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Volume XXVI, Issue 6 - March 6, 2015


Legislature Unites to Protect the Unborn

First Override of Governor Veto in 29 Years


by: Gwen Wygal

The historic events continue for the West Virginia Legislature this session as the House and Senate overrode the Governor’s veto on the Pain-Capable Unborn Child Protection Act.

On March 2nd, Governor Tomblin vetoed House Bill 2568, prohibiting all abortions past 20 weeks post fertilization except in cases of medical emergencies. Like his actions on an identical bill last legislative session, the Governor vetoed the bill on the advice of his counsel who believed it to be unconstitutional.

When the House received communication of the veto, they chose to utilize state law that allows a simple majority during a legislative session to override the governor’s decision regarding most legislation. A veto regarding a budget bill requires 2/3 of each chamber to override a veto. The House voted 77 to 16 in favor of the passage of the bill, marking the first legislative override since 1987 when the Legislature overrode former Governor Arch Moore’s veto of the budget.

The Senate followed suit, voting 27 to 5 in favor of the bill, ensuring that the Pain-Capable Act become law.

Senate Majority Leader, Senator Mitch Carmichael (R-Jackson) was content with the body’s decision to pass the bill, as he felt the advancement was much needed.

“This issue is core to our Legislature’s moral values, and for that reason, we acted to override the Governor’s veto,” said Carmichael. “The lives of unborn children need to be protected, and for that reason, this bill needed to be advanced.”

Delegate Kelli Sobonya (R- Cabell), lead sponsor of the bill, has worked diligently to push the Pain-Capable legislation during the session. She was pleased to see that the Senate concurred with the House on the issue.

“This bill is about having compassion for the unborn who feel pain during an abortion,” said Sobonya. “I’m happy to see that the Senate did their part and passed this much-needed, humane bill.”

While the fate of the law may lie within the judicial branch, Senator Carmichael believes that passing the bill was a necessity of the Legislature.

“If this decision is challenged in the court, then so be it,” said Carmichael. “Until then, we are taking our stand protecting the lives of the unborn.”

The Pain-Capable Unborn Child Protection Act will take effect 90 days from passage.

The full text of the bill and bill history can be viewed on the Legislature’s website at: House Bill 2568

 

Completed Legislation

Senate Bill 255 seeks to eliminate unnecessary, inactive or redundant boards, councils, committees, panels task forces and commissions. This bill would eliminate the following boards, councils, committees, panels task forces and commissions: West Virginia Sheriffs’ Bureau; Clinical Laboratories Quality Assurance Advisory Board; West Virginia Council on Aging; Care Home Advisory Board; Comprehensive Behavioral Health Commission; Public and Higher Education Unified Educational Technology Strategic Plan, including the Governor’s Advisory Council for Educational Technology; West Virginia Consortium for Undergraduate Research and Engineering; West Virginia Steel Futures Program, including Steel Advisory Commission; West Virginia Health Insurance Plan Board; Alternative Dispute Resolution Commission; and several others.

Senate Bill 298 will amend the provisions of the WV Code relating to how the funds of the WV Public Employees Retirement System (PERS) are treated for accounting purposes. It clarifies that the members deposit fund, the employer’s accumulation fund, the retirement reserve fund, the income fund and the expense fund are all a part of the Public Employees Retirement Fund and can be treated together for accounting purposes.

Senate Bill 299 will amend provisions of the WV Code relating to the timing of the payment of disability benefits to members of the State Police Retirement System. It adds the provision that disability payments will begin on the first day of the month following board approval and termination of employment or as ordered by a court of competent jurisdiction.

Senate Bill 302 make changes to the provisions of the WV Code dealing with disqualification for public retirement plan benefits. In addition to non-substantive and technical changes, the bill would make the following substantive changes: Adds the WV Municipal Police Officers and Firefighters Retirement System to the definition of retirement plan, thus having the disqualification provisions apply to this system; and Clarifies that if a member who was previously a member of the Teachers Defined Contribution Retirement System (TDC) and who has become a member of the State Teachers Retirement System (TRS) through election who has had his or her benefits terminated, that the member is refunded only his or her employee contributions and the earnings on those contributions. Any vested employer contributions from the TDC shall remain in the TRS to be used to offset future employer contributions.

