary of the trust; or (B) under or to an annuity plan which, at the time of such payment, is a plan described in Section 403(a) of the federal Internal Revenue Code;
     (6) The payment by an employer of the tax imposed upon an employer under Section 3101 of the federal Internal Revenue Code with respect to remuneration paid to an employee for domestic service in a private home or the employer of agricultural labor;
     (7) Remuneration paid by an employer in any medium other than cash to an individual in its employ for service not in the course of the employer's trade or business;
     (8) Any payment (other than vacation or sick pay) made by an employer to an individual in its employ after the month in which he or she attains the age of sixty-five, if he or she did not work for the employer in the period for which such payment is made;
     (9) Payments, not required under any contract of hire, made to an individual with respect to his or her period of training or service in the armed forces of the United States by an employer by which such individual was formerly employed; and
     (10) Vacation pay, severance pay or savings plans received by an individual before or after becoming totally or partially unemployed but earned prior to becoming totally or partially unemployed: Provided, That the term totally or partially unemployed does not include: (A) Employees who are on vacation by reason of the request of the employees or their duly authorized agent, for a vacation at a specific time, and which request by the employees or their agent is acceded to by their employer; (B) employees who are on vacation by reason of the employer's request provided they are so informed at least ninety days prior to such vacation; or (C) employees who are on vacation by reason of the employer's request where such vacation is in addition to the regular vacation and the employer compensates such employee at a rate equal to or exceeding their regular daily rate of pay during the vacation period.
     (c) The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with rules prescribed by the commissioner, except for remuneration other than cash for services performed in agricultural labor and domestic service.
_____(d) "Average annual wage" means the state's average annual wage which is computed on or before September 30 of the year immediately preceding the rate year and is the total remuneration paid by employers as reported on contribution reports on or before that date with respect to all employment during the four consecutive calendar quarters ending on June 30 of that year divided by the average monthly number of individuals performing services in employment during the same four calendar quarters as reported on the contribution reports.
_____
"Threshold wage" means the wage amount the employer pays unemployment taxes on for each person in his or her employ during a calendar year. On and after the effective date of the amendment and reenactment of this chapter by the Legislature in 2009, the threshold wage will be $12,000: Provided, That when the moneys in the unemployment fund reach $220 million on February 15 of any year, the threshold wage thereafter will be reduced to $9,000: Provided, however, That each year thereafter the threshold wage shall increase or decrease by the same percentage that the state's average wage increases or decreases.
ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.

§21A-6-1. Eligibility qualifications.

          An unemployed individual shall be eligible to receive benefits only if the commissioner finds that:
          (1) He or she has registered for work at and thereafter continues to report at an employment office in accordance with the regulations of the commissioner;
          (2) He or she
has made a claim for benefits in accordance with the provisions of article seven of this chapter and has furnished his or her Social Security number, or numbers if he or she has more than one such number;
          (3) He or she
is able to work and is available for full-time work for which he or she is fitted by prior training or experience and is doing that which a reasonably prudent person in his or her circumstances would do in seeking work;
          (4) He or she
has been totally or partially unemployed during his or her benefit year for a waiting period of one week prior to the week for which he or she claims benefits for total or partial unemployment;
          (5) He or she
has within his or her base period been paid wages for employment equal to not less than $2,200 and must have earned wages in more than one quarter of his or her base period or, if he or she is not eligible under his or her base period, has within his or her alternative base period been paid wages for employment equal to not less than $2,200 and must have earned wages in more than one quarter of his or her alternative base period; and
          (6) Beginning the first day of November, one thousand nine hundred ninety-four, He or she participates in reemployment services, such as job search assistance services, if the individual has been determined to be likely to exhaust regular benefits and needs reemployment services pursuant to a profiling system established by the commissioner, unless the commissioner determines that:
          (a) The individual has completed such services; or
          (b) There is justifiable cause for the claimant's failure to participate in such services.
§21A-6-3. Disqualification for benefits.
          Upon the determination of the facts by the commissioner, an individual shall be disqualified for benefits:
          (1) For the week in which he or she left his or her most recent work voluntarily without good cause involving fault on the part of the employer and until the individual returns to covered employment and has been employed in covered employment at least thirty working days.
          For the purpose of this subdivision, an individual shall not be deemed to have left his or her most recent work voluntarily without good cause involving fault on the part of the employer, if such individual leaves his or her most recent work with an employer and if he or she in fact, within a fourteen-day calendar period, does return to employment with the last preceding employer with whom he or she was previously employed within the past year prior to his or her return to workday, and which last preceding employer, after having previously employed such individual for thirty working days or more, laid off such individual because of lack of work, which layoff occasioned the payment of benefits under this chapter or could have occasioned the payment of benefits under this chapter had such individual applied for such benefits. It is the intent of this paragraph to cause no disqualification for benefits for such an individual who complies with the foregoing set of requirements and conditions. Further, for the purpose of this subdivision, an individual shall not be deemed to have left his or her most recent work voluntarily without good cause involving fault on the part of the employer, if such individual was compelled to leave his or her work for his or her own health-related reasons and notifies the employer prior to leaving the job or within two business days after leaving the job or as soon as practicable and presents written certification from a licensed physician within thirty days of leaving the job that his or her work aggravated, worsened or will worsen the individual's health problem.
          (2) For the week in which he or she was discharged from his or her most recent work for misconduct and the six weeks immediately following such week; or for the week in which he or she was discharged from his or her last thirty-day employing unit for misconduct and the six weeks immediately following such week. Such disqualification shall carry a reduction in the maximum benefit amount equal to six times the individual's weekly benefit. However, if the claimant returns to work in covered employment for thirty days during his or her benefit year, whether or not such days are consecutive, the maximum benefit amount shall be increased by the amount of the decrease imposed under the disqualification; except that:
          If he or she were discharged from his or her most recent work for one of the following reasons, or if he or she were discharged from his or her last thirty days employing unit for one of the following reasons: Misconduct Gross misconduct consisting of willful destruction of his or her employer's property; assault upon the person of his or her employer or any employee of his or her employer; if such assault is committed at such individual's place of employment or in the course of employment; reporting to work in an intoxicated condition, or being intoxicated while at work; reporting to work under the influence of any controlled substance, as defined in chapter sixty-a of this code without a valid prescription, or being under the influence of any controlled substance, as defined in chapter sixty-a of this code without a valid prescription, while at work; adulterating or otherwise manipulating a sample or specimen in order to thwart a drug or alcohol test lawfully required of an employee; refusal to submit to random testing for alcohol or illegal controlled substances for employees in safety sensitive positions as defined in section two, article one-d, chapter twenty-one of this code; arson, theft, larceny, fraud or embezzlement in connection with his or her work; or any other gross misconduct; he or she shall be and remain disqualified for benefits until he or she has thereafter worked for at least thirty days in covered employment: Provided, That for the purpose of this subdivision the words "any other gross misconduct" shall include, but not be limited to, any act or acts of misconduct where the individual has received prior written warning that termination of employment may result from such act or acts.
          (3) For the week in which he or she failed without good cause to apply for available, suitable work, accept suitable work when offered, or return to his or her customary self-employment when directed to do so by the commissioner, and for the four weeks which immediately follow for such additional period as any offer of suitable work shall continue open for his or her acceptance. Such disqualification shall carry a reduction in the maximum benefit amount equal to four times the individual's weekly benefit amount.
          (4) For a week in which his or her total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he or she was last employed, unless the commissioner is satisfied that he or she: (1) Was not participating, financing or directly interested in such dispute; and (2) did not belong to a grade or class of workers who were participating, financing or directly interested in the labor dispute which resulted in the stoppage of work. No disqualification under this subdivision shall be imposed if the employees are required to accept wages, hours or conditions of employment substantially less favorable than those prevailing for similar work in the locality, or if employees are denied the right of collective bargaining under generally prevailing conditions, or if an employer shuts down his or her plant or operation or dismisses his or her employees in order to force wage reduction, changes in hours or working conditions. For the purpose of this subdivision, if any stoppage of work continues longer than four weeks after the termination of the labor dispute which caused stoppage of work, there shall be a rebuttable presumption that part of the stoppage of work which exists after said a period of four weeks after the termination of said the labor dispute did not exist because of said the labor dispute; and in such that event the burden shall be upon the employer or other interested party to show otherwise.
          (5) For a week with respect to which he or she is receiving or has received:
          (a) Wages in lieu of notice;
          (b) Compensation for temporary total disability under the workers' compensation law of any state or under a similar law of the United States; or
          (c) Unemployment compensation benefits under the laws of the United States or any other state.
          (6) For the week in which an individual has voluntarily quit employment to marry or to perform any marital, parental or family duty, or to attend to his or her personal business or affairs and until the individual returns to covered employment and has been employed in covered employment at least thirty working days.
          (7) Benefits shall not be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sport seasons (or similar periods) if such individual performed such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the later of such seasons (or similar periods).
          (8) (a) Benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services or was permanently residing in the United States under color of law at the time such services were performed (including an alien who is lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7) or Section 212(d)(5) of the Immigration and Nationality Act): Provided, That any modifications to the provisions of Section 3304(a)(14) of the federal Unemployment Tax Act as provided by Public Law 94-566 which specify other conditions or other effective date than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under state law as a condition for full tax credit against the tax imposed by the federal Unemployment Tax Act shall be deemed applicable under the provisions of this section;
          (b) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits;
          (c) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his or her alien status shall be made except upon a preponderance of the evidence.
          (9) For each week in which an individual is unemployed because, having voluntarily left employment to attend a school, college, university or other educational institution, he or she is attending such school, college, university or other educational institution, or is awaiting entrance thereto or is awaiting the starting of a new term or session thereof, and until the individual returns to covered employment.
          (10) For each week in which he or she is unemployed because of his or her request, or that of his or her duly authorized agent, for a vacation period at a specified time that would leave the employer no other alternative but to suspend operations.
          (11) In the case of an individual who accepts an early retirement incentive package, unless he or she: (i) Establishes a well-grounded fear of imminent layoff supported by definitive objective facts involving fault on the part of the employer; and (ii) establishes that he or she would suffer a substantial loss by not accepting the early retirement incentive package.
__________
(12) For each week with respect to which he or she is receiving or has received benefits under Title II of the Social Security Act or similar payments under any act of Congress, and/ or remuneration in the form of an annuity, pension or other retirement pay from a base period and/or employer or chargeable employer or from any trust or fund contributed to by a base period and/or employer or chargeable employer or any combination of the above, the weekly benefit amount payable to such individual for such week shall be reduced (but not below zero) by the prorated weekly amount of said benefits, payments and/or remuneration: Provided, That if such amount of benefits is not a multiple of $1, it shall be computed to the next lowest multiple of $1: Provided, however, That there shall be no disqualification if in the individual's base period there are no wages which were paid by the base period and/or employer or chargeable employer paying such remuneration, or by a fund into which the employer has paid during said base period: Provided further, That notwithstanding any other provision of this subdivision to the contrary, the weekly benefit amount payable to such individual for such week shall not be reduced by any retirement benefits he or she is receiving or has received under Title II of the Social Security Act or similar payments under any act of Congress. Claimant may be required to certify as to whether or not he or she is receiving or has been receiving remuneration in the form of an annuity, pension or other retirement pay from a base period and/or employer or chargeable employer or from a trust fund contributed to by a base period and/or employer or chargeable employer.
          (12) (13) For each week in which and for fifty-two weeks thereafter, beginning with the date of the decision, if the commissioner finds such individual who within twenty-four calendar months immediately preceding such decision, has made a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or payment under this article: Provided, That disqualification under this subdivision shall not preclude prosecution under section seven, article ten of this chapter.
§21A-6-10. Benefit rate -- Total unemployment; annual computation and publication of rates.

  (a) Each eligible individual who is totally unemployed in any week shall be paid benefits with respect to that week at the weekly rate appearing in Column (C) in the benefit table in this section, on the line on which in Column (A) there is indicated the employee's wage class, except as otherwise provided under the term "total and partial unemployment" in section twenty-seven, article one-a of this chapter. The employee's wage class shall be determined by his or her base period wages as shown in Column (B) in the benefit table. The right of an employee to receive benefits shall not be prejudiced nor the amount thereof be diminished by reason of failure by an employer to pay either the wages earned by the employee or the contribution due on such wages. An individual who is totally unemployed but earns in excess of $60 as a result of odd job or subsidiary work, or is paid a bonus in any benefit week shall be paid benefits for such week in accordance with the provisions of this chapter pertaining to benefits for partial unemployment.
  (b) (1) The maximum benefit for each wage class shall be equal to twenty-six times the weekly benefit rate.
  (2) The maximum benefit rate shall be sixty-six and two-thirds percent of the average weekly wage in West Virginia.
  (c) On July 1 of each year, the commissioner shall determine the maximum weekly benefit rate upon the basis of the formula set forth above and shall establish wage classes as are required, increasing or decreasing the amount of the base period wages required for each wage class by $150, establishing the weekly benefit rate for each wage class by rounded dollar amount to be fifty-five percent of one fifty-second of the median dollar amount of wages in the base period for such wage class, and establishing the maximum benefit for each wage class as an amount equal to twenty-six times the weekly benefit rate: Provided, That the commissioner shall not increase or decrease the maximum weekly benefit rate for the period beginning on the effective date of the amendment and reenactment of this section in the regular session of the Legislature in 2009 until the threshold wage is reduced to $9,000, as required by subsection (d), section twenty-eight, article one-a of this chapter. The maximum weekly benefit rate, when computed by the commissioner, in accordance with the foregoing provisions, shall be rounded to the next lowest multiple of $1.
BENEFIT TABLE



A
Wage
Class


B
Wages in
Base Period



C
Weekly
Benefit
Rate
Maximum
Benefit in Benefit Year
for Total
and/or
Partial Un- employment
  Under   $2,200.00 Ineligible  
1 $2,200.00 - 2,349.99 24.00 $ 624.00
2 2,350.00 - 2,499.99 25.00 650.00
3 2,500.00 - 2,649.99 27.00 702.00
4 2,650.00 - 2,799.99 28.00 728.00
5 2,800.00 - 2,949.99 30.00 780.00
6 2,950.00 - 3,099.99 31.00 806.00
7 3,100.00 - 3,249.99 33.00 858.00
8 3,250.00 - 3,399.99 35.00 910.00
9 3,400.00 - 3,549.99 36.00 936.00
10 3,550.00 - 3,699.99 38.00 988.00
11 3,700.00 - 3,849.99 39.00 1,014.00
12 3,850.00 - 3,999.99 41.00 1,066.00
13 4,000.00 - 4,149.99 43.00 1,118.00
14 4,150.00 - 4,299.99 44.00 1,144.00
15 4,300.00 - 4,449.99 46.00 1,196.00
16 4,450.00 - 4,599.99 47.00 1,222.00
17 4,600.00 - 4,749.99 49.00 1,274.00
18 4,750.00 - 4,899.99 51.00 1,326.00
19 4,900.00 - 5,049.99 52.00 1,352.00
20 5,050.00 - 5,199.99 54.00 1,404.00
21 5,200.00 - 5,349.99 55.00 1,430.00
22 5,350.00 - 5,499.99 57.00 1,482.00
23 5,500.00 - 5,649.99 58.00 1,508.00
24 5,650.00 - 5,799.99 60.00 1,560.00
25 5,800.00 - 5,949.99 62.00 1,612.00
26 5,950.00 - 6,099.99 63.00 1,638.00
27 6,100.00 - 6,249.99 65.00 1,690.00
28 6,250.00 - 6,399.99 66.00 1,716.00
29 6,400.00 - 6,549.99 68.00 1,768.00
30 6,550.00 - 6,699.99 70.00 1,820.00
31 6,700.00 - 6,849.99 71.00 1,846.00
32 6,850.00 - 6,999.99 73.00 1,898.00
33 7,000.00 - 7,149.99 74.00 1,924.00
34 7,150.00 - 7,299.99 76.00 1,976.00
35 7,300.00 - 7,449.99 78.00 2,028.00
36 7,450.00 - 7,599.99 79.00 2,054.00
37 7,600.00 - 7,749.99 81.00 2,106.00
38 7,750.00 - 7,899.99 82.00 2,132.00
39 7,900.00 - 8,049.99 84.00 2,184.00
40 8,050.00 - 8,199.99 85.00 2,210.00
41 8,200.00 - 8,349.99 87.00 2,262.00
42 8,350.00 - 8,499.99 89.00 2,314.00
43 8,500.00 - 8,649.99 90.00 2,340.00
44 8,650.00 - 8,799.99 92.00 2,392.00
45 8,800.00 - 8,949.99 93.00 2,418.00
46 8,950.00 - 9,099.99 95.00 2,470.00
47 9,100.00 - 9,249.99 97.00 2,522.00
48 9,250.00 - 9,399.99 98.00 2,548.00
49 9,400.00 - 9,549.99 100.00 2,600.00
50 9,550.00 - 9,699.99 101.00 2,626.00
51 9,700.00 - 9,849.99 103.00 2,678.00
52 9,850.00 - 9,999.99 104.00 2,704.00
53 10,000.00 - 10,149.99 106.00 2,756.00
54 10,150.00 - 10,299.99 108.00 2,808.00
55 10,300.00 - 10,449.99 109.00 2,834.00
56 10,450.00 - 10,599.99 111.00 2,886.00
57 10,600.00 - 10,749.99 112.00 2,912.00
58 10,750.00 - 10,899.99 114.00 2,964.00
59 10,900.00 - 11,049.99 116.00 3,016.00
60 11,050.00 - 11,199.99 117.00 3,042.00
61 11,200.00 - 11,349.99 119.00 3,094.00
62 11,350.00 - 11,499.99 120.00 3,120.00
63 11,500.00 - 11,649.99 122.00 3,172.00
64 11,650.00 - 11,799.99 124.00 3,224.00
65 11,800.00 - 11,949.99 125.00 3,250.00
66 11,950.00 - 12,099.99 127.00 3,302.00
67 12,100.00 - 12,249.99 128.00 3,328.00
68 12,250.00 - 12,399.99 130.00 3,380.00
69 12,400.00 - 12,549.99 131.00 3,406.00
70 12,550.00 - 12,699.99 133.00 3,458.00
71 12,700.00 - 12,849.99 135.00 3,510.00
72 12,850.00 - 12,999.99 136.00 3,536.00
73 13,000.00 - 13,149.99 138.00 3,588.00
74 13,150.00 - 13,299.99 139.00 3,614.00
75 13,300.00 - 13,449.99 141.00 3,666.00
76 13,450.00 - 13,599.99 143.00 3,718.00
77 13,600.00 - 13,749.99 144.00 3,744.00
78 13,750.00 - 13,899.99 146.00 3,796.00
79 13,900.00 - 14,049.99 147.00 3,822.00
80 14,050.00 - 14,199.99 149.00 3,874.00
81 14,200.00 - 14,349.99 150.00 3,900.00
82 14,350.00 - 14,499.99 152.00 3,952.00
83 14,500.00 - 14,649.99 154.00 4,004.00
84 14,650.00 - 14,799.99 155.00 4,030.00
85 14,800.00 - 14,949.99 157.00 4,082.00
86 14,950.00 - 15,099.99 158.00 4,108.00
87 15,100.00 - 15,249.99 160.00 4,160.00
88 15,250.00 - 15,399.99 162.00 4,212.00
89 15,400.00 - 15,549.99 163.00 4,238.00
90 15,550.00 - 15,699.99 165.00 4,290.00
91 15,700.00 - 15,849.99 166.00 4,316.00
92 15,850.00 - 15,999.99 168.00 4,368.00
93 16,000.00 - 16,149.99 170.00 4,420.00
94 16,150.00 - 16,299.99 171.00 4,446.00
95 16,300.00 - 16,449.99 173.00 4,498.00
96 16,450.00 - 16,599.99 174.00 4,524.00
97 16,600.00 - 16,749.99 176.00 4,576.00
98 16,750.00 - 16,899.99 177.00 4,602.00
99 16,900.00 - 17,049.99 179.00 4,654.00
100 17,050.00 - 17,199.99 181.00 4,706.00
101 17,200.00 - 17,349.99 182.00 4,732.00
102 17,350.00 - 17,499.99 184.00 4,784.00
103 17,500.00 - 17,649.99 185.00 4,810.00
104 17,650.00 - 17,799.99 187.00 4,862.00
105 17,800.00 - 17,949.99 189.00 4,914.00
106 17,950.00 - 18,099.99 190.00 4,940.00
107 18,100.00 - 18,249.99 192.00 4,992.00
108 18,250.00 - 18,399.99 193.00 5,018.00
109 18,400.00 - 18,549.99 195.00 5,070.00
110 18,550.00 - 18,699.99 196.00 5,096.00
111 18,700.00 - 18,849.99 198.00 5,148.00
112 18,850.00 - 18,999.99 200.00 5,200.00
113 19,000.00 - 19,149.99 201.00 5,226.00
114 19,150.00 - 19,299.99 203.00 5,278.00
115 19,300.00 - 19,449.99 204.00 5,304.00
116 19,450.00 - 19,599.99 206.00 5,356.00
117 19,600.00 - 19,749.99 208.00 5,408.00
118 19,750.00 - 19,899.99 209.00 5,434.00
119 19,900.00 - 20,049.99 211.00 5,486.00
120 20,050.00 - 20,199.99 212.00 5,512.00
121 20,200.00 - 20,349.99 214.00 5,564.00
122 20,350.00 - 20,499.99 216.00 5,616.00
123 20,500.00 - 20,649.99 217.00 5,642.00
124 20,650.00 - 20,799.99 219.00 5,694.00
125 20,800.00 - 20,949.99 220.00 5,720.00
126 20,950.00 - 21,099.99 222.00 5,772.00
127 21,100.00 - 21,249.99 223.00 5,798.00
128 21,250.00 - 21,399.99 225.00 5,850.00
129 21,400.00 - 21,549.99 227.00 5,902.00
130 21,550.00 - 21,699.99 228.00 5,928.00
131 21,700.00 - 21,849.99 230.00 5,980.00
132 21,850.00 - 21,999.99 231.00 6,006.00
133 22,000.00 - 22,149.99 233.00 6,058.00
134 22,150.00 - 22,299.99 235.00 6,110.00
135 22,300.00 - 22,449.99 236.00 6,136.00
136 22,450.00 - 22,599.99 238.00 6,188.00
137 22,600.00 - 22,749.99 239.00 6,214.00
138 22,750.00 - 22,899.99 241.00 6,266.00
139 22,900.00 - 23,049.99 243.00 6,318.00
140 23,050.00 - 23,199.99 244.00 6,344.00
141 23,200.00 - 23,349.99 246.00 6,396.00
142 23,350.00 - 23,499.99 247.00 6,422.00
143 23,500.00 - 23,649.99 249.00 6,474.00
144 23,650.00 - 23,799.99 250.00 6,500.00
145 23,800.00 - 23,949.99 252.00 6,552.00
146 23,950.00 - 24,099.99 254.00 6,604.00
147 24,100.00 - 24,249.99 255.00 6,630.00
148 24,250.00 - 24,399.99 257.00 6,682.00
149 24,400.00 - 24,549.99 258.00 6,708.00
150 24,550.00 - 24,699.99 260.00 6,760.00
151 24,700.00 - 24,849.99 262.00 6,812.00
152 24,850.00 - 24,999.99 263.00 6,838.00
153 25,000.00 - 25,149.99 265.00 6,890.00
154 25,150.00 - 25,299.99 266.00 6,916.00
155 25,300.00 - 25,449.99 268.00 6,968.00
156 25,450.00 - 25,599.99 269.00 6,994.00
157 25,600.00 - 25,749.99 271.00 7,046.00
158 25,750.00 - 25,899.99 273.00 7,098.00
159 25,900.00 - 26,049.99 274.00 7,124.00
160 26,050.00 - 26,199.99 276.00 7,176.00
161 26,200.00 - 26,349.99 277.00 7,202.00
162 26,350.00 - 26,499.99 279.00 7,254.00
163 26,500.00 - 26,649.99 281.00 7,306.00
164 26,650.00 - 26,799.99 282.00 7,332.00
165 26,800.00 - 26,949.99 284.00 7,384.00
166 26,950.00 - 27,099.99 285.00 7,410.00
167 27,100.00 - 27,249.99 287.00 7,462.00
168 27,250.00 - 27,399.99 289.00 7,514.00
169 27,400.00 - AND OVER 290.00 7,540.00
__(d) After he or she has established such wage classes, the commissioner shall prepare and publish a table setting forth such information.
  (e) Average weekly wage shall be computed by dividing the number of employees in West Virginia earning wages in covered employment into the total wages paid to employees in West Virginia in covered employment, and by further dividing said result by fifty-two, and shall be determined from employer wage and contribution reports for the previous calendar year which are furnished to the department on or before June 1 following such calendar year. The average weekly wage, as determined by the commissioner, shall be rounded to the next higher dollar.
  (f) The computation and determination of rates as aforesaid shall be completed annually before July 1 and any such new wage class, with its corresponding wages in base period, weekly benefit rate, and maximum benefit in a benefit year established by the commissioner in the foregoing manner effective on July 1 shall apply only to a new claim established by a claimant on and after July 1, and does not apply to continued claims of a claimant based on his or her new claim established before said July 1.
BENEFIT TABLE

