__________*__________

Saturday, March 13, 2004


The House of Delegates met at 10:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Friday, March 12, 2004, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports

Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. C. R. 85, Requesting a study on complaints regarding home improvement contractors, home building contractors and other complaints against contractors,
H. C. R. 86, Requesting the United States Corps of Engineers, the State Soil Conservation Agency and the West Virginia Division of Highways to study the issue of flooding in Kanawha County,
H. C. R. 87, Requesting a study on the projected costs and potential sources of revenue which may be made available to support a plan to provide public campaign finances for designated elected offices,
S. C. R. 49, Urging President George W. Bush and Congress stop outsourcing American jobs,
And,
S. C. R. 94, Urging U. S. Forest Service Division plan and develop trails for off-highway vehicles in Monongahela National Forest,
And reports the same back with the recommendation that they each be adopted.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 22, Requiring participation in motor vehicle alcohol test and lock program for repeat offenders,
And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended, and with the recommendation that second reference of the bill to the Committee on Finance be dispensed with.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 22) will be placed on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 71, Relating to verifying legal employment status of workers employed in state,
And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 71) will be placed on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 447, Relating to powers and duties of municipal courts to collect certain moneys,
And reports the same back, with amendment, with the recommendation that it do pass, as amended.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 31, Providing person not guilty of trespassing for hunting with dogs on lands of another,
Com. Sub. for S. B. 315, Creating mental hygiene pilot program in certain counties or circuits,
S. B. 510, Relating to commission on uniform state laws,
And,
S. B. 579, Relating to sex offender registration,
And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that they each do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bills (Com. Sub. for S. B. 31, Com. Sub. for S. B. 315, S. B. 510 and S. B. 579) will be placed on the Consent Calendar.
Motions

The time limit having expired as to the Committee of Conference on H. B. 4084, West Virginia Pharmaceutical Availability and Affordability Act, the Speaker was authorized to appoint an additional committee of conference of five on the disagreeing votes of the two houses.
Whereupon,
The Speaker reappointed as members of such committee the following:
Delegates Campbell, Doyle, Foster, Perdue and Hall.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Executive

Mr. Speaker, Mr. Kiss, presents Executive Message No. 3, setting forth a list of annual reports which have been received in the Office of the Governor, as required by law.

March 12, 2004


EXECUTIVE MESSAGE NO. 3
2004 REGULAR SESSION

The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305
Dear Mr. Speaker:
Pursuant to the provisions of § 5-1-20 of the Code of West Virginia, I hereby certify that the following 2002-2003 annual reports have been received in the Office of the Governor:
1.Accountancy, West Virginia Board of
2.Aeronautics Commission, West Virginia Department of Transportation
3.Affordable Housing Trust Fund, West Virginia
4.Architects, West Virginia State Board of
5.Association of Counties, West Virginia
6.Attorney General, Office of the
7.Banking, West Virginia Division of, West Virginia Department of Tax and Revenue
8.Barbers and Cosmetologists, Board of, West Virginia Department of Health and Human Resources

9.Blind and Severely Disabled, West Virginia Society for
10.Cancer Registry, West Virginia Department of Health and Human Resources
11.Children and Families, Governor's Cabinet on
12.Children's Health Insurance Program, West Virginia Department of Administration
13.Chiropractic, West Virginia Board of
14.Coal Mine Health and Safety, Board of, and Coal Mine Safety Technical Review Committee, West Virginia Bureau of Commerce

15.Commodities and Services from the Handicapped, Committee for the Purchase of
16.Community Corrections Act, Governors Committee on Crime, Delinquency and Correction, Division of Criminal Justice Services, West Virginia Department of Military Affairs and Public Safety

17.Consumer Advocate Division, West Virginia Public Service Commission
18.Consumer Protection and Antitrust Divisions, West Virginia Attorney General's Office
19.Corrections, Division of, West Virginia Department of Military Affairs and Public Safety
20.Court of Claims, West Virginia
21.Court of Claims, Crime Victims Compensation Fund, West Virginia
22.Dental Examiners, West Virginia Board of
23.Economic Development Authority, West Virginia
24.Education and State Employees Grievance Board, West Virginia
25.Education, Board of, and Education, Department of, West Virginia
26.Examiners in Counseling, West Virginia Board of
27.Employment Programs, West Virginia Bureau of
28.Environmental Protection, West Virginia Department of
29.Equal Employment Opportunity Office, West Virginia
30.
Family Support, Bureau for Behavioral Health and Health Facilities, West Virginia Department of Health and Human Resources

31.Fire Marshal, West Virginia State
32.Forestry, Division of, West Virginia Bureau of Commerce
33.Funeral Service Examiners, West Virginia Board of
34.General Administration Fund, West Virginia Division of Rehabilitation Services
35.Governor's Youth Advisory Board, West Virginia Human Rights Commission
36.Health Care Authority, West Virginia Department of Health and Human Resources
37.Holocaust Education Commission, West Virginia Department of Education and the Arts
38.Housing Development Fund, West Virginia
39.Human Rights Commission, State of West Virginia
40.Interstate Pest Control Compact, State of West Virginia Department of Agriculture
41.Investment Management Board, West Virginia
42.
Juvenile Justice Subcommittee, Governor's Committee on Crime, Delinquency, and Corrections, Division of Criminal Justice Services, West Virginia Department of Military Affairs and Public Safety

43.
Juvenile Services, Division of, West Virginia Department of Military Affairs and Public Safety

44.Labor, Division of, West Virginia Bureau of Commerce
45.Land Surveyors, West Virginia State Board of Examiners of
46.
Law Enforcement Training Subcommittee, Governor's Committee on Crime, Delinquency and Correction, Division of Criminal Justice Services, West Virginia Department of Military Affairs and Public Safety

47.Library Commission, West Virginia
48.Licensed Practical Nurses, West Virginia State Board of Examiners for
49.
Long Term Care, Office of Health Facility Licensure and Certification, Department of Health and Human Resources

50.Massage Therapy, West Virginia Licensure Board of
51.Medicine, West Virginia Board of (Volumes I and II)
52.Mine Inspectors Examining Board,West Virginia
53.Motor Vehicles, Division of, West Virginia Department of Transportation
54.Municipal Bond Commission, West Virginia
55.Natural Resources, West Virginia Division of
56.National and Community Service, West Virginia Commission for
57.Neighborhood Investment Program, West Virginia Development Office
58.Nursing Home Administrators Licensing Board, West Virginia
59.
Nursing Shortage Study Commission, Board of Examiners for Registered Professional Nurses, West Virginia

60.Occupational Therapy, West Virginia Board of
61.
Oil and Gas Inspectors' Examining Board, West Virginia Department of Environmental Protection

62.Optometry, West Virginia Board of
63.Osteopathy, West Virginia Board of
64.Parole Board, West Virginia Department of Military Affairs and Public Safety
65.Personnel, Division of, West Virginia Department of Administration
66.Physical Therapy, West Virginia Board of
67.Planning and Development Council, Region VII, West Virginia
68.Poison Center, Robert C. Byrd Health Sciences Center, Charleston
69.Professional Engineers, West Virginia State Board of Registration for
70.Psychologists, West Virginia Board of Examiners of
71.Public Defender Services, West Virginia Department of Administration
72.Public Service Commission
73.Purchasing, Division of, West Virginia Department of Administration
74.Radiologic Technology, West Virginia Board of Examiners for
75.Real Estate Commission, West Virginia
76.Registered Professional Nurses, West Virginia Board of Examiners for
77.Risk and Insurance Management, Board of, West Virginia Department of Administration
78.Senior Services, West Virginia Bureau of
79.Social Work Examiners, West Virginia Board of
80.Speech-Language Pathology and Audiology, West Virginia Board of Examiners for
81.State Police, West Virginia Department of Military Affairs and Public Safety
82.Technology, Governor's Office of
83.
Veterans Affairs, Division of, West Virginia Department of Military Affairs and Public Safety

84.Veterinary Medicine, West Virginia Board of
85.
Water and Waste Managements' Groundwater Program, West Virginia Department of Environmental Protection

86.Water Development Authority of West Virginia, Bureau of Commerce
87.Workers' Compensation Office of Judges, West Virginia
88.Workforce Investment Board, Inc., Northern Panhandle
89.Workforce Investment Division, Development Office, West Virginia Bureau of Commerce
Very truly yours,
Bob Wise,
Governor.

Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2755, Creating a criminal penalty for persons receiving stolen property that was obtained by means other than through the commission of a theft.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §16-1-4 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-4. Proposal of rules by the secretary.
The secretary may propose rules, in accordance with the provisions of article three, chapter twenty-nine-a of the code, that are necessary and proper to effectuate the purposes of this chapter. The secretary may appoint or designate advisory councils of professionals in the areas of hospitals, nursing homes, barbers and beauticians, postmortem examinations, mental health and mental retardation centers and any other areas necessary to advise the secretary on rules.
The rules may include, but are not limited to, the regulation of:
(a) Land usage endangering the public health: Provided, That no rules may be promulgated or enforced restricting the subdivision or development of any parcel of land within which the individual tracts, lots or parcels exceed two acres each in total surface area and which individual tracts, lots or parcels have an average frontage of not less than one hundred fifty feet even though the total surface area of the tract, lot or parcel equals or exceeds two acres in total surface area, and which tracts are sold, leased or utilized only as single family dwelling units. Notwithstanding the provisions of this subsection, nothing in this section may be construed to abate the authority of the department to: (1) Restrict the subdivision or development of a tract for any more intense or higher density occupancy than a single family dwelling unit; (2) propose or enforce rules applicable to single family dwelling units for single family dwelling unit sanitary sewerage disposal systems; or (3) restrict any subdivision or development which might endanger the public health, the sanitary condition of streams, or sources of water supply;
(b) The sanitary condition of all institutions and schools, whether public or private, public conveyances, dairies, slaughterhouses, workshops, factories, labor camps, all other places open to the general public and inviting public patronage or public assembly, or tendering to the public any item for human consumption, and places where trades or industries are conducted;
(c) Occupational and industrial health hazards, the sanitary conditions of streams, sources of water supply, sewerage facilities and plumbing systems and the qualifications of personnel connected with any of those facilities, without regard to whether the supplies or systems are publicly or privately owned; and the design of all water systems, plumbing systems, sewerage systems, sewage treatment plants, excreta disposal methods and swimming pools in this state, whether publicly or privately owned;
(d) Safe drinking water, including:
(1) The maximum contaminant levels to which all public water systems must conform in order to prevent adverse effects on the health of individuals, and, if appropriate, treatment techniques that reduce the contaminant or contaminants to a level which will not adversely affect the health of the consumer. The rule shall contain provisions to protect and prevent contamination of wellheads and well fields used by public water supplies so that contaminants do not reach a level that would adversely affect the health of the consumer;
(2) The minimum requirements for: Sampling and testing; system operation; public notification by a public water system on being granted a variance or exemption or upon failure to comply with specific requirements of this section and rules promulgated under this section; record keeping; laboratory certification; as well as procedures and conditions for granting variances and exemptions to public water systems from state public water systems rules; and
(3) The requirements covering the production and distribution of bottled drinking water and may establish requirements governing the taste, odor, appearance and other consumer acceptability parameters of drinking water;
(e) Food and drug standards, including cleanliness, proscription of additives, proscription of sale and other requirements in accordance with article seven of this chapter, as are necessary to protect the health of the citizens of this state;
(f) The training and examination requirements for emergency medical service attendants and emergency medical care technician-paramedics; the designation of the health care facilities, health care services, and the industries and occupations in the state that must have emergency medical service attendants and emergency medical care technician-paramedics employed, and the availability, communications, and equipment requirements with respect to emergency medical service attendants and to emergency medical care technician-paramedics: Provided, That any regulation of emergency medical service attendants and emergency medical care technician-paramedics shall not exceed the provisions of article four-c of this chapter;
(g) The health and sanitary conditions of establishments commonly referred to as bed and breakfast inns. For purposes of this article, 'bed and breakfast inn' means an establishment providing sleeping accommodations and, at a minimum, a breakfast for a fee: Provided, That the secretary may not require an owner of a bed and breakfast providing sleeping accommodations of six or fewer rooms to install a restaurant style or commercial food service facility: Provided, however, That the secretary may not require an owner of a bed and breakfast providing sleeping accommodations of more than six rooms to install a restaurant-type or commercial food service facility if the entire bed and breakfast inn or those rooms numbering above six are used on an aggregate of two weeks or less per year;
(h) Fees for services provided by the bureau for public health including, but not limited to, laboratory service fees, environmental health service fees, health facility fees and permit fees;
(i) The collection of data on health status, the health system and the costs of health care; and
(j) Opioid treatment programs duly licensed and operating under the requirements of chapter twenty-seven of this code. The secretary shall promulgate emergency rules to govern such programs: Provided, That there shall be a moratorium on the licensure of new opioid treatment programs that do not have a certificate of need as of the effective date of this subsection until such time as the secretary files emergency rules with the secretary of state to regulate such programs. All existing opioid treatment programs shall be in compliance within one hundred eighty days of the effective date of this rule; and
(j) (k) Other health-related matters which the department is authorized to supervise and for which the rule-making authority has not been otherwise assigned."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2755 - "A Bill to amend and reenact §16-1-4 of the code of West Virginia, 1931, as amended, relating to authorizing the secretary of the department of health and human resources to promulgate emergency rules to regulate opioid treatment centers; establishing a moritorium on licensure of new opioid treatment facilities without certificates of need until emergency rule filed; and establishing time period for compliance."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 594), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Faircloth, R. M. Thompson and Webster.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2755) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 2991, Relating to the fee charged by fiduciary commissioners in settling an estate.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §44-2-2 of the code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto a new section, designated §41-5-1a; that §44-1-1, §44-1-6 and §44-1-14a of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §44-1-4a; and that §44-2-1 of said code be amended and reenacted, all to read as follows:
CHAPTER 41. WILLS.

ARTICLE 5. PRODUCTION, PROBATE AND RECORD OF WILLS.

§41-5-1a. Record notice of a person's death by filing a death certificate and will, if any.

Notwithstanding any provision of this code to the contrary, a death certificate and a will, if any, of a person who was a resident of the county or who owned property in the county at the time of death may be filed with the clerk of the county commission for the purposes of providing record notice of the person's death. The filing of a death certificate and a will, if any, does not commence probate of the person's estate.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.

ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-1. Executor has no powers before qualifying.

(a) A person appointed by a will as executor thereof shall or executrix of the will does not have the powers of executor or executrix until he qualify as such by taking an oath before or she qualifies by:
(1) (A) Filing with the clerk of the county commission or fiduciary supervisor a statement:
(i) Submitting to the jurisdiction of the courts of this state; and
(ii) Containing the names and last known addresses, if known, of any persons who would take any part of the estate as required in section thirteen of this article;
(B) The statement shall be sworn to by oath or affirmation before a notary public or other person authorized to administer oaths in this state;
and
(2)
Giving bond the county court in which for his or her service in this state unless the will or an authenticated copy thereof of the will is admitted to record or before the clerk thereof in vacation, except that which specifically states that the representative shall serve without bond, and the will: Provided, That he or she may provide for the burial of the testator funeral arrangements of the testator, pay reasonable funeral expenses and preserve the estate from waste.
(b) The clerk may require a person appointed by the will to appear personally to give the oath, for good cause found and specifically stated in a letter or notice mailed to the person.
§44-1-4a. No probate of small estates.

In any estate where the probate assets of the estate, excluding real estate, have a value of one hundred thousand dollars or less, the personal representative in addition to qualifying under section one-a or three of this article may file a sworn affidavit stating that the value of the estate, exclusive of real estate, has a value of one hundred thousand dollars or less exclusive of real estate and all known or discovered debts are or will be satisfied in the next immediately succeeding one hundred eighty days. If no protests or claims are filed within ninety days after notice is published pursuant to section fourteen-a of this article, the estate shall be closed by the clerk without further action or administration. If a protest or claim is received within ninety days, or if the personal representative reports to the clerk that a debt of the estate was not satisfied, or will not be satisfied, within the one hundred eighty-day period specified in the affidavit, the personal representative shall begin probate of the estate pursuant to the provisions of this chapter.
§44-1-6. Bond and oath; termination of grant in certain cases.
(a) At the time of the grant of administration upon the estate of any intestate, the person to whom it is granted shall: in the court or before the clerk granting it, give
(1)(A) File with the clerk of the county commission or fiduciary supervisor a statement:
(i) Submitting to the jurisdiction of the courts of this state;
(ii) Averring that the deceased left no will so far as he or she knows;
(iii) Containing the names and addresses, if known, of any persons who would take any part of the estate as required in section thirteen of this article; and
(iv) That he or she will faithfully perform the duties of the office to the best of his or her judgment;
(B) The statement shall be sworn to by oath or affirmation before a notary public or other person authorized to administer oaths in this state; and
(2) Give
bond and take an oath that the deceased has left no will so far as he knows, and that he will faithfully perform the duties of his office to the best of his judgment for his or her service in this state.
(b) The clerk may require a person seeking to be appointed under this section to appear personally to give the oath, for good cause found and specifically stated in a letter or notice mailed to the person.
(c)
If a will of the deceased be is afterwards admitted to record or if, after administration is granted to a creditor or other person other than a distributee, any distributee who shall not have has not before been refused shall may apply for administration and there may shall be a grant of probate or administration, after reasonable notice to such creditor or other the person theretofore appointed, in like manner as if the former grant had not been made, and such the former grant shall thereupon cease upon paying over of the estate which came into the former's hand to the subsequent representative.
§44-1-14a. Notice of administration of estate; time limits for filing of objections; liability of personal representative.