Senate Bill 378 permits a previously licensed electrician who did not renew his or her license to renew that license without retesting if renewed within three years of the date of the last renewal. The Committee Substitute specifies that the license may be renewed provided that the license had not been revoked and provided that the applicant pays double or triple the fee depending upon whether the license had lapsed for two or three renewal periods, respectively.

Senate Bill 382 directs payment of certain claims made by those who have provided commodities and services to state agencies who have not been paid because if the claims were paid, the agencies would have unlawfully spent more than their authorized appropriations. The Court of Claims has reviewed and approved the payment of these claims, subject to the approval and appropriation of the Legislature.

The bill would continue the Medicaid upper payment limit program and adjust the tax rate. The program is an enhanced health care provider tax paid by acute care hospitals, with the tax proceeds used to draw down increased federal funds. The program provides that the increased federal funds received with the additional tax be distributed back to the hospitals that paid the tax on a pro rata basis. The bill would increase the enhanced tax rate from .62% to .72%. The increase would allow the level of funding received from the federal government to remain steady through the end of FY 2016.

House Bill 2099 would extend the time of meetings of local levying bodies when meetings are delayed. This bill provides a mechanism for extending the times when circumstances are beyond the body’s control. The Secretary of State is authorized to extend the time of meetings of local levying bodies within sixty days of the original deadline and to adopt procedures and rules for approving extending time to meet as a levying body.

House Bill 2726 would clarify choice of laws issues in product's liability actions. The bill essentially would ensure that when a non-resident of the state brings a liability suit for a drug or any other product that the case is tried with the liability laws governing the location of the injury.

House Bill 2157 would provide that absentee ballot fraud or intimidation of voters is a felony. If a person is convicted of a violation under this section, he or she shall be fined $10,000 - $20,000, imprisoned for one to five years, or fined and imprisoned. Further, each ballot in violation of this section will be treated as a separate offense.

House Bill 2879 would amend current provisions limiting the amount of state funds in any depository in excess of the amount insured by an agency of the federal government or the amount insured by a deposit guaranty bond to not exceed 90% of the value of collateral pledged on the collaterally secured bond given by the depository. The bill changes current code to require the depository to have a deposit guarantee bond or other securities on any deposit beyond that guaranteed by the FDIC. The new limit of the amount to be secured by the depository in excess of the amount insured by an agency of the federal government must be at least 102% of the amount on deposit.



Senate Bills Passed

Senate Bill 14 would create a new article in code that provides for the authorization of public charter schools. One year after public charter schools have been in operation, and each year thereafter, the bill requires the state superintendent to issue to the Governor, the Legislature and the general public a report on the state’s public charter school program. The bill allows any student residing in the state to apply to a public charter school, and includes provisions relating to enrollment.

Senate Bill 248 would add a requirement to provide proof of insurance and the policy number for the vehicle, as well as the name and address of the owner of the vehicle, if such owner is different from the driver. Under current law, the driver of any vehicle involved in a crash resulting in injury, death or damage to any vehicle is required to give, to the person struck or the driver or occupant of or person attending any vehicle collided with, certain information. This information includes his or her name, address and the registration number of the vehicle he or she is driving.

Senate Bill 254 would move the responsibility for payment of the beneficiaries of a public safety officer killed in the line of duty from the Governor’s Office to Dept. Of Military Affairs and Public Safety, Office of the Secretary and establishes a procedure for receiving same.

Senate Bill 278 would clarify lawful and unlawful methods of hunting. The bill prohibits hunting with night vision technology, drones or other unmanned aircraft. It permits a person to carry a gun for self-defense while in the woods. It clarifies that a person must have an unloaded or detached magazine for a shotgun or rifle in a vehicle. Further, the bill permits hunting with crossbows during big game firearms season, and requires the director to designate a separate season for crossbow hunting. Other code sections addressing crossbows, Class Y licenses and bear hunting, including electronic checking, were also updated.

Senate Bill 377 would seek to reestablish and codify the “learned intermediary” doctrine which was abrogated by Supreme Court of Appeals decision in 2007. The learned intermediary doctrine provides an exception to the general rule imposing a duty on manufacturers to warn consumers about the potential risks of their products because a prescribing physician or healthcare provider acts as a “learned intermediary” between the manufacturer and the ultimate consumer.