A
WAGE
  B
WAGES IN
C
WEEKLY

MAXIMUM
CLASS   BASE PERIOD BENEFIT RATE BENEFIT RATE
    Under $2,200.00 Ineligible  
1 $ 2,200.00 - 2,359.99 24.00 624.00
2   2,350.00 - 2,499.99 25.00 650.00
3   2,500.00 - 2,649.99 27.00 702.00
4   2,650.00 - 2,799.99 28.00 728.00
5   2,800.00 - 2,949.99 30.00 780.00
6   2,950.00 - 3,099.99 31.00 806.00
7   3,100.00 - 3,249.99 33.00 858.00
8   3,250.00 - 3,399.99 35.00 910.00
9   3,400.00 - 3,549.99 36.00 936.00
10   3,550.00 - 3,699.99 38.00 988.00
11   3,700.00 - 3,849.99 39.00 1,014.00
12   3,850.00 - 3,999.99 41.00 1,066.00
13   4,000.00 - 4,149.99 43.00 1,118.00
14   4,150.00 - 4,299.99 44.00 1,144.00
15   4,300.00 - 4,449.99 46.00 1,196.00
16   4,450.00 - 4,599.99 47.00 1,222.00
17   4,600.00 - 4,749.99 49.00 1,274.00
18   4,750.00 - 4,899.99 51.00 1,326.00
19   4,900.00 - 5,049.99 52.00 1,352.00
20   5,050.00 - 5,199.99 54.00 1,404.00
7,462.00 16827,250.00 -27,399.99289.00 7,514.00 16927,400.00 -27,549.99290.00 7,540.00 17027,550.00 -27,699.99292.00 7,592.00 17127,700.00 -27,849.99293.00 7,618.00 17227,850.00 -27,999.99295.00 7,670.00 17328,000.00 -28,149.99296.00 7,696.00 17428,150.00 -28,299.99298.00 7,748.00 17528,300.00 -28,449.99300.00 7,800.00 17628,450.00 -28,599.99301.00 7,826.00 17728,600.00 -28,749.99303.00 7,878.00 17828,750.00 -28,899.99304.00 7,904.00 17928,900.00 -29,049.99306.00 7,956.00 18029,050.00 -29,199.99308.00 8,008.00 18129,200.00 -29,349.99309.00 8,034.00 18229,350.00 -29,499.99311.00 8,086.00 18329,500.00 -29,649.99312.00 8,112.00 18429,650.00 -29,799.99314.00 8,164.00 18529,800.00 -
29,949.99315.00 8,190.00 18629,950.00 -30,099.99317.00 8,242.00 18730,100.00 -30,249.99319.00 8,294.00 18830,250.00 -30,399.99320.00 8,320.00 18930,400.00 -30,549.99322.00 8,372.00 19030,550.00 -30,699.99323.00 8,398.00 19130,700.00 -30,849.99325.00 8,450.00 19230,850.00 -30,999.99327.00 8,502.00 19331,000.00 -31,149.99328.00 8,528.00 19431,150.00 -31,299.99330.00 8,580.00 19531,300.00 -31,449.99331.00 8,606.00 19631,450.00 -31,599.99333.00 8,658.00 19731,600.00 -31,749.99335.00 8,710.00 19831,750.00 -31,899.99336.00 8,736.00 19931,900.00 -32,049.99338.00 8,788.00 20032,050.00 -32,199.99339.00 8,814.00 20132,200.00 -32,349.99341.00 8,866.00 20232,350.00 -32,499.99342.00 8,892.00 20332,500.00 -32,649.99344.00 8,944.00 20432,650.00 -32,799.99346.00 8,996.00 20532,800.00 -32,949.99347.00 9,022.00 20632,950.00 -33,099.99349.00 9,074.00 20733,100.00 -33,249.99350.00 9,100.00 20833,250.00 -33,399.99352.00 9,152.00 20933,400.00 -33,549.99354.00 9,204.00 21033,550.00 -
33,699.99355.00 9,230.0021133,700.00 -33,849.99357.00 9,282.0021233,850.00 -33,999.99358.00 9,308.0021334,000.00 -34,149.99360.00 9,360.0021434,150.00 -34,299.99361.00 9,386.0021534,300.00 -34,449.99363.00 9,438.0021634,450.00 -34,599.99365.00 9,490.0021734,600.00 -34,749.99366.00 9,516.0021834,750.00 -34,899.99368.00 9,568.0021934,900.00 -35,049.99369.00 9,594.0022035,050.00 -35,199.99371.00 9,646.0022135,200.00 -35,349.99373.00 9,698.0022235,350.00 -35,499.99374.00 9,724.0022335,500.00 -35,649.99376.00 9,776.0022435,650.00 -35,799.99377.00 9,802.0022535,800.00 -35,949.99379.00 9,854.0022635,950.00 -
36,999.99381.00 9,906.0022736,100.00 -36,249.99382.00 9,932.0022836,250.00 -36,399.99384.00 9,984.0022936,400.00 -36,549.99385.00 10,010.0023036,550.00 -36,699.99387.00 10,062.0023136,700.00 -36,849.99388.00 10,088.0023236,850.00 -36,999.99390.00 10,140.0023337,000.00 -37,149.99392.00 10,192.0023437,150.00 -37,299.99393.00 10,218.0023537,300.00 -37,449.99395.00 10,270.0023637,450.00 -37,599.99396.00 10,296.0023737,600.00 -37,749.99398.00 10,348.0023837,750.00 -37,899.99400.00 10,400.0023937,900.00 -38,049.99401.00 10,426.0024038,050.00 -38,199.99403.00 10,478.0024138,200.00 -38,349.99404.00 10,504.0024238,350.00 -38,499.99406.00 10,556.0024338,500.00 -38,649.99408.00 10,608.0024438,650.00 -38,799.99409.00 10,634.0024538,800.00 -38,949.99411.00 10,686.0024638,950.00 -39,099.99412.00 10,712.0024739,100.00 -39,249.99414.00 10,764.0024839,250.00 -39,399.99415.00 10,790.0024939,400.00 -39,549.99417.00 10,842.0025039,550.00 -39,699.99419.00 10,894.0025139,700.00 -39,849.99420.00 10,920.0025239,850.00 -39,999.99422.00 10,972.0025340,000.00 -40,149.99423.00 10,998.0025440,150.00 -and above424.00 11,024.00
21   5,200.00 - 5,349.99 55.00 1,430.00
22   5,350.00 - 5,499.99 57.00 1,482.00
23   5,500.00 - 5,649.99 58.00 1,508.00
24   5,650.00 - 5,799.99 60.00 1,560.00
25   5,800.00 - 5,949.99 62.00 1,612.00
26   5,950.00 - 6,099.99 63.00 1,638.00
27   6,100.00 - 6,249.99 65.00 1,690.00
28   6,250.00 - 6,399.99 66.00 1,716.00
29   6,400.00 - 6,549.99 68.00 1,768.00
30   6,550.00 - 6,699.99 70.00 1,820.00
31   6,700.00 - 6,849.99 71.00 1,846.00
32   6,850.00 - 6,999.99 73.00 1,898.00
33   7,000.00 - 7,149.99 74.00 1,924.00
34   7,150.00 - 7,299.99 76.00 1,976.00
35   7,300.00 - 7,449.99 78.00 2,028.00
36   7,450.00 - 7,599.99 79.00 2,054.00
37   7,600.00 - 7,749.99 81.00 2,106.00
38   7,750.00 - 7,899.99 82.00 2,132.00
39   7,900.00 - 8,049.99 84.00 2,184.00
40   8,050.00 - 8,199.99 85.00 2,210.00
41   8,200.00 - 8,349.99 87.00 2,262.00
42   8,350.00 - 8,499.99 89.00 2,314.00
43   8,500.00 - 8,649.99 90.00 2,340.00
44   8,650.00 - 8,799.99 92.00 2,392.00
45   8,800.00 - 8,949.99 93.00 2,418.00
46   8,950.00 - 9,099.99 95.00 2,470.00
47   9,100.00 - 9,249.99 97.00 2,522.00
48   9,250.00 - 9,399.99 98.00 2,548.00
49   9,400.00 - 9,549.99 100.00 2,600.00
50   9,550.00 - 9,699.99 101.00 2,626.00
51   9,700.00 - 9,849.99 103.00 2,678.00
52   9,850.00 - 9,999.99 104.00 2,704.00
53   10,000.00 - 10,149.99 106.00 2,756.00
54   10,150.00 - 10,299.99 108.00 2,808.00
55   10,300.00 - 10,449.99 109.00 2,834.00
56   10,450.00 - 10,599.99 111.00 2,886.00
57   10,600.00 - 10,749.99 112.00 2,912.00
58   10,750.00 - 10,899.99 114.00 2,964.00
59   10,900.00 - 11,049.99 116.00 3,016.00
60   11,050.00 - 11,199.99 117.00 3,042.00
61   11,200.00 - 11,349.99 119.00 3,094.00
62   11,350.00 - 11,499.99 120.00 3,120.00
63   11,500.00 - 11,649.99 122.00 3,172.00
64   11,650.00 - 11,799.99 124.00 3,224.00
65   11,800.00 - 11,949.99 125.00 3,250.00
66   11,950.00 - 12,099.99 127.00 3,302.00
67   12,100.00 - 12,249.99 128.00 3,328.00
68   12,250.00 - 12,399.99 130.00 3,380.00
69   12,400.00 - 12,549.99 131.00 3,406.00
70   12,550.00 - 12,699.99 133.00 3,458.00
71   12,700.00 - 12,849.99 135.00 3,510.00
72   12,850.00 - 12,999.99 136.00 3,536.00
73   13,000.00 - 13,149.99 138.00 3,588.00
74   13,150.00 - 13,299.99 139.00 3,614.00
75   13,300.00 - 13,449.99 141.00 3,666.00
76   13,450.00 - 13,599.99 143.00 3,718.00
77   13,600.00 - 13,749.99 144.00 3,744.00
78   13,750.00 - 13,899.99 146.00 3,796.00
79   13,900.00 - 14,049.99 147.00 3,822.00
80   14,050.00 - 14,199.99 149.00 3,874.00
81   14,200.00 - 14,349.99 150.00 3,900.00
82   14,350.00 - 14,499.99 152.00 3,952.00
83   14,500.00 - 14,649.99 154.00 4,004.00
84   14,650.00 - 14,799.99 155.00 4,030.00
85   14,800.00 - 14,949.99 157.00 4,082.00
86   14,950.00 - 15,099.99 158.00 4,108.00
87   15,100.00 - 15,249.99 160.00 4,160.00
88   15,250.00 - 15,399.99 162.00 4,212.00
89   15,400.00 - 15,549.99 163.00 4,238.00
90   15,550.00 - 15,699.99 165.00 4,290.00
91   15,700.00 - 15,849.99 166.00 4,316.00
92   15,850.00 - 15,999.99 168.00 4,368.00
93   16,000.00 - 16,149.99 170.00 4,420.00
94   16,150.00 - 16,299.99 171.00 4,446.00
95   16,300.00 - 16,449.99 173.00 4,498.00
96   16,450.00 - 16,599.99 174.00 4,524.00
97   16,600.00 - 16,749.99 176.00 4,576.00
98   16,750.00 - 16,899.99 177.00 4,602.00
99   16,900.00 - 17,049.99 179.00 4,654.00
100   17,050.00 - 17,199.99 181.00 4,706.00
101   17,200.00 - 17,349.99 182.00 4,732.00
102   17,350.00 - 17,499.99 184.00 4,784.00
103   17,500.00 - 17,649.99 185.00 4,810.00
104   17,650.00 - 17,799.99 187.00 4,862.00
105   17,800.00 - 17,949.99 189.00 4,914.00
106   17,950.00 - 18,099.99 190.00 4,940.00
107   18,100.00 - 18,249.99 192.00 4,992.00
108   18,250.00 - 18,399.99 193.00 5,018.00
109   18,400.00 - 18,549.99 195.00 5,070.00
110   18,550.00 - 18,699.99 196.00 5,096.00
111   18,700.00 - 18,849.99 198.00 5,148.00
112   18,850.00 - 18,999.99 200.00 5,200.00
113   19,000.00 - 19,149.99 201.00 5,226.00
114   19,150.00 - 19,299.99 203.00 5,278.00
115   19,300.00 - 19,449.99 204.00 5,304.00
116   19,450.00 - 19,599.99 206.00 5,356.00
117   19,600.00 - 19,749.99 208.00 5,408.00
118   19,750.00 - 19,899.99 209.00 5,434.00
119   19,900.00 - 20,049.99 211.00 5,486.00
120   20,050.00 - 20,199.99 212.00 5,512.00
121   20,200.00 - 20,349.99 214.00 5,564.00
122   20,350.00 - 20,499.99 216.00 5,616.00
123   20,500.00 - 20,649.99 217.00 5,642.00
124   20,650.00 - 20,799.99 219.00 5,694.00
125   20,800.00 - 20,949.99 220.00 5,720.00
126   20,950.00 - 21,099.99 222.00 5,772.00
127   21,100.00 - 21,249.99 223.00 5,798.00
128   21,250.00 - 21,399.99 225.00 5,850.00
129   21,400.00 - 21,549.99 227.00 5,902.00
130   21,550.00 - 21,699.99 228.00 5,928.00
131   21,700.00 - 21,849.99 230.00 5,980.00
132   21,850.00 - 21,999.99 231.00 6,006.00
133   22,000.00 - 22,149.99 233.00 6,058.00
134   22,150.00 - 22,299.99 235.00 6,110.00
135   22,300.00 - 22,449.99 236.00 6,136.00
136   22,450.00 - 22,599.99 238.00 6,188.00
137   22,600.00 - 22,749.99 239.00 6,214.00
138   22,750.00 - 22,899.99 241.00 6,266.00
139   22,900.00 - 23,049.99 243.00 6,318.00
140   23,050.00 - 23,199.99 244.00 6,344.00
141   23,200.00 - 23,349.99 246.00 6,396.00
142   23,350.00 - 23,499.99 247.00 6,422.00
143   23,500.00 - 23,649.99 249.00 6,474.00
144   23,650.00 - 23,799.99 250.00 6,500.00
145   23,800.00 - 23,949.99 252.00 6,552.00
146   23,950.00 - 24,099.99 254.00 6,604.00
147   24,100.00 - 24,249.99 255.00 6,630.00
148   24,250.00 - 24,399.99 257.00 6,682.00
149   24,400.00 - 24,549.99 258.00 6,708.00
150   24,550.00 - 24,699.99 260.00 6,760.00
151   24,700.00 - 24,849.99 262.00 6,812.00
152   24,850.00 - 24,999.99 263.00 6,838.00
153   25,000.00 - 25,149.99 265.00 6,890.00
154   25,150.00 - 25,299.99 266.00 6,916.00
155   25,300.00 - 25,449.99 268.00 6,968.00
156   25,450.00 - 25,599.99 269.00 6,994.00
157   25,600.00 - 25,749.99 271.00 7,046.00
158   25,750.00 - 25,899.99 273.00 7,098.00
159   25,900.00 - 26,049.99 274.00 7,124.00
160   26,050.00 - 26,199.99 276.00 7,176.00
161   26,200.00 - 26,349.99 277.00 7,202.00
162   26,350.00 - 26,499.99 279.00 7,254.00
163   26,500.00 - 26,649.99 281.00 7,306.00
164   26,650.00 - 26,799.99 282.00 7,332.00
165   26,800.00 - 26,949.99 284.00 7,384.00
166   26,950.00 - 27,099.99 285.00 7,410.00
167   27,100.00 - 27,249.99 287.00
CHAPTER 23. WORKERS' COMPENSATION.

ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.

§23-2C-3. Creation of employer mutual as successor organization of the West Virginia Workers' Compensation Commission.

                                        (a) (1) On or before the June 1, 2005, the executive director may take such actions as are necessary to establish an employers' mutual insurance company as a domestic, private, nonstock, corporation to:
                                        (A) Insure employers against liability for injuries and occupational diseases for which their employees may be entitled to receive compensation pursuant to this chapter and federal Longshore and Harbor Workers' Compensation Act, 33 U. S. C. §901, et seq.;
                                        (B) Provide employer's liability insurance incidental to and provided in connection with the insurance specified in paragraph (A) of this subdivision, including coal workers' pneumoconiosis coverage and employer excess liability coverage as provided in this chapter; and
                                        (C) Transact other kinds of property and casualty insurance for which the company is otherwise qualified under the provisions of this code.
                                        (2) The company may not sell, assign or transfer substantial assets or ownership of the company.
                                        (b) If the executive director establishes a domestic mutual insurance company pursuant to subsection (a) of this section:
                                        (1) As soon as practical, the company established pursuant to the provisions of this article shall, through a vote of a majority of its provisional board, file its corporate charter and bylaws with the Insurance Commissioner and apply for a license with the Insurance Commissioner to transact insurance in this state. Notwithstanding any other provision of this code, the Insurance Commissioner shall act on the documents within fifteen days of the filing by the company.
                                        (2) In recognition of the workers' compensation insurance liability insurance crisis in this state at the time of enactment of this article and the critical need to expedite the initial operation of the company, the Legislature authorizes the Insurance Commissioner to review the documentation submitted by the company and to determine the initial capital and surplus requirements of the company, notwithstanding the provisions of section five-b, article three, chapter thirty-three of this code. The company shall furnish the Insurance Commissioner with all information and cooperate in all respects necessary for the Insurance Commissioner to perform the duties set forth in this section and in other provisions of this chapter and chapter thirty-three of this code. The Insurance Commissioner shall monitor the economic viability of the company during its initial operation on not less than a monthly basis, until the commissioner, in his or her discretion, determines that monthly reporting is not necessary. In all other respects the company shall comply with the applicable provisions of chapter thirty-three of this code.
                                        (3) Subject to the provisions of subdivision (4) of this subsection, the Insurance Commissioner may waive other requirements imposed on mutual insurance companies by the provisions of chapter thirty-three of this code the Insurance Commissioner determines are necessary to enable the company to begin insuring employers in this state at the earliest possible date.
                                        (4) Within forty months of the date of the issuance of its license to transact insurance, the company shall comply with the capital and surplus requirements set forth in subsection (a), section five-b, article three, chapter thirty-three of this code in effect on the effective date of this enactment, unless the deadline is extended by the Insurance Commissioner.
                                        (c) For the duration of its existence, the company is not a department, unit, agency or instrumentality of the state for any purpose. All debts, claims, obligations and liabilities of the company, whenever incurred, are the debts, claims, obligations and liabilities of the company only and not of the state or of any department, unit, agency, instrumentality, officer or employee of the state.
                                        (d) The moneys of the company are not part of the General Revenue Fund of the state. The debts, claims, obligations and liabilities of the company are not a debt of the state or a pledge of the credit of the state.
                                        (e) The company is not subject to provisions of article nine-a, chapter six of this code; the provisions of article two, chapter six-c of this code; the provisions of chapter twenty-nine-b of this code; the provisions of article three, chapter five-a of this code; the provisions of article six, chapter twenty-nine of this code; or the provisions of chapter twelve of this code.
                                        (f) If the commission has been terminated, effective upon the termination, private carriers, including the company, are not subject to payment of premium taxes, surcharges and credits contained in article three, chapter thirty-three of this code on premiums received for coverage under this chapter. In lieu thereof, the workers' compensation insurance market is subject to the following:
                                        (1) (A) Each fiscal year, the Insurance Commissioner shall calculate a percentage surcharge to be collected by each private carrier from its policyholders. The surcharge percentage shall be calculated by dividing the previous fiscal year's total premiums collected plus deductible payments by all employers into the portion of the Insurance Commissioner's budget amount attributable to regulation of the private carrier market. This resulting percentage shall be applied to each policyholder's premium payment and deductible payments as a surcharge and remitted to the Insurance Commissioner. Said surcharge shall be remitted within ninety days of receipt of premium payments;
                                        (B) With respect to fiscal years beginning on and after July 1, 2008, in lieu of the surcharge set forth in the preceding paragraph, each private carrier shall collect a surcharge in the amount of five and five-tenths percent of the premium collected plus the total of all premium discounts based on deductible provisions that were applied: Provided, That prior to June 30, 2013, and every five years thereafter, the commissioner shall review the percentage surcharge and determine a new percentage as he or she deems necessary.
                                        (C) The amounts required to be collected under paragraph (B) of this subdivision shall be remitted to the Insurance Commissioner on or before the twenty-fifth day of the month succeeding the end of the quarter in which they are collected, except for the fourth quarter for which the surcharge shall be remitted on or before the March 1 of the succeeding year.
                                        (2) Each fiscal year, the Insurance Commissioner shall calculate a percentage surcharge to be remitted on a quarterly basis by self-insured employers and said percentage shall be calculated by dividing previous year's self-insured payroll in the state into the portion of the Insurance Commissioner's budget amount attributable to regulation of the self-insured employer market. This resulting percentage shall be applied to each self-insured employer's payroll and the resulting amount shall be remitted as a regulatory surcharge by each self-insured employer. The Industrial Council may promulgate a rule for implementation of this section. The company, all other private carriers and all self-insured employers shall furnish the Insurance Commissioner with all required information and cooperate in all respects necessary for the Insurance Commissioner to perform the duties set forth in this section and in other provisions of this chapter and chapter thirty-three of this code. The surcharge shall be calculated so as to only defray the costs associated with the administration of this chapter and the funds raised shall not be used for any other purpose except as set forth in subdivision (4) of this subsection;
                                        (3) (A) Each private carrier shall collect a premiums surcharge from its policyholders as annually determined, by May 1 of each year, by the Insurance Commissioner to produce $45 million annually, of each policyholder's periodic premium amount for workers' compensation insurance: Provided, That the surcharge rate on policies issued or renewed on or after July 1, 2008, shall be nine percent of the premium collected plus the total of all premium discounts based on deductible provisions that were applied.
                                        (B) By May 1 each year, the self-insured employer community shall be assessed a cumulative total of $9 million. The methodology for the assessment shall be fair and equitable and determined by exempt legislative rule issued by the Industrial Council. The amount collected pursuant to this subdivision shall be remitted to the Insurance Commissioner for deposit in the Workers' Compensation Debt Reduction Fund created in section five, article two-d of this chapter.
                                        (4) On or before July 1, 2009, the Insurance Commissioner shall make a one-time lump sum transfer of $40 million generated from the surcharges assessed pursuant to paragraph (B), subdivision (1) of this subsection and subdivision (2) of this subsection to the Bureau of Employment Programs' Commissioner for deposit with the Secretary of the Treasury of the United States as a credit of this state in the Unemployment Trust Fund Account maintained pursuant to section four, article eight, chapter twenty-one-a of this code.
                                        (g) The new premiums surcharge imposed by paragraphs (A) and (B), subdivision (3), subsection (f) of this section sunset and are not collectible with respect to workers' compensation insurance premiums paid when the policy is renewed on or after the first day of the month following the month in which the Governor certifies to the Legislature that the revenue bonds issued pursuant to article two-d of this chapter have been retired and that the unfunded liability of the Old Fund has been paid or has been provided for in its entirety, whichever occurs last.;
                                        And,
                                        By striking out the title and inserting in lieu thereof a new title, to read as follows:
                                        Eng. Com. Sub. for Senate Bill No. 246--A Bill to amend and reenact §21A-1-4 of the Code of West Virginia, 1931, as amended; to amend and reenact §21A-1A-5, §21A-1A-6, §21A-1A-7 and §21A-1A-28 of said code; to amend and reenact §21A-6-1, §21A-6-3 and §21A-6-10 of said code; and to amend and reenact §23-2C-3 of said code, all relating generally to unemployment compensation; requiring establishment of employer violator system; providing for notice and due process; defining certain terms; providing that the maximum weekly benefit rate shall not increase or decrease under certain circumstances; providing for an alternative base wage and authorizing benefits thereunder; requiring notice to employer when employee quits for health reasons; requiring written certification from physician within thirty days; classifying certain conduct as gross misconduct; providing that an employee who voluntarily retires is not eligible for unemployment; requiring the Insurance Commissioner transfer certain funds for the benefit of the Unemployment Trust Fund; and authorizing the transfer of certain funds by the Insurance Commissioner.
                                        On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
                                        Engrossed Committee Substitute for Senate Bill No. 246, as amended by the House of Delegates, was then put upon its passage.
                                        On the passage of the bill,
the yeas were: Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Wells, White, Williams, Yost and Tomblin (Mr. President)--30.
                                        The nays were: Barnes, Boley, Caruth and Unger--4.
                                        Absent: None.
                                        So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 246) passed with its House of Delegates amended title.
                                        Senator Chafin moved that the bill take effect from passage.
                                        On this question, the yeas were: Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Wells, White, Williams, Yost and Tomblin (Mr. President)--30.
                                        The nays were: Barnes, Boley, Caruth and Unger--4.
                                        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 S. B. No. 246) takes effect from passage.
                                        Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
                                        A message from The Clerk of the House of Delegates announced that that body had refused to recede from its amendments, and requested the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses, as to
                                        Eng. Com. Sub. for Com. Sub. for Senate Bill No. 249, Relating to annual school calendar.
                                        The message further announced the appointment of the following conferees on the part of the House of Delegates:
                                        Delegates Pethtel, Perry, Ennis, Rowan and Romine.
                                        On motion of Senator Chafin, the Senate agreed to the appointment of a conference committee on the bill.
                                        Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
                                        Senators Edgell, Browning, Foster, Laird and Boley.
                                        Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
                                        A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
                                        Eng. Com. Sub. for Senate Bill No. 258, Clarifying local fiscal bodies cannot be held liable for certain deficits.
                                        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 clause and inserting in lieu thereof the following:
ARTICLE 8. LEVIES.
§11-8-26. Unlawful expenditures by local fiscal body.
                                        