(a) Within thirty days of the filing of the appraisement of any estate as required in section fourteen of this article, On or before the fifteenth day of each month, the clerk of the county commission shall publish, once a week for two successive weeks, in a newspaper of general circulation within the county of the administration of the estate, a notice of the filing of the appraisement of any estate as required in section fourteen of this article which is to include:
(1) The name of the decedent;
(2) The name and address of the county commission before whom the proceedings are pending;
(3) The name and address of the personal representative;
(4) The name and address of any attorney representing the personal representative;
(5) The name and address of the fiduciary commissioner, if any;
(6) The date of first publication;
(7) A statement that claims against the estate must be filed in accordance with the provisions of article two or article three-a of this chapter;
(8) A statement published pursuant to article four-a of this chapter shall state that if no protest or claim on estate assets is made within ninety days, the estate will be closed without administration and no further protests or claims will be accepted, except as may otherwise be permitted by law;
(8) (9) A statement that any person seeking to impeach or establish a will must make a complaint in accordance with the provisions of section eleven, twelve or thirteen, article five, chapter forty-one of this code;
(9) (10) A statement that an interested person objecting to the qualifications of the personal representative or the venue or jurisdiction of the court must be filed with the county commission within three months after the date of first publication or thirty days of service of the notice, whichever is later; and
(10) (11) If the appraisement of the assets of the estate shows the value to be one hundred thousand dollars or less, exclusive of real estate specifically devised and nonprobate assets or, if it appears to the clerk that there is only one beneficiary of the probate estate and that the beneficiary is competent at law, a statement substantially as follows: 'Settlement of the estate of the following named decedents will proceed without reference to a fiduciary commissioner unless within ninety days from the first publication of this notice a reference is requested by a party in interest or an unpaid creditor files a claim and good cause is shown to support reference to a fiduciary commissioner'.
(b) At any time an estate is to be referred to a fiduciary commissioner, as part of the next publication as required in subsection (a) of this section, notice that the estate has been referred and the date by which claims against the estate must be filed. The publication of notice shall include the information required in subdivisions (1), (2), (3), (4), (5) and (6), subsection (a) of this section. This publication of notice is equivalent to personal service on the estate's creditors, distributees or legatees.
(b) (c) If no appraisement is filed within the time period established pursuant to section fourteen of this article, unless the estate is closed by the clerk pursuant to section four-a of this article, the county clerk shall send a notice to the personal representative by first-class mail, postage prepaid, indicating that the appraisement has not been filed. Notwithstanding any other provision of this code to the contrary, the county clerk shall publish the notice required in subsection (a) of this section within six months of the qualification of the personal representative.
(c) (d) The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable.
(d) (e) The personal representative shall, within ninety days after the date of first publication, serve a copy of the notice, published pursuant to subsection (a) of this section, by first-class mail, postage prepaid, or by personal service on the following persons:
(1) If the personal representative is not the decedent's surviving spouse and not the sole beneficiary or sole heir, the decedent's surviving spouse, if any;
(2) If there is a will and the personal representative is not the sole beneficiary, any beneficiaries;
(3) If there is not a will and the personal representative is not the sole heir, any heirs;
(4) The trustee of any trust in which the decedent was a grantor, if any; and
(5) All creditors identified under subsection (c) (d) of this section, other than a creditor who filed a claim as provided in article two of this chapter or a creditor whose claim has been paid in full.
(e) (f) Any person interested in the estate who objects to the qualifications of the personal representative or the venue or jurisdiction of the court shall file notice of an objection with the county commission within ninety days after the date of the first publication as required in subsection (a) of this section or within thirty days after service of the notice as required by subsection (d) (e) of this section, whichever is later. If an objection is not timely filed, the objection is forever barred.
(f) (g) A personal representative acting in good faith is not personally liable for serving notice under this section, notwithstanding a determination that notice was not required by this section. A personal representative acting in good faith who fails to serve the notice required by this section is not personally liable. The service of the notice in accordance with this subsection may not be construed to admit the validity or enforceability of a claim.
(g) (h) The clerk of the county commission shall collect a fee of twenty dollars for the publication of the notice required in this section.
(h) (i) For purposes of this section, the term beneficiary means a person designated in a will to receive real or personal property.
ARTICLE 2. PROOF AND ALLOWANCE OF CLAIMS AGAINST ESTATES OF DECEDENTS.

§44-2-1. Reference of decedents' estates; proceedings thereon.

(a) Upon the return of the appraisement by the personal representative to the county clerk, the estate of his or her decedent, by order of the county commission, must be referred to a fiduciary commissioner for proof and determination of debts and claims, establishment of their priority, determination of the amount of the respective shares of the legatees and distributees, and any other matter necessary for the settlement of the estate: Provided, That in counties where there are two or more commissioners, the estates of decedents must be referred to the commissioners in rotation, so there may be an equal division of the work. Notwithstanding any other provision of this code to the contrary, a fiduciary commissioner may not charge to the estate a fee greater than three hundred dollars and expenses for the settlement of an estate, except upon: (i) Approval of the personal representative; or (ii) a determination by the county commission after a hearing that complicating issues or problems attendant to the settlement substantiate the allowance of a greater fee that the fee is based upon the actual time spent and actual services rendered pursuant to a schedule of fees or rate of compensation for fiduciary commissioners promulgated by the commission in accordance with the provisions of section nine, article one, chapter fifty-nine of this code.
(b) If the personal representative delivers to the clerk an appraisement of the assets of the estate showing their value to be one hundred thousand dollars or less, exclusive of real estate specifically devised and nonprobate assets, or if it appears to the clerk that there is only one beneficiary of the probate estate and that the beneficiary is competent at law, the clerk shall record the appraisement. If an unpaid creditor files a claim against the estate, the personal representative has twenty days after the date of the filing of a claim against the estate of the decedent to approve or reject the claim before the estate is referred to a fiduciary commissioner. If the personal representative approves all claims as filed, then no reference may be made.
The personal representative shall, within a reasonable time after the date of recordation of the appraisement: (i) File a waiver of final settlement in accordance with the provisions of section twenty-nine of this article; or (ii) make a report to the clerk of his or her receipts, disbursements and distribution and submit an affidavit stating that all claims against the estate for expenses of administration, taxes and debts of the decedent have been paid in full. Upon receipt of the waiver of final settlement or report, the clerk shall record the waiver or report and mail copies to each beneficiary and creditor by first-class mail, postage prepaid. The clerk shall retain the report for ten days to allow any beneficiary or creditor to appear before the county commission to request reference to a fiduciary commissioner. The clerk shall collect a fee of ten dollars for recording and mailing the waiver of final settlement or report.
If no request or objection is made to the clerk or to the county commission, the county commission may confirm the report of the personal representative, the personal representative and his or her surety shall be discharged; but if an objection or request is made, the county commission may confirm and record the accounting or may refer the estate to its fiduciary commissioners: Provided, That the personal representative has twenty days after the date of the filing of a claim against the estate of the decedent to approve or reject the claim before the estate is referred to a fiduciary commissioner and if all claims are approved as filed, then no reference may be made.
(c) For purposes of this section, the term beneficiary means a person designated in a will to receive real or personal property."
And,
By amending the title of the bill to read as follows:
H. B. 2991 - "A Bill to repeal §44-2-2 of the code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §41-5-1a; to amend and reenact §44-1-1, §44-1-6 and §44-1-14a of said code; to amend said code by adding thereto a new section, designated §44-1-4a; and to amend and reenact §44-2-1 of said code, all relating to decedents and their estates generally; creating the 'Small Estate Probate Relief Act of 2004'; providing record notice of death; permitting personal representatives to qualify without appearing personally; eliminating administration of small uncontested estates of one hundred thousand dollars or less in assets exclusive of real estate assets; modifying the time of publication of notice of the filing of an appraisement; modifying the contents of notice of probate of estates; allowing estates having a value of one hundred thousand dollars to be probated without reference to a fiduciary commissioner; permitting county commissions to promulgate fees for fiduciary commissioners; and standardizing certain provisions governing probate which relate to fiduciary supervisors and county clerks."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4019, Prohibiting the division of motor vehicles' sale of personal information for bulk distribution of surveys, marketing and solicitations.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 2A. UNIFORM MOTOR VEHICLE RECORDS DISCLOSURE ACT.
§17A-2A-4. Prohibition on disclosure and use of personal information from motor vehicles records.

Notwithstanding any other provision of law to the contrary, and except as provided in sections five through eight, both inclusive, of this article, the division, and any officer, employee, agent or contractor thereof may not disclose any personal information obtained by the division in connection with a motor vehicle record. Notwithstanding the provisions of this article or any other provision of law to the contrary, finger images obtained and stored by the division of motor vehicles as part of the driver's licensing process may not be disclosed to any person or used for any purpose other than the processing and issuance of driver's licenses and associated legal action unless the disclosure or other use is expressly authorized by this code. Notwithstanding the provisions of this article or any other provision of law to the contrary, an individual's photograph or image, social security number, and medical or disability information shall not be disclosed pursuant to West Virginia Code §17A-2A-7(2),(3),(5),(7),(8),(10) and (11), without the express written consent of the person to whom such information applies.
§17A-2A-7. Permitted disclosures.
The division or its designee shall disclose personal information as defined in section three of this article to any person who requests the information if the person: (a) Has proof of his or her identity; and (b) verifies that the use of the personal information will be strictly limited to one or more of the following: (1) For use by any governmental agency, including any court or law-enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a governmental agency in carrying out its functions; (2) For use in connection with matters of motor vehicle or driver safety and theft, motor vehicle product alterations, recalls or advisories, performance monitoring of motor vehicles, motor vehicle parts and dealers, motor vehicle market research activities including survey research and removal of nonowner records from the original owner records of motor vehicle manufacturers; (3) For use in the normal course of business by a legitimate business or its agents, employees or contractors: (A) For the purpose of verifying the accuracy of personal information submitted by the individual to the business or its agents, employees or contractors; and (B) If the information as submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against or recovering on a debt or security interest against the individual; (4) For use in conjunction with any civil, criminal, administrative or arbitral proceeding in any court or governmental agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, the execution or enforcement of judgments and orders or pursuant to an order of any court; (5) For use in research and producing statistical reports, so long as the personal information is not published, redisclosed or used to contact individuals; (6) For use by any insurer or insurance support organization or by a self-insured entity, its agents, employees or contractors in connection with claim investigation activities, antifraud activities, rating or underwriting; (7) For use in providing notice to the owners of towed or impounded vehicles; (8) For use by any licensed private investigator agency or licensed security service for any purpose permitted under this section; (9) For use by an employer or its agent or insurer to obtain or verify information relating to a holder of a commercial driver's license that is required under the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. App. 2710 et seq.); (10) For use in connection with the operation of private toll transportation facilities; and (11) For bulk distribution for surveys, marketing or solicitations after the division has implemented methods and procedures to ensure that the information will be used, rented or sold solely for bulk distribution for surveys, marketing and solicitations, and only if the person whose information will be used has authorized the use of his or her name and address for those purposes; and (12) (11) For any other use specifically authorized by law that is related to the operation of a motor vehicle or public safety.
§17A-2A-11. Resale or redisclosure. (a) An authorized recipient of personal information except a recipient under subsection (11), section seven of this article may resell or redisclose the information for any use permitted under said section seven. except the use for bulk distribution for surveys, marketing or solicitations as provided in subsection (11), section seven of this article (b) An authorized recipient of personal information for bulk distribution for surveys, marketing or solicitations, under subsection (11), section seven of this article may resell or redisclose personal information only in accordance with the terms of said subsection allowing surveys for marketing and solicitations to be directed only to those individuals who have authorized the use of their name and address for those purposes. (c) (b) Any authorized recipient who resells or rediscloses personal information shall: (1) Maintain for a period of not less than five years, records as to the person or entity receiving information, and the permitted use for which it was obtained; (2) make the records available for inspection by the division, upon request; and (3) only be disseminated in accordance with express consent obtained pursuant to 17A-2A-4."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B 4019 - "A Bill to amend and reenact §17A-2A-4, §17A-2A-7 and §17A-2A-11 of the code of West Virginia, 1931, as amended, all relating to limiting disclosure of personal information from motor vehicle records; prohibiting the division of motor vehicles' sale of personal information for bulk distribution of surveys, marketing and solicitations."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 595), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Coleman and Faircloth.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4019) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4037, Providing for safe schools through alternative education programs and providing certain juvenile justice records to public school officials.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-17. Confidentiality of juvenile records.

(a) Records of a juvenile proceeding conducted under this chapter are not public records and shall not be disclosed to anyone unless disclosure is otherwise authorized by this section.
(b) Notwithstanding the provisions of subsection (a) of this section, a copy of a juvenile's records shall automatically be disclosed to certain school officials, subject to the following terms and conditions:
(1) Only the records of certain types of juvenile juveniles records shall be disclosed. These include and are limited to cases in which:
(A) The juvenile has been charged with an offense which: would be a felony if the juvenile were an adult and
(i) The offense Involves violence against another person;
(ii) The offense Involves possession of a dangerous or deadly weapon; or
(iii) The offense Involves possession or delivery of a controlled substance as that term is defined in section one hundred one, article one, chapter sixty-a of this code; and
(B) The juvenile juvenile's case has proceeded to a point where one or more of the following has occurred:
(i) A judge, magistrate or referee has determined that there is probable cause to believe that the juvenile committed the offense as charged;
(ii) A judge, magistrate or referee has placed the juvenile on probation for the offense;
(iii) A judge, magistrate or referee has placed the juvenile into an improvement period in accordance with section nine article five, chapter forty-nine of this code of this article; or
(iv) Some other type of disposition has been made of the case other than dismissal.
(2) The circuit court for each judicial circuit in West Virginia shall designate one person to supervise the disclosure of juvenile records to certain school officials.
(3) If the juvenile attends a West Virginia public school, the person designated by the circuit court shall automatically disclose all records of a juvenile the juvenile's case to the county superintendent of schools in the county in which the juvenile attends school The person designated by the circuit court shall also automatically disclose all records of a juvenile case and to the principal of the school which the juvenile attends, subject to the following:
(A) At a minimum, the records shall disclose the following information:
(i) Copies of the arrest report;
(ii) Copies of all investigations;
(iii) Copies of any psychological test results and any mental health records;
(iv) Copies of any evaluation reports for probation or facility placement; and
(v) Any other material that would alert the school to potential danger that the juvenile may pose to himself, herself or others;
(B) The disclosure of the juvenile's psychological test results and any mental health records shall only be made in accordance with subdivision (14) of this subsection;
(C) If the disclosure of any record to be automatically disclosed under this section is restricted in its disclosure by the Health Insurance Portability and Accountability Act of 1996 and any amendments and regulations under the Act, the person designated by the circuit court shall provide the superintendent and principal any notice of the existence of the record that is permissible under the Act and, if applicable, any action that is required to obtain the record; and
(D) When multiple disclosures are required by this subsection, the person designated by the circuit court is required to disclose only material in the juvenile record that had not previously been disclosed to the county superintendent and the principal of the school which the juvenile attends.

(4) If the juvenile attends a private school in West Virginia, the person designated by the circuit court shall determine the identity of the highest ranking person at that school, and shall automatically disclose all records of a juvenile's case to that person.
(5) If the juvenile does not attend school at the time the juvenile's case is pending, the person designated by the circuit court shall not transmit the juvenile's records to any school. However, the person designated by the circuit court shall transmit the juvenile's records to any school in West Virginia which the juvenile subsequently attends.
(6) The person designated by the circuit court shall not automatically transmit juvenile records to a school which is not located in West Virginia. Instead, the person designated by the circuit court shall contact the out-of-state school, inform it that juvenile records exist, and make an inquiry regarding whether the laws of that state permit the disclosure of juvenile records. If so, the person designated by the circuit court shall consult with the circuit judge who presided over the case to determine whether the juvenile records should be disclosed to the out-of-state school. The circuit judge shall have discretion in determining whether to disclose the juvenile records, and shall consider whether the other state's law regarding disclosure provides for sufficient confidentiality of juvenile records, using this section as a guide. If the circuit judge orders the juvenile records to be disclosed, they shall be disclosed in accordance with the provisions of subdivision (7) of this subsection.
(7) The person designated by the circuit court shall transmit the juvenile's records to the appropriate school official under cover of a letter emphasizing the confidentiality of such records and directing the official to consult this section of the code. A copy of this section of the code shall be transmitted with the juvenile's records and cover letter.
(8) Juvenile records must be treated as absolutely confidential by the school official to whom they are transmitted, and nothing contained within the juvenile's records shall be noted on the juvenile's permanent educational record. The juvenile records are to be maintained in a secure location and are not to be copied under any circumstances. However, the principal of a school to whom the records are transmitted shall have the duty to disclose the contents of those records to any teacher who teaches a class in which the subject juvenile is enrolled and to the regular driver of a school bus in which the subject juvenile is regularly transported to or from school, except that the disclosure of the juvenile's psychological test results and any mental health records shall only be made in accordance with subdivision (14) of this subsection. Furthermore, any school official to whom the juvenile's records are transmitted may disclose the contents of such records to any adult within the school system who, in the discretion of the school official, has the need to be aware of the contents of those records.
(9) If for any reason a juvenile ceases to attend a school which possesses that juvenile's records, the appropriate official at that school shall seal the records and return them to the circuit court which sent them to that school. If the juvenile has changed schools for any reason, the former school shall inform the circuit court of the name and location of the new school which the juvenile attends or will be attending. If the new school is located within West Virginia, the person designated by the circuit court shall forward the juvenile's records to the juvenile's new school in the same manner as provided in subdivision (7) of this subsection. If the new school is not located within West Virginia, the person designated by the circuit court shall handle the juvenile records in accordance with subdivision (6) of this subsection.
If the juvenile has been found not guilty of an offense for which records were previously forwarded to the juvenile's school on the basis of a finding of probable cause, the circuit court shall not forward those records to the juvenile's new school. However, this shall not affect records related to other prior or future offenses. If the juvenile has graduated or quit school, or will otherwise not be attending another school, the circuit court shall retain the juvenile's records and handle them as otherwise provided in this article.
(10) Under no circumstances shall one school transmit a juvenile's records to another school.
(11) Under no circumstances shall juvenile records be automatically transmitted to a college, university or other post-secondary school.
(12) No one shall suffer any penalty, civil or criminal, for accidentally or negligently attributing certain juvenile records to the wrong person. However, such person shall have the affirmative duty to promptly correct any mistake that he or she has made in disclosing juvenile records when the mistake is brought to his or her attention. A person who intentionally attributes false information to a certain person shall be subjected to both criminal and civil penalties, in accordance with subsection (e) of this section.
(13) If a judge, magistrate or referee has determined that there is probable cause to believe that a juvenile has committed an offense but there has been no final adjudication of the charge, the records which are transmitted by the circuit court shall be accompanied by a notice which clearly states in bold print that there has been no determination of delinquency and that our legal system requires a presumption of innocence.
(14) The county superintendent shall designate the school psychologist or psychologists to receive the juvenile's psychological test results and any mental health records. The psychologist designated shall review the juvenile's psychological test results and any mental health records, and, in the psychologist's professional judgement, may disclose to the principal of the school that the juvenile attends and other school employees who would have a need to know the psychological test results, mental health records and any behavior that may trigger violence or other disruptive behavior by the juvenile. Other school employees includes, but is not limited to, any teacher who teaches a class in which the subject juvenile is enrolled and the regular driver of a school bus in which the subject juvenile is regularly transported to or from school.
(c) Notwithstanding the provisions of subsection (a) of this section, juvenile records may be disclosed, subject to the following terms and conditions:
(1) If a juvenile case is transferred to the criminal jurisdiction of the circuit court pursuant to the provisions of subsection (c) or (d), section ten of this article, the juvenile records shall be open to public inspection.
(2) If a juvenile case is transferred to the criminal jurisdiction of the circuit court pursuant to the provisions of subsection (e), (f) or (g), section ten of this article, the juvenile records shall be open to public inspection only if the juvenile fails to file a timely appeal of the transfer order, or the supreme court of appeals refuses to hear or denies an appeal which has been timely filed.
(3) If a juvenile is fourteen years of age or older and a court has determined there is a probable cause to believe the juvenile committed an offense set forth in subsection (g), section ten of this article, but the case is not transferred to criminal jurisdiction, the juvenile records shall be open to public inspection pending trial only if the juvenile is released on bond and no longer detained or adjudicated delinquent of the offense.
(4) If a juvenile is younger than fourteen years of age and a court has determined there is probable cause to believe that the juvenile committed the crime of murder under section one, two or three, article two, chapter sixty-one of this code, or the crime of sexual assault in the first degree under section three, article eight-b of said chapter, but the case is not transferred to criminal jurisdiction, the juvenile records shall be open to public inspection pending trial only if the juvenile is released on bond and no longer detained or adjudicated delinquent of the offense.
(5) Upon a written petition and pursuant to a written order, the circuit court may permit disclosure of juvenile records to:
(A) A court which has juvenile jurisdiction and has the juvenile before it in a juvenile proceeding;
(B) A court exercising criminal jurisdiction over the juvenile which requests such records for the purpose of a presentence report or disposition proceeding;
(C) The juvenile, the juvenile's parents or legal guardian, or the juvenile's counsel;
(D) The officials of a public institution to which the juvenile is committed if they require such records for transfer, parole or discharge; or
(E) A person who is conducting research. However, juvenile records may be disclosed for research purposes only upon the condition that information which would identify the subject juvenile or the juvenile's family shall not be disclosed.
(d) Any records open to public inspection pursuant to the provisions of this section are subject to the same requirements governing the disclosure of adult criminal records.
(e) Any person who willfully violates this section shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in the county or regional jail for not more than six months, or both so fined and confined, and shall be liable for damages in the amount of three hundred dollars or actual damages, whichever is greater."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 596), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Coleman and Faircloth.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4037) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4250, Providing good faith protection for licensed psychologists and psychiatrists acting upon appointment by a court in child custody cases.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-21. Creating presumption of good faith for court appointed licensed psychologists and psychiatrists conducting a child custody evaluation; method for assigning court and legal fees.