Senate Bill 439 would clarify the roles of each institution of higher learning, the Higher Education Policy Commission, and the Council for Community and Technical College Education by creating a system whereby legislative policy maximizes the ability of organizations to attract, recruit, retain, and motivate highly qualified and diverse employees, including compensating employees within an organization fairly and at levels that are competitive with appropriate external markets. The bill sets forth certain specific powers, duties, and limitations of the Higher Education Policy Commission, the Council for Community and Technical College Education whereby those entities provide appropriate oversight without redundancy and the provides certain human resources services to the institutions.

Senate Bill 447 would allow a person who administers a program of secondary education at a public, private, or home school that meets the requirements of this chapter to issue a diploma or other appropriate credential to a person who has completed the program of secondary education. The bill declares that the credential is legally sufficient to demonstrate that the person meets the definition of having a high school diploma or its equivalent. State agencies and institutions of higher learning in this state are prohibited from rejecting or otherwise treating a person differently solely on the grounds of the source of the diploma or credential. The bill also provides that nothing prevents any agency or institution of higher learning from inquiring into the substance or content of the program to assess the content of the program for the purposes of determining whether a person meets other specific requirements.

Senate Bill 457 would remove the condition that for issuance of a certificate for persons to serve as coaches that a currently employed certified professional educator not have applied for the position.

Senate Bill 502 would clarify that reclamation or remediation performed prior to July 13, 2013 will not be granted a tax credit unless a written application for the tax credit was submitted to the Tax Commissioner prior to September 1, 2014.

Senate Bill 530 would continue until 2018 the current personal income tax adjustment for those retirees receiving pensions from defined benefit plans that terminated and are being paid a reduced maximum benefit guarantee.

Senate Bill 541 would make changes concerning the regulation and control of elections. The bill modifies what qualifies as a federal reporting exemption. The bill requires certain contributions be reported to the State Election Commission within forty-eight hours of their receipt. The bill deletes certain reports by membership organizations that raise funds for political purposes by payroll. The bill permits certain financial statements by mail or in person. The bill requires the Secretary of State to maintain an online database. The bill sets forth additional powers of the State Election Commission

The bill requires the Attorney General to provide assistance when requested. The bill permits a political committee to transfer funds to a national, state or local committee of a political party without limitation. The bill permits a candidate committee to contribute to another candidate committee for the purpose of retiring debt incurred during a prior election. The bill permits a political action committee to contribute to another political action committee. The bill establishes expenditure limits by political party committees, political party caucuses and candidates. The bill permits candidates, after a general election, to transfer any unused contributions to state part executive committees, state party legislative caucus committees, local committees of a political party or any other candidate for public office without limitation. The bill modifies and adds definitions. The bill creates criminal penalties.

Senate Bill 574 would foster craft distilling in West Virginia. Craft distilleries are tourist destinations, which create agriculture, tourism and manufacturing jobs, and spawn small business investment. This bill would eliminate that burden by lowering the percentage markup, and eliminating the bailment fee. The bill would reduce service charges imposed on craft distillers from 28% to 5% and eliminates $ 2.30 /case bailment fee for which no service is provided. Distilleries may not sell product below the state minimum price under this bill, so retail liquor stores are protected from distillers underpricing. The Market Zone Fee paid to retailers would be reduced from 10% of gross sales at distillery to 2% of gross sales and capped at $15,000. Craft distilleries would be allowed to produce up to 50k gallons/yr instead of 20k cap today.

Senate Bill 580 would revise the statute of limitations on actions by minors under the Medical Professional Liability Act to make the current statute consistent with other provisions of the code governing statute of limitations on claims by minors.



House Bills Passed

House Bill 2934 seeks to repeal the Common Core State Standards. The bill establishes through a series of findings the increasing federal intrusion on West Virginia’s Process for Improving Education, including its standards, assessments and accountability system and some of the negative consequences. It also makes findings with respect to this inappropriate usurpation of state sovereignty over public education.

House Bill 2976 would expand the eligible master's and doctoral level programs for which a Nursing Scholarship may be awarded. The bill provides broader language to allow a wider swath of programs to be included for this scholarship. The scholarship awards up to $15,000 is available depending on the program.

House Bill 2496 would adopt the Interstate Medical Licensure Compact. The bill aims to strengthen access to health care. The Compact provides a streamlined process that allows physicians to become licensed in multiple states, thereby enhancing the portability of a medical license and ensuring the safety of patients. The Compact creates another pathway for licensure and does not otherwise change a state's existing medical practice statutes.