(a) Except as provided in sections fourteen-b, twenty-five-a and twenty-six-a of this article, a local fiscal body shall not expend money or incur obligations:
                                        (1) In an unauthorized manner;
                                        (2) For an unauthorized purpose;
                                        (3) In excess of the amount allocated to the fund in the levy order; or
                                        (4) In excess of the funds available for current expenses.
                                        (b) Notwithstanding the foregoing and any other provision of law to the contrary, a local fiscal body or its duly authorized officials shall may not be penalized for a casual deficit which does not exceed its approved levy estimate by more than three percent: Provided, That such casual deficit be is satisfied in the levy estimate for the succeeding fiscal year: Provided, however, That in calculating a deficit for purposes of this section, account shall not be taken of any amount for which the local fiscal body may be liable for the unfunded actuarial accrued liability of the West Virginia Retiree Health Benefit Trust Fund or any amount allocated to the local fiscal body as an employer annual required contribution that exceeds the minimum annual employer payment component of the contribution, all as provided under article sixteen-d, chapter five of this code.
                                        On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
                                        Engrossed Committee Substitute for Senate Bill No. 258, as amended by the House of Delegates, was then put upon its passage.
                                        On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
                                        The nays were: None.
                                        Absent: None.
                                        So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 258) passed with its title.
                                        Senator Chafin moved that the bill take effect from passage.
                                        On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
                                        The nays were: None.
                                        Absent: None.
                                        So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 258) takes effect from passage.
                                        Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
                                        A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
                                        Eng. Com. Sub. for Com. Sub. for Senate Bill No. 279, Relating to industrial accidents and emergency response regulations.
                                        On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
                                        The following House of Delegates amendments to the bill were reported by the Clerk:
                                        On page five, section three-a, line fifty, after the words "of a" by inserting the word "legislative";
                                        On page eight, section three-a, line one hundred eighteen, after the word "safe" by changing the period to a colon and inserting the following proviso: Provided, however, That within thirty minutes of obtaining information that affects the public health, safety and welfare, state and local officials shall notify the public of any hazardous materials or events which may affect the area.;
                                        On page nine, section three-a, after line one hundred fifty- one, by inserting a new subdivision, designated subdivision (f), to read as follows:
                                        (4) All moneys collected pursuant to this section shall be deposited in the Hazardous Waste Emergency Response Fund, as established pursuant to section three, article nineteen, chapter twenty-two of this code.;
                                        And,
                                        By striking out the title and inserting in lieu thereof a new title, to read as follows:
                                        Eng. Com. Sub. for Com. Sub. for Senate Bill No. 279--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-5B-3a, relating generally to industrial and railroad accidents and emergencies; providing definitions; requiring the reporting of certain industrial emergencies to the Mine and Industrial Accident Emergency Operations Center or local emergency telephone system operators; requiring industrial facilities to provide certain information to state and local emergency responders; requiring operators of railroad facilities in this state to provide certain information to state and local emergency responders in the event of a railroad accident or emergency; granting state and local officials access to the person or persons charged with managing an industrial or railroad emergency and certain areas affected by the emergency; requiring state and local officials to timely provide information related to public health, safety and welfare regarding hazardous waste releases and other emergency events; authorizing the Director of the Division of Homeland Security and Emergency Management to promulgate emergency legislative rules establishing a list of facilities subject to the requirements of this section and establishing procedures; providing for civil penalties; requiring the collected moneys to be deposited into the Hazardous Waste Emergency Response Fund ; and authorizing the promulgation of legislative rules.
                                        On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
                                        Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 279, as amended by the House of Delegates, was then put upon its passage.
                                        On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
                                        The nays were: None.
                                        Absent: None.
                                        So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 279) passed with its House of Delegates amended title.
                                        Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
                                        A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2009, and requested the concurrence of the Senate in the House of Delegates amendments, as to
                                        Eng. Com. Sub. for Com. Sub. for Senate Bill No. 297, Creating Alternative and Renewable Energy Portfolio Act.
                                        On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
                                        The following House of Delegates amendments to the bill were reported by the Clerk:
                                        On
page seven, section three, line twenty-nine, by striking out paragraph (10) in its entirety and renumbering the remaining paragraph;
                                        On page twenty-two, section five, lines seventy-seven through eighty-two, by striking out subdivision (2) in its entirety;
                                        And renumbering the remaining subdivision;
                                        On page twenty-four, section five, after line one hundred twenty-one, by inserting a new subsection, designated subsection (i), to read as follows:
                                        (i) Termination. -- The provisions of this section shall have no force and effect after June 30, 2021.;
                                        On pages twenty-eight and twenty-nine, section six, lines ninety-two through one hundred three, by striking out subsection (k) in its entirety and inserting in lieu thereof a new subsection (k), to read as follows:
                                        (k) The commission shall impose a special assessment on all electric utilities required to file a compliance plan. The assessments shall be prorated among the covered electric utilities on the basis of kilowatt hours of retail sales in West Virginia and shall be due and payable on September 1 of each year. The amount of revenue collected pursuant to this subsection shall not exceed $200,000 in the first year following the effective date of this article and shall not exceed $100,000 in successive years. The funds generated from the assessments shall be used exclusively to offset all reasonable direct and indirect costs incurred by the commission in administering the provisions of this article.;
                                        On pages thirty-five and thirty-six, section eleven, lines eighteen through twenty-seven, by striking out subsection (c) in its entirety;
                                        And relettering the remaining subsections;
                                        On page thirty-seven, by striking out section twelve in its entirety;
                                        And renumbering the remaining sections;
                                        By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
                                        That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §24-2F-1, §24-2F-2, §24-2F-3, §24-2F-4, §24-2F-5, §24-2F-6, §24-2F-7, §24-2F-8, §24-2F-9, §24-2F-10, §24-2F-11 and §24-2F-12, all to read as follows:;
                                        And,
                                        By striking out the title and inserting in lieu thereof a new title, to read as follows:
                                        Eng. Com. Sub. for Com. Sub. for Senate Bill No. 297--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §24-2F-1, §24-2F-2, §24-2F-3, §24-2F-4, §24-2F-5, §24-2F-6, §24-2F-7, §24-2F-8, §24-2F-9, §24-2F- 10, §24-2F-11 and §24-2F-12, all relating to an alternative and renewable energy portfolio standard; setting forth legislative findings; defining terms; establishing standards for the sale of electricity generated from alternative and renewable energy resources; providing for compliance assessments; creating a system of tradeable alternative and renewable energy resource credits; providing for the awarding of credits based upon electricity generated from alternative and renewable energy resource facilities; providing for the awarding of credits for certain greenhouse emissions reduction and offset projects; providing for the awarding of credits for certain energy efficiency and demand-side energy initiative projects; requiring application to the Public Service Commission for approval of alternative and renewable energy portfolio standard compliance plans; setting forth minimum requirements for compliance plan applications; requiring Public Service Commission approval of compliance plan applications; requiring annual progress reports; providing for incentive ratemaking for investments in new alternative and renewable energy resource facilities in West Virginia; requiring the Public Service Commission to adopt certain net metering and interconnection rules and standards; authorizing the Public Service Commission to enter into interagency agreements to meet its requirements under this article; requiring an ongoing assessment of alternative and renewable energy resources in West Virginia; authorizing Public Service Commission to adopt portfolio standards for certain electric cooperatives and other electric facilities or utilities; establishing the Alternative and Renewable Energy Resources Research Fund; providing for the awarding of matching grants for certain research projects; and authorizing the Public Service Commission to promulgate rules.
                                        On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
                                        Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 297, as amended by the House of Delegates, was then put upon its passage.
                                        On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, 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: Hall--1.
                                        Absent: None.
                                        So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 297) passed with its House of Delegates amended title.
                                        [CLERK'S NOTE: Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 297 (Creating Alternative and Renewable Energy Portfolio Act) was not enrolled due to technical deficiency. The bill was not passed by both houses in identical form.]
                                        Senator Chafin moved that the bill take effect July 1, 2009.
                                        On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, 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: Hall--1.
                                        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 Com. Sub. for S. B. No. 297) takes effect July 1, 2009.
                                        Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
                                        A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
                                        Eng. Com. Sub. for Senate Bill No. 461, Extending selenium effluent limits compliance time.
                                        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:
§22-11-6. Requirement to comply with standards of water quality and effluent limitations.

     All persons affected by rules establishing water quality standards and effluent limitations shall promptly comply therewith: Provided, That where necessary and proper, the chief may specify a reasonable time for persons not complying with such standards and limitations to comply therewith, and, upon the expiration of any such period of time, the chief shall revoke or modify any permit previously issued which authorized the discharge of treated or untreated sewage, industrial wastes or other wastes into the waters of this state which result in reduction of the quality of such waters below the standards and limitations established therefor by rules of the board or director. The Legislature finds that there are concerns within West Virginia regarding the applicability of the research underlying the federal selenium criteria to a state such as West Virginia which has high precipitation rates and free- flowing streams and that the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia and, further, that considerable research is required to determine if selenium is having an impact on West Virginia streams, to validate or determine the proper testing methods for selenium and to better understand the chemical reactions related to selenium mobilization in water. For existing NPDES permits, the department may extend the time period for achieving water quality-based effluent limits for selenium discharges into waters supporting aquatic life uses to July 1, 2012, upon compliance with all federally required public notice requirements for such modifications, upon a finding that the permittee cannot comply with its existing compliance schedule and that an extension is not in violation of any state or federal laws, rules or regulations. The West Virginia Department of Environmental Protection is hereby directed to undertake a comprehensive study relating to selenium and prepare a report detailing such findings and submitting the report to the Joint Committee on Government and Finance no later than January 1, 2010. In conducting such study, the West Virginia Department of Environmental Protection shall consult with, among others, West Virginia University and the West Virginia Water Research Institute.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Committee Substitute for Senate Bill No. 461, as amended by the House of Delegates, was then 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, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, Williams, Yost and Tomblin (Mr. President)--32.
     The nays were: Barnes and White--2.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 461) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 537, Relating to workers' compensation.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §23-5-17 and §23-5-18 of the Code of West Virginia, 1931, as amended, be repealed; that §23-2-1d of said code be amended and reenacted; that §23-2A-1 of said code be amended and reenacted; that §23-2C-8, §23-2C-15, §23-2C-17 and §23-2C-21 of said code be amended and reenacted; that §23-4-1c, §23-4-6b, §23-4-8, §23-4-8c and §23-4-15b of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §23-4-8d; that §23-5-1, §23-5-3 and §23-5-16 of said code be amended and reenacted; and that §33-2-22 of said code be amended and reenacted, all to read as follows:
CHAPTER 23. WORKERS' COMPENSATION.

ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER; EXTRATERRITORIAL COVERAGE.

§23-2-1d. Prime contractors and subcontractors liability.
     (a) For the exclusive purposes of this section, the term "employer" as defined in section one of this article includes any primary contractor who regularly subcontracts with other employers for the performance of any work arising from or as a result of the primary contractor's own contract: Provided, That a subcontractor does not include one providing goods rather than services. For purposes of this subsection, extraction of natural resources is a provision of services. In the event that a subcontracting employer defaults on its obligations to make payments to the commission, then the primary contractor is liable for the payments. However, nothing contained in this section shall extend or except to a primary contractor or subcontractors the provisions of section six, six-a or eight of this article. This section is applicable only with regard to subcontractors with whom the primary contractor has a contract for any work or services for a period longer than thirty sixty days: Provided, however, That this section is also applicable to contracts for consecutive periods of work that total more than thirty sixty days. It is not applicable to the primary contractor with regard to sub-subcontractors. However, a subcontractor for the purposes of a contract with the primary contractor can itself become a primary contractor with regard to other employers with whom it subcontracts. It is the intent of the Legislature that no contractor, whether a primary contractor, subcontractor or sub-subcontractor, escape or avoid liability for any workers' compensation premium, assessment or tax. The executive director shall propose for promulgation a rule to effect this purpose on or before December 31, 2003.
     (b) A primary contractor may avoid initial liability under subsection (a) of this section if it obtains from the executive director, prior to the initial performance of any work by the subcontractor's employees, a certificate that the subcontractor is in good standing with the Workers' Compensation Fund.
     (1) Failure to obtain the certificate of good standing prior to the initial performance of any work by the subcontractor results in the primary contractor being equally liable with the subcontractor for all delinquent and defaulted premium taxes, premium deposits, interest and other penalties arising during the life of the contract or due to work performed in furtherance of the contract: Provided, That the commission is entitled to collect only once for the amount of premiums, premium deposits and interest due to the default, but the commission may impose other penalties on the primary contractor or on the subcontractor, or both.
     (2) In order to continue avoiding liability under this section, the primary contractor shall request that the commission inform the primary contractor of any subsequent default by the subcontractor. In the event that the subcontractor does default, the commission shall notify the primary contractor of the default by placing a notice in the first-class certified United States mail, postage prepaid, and addressed to the primary contractor at the address furnished to the commission by the primary contractor. The mailing is good and sufficient notice to the primary contractor of the subcontractor's default. However, the primary contractor is not liable under this section until the first day of the calendar quarter following the calendar quarter in which the notice is given and then the liability is only for that following calendar quarter and thereafter and only if the subcontract has not been terminated: Provided, That the commission is entitled to collect only once for the amount of premiums, premium deposits and interest due to the default, but the commission may impose other penalties on the primary contractor or on the subcontractor, or both.
     (c) In any situation where a subcontractor defaults with regard to its payment obligations under this chapter or fails to provide a certificate of good standing as provided in this section, the default or failure is good and sufficient cause for a primary contractor to hold the subcontractor responsible and to seek reimbursement or indemnification for any amounts paid on behalf of the subcontractor to avoid or cure a workers' compensation default, plus related costs, including reasonable attorneys' fees, and to terminate its subcontract with the subcontractor notwithstanding any provision to the contrary in the contract.
     (d) The provisions of this section are applicable only to those contracts entered into or extended on or after January 1, 1994.
     (e) The commission may take any action authorized by section five-a of this article in furtherance of its efforts to collect amounts due from the primary contractor under this section.
     (f) Effective upon termination of the commission, subsections (a) through (e), inclusive, of this section shall be applicable only to unpaid premiums due the commission or the Old Fund as provided in article two-c of this chapter.
_____(g) The Legislature finds that every prime contractor should be responsible to ensure that any subcontractor with which it directly contracts is either self-insured or maintains workers' compensation coverage throughout the periods during which the services of a subcontractor are used and, further, if the subcontractor is neither self-insured nor covered, then the prime contractor rather than the Uninsured Employer Fund should be responsible for the payment of statutory benefits. It is also the intent of the Legislature that this section not be used as the basis for expanding the liability of a prime contractor beyond the limited purpose of providing coverage in the limited circumstances and in the manner expressly addressed by this section: Provided, That receipt by the prime contractor of a certificate of coverage from a subcontractor shall be deemed to relieve the prime contractor of responsibility regarding the subcontractor's workers' compensation coverage.
_____(h) On after the effective date of the reenactment of this section in 2009, if an employee of a subcontractor suffers an injury or disease and, on the date of injury or last exposure, his or her employer did not have workers' compensation coverage or was not an approved self-insured employer, and the prime contractor did not obtain certification of coverage from the subcontractor, then that employee may file a claim against the prime contractor for which the subcontractor performed services on the date of injury or last exposure, and such claim shall be administered in the same manner as claims filed by injured employees of the prime contractor:
Provided, That a subcontractor that subcontracts with another subcontractor shall, with respect to such subcontract, is the prime contractor for the purposes of this section: Provided, however, That the provisions of this subsection do not relieve a subcontractor from any requirements of this chapter, including the duty to maintain coverage on its employees. The subcontractor shall provide proof of continuing coverage to the prime contractor by providing a certificate showing current as well as renewal or replacement coverage during the term of the contract between the prime contractor and the subcontractor. The subcontractor shall provide notice to the prime contractor within two business days of cancellation of expiration of coverage.
_____
(i) Notwithstanding that an injured employee of a subcontractor is eligible for workers' compensation benefits pursuant to this section from the prime contractor's carrier or the self-insured prime contractor, whichever is applicable, a subcontractor who has failed to maintain workers' compensation coverage on its employees:
_____
(1) May not claim the exemption from liability provided by sections six and six-a of this article;
_____
(2) May be held liable to an injured employee pursuant to the provisions of section eight of this article; and
_____(3) Is the designated employer for the purposes of any "deliberate intention" action brought by the injured worker pursuant to the provisions of section two, article four of this chapter.
_____
(j) If a claim of an injured employee of a subcontractor is accepted or conditionally accepted into the Uninsured Employer Fund, both the prime contractor and subcontractor are jointly and severally liable for any payments made by the fund, and the Insurance Commissioner may seek recovery of the payments, plus administrative costs and attorneys' fees, from the prime contractor, the subcontractor, or both: Provided, That a prime contractor who is held liable pursuant to this subsection for the payment of benefits to an injured employee of a subcontractor may recover the amount of such payments from the subcontractor, plus reasonable attorneys' fees and costs: Provided, however, That if a prime contractor has performed due diligence in all matters requiring an verifying a subcontractor's maintenance of insurance coverage, than the prime contractor is not liable for any claim made hereunder against the subcontractor.
ARTICLE 2A. SUBROGATION.
§23-2A-1. Subrogation; limitations.

     (a) Where a compensable injury or death is caused, in whole or in part, by the act or omission of a third party, the injured worker or, if he or she is deceased or physically or mentally incompetent, his or her dependents or personal representative are entitled to compensation under the provisions of this chapter, and shall not by having received compensation be precluded from making claim against the third party.
     (b) Notwithstanding the provisions of subsection (a) of this section, if an injured worker, his or her dependents or his or her personal representative makes a claim against the third party and recovers any sum for the claim:
     (1) the commission With respect to any claim arising from a right of action that arose or accrued, in whole or in part, on or after January 1, 2006, the private carrier or a self-insured employer, whichever is applicable, shall be allowed statutory subrogation with regard to indemnity and medical benefits paid as of the date of the recovery.
_____(2) With respect to any claim arising from a right of action that arose or accrued, in whole or in part, prior to January 1, 2006, the Insurance Commissioner and the successor to the commission shall be allowed statutory subrogation with regard to only medical payments paid as of the date of the recovery:
Provided, That with respect to any recovery arising out of a cause of action that arose or accrued prior to July 1, 2003, any money received by the commissioner or self-insured employer as subrogation to medical benefits expended on behalf of the injured or deceased worker shall not exceed fifty percent of the amount received from the third party as a result of the claim made by the injured worker, his or her dependents or personal representative, after payment of attorneys' fees and costs, if such exist.__
_____(3) Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, the Insurance Commissioner, acting as administrator of the Uninsured Employer Fund, shall be allowed statutory subrogation with regard to indemnity and medical benefits paid and to be paid from such fund regardless of the date on which the cause of action arose.
_____(c)
The commission or self-insured employer For claims that arose or accrued, in whole or in part, prior to the effective date of the reenactment of this section in 2009, and all claims thereafter, the party entitled to subrogation shall permit the deduction from the amount received reasonable attorneys' fees and reasonable costs It is the duty of the injured worker, his or her dependents, his or her personal representative, or his or her attorney to notify the commission and the employer, when the claim is filed against the third party.
and may negotiate the amount to accept as subrogation.
_____
(c) (d) In the event that an injured worker, his or her dependents or personal representative makes a claim against a third party, there shall be, and there is hereby created, a statutory subrogation lien upon the moneys received which shall exist in favor of the commission Insurance Commissioner, private carrier or self-insured employer, Any injured worker, his or her dependents or personal representative who receives moneys in settlement in any manner of a claim against a third party remains subject to the subrogation lien until payment in full of the amount permitted to be subrogated under subsection (b) of this section is paid. whichever is applicable.