(a) A licensed psychologist or licensed psychiatrist who has been appointed by a court to conduct a child custody evaluation in a judicial proceeding shall be presumed to be acting in good faith if the evaluation has been conducted consistent with standards established by the American psychological association's guidelines for child custody evaluations in divorce proceedings.
(b) No complaint to a licensing or accrediting entity against a court appointed licensed psychologist or psychiatrist relating to a child custody evaluation shall be considered if it is filed anonymously and does not include the full name, address and telephone number of the complainant.
(c) Any action filed against a licensed psychologist or licensed psychiatrist alleging tortious conduct related to evidence provided while acting as a court-appointed expert in a child custody matter shall contain a recitation of a specific allegation of breaches of American psychological association's guidelines for child custody evaluations in divorce proceedings. Failure to specifically plead such violations shall be cause for dismissal of the action
(d) Any licensed psychologist or licensed psychiatrist who is named in a civil action as a defendant because of his or her performance of a child custody evaluation while acting as a court- appointed expert and who prevails due to a finding that he or she acted consistently with the American psychological association's guidelines shall be entitled to reimbursement of all reasonable costs and attorneys fees expended."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4250 - "A Bill to amend the code of West Virginia, 1931, as amended by adding thereto a new section, designated §55-7-21, relating to legal actions against psychologists and psychiatrists appointed by a court to provide expert testimony for child custody evaluations; providing standard for good faith; barring of anonymous administrative complaints; providing method for assigning costs of proceedings; and awarding of attorneys fees."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 597), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Faircloth.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4250) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4259, Revising the composition, powers and duties of the Governor's Cabinet on Children and Families.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page eighteen, section three, by striking out all of subdivisions (5) and (6) and inserting in lieu thereof the following:
"(5) Report annually to the Joint Committee on Government and Finance on its progress in implementing the comprehensive multi-year state plan required under subdivision (2) of this section; and
(6) Submit an annual electronic report before the first day of January to the Legislature and a written copy of the report to the legislative librarian on its financial transactions for the preceding year, minutes of its meetings, narrative descriptions of any training sessions, conferences or other events, and a progress report on its implementation of the comprehensive multi-year state plan required under subdivision (2) of this section."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 598), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4259) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 599), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4259) takes effect from passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 4330, Revising the law governing vital records.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, 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 section, designated §16-5-36, to read as follows:
ARTICLE 5. VITAL STATISTICS.
§16-5-36. Electronic filing.

That any certificate filed pursuant to this article may be filed electronically."
And,
By amending the title of the bill to read as follows:
H. B. 4330 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-5-36, relating to vital statistics; authorizing electronic filing of certificates."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 600), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: R. Thompson.
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4330) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4354, Authorizing county commissions to adopt ordinances to reduce false alarms.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section in inserting in lieu thereof the following:
"ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3oo. Authority to adopt ordinances relating to false alarms.

(a) In addition to all other powers and duties they now possess, county commissions may enact ordinances, establish a system of administration and enforcement, assess fees and penalties, issue orders and take other necessary and appropriate actions for the reduction and elimination of false alarms.
(b) The provisions of any false alarm ordinance adopted by a county commission pursuant to this section shall take precedence over any other county ordinance pertaining to false alarms.
(c) Any false alarm ordinance adopted by a county commission shall provide that on or before the first day of January 2006, county 911 centers will only accept calls from Underwriters Laboratories certified central stations and be consistent with the standards relating to burglar, security, medical and fire alarms as established by the National Burglar and Fire Alarm Association, the National Alarm Reduction Association, or their successor organizations.
(d) The county commission shall appoint an alarm administrator to administer the false alarm ordinance. In counties that have an enhanced emergency telephone system pursuant to section six, article six, chapter twenty-four, the enhanced emergency telephone system director shall be the administrator. In counties without an enhanced emergency telephone system, the alarm administrator shall be knowledgeable and qualified in the areas of alarm systems and false alarm reduction efforts.
(e) The false alarm ordinance shall provide for the appointment of a false alarm advisory board, which shall consist of the alarm administrator, the county sheriff or other law-enforcement officer, a chief from a county fire department, or his or her designee, a representative from the alarm industry, and a member-at-large selected by the county commission to serve a two-year term. The advisory board shall review, assist and make recommendations concerning false alarm reduction efforts and report to the commission."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 601), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4354) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4433, Creating the crime of abuse and neglect of an elderly person and the crime of misuse or misappropriation of the funds or assets of an elderly person.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; abuse or neglect of elder person; misappropriation or misuse of assets or funds of elder person; misappropriation or misuse of assets or funds of elder person through deception, intimidation, coercion, bodily injury or threats of bodily injury; penalties.

(a) The following words when used in this section have the meaning ascribed, unless the context clearly indicates otherwise:
(1) 'Abuse' means the infliction or threat to inflict physical pain or injury on an incapacitated adult or elder person;
(2) 'Caregiver' means an adult who has or shares actual physical possession or care of an incapacitated adult or elder person on a full-time or temporary basis, regardless of whether such person has been designated as a guardian of such adult by any contract, agreement or legal proceeding. Caregiver includes health care providers, family members, and any person who otherwise voluntarily accepts a supervisory role towards an incapacitated adult or elder person;
(3) 'Neglect' means: (i) The failure to provide the necessities of life to an incapacitated adult or elder person; or (ii) the unlawful expenditure or willful dissipation of the funds or other assets owned or paid to or for the benefit of an incapacitated adult or elder person; and
(4) 'Incapacitated adult' means any person who by reason of physical, mental or other infirmity is unable to physically carry on the daily activities of life necessary to sustaining life and reasonable health;
(5) 'Elder' means a person age sixty-five years or older;
(6) 'Bodily injury' means substantial physical pain, illness or any impairment of physical condition; and
(7) 'Custodian' means a person over the age of eighteen years who has or shares actual physical possession of care and custody of an elder person on a full-time or temporary basis, regardless of whether the person has been granted custody of the elder person by any contract, agreement or legal proceeding.
(b) Any person, caregiver, guardian or custodian who neglects an incapacitated adult or elder person, or who knowingly permits another person to neglect said adult, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than fifteen hundred dollars, or imprisoned in the county or regional jail for not less than ninety days nor more than one year, or both fined and imprisoned.
(c) Any person, caregiver, guardian or custodian who intentionally abuses or neglects an incapacitated adult or elder person is guilty of a felony and, upon conviction thereof, shall, in the discretion of the court, be confined in the penitentiary a state correctional facility for not less than two nor more than ten years. or be confined in the county jail for not more than twelve months and fined not more than fifteen hundred dollars
(d) If any person, caregiver, guardian or custodian of an elder person or incapacitated adult, willfully misappropriates, or misuses the funds or assets of an incapacitated adult or elder person for the person's, caregiver's, guardian's, or custodian's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another, he or she is guilty of a felony and, upon conviction thereof, shall be fined not more than five thousand dollars and incarcerated in a correctional facility not less than two nor more than ten years.
(e) If any person, caregiver, guardian or custodian of an elder person or incapacitated adult, by means of deception, intimidation, coercion, infliction of bodily injury or threats of the infliction of bodily injury, willfully misappropriates, or misuses the funds or assets of an incapacitated adult or elder person for the person's, caregiver's, guardian's, or custodian's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another, he or she is guilty of a felony and, upon conviction thereof, shall be fined not more than five thousand dollars and incarcerated in a correctional facility not less than five nor more than fifteen years.
(d) (f) Nothing in 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."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4433 - "A Bill to amend and reenact §61-2-29 of the code of West Virginia, 1931, as amended, relating to abuse or neglect of an incapacitated adult; adding the crimes of abuse and neglect of an elder person age sixty-five years or older and the crime of misuse and misappropriation of the funds or assets of an elder person; and creating the crime of misuse or misappropriation of the funds or assets of an elder person through deception, intimidation, coercion, the infliction of bodily injury or the threat of bodily injury; and penalties."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 602), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4433) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4492, Creating the criminal offense of soliciting a minor via computer.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 3C. WEST VIRGINIA COMPUTER CRIME AND ABUSE ACT.
§61-3C-14b. Soliciting, etc. a minor via computer; penalty.

Any person over the age of eighteen, who knowingly uses a computer to solicit, entice, seduce or lure, or attempt to solicit, entice, seduce or lure, a minor known or believed to be at least four years younger than the person using the computer or a person he or she believes to be such a minor, to commit any illegal act proscribed by the provisions of articles eight, eight-b, eight-c or eight-d of this chapter, or any felony offense under section four hundred one, article four, chapter sixty-a of this code, is guilty of a felony and, upon conviction thereof, shall be fined not more than five thousand dollars or imprisoned in a state correctional facility not less than two nor more than ten years, or both."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4492 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3C-14b, relating to creating the criminal offense of soliciting certain minors or one believed to be a minor via computer to commit violations of certain criminal laws; and providing penalties."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 603), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4492) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 4582, Limiting the division of labor elevator inspectors to inspection of elevators in state owned buildings.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, section one, lines four through six, by striking out the words "National Standards Institute (ANSI) Code A17.1-3, 'Safety Code for Elevators' " and inserting in lieu thereof the words "Society of Mechanical Engineers Safety Code for Elevators and Escalators (ASME) A17.1-3, 'Safety Code for Elevators' and ASME A18.1, 'Safety Code for Platform Lifts and Stairway Chairlifts' ".
On page five, section two, line sixteen, by striking out the words "a written" and inserting in lieu thereof the word "an".
On page six, section two, line forty-one, by striking out the word "shall" and inserting in lieu thereof the word "may".
On page eight, section five, lines eighteen and nineteen, by striking out the words "National Standards Institute (ANSI) Code A17.1-3, 'Safety Code for Elevators' " and inserting in lieu thereof the words "Society of Mechanical Engineers Safety Code for Elevators and Escalators (ASME) A17.1-3, 'Safety Code for Elevators' and ASME A18.1, 'Safety Code for Platform Lifts and Stairway Chairlifts' ".
And,
On page nine, section six, line fourteen, by striking out the words "a passenger" and inserting in lieu thereof the word "an".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 604), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4582) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4587, Including persons who are members or consultants to review organizations within the definition of health care professionals for peer review purposes.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, section one, by striking out everything after the section heading and inserting in lieu thereof the following:
"As used in this article:
'Health care professionals' means individuals who are licensed to practice in any health care field and individuals, who, because of their education, experience or training participate as members of or consultants to a review organization.
'Peer review' means the procedure for evaluation by health care professionals of the quality and efficiency of services ordered or performed by other health care professionals, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review and patient safety review.
'Professional society' includes medical, psychological, nursing, dental, optometric, pharmaceutical, chiropractic and podiatric organizations having as members at least a majority of the eligible licentiates in the area or health care facility or agency served by the particular organization.
'Review organization' means any committee or organization engaging in peer review, including a hospital utilization review committee, a hospital tissue committee, a medical audit committee, a health insurance review committee, a health maintenance organization review committee, hospital, medical, dental and health service corporation review committee, a hospital plan corporation review committee, a professional health service plan review committee or organization, a dental review committee, a physicians' advisory committee, a podiatry advisory committee, a nursing advisory committee, any committee or organization established pursuant to a medical assistance program, the joint commission on accreditation of health care organizations or similar accrediting body or any entity established by such accrediting body or to fulfill the requirements of such accrediting body, any entity established pursuant to state or federal law for peer review purposes, and any committee established by one or more state or local professional societies or institutes, to gather and review information relating to the care and treatment of patients for the purposes of: (i) Evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board committee or organization reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto, and any professional standards review organizations established or required under state or federal statutes or regulations."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 605), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4587) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 4658, Relating to defense of self, others and property and providing limited immunity from civil liability.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-21. Civil immunity to persons resisting criminal activities.

(a) Any person who unlawfully enters upon the property of another for purposes of engaging in criminal conduct assumes the risk for any injury caused to him or her by the reasonable and proportionate acts of the owner or his agent in resisting the commission of the criminal conduct.
(b) The provisions of this section do not apply to the creation of a hazardous or dangerous condition on the property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct."
And,
By amending the title of the bill to read as follows:
H. B. 4658 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-7-21, relating to defense of property; providing limited immunity from civil liability; and exceptions."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 606), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Fleischauer.
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4658) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 4740, Relating to the establishment, initial funding and operation of a patient injury compensation fund.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 12D. WEST VIRGINIA PATIENT INJURY COMPENSATION FUND.
§29-12D-1. Creation of patient injury compensation fund; purpose; initial funding of patient injury compensation fund.

(a) There is created the West Virginia patient injury compensation fund, for the purpose of providing fair and reasonable compensation to claimants in medical malpractice actions for any portion of economic damages awarded that is uncollectible as a result of limitations on economic damage awards for trauma care, or as a result of the operation of the joint and several liability principles and standards, set forth in article seven-b, chapter fifty-five of this code. The fund shall consist of all contributions, revenues and moneys which may be paid into the fund from time to time by the state of West Virginia or from any other source whatsoever, together with any and all interest, earnings, dividends, distributions, moneys or revenues of any nature whatsoever accruing to the fund.
(b) Initial funding for the fund shall be provided as follows: during fiscal year two thousand five, two million two hundred thousand dollars of the revenues that would otherwise be transferred to the tobacco account established at subsection (b), section two, article eleven-a, chapter four of this code pursuant to the provisions of section fourteen, article three, chapter thirty-three of this code shall be transferred to the fund; during fiscal year two thousand six, two million two hundred thousand dollars of the revenues that would otherwise be transferred to the tobacco account established at subsection (b), section two, article eleven-a, chapter four of this code pursuant to the provisions of section fourteen, article three, chapter thirty-three of this code, shall be transferred to the fund; and during fiscal year two thousand seven, two million two hundred thousand dollars of the revenues that would otherwise be transferred to the tobacco account established at subsection (b), section two, article eleven-a, chapter four of this code pursuant to the provisions of section fourteen, article three, chapter thirty-three of this code shall be transferred to the fund. Beginning fiscal year two thousand eight, if and to the extent additional funding for the fund is required from time to time to maintain the actuarial soundness of the fund, the additional funding may be provided by further act of the legislature, either from the revenue stream identified in this subsection or otherwise. Payments to the tobacco fund shall be extended until the tobacco fund is repaid in full.
(c) The fund is not and shall not be considered a defendant in any civil action arising under article seven-b, chapter fifty-five of this code.
(d) The fund is not and shall not be considered an insurance company or insurer for any purpose under this code.
§29-12D-2. Administration of fund; investment of fund assets; annual actuarial review and audit; fund assets and liabilities not assets and liabilities of the state.