House Bill 2550 would increase the number of unexcused absences of a student before action may be taken against the parent. The bill increases the number of absences from five to ten before legal action can be taken against the parent for truancy.

House Bill 2790 relates to minimum responsibility limits of car insurance. The purpose of this bill is to give effect to the explicit terms of a bargained-for motor vehicle liability policy where certain drivers are excluded from coverage. Specifically, this bill is intended to overturn Jones v. Motorists Mutual Insurance Company, 177 W. Va. 763 (1987) and its progeny that require insurers to nevertheless provide minimum financial responsibility limits coverage for drivers who are excluded from coverage under the terms of a motor vehicle liability policy.

House Bill 2515 relates to elk restoration. The bill requires the Division of Natural Resources to take an active role in the reintroduction of the elk species to the state. The bill establishes a fine for the illegal taking of elk. The bill makes findings and provides for rule-making. The bill requires hunters to electronically register the taken wildlife in lieu of its delivery to an official checking station.

House Bill 2880 would create a pilot program to assist participants in addressing their dependence on opioids, by maintaining abstinence from the use of those substances and reducing recidivism. The program provides for alternate treatment methods and use of different medications aimed at reducing dependency.

House Bill 2999 relates to neonatal abstinence centers. It requires the secretary to promulgate a licensure program and rules and requires the state agency to consider neonatal abstinence care as a unique service in conducting certificate of need review. It also exempts neonatal abstinence centers from moratoriums on certain nursing facilities.

House Bill 2914 provides for voluntary dissolution of resort area district. The bill establishes a procedure for a dissolution. The bill permits nominations for resort area board members be made by mail or electronic means. The bill permits property owners to make nominations. The bill provides for election of board members by plurality vote instead of by a majority vote. The bill limits the amount of assessments that may be levied against a parcel of real property.

House Bill 2931 will add drugs to the classification of schedule I drugs and rewrites the licensing requirement for the practice of medicine and surgery or podiatry. This bill is typically updated to address synthetic drugs which are developed. It will add three hallucinogenic substances, or which contains any of its salts, isomers and salts of isomers, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation as well as eleven tryptamines. It also adds ten substituted amphetamines.

House Bill 2939 makes clear that the reporting requirements “specifically include reported, disclosed or observed conduct involving or between students enrolled in a public or private institution of education, or involving a student and school teacher or personnel.”

House Bill 2557 would amend the human trafficking statute so that certain definitions and provisions conform to provisions of a bill on Human Trafficking that has been approved by the Uniform Law Commission and unanimously approved by the ABA House of Delegates.

House Bill 2688 will provide for the unitization of interests in drilling units in connection with all horizontal oil or gas wells. The bill sets forth application requirements. The bill establishes the standard of review. The bill provides for shallow horizontal well orders. The bill requires notice and timeliness. The bill provides for hearings. The bill addresses oil and gas produced from horizontal wells, vertical shallow wells, existing deep well units, and unconventional reservoirs.

House Bill 2902 will authorize the establishment of savings plan program to be administered by the State Treasurer for the benefit of individuals with a disability, known as the "Achieving a Better Life Experience in West Virginia Act" or the "West Virginia ABLE Act". It is similar in nature to the current 529 college savings program for college tuition administered by the Treasurer.

House Bill 2549 would require the preparation and publication or notice of county financial statements by October 15 rather than "within ninety days after the first session held after the beginning of each fiscal year.”

House Bill 3017 would provide information and training to help address sudden cardiac arrest in interscholastic athletes. Interscholastic athlete is defined as any athlete who is participating in interscholastic athletics at a high school or middle school that is a member of the West Virginia Secondary School Activities Commission. The approach is similar to that taken on concussions and head injuries. The bill requires the promulgation and minimum contents of rules by the SSAC.

House Bill 2636 would protect the privacy of concealed weapon permit holders. The bill provides that information relating to applications for concealed weapon permits is exempt from the Freedom of Information Act. The bill further provides that information collected in the application process for a concealed weapon permit is confidential and provides criminal penalties for violations.

House Bill 2664 to be known as "Andrea and Willy's Law", would increase penalties for causing death or injury while driving under the influence of alcohol or drugs. It will generally increase the penalties for driving under the influence of alcohol, controlled substances, or drugs.

Carmichael
Addressing the Floor
Majority Leader Mitch Carmichael addresses his fellow Senators during debate on March 4th.
PHOTO: Martin Valent
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