_____
(e) (d) Effective January 1, two thousand six, the commission, any successor to the commission, any other private carrier and any self-insured employer shall be allowed statutory subrogation with regard to all medical and indemnity benefits actually paid as of the date of the recovery, The commission, successor to the commission, any other private carrier and the self-insured employer shall permit the deduction from the amount received a reasonable attorney's fees and costs, and may negotiate the amount to accept as subrogation. It is the duty of the injured worker, his or her dependents, his or her personal representative or his or her attorney to give reasonable notice to the commission, successor to the commission, any other Insurance Commissioner, private carrier or the self-insured employer after a claim is filed against the third party and prior to the disbursement of any third party recovery. The statutory subrogation described in this section does not apply to uninsured and underinsured motorist coverage or any other insurance coverage purchased by the injured worker or on behalf of the injured worker. If the injured worker obtains a recovery from a third party and the injured worker, personal representative or the injured worker's attorney fails to protect the statutory right of subrogation created herein, the injured worker, personal representative and the injured worker's attorney shall lose the right to retain attorney fees and costs out of the subrogation amount. In addition, such failure creates a cause of action for the Insurance Commissioner, private carrier or self- insured employer, whichever is applicable, against the injured worker, personal representative and the injured worker's attorney for the amount of the full subrogation amount and the reasonable fees and costs associated with any such cause of action. The right of subrogation granted by the provisions of this subsection shall not attach to any claim arising from a right of action which arose or accrued, in whole or in part, prior to the effective date of the amendment and reenactment of this section during the year two thousand five.
     
(e) The right of subrogation granted the commission in subsections (a) through (c), inclusive, of this section shall be exercised by the Insurance Commissioner and his or her designated administrator of the old fund, as set forth in article two-c of this chapter, for any claim arising from a right of action which arose or accrued, in whole or in part, prior to the effective date of the amendment and reenactment of this section during the year two thousand five. The Insurance Commissioner and his or her designated administrator shall be paid a recovery fee of ten percent of the actual amount recovered through subrogation with the remainder to be deposited into the old fund.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-8. Workers' Compensation Uninsured Employer Fund.

     (a) The Workers' Compensation Uninsured Employer Fund shall be governed by the following:
     (1) All money and securities in the fund must be held by the State Treasurer as custodian thereof to be used solely as provided in this article.
     (2) The State Treasurer may disburse money from the fund only upon written requisition of the Insurance Commissioner.
     (3) Assessments. -- The Insurance Commissioner shall assess each private carrier and may assess self-insured employers an amount to be deposited in the fund. The assessment may be collected by each private carrier from its policyholders in the form of a policy surcharge. To establish the amount of the assessment, the Insurance Commissioner shall determine the amount of money necessary to maintain an appropriate balance in the fund for each fiscal year and shall allocate a portion of that amount to be payable by each of the groups subject to the assessment. After allocating the amounts payable by each group, the Insurance Commissioner shall apply an assessment rate to:
     (A) Private carriers that reflects the relative hazard of the employments covered by the private carriers, results in an equitable distribution of costs among the private carriers and is based upon expected annual premiums to be received;
     (B) Self-insured employers, if assessed, that results in an equitable distribution of costs among the self-insured employers and is based upon expected annual expenditures for claims; and
     (C) Any other groups assessed that results in an equitable distribution of costs among them and is based upon expected annual expenditures for claims or premium to be received.
     (4) The Workers' Compensation Board of Managers or Industrial Council may adopt rules for the establishment and administration of the assessment methodologies, rates, payments and any penalties that it determines are necessary to carry out the provisions of this section.
     (b) Payments from the fund. --
     (1) Except as otherwise provided in this subsection, an injured employee of any employer required to be covered under this chapter who has failed to obtain coverage may receive compensation from the Uninsured Employer Fund if such employee meets all jurisdictional and entitlement provisions of this chapter, files a claim with the Insurance Commissioner and makes an irrevocable assignment to the Insurance Commissioner of a right to be subrogated to the rights of the injured employee.
     (2) Employees who are injured while employed by a self-insured employer are ineligible for benefits from the Workers' Compensation Uninsured Employer Fund.
     (c) Initial determination upon receipt of a claim. --
     
(1) If the Insurance Commissioner determines that the claimant's employer maintained a policy of workers' compensation insurance pursuant to this chapter on the date of injury or last exposure or that the employer was not required to maintain such a policy on such date, then the claim shall not be accepted into the fund; if the commissioner determines that the employer was required to maintain such a policy but failed to do so, the claim will be accepted into the fund and the Insurance Commissioner may assign such a claim to the third-party administrator of the fund for administration.
     
(2) The Insurance Commissioner shall notify the injured employee and the named employer of the determination made pursuant to subdivision (1) of this subsection and any party aggrieved thereby shall be entitled to protest such determination in a hearing before the Insurance Commissioner: Provided, That in any such proceeding, the employer has the burden of proving that it either provided mandatory workers' compensation insurance coverage or that it was not required to maintain workers' compensation insurance. If a claim is filed against the Uninsured Employer Fund, the Insurance Commissioner or his or her third-party administrator shall: (1) Accept the claim into the fund if it is determined that the employer was required to maintain workers' compensation coverage with respect to the injured worker but failed to do so; (2) reject the claim if it is determined that the employer maintained such coverage or was not required to do so; or (3) in a claim involving the availability of benefits pursuant to section one-d, article two of this chapter, either reject or conditionally accept the claim. An aggrieved party may file a protest with the Office of Judges to any decision by the Insurance Commissioner or the third-party administrator to accept or reject a claim into the fund, as well as to any claims decisions made with respect to any claim accepted into the fund, and such protests shall be determined in the same manner as disputed claims are determined pursuant to the provisions of article five of this chapter: Provided, That in any proceeding before the Office of Judges involving the decision to accept or refuse to accept a claim into the fund, the employer has the burden of proving that it either provided mandatory workers' compensation insurance coverage or that it was not required to do so.
     (d) Employer liability. --
     (1) Any employer who has failed to provide mandatory coverage required by the provisions of this chapter is liable for all payments made and to be made on its behalf, including any benefits, administrative costs and attorney's fees paid from the fund or incurred by the Insurance Commissioner, plus interest calculated in accordance with the provisions of section thirteen, article two of this chapter.
     (2) The Insurance Commissioner:
     (A) May bring a civil action in a court of competent jurisdiction to recover from the employer the amounts set forth in subdivision (1) of this subsection. In any such action, the Insurance Commissioner may also recover the present value of the estimated future payments to be made on the employer's behalf and the administrative costs and attorney's fees attributable to such claim: Provided, That the failure of the Insurance Commissioner to include a claim for future payments shall not preclude one or more subsequent actions for such amounts;
     (B) May enter into a contract with any person, including the third-party administrator of the Uninsured Employer Fund, to assist in the collection of any liability of an uninsured employer; and
     (C) In lieu of a civil action, may enter into an agreement or settlement regarding the collection of any liability of an uninsured employer.
     (3) In addition to any other liabilities provided in this section, the Insurance Commissioner may impose an administrative penalty of not more than $10,000 against an employer if the employer fails to provide mandatory coverage required by this chapter. All penalties and other moneys collected pursuant to this section shall be deposited into the Workers' Compensation Uninsured Employer Fund.
     (e) Protests to claims decisions -- Any party aggrieved by a claims decision made by the Insurance Commissioner or the third- party administrator in a claim that has been accepted into the fund may object to that decision by filing a protest with the office of judges as set forth in article five of this chapter.
§23-2C-15. Mandatory coverage; changing of coverage.

     (a) Effective upon termination of the commission, all subscriber policies with the commission shall novate to the company and all employers shall purchase workers' compensation insurance from the company unless permitted to self-insure their obligations. The company shall assume responsibility for all new fund obligations of the subscriber policies which novate to the company or which are issued thereafter. Each subscriber whose policy novates to the company shall also have its advanced deposit credited to its account with the company. Each employer purchasing workers' compensation insurance from the company have has the right to designate a representative or agent to act on its behalf in any and all matters relevant to coverage and claims administered by the company.
     (b) Effective July 1, 2008, an employer may elect to: (1) Continue to purchase workers' compensation insurance from the company; (2) purchase workers' compensation insurance from another private carrier licensed and otherwise authorized to transact workers' compensation insurance in this state; or (3) self-insure its obligations if it satisfies all requirements of this code to so self-insure and is permitted to do so: Provided, That all state and local governmental bodies, including, but not limited to, all counties and municipalities and their subdivisions and including all boards, colleges, universities and schools, shall continue to purchase workers' compensation insurance from the company through the thirtieth day of June, two thousand twelve June 30, 2010: Provided, however, That the company may not cancel or refuse to renew a policy of a state or local governmental body prior to July 1, 2011, except for failure of consideration to be paid by the policyholder or for refusal to comply with a premium audit. The company and other private carriers are permitted to sell workers' compensation insurance through licensed agents in the state. To the extent that a private carrier markets workers' compensation insurance through a licensed agent, it is subject to all applicable provisions of chapter thirty-three of this code.
     (c) Every employer shall post a notice upon its premises in a conspicuous place identifying its workers' compensation insurer. The notice must include the name, business address and telephone number of the insurer and of the person to contact with questions about a claim. The employer shall at all times maintain the notice provided for the information of his or her employees. Release of employer policy information and status by the Industrial Council and the Insurance Commissioner shall be governed by section four, article one of this chapter.
     (d) Any rule promulgated by the Board of Managers or Industrial Council empowering agencies of this state to revoke or refuse to grant, issue or renew any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employer whose account is in default with regard to any liability under this chapter shall be fully enforceable by the Insurance Commissioner against the employer.
     (e) Effective January 1, 2009, the company may decline to offer coverage to any applicant. Private carriers and, effective January 1, 2009, the company, may cancel a policy upon the issuance of thirty days' written advance notice to the policyholder and may refuse to renew a policy upon the issuance of sixty days' written advance notice to the policyholder: Provided, That cancellation of the policy by the carrier for failure of consideration to be paid by the policyholder or for refusal to comply with a premium audit is effective after ten days' advance written notice of cancellation to the policyholder.
     (f) Every private carrier shall notify the Insurance Commissioner as follows: (1) Of the issuance or renewal of insurance coverage, within thirty days of: (A) The effective date of coverage; or (B) the private carrier's receipt of notice of the employer's operations in this state, whichever is later; (2) of a termination of coverage by the private carrier due to refusal to renew or cancellation, at least ten days prior to the effective date of the termination; and (3) of a termination of coverage by an employer, within ten days of the private carrier's receipt of the employer's request for such termination; the notifications shall be on forms developed or in a manner prescribed by the Insurance Commissioner.
     (g) For the purposes of subsections (e) and (f) of this section, the transfer of a policyholder between insurance companies within the same group is not considered a cancellation or refusal to renew a workers' compensation insurance policy.
§23-2C-17. Administration of a competitive system.
     (a) Every policy of insurance issued by a private carrier:
     (1) Shall be in writing;
     (2) Shall contain the insuring agreements and exclusions; and
     (3) If it contains a provision inconsistent with this chapter, it shall be deemed to be reformed to conform with this chapter.
     (b) The Industrial Council shall promulgate a rule which prescribes the requirements of a basic policy to be used by private carriers.
     (c) A private carrier or self-insured employer may enter into a contract to have its plan of insurance administered by a third-party administrator if the administrator is licensed or registered with the Insurance Commissioner in accordance with article forty-six, chapter thirty-three of the this code. Notwithstanding any other provision of this code to the contrary, any third-party administrator who, directly or indirectly, underwrites or collects charges or premiums from, or adjusts or settles claims on residents of this state, in connection with workers' compensation coverage offered or provided by an insurer, a private carrier or self-insured employer, is subject to the provisions of article forty-six, chapter thirty-three of this code to the same extent as those persons included in the definition set forth in subsection (a), section two of said article. The Insurance Commissioner shall propose rules, as provided in section five, article two-c of this chapter, to regulate the use of third- party administrators by private carriers and self-insured employers, including rules setting forth mandatory provisions for agreements between third-party administrators and self-insured employers or private carriers.
     (d) A self-insured employer or a private carrier may:
     (1) Enter into a contract or contracts with one or more organizations for managed care to provide comprehensive medical and health care services to employees for injuries and diseases that are compensable pursuant to this chapter. The managed care plan must be approved pursuant to the provisions of section three, article four of this chapter.
     (2) Require employees to obtain medical and health care services for their industrial injuries from those organizations and persons with whom the self-insured employer or private carrier has contracted or as the self-insured employer or private carrier otherwise prescribes.
     (3) Except for emergency care, require employees to obtain the approval of the self-insured employer or private carrier before obtaining medical and health care services for their industrial injuries from a provider of health care who has not been previously approved by the self-insured employer or private carrier.
     (e) A private carrier or self-insured employer may inquire about and request medical records of an injured employee that concern a preexisting medical condition that is reasonably related to the industrial injury of that injured employee.
     (f) An injured employee must sign all medical releases necessary for the insurer of his or her self-insured employer or
his or her employer employer's private carrier to obtain information and records about a preexisting medical condition that is reasonably related to the industrial injury of the employee and that will assist the insurer to determine the nature and amount of workers' compensation to which the employee is entitled.
§23-2C-21. Limitation of liability of insurer or third-party administrator; administrative fines are exclusive remedies.

     (a) No cause of civil action may be brought or maintained by an employee against a private carrier or a third-party administrator, or any employee or agent of a private carrier or third-party administrator, who violates any provision of this chapter or chapter thirty-three of this code.
     (b) Any administrative fines or remedies provided in this chapter or chapter thirty-three of this code or rules promulgated by the Workers' Compensation Commission or the Insurance Commissioner are the exclusive civil remedies for any violation of this chapter committed by a private carrier or a third-party administrator or any agent or employee of a private carrier or a third-party administrator.
     (c) Upon a determination by the Office of Judges that a denial of compensability, a denial of an initial award of temporary total disability or a denial of an authorization for medical benefits was unreasonable, reasonable attorney's fees and the costs actually incurred in the process of obtaining a reversal of the denial shall be awarded to the claimant and paid by the company, private carrier or self-insured employer which issued the unreasonable denial. A denial is unreasonable if, after submission by or on behalf of the claimant, of evidence of the compensability of the claim, the entitlement to initial temporary total disability benefits or medical benefits, the company, private carrier or self-insured employer is unable to demonstrate that it had evidence or a legal basis supported by legal authority at the time of the denial which is relevant and probative and supports the denial of the award or authorization. Payment of attorney's fees and costs awarded under this subsection will be made to the claimant at the conclusion of litigation, including all appeals, of the claimant's protest of the denial.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1c.
§23-4-1c. Payment of temporary total disability benefits directly to claimant; payment of medical benefits; payments of benefits during protest; right of commission, successor to the commission, private carriers and self-insured employers to collect payments improperly made.

     (a) In any claim for benefits under this chapter, the Workers' Compensation Commission, the successor to the commission, other
Insurance Commissioner, private carriers or self-insured employer, whichever is applicable, shall determine whether the claimant has sustained a compensable injury within the meaning of section one of this article and enter an order giving all parties immediate notice of the decision.
     (1) The commission, successor to the commission other
Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may enter an order conditionally approving the claimant's application if it finds that obtaining additional medical evidence or evaluations or other evidence related to the issue of compensability would aid the commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, in making a correct final decision. Benefits shall be paid during the period of conditional approval; however, if the final decision is one that rejects the claim, the payments shall be considered an overpayment. The commission, successor to the commission, other Insurance Commissioner, private carrier or self- insured employer, whichever is applicable, may only recover the amount of the overpayment as provided for in subsection (h) of this section.
     (2) In making a determination regarding the compensability of a newly filed claim or upon a filing for the reopening of a prior claim pursuant to the provisions of section sixteen of this article based upon an allegation of recurrence, reinjury, aggravation or progression of the previous compensable injury or in the case of a filing of a request for any other benefits under the provisions of this chapter, the other
commission, successor to the commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall consider the date of the filing of the claim for benefits for a determination of the following:
     (A) Whether the claimant had a scheduled shutdown beginning within one week of the date of the filing;
     (B) Whether the claimant received notice within sixty days of the filing that his or her employment position was to be eliminated, including, but not limited to, the claimant's worksite, a layoff or the elimination of the claimant's employment position;
     (C) Whether the claimant is receiving unemployment compensation benefits at the time of the filing; or
     (D) Whether the claimant has received unemployment compensation benefits within sixty days of the filing. In the event of an affirmative finding upon any of these four factors, the finding shall be given probative weight in the overall determination of the compensability of the claim or of the merits of the reopening request.
     (3) Any party may object to the order of the commission, successor to the commission, other
Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, and obtain an evidentiary hearing as provided in section one, article five of this chapter: Provided, That if the successor to the commissioner, other private carrier or self-insured, whichever is applicable, fails to timely issue a ruling upon any application or motion as provided by law, or if the claimant files a timely protest to the ruling of a self-insured employer, private carrier or other issuing entity, denying the compensability of the claim, denying initial temporary total disability benefits or denying medical authorization, the Office of Judges shall provide a hearing on the protest on an expedited basis as determined by rule of the Office of Judges.
     (b) Where it appears from the employer's report, or from proper medical evidence, that a compensable injury will result in a disability which will last longer than three days as provided in section five of this article, the commission, successor to the commission, other
Insurance Commissioner, private carrier or self- insured employer, whichever is applicable, may immediately enter an order commencing the payment of temporary total disability benefits to the claimant in the amounts provided for in sections six and fourteen of this article, and the payment of the expenses provided for in subsection (a), section three of this article, relating to the injury, without waiting for the expiration of the thirty-day period during which objections may be filed to the findings as provided in section one, article five of this chapter. The commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall enter an order commencing the payment of temporary total disability or medical benefits within fifteen working days of receipt of either the employee's or employer's report of injury, whichever is received sooner, and also upon receipt of either a proper physician's report or any other information necessary for a determination. The commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall give to the parties immediate notice of any order granting temporary total disability or medical benefits. When an order granting temporary total disability benefits is made, the claimant's return-to-work potential shall be assessed. The commission Insurance Commissioner may schedule medical and vocational evaluation of the claimant and assign appropriate personnel to expedite the claimant's return to work as soon as reasonably possible.
     (c) The commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may enter orders granting temporary total disability benefits upon receipt of medical evidence justifying the payment of the benefits. The commission, successor to the commission, other Insurance Commissioner, private carrier or self- insured employer, whichever is applicable, may not enter an order granting prospective temporary total disability benefits for a period of more than ninety days: Provided, That when the commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, determines that the claimant remains disabled beyond the period specified in the prior order granting temporary total disability benefits, the commission Insurance Commissioner, private carrier or self-insured employer shall enter an order continuing the payment of temporary total disability benefits for an additional period not to exceed ninety days and shall give immediate notice to all parties of the decision.
     (d) Upon receipt of the first report of injury in a claim, the commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall request from the employer or employers any wage information necessary for determining the rate of benefits to which the employee is entitled. If an employer does not furnish this information within fifteen days from the date the commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, received the first report of injury in the case, the employee shall be paid temporary total disability benefits for lost time at the rate the commission obtains from reports made pursuant to subsection (b), section two, article two of this chapter. If no wages have been reported, the commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall make the payments at the rate the commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, finds would be justified by the usual rate of pay for the occupation of the injured employee. The rate of benefits shall be adjusted both retroactively and prospectively upon receipt of proper wage information. The commission Insurance Commissioner shall have access to all wage information in the possession of any state agency.
     (e) Subject to the limitations set forth in section sixteen of this article, upon a finding of the commission, successor to the commission, other Insurance Commissioner, private carrier or self- insured employer, whichever is applicable, that a claimant who has sustained a previous compensable injury which has been closed by order, or by the claimant's return to work, suffers further temporary total disability or requires further medical or hospital treatment resulting from the compensable injury, payment of temporary total disability benefits to the claimant in the amount provided for in sections six and fourteen of this article shall immediately commence, and the expenses provided for in subsection (a), section three of this article, relating to the disability, without waiting for the expiration of the thirty-day period during which objections may be filed. Immediate notice to the parties of the decision shall be given.
     (f) Where the employer is a subscriber to the Workers' Compensation Fund under the provisions of article three of this chapter, and upon the findings aforesaid, the commission The Insurance Commissioner, private carrier or self-insured employer shall mail all workers' compensation checks paying deliver amounts due for temporary total disability benefits directly to the claimant and not to the employer for delivery to the claimant.
     (g) Where the employer has elected to carry its own risk under section nine, article two of this chapter, and upon the findings aforesaid, the self-insured employer shall immediately pay the amounts due the claimant for temporary total disability benefits. A copy of the notice shall be sent to the claimant.
     (h) In the event that an employer files a timely objection to any order of the division Insurance Commissioner, private carrier or self-insured, whichever is applicable, with respect to compensability, or any order denying an application for modification with respect to temporary total disability benefits, or with respect to those expenses outlined in subsection (a), section three of this article, the division shall continue to pay to the claimant such benefits and expenses during the period of such disability. Where it is subsequently found by the division Insurance Commissioner, private carrier or self-insured, whichever is applicable, that the claimant was not entitled to receive such temporary total disability benefits or expenses, or any part thereof, so paid, the division Insurance Commissioner, private carrier or self-insured, whichever is applicable, shall, when the employer is a subscriber to the fund, credit said employer's account with the amount of the overpayment. When the employer has protested the compensability or applied for modification of a temporary total disability benefit award or expenses and the final decision in that case determines that the claimant was not entitled to the benefits or expenses, the amount of benefits or expenses is considered overpaid. For all awards made or nonawarded partial benefits paid the commission, the successor to the commission, other Insurance Commissioner, private carriers or self-insured employer may recover the amount of overpaid benefits or expenses by withholding, in whole or in part, future disability benefits payable to the individual in the same or other claims and credit the amount against the overpayment until it is repaid in full.
     (i) In the event that the commission, successor to the commission, other Insurance Commissioner, private carrier or self- insured employer, whichever is applicable, finds that, based upon the employer's report of injury, the claim is not compensable, the commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall provide a copy of the employer's report to the claimant in addition to the order denying the claim.
     (j) If a claimant is receiving benefits paid through a wage replacement plan, salary continuation plan or other benefit plan provided by the employer to which the employee has not contributed, and that plan does not provide an offset for temporary total disability benefits to which the claimant is also entitled under this chapter as a result of the same injury or disease, the employer shall notify the commission Insurance Commissioner, private carrier or self-insured of the duplication of the benefits paid to the claimant. Upon receipt of the notice, the commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall reduce the temporary total disability benefits provided under this chapter by an amount sufficient to ensure that the claimant does not receive monthly benefits in excess of the amount provided by the employer's plan or the temporary total disability benefit, whichever is greater: Provided, That this subsection does not apply to benefits being paid under the terms and conditions of a collective bargaining agreement.
§23-4-6b. Occupational hearing loss claims.
     (a) In all claims for occupational hearing loss caused by either a single incident of trauma or by exposure to hazardous noise in the course of and resulting from employment, the degree of permanent partial disability, if any, shall be determined in accordance with the provisions of this section and awards made in accordance with the provisions of section six of this article.
     (b) The percent of permanent partial disability for a monaural hearing loss shall be computed in the following manner:
     (1) The measured decibel loss of hearing due to injury at the sound frequencies of five hundred, one thousand, two thousand and three thousand hertz shall be determined for the injured ear and the total shall be divided by four to ascertain the average decibel loss;
     (2) The percent of monaural hearing impairment for the injured ear shall be calculated by multiplying by one and six-tenths percent the difference by which the aforementioned average decibel loss exceeds twenty-seven and one-half decibels, up to a maximum of one hundred percent hearing impairment, which maximum is reached at ninety decibels; and
     (3) The percent of monaural hearing impairment obtained shall be multiplied by twenty-two and one-half to ascertain the degree of permanent partial disability.
     (c) The percent of permanent partial disability for a binaural hearing loss shall be computed in the following manner:
     (1) The measured decibel loss of hearing due to injury at the sound frequencies of five hundred, one thousand, two thousand and three thousand hertz is determined for each ear and the total for each ear shall be divided by four to ascertain the average decibel loss for each ear;
     (2) The percent of hearing impairment for each ear is calculated by multiplying by one and six-tenths percent the difference by which the aforementioned average decibel loss exceeds twenty-seven and one-half decibels, up to a maximum of one hundred percent hearing impairment, which maximum is reached at ninety decibels;
     (3) The percent of binaural hearing impairment shall be calculated by multiplying the smaller percentage (better ear) by five, adding this figure to the larger percentage (poorer ear) and dividing the sum by six; and
     (4) The percent of binaural hearing impairment obtained shall be multiplied by fifty-five to ascertain the degree of permanent partial disability.
     (d) No permanent partial disability benefits shall be granted for tinnitus, psychogenic hearing loss, recruitment or hearing loss above three thousand hertz.
     (e) An additional amount of permanent partial disability shall be granted for impairment of speech discrimination, if any, to determine the additional amount for binaural impairment, the percentage of speech discrimination in each ear shall be added together and the result divided by two to calculate the average percentage of speech discrimination, and the permanent partial disability shall be ascertained by reference to the percentage of permanent partial disability in the table below on the line with the percentage of speech discrimination obtained. To determine the additional amount for monaural impairment, the permanent partial disability shall be ascertained by reference to the percentage of permanent partial disability in the table below on the line with the percentage of speech discrimination in the injured ear.
TABLE

          % of Permanent
        % of Speech Discrimination  Partial Disability
90% and up to and including 100%
0%

80% and up to but not including 90%
1%

70% and up to but not including 80%
3%

60% and up to but not including 70%
4%

0% and up to but not including 60%
5%

  (f) No temporary total disability benefits shall be granted for noise-induced hearing loss.
  (g) An application for benefits alleging a noise-induced hearing loss shall set forth the name of the employer or employers and the time worked for each. The commission shall Insurance Commissioner may allocate to and divide any charges resulting from the claim among the employers with whom the claimant sustained exposure to hazardous noise for as much as sixty days during the period of three years immediately preceding the date of last exposure. The allocation is based upon the time of exposure with each employer. In determining the allocation, the commission Insurance Commissioner shall consider all the time of employment by each employer during which the claimant was exposed and not just the time within the three-year period under the same allocation as is applied in occupational pneumoconiosis cases.
  (h) The commission employer against whom the claim is filed shall provide consistent with current practice, for prompt referral the claims for evaluation, for all medical reimbursement and for prompt authorization of hearing enhancement devices.
  (i) The provisions of this section and the amendments to section six of this article insofar as applicable to permanent partial disabilities for hearing loss are operative as to any claim filed after thirty days from the effective date of this section.
  