(a) The patient injury compensation fund shall be implemented, administered and operated by the board of risk and insurance management. In addition to any other powers and authority expressly or impliedly conferred on the board of risk and insurance management in this code, the board may:
(1) Receive, collect and deposit all revenues and moneys due the fund;
(2) Employ, or in accordance with the provisions of law applicable contract for personal, professional or consulting services, retain the services of a qualified competent actuary to perform the annual actuarial study of the fund required by this section and advise the board on all aspects of the fund's administration, operation and defense which require application of the actuarial science;
(3) Contract for any services necessary or advisable to implement the authority and discharge the responsibilities conferred and imposed on the board by this article;
(4) Employ, or contract with, legal counsel of the board's choosing to advise and represent the board and represent the fund in respect of any and all matters relating to the operation of the fund and payments out of the fund;
(5) Employ necessary or appropriate clerical personnel to carry out the responsibilities of the board under this part; and
(6) Promulgate rules, in accordance with article three, chapter twenty-nine-a of this code as it considers necessary or advisable to implement the authority of and discharge the responsibilities conferred and imposed on the board by this article.
(b) The assets of the fund, and any and all income, dividends, distributions or other income or moneys earned by or accruing to the benefit of the fund, shall be held in trust for the purposes contemplated by this article, and shall not be spent for any other purpose: Provided, That the assets of the fund may be used to pay for all reasonable costs and expenses of any nature whatsoever associated with the ongoing administration and operation of the fund. All assets of the fund from time to time shall be deposited with, held and invested by, and accounted for separately by the investment management board. All moneys and assets of the fund shall be invested and reinvested by the investment management board in the same manner as provided by law for the investment of other trust fund assets held and invested by the investment management board.
(c) The board shall cause an annual review of the assets and liabilities of the fund to be conducted on an annual basis by a qualified, independent actuary.
(d) The board shall cause an audit of the fund to be conducted on an annual basis by a qualified, independent auditor.
(e) The state of West Virginia is not liable for any liabilities of the fund. Claims or expenses against the fund are not a debt of the state of West Virginia or a charge against the general revenue fund of the state of West Virginia.
§29-12D-3. Payments from the patient injury compensation fund.
(a) Other than payments in connection with the ongoing operation and administration of the fund, no payments may be made from the fund other than in satisfaction of claims for economic damages to qualified claimants who would have collected economic damages but for the operation of the limits on economic damages set forth in article seven-b, chapter fifty-five of this code.
(b) For purposes of this article, a qualified claimant must be both a 'patient' and a 'plaintiff' as those terms are defined in article seven-b, chapter fifty-five of this code.
(c) Any qualified claimant seeking payment from the fund must establish to the satisfaction of the board that he or she has exhausted all reasonable means to recover from all applicable liability insurance an award of economic damages, following procedures prescribed by the board by legislative rule.
(d) Upon a determination by the board that a qualified claimant to the fund for compensation has exhausted all reasonable means to recover from all applicable liability insurance an award of economic damages arising under article seven-b, chapter fifty-five of this code, the board shall make a payment or payments to the claimant for economic damages. The economic damages must have been awarded but be uncollectible after the exhaustion of all reasonable means of recovery of applicable insurance proceeds. In no event shall the amount paid by the board in respect to any one occurrence exceed one million dollars or the maximum amount of money that could have been collected from all applicable insurance prior to the creation of the patient injury compensation fund under this article, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees.
(e) The board, in its discretion, may make payments to a qualified claimant in a lump sum amount or in the form of periodic payments. Periodic payments are to be based upon the present value of the total amount to be paid by the fund to the claimant by using federally approved qualified assignments.
(f) In its discretion, the board may make a payment or payments out of the fund to a qualified claimant in connection with the settlement of claims arising under article seven-b, chapter fifty-five of this code, all according to rules promulgated by the board. The board shall prior to making payment determine that payment from the fund to a qualified claimant is in the best interests of the fund. When the claimant and the board agree upon a settlement amount, the following procedure shall be followed:
(1) A petition shall be filed by the claimant with the court in which the action is pending, or if none is pending, in a court of appropriate jurisdiction, for approval of the agreement between the claimant and the board.
(2) The court shall set the petition for hearing as soon as the court's calendar permits. Notice of the time, date and place of hearing shall be given to the claimant and to the board.
(3) At the hearing the court shall approve the proposed settlement if the court finds it to be valid, just and equitable.
(g) If and to the extent that any payment to one or more qualified claimants under this section would deplete the fund during any fiscal year, payments to and among qualified claimant's shall be prorated during the fiscal year according to the rules promulgated by the board. Any amounts due and unpaid to qualified claimants shall be paid in subsequent fiscal years from available funds, but only to the extent funds are available in any fiscal year, according to the board's rules.
(h) Payments out of the fund may be used to pay reasonable attorney fees of attorneys representing qualified claimants receiving compensation in respect of economic damages as established by the board of risk and insurance management.
(i) The claimant may appeal a final decision made by the board pursuant to the provisions of article five, chapter twenty-nine-a of this code."
And,
By amending the title of the bill to read as follows:
H. B. 4740 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §29-12D-1, §29-12D-2 and §29-12D-3, all relating to the establishment, initial funding and operation of a patient injury compensation fund; creating a patient injury compensation fund; providing initial funding; providing the fund is not an insurer or insurance company under the code; providing for administration by the board of risk and insurance management; specifying certain powers and authority of the board; protecting the assets of the fund; requiring an annual audit of the fund by an independent actuary; providing immunity for the state and its agents for the debts, liabilities or obligations of the fund; providing for payments from the fund to qualified claimants; providing limits on the amount on payment in respect of any occurrence; authorizing payments from the fund either in lump sums or periodic payments; establishing procedures; providing for proration of payments under certain circumstances; authorizing the payment of reasonable attorney fees; and providing for appeals."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 607), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4740) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
S. B. 697, Delegating motor carrier inspector duties to weight enforcement officers.
On motion of Delegate Staton, the House of Delegates receded from their amendment to S. B. 697.
On the passage of the bill, the yeas and nays were taken (Roll No. 608), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Frederick.
So, two thirds of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 697) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title:
S. C. R. 95 - "Suspending Joint Rule No. 5, providing for consideration of S. B. 737, Authorizing use of flashing white lights as auxiliary lights on emergency vehicles."
Resolved by the Legislature of West Virginia, two thirds of all the members present and voting in each house agreeing thereto:
That the provisions of Rule No. 5 of the Joint Rules of the Senate and House of Delegates are hereby suspended for the express purpose of consideration of Senate Bill No. 737.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (S. C. R. 95) to a committee was dispensed with, and it was taken up for immediate consideration.
The question now being on the adoption of the resolution, the yeas and nays were taken (Roll No. 609), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Hartman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (S. C. R. 95) adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2801, Requiring the ethics commission to furnish copies of all advisory opinions issued by the commission to the West Virginia Legislature and the supreme court law library.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4047, Creating a high growth business investment tax credit to encourage investment by state citizens and businesses in certain companies started by fellow West Virginians.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4083, Continuing the veterans' council.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4123, Authorizing the supreme court of appeals to create a panel of senior magistrate court clerks.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4134, Substituting the governor's chief technology officer as a member of the employee suggestion award program.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4193, Authorizing the Department of Environmental Protection to promulgate legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4318, Imposing personal income tax on funds withdrawn from a prepaid college tuition contract or other college savings plans.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4364, Including division of forestry employees in the assault and battery statute with similar state personnel.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4403, Repealing the requirement of affidavits acknowledging receipt of compensation.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4418, Continuing the board of architects.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4419, Continuing the board of landscape architects.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4456, Extending the time for the Harrison County commission to submit a proposed levy to the Harrison County voters for approval or rejection intended to finance vital public services.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4464, Extending the time for the county commission of Cabell County to present to the voters an election to consider an excess levy for fire protection services, firefighting training and economic development.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4468, Allowing housing development authorities to pay for persons of eligible income the costs of preparation and recording of any title instrument, deed of trust, note or security instrument and the amount of impact fees imposed.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4480, Continuing West Virginia's participation in the interstate commission on the Potomac River basin.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4531, Continuing the public employees insurance agency finance board.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4532, Continuing the state fire commission.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4581, Continuing the division of protective services.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4622, Repealing the section of the code relating to the exemption of lottery prizes from taxation.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4625, Authorizing the tourism commission the use of the tourism promotion fund to support the 2004 Pete Dye West Virginia Classic.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4672, Relating to calculation of workers' compensation premiums for members of limited liability companies.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 28, Requesting that September 12th of every year be declared as West Virginia Monarch Butterfly Day.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 47, Requesting a study on providing limitations on nurse overtime policies in hospitals operated by state agencies within West Virginia.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 55, Requesting a study whether wild ginseng and cultivated ginseng should be regulated in the same manner.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
Com. Sub. for H. C. R. 60, Designating Route 19/25 near Sutton, Braxton County, as "Tiffany Jackson Drive" in memory and honor of Tiffany Elaine Jackson.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
S. B. 517, Relating to valuation of annuities.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 431, Establishing Interstate Insurance Product Regulation Compact.
Resolutions Introduced

Delegates Blair, Anderson, Armstead, Ashley, Azinger, Beane, Border, Calvert, Canterbury, Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Fleischauer, Frederick, Frich, Hall, Hamilton, Howard, Hrutkay, Leggett, Long, Louisos, Overington, Romine, Schadler, Schoen, Smirl, Sobonya, Sumner, Susman, Trump, Wakim, Walters, Webb and G. White offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 96 - "Requesting the Joint Committee on Government and Finance to study ways to reduce and eliminate the consumer sales tax on food sold for off premises consumption."
Whereas, West Virginia's sales tax on food sold for off premises consumption is six percent; and
Whereas, West Virginia's sales tax on food sold for off premises consumption is the second highest in the United States; and
Whereas, Four of the states that border West Virginia have no sales tax on food sold for off premises consumption; and
Whereas, The remaining state that borders West Virginia has a sales tax on food sold for off premises consumption of only three and one-half percent; and
Whereas, This disparity in tax rates places West Virginia businesses at a competitive disadvantage with those in neighboring states; and
Whereas, The sales tax on food sold for off premises consumption is a regressive tax that is a heavy burden to poor and working families in West Virginia; and
Whereas, It would be beneficial to West Virginia families and businesses if the tax on food sold for off premises consumption is reduced and eliminated; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the ways by which the sales tax on food sold for off premises consumption may be reduced and ultimately eliminated; and, be it
Further Resolved, That the Joint Committee on Government and Finance report back to the full Legislature in January, 2005, its findings, conclusions and recommendations, together with drafts of any legislation that it may determine is necessary to ensure that West Virginia's poor and working families may be relieved of the heavy burden imposed by the sales tax on food sold for off premises consumption; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare the report and to draft the necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Delegate DeLong offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 97 - "Requesting the Joint Committee on Government and Finance study and promulgate legislative rules to maintain and enforce a West Virginia central abuse registry in accordance with West Virginia code §15-2C-1."
Whereas, The criminal identification bureau of the West Virginia state police is entrusted to serve, protect and investigate claims of abuse, neglect or misappropriation of property by an individual performing services for compensation in a residential care facility, licensed day care center or in connection with providing behavioral health care services or home care services; and
Whereas, There presently exists no legislative rules or enforcement of West Virginia code §15-2C-1 (a central abuse registry) that identifies persons convicted of abuse, neglect or misappropriation of property, making it possible for those persons to remain employed in a residential care facility or a licensed day care center or employed in providing behavioral health services or home care services; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is requested to study the establishment of legislative rules to enforce and maintain a West Virginia central abuse registry in accordance with West Virginia code §15-2C-1, containing the names of those persons employed in a residential care facility or a licensed day care center or employed in providing behavioral health services or home care services that have been convicted of abuse, neglect or misappropriation of property against a child or an incapacitated adult; and, be it
Further Resolved, That the Joint Committee on Government and Finance consult with the Department of Health and Human Resources, the West Virginia state police and Mountain State Centers for Independent Living to implement this program; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, 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.
Consent Calendar

Third Reading

Com. Sub. for S. B. 28, Exempting certain personal property from levy, forced sale, attachment or execution; on third reading, coming up in regular order, with a Committee amendment pending and the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill as follows:
On page one, after the enacting clause, by striking out the remainder of the bill, and inserting in lieu thereof the following language:
"That §38-8-1 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 8. EXEMPTIONS FROM LEVY.
§38-8-1. Exemptions of personal property.