(j) Effective upon termination of the commission, the administrative duties governing hearing loss claims shall transfer to the Insurance Commissioner.
§23-4-8. Physical examination of claimant.
(a) The commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may, after due notice to the employer and claimant, whenever in its opinion it is necessary, order a claimant of compensation for a personal injury other than occupational pneumoconiosis to appear for examination before a medical examiner or examiners selected by the commission, successor to the commission, Insurance Commissioner, other private carrier or self- insured employer, whichever is applicable; and the claimant and employer respectively, each have the right to may select a physician of the claimant's or the employer's own choosing and at the claimant's or the employer's own expense to participate in the examination. All examinations shall be performed in accordance with the protocols and procedures established by the health care advisory panel pursuant to section three-b of this article rules of the Insurance Commissioner: Provided, That the physician may exceed these protocols when additional evaluation is medically necessary. The claimant and employer shall respectively, be furnished with a copy of the report of examination made by the medical examiner or examiners selected by the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable. The respective physicians selected by the claimant and employer have the right to submit a separate report to, or concur in any report made by the medical examiner or examiners selected by the commission or each may file with the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, a separate report, which Insurance Commissioner, private carrier or self-insured employer, and
any separate report shall be considered by the commission in passing upon the claim.
  (b) If the compensation claimed is for occupational pneumoconiosis, the commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may, after due notice to the employer, and whenever in the commission's opinion it is necessary, order a claimant to appear for examination before the Occupational Pneumoconiosis Board provided for in section eight-a of this article. In any case the claimant is entitled to reimbursement for loss of wages, and to reasonable traveling and other expenses necessarily incurred by him or her in obeying the order.
  
(c) Where the claimant is ordered to appear for an examination by the Occupational Pneumoconiosis Board pursuant to subsection (b) of this section or is required to undergo a medical examination or examinations by a physician or physicians selected by the employer, as aforesaid or in connection with any claim which is in litigation, the employer shall reimburse pursuant to subsection (a) of this section, the party that referred the claimant to the Occupational Pneumoconiosis Board or required the medical examination shall reimburse the claimant for loss of wages and reasonable traveling expenses as set forth in subsection (e) of this section and other expenses in connection with the examination or examinations not to exceed the expenses paid when a claimant is examined by a physician or physicians selected by the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable.
__(d) The claimant shall be reimbursed for reasonable traveling expenses as set forth in subsection (e) of this section incurred in connection with medical examinations, appointments and treatments, including appointments with the claimant's authorized treating physician.
__(e) The claimant's traveling expenses include, at a minimum, reimbursement for meals, lodging and milage.
Reimbursement for travel in a personal motor vehicle shall be at the milage reimbursement rates contained in the Department of Administration's Purchasing Division Travel Rules as authorized by section eleven, article three, chapter twelve of this code in effect at the time the treatment is authorized.
§23-4-8c. Occupational Pneumoconiosis Board; reports and distribution thereof; presumption; findings required of board; objection to findings; procedure thereon; limitations on refilings; consolidation of claims.

     (a) The Occupational Pneumoconiosis Board, as soon as practicable after it has completed its investigation, shall make its written report to the commission, successor to the commission, other Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, of its findings and conclusions on every medical question in controversy and the commission board shall send one copy of the report to the employee or claimant and one copy to the employer. The board shall also return to and file with the commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, all the evidence as well as all statements under oath, if any, of the persons who appeared before it on behalf of the employee or claimant, or employer, and also all medical reports and X-ray examinations produced by or on behalf of the employee or claimant, or employer.
     (b) If it can be shown that the claimant or deceased employee has been exposed to the hazard of inhaling minute particles of dust in the course of and resulting from his or her employment for a period of ten years during the fifteen years immediately preceding the date of his or her last exposure to such hazard and that the claimant or deceased employee has sustained a chronic respiratory disability, it shall be presumed that the claimant is suffering or the deceased employee was suffering at the time of his or her death from occupational pneumoconiosis which arose out of and in the course of his or her employment. This presumption is not conclusive.
     (c) The findings and conclusions of the board shall set forth, among other things, the following:
     (1) Whether or not the claimant or the deceased employee has contracted occupational pneumoconiosis and, if so, the percentage of permanent disability resulting therefrom;
     (2) Whether or not the exposure in the employment was sufficient to have caused the claimant's or deceased employee's occupational pneumoconiosis or to have perceptibly aggravated an existing occupational pneumoconiosis or other occupational disease; and
     (3) What, if any, physician appeared before the board on behalf of the claimant or employer and what, if any, medical evidence was produced by or on behalf of the claimant or employer.
     (d) If either party objects to the whole or any part of the findings and conclusions of the board, the party shall file with the commission or, on or after the first day of July, one thousand nine hundred ninety-one, with the Office of Judges, within thirty sixty days from receipt of the copy to that party, unless for good cause shown the commission or chief administrative law judge extends the time, the party's objections to the findings and conclusions of the board in writing, specifying the particular statements of the board's findings and conclusions to which such party objects. The filing of an objection within the time specified is a condition of the right to litigate the findings and therefore jurisdictional. After the time has expired for the filing of objections to the findings and conclusions of the board, the commission or administrative law judge shall proceed to act as provided in this chapter. If after the time has expired for the filing of objections to the findings and conclusions of the board no objections have been filed, the report of a majority of the board of its findings and conclusions on any medical question shall be taken to be plenary and conclusive evidence of the findings and conclusions stated in the report. If objection has been filed to the findings and conclusions of the board, notice of the objection shall be given to the board, and the members of the board joining in the findings and conclusions shall appear at the time fixed by the commission or Office of Judges for the hearing to submit to examination and cross-examination in respect to the findings and conclusions. At the hearing, evidence to support or controvert the findings and conclusions of the board shall be limited to examination and cross-examination of the members of the board and to the taking of testimony of other qualified physicians and roentgenologists.
     (e) In the event that a claimant receives a final decision that he or she has no evidence of occupational pneumoconiosis, the claimant is barred for a period of three years from the date of the Occupational Pneumoconiosis Board's decision or until his or her employment with the employer who employed the claimant at the time designated as the claimant's last date of exposure in the denied claim has terminated, whichever is sooner, from filing a new claim or pursuing a previously filed, but unruled upon, claim for occupational pneumoconiosis or requesting a modification of any prior ruling finding him or her not to be suffering from occupational pneumoconiosis. For the purposes of this subsection, a claimant's employment shall be considered to be terminated if, for any reason, he or she has not worked for that employer for a period in excess of ninety days. Any previously filed, but unruled upon, claim shall be consolidated with the claim in which the board's decision is made and shall be denied together with the decided claim. The provisions of this subsection shall not be applied in any claim where doing so would, in and of itself, later cause a claimant's claim to be forever barred by the provisions of section fifteen of this article.
     (f) Effective upon termination of the commission, the Insurance Commissioner shall assume all administrative powers and responsibilities necessary to administer sections eight-a, eight-b and eight-c of this article.
§23-4-8d. Occupational pneumoconiosis claims never closed for   medical benefits.
     Notwithstanding the provisions of subdivision (4), subsection (a), section sixteen of this article, a request for medical services, durable medical goods or other medical supplies in an occupational pneumoconiosis claim may be made at any time.
§23-4-15b. Determination of nonmedical questions; claims for occupational pneumoconiosis; hearing.

     
(a) If a claim for occupational pneumoconiosis benefits is filed by an employee within three years from and after the last day of the last continuous period of sixty days' exposure to the hazards of occupational pneumoconiosis, the commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall determine whether the claimant was exposed to the hazards of occupational pneumoconiosis for a continuous period of not less than sixty days while in the employ of the employer within three years prior to the filing of his or her claim, whether in the State of West Virginia the claimant was exposed to such hazard over a continuous period of not less than two years during the ten years immediately preceding the date of his or her last exposure to the hazard and whether the claimant was exposed to the hazard over a period of not less than ten years during the fifteen years immediately preceding the date of his or her last exposure to the hazard. If a claim for occupational pneumoconiosis benefits is filed by an employee within three years from and after the employee's occupational pneumoconiosis was made known to the employee by a physician, the commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall determine whether the claimant filed his or her application within that period and whether in the State of West Virginia the claimant was exposed to the hazard over a continuous period of not less than two years during the ten years immediately preceding the date of last exposure to the hazard and whether the claimant was exposed to the hazard over a period of not less than ten years during the fifteen years immediately preceding the date of last exposure to the hazard. If a claim for occupational pneumoconiosis benefits is filed by a dependent of a deceased employee, the commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall determine whether the deceased employee was exposed to the hazards of occupational pneumoconiosis for a continuous period of not less than sixty days while in the employ of the employer within ten years prior to the filing of the claim, whether in the State of West Virginia the deceased employee was exposed to the hazard over a continuous period of not less than two years during the ten years immediately preceding the date of his or her last exposure to the hazard and whether the claimant was exposed to the hazard over a period of not less than ten years during the fifteen years immediately preceding the date of his or her last exposure to the hazard. The commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall also determine other nonmedical facts that, in the commission's opinion of the Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, are pertinent to a decision on the validity of the claim.
     The commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable shall enter an order with respect to nonmedical findings within ninety days following receipt by the commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, of both the claimant's application for occupational pneumoconiosis benefits and the physician's report filed in connection with the claimant's application and shall give each interested party notice in writing of these findings with respect to all the nonmedical facts. The findings and actions of the commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, are final unless the employer, employee, claimant or dependent, within thirty sixty days after receipt of the notice, objects to the findings and, unless an objection is filed within the thirty- day sixty-day period, the findings are forever final, the time limitation is a condition of the right to litigate the findings and therefor jurisdictional. Upon receipt of an objection, the chief administrative law judge shall set a hearing as provided in section nine, article five of this chapter. In the event of an objection to the findings by the employer, the claim shall, notwithstanding the fact that one or more hearings may be held with respect to the objection, mature for reference to the Occupational Pneumoconiosis Board with like effect as if the objection had not been filed. If the administrative law judge concludes after the protest hearings that the claim should be dismissed, a final order of dismissal shall be entered. The final order is subject to appeal in accordance with the provisions of sections ten and twelve, article five of this chapter. If the administrative law judge concludes after the protest hearings that the claim should be referred to the Occupational Pneumoconiosis Board for its review, the order entered shall be interlocutory only and may be appealed only in conjunction with an appeal from a final order with respect to the findings of the Occupational Pneumoconiosis Board.
     (b) The administrative duties required to be performed by the commission pursuant to section fifteen-b of this article, and all applicable exempt legislative rules shall transfer from the commission to the Insurance Commissioner effective upon termination of the commission.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured employer of decision; procedures on claims; objections and hearing.

     (a) The Insurance Commissioner, private carriers and self-insured employers may determine all questions within their jurisdiction. In matters arising under subsection (c), section eight, article two-c of this chapter, and under articles three and four of this chapter, the Insurance Commissioner, private carriers and self-insured employers shall promptly review and investigate all claims. The parties to a claim are the claimant and, if applicable, the claimant's dependants, and the employer, and with respect to claims involving funds created in article two-c of this chapter for which he or she has been designated the administrator, the Insurance Commissioner. In claims in which the employer had coverage on the date of the injury or last exposure, the employer's carrier has sole authority to act on the employer's behalf in all aspects related to litigation of the claim. With regard to any issue which is ready for a decision, the Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall promptly send the decision to all parties, including the basis of its decision. As soon as practicable after receipt of the any occupational pneumoconiosis or occupational disease claim but in no event later than the date of the initial decision on the claim or any injury claim in which temporary total benefits are being claimed, the Insurance Commissioner, private carrier or self- insured employer, whichever is applicable, shall send the claimant a brochure approved by the Insurance Commissioner setting forth the claims process.
     (b) (1) Except with regard to interlocutory matters, upon making any decision, upon making or refusing to make any award or upon making any modification or change with respect to former findings or orders, as provided by section sixteen, article four of this chapter, the Insurance Commissioner, private carrier or self- insured employer, whichever is applicable, shall give notice, in writing, to the parties to the claim of its action. The notice shall state the time allowed for filing a protest to the finding. The action of the Insurance Commissioner, private carrier or self- insured employer, whichever is applicable, is final unless the decision is protested within sixty days after the receipt of such decision unless a protest is filed within the sixty-day period, the finding or action is final. This time limitation is a condition of the right to litigate the finding or action and hence jurisdictional. Any protest shall be filed with the Office of Judges with a copy served upon the parties to the claim, and other parties in accordance with the procedures set forth in sections eight and nine of this article. An employer may protest decisions incorporating findings made by the Occupational Pneumoconiosis Board, decisions made by the Insurance Commissioner acting as administrator of claims involving funds created in article two-c of this chapter, or decisions entered pursuant to subdivision (1), subsection (c), section seven-a, article four of this chapter.
     (2) (A) With respect to every application for benefits filed on or after July 1, 2008, in which a decision to deny benefits is protested and the only controversy relating to compensability is matter involves an issue as to whether the application was properly filed as a new claim or a reopening of a previous claim, the party that denied the application shall begin to make conditional payment of benefits and must promptly give notice to the Office of Judges that another identifiable person may be liable. The Office of Judges shall promptly order the appropriate persons be joined as parties to the proceeding: Provided, That at any time during a proceeding in which conditional payments are being made in accordance with the provisions of this subsection, the Office of Judges may, pending final determination of the person properly liable for payment of the claim, order that such conditional payments of benefits be paid by another party.
     (B) Any conditional payment made pursuant to paragraph (A) of this subdivision shall not be deemed an admission or conclusive finding of liability of the person making such payments. When the administrative law judge has made a determination as to the party properly liable for payment of the claim, he or she shall direct any monetary adjustment or reimbursement between or among the Insurance Commissioner, private carriers and self-insured employers as is necessary.
     (C) (c) The Office of Judges may direct that:
     (i) (1) An application for benefits be designated as a petition to reopen, effective as of the original date of filing;
     (ii) (2) A petition to reopen be designated as an application for benefits, effective as of the original date of filing; or
     (iii) (3) An application for benefits or petition to reopen filed with the Insurance Commissioner, private carrier or self- insured employer be designated as an application or petition to reopen filed with another private carrier, self-insured employer or Insurance Commissioner, effective as of the original date of filing.
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(c) (d) Where an employer protests a written decision entered pursuant to a finding of the Occupational Pneumoconiosis Board, a decision on a claim made by the Insurance Commissioner acting as the administrator of a fund created in article two-c of this chapter, or decisions entered pursuant to subdivision (1), subsection (c), section seven-a, article four of this chapter, and the employer does not prevail in its protest, and in the event the claimant is required to attend a hearing by subpoena or agreement of counsel or at the express direction of the Office of Judges, then the claimant in addition to reasonable traveling and other expenses shall be reimbursed for loss of wages incurred by the claimant in attending the hearing.
     (d) (e) The Insurance Commissioner, private carrier or self- insured employer, whichever is applicable, may amend, correct or set aside any order or decision on any issue entered by it which, at the time of issuance or any time after that, is discovered to be defective or clearly erroneous or the result of mistake, clerical error or fraud, or with respect to any order or decision denying benefits, otherwise not supported by the evidence, but any protest filed prior to entry of the amended decision is a protest from the amended decision unless and until the administrative law judge before whom the matter is pending enters an order dismissing the protest as moot in light of the amendment. Jurisdiction to issue an amended decision pursuant to this subsection continues until the expiration of two years from the date of a decision to which the amendment is made unless the decision is sooner affected by an action of an administrative law judge or other judicial officer or body: Provided, That corrective actions in the case of fraud may be taken at any time.
§23-5-3. Refusal to reopen claim; notice; objection.
     If it appears to the commission, the successor to the commission, other Insurance Commissioner, private insurance carriers and self-insured employers, whichever is applicable, that an application filed under section two of this article fails to disclose a progression or aggravation in the claimant's condition, or some other fact or facts which were not previously considered in its former findings and which would entitle the claimant to greater benefits than the claimant has already received, the commission, the successor to the commission, other Insurance Commissioner,
private insurance carriers and self-insured employers, whichever is applicable, shall, within a reasonable time, notify the claimant and the employer that the application fails to establish a prima facie cause for reopening the claim. The notice shall be in writing stating the reasons for denial and the time allowed for objection to the decision of the commission. The claimant may, within thirty sixty days after receipt of the notice, object in writing to the finding. Unless the objection is filed within the thirty-day sixty-day period, no objection shall be allowed. This time limitation is a condition of the right to objection and hence jurisdictional. Upon receipt of an objection, the Office of Judges shall afford the claimant an evidentiary hearing as provided in section nine of this article.
§23-5-16. Fees of attorney for claimant; unlawful charging or
          receiving of attorney fees.
     
(a) No attorney's fee in excess of twenty percent of any award granted shall be charged or received by an attorney for a claimant or dependent. In no case shall the fee received by the attorney of such claimant or dependent be in excess of twenty percent of the benefits to be paid during a period of two hundred eight weeks. The interest on disability or dependent benefits as provided for in this chapter shall not be considered as part of the award in determining any such attorney's fee. However, any contract entered into in excess of twenty percent of the benefits to be paid during a period of two hundred eight weeks, as herein provided, shall be unlawful and unenforceable as contrary to the public policy of this state and any fee charged or received by an attorney in violation thereof shall be deemed an unlawful practice and render the attorney subject to disciplinary action.
     (b)
On a final settlement an attorney may charge a fee not to exceed twenty percent of the total value of the medical and indemnity benefits: Provided, That this attorney's fee, when combined with any fees previously charged or received by the attorney for permanent partial disability or permanent total disability benefits, may not exceed twenty percent of an award of benefits to be paid during a period of two hundred eight weeks .
CHAPTER 33. INSURANCE.

ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-22. Authority of Insurance Commissioner regarding employers in default to workers' compensation funds; injunctions against defaulting employers.

     (a) Upon termination of the Workers' Compensation Commission, all of the powers and authority previously conferred upon the Workers' Compensation Commission pursuant to article two, chapter twenty-three of this code, relating to employers in default to the Workers' Compensation Fund, are hereby transferred to the Insurance Commissioner and shall be applied by the commissioner to those employers in default to the Old Fund or having liability to the Uninsured Employer Fund or who are in policy default or fail to maintain mandatory workers' compensation coverage, all as defined in article two-c, chapter twenty-three of this code.
               (b) In any case in which an employer is in default to the Old Fund or has liability to the Uninsured Employer Fund or who is in default on a policy or otherwise fails to maintain mandatory workers' compensation coverage, all as defined in article two-c, chapter twenty-three of this code, the commission may bring an action in the circuit court of Kanawha County to enjoin the employer from continuing to operate the employer's business: Provided, That the commissioner may, in his or her sole discretion, and as an alternative to this action pursuant to this subsection, require the employer to file a bond, in the form prescribed by the commissioner, with satisfactory surety in an amount not less than one hundred fifty percent of the total payments, interest and penalties due.
     (c) In any action instituted pursuant to subsection (b) of this section, the circuit court shall issue an injunction prohibiting the employer from operating the employer's business, if the Insurance Commissioner proves by a preponderance of the evidence, that the employer is in default to the Old Fund or has liability to the uninsured fund or is in policy default or has otherwise failed to maintain mandatory workers' compensation coverage.
     (d) Notwithstanding any provision of this code to the contrary, the commissioner shall have the authority to waive penalty and interest accrued on moneys due the Old Fund. The enactment of the provisions of this subsection shall be applied retrospectively to January 1, 2006, and may not be construed to require the commissioner to adjust or otherwise modify any agreements reached with regard to the payment of penalty or interest since that date.
     (e) Notwithstanding any provision of this code to the contrary, the Insurance Commissioner may compromise and settle any claims for moneys due to the Old Fund or the Uninsured Employer Fund. Information regarding settlements is subject to chapter twenty-nine-b of this code. The commissioner shall submit to the President of the Senate, the Speaker of the House of Delegates and the Legislative Auditor an annual report summarizing the settlements into which he or she has entered pursuant to this subsection. The summary shall describe the parties involved, the total amount owed and portions paid, and the terms of the settlement.;
     And,
     By striking out the title and inserting in lieu thereof a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 537--A Bill to repeal §23- 5-17 and §23-5-18 of the Code of West Virginia, 1931, as amended; to amend and reenact §23-2-1d of said code; to amend and reenact §23-2A-1 of said code; to amend and reenact §23-2C-8, §23-2C-15, §23-2C-17 and §23-2C-21 of said code; to amend and reenact §23-4- 1c, §23-4-6b, §23-4-8, §23-4-8c and §23-4-15b of said code; to amend said code by adding thereto a new section, designated §23-4- 8d; to amend and reenact §23-5-1, §23-5-3 and §23-5-16 of said code; and to amend and reenact §33-2-22 of said code, all relating to workers' compensation; eliminating obsolete sunset provisions; redefining the responsibility of prime contractors to injured employees of their subcontractors; clarifying subrogation rights with respect to employees injured by third parties; authorizing negotiation of amount to accept as subrogation in Old Fund claims; deleting mandatory recovery fee to Insurance Commissioner in certain subrogation claims; providing for a unitary decision-making process in claims involving the Uninsured Employer Fund; changing date on which governmental bodies may purchase workers' compensation insurance in the private market and on which the employers' mutual insurance company may non-renew such bodies; awarding attorney fees and costs if workers' compensation temporary disability benefits claim is unreasonably denied; extending the scope of permissible remedies to include those in the general insurance code; permitting the recovery of administrative costs in certain actions; authorizing expedited review by the Office of Judges when a request to reopen temporary total benefits is denied; eliminating mandatory allocation in hearing loss claims; providing that claims for medical benefits in occupational pneumoconiosis claims may be made at any time; clarifying that a sixty-day period applies to various protests; extending the jurisdiction of the Office of Judges to hear certain protests; clarifying permissible method of delivering payment of benefits; establishing reimbursement for certain claimant travel expenses; authorizing award of attorney fees in certain final settlements; clarifying licensing requirements for third-party administrators; mandating conditional payments in certain instances; authorizing the Insurance Commissioner to compromise and settle claims for moneys due the Old Fund and Uninsured Employer Fund; and requiring report to Legislature regarding settlements.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 537, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 537) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 613, Clarifying coalbed methane notice requirements.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 21. COALBED METHANE WELLS AND UNITS.
§22-21-6. Permit required for coalbed methane well; permit fee; application; soil erosion control plan; penalties.

     (a) It is unlawful for any person to commence, operate, deepen or stimulate any coalbed methane well, to conduct any horizontal drilling of a well commenced from the surface for the purpose of commercial production of coalbed methane or to convert any existing well, vent hole or other hole to a coalbed methane well, including in any case site preparation work which involves any disturbance of land, without first securing from the chief a permit pursuant to this article.
     (b) Every permit application filed under this section shall be verified and shall contain the following:
     (1) The names and addresses of: (i) The well operator; (ii) the agent required to be designated under subsection (e) of this section; and (iii) every person or entity whom the applicant must notify under any section nine of this article;
     (2) The name and address of each coal operator of record and each coal owner of record or providing a record declaration of notice pursuant to section thirty-six, article six of this chapter of any coal seam which is: (i) To be penetrated by a proposed well; (ii) within seven hundred fifty horizontal feet of any portion of the proposed well bore; or (iii) within one hundred vertical feet of the designated completion coal seams of to be stimulated in the proposed well, except that in the case of an application to convert a ventilation hole to a gob well, the name and address only of such owner or operator of the seams to be penetrated by a proposed well shall be necessary;
     (3) The well name or such other identification as the chief may require;
     (4) The approximate depth to which the well is to be drilled, deepened or converted, the coal seams (stating the depth and thickness of each seam) in which the well will be completed for production and any other coal seams (including the depth and thickness of each seam) which will be penetrated by the well;
     (5) A description of any means to be used to stimulate the well;
     (6) If the proposed well will require casing or tubing to be set, the entire casing program for the well, including the size of each string of pipe, the starting point and depth to which each string is to be set and the extent to which each such string is to be cemented;
     (7) If the proposed operation is to convert an existing well, as defined in section one, article six of this chapter, or to convert a vertical ventilation hole to a coalbed methane well, all information required by this section, all formations from which production is anticipated and any plans to plug any portion of the well;
     (8) Except for a gob well or vent hole proposed to be converted to a well, if the proposed coalbed methane well will be completed in some but not all coal seams for production, a plan and design for the well which will protect all workable coal seams which will be penetrated by the well;
     (9) If the proposed operations will include horizontal drilling of a well commenced on the surface, a description of such operations, including both the vertical and horizontal alignment and extent of the well from the surface to total depth;
     (10) Any other relevant information which the chief may require by rule.
     (c) Each application for a coalbed methane well permit shall be accompanied by the following:
     (1) The applicable bond prescribed by section eight of this article;
     (2) A permit application fee of $650;
     (3) The erosion and sediment control plan required under subsection (d) of this section;
     (4) The consent and agreement of the coal owner as required by section seven and, if applicable, section twenty of this article;
     (5) A plat prepared by a licensed land surveyor or registered engineer showing the district and county in which the drill site is located, the name of the surface owner of the drill site tract, the acreage of the same, the names of the surface owners of adjacent tracts, the names of all coal owners underlying the drill site tract, the proposed or actual location of the well determined by a survey, the courses and distances of such location from two permanent points or landmarks on said tract, the location of any other existing or permitted coalbed methane well or any oil or gas well located within two thousand five hundred feet of the drill site, the number to be given the coalbed methane well, the proposed date for completion of drilling, the proposed date for any stimulation of the well and, if horizontal drilling of a well commenced on the surface is proposed, the vertical and horizontal alignment and extent of the well;
     (6) A certificate by the applicant that the notice requirements of section nine of this article have been satisfied by the applicant. Such certification may be by affidavit of personal service, or the return receipt card, or other postal receipt, for certified mailing.
     (d) An erosion and sediment control plan shall accompany each application for a permit. Such plan shall contain methods of stabilization and drainage, including a map of the project area indicating the amount of acreage disturbed. The erosion and sediment control plan shall meet the minimum requirements of the West Virginia erosion and sediment control manual as adopted and, from time to time, amended by the Office of Oil and Gas in consultation with the several soil conservation districts pursuant to the control program established in this state through Section 208 of the federal Water Pollution Control Act Amendments of 1972 [33 U. S. C. 1288]. The erosion and sediment control plan shall become part of the terms and conditions of a permit and the provisions of the plan shall be carried out where applicable in operations under the permit. The erosion and sediment control plan shall set out the proposed method of reclamation which shall comply with the requirements of section thirty, article six of this chapter.
     (e) The well operator named in such application shall designate the name and address of an agent for such operator who shall be the attorney-in-fact for the operator and who shall be a resident of the State of West Virginia, upon whom notices, orders or other communications issued pursuant to this article may be served, and upon whom process may be served. Every well operator required to designate an agent under this section shall within five days after the termination of such designation notify the office of such termination and designate a new agent.
     (f) The well owner or operator shall install the permit number as issued by the chief in a legible and permanent manner to the well upon completion of any permitted work. The dimensions, specifications and manner of installation shall be in accordance with the rules of the chief.
     (g) The chief shall deny the issuance of a permit if he or she determines that the applicant has committed a substantial violation of a previously issued permit, including the erosion and sediment control plan, or a substantial violation of one or more of the rules promulgated hereunder, and has failed to abate or seek review of the violation. In the event that the chief finds that a substantial violation has occurred with respect to existing operations and that the operator has failed to abate or seek review of the violation in the time prescribed, he or she may suspend the permit on which said violation exists, after which suspension the operator shall forthwith cease all work being conducted under the permit until the chief reinstates the permit, at which time the work may be continued. The chief shall make written findings of any such determination made by him or her and may enforce the same in the circuit courts of this state and the operator may appeal such suspension pursuant to the provisions of section twenty-five of this article. The chief shall make a written finding of any such determination.
     (h) Any person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000 or be imprisoned confined in the county jail not more than twelve months one year, or both fined and imprisoned confined.
§22-21-15. Drilling units and pooling of interests.

          (a) In the absence of a voluntary agreement, an operator, owner or other party claiming an ownership interest in the coalbed methane may file an application with the chief to pool: (i) Separately owned interests in a single tract; (ii) separately owned tracts; (iii) separately owned interests in any tract; and (iv) any combination of (i), (ii) and (iii) to form a drilling unit for the production of coalbed methane from one or more coalbed methane wells.
          (b) The application for a drilling unit may accompany the application for a permit for a coalbed methane well or be filed as a supplement to the permit application. Such application shall be verified by the applicant and contain the following information for the proposed unit:
          (1) The identity of each well and operator as set out in the well permit application;
          (2) Each well number, if one has been assigned;
          (3) The acreage of the proposed unit, the identity and acreage of each separate tract to be included in the proposed unit and, where parts of tracts are included, the acreage of such parts;
          (4) The district and county in which the unit is located;
          (5) The names and addresses of the owners of the coal and coalbed methane underlying each separate tract, or the portion thereof which is to be included in the unit, any lessees or operators thereof, any coalbed methane owners not otherwise named, and any other claimants thereto all persons to whom notice must be provided under subsection (a), section sixteen of this article, known to the applicant. When any coal seam is separately owned, the list of names shall identify such separate ownership giving the names of the separately owned seams;
          (6) A statement describing the actions taken by the applicant to obtain a voluntary agreement from each interest owner or claimant named in the application to whom notice must be provided under subsection (a), section sixteen of this article or any other owner or claimant who has notified the applicant of a claim from which agreement has not been obtained;
          (7) Other pertinent and relevant information as the chief may prescribe by rules.
          (c) The application for a drilling unit shall be accompanied with the following:
          (1) A plat prepared by a licensed land surveyor or registered professional engineer showing the location of the coalbed methane well or wells, or proposed well or wells, the boundary and acreage of the proposed drilling unit, the boundary and acreage of each tract contained in the unit and, where parts of tracts are included, the boundary and acreage of such parts, a name identification of each tract and the district and county in which the unit is located. All boundaries must be shown with courses and distances;
          (2) A permit application fee of $250;
          (3) A certificate by the applicant that the notice requirements of section sixteen of this article were satisfied by the applicant. Such certification may be by affidavit of personal service, or the return receipt card, or other postal receipt, for certified mailing;
          (4) An estimate of the cost, or the actual cost if known, of drilling, completing and equipping, operating, plugging and abandoning any well or wells in the proposed unit.
§22-21-16. Notice to owners.
          (a) At least thirty days prior to the date set for hearing under section seventeen of this article, the applicant shall deliver by personal service or by certified mail, return receipt requested, notice to the following:
          (1) Each coal owner of record and coal operator of record of any coal seam underlying any tract or portion thereof which is proposed to be included in the unit;
          (2) Each owner and lessee of record and each operator of natural gas surrounding the well bore and existing in formations above the top of the uppermost member of the "Onondaga Group" or at a depth less than six thousand feet, whichever is shallower. Notices to gas operators shall be sufficient if served upon the agent of record with the Office of Oil and Gas; and
          (3) Any coalbed methane owner to the extent not otherwise named which interest arises from a deed, lease, contract, will, inheritance or other instrument of record wherein a person or entity identified in subdivision (1) or (2), subsection (a) of this section, or the predecessor in title to such person or entity, expressly granted, leased, reserved or conveyed coalbed methane.
          (b) At least thirty days prior to the date set for the hearing under section seventeen of this article, the applicant shall publish a notice by a Class II legal advertisement in the county or counties in which the well unit is to be located. The legal advertisement shall contain the information required by subsection (c) of this section and any other information as the chief shall prescribe by rule.
__________(c)
The notice required by subsection (a) of this section shall specify a time and place for a conference and a hearing on this application, shall advise the persons notified that the applicant has filed an application for a drilling unit for the production of coalbed methane, that they may be present and object or offer comments to the formation of the proposed unit and shall be accompanied with copies of: (i) The permit application for the coalbed methane well; (ii) the permit application for the drilling unit; and (iii) the plat of the drilling unit. However, in the case of the notice required by subsection (b) of this section, only the address of where an interested party can obtain such copies is required to be published.
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(d) Notice by the applicant to all persons to whom notice must be provided under subsection (a) of this section and notice by publication as provided by subsection (b) of this section shall be deemed to include, and shall be deemed to be sufficient notice to, all potential claimants to ownership of the coalbed methane.
§22-21-17. Review of application; hearing; pooling order; spacing; operator; elections; working interests, royalty interests, carried interests, escrow account for conflicting claims, division order.

          (a) Prior to the time fixed for a hearing under subsection (b) of this section, the board shall also set a time and place for a conference between the proposed applicant to operate a coalbed methane drilling unit and all persons identified in the application as having an interest in the coalbed methane or being a claimant if such interests are disputed, to whom notice has been given under subsection (a), section sixteen of this article who have not entered into a voluntary agreement. At such conference the applicant and such other persons present or represented having an interest in the proposed unit shall be given an opportunity to enter into voluntary agreements for the development of the unit upon reasonable terms and conditions.
          No order may be issued by the board as to any unit unless the applicant submits at the hearing a verified statement setting forth the results of the conference. If agreement is reached with all parties to the conference, the board shall find the unit is a voluntary unit and issue an order consistent with such finding.
          (b) The review board shall, upon request of a proposed applicant for a drilling unit or upon request of a coal owner or operator, provide a convenient date and time for a hearing on the application for a drilling unit, which hearing date shall be no sooner than thirty-five days nor more than sixty days of the date the request for hearing is made. The review board shall review the application and on the date specified for a hearing shall conduct a public hearing. The review board shall take evidence, making a record thereof and consider:
          (1) The area which may be drained efficiently and economically by the proposed coalbed methane well or wells;
          (2) The plan of development of the coal and the need for proper ventilation of any mines or degasification of any affected coal seams;
          (3) The nature and character of any coal seam or seams which will be affected by the coalbed methane well or wells;
          (4) The surface topography and property lines of the lands underlaid by the coal seams to be included in the unit;
          (5) Evidence relevant to the proper boundary of the drilling unit;
          (6) The nature and extent of ownership of each coalbed methane owner or claimant and whether conflicting claims exist;
          (7) Whether the applicant for the drilling unit proposes to be the operator of the coalbed methane well or wells within the unit; and if so, whether such applicant has a lease or other agreement from the owners or claimants of a majority interest in the proposed drilling unit;
          (8) Whether a disagreement exists among the coalbed methane owners or claimants over the designation of the operator for any coalbed methane wells within the unit and, if so, relevant evidence to determine which operator can properly and efficiently develop the coalbed methane within the unit for the benefit of the majority of the coalbed methane owners;
          (9) If more than one person is interested in operating a well within the unit, the estimated cost submitted by each such person for drilling, completing, operating and marketing the coalbed methane from any proposed well or wells; and
          (10) Any other available geological or scientific data pertaining to the pool which is proposed to be developed.
          (c) The review board shall take into account the evidence introduced, comments received and any objections at the hearing, and if satisfied that a drilling unit should not be established, shall enter an order denying the application. If the review board is satisfied that a drilling unit should be established, it shall enter a pooling order establishing a drilling unit. Such pooling order shall:
          (1) Establish the boundary of the proposed unit, making such adjustment in the boundary as is just;
          (2) Authorize the drilling and operation of a coalbed methane well or wells for production of coalbed methane from the pooled acreage;
          (3) Establish minimum distances for any wells in the unit and for other wells which would drain the pooled acreage;
          (4) Designate the operator who will be authorized to drill, complete and operate any well or wells in the unit;
          (5) Establish a reasonable fee for the operator for operating costs, which shall include routine maintenance of the well and all accounting necessary to pay all expenses, royalties and amounts due working interest owners;
          (6) Such other findings and provisions as are appropriate for each order.
          (d) The operator designated in such order shall be responsible for drilling, completing, equipping, operating, plugging and abandoning the well, shall market all production therefrom, shall collect all proceeds therefor and shall distribute such proceeds in accordance with the division order issued by the review board.
          (e) Upon issuance of the pooling order, the coalbed methane owners or any lessee of any such owners or any claimants thereto may make one of the following elections within thirty days after issuance of the order:
          (1) An election to sell or lease its interest to the operator on such terms as the parties may agree, or if unable to agree, upon such terms as are set forth by the board in its order;
          (2) An election to become a working interest owner by participating in the risk and cost of the well; or
          (3) An election to participate in the operation of the well as a carried interest owner.
          Any entity which does not make an election within said thirty days prescribed herein shall be deemed to have elected to sell or lease under subdivision (1) of this subsection.
          (f) The working interest in the well shall include: (i) The right to participate in decisions regarding expenditures in excess of operating costs, taxes, any royalties in excess of one-eighth, and other costs and expenses allowed in the pooling order; and (ii) the obligation to pay for all expenditures. The working interest shall exist in: (i) All well operators and owners who participate in the risk and cost of drilling and completing the well; and (ii) carried interest owners after recoupment provided in subsection (h) of this section. The working interest owners' net revenue share shall be seven eighths of the proceeds of sales of coalbed methane at the wellhead after deduction of operating costs, taxes, any royalties in excess of one-eighth and other costs and expenses allowed in a pooling order. Unless the working interest owners otherwise agree, the working interest owners shall share in all costs and decisions in proportion to their ownership interest in the unit. If any working interest owner deposits or contributes amounts in the escrow account which exceed actual costs, such owner shall be entitled to a refund; and if amounts deposited or contributed are less than actual costs, such owner shall make a deposit or contribution for the deficiency.
          (g) The royalty interest in a well shall include the right to receive one eighth of the gross proceeds resulting from the sale of methane at the wellhead and such interest shall exist in the coalbed methane owners: Provided, That any coalbed methane owner who in good faith has entered a lease or other contract prior to receiving notice of an application to form the drilling unit as provided herein shall be entitled to such owner's fractional interest in the royalty calculated at a rate provided for in such contract. Each such owner shall be entitled to share in the royalty in proportion to his or her fractional interest in the unit.
          (h) Where a coalbed methane owner elects to become a carried interest owner, such owner shall be entitled to his or her proportionate share of the working interest after the other working interest owners have recouped three hundred percent of the reasonable capital costs of the well or wells, including drilling, completing, equipping, plugging and abandoning and any further costs of reworking or other improvements of a capital nature.
          (i) Each pooling order issued shall provide for the establishment of an escrow account into which the payment of costs and proceeds attributable to any conflicting interests shall be deposited and held for the interest of the claimants as follows:
          (1) Each participating working interest owner, except for the operator, shall deposit in the escrow account its proportionate share of the costs allocable to the ownership interest claimed by such working interest owner.
          (2) The operator shall deposit in the escrow account all proceeds attributable to the conflicting interests of any coalbed methane owners who lease, or are deemed to have leased, their interest, plus all proceeds in excess of operational expenses, as allowed in the pooling order, attributable to the conflicting working and carried interest owners.
          (j) After each coalbed methane owner has made, or has been deemed to have made, an election under subsection (e) of this section, the review board shall enter a division order which shall set out the net revenue interest of each working interest owner, including each carried interest owner and the royalty interest of each coalbed methane owner. Thereafter payments shall be made to working interest owners, carried interest owners and royalty interest owners in accordance with the division order, except that payments attributable to conflicting claims shall be deposited in the escrow account. The fractional interest of each owner shall be expressed as a decimal carried to the sixth place.
          (k) Upon resolution of conflicting claims either by voluntary agreement of the parties or a final judicial determination, the review board shall enter a revised division order in accordance with such agreement or determination and all amounts in escrow shall be distributed as follows:
          (1) Each legally entitled working interest owner shall receive its proportionate share of the proceeds attributable to the conflicting ownership interests;
          (2) Each legally entitled carried interest owner shall receive its proportionate share of the proceeds attributable to the conflicting ownership interests, after recoupment of amounts provided in subsection (h) of this section;
          (3) Each legally entitled entity leasing, or deemed to have leased, its coalbed methane shall receive a share of the royalty proceeds attributable to the conflicting interests; and
          (4) The operator shall receive the costs contributed to the escrow account by each legally entitled participating working interest owner.
          (l) The review board shall enact rules for the administration and protection of funds delivered to escrow accounts.
          (m) No provision of this section or article shall obviate the requirement that the coal owner's consent and agreement be obtained prior to the issuance of a permit as required under section seven of this article.;
          And,
          By striking out the title and inserting in lieu thereof a new title, to read as follows:
          Eng. Com. Sub
. for Senate Bill No. 613--A Bill to amend and reenact §22-21-6, §22-21-15, §22-21-16 and §22-21-17 of the Code of West Virginia, 1931, as amended, all relating to clarifying notice requirements for a hearing on a permit application related to coalbed methane wells; requiring a notice of hearing to be published; and making technical clarifications.
          On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
          Engrossed Committee Substitute for Senate Bill No. 613, as amended by the House of Delegates, was then put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
          The nays were: None.
          Absent: None.
          So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 613) passed with its House of Delegates amended title.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
          A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
          Eng. Com. Sub. for House Bill No. 2621,
Prohibiting the use of cell phone and text-messaging devices while operating a motor vehicle except when using a hands-free device or in the case of an emergency.
          A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses, as to
          Eng. Com. Sub. for House Bill No. 2832, Relating to critical skills evaluations for students in grades three and eight.
          The message further announced the appointment of the following conferees on the part of the House of Delegates:
          Delegates M. Poling, Marshall, Shaver, Rowan and Evans.
          A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses, as to
          Eng. Com. Sub. for House Bill No. 2961,
Adding two members to the institutional boards of governors of West Virginia University and Marshall University based upon race, gender and ethnicity.
          The message further announced the appointment of the following conferees on the part of the House of Delegates:
          Delegates Kominar, Williams, Mahan, Romine and Anderson.
          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, to take effect from passage, of
          Eng. Com. Sub. for House Bill No. 2968, Requiring the State Fire Commission to establish safety standards for liquefied petroleum gas systems.
          The Senate again proceeded 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. House Bill No. 2981, Relating to primary elections and nominating procedures of third-party candidates.
          Passed by the Senate in earlier proceedings today,
          The bill still being in the possession of the Senate,
          On motion of Senator Kessler, the following amendment to the title of the bill was reported by the Clerk and adopted:
          Eng. House Bill No. 2981--A Bill to amend and reenact §3-5-7, §3-5-23 and §3-5-24 of the Code of West Virginia, 1931, as amended, all relating to elections generally, requiring candidates for the Senate and House of Delegates to file announcement of candidacy with the Secretary fo State; reducing number of signatures needed for nomination of third-party candidates; making filing deadline for the nomination of candidates August 1; eliminating requirement that persons signing nomination certificate state a desire to vote for nominated candidate; permitting duly registered voters who sign nomination certificates to vote in the corresponding primary election; establishing the date by which the filing fee must be paid; and making technical corrections.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
          At the request of Senator Deem, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.
          At the request of Senator Deem, unanimous consent being granted, Senator Deem addressed the Senate regarding carbon dioxide regulations.
          Thereafter, at the request of Senator Hall, and by unanimous consent, the remarks by Senator Deem were ordered printed in the Appendix to the Journal.
          The Senate again proceeded to the third order of business.
          A message from The Clerk of the House of Delegates announced the amendment by that body, adoption as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
          Senate Concurrent Resolution No. 38, Requesting Division of Highways name Route 9 from Martinsburg to Berkeley Springs "Ray Johnston Memorial Highway".
          On motion of Senator Chafin, the message on the resolution was taken up for immediate consideration.
          The following House of Delegates amendments to the resolution were reported by the Clerk:
          On page two, after the Resolved clause, by striking out the words "Berkeley Springs" and inserting in lieu thereof the words "the Morgan County Line";
          And,
          By striking out the title and substituting therefor a new title, to read as follows:
          Senate Concurrent Resolution No. 38--
Requesting the Division of Highways name the section of Route 9 from Martinsburg to the Morgan County line the "Ray Johnston Memorial Highway".
          On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the resolution.
          The question being on the adoption of the resolution (S. C. R. No. 38), as amended by the House of Delegates, the same was put and prevailed.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
          A message from The Clerk of the House of Delegates announced that that body had refused to recede from its amendments, and requested the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses, as to
          Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373, Relating to PROMISE Scholarship.
          The message further announced the appointment of the following conferees on the part of the House of Delegates:
          Delegates Williams, Beach, Doyle, Romine and Anderson.
          On motion of Senator Chafin, the Senate agreed to the appointment of a conference committee on the bill.
          Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
          Senators Laird, Green, Oliverio, Stollings and Guills.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
          A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
          Eng. Com. Sub. for House Bill No. 2218, Authorizing the Department of Transportation to promulgate legislative rules.
          The message further announced the appointment of the following conferees on the part of the House of Delegates:
          Delegates Brown, Barker and Sobonya.
          A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
          Eng. House Bill No. 2920, Eliminating the felony conviction for a second or subsequent conviction of petit larceny.
          The message further announced the appointment of the following conferees on the part of the House of Delegates:
          Delegates Fleischauer, Frazier and Ellem.
          A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
          Eng. Com. Sub. for House Bill No. 3146, Relating to seniority rights for school service personnel.
          The message further announced the appointment of the following conferees on the part of the House of Delegates:
          Delegates M. Poling, Ennis and Rowan.
          The Senate again proceeded to the eighth order of business.
          Eng. Com. Sub. for House Bill No. 3278, Relating to the life and health insurance guaranty association.
          On third reading, coming up out of regular order, was read a third time and put upon its passage.
          On the passage of the bill,
the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 3278) 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. 2335, Relating to the federal "Yellow Ribbon G. I. Education Enhancement Program".
          On third reading, coming up in regular order, was read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2335) 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. 2401, Providing for the expiration of the alternative minimum tax.
          On third reading, coming up in regular order, was read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2401) 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. 2566, Expanding applicability of increased penalties for crimes against certain protected persons.
          On third reading, coming up in regular order, was read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2566) 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. 2660, Expanding the definition of limited health care service.
          On third reading, coming up in regular order, was read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2660) 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. 2690, Updating language pertaining to indemnity for the death of diseased or infected animals.
          On third reading, coming up in regular order, was read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2690) 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. 2916, Relating to the Emergency Medical Services Act.
          On third reading, coming up in regular order, was read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2916) passed with its title.
          Senator Chafin moved that the bill take effect from passage.
          On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
          The nays were: None.
          Absent: None.
          So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2916) 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. 2958, Increasing the fines for a trespassing conviction pursuant to certain circumstances.
          On third reading, coming up in regular order, was read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2958) 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. 3074, Allowing the Secretary of State to notify people with delinquent taxes by certified mail.
          On third reading, coming up in regular order, was read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 3074) 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. 3336, Continuing early intervention services to families with developmentally delayed infants and toddlers but eliminating the cost-free provision.
          On third reading, coming up in regular order, was read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 3336) passed.
          On motion of Senator Prezioso, the following amendment to the title of the bill was reported by the Clerk and adopted:
          Eng. Com. Sub. for House Bill No. 3336--A Bill to amend and reenact §16-5K-2 and §16-5K-6 of the Code of West Virginia, 1931, as amended, all relating to authorizing the Bureau for Public Health to continue providing early intervention services to families with developmentally delayed infants and toddlers; authorizes the ability to charge fees on a sliding scale and to bill third-party payers; and establishing that any fees for payments by third-party payers will go into the Birth-to-Three Fund.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
          The end of today's third reading calendar having been reached, the Senate returned to the consideration of
          Eng. House Bill No. 2931, Removing a severance tax on timber for tax years 2010 through 2013.
          On third reading, coming up in deferred order, was read a third time and put upon its passage.
          Pending discussion,
          The question being "Shall Engrossed House Bill No. 2931 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. 2931) 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. 2931--A Bill to amend and reenact §11-13A-3b of the Code of West Virginia, 1931, as amended; and to amended and reenact §11-13V-4 of said code, all relating to removing a severance tax on timber for tax years 2010 through 2012, inclusive.
          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 Deem, and by unanimous consent, the remarks by Senators Helmick, Barnes, Browning, Williams and K. Facemyer regarding the passage of Engrossed House Bill No. 2931 were ordered printed in the Appendix to the Journal.
          At the request of Senator Chafin, unanimous consent being granted, the Senate returned to the seventh order of business.
          Senate Concurrent Resolution No. 73, Requesting Joint Committee on Government and Finance study apiculture industry.
          On unfinished business, coming up in regular order, was reported by the Clerk.
          On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
          Senate Concurrent Resolution No. 74, Requesting Joint Committee on Government and Finance study farmers markets.
          On unfinished business, coming up in regular order, was reported by the Clerk.
          On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
          Senate Concurrent Resolution No. 77, Requesting Joint Committee on Government and Finance study existing laws related to current mortgage crisis.
          On unfinished business, coming up in regular order, was reported by the Clerk.
          On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
          House Concurrent Resolution No. 10, The "T-5 Leon Whitlock and PFC Forrest Wilson Memorial Bridge" and the "SFC Stanley Williams Memorial Bridge".
          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.
          House Concurrent Resolution No. 12,
The "Sebert S. Duty Memorial Bridge".
          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.
          House Concurrent Resolution No. 14, The "Corporal William Dely Memorial Bridge".
          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.
          House Concurrent Resolution No. 16, The "Willis W. Elkins Memorial Bridge".
          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.
          House Concurrent Resolution No. 17, The "War Veterans of Mercer County Memorial Bridge".
          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.
          House Concurrent Resolution No. 18, The "Chief Master Sergeant George Wallace Hedrick, Jr, Bridge".
          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.
          House Concurrent Resolution No. 19, Requesting the Division of Highways to rename Guy Gillenwater Hollow to "Heritage Road".
          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.
          House Concurrent Resolution No. 20, Requesting the Division of Highways add to the signage on bridge number O6-O2-0.10, in Cabell County, adding "Green Beret" above "Sgt. Jackie L. Waymire Memorial Bridge" and "Recipient of DSC KIA Vietnam 1967" below.
          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.
          House Concurrent Resolution No. 21, The "Staff Sgt. Jeremy Alexander Brown Memorial Bridge".
          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.
          House Concurrent Resolution No. 22, The "Buffalo Creek Memorial Highway".
          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.
          House Concurrent Resolution No. 25, Requesting that the Division of Highways relocate the marker known as the Washington Lands Marker in Moundsville.
          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.
          House Concurrent Resolution No. 28, The "Sgt. Daniel Pesimer Memorial Bridge Killed in Vietnam, 1968".
          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.
          House Concurrent Resolution No. 29, The "Arden Cogar, Sr. Bridge".
          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.
          House Concurrent Resolution No. 31, The "Airman First Class Christopher Burns Lester Memorial Bridge".
          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.
          House Concurrent Resolution No. 39, The "Clair Bee: Basketball Coach and Author Memorial Bridge".
          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.
          House Concurrent Resolution No. 44, The "SFC Jaime Scott Nicholas Memorial Highway".
          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.
          House Concurrent Resolution No. 45, The "Bob Basil Memorial Bridge".
          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.
          House Concurrent Resolution No. 47, The "PFC Ronald 'Ronnie' Dean, USMC, Memorial Bridge".
          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.
          House Concurrent Resolution No. 75, The "Pearl Harbor: PFC Carey K. Stockwell Memorial Bridge".
          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.
          At the request of Senator Caruth, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.
          Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
          On motion of Senator Chafin, the Senate recessed until 8:30 p.m. tonight.