(a) Any individual residing in this state or the dependent of such individual may set apart and hold as exempt from execution or other process the following personal property:
(1) Such individual's interest, not to exceed five thousand dollars in value, in one motor vehicle;
(2) Such individual's interest not to exceed eight thousand dollars in aggregate value, in household goods, furniture, toys, animals, appliances, books and wearing apparel that are held primarily for the personal, family or household use of such individual;
(3) Such individual's aggregate interest, not to exceed three thousand dollars, in any implements, professional books or tools of such individual's trade;
(4) Such individual's funds on deposit in a federally insured financial institution, wages or salary, not to exceed the greater of (i) one thousand dollars, or (ii) one hundred twenty-five percent of the amount of the annualized federal poverty level of such individual's household divided by the number of pay periods for such individual per year; and
(5) Funds on deposit in an individual retirement account (IRA), including a simplified employee pension (SEP), in the name of such individual: Provided, That the amount is exempt only to the extent it is not or has not been subject to an excise or other tax on excess contributions under Section 4973 or Section 4979 of the Internal Revenue Code of 1986, or both sections, or any successor provisions, regardless of whether the tax is or has been paid.
(b) Notwithstanding the foregoing, in no case may an individual residing in this state or the dependent of such individual exempt from execution or other process more than fifteen thousand dollars in the aggregate in personal property listed in subdivisions (1), (2), (3) and (4), subsection (a) of this section."
The bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub for S. B. 230, Relating to definitions of casualty insurance and federal flood insurance; other provisions,
S. B. 317, Increasing parolee supervision fee; on third reading, coming up in regular order, was read a third time,
Com. Sub. for 320, Relating to division of motor vehicles application for certificate of title; exempting modular homes,
And,
S. B. 418, Allowing certain sheriff employees to carry deadly weapons.
S. B. 428, Defining "transacting insurance"; on third reading, coming up in regular order, with a Committee amendment pending and the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill as follows:
On page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"That §33-31-1, §33-31-2, §33-31-4, §33-31-5, §33-31-6, §33-31-7, §33-31-8, §33-31-9, §33-31-10, §33-31-11, §33-31-13, §33-31-14 and §33-31-15 of the code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto nine new sections, designated §33-31-17, §33-31-18, §33-31-19, §33-31-20, §33-31-21, §33-31-22, §33-31-23, §33-31-24 and §33-31-25; and that said code be amended by adding thereto a new article, designated §33-31A-1, §33-31A-2, §33-31A-3, §33-31A-4, §33-31A-5, §33-31A-6, §33-31A-7 and §33-31A-8, all to read as follows:
ARTICLE 31. CAPTIVE INSURANCE.
§33-31-1. Definitions.
As used in this chapter, unless the context requires otherwise:
(1) 'Affiliated company' means any company in the same corporate system as a parent, an industrial insured, or a member organization by virtue of common ownership, control, operation or management.
(2) 'Alien captive insurance company' means any insurance company formed to write insurance business for its parents and affiliates and licensed pursuant to the laws of a country other than the United States which imposes statutory or regulatory standards in a form acceptable to the commissioner on companies transacting the business of insurance in such jurisdiction.
(2) (3) 'Association' means any legal association of individuals, corporations, partnerships or associations limited liability companies, partnerships, associations, or other entities that has been in continuous existence for at least one year, the member organizations of which collectively or which does itself, whether or not in conjunction with some or all of the member organizations:
(A) Own, control or hold with power to vote all of the outstanding voting securities of an association captive insurance company incorporated as a stock insurer; or
(B) Have complete voting control over an association captive insurance company incorporated as a mutual insurer; or
(C) Constitute all of the subscribers of an association captive insurance company formed as a reciprocal insurer.
(3) (4) 'Association captive insurance company' means any company that insures risks of the member organizations of the association, and their affiliated companies.
(5) 'Branch business' means any insurance business transacted by a branch captive insurance company in this state.
(6) 'Branch captive insurance company' means any alien captive insurance company licensed by the commissioner to transact the business of insurance in this state through a business unit with a principal place of business in this state.
(7) 'Branch operations' means any business operations of a branch captive insurance company in this state.
(4) (8) 'Captive insurance company' means any pure captive insurance company, association captive insurance company, or sponsored captive insurance company, industrial insured captive insurance company, or risk retention group formed or licensed under the provisions of this chapter. For purposes of this chapter, a branch captive insurance company shall be a pure captive insurance company with respect to operations in this state, unless otherwise permitted by the commissioner.
(5) (9) 'Commissioner' means the insurance commissioner of West Virginia.
(10) 'Controlled unaffiliated business' means any company:
(A) That is not in the corporate system of a parent and affiliated companies;
(B) That has an existing contractual relationship with a parent or affiliated company; and
(C) Whose risks are managed by a pure captive insurance company in accordance with section nineteen of this article.
(6) (11) 'Industrial insured' means an insured:
(A) Who procures the insurance of any risk or risks by use of the services of a full-time employee acting as an insurance manager or buyer;
(B) Whose aggregate annual premiums for insurance on all risks total at least twenty-five thousand dollars; and
(C) Who has at least twenty-five full-time employees.
(7) (12) 'Industrial insured captive insurance company' means any company that insures risks of the industrial insureds that comprise the industrial insured group and their affiliated companies.
(8) (13) 'Industrial insured group' means any group that meets the following criteria:
Any group of industrial insureds that collectively:
(i) (A) Own, control or hold with power to vote all of the outstanding voting securities of an industrial insured captive insurance company incorporated as a stock insurer; or
(ii) (B) Have complete voting control over an industrial insured captive insurance company incorporated as a mutual insurer; or
(C) Constitute all of the subscribers of an industrial insured captive insurance company formed as a reciprocal insurer.
(9) (14) 'Member organization' means any individual, corporation, limited liability company, partnership, or association or other entity that belongs to an association.
(15) 'Mutual corporation' means a corporation organized without stockholders and includes a nonprofit corporation with members.
(10) (16) 'Parent' means a corporation, limited liability company, partnership, other entity, or individual that directly or indirectly owns, controls or holds with power to vote more than fifty percent of the outstanding voting:
(A) Securities of a pure captive insurance company organized as a stock corporation; or
(B) Membership interests of a pure captive insurance company organized as a nonprofit corporation.
(11) (17) 'Pure captive insurance company' means any company that insures risks of its parent and affiliated companies or controlled unaffiliated business.
(18) 'Risk retention group' means a captive insurance company organized under the laws of this state pursuant to the Liability Risk Retention Act of 1986, 15 U.S.C. § 3901 et seq., as amended, as a stock or mutual corporation, a reciprocal or other limited liability entity.
§33-31-2. Licensing; authority.
(a) Any captive insurance company, when permitted by its articles of association, or charter or other organizational document, may apply to the commissioner for a license to do any and all insurance comprised in chapter thirty-three of this code section ten, article one of this chapter except as indicated in subdivision (4), subsection (a) of this section: Provided, That said captive insurance company maintains its all captive insurance companies, except pure captive insurance companies, shall maintain their principal office and principal place of business in this state: Provided, however, That:
(1) No pure captive insurance company may insure any risks other than those of its parent and affiliated companies or controlled unaffiliated business;
(2) No association captive insurance company may insure any risks other than those of the member organizations of its association, and their affiliated companies;
(3) No industrial insured captive insurance company may insure any risks other than those of the industrial insureds that comprise the industrial insured group, and their affiliated companies;
(4) No risk retention group may insure any risks other than those of its members and owners;
(4) (5) No captive insurance company may provide personal motor vehicle or homeowner's insurance coverage or any component thereof; and
(5) (6) No captive insurance company may accept or cede reinsurance except as provided in section eleven hereof of this article;
(7) Any captive insurance company may provide excess workers' compensation insurance to its parent and affiliated companies, unless prohibited by the federal law or laws of the state having jurisdiction over the transaction. Any captive insurance company, unless prohibited by federal law, may reinsure workers' compensation of a qualified self-insured plan of its parent and affiliated companies; and
(8) Any captive insurance company which insures risks described in subsections (a) and (b) of section ten, article one of this chapter shall comply with all applicable state and federal laws.
(b) No captive insurance company may do any insurance business in this state unless:
(1) It first obtains from the commissioner a license authorizing it to do insurance business in this state;
(2) Its board of directors, or in the case of a reciprocal insurer its subscribers' advisory committee, holds at least one meeting each year in this state; and
(3) It maintains its principal place of business in this state; and
(4) (3) It appoints a resident registered agent to accept service of process and to otherwise act on its behalf in this state: Provided, That whenever such registered agent cannot with reasonable diligence be found at the registered office of the captive insurance company, the secretary of state shall be an agent of such captive insurance company upon whom any process, notice, or demand may be served.
(c)(1) Before receiving a license, a captive insurance company shall:
(A) File with the commissioner a certified copy of its charter and bylaws organizational documents, a statement under oath of its president and secretary showing its financial condition, and any other statements or documents required by the commissioner; and
(B) Submit to the commissioner for approval a description of the coverages, deductibles, coverage limits, and rates, together with such additional information as the commissioner may reasonably require. In the event of any subsequent material change in any item in such description, the captive insurance company shall submit to the commissioner for approval an appropriate revision and shall not offer any additional kinds of insurance until a revision of such description is approved by the commissioner. The captive insurance company shall inform the commissioner of any material change in rates within thirty days of the adoption of such change.
In addition to the information required above,
(2) Each applicant captive insurance company shall also file with the commissioner evidence of the following:
(1) (A) The amount and liquidity of its assets relative to the risks to be assumed;
(2) (B) The adequacy of the expertise, experience, and character of the person or persons who will manage it;
(3) (C) The overall soundness of its plan of operation;
(4) (D) The adequacy of the loss prevention programs of its parent, member organizations, or industrial insureds as applicable; and
(5) (E) Such other factors deemed relevant by the commissioner in ascertaining whether the proposed captive insurance company will be able to meet its policy obligations.
(3) Information submitted pursuant to this subsection shall be and remain confidential, and may not be made public by the commissioner or an employee or agent of the commissioner without the written consent of the company, except that:
(A) Such information may be discoverable by a party in a civil action or contested case to which the captive insurance company that submitted such information is a party, upon a showing by the party seeking to discover such information that:
(i) The information sought is relevant to and necessary for the furtherance of such action or case;
(ii) The information sought is unavailable from other nonconfidential sources; and
(iii) A subpoena issued by a judicial or administrative officer of competent jurisdiction has been submitted to the commissioner: Provided, That the provisions of subdivision (3) of this subsection shall not apply to any risk retention group; and
(B) The commissioner may, in the commissioner's discretion, disclose such information to a public officer having jurisdiction over the regulation of insurance in another state, if:
(i) The public official shall agree in writing to maintain the confidentiality of such information; and
(ii) The laws of the state in which such public official serves require such information to be and to remain confidential.
(d) Each captive insurance company shall pay to the commissioner a nonrefundable fee of two hundred dollars for examining, investigating, and processing its application for license, and upon issuance of a license, an annual license fee of three hundred dollars. In addition, it shall pay fees and charges in accordance with article three of this chapter and the commissioner is authorized to retain legal, financial and examination services from outside the department, the reasonable cost of which may be charged against the applicant. The provisions of subsection (r), section nine, article two of this chapter shall apply to examinations, investigations, and processing conducted under the authority of this section. In addition, each captive insurance company shall pay a license fee for the year of registration and a renewal fee for each year thereafter of three hundred dollars.
(e) If the commissioner is satisfied that the documents and statements that such captive insurance company has filed comply with the provisions of this chapter, he the commissioner may grant a license authorizing it to do insurance business in this state until April first, thereafter, which license may be renewed.
§33-31-4. Minimum capital and surplus; letter of credit.
No pure captive insurance company, association captive insurance company incorporated as a stock insurer, or industrial insured captive insurance company incorporated as a stock insurer shall be issued a license unless it shall possess and thereafter maintain unimpaired paid-in capital of:
(1) In the case of a pure captive insurance company, not less than one hundred thousand dollars;
(2) In the case of an association captive insurance company incorporated as a stock insurer, not less than three hundred twenty thousand dollars; and
(3) In the case of an industrial insured captive insurance company incorporated as a stock insurer, not less than one hundred sixty thousand dollars.
Such capital may be in the form of cash or an irrevocable letter of credit issued by a bank chartered by the state of West Virginia or a member bank of the federal reserve system and approved by the commissioner.
(a) No captive insurance company shall be issued a license unless it shall possess and thereafter maintain free surplus unimpaired paid-in capital of:
(1) In the case of a pure captive insurance company, not less than one hundred fifty thousand dollars one hundred thousand dollars;
(2) In the case of an association captive insurance company, incorporated as a stock insurer, not less than two hundred eighty thousand dollars not less than three hundred fifty thousand dollars;
(3) In the case of an industrial insured captive insurance company, incorporated as a stock insurer not less than two hundred forty thousand dollars not less than two hundred fifty thousand dollars;
(4) In the case of an association captive insurance company incorporated as a mutual insurer, not less than six hundred thousand dollars.
(4) In the case of a risk retention group, not less than five hundred thousand dollars; and
(5) In the case of an industrial insured captive insurance company incorporated as a mutual insurer not less than four hundred thousand dollars a sponsored captive insurance company, not less than two hundred fifty thousand dollars.
(b) No captive insurance company shall be issued a license unless it possesses and thereafter maintains unimpaired paid-in surplus of:
(1) In the case of a pure captive insurance company, not less than one hundred fifty thousand dollars;
(2) In the case of an association captive insurance company, not less than three hundred fifty thousand dollars;
(3) In the case of an industrial insured captive insurance company, not less than two hundred fifty thousand dollars;
(4) In the case of a risk retention group, not less than five hundred thousand dollars; and
(5) In the case of a sponsored captive insurance company, not less than two hundred fifty thousand dollars.
(c) The commissioner may prescribe additional capital and surplus based upon the type, volume, and nature of insurance business transacted.
(d) Such Capital and surplus may be in the form of cash or an irrevocable letter of credit issued by a bank chartered by the state of West Virginia or a member bank of the federal reserve system and approved by the commissioner.
§33-31-5. Dividends.
No captive insurance company may pay a dividend out of, or other distribution with respect to, capital or surplus without the prior approval of the commissioner. Approval of an ongoing plan for the payment of dividends or other distributions shall be conditioned upon the retention, at the time of each payment, of capital or surplus in excess of amounts specified by, or determined in accordance with formulas approved by, the commissioner.
§33-31-6. Formation of captive insurance companies in this state.
(a) A pure captive insurance company shall may be incorporated as a stock insurer with its capital divided into shares and held by the stockholders, or as a nonprofit corporation with one or more members.
(b) An association captive insurance company or an industrial insured captive insurance company may be incorporated:
(1) Incorporated as a stock insurer with its capital divided into shares and held by the stockholders; or
(2) Incorporated as a mutual insurer without capital stock, the governing body of which is elected by the member organizations of its association its insureds; or
(3) Organized as a reciprocal insurer in accordance with article twenty-one of this chapter.
(c) A captive insurance company incorporated or organized in this state shall have at least one incorporator who not less than three incorporators or three organizers of whom not less than one shall be a resident of this state.
(d) In the case of a captive insurance company:
(1) (A) Formed as a corporation before the articles of association are transmitted to the secretary of state, the incorporators shall petition the commissioner to issue a certificate setting forth his or her the commissioner's finding that the establishment and maintenance of the proposed corporation will promote the general good of the state. In arriving at such a finding the commissioner shall consider:
(1) (i) The character, reputation, financial standing and purpose purposes of the incorporators;
(2) (ii) The character, reputation, financial responsibility, insurance experience and business qualifications of the officers and directors; and
(3) (iii) Such other aspects as the commissioner deems shall
deem
advisable.
(e) (B) The articles of association incorporation, such certificate, and the organization fee shall be transmitted to the secretary of state, who shall thereupon record both the articles of incorporation and the certificate.
(2) Formed as a reciprocal insurer, the organizers shall petition the commissioner to issue a certificate setting forth the commissioner's finding that the establishment and maintenance of the proposed association will promote the general good of the state. In arriving at such a finding the commissioner shall consider the items set forth in subparagraphs (i), (ii) and (iii), paragraph (A), subdivision (1) of this subsection.
(f) (e) The capital stock of a captive insurance company incorporated as a stock insurer shall be issued at not less than par value may be authorized with no par value.
(f) In the case of a captive insurance company:
(g) (1) Formed as a corporation, at least one of the members of the board of directors of a captive insurance company incorporated in this state shall be a resident of this state; and
(2) Formed as a reciprocal insurer, at least one of the members of the subscribers' advisory committee shall be a resident of this state.
(h) (g) Other than captive insurance companies formed as nonprofit corporations under chapter thirty-one-e of this code, captive insurance companies formed as corporations under the provisions of this chapter article shall have the privileges and be subject to the provisions of the general corporation law as well as the applicable provisions contained in this chapter. Captive insurance companies are subject to the provisions of article thirty-three, article thirty-four, article thirty-seven and article thirty-nine of this chapter. In the event of conflict between the provisions of said general corporation law and the provisions of this chapter, the latter shall control.
(h) Captive insurance companies formed as nonprofit corporations under the provisions of this article shall have the privileges and be subject to the provisions of chapter thirty-one-e of this code as well as the applicable provisions contained in this chapter. In the event of conflict between the provisions of chapter thirty-one-e of this code and the provisions of this chapter, the latter shall control.
(i) The provisions of sections twenty-five, twenty-seven and twenty-eight, article five of this chapter and section three, article twenty-seven of this chapter, pertaining to mergers, consolidations, conversions, mutualizations, redomestications, and mutual holding companies, shall apply in determining the procedures to be followed by captive insurance companies in carrying out any of the transactions described therein, except that:
(1) The commissioner may waive or modify the requirements for public notice and hearing in accordance with rules which the commissioner may adopt addressing categories of transactions. If a notice of public hearing is required, but no one requests a hearing, then the commissioner may cancel the hearing; and
(2) An alien insurer may be a party to a merger authorized under this subsection: Provided, That the requirements for a merger between a captive insurance company and a foreign insurer under section twenty-five, article five of this chapter shall apply to a merger between a captive insurance company and an alien insurer under this subsection. Such alien insurer shall be treated as a foreign insurer under section twenty-five, article five of this chapter and such other jurisdictions shall be the equivalent of a state for purposes of section twenty-five, article five of this chapter.
(j) Captive insurance companies formed as reciprocal insurers under the provisions of this chapter shall have the privileges and be subject to the provisions of article twenty-one of this chapter in addition to the applicable provisions of this chapter. In the event of a conflict between the provisions of article twenty-one of this chapter and the provisions of this chapter, the latter shall control. To the extent a reciprocal insurer is made subject to other provisions of this chapter pursuant to article twenty-one of this chapter, such provisions shall not be applicable to a reciprocal insurer formed under this chapter unless such provisions are expressly made applicable to captive insurance companies under this chapter.
(k) The articles of incorporation or bylaws of a captive insurance company formed as a corporation may authorize a quorum of its board of directors to consist of no fewer than one-third of the fixed or prescribed number of directors determined under section eight hundred twenty-four, article eight, chapter thirty-one-e of this code.
(l) The subscribers' agreement or other organizing document of a captive insurance company formed as a reciprocal insurer may authorize a quorum of its subscribers' advisory committee to consist of no fewer than one-third of the number of its members.
§33-31-7. Reports and statements.
(a) Captive insurance companies shall not be required to make any annual report except as provided in this chapter.
(b) On or before the first day of March first of each year, each captive insurance company shall submit to the commissioner a report of its financial condition, verified by oath of two of its executive officers. Each captive insurance company shall report using generally accepted accounting principles, unless the commissioner approves the use of statutory accounting principles, with any appropriate or necessary modifications or adaptations thereof required or approved or accepted by the commissioner for the type of insurance and kinds of insurers to be reported upon, and as supplemented by additional information required by the commissioner. Except as otherwise provided, each association captive insurance company and each risk retention group shall file its report in the form required by section fourteen, article three of this chapter, and each risk retention group shall comply with the requirements set forth in article thirty-two of this chapter. The commissioner shall by rule propose the form forms in which pure captive insurance companies and industrial insured captive insurance companies shall report.
(c) Any pure captive insurance company or an industrial insured captive insurance company may make written application for filing the required report on a fiscal year-end. If an alternative reporting date is granted:
(1) The annual report is due sixty days after the fiscal year-end; and
(2) In order to provide sufficient detail to support the premium tax return, the pure captive insurance company or industrial insured captive insurance company shall file on or before the first day of March of each year for each calendar year-end, pages one, two, three, and five of the 'captive annual statement; pure or industrial insured,' verified by oath of two of its executive officers.
§33-31-8. Examinations and investigations.
(a) At least once in three five years, and whenever the commissioner determines it to be prudent, he the commissioner shall personally, or by some competent person appointed by him the commissioner, visit each captive insurance company and thoroughly inspect and examine its affairs to ascertain its financial condition, its ability to fulfill its obligations and whether it has complied with the provisions of this chapter. The commissioner upon application, in his discretion, may extend the aforesaid three-year period to five years, provided said captive insurance company is subject to a comprehensive annual audit during such period of a scope satisfactory to the commissioner by independent auditors approved by him. The captive insurance company shall be subject to the provisions of section nine, article two of this chapter in regard to the expense and conduct of the examination.
(b) All examination reports, preliminary examination reports or results, working papers, recorded information, documents and copies thereof produced by, obtained by or disclosed to the commissioner or any other person in the course of an examination made under this section are confidential and are not subject to subpoena and may not be made public by the commissioner or an employee or agent of the commissioner without the written consent of the company, except to the extent provided in this subsection. Nothing in this subsection shall prevent the commissioner from using such information in furtherance of the commissioner's regulatory authority under this title. The commissioner may, in the commissioner's discretion, grant access to such information to public officers having jurisdiction over the regulation of insurance in any other state or country, or to law- enforcement officers of this state or any other state or agency of the federal government at any time, so long as such officers receiving the information agree in writing to hold it in a manner consistent with this section.
§33-31-9. Grounds and procedures for suspension or revocation of license.
(a) The license of a captive insurance company to do any insurance business in this state may be suspended or revoked by the commissioner for any of the following reasons:
(1) Insolvency or impairment of capital or surplus;
(2) Failure to meet the requirements of section four or five of this article;
(3) Refusal or failure to submit an annual report, as required by section seven of this article, or any other report or statement required by law or by lawful order of the commissioner;
(4) Failure to comply with the provisions of its own charter, or bylaws or other organizational document;
(5) Failure to submit to examination or any legal obligation relative thereto, as required by section eight of this article;
(6) Refusal or failure to pay the cost of examination as required by section eight of this article;
(7) Use of methods that, although not otherwise specifically prohibited by law, nevertheless render its operation detrimental or its condition unsound with respect to the public or to its policyholders; or
(8) Failure otherwise to comply with the laws of this state.
(b) If the commissioner finds, upon examination, hearing, or other evidence, that any captive insurance company has committed any of the acts specified in violated any provision of subsection (a) of this section, he the commissioner may suspend or revoke such company's license if he the commissioner deems it in the best interest of the public and the policyholders of such captive insurance company, notwithstanding any other provision of this title.
§33-31-10. Legal investments.
(a) An Association captive insurance company companies and risk retention groups shall comply with the investment requirements of the commissioner contained in article eight of this chapter, as applicable. Section eleven, article seven of this chapter shall apply to association captive insurance companies and risk retention groups except to the extent it is inconsistent with approved accounting standards in use by the company. Notwithstanding any other provision of this chapter, the commissioner may approve the use of alternative reliable methods of valuation and rating.
(b) No pure captive insurance company or industrial insured captive insurance company may shall be subject to any restrictions on allowable investments whatever, including those limitations contained in article eight of this chapter: Provided, That the commissioner may, however, prohibit or limit any investment that threatens the solvency or liquidity of any such company.
(c) No pure captive insurance company may make a loan to or an investment in its parent company or affiliates without prior written approval of the commissioner, and any such loan or investment must be evidenced by documentation approved by the commissioner. Loans of minimum capital and surplus funds required by section four of this article are prohibited.
§33-31-11. Reinsurance.
(a) A Any captive insurance company may procure reinsurance or issue policies of reinsurance to other licensed insurers transacting like kinds of insurance, pursuant to the provisions of section fifteen, article four of this chapter provide reinsurance, comprised in section fifteen-a, article four of this chapter, on risks ceded by any other insurer.
(b) Any captive insurance company may take credit for the reinsurance of risks or portions of risks ceded to reinsurers complying with the provisions of sections fifteen-a and fifteen-b, article four of this chapter. Prior approval of the commissioner shall be required for ceding or taking credit for the reinsurance of risks or portions of risks ceded to reinsurers not complying with sections fifteen-a and fifteen-b, article four of this chapter, except for business written by an alien captive insurance company outside of the United States.
(c) In addition to reinsurers authorized under the provisions of section fifteen, article four of this chapter, a captive insurance company may take credit for the reinsurance of risks or portions of risks ceded to a pool, exchange or association acting as a reinsurer which has been authorized by the commissioner. The commissioner may require any other documents, financial information or other evidence that such a pool, exchange or association will be able to provide adequate security for its financial obligations. The commissioner may deny authorization or impose any limitations on the activities of a reinsurance pool, exchange or association that, in the commissioner's judgment, are necessary and proper to provide adequate security for the ceding captive insurance company and for the protection and consequent benefit of the public at large.
(d) For all purposes of this chapter, insurance by a captive insurance company of any workers' compensation qualified self-insured plan of its parent and affiliates shall be deemed to be reinsurance.
§33-31-13. Exemption from compulsory associations.
No captive insurance company may be permitted to join or contribute financially to any plan, pool, association, or guaranty or insolvency fund in this state, nor may any captive insurance company, or its insured, or its parent or any affiliated company, or any member organization of its association any insured or affiliate thereof, receive any benefit from any such plan, pool, association, or guaranty or insolvency fund for claims arising out of the operations of such captive insurance company.
§33-31-14. Tax on premiums collected.
(a) Each pure captive insurance company which maintains its principal office and principal place of business in this state shall pay to the commissioner, in the month of February of each year, a tax at the rate of five tenths of one percent on the gross amount of all premiums collected or contracted for on policies or contracts of insurance covering property or risks in this state and on risks and property situated elsewhere upon which no premium tax is otherwise paid written by the pure captive insurance company during the year ending December thirty-first, next preceding, after deducting from the gross amount of direct premiums, subject to the tax, the amount received as reinsurance premiums on business in the state and the amount amounts paid to policyholders as return premiums which shall include dividends on unabsorbed premiums or premium deposits returned or credited to policyholders; Provided, That no tax shall be due or payable as to considerations received for annuity contracts.
(b) Except as otherwise provided in subsection (a) of this section, each captive insurance company shall pay to the commissioner in the month of February of each year, a tax at the rate of two percent on the gross amount of all premiums collected on or contracted for on policies or contracts of insurance written by the captive insurance company during the year ending December thirty-first, next preceding, after deducting from the direct premiums, subject to the tax, the amounts paid to policyholders as return premiums which shall include dividends on unabsorbed premiums or premium deposits returned or credited to policyholders. Each captive insurance company shall also be subject to the additional premium taxes levied by sections fourteen-a and fourteen-d, article three of this chapter and the surcharge levied by section thirty-three, article three of this chapter.
(b) (c) The tax provided for in this section shall constitute all taxes collectible under the laws of this state from any captive insurance company, and no other premium occupation tax or other taxes shall be levied or collected from any captive insurance company by the state or any county, city, or municipality within this state, except ad valorem taxes.
(d) The tax provided for in this section shall be calculated on an annual basis, notwithstanding policies or contracts of insurance or contracts of reinsurance issued on a multiyear basis. In the case of multiyear policies or contracts, the premium shall be prorated for purposes of determining the tax under this section.
§33-31-15. Rules and regulations.
The commissioner may establish rules and from time to time amend such rules relating to captive insurance companies as are necessary to enable him the commissioner to carry out the provisions of this chapter.
§33-31-17. Delinquency.
Except as otherwise provided in this article, the terms and conditions set forth in article ten of this chapter, pertaining to insurance reorganizations, receiverships and injunctions, shall apply in full to captive insurance companies formed or licensed under this article.
§33-31-18. Rules for controlled unaffiliated business.
The commissioner may adopt rules establishing standards to ensure that a parent or affiliated company is able to exercise control of the risk management function of any controlled unaffiliated business to be insured by the pure captive insurance company. Until such time as rules under this section are adopted, the commissioner may approve the coverage of such risks by a pure captive insurance company.
§33-31-19. Conversion to or merger with reciprocal insurer.
(a) An association captive insurance company, risk retention group, or industrial insured captive insurance company formed as a stock or mutual corporation may be converted to or merged with and into a reciprocal insurer in accordance with a plan therefore and the provisions of this section.
(b) Any plan for such conversion or merger shall provide a fair and equitable plan for purchasing, retiring, or otherwise extinguishing the interests of the stockholders and policyholders of a stock insurer, and the members and policyholders of a mutual insurer, including a fair and equitable provision for the rights and remedies of dissenting stockholders, members, or policyholders.
(c) In the case of a conversion authorized under subsection (a) of this section:
(1) Such conversion shall be accomplished under such reasonable plan and procedure as approved by the commissioner. The commissioner may not approve any plan of conversion unless the plan:
(A) Satisfies the provisions of subsection (b) of this section;
(B) Provides for a hearing, of which notice is given or to be given to the captive insurance company, its directors, officers, and policyholders, and, in the case of a stock insurer, its stockholders, and in the case of a mutual insurer, its members, all of which persons shall be entitled to attend and appear at such hearing. If notice of a hearing is given and no director, officer, policyholder, member, or stockholder requests a hearing, the commissioner may cancel such hearing;
(C) Provides a fair and equitable plan for the conversion of stockholder, member, or policyholder interests into subscriber interests in the resulting reciprocal insurer, substantially proportionate to the corresponding interests in the stock or mutual insurer: Provided, That this requirement shall not preclude the resulting reciprocal insurer from applying underwriting criteria that could affect ongoing ownership interests; and
(D) Is approved:
(i) In the case of a stock insurer, by a majority of the shares entitled to vote represented in person or by proxy at a duly called regular or special meeting at which a quorum is present; and
(ii) In the case of a mutual insurer, by a majority of the voting interests of policyholders represented in person or by proxy at a duly called regular or special meeting thereof at which a quorum is present;
(2) The commissioner shall approve such plan of conversion if the commissioner finds that the conversion will promote the general good of the state in conformity with those standards set forth in subdivision (2), subsection (d) of section six of this article;
(3) If the commissioner approves the plan, the commissioner shall amend the converting insurer's certificate of authority to reflect conversion to a reciprocal insurer and issue such amended certificate of authority to the company's attorney-in-fact;
(4) Upon the issuance of an amended certificate of authority of a reciprocal insurer by the commissioner, the conversion shall be effective; and
(5) Upon the effectiveness of such conversion the corporate existence of the converting insurer shall cease and the resulting reciprocal insurer shall notify the secretary of state of such conversion.
(d) A merger authorized under subsection (a) of this section shall be accomplished substantially in accordance with the procedures set forth in sections twenty-five and twenty-eight, article five of this chapter, except that, solely for purposes of such merger:
(1) The plan of merger shall satisfy the provisions of subsection (b) of this section;
(2) The subscribers' advisory committee of a reciprocal insurer shall be equivalent to the board of directors of a stock or mutual insurance company;
(3) The subscribers of a reciprocal insurer shall be the equivalent of the policyholders of a mutual insurance company;
(4) If a subscribers' advisory committee does not have a president or secretary, the officers of such committee having substantially equivalent duties shall be deemed the president or secretary of such committee;
(5) The commissioner shall approve the articles of merger if the commissioner finds that the merger will promote the general good of the state in conformity with those standards set forth in subdivision (2), subsection (d), section six of this article. If the commissioner approves the articles of merger, the commissioner shall endorse the commissioner's approval thereon and the surviving insurer shall present the same to the secretary of state at the secretary of state's office;
(6) Notwithstanding section four of this article, the commissioner may permit the formation, without surplus, of a captive insurance company organized as a reciprocal insurer, into which an existing captive insurance company may be merged for the purpose of facilitating a transaction under this section: Provided, That there shall be no more than one authorized insurance company surviving such merger; and
(7) An alien insurer may be a party to a merger authorized under subsection (a) of this section: Provided, That the requirements for a merger between a domestic and a foreign insurer under section twenty-five, article five of this chapter shall apply to a merger between a domestic and an alien insurer under this subsection. Such alien insurer shall be treated as a foreign insurer under section twenty-five, article five of this chapter and such other jurisdictions shall be the equivalent of a state for purposes of section twenty-five, article five of this chapter.
§33-31-20. Branch captive insurance company formation.
(a) A branch captive may be established in this state in accordance with the provisions of this article to write in this state only insurance or reinsurance of the employee benefit business of its parent and affiliated companies which is subject to the provisions of the federal Employee Retirement Income Security Act of 1974 and set forth in 29 USC 1001, et seq., as amended. In addition to the general provisions of this chapter, the provisions of sections twenty-one through twenty-five of this article shall apply to branch captive insurance companies.
(b) No branch captive insurance company shall do any insurance business in this state unless it maintains the principal place of business for its branch operations in this state.
§33-31-21. Security required.
In the case of a branch captive insurance company, as security for the payment of liabilities attributable to the branch operations, the commissioner shall require that a trust fund, funded by an irrevocable letter of credit or other acceptable asset, be established and maintained in the United States for the benefit of United States policyholders and United States ceding insurers under insurance policies issued or reinsurance contracts issued or assumed by the branch captive insurance company through its branch operations. The amount of such security may be no less than the amount set forth in subdivision (1), subsection (a), section four of this article and the reserves on such insurance policies or such reinsurance contracts, including reserves for losses, allocated loss adjustment expenses, incurred but not reported losses, and unearned premiums with regard to business written through the branch operations: Provided, That the commissioner may permit a branch captive insurance company that is required to post security for loss reserves on branch business by its reinsurer to reduce the funds in the trust account required by this section by the same amount so long as the security remains posted with the reinsurer. If the form of security selected is a letter of credit, the letter of credit must be established by, or issued or confirmed by, a bank chartered in this state or a member bank of the Federal Reserve System.
§33-31-22. Certificate of general good.