Night Session

          Upon expiration of the recess, the Senate reconvened and again proceeded to the fifth order of business.
Filed Conference Committee Reports

          The Clerk announced the following conference committee reports had been filed at 8:50 p.m. tonight:
          Eng. Senate Bill No. 767, Relating to certain Medicaid program contracts.
          Eng. Com. Sub. for House Bill No. 2218, Authorizing the Department of Transportation to promulgate legislative rules.
          And,
          Eng. House Bill No. 2920, Eliminating the felony conviction for a second or subsequent conviction of petit larceny.
          The Clerk announced the following conference committee report had been filed at 8:52 p.m. tonight:
          Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373, Relating to PROMISE Scholarship.
          The Clerk announced the following conference committee report had been filed at 8:53 p.m. tonight:
          Eng. Com. Sub. for House Bill No. 3146, Relating to seniority rights for school service personnel.
          Without objection, the Senate returned to the third order of business.
          A message from The Clerk of the House of Delegates announced that that body had refused to recede from its amendments, and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
          Eng. Com. Sub. for Com. Sub. for Senate Bill No. 414, Relating to Pharmaceutical Cost Management Council and health care delivery systems.
          The message further announced the appointment of the following conferees on the part of the House of Delegates:
          Delegates Perdue, Wooton and Border.
          On motion of Senator Chafin, the Senate agreed to the appointment of a conference committee on the bill.
          Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
          Senators Prezioso, Foster and Guills.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
          A message from The Clerk of the House of Delegates announced that that body had refused to recede from its amendments, and requested the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses, as to
          Eng. Com. Sub. for Com. Sub. for Senate Bill No. 498, Relating to early childhood education.
          The message further announced the appointment of the following conferees on the part of the House of Delegates:
          Delegates Varner, M. Poling, Perry, Ireland and Anderson.
          On motion of Senator Chafin, the Senate agreed to the appointment of a conference committee on the bill.
          Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
          Senators Unger, Foster, Stollings, White and Boley.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
          The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports

          The Clerk announced the following conference committee reports had been filed at 8:59 p.m. tonight:
          Eng. Com. Sub. for Com. Sub. for Senate Bill No. 414, Relating to Pharmaceutical Cost Management Council and health care delivery systems.
          And,
          Eng. Com. Sub. for Com. Sub. for Senate Bill No. 498, Relating to early childhood education.
          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. 2701 and Engrossed House Bill No. 3047.
          The Senate again proceeded to the eighth order of business.
          Eng. Com. Sub. for House Bill No. 2701, Relating to an escape of any person from the custody of the Division of Juvenile Services.
          On third reading, coming up in regular order, was read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 2701) 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. 2701--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-5-12b, relating to making escape by any person from the custody of the Division of Juvenile Services a misdemeanor; providing for criminal penalties; establishing venue for the proceedings; and allowing for the transfer of jurisdiction back to the original committing court if the person is under eighteen and all parties agree.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
          Eng. House Bill No. 3047, Clarifying that the Director of the Public Employees Insurance Agency is authorized to enter into capitated provider arrangements for provision of primary health care services.
          On third reading, coming up in regular order, was read a third time and put upon its passage.
          On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, 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. 3047) passed with its title.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
          The Senate proceeded to the ninth order of business.
          Eng. Com. Sub. for House Bill No. 2535, Creating a tax credit for certain solar energy systems.
          On second reading, coming up out of 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 three, section three, lines one through five, by striking out the following: If the credit earned in the year the solar energy system is installed exceeds the allowable tax credit amount the residential property owner may claim for that taxable year, the excess credit may be carried over for the next taxable year.;
          And,
          On page four, section three, line fifteen, after the word "article." by adding the following: No taxpayer shall take a credit pursuant to this article for a solar energy system installed after July 1, 2013.
          The bill (Eng. Com. Sub. for H. B. No. 2535), 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: 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)--33.
          The nays were: Barnes--1.
          Absent: None.
          Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2535) 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. 2535) passed with its title.
          Senator Chafin moved that the bill take effect July 1, 2009.
          On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
          The nays were: None.
          Absent: None.
          So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2535) takes effect July 1, 2009.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
          Eng. Com. Sub. for House Bill No. 2885, Establishing a uniform credentialing form and creating a single credentialing verification organization.
          On second reading, coming up out of regular order, was read a second time.
          The following amendment to the bill, from the Committee on Banking and Insurance, was reported by the Clerk and adopted:
          By striking out everything after the enacting clause and inserting in lieu thereof the following:
          That §16-1A-1, §16-1A-3 and §16-1A-4 of the Code of West Virginia, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §16-1A-5, all to read as follows:
ARTICLE 1A. UNIFORM CREDENTIALING FOR HEALTH CARE PRACTITIONERS.

§16-1A-1. Legislative findings; purpose.
          (a) The Legislature finds:
          (1) Credentialing, required by hospitals, insurance companies, prepaid health plans, third party administrators and other health care entities, is necessary to assess and verify the education, training, and experience and competence of health care practitioners to ensure that qualified professionals treat the citizens of this state.
          (2) Currently, each of the entities requiring credentialing has its own a credentialing application forms resulting in health care practitioners being required to complete multiple forms listing the same or similar information. The duplication is costly, time consuming and not in the best interests of the citizens of this state form has been created to reduce duplication and increase efficiency. Each health care entity performs primary source verification for the practitioners who apply to that entity for affiliation. This duplication of primary source verification is time consuming and costly.
          (3) The Secretary of the Department of Health and Human Resources and the Insurance Commissioner share regulatory authority over the entities requiring credentialing.
          (b) The purpose of this article is to authorize the development of uniform credentialing application forms by those public officials regulating the entities that require credentialing and to establish an continue the advisory committee to assist in developing a uniform credentialing process and implementing to develop legislation regarding the use of uniform credentialing through one or more credentialing verification organizations in this state.
§16-1A-3. Definitions.
          (a) "Commissioner" is the Office of the Insurance Commissioner.
          (b) "CVO" is a Credentialing Verification Organization which performs primary source verification of all health care practitioners' training, education and experience.
          (c) "The department" is the Department of Health and Human Resources;
          (d) "Health care practitioners" means those established pursuant to section two of this article in legislative rule.
          (e) "Joint Commission" is an independent not-for-profit organization that evaluates and accredits more than 15,000 health care organizations and programs in the United States.
          (f) "NCQA" means the National Committee for Quality Assurance, which is a private, 501(c)(3) not-for-profit organization dedicated to improving health care quality.
          (g) "Primary source verification procedure" means the procedure used by a credentialing organization to collect, verify and maintain the accuracy of documents and credentialing information submitted to it by a health care practitioner who is applying for affiliation with a health care entity.
          (h) "URAC" means the American Accreditation Healthcare Commission.
          (i) "Payor" means an insurer, prepaid health plan, hospital service corporation, third party administrator as defined in article forty-six, chapter thirty-three of this code, or any other entity that reimburses health care practitioners for medical services.
§16-1A-4. Advisory committee.
          (a) The Secretary of the Department of Health and Human Resources and the Insurance Commissioner shall jointly establish an advisory committee to assist them in the development and implementation of the uniform credentialing process in this state. The advisory committee shall consist of eleven thirteen appointed members. Six members shall be appointed by the Secretary of the Department of Health and Human Resources: One member shall represent a hospital with one hundred beds or less; one member shall represent a hospital with more than one hundred beds; one member shall represent another type of health care facility requiring credentialing; one member shall be a person currently credentialing on behalf of health care practitioners; and two of the members shall represent the health care practitioners subject to credentialing. Five members shall be representative of the entities regulated by the Insurance Commissioner that require credentialing and shall be appointed by the Insurance Commissioner: One member shall represent an indemnity health care insurer; one member shall represent a preferred provider organization; one member shall represent a third party administrator; one member shall represent a health maintenance organization accredited by URAC; and one member shall represent a health maintenance organization accredited by the national committee on quality assurance. The Secretary of the Department of Health and Human Resources and the Insurance Commissioner, or the designee of either or both, shall be nonvoting ex officio members. Upon the effective date of this legislation, the state hospital association and state medical association shall each designate to the department one person to represent their respective associations and members and those designees shall be appointed to the advisory committee by the secretary of the department.
          (b) At the expiration of the initial terms, successors will be appointed to terms of three years. Members may serve an unlimited number of terms. When a vacancy occurs as a result of the expiration of a term or otherwise, a successor of like qualifications shall be appointed. Representatives of the hospital and medical associations shall serve for three-year terms.
          (c) The advisory committee shall meet at least annually to review the status of uniform credentialing in this state, and may make further recommendations to the Secretary of the Department of Health and Human Resources and the Insurance Commissioner as are necessary to carry out the purposes of this article. Any uniform forms and the list of health care practitioners required to use the uniform forms as set forth in legislative rule proposed pursuant to section two of this article may be amended as needed by procedural rule.
§16-1A-5. Development of legislation regarding CVO; report required.

          (a) On or before January 1, 2010, the advisory committee established pursuant to section four of this article shall develop legislation that considers the following:
          (1) The establishment of one or more CVOs within the state to provide primary source verification with electronic accessibility on a cost effective and operationally efficient basis;
          (2) The number of CVOs necessary to provide this access for the state;
          (3) The treatment of existing CVOs currently doing business within the state;
          (4) The duties of a CVO and the timelines for completion of its verification duties;
          (5) The procedures for maintaining healthcare practitioner files;
          (6) The payment system to cover the costs of the credentialing program;
          (7) The use and confidentiality of data generated, collected and maintained by a CVO;
          (8) Compliance by CVOs with certificate requirements including NCQA, URAC, Medicare and Medicaid and other state and federal requirements;
          (9) The required use by payors and hospitals of a CVO's primary source verification services;
          (10) Credentialing recredentialing requirements as required by payors, hospitals and state and federal law and regulations;
          (11) The use of site visits in credentialing;
          (12) The maintenance, amounts and types of liability insurance to be obtained by a CVO;
          (13) Consideration of existing statutory protections that should be extended to the CVO;
          (14) Privacy considerations;
          (15) If applicable, the terms and conditions of the contract under which a CVO operates in this state and the procedure and criteria upon which a CVO is selected;
          (16) Penalties, if any, for noncompliance;
          (17) Timelines for credentialing, recredentialing and other compliance obligation of payors;
          (18) Reconciliation of the use of forms required by this article with other applicable state and federal laws and regulations.
          (b) On or before January 1, 2010, the department and the commissioner shall jointly report to the Legislative Oversight Commission on Health and Human Resources Accountability proposed legislation to implement the provisions set forth in this article.
          The bill (Eng. Com. Sub. for H. B. No. 2885), 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: 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)--33.
          The nays were: Barnes--1.
          Absent: None.
          Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2885) 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. 2885) passed.
          The following amendment to the title of the bill, from the Committee on Banking and Insurance, was reported by the Clerk and adopted:
          Eng. Com. Sub. for House Bill No. 2885--A Bill to amend and reenact §16-1A-1, §16-1A-3 and §16-1A-4 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §16-1A-5, all relating to uniform credentialing for health care providers; defining terms; establishing the composition of the advisory committee; requiring the advisory committee to develop proposed legislation to establish credentialing verification organization or organizations, and the disposition of existing organizations; describing the duties of CVOs; describing the procedures for completion of verification; establishing time frames for credentialing; requiring all health care practitioners and insurers, hospitals, third party administrators and other health care entities to use the CVO and the credentialing form; developing credentialing requirements; developing privacy considerations; providing penalties; and requiring a report to the Legislature regarding proposed legislation on or before January 1, 2010.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
          Eng. House Bill No. 3197, Authorizing municipalities to permit nonpolice officers to issue citations for littering.
          On second reading, coming up out of 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 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.

§8-12-16b. Special litter prevention officers.
          (a) A municipality that has adopted an anti-littering ordinance pursuant to section five of this article may provide, by ordinance, for the appointment of special litter prevention officers to aid in the enforcement of the municipal anti-littering ordinance.
          (b) The ordinance enacted, pursuant to this section, must specify the duties to be performed by the special litter prevention officers and the required training such officers must undertake prior to commencement of their duties.
          (c) Notwithstanding any other provision of this code, a special litter prevention officer may be presently employed by the municipality in another capacity. In the performance of the duties of special litter prevention officer, such officers shall be vested with the power to issue a citation, issue a summons, and sign a complaint. Such officers shall display at all times a badge or other sign of authority issued by the municipality.
          (d) The governing body of the municipality may require such special litter prevention officers to give bond, payable to the municipality, in its corporate name, with such sureties and such penalties as the governing body may see fit, conditioned for the faithful performance of their duties.
          The bill (Eng. H. B. No. 3197), 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: Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Wells, White, Williams, Yost and Tomblin (Mr. President)--31.
          The nays were: Barnes, Helmick and Unger--3.
          Absent: None.
          Having been engrossed, the bill (Eng. H. B. No. 3197) 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, Green, 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: Barnes and Guills--2.
          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. 3197) passed.
          The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
          Eng. House Bill No. 3197--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §8-12-6b, relating to authorizing municipalities to appoint special litter prevention officers by ordinance; and authorizing special litter prevention officers to perform their duties as provided for by ordinance.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
          Eng. Com. Sub. for House Bill No. 3195, Establishing a funding mechanism for state aid for local health departments.
          On second reading, coming up in regular order, was read a second time and 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: 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)--33.
          The nays were: Barnes--1.
          Absent: None.
          Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 3195) 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. 3195) passed with its title.
          Senator Chafin moved that the bill take effect from passage.
          On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
          The nays were: None.
          Absent: None.
          So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3195) takes effect from passage.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
          At the request of Senator Chafin, unanimous consent being granted, the Senate returned to the fourth order of business.
          Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
          Your Committee on Finance has had under consideration
          Senate Concurrent Resolution No. 69, Urging congressional delegation support Main Street Fairness Act.
     And reports the same back with the recommendation that it be adopted.
                              Respectfully submitted,
                               Walt Helmick,
                               Chair.
     Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance has had under consideration
     Eng. House Bill No. 2884, Long-Term Care Partnership Program.
     With an amendment from the Committee on Health and Human Resources pending;
     Now on second reading, having been read a first time and referred to the Committee on Finance on April 8, 2009;
     And reports the same back with the recommendation that it do pass as amended by the Committee on Health and Human Resources to which the bill was first referred.
                              Respectfully submitted,
                               Walt Helmick,
                               Chair.
     At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 2884) 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 bill, from the Committee on Health and Human Resources, was reported by the Clerk and adopted:
     On pages three and four, section three, by striking out all of subsection (a) and inserting in lieu thereof a new subsection (a), to read as follows:
     (a) The program shall be administered by the Bureau for Medical Services. The bureau shall establish a long-term care partnership program in West Virginia in order to provide for the financing of long-term care through a combination of private insurance and Medicaid in accordance with federal requirements on qualified state long-term care insurance partnerships.
     The bill (Eng. H. B. No. 2884), 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: 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)--33.
     The nays were: Barnes--1.
     Absent: None.
     Having been engrossed, the bill (Eng. H. B. No. 2884) 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, 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: Hall--1.
     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. 2884) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     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. 3339, Facilitating the complete closure of the Gwinn, otherwise known as the Midwest Services Landfill, located in Summers County.
     Now on second reading, having been read a first time and referred to the Committee on the Judiciary on April 8, 2009;
     And reports the same back with the recommendation that it do pass.
                              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. 3339) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a second time and 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: 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)--33.
     The nays were: Barnes--1.
     Absent: None.
     Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 3339) 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. 3339) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3339) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     At the request of Senator Chafin, unanimous consent being granted, the Senate returned to the consideration of
     Senate Concurrent Resolution No. 69, Urging congressional delegation support Main Street Fairness Act.
     Having been reported from the Committee on Finance in earlier proceeding tonight.
     At the request of Senator Chafin, unanimous consent being granted, the resolution (S. C. R. No. 69) was taken up for immediate consideration.
     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.
     Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
     Your Committee on Government Organization has had under consideration
     House Concurrent Resolution No. 37, Declaring Bituminous Coal to be the official state rock.
     And reports the same back with the recommendation that it be adopted.
                              Respectfully submitted,
                               Edwin J. Bowman,
                               Chair.
     At the request of Senator Bowman, unanimous consent being granted, the resolution (H. C. R. No. 37) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration.
     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.
     Without objection, the Senate returned to the third order of business.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2009, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 280, Creating Correctional Industries Act of 2009.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 7. CORRECTIONAL INDUSTRIES ACT OF 2009.
§25-7-1. Legislative findings.