In the case of a captive insurance company licensed as a branch captive, the alien captive insurance company shall petition the commissioner to issue a certificate setting forth the commissioner's finding that, after considering the character, reputation, financial responsibility, insurance experience, and business qualifications of the officers and directors of the alien captive insurance company, the licensing and maintenance of the branch operations will promote the general good of the state. The alien captive insurance company may register to do business in this state after the commissioner's certificate is issued.
§33-31-23. Reports.
Prior to the first day of March of each year, or with the approval of the commissioner within sixty days after its fiscal year-end, a branch captive insurance company shall file with the commissioner a copy of all reports and statements required to be filed under the laws of the jurisdiction in which the alien captive insurance company is formed, verified under oath by its president and secretary. If the commissioner is satisfied that the annual report filed by the alien captive insurance company in its domiciliary jurisdiction provides adequate information concerning the financial condition of the alien captive insurance company, the commissioner may waive the requirement for completion of the captive annual statement for business written in the alien jurisdiction.
§33-31-24. Examination.
(a) The examination of a branch captive insurance company pursuant to section eight of this article shall be of branch business and branch operations only, so long as the branch captive insurance company annually provides to the commissioner a certificate of compliance, or its equivalent, issued by or filed with the licensing authority of the jurisdiction in which the branch captive insurance company is formed, and demonstrates to the commissioner's satisfaction that it is operating in sound financial condition in accordance with all applicable laws and regulations of such jurisdiction.
(b) As a condition of licensure, the alien captive insurance company shall grant authority to the commissioner for examination of the affairs of the alien captive insurance company in the jurisdiction in which the alien captive insurance company is formed.
§33-31-25. Taxation.
In the case of a branch captive insurance company, the tax provided for in section fourteen of this article shall apply only to the branch business of such company.
ARTICLE 31A. SPONSORED CAPTIVE INSURANCE COMPANY FORMATION.
§33-31A-1. Applicability of article.

In addition to the provisions of article thirty-one of this chapter, the provisions of this article shall apply to all sponsored captive insurance companies.
§33-31A-2. Definitions.
As used in this article, unless the context requires otherwise:
(1) 'Participant' means associations, corporations, limited liability companies, partnerships, trusts, and other business entities and any affiliates thereof, that are insured by a sponsored captive insurance company, where the losses of the participant are limited through a participant contract to such participant's pro rata share of the assets of one or more protected cells identified in such participant contract.
(2) 'Participant contract' means a contract by which a sponsored captive insurance company insures the risks of a participant and limits the losses of each such participant to its pro rata share of the assets of one or more protected cells identified in such participant contract.
(3) 'Protected cell' means a separate account established by a sponsored captive insurance company formed or licensed under the provisions of this chapter, in which assets are maintained for one or more participants in accordance with the terms of one or more participant contracts to fund the liability of the sponsored captive insurance company assumed on behalf of such participants as set forth in such participant contracts.
(4) 'Sponsor' means any entity that meets the requirements of section six of this article and is approved by the commissioner to provide all or part of the capital and surplus required by applicable law and to organize and operate a sponsored captive insurance company.
(5) 'Sponsored captive insurance company' means any captive insurance company:
(A) In which the minimum capital and surplus required by applicable law is provided by one or more sponsors;
(B) That is formed or licensed under the provisions of this chapter;
(C) That insures the risks only of its participants through separate participant contracts; and
(D) That funds its liability to each participant through one or more protected cells and segregates the assets of each protected cell from the assets of other protected cells and from the assets of the sponsored captive insurance company's general account.
§33-31A-3. Formation of sponsored captive insurance companies.
One or more sponsors may form a sponsored captive insurance company under the provisions of this article. A sponsored captive insurance company shall be incorporated as a stock insurer with its capital divided into shares and held by the stockholders.
§33-31A-4. Supplemental application materials.

In addition to the information required by subdivisions (1) and (2), subsection (c), section two of article thirty-one of this chapter, each applicant-sponsored captive insurance company shall file with the commissioner the following:
(1) Materials demonstrating how the applicant will account for the loss and expense experience of each protected cell at a level of detail found to be sufficient by the commissioner, and how it will report such experience to the commissioner;
(2) A statement acknowledging that all financial records of the sponsored captive insurance company, including records pertaining to any protected cells, shall be made available for inspection or examination by the commissioner or the commissioner's designated agent;
(3) All contracts or sample contracts between the sponsored captive insurance company and any participants; and
(4) Evidence that expenses shall be allocated to each protected cell in a fair and equitable manner.
§33-31A-5. Protected cells.
A sponsored captive insurance company formed or licensed under the provisions of this article may establish and maintain one or more protected cells to insure risks of one or more participants, subject to the following conditions:
(1) The shareholders of a sponsored captive insurance company shall be limited to its participants and sponsors: Provided, That a sponsored captive insurance company may issue nonvoting securities to other persons on terms approved by the commissioner;
(2) Each protected cell shall be accounted for separately on the books and records of the sponsored captive insurance company to reflect the financial condition and results of operations of such protected cell, net income or loss, dividends or other distributions to participants, and such other factors as may be provided in the participant contract or required by the commissioner;
(3) The assets of a protected cell shall not be chargeable with liabilities arising out of any other insurance business the sponsored captive insurance company may conduct;
(4) No sale, exchange or other transfer of assets may be made by such sponsored captive insurance company between or among any of its protected cells without the consent of such protected cells;
(5) No sale, exchange, transfer of assets, dividend or distribution may be made from a protected cell to a sponsor or participant without the commissioner's approval and in no event shall such approval be given if the sale, exchange, transfer, dividend or distribution would result in insolvency or impairment with respect to a protected cell;
(6) Each sponsored captive insurance company shall annually file with the commissioner such financial reports as the commissioner shall require, which shall include, without limitation, accounting statements detailing the financial experience of each protected cell;
(7) Each sponsored captive insurance company shall notify the commissioner in writing within ten business days of any protected cell that is insolvent or otherwise unable to meet its claim or expense obligations;
(8) No participant contract shall take effect without the commissioner's prior written approval, and the addition of each new protected cell and withdrawal of any participant or termination of any existing protected cell shall constitute a change in the business plan requiring the commissioner's prior written approval; and
(9) The business written by a sponsored captive, with respect to each cell, shall be:
(A) Fronted by an insurance company licensed under the laws of any state;
(B) Reinsured by a reinsurer authorized or approved by the state of West Virginia; or
(C) Secured by a trust fund in the United States for the benefit of policyholders and claimants or funded by an irrevocable letter of credit or other arrangement that is acceptable to the commissioner. The amount of security provided shall be no less than the reserves associated with those liabilities which are neither fronted nor reinsured, including reserves for losses, allocated loss adjustment expenses, incurred but not reported losses and unearned premiums for business written through the participant's protected cell. The commissioner may require the sponsored captive to increase the funding of any security arrangement established under this subdivision. If the form of security is a letter of credit, the letter of credit must be established, issued or confirmed by a bank chartered in this state, a member of the Federal Reserve System, or a bank chartered by another state if such state chartered bank is acceptable to the commissioner. A trust maintained pursuant to this paragraph shall be established in a form and upon such terms approved by the commissioner.
§33-31A-6. Qualification of sponsors.

A sponsor of a sponsored captive insurance company shall be an insurer licensed under the laws of any state, a reinsurer authorized or approved under the laws of any state, or a captive insurance company formed or licensed under this article. A risk retention group shall not be either a sponsor or a participant of a sponsored captive insurance company.
§33-31A-7. Authorized participants.
Associations, corporations, limited liability companies, partnerships, trusts, and other business entities may be participants in any sponsored captive insurance company formed or licensed under this chapter. A sponsor may be a participant in a sponsored captive insurance company. A participant need not be a shareholder of the sponsored captive insurance company or any affiliate thereof. A participant shall insure only its own risks through a sponsored captive insurance company.
§33-31A-7. Investments.
Notwithstanding the provisions of section five of this article, the assets of two or more protected cells may be combined for purposes of investment, and such combination shall not be construed as defeating the segregation of such assets for accounting or other purposes. Sponsored captive insurance companies shall comply with the investment requirements contained in article eight of this chapter, as applicable: Provided, That compliance with such investment requirements shall be waived for sponsored captive insurance companies to the extent that credit for reinsurance ceded to reinsurers is allowed pursuant to section eleven, article thirty-one of this article or to the extent otherwise deemed reasonable and appropriate by the commissioner. Notwithstanding any other provision of this chapter, the commissioner may approve the use of alternative reliable methods of valuation and rating.
§33-31A-8. Delinquency.
In the case of a delinquency of a sponsored captive insurance company, the provisions of section seventeen, article thirty-one of this chapter shall apply, provided:
(1) The assets of a protected cell may not be used to pay any expenses or claims other than those attributable to such protected cell; and
(2) Its capital and surplus shall at all times be available to pay any expenses of or claims against the sponsored captive insurance company."
The bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
S. B. 444, Requiring county litter control officers to enforce litter laws,
Com. Sub. for S. B. 505, Creating motor vehicle classification of "low-speed vehicle",
Com. Sub. for S. B. 533, Authorizing division of corrections charge certain adult offenders transfer application fee,
And
S. B. 569, Clarifying and preserving irrevocability of certain trusts.
On the passage of the bills, the yeas and nays were taken (Roll No. 610), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (Com. Sub. for S. B. 28, Com. Sub. for S. B. 230, S. B. 317, Com. Sub. for S. B. 320, S. B. 418, S. B. 428, S. B. 444, Com. Sub. for S. B. 505, Com. Sub. for S. B. 533 and S. B. 569.) passed.
An amendment to the title of Com. Sub. for S. B. 320, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 320 - "A Bill to amend and reenact §11-5-12 of the code of West Virginia, 1931, as amended; to amend and reenact §17A-3-4 of said code; and to amend said code by adding thereto a new section, designated §17A-3-12b, all relating to certificates of title; permitting the filing of canceled certificates of title in the office of the clerk of the county commission; exempting mobile and manufactured homes from the prohibition against the transfer, purchase or sale of a mobile or manufactured home when a certificate of title has been cancelled; exempting modular homes from the need for certificates of title; cancellation of certificates of title for mobile and manufactured homes permanently attached to real estate."
An amendment to the title of S. B. 418, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 418 - "A Bill to amend and reenact §50-1-14 of the code of West Virginia, 1931, as amended, relating to authorizing civil process servers employed by a county sheriff to carry firearms and requiring training, continued annual weapons qualifications and bonding through the office of the sheriff."
An amendment to the title of S. B. 428, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 428 - "A Bill to amend and reenact §33-31-1, §33-31-2, §33-31-4, §33-31-5, §33-31-6, §33-31-7, §33-31-8, §33-31-9, §33-31-10, §33-31-11, §33-31-13, §33-31-14 and §33-31-15 of the code of West Virginia 1931, as amended; to amend said code by adding thereto nine new sections, designated §33-31-17, §33-31-18, §33-31-19, §33-31-20, §33-31-21, §33-31-22, §33-31-23, §33-31-24 and §33-31-25; and to amend said code by adding thereto a new article, designated §33-31A-1, §33- 31A-2, §33-31A-3, §33-31A-4, §33-31A-5, §33-31A-6, §33-31A-7, and §33-31A-8, all relating to captive insurance companies; authorizing establishment of and regulating branch captive insurance companies and sponsored cell captives; and generally modernizing the captive insurance law."
An amendment to the title of S. B. 444, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 444 - "A Bill to amend and reenact §7-1-3ff of the code of West Virginia, 1931, as amended; and to amend and reenact §20-7-25 of said code, all relating to authority of county commissions to hire litter control officer; requiring county litter control officer to enforce litter laws under the litter control program; and encouraging volunteers by creating a volunteer program."
Delegate Staton moved that S. B. 317 take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 621), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 317) takes effect July 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bills and request concurrence on those requiring the same.