     The Legislature finds that the means now provided for the use of inmate labor are inadequate to furnish a sufficient number of inmates with employment. It is the intent of this article:
     (a) To provide more adequate, regular and suitable employment for the inmates and confined juvenile or youthful offenders of this state;
     (b) To use the labor of inmates and confined juvenile or youthful offenders for self-maintenance and to reimburse this state for expenses incurred by reason of their crimes and confinement;
     (c) To provide for the requisition and distribution of correctional industries articles and products directly through established state authorities, with no possibility of private profit except for those specific articles and products manufactured and sold pursuant to 18 U. S. C. §1761(c), the Prison Industry Enhancement (PIE) Certification Program, and pursuant to sections thirteen, fourteen, fifteen and sixteen of this article; and
     (d) To provide for correctional industries to be profitable in view of the fact that it is a self-sufficient authority.
§25-7-2. Citation of article.
     This article may be cited as the Correctional Industries Act of 2009.
§25-7-3. Establishment of industries at correctional facilities; purposes and extent.

     The Commissioner of the Division of Corrections or the commissioner's designee has exclusive authority to execute contracts for the sale of products manufactured or serviced at state correctional facilities, as necessary to carry out the provisions of this article. The commissioner or designee is authorized to purchase equipment, raw materials and supplies and to employ necessary supervisory personnel to establish and maintain, at state correctional facilities and institutions under the commissioner's control, industries which use the services of inmates to manufacture and produce articles and products for use by any office, department, institution or agency supported, in whole or in part, by this state or its political subdivisions.
§25-7-4. Correctional industries service contracts.
     (a) The commissioner may enter into contracts with private entities under which inmate or resident labor is provided through correctional industries for work involving the delivery of products or for service work. "Service work" means work which includes, but is not limited to, repairs, replacement of original manufactured items, packaging, sorting, recycling, labeling or similar work that is not original equipment manufacturing. The use of inmate or resident labor may not result in the displacement of civilian workers employed in the local region where the work is performed. The division may negotiate the wage for inmate or resident labor under correctional industries contracts, and, except as provided in sections thirteen, fourteen, fifteen and sixteen of this article, the wage may be less than the prevailing wage for work of a similar nature in the private sector.
     (b) The Division of Corrections, in cooperation with the Department of Commerce, shall develop and maintain a marketing plan encouraging private sector businesses to employ inmates through the correctional industries program.
§25-7-5. Purchase of inmate-made goods by state agencies.

     (a) On and after the effective date of this article, all offices, departments, institutions and agencies of this state supported, in whole or in part, by state funds shall purchase all articles or products which they require from the commissioner, if those articles or products are produced or manufactured by correctional industries, as provided by this article. No state office, department, institution or agency may purchase an article or product which correctional industries produces from any other source unless specifically excepted from the provisions of this section pursuant to section six of this article.
     (b) Purchases of correctional industries articles or products by state offices, departments, institutions and agencies shall be made on requisition by the office, department, institution or agency requiring the articles or products.
     (c) Political subdivisions, not-for-profit corporations and charitable agencies chartered in West Virginia, units of the federal government and units of government of other states may purchase articles and products produced by correctional industries. Entities which contract with the state, its political subdivisions, its agencies or its public institutions may purchase from correctional industries articles and products used in the performance of their contracts.
§25-7-6. Exceptions to mandatory purchase requirement.

     Exceptions from the mandatory purchase provisions of section five of this article may be granted when a correctional industries' article or product does not meet the reasonable requirements of the requesting state office, department, institution or agency, or when the requisition cannot be fulfilled because of insufficient supply or other reason. No state office, department, institution or agency may evade the requirements of section five of this article, or of this section, making insubstantial variations from the characteristics of correctional industries products or articles.
§25-7-7. Catalogues and a website of articles and products made and produced.

     The commissioner shall arrange for the creation and updating of catalogues and a website containing descriptions of the correctional industries articles and products manufactured or produced pursuant to the provisions of this article. The commissioner shall make copies of the catalogue and the website address available to entities eligible to acquire correctional industries articles and products.
§25-7-8. Commissioner to determine prices.

     The commissioner or the commissioner's designee shall determine the prices of correctional industries articles and products. The prices shall be uniform for all and as near as is practicable to the fair market price.
§25-7-9. Annual statements by the commissioner.

     At the close of each fiscal year, the commissioner shall prepare a financial report on the financial condition of the correctional industries operation, in accordance with generally accepted accounting principles. Within sixty days after the end of the fiscal year, the commissioner shall file the report with the Secretary of the Department of Military Affairs and Public Safety, the Secretary of the Department of Administration and the Office of the Legislative Auditor.
§25-7-10. Indebtedness for capital outlay projects.
     To carry out the provisions of this article, the commissioner is authorized to enter into contracts to acquire and purchase equipment, tools, supplies and materials, with payment to be made over a period not exceeding five years.
§25-7-11. Correctional industries account.
     (a) There is hereby created in the State Treasury a special revenue account designated the Correctional Industries Account. All funds collected from the sale or disposition of articles and products manufactured or produced by correctional industries in accordance with this article shall be deposited in this account.
     (b) Except as provided in subsection (c) of this section, funds collected and deposited may be used only to purchase manufacturing supplies, equipment, machinery and materials used to carry out the purposes of this article; to pay necessary personnel; and to defray necessary expenses, including inmate earnings, all of which are under the direction of the commissioner and subject to the commissioner's approval.
     (c) The Correctional Industries Account may not be maintained in excess of the amount necessary to efficiently and properly carry out the purposes of this article. In no event may the Correctional Industries Account be maintained in excess of $1,500,000. Any moneys in the account exceeding $1,500,000 shall be transferred to the State Treasury and credited to the General Revenue Fund of the state.
§25-7-12. Sale of inmate-made goods on open market prohibited; penalty; exceptions.

     (a) Subject to the provisions of subsections (e) and (f) of this section and section five of this article, it is unlawful to sell or offer for sale on the open market any articles or products manufactured or produced, wholly or in part, by inmates of this state or any other state. This section does not apply to articles or products manufactured and sold pursuant to sections thirteen, fourteen, fifteen and sixteen of this article; pursuant to the requirements of 18 U. S. C. §1761(c), the Prison Industry Enhancement (PIE) Certification Program; or products made with waste tires. Any person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $200 nor more than $5,000 or confined not less than three months nor more than one year, or both. Each sale or offer for sale shall constitute a separate offense under this subsection.
     (b) Any use of waste tires shall comply with applicable laws and with the rules of the Division of Environmental Protection.
     (c) Products made by inmates from waste tires and sold on the open market must be competitively priced with privately produced goods of the same nature and may not be sold at a loss.
     (d) Profits earned from the sale of products made by inmates from waste tires shall be deposited in the Correctional Industries Account to reimburse funds expended collecting waste tires and producing waste tire products, and to cover the reasonable cost of periodic replacement of outdated, obsolete or inoperable machinery or equipment used in such collection or production. Any funds remaining shall be divided equally between the Correctional Industries Account and the Crime Victims Compensation Fund created by article two-a, chapter fourteen of this code.
     (e) Notwithstanding the provisions of subsection (a) of this section, any article or product manufactured or produced, wholly or in part, by inmates of West Virginia correctional facilities which is designed and intended to be used solely by blind and persons with disabilities, including, but not limited to, braille books and reading materials, may be sold or distributed on the open market by the Division of Corrections or other state department or agency.
     (f) Notwithstanding the provisions of subsection (a) of this section, arts and crafts produced by inmates may be sold to the general public by the Division of Corrections or by such other state agencies or departments as the commissioner designates. The arts and crafts may be sold only on consignment so that the inmates whose arts and crafts products are sold receive payment for the products. Payments shall be deposited in accounts or funds and managed as provided in section three-a, article one of this chapter: Provided, That when the Division of Corrections or other agency or department of state government provides materials used in the production of an arts and crafts product, the fair market value of such materials may be deducted from the account of the individual inmate after the sale of the product.
     (g) For purposes of this section, "arts and crafts" means articles produced individually by artistic or craft skill such as painting, sculpture, pottery, jewelry or similar articles.
§25-7-13. Establishment of programs authorized by the federal Prison Industry Enhancement (PIE) Certification Program for employment of inmates by private persons; lease of land and improvements.

     (a) The Commissioner of the Division of Corrections may establish programs for the employment of inmates by a private person or entity for the manufacture of articles and products as part of a program authorized pursuant to 18 U. S. C. §1761(c), the Prison Industry Enhancement (PIE) Certification Program. In establishing these programs, the commissioner may enter into agreements with private persons or entities to construct or lease facilities at a state adult correctional facility, or at another agreed location, for manufacturing and processing goods or for any other business, commercial or agricultural enterprise.
     (b) In connection with an agreement made under subsection (a) of this section, the commissioner may lease land and improvements on the grounds of a state correctional facility for use by the private party to the agreement. Any such lease shall be for a term of not more than twenty years and may contain options for renewal.
§25-7-14. Agreement between commissioner and private person for manufacturing pursuant to Prison Industry Enhancement (PIE) Certification Program; wages; inmate participation on voluntary basis; and workers' compensation.

     (a) The Commissioner of the Division of Corrections and a private person or entity may enter into an agreement to establish a program for inmates to manufacture articles and products pursuant to the federal Prison Industry Enhancement (PIE) Certification Program. The agreement shall include the following:
     (1) That a participating inmate be paid at a rate not less than that paid for similar work in the same locality's private sector, including applicable wage increases for overtime work;
     (2) That an inmate's work or participation in a PIE certification program shall be only on a voluntary basis and only after the inmate has been informed of the conditions of participation;
     (3) That, in the discretion of the commissioner or the commissioner's designee, any inmate may be removed from or refused participation in the PIE certification program;
     (4) That the agreement will not result in the displacement of civilian workers; and
     (5) That the private person or entity shall provide for workers' compensation insurance, or equivalent coverage, to inmates participating in the PIE certification program.
     (b) The provisions of this section shall not apply to correctional industry service contracts under section four of this article or to operations authorized in section three of this article that are restricted from sale in the open market.
     (c) A commercial or agricultural enterprise established under this chapter is a private enterprise subject to federal and state laws governing the operation of similar enterprises.
     (d) The earnings of an inmate participating in a PIE certification program under this article shall be deposited in the Inmate Trust Account with the Division of Corrections. The earnings shall be paid to the inmate after withholding of state, federal and local taxes, and after other deductions provided for in this chapter, including expenses for room and board: Provided, That the commissioner shall adopt policies and procedures for the additional deduction from an inmate's earnings of not less than five percent nor more than twenty percent to be paid into the Crime Victims Compensation Fund created by article two-a, chapter fourteen of this code. Total deductions shall not exceed eighty percent of the inmate's gross earnings. Earnings deposited by the commissioner, with accrued interest, shall be paid to the inmate no later than at the inmate's discharge or release on parole.
     (e) Spousal support or child support shall be deducted from an inmate's earnings as directed by the inmate or by court order. If the inmate's dependents are receiving Temporary Assistance for Needy Families (TANF), the disbursements shall be made to the Bureau for Child Support Enforcement or any other state's public assistance agency.
§25-7-15. Establishment of programs authorized by the federal Prison Industry Enhancement (PIE) Certification Program for employment of juvenile residents by private persons; lease of land and improvements.

     (a) The Director of the Division of Juvenile Services may establish programs for the employment of residents by a private person or entity for the manufacture of articles and products as part of a program authorized pursuant to 18 U. S. C. §1761(c), the Prison Industry Enhancement (PIE) Certification Program. In establishing these programs, the director may enter into agreements with private persons or entities to construct or lease facilities at a state juvenile correctional facility, or at another agreed location, for manufacturing and processing goods or for any other business, commercial or agricultural enterprise.
     (b) In connection with any agreement made under subsection (a) of this section, the director may lease land and improvements on the grounds of a juvenile correctional facility for use by the private party to the agreement. Any such lease shall be for a term of not more than twenty years and may contain options for renewal.
§25-7-16. Agreement between director and private person for manufacturing pursuant to Prison Industry Enhancement (PIE) Certification Program; wages; resident participation on voluntary basis; workers' compensation and unemployment compensation.

     (a) The Director of the Division of Juvenile Services and a private person or entity may enter into an agreement to establish a program for residents to manufacture articles and products pursuant to the federal Prison Industry Enhancement (PIE) Certification Program. The agreement shall include the following:
     (1) That a participating resident be paid at a rate not less than that paid for similar work in the same locality's private sector, including applicable wage increases for overtime work;
     (2) That a resident's work or participation in a PIE certification program shall be only on a voluntary basis and only after the resident has been informed of the conditions of participation;
     (3) That, in the discretion of the director or the director's designee, any resident may be removed from or refused participation in the PIE certification program;
     (4) That the agreement will not result in the displacement of civilian workers; and
     (5) That the private person or entity shall provide for workers' compensation insurance, or equivalent coverage, to residents participating in the PIE certification program.
     (b) The provisions of this section shall not apply to correctional industry service contracts provided for in section four of this article or to operations authorized by section three of this article that are restricted from sale in the open market.
     (c) A commercial or agricultural enterprise established under this chapter is a private enterprise subject to federal and state laws governing the operation of similar enterprises.
     (d) The earnings of an resident participating in a PIE certification program under this article shall be deposited in the Resident Trust Account with the Division of Juvenile Services. The earnings shall be paid to the resident after withholding of state, federal and local taxes, and after other deductions provided for in this chapter. The expenses of room and board, as fixed by the director and the budget agency for facilities operated by the director or, if the resident is housed in a facility not operated by the director, the amount paid by the Division of Juvenile Services to the operator of the facility or other appropriate authority for room and board, and other incidentals as established by agreement between the Division of Juvenile Services and the appropriate authority, shall be deducted: Provided, That the director shall adopt policies and procedures for the additional deduction from a resident's earnings of not less than five percent nor more than twenty percent to be paid into the Crime Victims Compensation Fund created by article two-a, chapter fourteen of this code. Total deductions shall not exceed eighty percent of the resident's gross earnings. Earnings deposited by the director, with accrued interest, shall be paid to the resident no later than at the resident's discharge or release on parole.
     (2) When special circumstances warrant, or for just cause, the director may waive room and board charges by a facility operated by the Division of Juvenile Services or, if the resident is housed in a facility not operated by the Division of Juvenile Services, authorize payment of room and board charges from other available funds.
     (e) Spousal support or child support shall be deducted from a resident's earnings as directed by the resident or by court order. If the resident's dependents are receiving Temporary Assistance for Needy Families (TANF), the disbursements shall be made to the Bureau for Child Support Enforcement or any other state's public assistance agency.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 280--A Bill to repeal §28- 5B-1, §28-5B-2, §28-5B-3, §28-5B-4, §28-5B-5, §28-5B-6, §28-5B-7, §28-5B-8, §28-5B-9, §28-5B-10, §28-5B-11, §28-5B-12, §28-5B-13, §28-5B-14, §28-5B-15, §28-5B-16, §28-5B-17 and §28-5B-18 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §25-7-1, §25-7-2, §25-7-3, §25-7-4, §25-7-5, §25-7-6, §25-7-7, §25-7-8, §25-7-9, §25-7-10, §25-7-11, §25-7-12, §25-7-13, §25-7-14, §25-7-15, §25-7-16 and §25- 7-17, all relating to enacting the Correctional Industries Act of 2009; authorizing the Commissioner of the Division of Corrections to enter into correctional industries contracts, develop a marketing plan, create catalogues and a website and determine prices; purchasing inmate-made articles and products by state agencies mandatory; providing exceptions; creating the Correctional Industries Account; prohibiting sale of inmate-made goods on the open market; providing penalties; authorizing the establishment of prison industry enhancement certification programs pursuant to Title 18 U. S. C. §1761(c); providing for agreements between private entities and the commissioner or the Director of the Division of Juvenile Services to establish the federal programs; providing for the contents of the agreements; and updating certain terms.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 280, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 280) passed with its House of Delegates amended title.
     Senator Chafin moved that the bill take effect July 1, 2009.
     On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 280) takes effect July 1, 2009.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 293, Creating felony offense of unauthorized practice of certain health care professions.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-13. Unauthorized practice of medicine and surgery or podiatry; criminal penalties; limitations.

     (a) A person shall may not engage in the practice of medicine and surgery or podiatry, hold himself or herself out as qualified to practice medicine and surgery or podiatry or use any title, word or abbreviation to indicate to or induce others to believe that he or she is licensed to practice medicine and surgery or podiatry in this state unless he or she is actually licensed under the provisions of this article. A person engaged in the practice of telemedicine is considered to be engaged in the practice of medicine within this state and is subject to the licensure requirements of this article. As used in this section, the term "practice of telemedicine" means the use of electronic information and communication technologies to provide health care when distance separates participants and includes one or both of the following: (1) The diagnosis of a patient within this state by a physician located outside this state as a result of the transmission of individual patient data, specimens or other material by electronic or other means from within this state to the physician or his or her agent; or (2) the rendering of treatment to a patient within this state by a physician located outside this state as a result of transmission of individual patient data, specimens or other material by electronic or other means from within this state to the physician or his or her agent. No person may practice as a physician assistant, hold himself or herself out as qualified to practice as a physician's physician assistant or use any title, word or abbreviation to indicate to or induce others to believe that he or she is licensed to practice as a physician's physician assistant in this state unless he or she is actually licensed under the provisions of this article. Any person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than ten thousand dollars, or imprisoned in the county jail not more than twelve months, or both fined and imprisoned.
     
(b) Any person who intentionally practices, or holds himself or herself out as qualified to practice or uses any title, word or abbreviation to indicate to or induce others to believe he or she is licensed to practice a health care profession licensed under this article with a license classified by the board as expired, lapsed or terminated, for any period of time up to ninety days, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000 or confined in jail not more than twelve months, or both fined and confined.
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(c) Any person who intentionally practices, or holds himself or herself out as qualified to practice or uses any title, word or abbreviation to indicate to or induce others to believe he or she is licensed to practice as a physician, podiatrist or physician assistant without obtaining an active, valid West Virginia license to practice that profession or with a license that is: (1) Expired, terminated or lapsed, for over ninety days; or (2) inactive, revoked, suspended or surrendered, is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 or imprisoned in a state correctional facility for not less than one year nor more than five years, or both fined and imprisoned.
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(b) (d) The provisions of this section do not apply to:
     (1) Persons who are duly licensed health care providers under other pertinent provisions of this code and are acting within the scope of their license;
     (2) Physicians or podiatrists licensed in other states or foreign countries who are acting in a consulting capacity with physicians or podiatrists duly licensed in this state for a period of not more than three months: Provided, That this exemption is applicable on a one-time only basis;
     (3) An individual physician or podiatrist, or physician or podiatrist, or physician or podiatrist groups, or physicians or podiatrists at a tertiary care or university hospital outside this state and engaged in the practice of telemedicine who consult or render second opinions concerning diagnosis or treatment of patients within this state: (i) In an emergency or without compensation or expectation of compensation; or (ii) on an irregular or infrequent basis which occurs less than once a month or less than twelve times in a calendar year;
     (4) Persons holding licenses granted by another state or foreign country who are commissioned medical officers of, a member of or employed by the armed forces of the United States, the United States Public Health Service, the Veterans' Administration of the United States, any federal institution or any other federal agency while engaged in the performance of their official duties;
     (5) Any person providing first-aid care in emergency situations;
     (6) The practice of the religious tenets of any recognized church in the administration of assistance to the sick or suffering by mental or spiritual means;
     (7) Visiting medical faculty engaged in teaching or research duties at a medical school or institution recognized by the board and who are in this state for periods of not more than six months: Provided, That the individuals do not otherwise engage in the practice of medicine or podiatry outside of the auspices of their sponsoring institutions;
     (8) Persons enrolled in a school of medicine approved by the liaison committee on medical education or by the board, or persons enrolled in a school of podiatric medicine approved by the council of podiatry education or by the board, or persons enrolled in an undergraduate or graduate physician assistant program approved by the committee on allied health education and accreditation or its successor on behalf of the American Medical Association or by the board, or persons engaged in graduate medical training in a program approved by the liaison committee on graduate medical education or the board, or engaged in graduate podiatric training in a program approved by the council on podiatric medical education or by the board, who are performing functions in the course of training including with respect to functions performed by medical residents or medical students under the supervision of a licensed physician, ordering and obtaining laboratory tests, medications and other patient orders by computer or other electronic means and no other provision of this code to the contrary may be construed to prohibit or limit medical residents' or medical students' use of computers or other electronic devices in this manner;
     (9) The fitting, recommending or sale of corrective shoes, arch supports or similar mechanical appliances in commercial establishments; and
     (10) The fitting or sale of a prosthetic or orthotic device not involving any surgical procedure, in accord with a prescription of a physician, osteopathic physician or where chiropractors or podiatrists are authorized by law to prescribe such a prosthetic or orthotic device, in accord with a prescription of a chiropractor or podiatrist, by a practitioner certified in the provision of custom orthotic and prosthetic devices, respectively, by a nationally recognized credentialing body for orthotics and prosthetics that is accredited by the National Commission for Certifying Agencies (NCCA): Provided, That the sale of any prosthetic or orthotic device by a partnership, proprietorship or corporation which employs such a practitioner or registered technician who fitted the prosthetic or orthotic device shall not constitute the unauthorized practice of medicine: Provided, however, That the practitioner or registered technician may, without a prescription, make recommendation solely to a physician or osteopathic physician or to a chiropractor or podiatrist otherwise authorized by law to prescribe a particular prosthetic or orthotic device regarding any prosthetic or orthotic device to be used for a patient upon a request for such recommendation.
     (c) (e) This section shall may not be construed as being in any way a limitation upon the services of a physician's physician assistant performed in accordance with the provisions of this article.
     (d) (f) Persons covered under this article may be permitted to utilize electronic signature or unique electronic identification to effectively sign materials, transmitted by computer or other electronic means, upon which signature is required for the purpose of authorized medical practice. Such signatures are deemed legal and valid for purposes related to the provision of medical services. This subsection does not confer any new practice privilege or right on any persons covered under this article.;
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 293--A Bill to amend and reenact §30-3-13 of the Code of West Virginia, 1931, as amended, relating to unauthorized practice of medicine and surgery or podiatry or as a physician assistant; criminal penalties; reducing the amount of fine for a person practicing on an expired, lapsed or terminated license for less than ninety days; and specifying as a felony the intentional unauthorized practice of medicine and surgery or podiatry or as a physician assistant in all other instances.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 293, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 293) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 306, Increasing pipeline companies' special license fees to Public Service Commission.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page two, section three, line eleven, by striking out "$400,000" and inserting in lieu thereof "$315,000";
     And,
     By striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 306--A Bill to amend and reenact §24B-5-3 of the Code of West Virginia, 1931, as amended, relating to pipeline companies paying a special license fee to the Public Service Commission; and increasing the maximum amount of revenue from $300,000 per annum to $315,000 per annum.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Senate Bill No. 306, as amended by the House of Delegates, was then 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, 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: Barnes--1.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 306) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Senate Bill No. 344, Authorizing mental hygiene commissioners sign readmission orders.
     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:
     On page two, section four, line seventeen, after the word "found" by inserting the words "and to the patient at the location where the patient may be found".
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Senate Bill No. 344, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
     The nays were: None.
     Absent: None.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 344) passed with its title.
     Ordered,