Second Reading

The following bills on second reading, coming up in regular order, were each read a second time and ordered to third reading:
Com. Sub. for S. B. 50, Relating to waste tire remediation; liability,
Com. Sub. for S. B. 89, Relating to beneficial use of water treatment plant sludge,
Com. Sub. for S. B. 119, Enhancing criminal penalties for obtaining money, property and services by false pretenses from persons over certain age,
S. B. 529, Repealing section of code relating to working prisoners by county courts,
S. B. 532, Repealing section of code relating to inspection of jails,
Com. Sub. for S. B. 629, Creating Small Estate Probate Relief Act of 2004,
S. B. 688, Relating to wages election official can receive and not be considered for unemployment compensation,
And,
S. B. 731, Relating to promulgation of rules by department of administration for compliance standards for state leased property.
Special Calendar

Unfinished Business

S. C. R. 17, Requesting Division of Highways name bridge near Rowlesburg, Preston County, "Charles B. Felton, Jr., Bridge"; coming up in regular order, as unfinished business, was reported by the Clerk.
The question now being on the adoption of the resolution, Delegate Trump demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 622), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (S. C. R. 17) adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Third Reading

At the request of Delegates Staton, and by unanimous consent, the House of Delegates then proceeded to consideration of the following bills:
Com. Sub. for S. B. 327, Authorizing department of administration to promulgate legislative rules; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 623), and there were--yeas 91, nays 8, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Border, Frich, Hall, Louisos, Schoen, Sobonya and Walters.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 327) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 327 - "A Bill to reenact §64-1-1 of the code of West Virginia, 1931, as amended, and to amend and reenact article 2, chapter 64 of said code, all relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; legislative mandate or authorization for the promulgation of certain legislative rules by various executive or administrative agencies of the state; 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; disapproving certain legislative rules; authorizing the department of administration to promulgate a legislative rule relating to leasing space on behalf of state spending units; authorizing the department of administration to promulgate a legislative rule relating to parking; authorizing the consolidated public retirement board to promulgate a legislative rule relating to general provisions; authorizing the consolidated public retirement board to promulgate a legislative rule relating to benefit determination and appeal; authorizing the consolidated public retirement board to promulgate a legislative rule relating to the teachers defined benefit plan; authorizing the consolidated public retirement board to promulgate a legislative rule relating to the West Virginia state police disability determination and appeal process; authorizing the board of risk and insurance management to promulgate a legislative rule relating to the public entities insurance program; and disapproving the board of risk and insurance management legislative rule relating to the terms and conditions pertaining to members of self- insurance pools who wish to participate in state insurance programs."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 624), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Border and Walters.
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 327) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 350, Authorizing bureau of commerce to promulgate legislative rules; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 625), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Frich and Walters.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 350) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 350 - "A Bill to amend and reenact article 10, chapter 64 of the code of West Virginia, 1931, as amended, relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; continuing rules previously promulgated by state agencies and boards; 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; disapproving certain legislative rules; authorizing the economic development authority to promulgate a legislative rule relating to the general administration of the West Virginia venture capital act; authorizing the economic development authority to promulgate a legislative rule relating to economic development and technology advancement centers; authorizing the infrastructure and jobs development council to promulgate a legislative rule relating to council; authorizing the division of labor to promulgate a legislative rule relating to psychophysiological detection of deception examinations; disapproving the manufactured housing construction and safety standards board to promulgate a legislative rule relating to the board; authorizing the office of miners' health, safety and training to promulgate a legislative rule relating to reporting requirements for independent contractors; authorizing the division of natural resources to promulgate a legislative rule relating to public land corporation rule controlling sale, lease, exchange or transfer of land and minerals; authorizing the division of natural resources to promulgate a legislative rule relating to revocation of hunting and fishing licenses; authorizing the division of natural resources to promulgate a legislative rule relating to special motorboating regulations; and authorizing the division of natural resources to promulgate a legislative rule relating to special fishing."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 626), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 350) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 399, Authorizing miscellaneous boards and agencies to promulgate legislative rules; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 627), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Border and Walters.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 399) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 399 - "A Bill to amend and reenact article 9, chapter 64 of the code of West Virginia, 1931, as amended, relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; continuing rules previously promulgated by state agencies and boards; 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; disapproving certain rules; authorizing the board of accountancy to promulgate a legislative rule relating to the board and rules of professional conduct; authorizing commissioner of agriculture to promulgate legislative rule relating to frozen desserts and imitation frozen desserts; authorizing commissioner of agriculture to promulgate legislative rule relating to dairy products and imitation dairy products; authorizing commissioner of agriculture to promulgate legislative rule relating to seed law; authorizing board of architects to promulgate legislative rule relating to registration of architects; authorizing auditor's office to promulgate legislative rule relating to transaction fee and rate structure; authorizing auditor's office to promulgate legislative rule relating to state purchasing card program; authorizing board of examiners in counseling to promulgate legislative rule relating to fees; authorizing board of registration for professional engineers to promulgate legislative rule relating to governance of board; authorizing board of examiners of land surveyors to promulgate legislative rule relating to minimum standards for practice of land surveying; authorizing board of examiners of land surveyors to promulgate legislative rule relating to mandatory continuing education for land surveyors; authorizing board of landscape architects to promulgate legislative rule relating to board; authorizing board of examiners for licensed practical nurses to promulgate legislative rule relating to policies and procedures for development and maintenance of education programs in practical nursing; authorizing board of medicine to promulgate legislative rule relating to licensing and disciplinary procedures: physicians and podiatrists; authorizing board of optometry to promulgate legislative rule relating to board; authorizing board of examiners of psychologists to promulgate legislative rule relating to fees; authorizing public service commission to promulgate legislative rule relating to transportation of coal by commercial motor vehicles; authorizing records management and preservation board to promulgate legislative rule relating to general management and preservation of county records; and authorizing statewide addressing and mapping board to promulgate legislative rule relating to addressing and mapping standards and participation by public agencies in statewide addressing and mapping projects."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 628), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 399) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
And,
Com. Sub. for S. B. 502, Relating to rights of members of teachers defined contribution retirement system; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 629), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead and Frederick.
Absent And Not Voting: Coleman and Long.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 502) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 502 - "A Bill to amend and reenact §18-7B-7, §18-7B-9, §18-7B-11 and §18-7B-16 of the code of West Virginia, 1931, as amended; to amend said code by adding thereto two new sections, designated §18-7B-7a and §18-7B-20, and to amend said code by adding thereto a new article, designated §18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7, §18-7C- 8, §18-7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13 and §18-7C-14, all relating to the teachers' defined contribution retirement system generally; clarifying when membership required; requiring certain corporation to provide private pension system for its new employees and permitting existing employees to elect to withdraw from membership in teachers' defined contribution retirement system; permitting periodic payment distributions; modifying purposes for which moneys in suspension account may be expended; clarifying that certain employer contributions are not forfeited upon reemployment; prohibiting involuntary distributions; providing for the merger and consolidation of the teachers' defined contribution retirement system and the state teachers retirement system; closing the teachers' defined contribution retirement system to newly hired personnel; providing that certain persons rehired are to become members of the last plan contributed to; setting forth short title; providing legislative findings and purpose; providing definitions; providing for merger and consolidation of the teachers' defined contribution retirement system and the state teachers retirement system upon election; providing responsibilities of the consolidated public retirement board; setting forth dates and time periods for transition and election; requiring that increase of or new benefits to the teachers retirement system be amortized over a seven-year time period; providing for education about election and merger for members; requiring legal notice to members; providing for transfer of assets from the teachers' defined contribution retirement system to the state teachers retirement system upon favorable vote for consolidation and merger; providing that the teachers' defined contribution retirement system shall not exist upon favorable vote for consolidation and merger; setting forth terms of merger and consolidation of the teachers' defined contribution retirement system and the state teachers retirement system; providing for service credit in the state teachers retirement; requiring members of teachers' defined contribution plan to pay additional amount to receive credit upon merger; providing options and loans for members moving to the remaining plan; providing service credit for transferring member; addressing withdrawals and cash outs; providing for election on the question of merger and consolidation of the teachers' defined contribution retirement system and the state teachers retirement system; setting forth requirements of election; allowing consolidated public retirement board to contract directly for professional services for purposes of performing its responsibilities related to the merger and consolidation and conducting the election; permitting only one election; addressing qualified domestic relations orders; providing for vesting of members and minimum guarantees of benefits for them; providing for due process and right to appeal; and providing for nonseverability of the new article."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
The House of Delegates then returned to the regular order of bills on Third Reading.
Com. Sub. for S. B. 143, Relating to small employer accident and sickness insurance policies; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 630), and there were--yeas 87, nays 12, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Blair, Border, Carmichael, Fragale, Frich, Hall, Hamilton, Iaquinta, Schoen, Sumner, Trump and Wakim.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 143) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 148, Creating Tax Amnesty Program of 2004; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 631), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Faircloth, Hall and Schoen.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 148) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 148 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11-10D-1, §11-10D-2, §11-10D-3, §11-10D-4, §11-10D-5, §11-10D-6, §11- 10D-7, §11-10D-8, §11-10D-9, §11-10D-10, §11-10D-11 and §11-10D-12; to amend and reenact §11- 12-5 of said code; to amend and reenact §11A-1-7 of said code; and to amend and reenact §11A-2-11 of said code, all relating generally to the collection of delinquent taxes; granting persons who owe but have not paid one or more taxes administered under West Virginia tax procedure and administration act an amnesty period during which past-due taxes may be paid or payment agreements acceptable to tax commissioner executed; providing for waiver of additions to tax, money penalties and fifty percent of accrued interest on past-due taxes when taxes for which amnesty is granted are paid within one month after tax amnesty period closes or paid pursuant to payment agreements executed during amnesty period; prohibiting criminal prosecution for default for which tax amnesty is granted; setting forth legislative findings and declarations; establishing requirements of and exceptions and limitations to tax amnesty program; defining certain terms; authorizing tax commissioner to do all things necessary to implement two-month tax amnesty program during current calendar year, including, but not limited to, issuance of emergency legislative rules; suspending language of code that is inconsistent or conflicts with language creating tax amnesty program; requiring tax commissioner to report certain information to Legislature and governor after conclusion of tax amnesty program; authorizing tax commissioner to suspend a business registration certificate for failure to pay delinquent personal property taxes; requiring the tax commissioner to refuse to issue or renew a business registration certificate upon certain notice from the sheriff that the registrant has not paid delinquent personal property taxes; requiring tax commissioner to propose legislative rules establishing ancillary procedures for the tax commissioner's suspension of business registration certificates; requiring sheriff to decline to receive current taxes due on any personal property where a prior year's taxes are unpaid; and providing language for inclusion in publication giving notice of that license to do business in state will be suspended for failure to pay delinquent personal property taxes."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 163, Establishing Water Resources Protection Act; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 632), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Azinger.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 163) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 163 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §22-25-1, §22-25-2, §22-25-3, §22-25-4, §22-25-5 and §22- 25-6, all relating to establishing the water resources protection act; providing legislative findings; finding that the state reserves a sovereign interest in the waters of the state as a valuable public resource; defining terms; declaring the state shall claim and protect state waters for the use and benefit of its citizens; providing for preservation of common law rights; providing that a water use survey and registration of large users of state waters be undertaken by the secretary of the department of environmental protection; requiring the secretary to coordinate survey with state agencies and report to a legislative oversight commission; requiring persons making withdrawals exceeding seven hundred fifty thousand gallons per month to participate in survey and registration; requiring the secretary to use reasonable alternatives for estimating usage; requiring persons participating in survey and registration to submit accurate information; providing limited exceptions to survey and registration participation; authorizing the secretary to coordinate with other state agencies and the United States geological survey; directing the division of environmental protection to propose a strategy for water management; authorizing secretary of division of environmental protection to promulgate rules; establishing confidentiality of submitted information and exceptions; providing criteria for requesting and receiving confidentiality designation; establishing requirements for requesting confidential documents and appeal process; establishing a joint legislative oversight commission to monitor survey and develop policies; and providing civil penalties for noncompliance."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 165, Simplifying state higher education tuition and fee system; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 633), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 165) passed.
On motion of Delegate Beach, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 165 - "A Bill to repeal §18B-10-3, §18B-10-4a and §18B-10-10 of the code of West Virginia, 1931, as amended; to amend and reenact §18B-4-7 of said code; to amend said code by adding thereto a new section, designated §18B-4-9; to amend and reenact §18B-5-4 of said code; to amend said code by adding thereto a new section, designated §18B-9-2a; to amend and reenact §18B-10-1, §18B-10-2, §18B-10-4, §18B-10-4b, §18B-10-5, §18B-10-6, §18B-10-7, §18B-10-7a, §18B-10-8, §18B-10-9, §18B-10-11, §18B-10-12, §18B-10-13, §18B-10-14 and §18B-10-15 of said code; to amend said code by adding thereto a new section, designated §18B-10-1b; to amend said code by adding thereto a new section, designated §18B-14-12; and to amend and reenact §18C-3-1 of said code; all relating to fees collected and moneys expended by state institutions of higher education; tuition and fee simplification for public higher education; clarifying authority of the West Virginia council for community and technical college education related to community and technical college tuition, fees and programs; establishing conditions precedent to eliminating certain National Collegiate Athletic Association teams; expanding certain program and degree granting authority; repealing obsolete language; expanding certain purchasing authority; modifying certain purchasing procedures; expanding certain employee classifications; creating classifications of fees; authorizing deferred payment plans for students; requiring maintenance of support for certain instructional and student activities; clarifying authority of commission to enter into trust agreements; clarifying purposes for which fees may be used; deleting certain restrictions on bookstore sales; expanding certain tuition and fee waivers; clarifying terms and conditions for the health education student loan program; and transferring operation of West Virginia network for educational telecomputing."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 634), and there were-yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Coleman
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 165) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 197, Relating generally to distribution of net terminal income of racetrack video lottery terminals; on third reading, coming up in regular order, was read a third time.
Delegate Louisos requested to be excused from voting on the passage of Com. Sub. for S. B. 197 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
On the passage of the bill, the yeas and nays were taken (Roll No. 635), and there were--yeas 75, nays 22, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Ashley, Azinger, Border, Canterbury, Caputo, Carmichael, DeLong, Ellem, Frich, Hamilton, Howard, Hrutkay, Leggett, Manchin, Schoen, Sobonya, Staton, Sumner, Susman, R. Thompson and Tucker.
Absent And Not Voting: Coleman, Mezzatesta and Warner.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 197) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 197 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto three new sections, designated §5A-4-5a, §5A-4-6 and §5A-4-7; and to amend and reenact §5B-2-12 of said code, all relating to funding specific activities; creation of a fund to be used for the construction and maintenance of a parking garage; distribution of net terminal income to funds for the construction and maintenance of parking garages, to the capitol dome and improvements fund, to the cultural facilities and capitol resources matching grant program fund, to the capitol renovation and improvement fund, to the tourism promotion fund and to the revenue shortfall reserve fund; creation of a fund for renovations and improvements of the existing state capitol building and the capitol complex; and prohibiting members of the tourism commission from participating in the discussion of, or action upon, an application for or an award of any grant in which the member has a direct financial interest."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates then proceeded to consideration of the following bills:
S. B. 526, Making supplementary appropriation of public moneys from unappropriated surplus balance in general revenue to division of rehabilitation services; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 636), and there were--yeas 91, nays none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Blair, Calvert, Coleman, Crosier, Mezzatesta, Romine, Susman, Swartzmiller and R. M. Thompson.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 526) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 637), and there were--yeas 92, nays none, absent and not voting 8, with the absent and not voting being as follows:
Absent And Not Voting: Blair, Calvert, Coleman, Crosier, Mezzatesta, Susman, Swartzmiller and R. M. Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 526) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 713, Expiring funds to unappropriated balance of general revenue from board of risk and insurance management, premium tax savings fund; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 638), and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent And Not Voting: Blair, Coleman, Crosier, Mezzatesta, Susman, Swartzmiller and R. M. Thompson.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 713) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 639), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Crosier, Mezzatesta, Swartzmiller and R. M. Thompson.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 713) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 714, Expiring funds to unappropriated balance of general revenue from insurance commission fund; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 640), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Crosier and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 714) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 641), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Crosier and Mezzatesta.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 714) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 715, Expiring funds to unappropriated balance of general revenue from public service commission; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 642), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Coleman, Crosier and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 715) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 643), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Crosier and Mezzatesta.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 715) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 717, Terminating agencies following full performance evaluations; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 644), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 717) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4000, Budget Bill, making appropriations of public money out of the treasury in accordance with section fifty-one, article six of the Constitution; on third reading, was, on motion of Delegate Staton, laid upon the table.
H. B. 4764, Supplemental appropriation to the public service commission-gas pipeline division; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 645), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4764) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 646), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4764) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4765, Supplemental appropriation to the public service commission; on third reading, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 647), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Carmichael and Louisos.
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4765) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 648), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4765) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Conference Committee Report Availability

At 11:35 a.m., the Clerk announced the availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 4377.
Conference Committee Report

Delegate Kominar, from the Committee of Conference on matters of disagreement between the two houses, as to
H. B. 4107, Allowing licensees of charitable bingo and raffle games to transfer game proceeds between their bingo and raffle operations,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the amendment of the Senate to H. B. 4107 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the Senate, striking out everything after the enacting clause, and agree to the same as follows:
That §47-20-11, §47-20-12a and §47-20-16 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that §47-21-12 and §47-21-16 of said code be amended and reenacted, all to read as follows:
ARTICLE 20. CHARITABLE BINGO.
§47-20-11. Operator of bingo games and related concessions.
(a) Except as provided in sections thirteen and twenty-two of this article, the only persons, as defined in section two of this article, that may participate in any manner in the conduct of any bingo game or operate any concession in conjunction with a bingo occasion are either:
(1) Residents of this state and who are active members of the licensee organization or its authorized auxiliary organization and who have been active members in good standing of the licensee organization or its authorized auxiliary for at least two years prior to the date of filing of the application for a charitable bingo license or the most recent filing of an application for renewal of the license; may participate in any manner in the conduct of any bingo game or operate any concession in conjunction with a bingo occasion: Provided, That or
(2) Employees of the licensee organization or its authorized auxiliary organization who are:
(A) Residents of this state;
(B) Residents of a state bordering this state if the county of his or her residence is contiguous to the county in this state in which the bingo operation is conducted; or
(C) Residents of a bordering state who reside within thirty-five miles of the county in which the bingo operation is conducted.
(b) Notwithstanding anything contained in this article to the contrary, no individual under the age of eighteen years may directly or indirectly participate in the conduct of a bingo game, except for junior firefighters, in accordance with the provisions of this article.
§47-20-12a. Compensation of bingo operator; number of employees.
(a) Within the guidelines set forth in subsections (b), (c) and (d) of this section, a licensee may pay a salary, the minimum of which shall be established at is the federal minimum wage and the maximum being of which is six dollars and fifty cents per hour, to operators of bingo games who are either:
(1) Active members of the licensee organization and who have been active members in good standing for at least two years prior to the date of filing of the application for a charitable bingo license or the most recent filing of an application for renewal of the license; or
(2) Employees of the licensee organization or its authorized auxiliary organization who are:
(A) Residents of this state;
(B) Residents of a state bordering this state if the county of his or her residence is contiguous to the county in this state in which the bingo operation is conducted; or
(C) Residents of a bordering state who reside within thirty-five miles of the county in which the bingo operation is conducted.
(b) If the licensee's gross receipts from bingo occasions equal or exceed one hundred thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more than eight operators.
(c) If the licensee's gross receipts from bingo occasions are less than one hundred thousand dollars, but equal or exceed fifty thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more than five operators.
(d) If the licensee's gross receipts from bingo occasions are less than fifty thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more than three operators.
(e) If the licensee also possesses a super bingo license, it may pay a salary to not more than fifteen operators during the super bingo occasion.
(f) In the case of a licensee lawfully holding a charitable bingo occasion simultaneously with a charitable raffle occasion, the number of paid charitable bingo operator employees allowed under this limitation for bingo licensees shall be is in addition to the number of charitable raffle operator employees allowed under section fifteen, article twenty-one of this chapter. Licensees holding simultaneous occasions shall pay bingo operators from the proceeds of bingo operations and shall pay raffle operators from the proceeds of raffle operations and the charitable bingo fund and the charitable raffle fund and payments from the funds shall may not be commingled.
(g) For purposes of the limitations set forth in this section, the term "operator" or "bingo operator" or "raffle operator" shall does not include concession stand workers. Wages paid to concession workers shall may not exceed six dollars and fifty cents per hour.
§47-20-16. Records; commissioner audit.
Any licensee which holds a bingo occasion as provided by this article shall maintain a separate checking account and separate book-keeping procedure for its bingo operations: Provided, That nothing in this article restricts a licensee from transferring moneys in the account from a bingo occasion to an account created under section sixteen, article twenty-one of this chapter in an amount not to exceed the actual loss of the raffle occasion receiving the transfer: Provided, however, That money transferred shall be withdrawn only by checks having preprinted consecutive numbers and made payable to the account created under section sixteen, article twenty-one of this code. Money for expenses shall be withdrawn only by checks having preprinted consecutive numbers and made payable to a specific person, firm or corporation and at no time shall a check be made payable to cash. A licensee shall maintain all records required by this article for at least three years and the records shall be open to the commissioner for reasonable inspection. Whenever the tax commissioner has reasonable cause to believe a licensee has violated any of the provisions of this article, he or she may perform or cause to be performed an audit of the licensee's books and records: Provided further, That the tax commissioner shall perform or cause to be performed an audit of the books and records of any licensee that has awarded total prizes in excess of one hundred seventy-five thousand dollars. The tax commissioner shall file a copy of the completed audit with the county commission of the county wherein the licensee holds bingo occasions.
ARTICLE 21. CHARITABLE RAFFLES.
§47-21-12. Compensation.
(a) A licensee may pay a salary, the minimum of which shall be established at is the federal minimum wage and the maximum of which shall be is six dollars and fifty cents per hour, to operators of charitable raffle games who are either:
(1) Active members of the licensee organization and who have been active members in good standing for at least two years prior to the date of filing of the application for a charitable raffle license or the most recent filing of an application for renewal of the license; or
(2) Employees of the licensee organization or its authorized auxiliary organization who are:
(A) Residents of this state;
(B) Residents of a state bordering this state if the county of his or her residence is contiguous to the county in this state in which the raffle operation is conducted; or
(C) Residents of a bordering state who reside within thirty-five miles of the county in which the raffle operation is conducted.
(b) If the licensee's gross receipts from raffle occasions equal or exceed one hundred thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more than eight operators.
(c) If the licensee's gross receipts from charitable raffle occasions are less than one hundred thousand dollars, but equal or exceed fifty thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more than five operators.
(d) If the licensee's gross receipts from charitable raffle occasions are less than fifty thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to no more than three operators.
(e) In the case of a licensee lawfully holding a charitable bingo occasion simultaneously with a charitable raffle occasion, the number of paid charitable raffle operator employees allowed under this limitation for charitable raffle licensees is in addition to the number of charitable bingo operator employees allowed under section twelve-a, article twenty of this chapter. Licensees holding simultaneous occasions shall pay bingo operators from the proceeds of bingo operations and shall pay raffle operators from the proceeds of raffle operations and the charitable bingo fund and the charitable raffle fund and payments from the funds shall may not be commingled.
(f) For purposes of the limitations set forth in this section, the term "operator" or "bingo operator" or "raffle operator" shall do not include concession stand workers. Wages paid to concession workers shall may not exceed six dollars and fifty cents per hour.
§47-21-16. Records; commissioner audit.
Any licensee which holds a raffle occasion as provided by this article shall maintain a separate account and separate book-keeping procedure for its raffle operations: Provided, That nothing in this article restricts a licensee from transferring moneys in the account from a raffle occasion to an account created under section sixteen, article twenty of this chapter in an amount not to exceed the actual loss of the bingo occasion receiving the transfer: Provided, however, That money transferred shall be withdrawn only by checks having preprinted consecutive numbers and made payable to the account created under section sixteen, article twenty of this code. All records required by this article shall be maintained for at least three years and shall be open to the commissioner for reasonable inspection. Whenever the commissioner has reasonable cause to believe a licensee has violated any of the provisions of this article, he may perform or cause to be performed an audit of the licensee's books and records.
And,
That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
H. B. 4107 - "A Bill to amend and reenact §47-20-11, §47-20-12a and §47-20-16 of the code of West Virginia, 1931, as amended; and to amend and reenact §47-21-12 and §47-21-16 of said code, all relating to charitable bingo and charitable raffles; allowing certain employees to operate bingo and raffle games; allowing game proceeds to be transferred, by check, between raffle and bingo accounts to offset losses; and allowing certain residents of other states to be employed by charitable bingo and charitable raffle operations."
Respectfully submitted,

Steven K. Kominar,
John Pat Fanning

William F. Stemple,Joseph M. Minard,
Robert A. Schadler,
Andy McKenzie,

Conferees on the part
Conferees on the part

of the House of Delegates.
of the Senate.

On motion of Delegate Kominar, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 649), and there were--yeas 72, nays 21, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Armstead, Ashley, Azinger, Border, Brown, Calvert, Carmichael, Ellem, Evans, Frich, Hall, Hamilton, Howard, Leggett, Louisos, Overington, Schoen, Sobonya, Sumner, Walters and Webb.
Absent And Not Voting: Butcher, Cann, Coleman, DeLong, Perdue, Stalnaker and Tucker.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4107) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 650), and there were--yeas 82, nays 11, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Armstead, Calvert, Frich, Hall, Hamilton, Louisos, Overington, Schoen, Sumner, Walters and Webb.
Absent And Not Voting: Butcher, Cann, Coleman, Long, Perdue, Stalnaker and Tucker.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4107) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Miscellaneous Business

Delegate Mezzatesta asked and obtained unanimous consent that the prayer offered by Delegate Staton on today be printed in the Appendix to the Journal.
Delegate Frich asked and obtained unanimous consent that the remarks of Delegates Manchin and Ashley regarding their legislative experience be printed in the Appendix to the Journal.
Delegate Frich asked and obtained unanimous consent that the remarks of Delegate Blair regarding Delegate Smirl be printed in the Appendix to the Journal.
Delegate Perdue announced that he was absent on today when the votes were taken on Rolls Nos. 649 and 650, and that had he been present, he would have voted "Yea" thereon.
At 11:50 a.m., on motion of Delegate Staton, the House of Delegates recessed until 2:45 p.m., and reconvened at that time.

* * * * * * * * * *

Afternoon Session

* * * * * * * * * *

Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 2088, Increasing the penalty for the manufacture, distribution or possession of certain controlled or counterfeit substances near a park.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators White, Caldwell and Deem.
On motion of Delegate Staton, the House of Delegates agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates R. Thompson, Stemple and Armstead.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect July 1, 2004, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4001, Ensuring safer schools and empowering teachers by automating student suspension and expulsion data.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §18-2E-5 and §18-2E-5c of the code of West Virginia, 1931, as amended, be amended and reenacted; that §18-5-15f be amended and reenacted; that said code be amended by adding thereto a new section, designated section §18-5-46; that §18-20-5 of said code be amended and reenacted; that §18A-2-12 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18A-2-12a; and that §18A-5-1 and §18A-5-1a be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.

ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.

§18-2E-5. Process for improving education; education standards and accountability measures; office of education performance audits; school accreditation and school system approval; intervention to correct impairments.

(a) Legislative findings, purpose and intent. -- The Legislature makes the following findings with respect to the process for improving education and its purpose and intent in the enactment of this section:
(1) The Legislature finds that the process for improving education includes four primary elements, these being:
(A) Standards which set forth the things that students should know and be able to do as the result of a thorough and efficient education including measurable criteria to evaluate student performance and progress;
(B) Assessments of student performance and progress toward meeting the standards;
(C) A system for holding schools and school systems accountable for student performance and progress toward obtaining a high quality education which is delivered in an efficient manner; and
(D) A method for building the capacity and improving the efficiency of schools and school systems to improve student performance and progress.
(2) The Legislature further finds that As the constitutional body charged with the general supervision of schools as provided by general law, the state board has the authority and the responsibility to establish the standards, assess the performance and progress of students against the standards, hold schools and school systems accountable, and assist schools and school systems to build capacity and improve efficiency so that the standards are met, including, when necessary, seeking additional resources in consultation with the Legislature and the governor.
(3) The Legislature also finds that As the constitutional body charged with providing for a thorough and efficient system of schools, the Legislature has the authority and the responsibility to establish and be engaged constructively in the determination of the things that students should know and be able to do as the result of a thorough and efficient education. This determination is made by using the process for improving education to determine when school improvement is needed, by evaluating the results and the efficiency of the system of schools, by ensuring accountability, and by providing for the necessary capacity and its efficient use.
(4) Therefore, In consideration of these findings, the purpose of this section is to establish a process for improving education that includes the four primary elements as set forth in subdivision (1) of this subsection to provide assurances that the high quality standards are, at a minimum, being met and that a thorough and efficient system of schools is being provided for all West Virginia public school students on an equal education opportunity basis. and that the high quality standards are, at a minimum, being met.
(5) The intent of the Legislature in enacting this section and section five-c of this article is to establish a process through which the Legislature, the governor and the state board can work in the spirit of cooperation and collaboration intended in the process for improving education to consult and examine, when necessary, the performance and progress of students, schools and school systems and, when necessary, to consider alternative measures to ensure that all students continue to receive the thorough and efficient education to which they are entitled. However, nothing in this section requires any specific level of funding by the Legislature.
(b) Unified county and school improvement plans. -- The state board shall promulgate rules a rule consistent with the provisions of this section and in accordance with article three-b, chapter twenty-nine-a of this code establishing a unified county improvement plan for each county board and a unified school improvement plan for each public school in this state. Each respective plan shall be a five-year plan that includes the mission and goals of the school or school system to improve student, school or school system performance and progress, as applicable. The plan shall be revised annually in each area in which the school or system is below the standard on the annual performance measures. The revised annual plan also shall identify any deficiency which is reported on the check lists identified in paragraph (G), subdivision (5), subsection (j) of this section including any deficit more than a casual deficit by the county board. The plan shall be revised when required pursuant to this section to include each annual performance measure upon which the school or school system fails to meet the standard for performance and progress, the action to be taken to meet each measure, a separate time line and a date certain for meeting each measure, a cost estimate and, when applicable, the assistance to be provided by the department and other education agencies to improve student, school or school system performance and progress to meet the annual performance measure.
The department shall make available on and after the first day of July, two thousand four, to all public schools through its web site or the West Virginia education information system an electronic unified school improvement plan boilerplate designed for use by all schools to develop a unified school improvement plan which incorporates all required aspects and satisfies all improvement plan requirements of the No Child Left Behind Act.
The rules shall specify that the unified school improvement plan shall include all appropriate plans required by law including, but not limited to, the following:
(1) The report required to be delivered to the county-wide council on productive and safe schools pursuant to subsection (f), section two, article five-a of this chapter;
(2) Plans or applications required in the area of technology pursuant to 20 U.S.C. §6845, section seven, article two-e of this chapter, state board policy or rule or any other county, state or federal law;
(3) The strategic plan to manage the integration of special needs students as required by section five, article five-a of this chapter; and
(4) The school based improvement plan set forth in the Elementary and Secondary Education Act pursuant to 29 U.S.C. §6301, et seq.
The plans are required to be included only to the extent permitted by state and federal law.
(c) High quality education standards and efficiency standards. -- In accordance with the provisions of article three-b, chapter twenty-nine-a of this code, the state board shall adopt and periodically review and update high quality education standards for student, school and school system performance and processes in the following areas:
(1) Curriculum;
(2) Workplace readiness skills;
(3) Finance;
(4) Transportation;
(5) Special education;
(6) Facilities;
(7) Administrative practices;
(8) Training of county board members and administrators;
(9) Personnel qualifications;
(10) Professional development and evaluation;
(11) Student performance and progress;
(12) School and school system performance and progress;
(13) A code of conduct for students and employees;
(14) Indicators of efficiency; and
(15) Any other areas determined by the state board.
The standards shall assure that graduates are prepared for continuing post-secondary education, training and work and that schools and school systems are making progress toward achieving the education goals of the state.
(d) Annual performance measures. -- The standards shall assure that all graduates are prepared for gainful employment or for continuing post-secondary education and training and that schools and school systems are making progress in achieving the education goals of the state. The standards shall include annual measures of student, school and school system performance and progress. The following annual measures of student, school and school system performance and progress shall be the only measures for determining school accreditation and school system approval:
(1) The acquisition of student proficiencies as indicated by student performance and progress in grades three through eight, inclusive, and grade ten shall be measured by a uniform statewide assessment program. The indicators for student progress in reading and mathematics in grades kindergarten through second grade shall be measured by the informal assessment established by the West Virginia department of education or other assessments, as determined by the school curriculum team. If the school fails to meet adequate yearly progress in reading or mathematics for two consecutive years, the county superintendent, the school principal and the school curriculum team shall decide whether a different assessment should be used to verify that benchmarks are being met. If the county superintendent, the school principal and the school curriculum team differ on what assessment is used, then each entity shall have one vote. Furthermore, the state board may require that student proficiencies be measured through the West Virginia writing assessment at any of the grades that are determined by the state board to be appropriate. It is the intent of the Legislature that in the future a grade eleven uniform statewide assessment be administered in lieu of the grade ten uniform statewide assessment. The state board shall perform an analysis of the costs and the benefits of administering the grade eleven uniform statewide assessment in lieu of the grade ten uniform statewide assessment. The analysis shall include a review of the need for end of course exams in grades nine through twelve. The state board shall report the results of the analysis to the legislative oversight commission on education accountability prior to the first day of November, two thousand four. The state board may provide other testing or assessment instruments applicable to grade levels kindergarten through grade twelve through the statewide assessment program for optional use by each school as determined by the school curriculum team to measure student performance and progress;
(2) Only for schools that do not include grade twelve, the school attendance rate which shall be no less than ninety percent in attendance. The following absences shall be excluded:
(A) Student absences excused in accordance with the state board rule promulgated pursuant to section four, article eight of this chapter;
(B) Students not in attendance due to disciplinary measures; and
(C) Absent students for whom the attendance director has pursued judicial remedies compelling attendance to the extent of his or her authority; and
(3) The high school graduation rate which shall be no less than eighty percent, or if the high school graduation rate is less than eighty percent, the high school graduation rate shall be higher than the high school graduation rate of the preceding year as determined from information on the West Virginia education information system on the fifteenth day of August.
and measures of school and school system performance, progress and processes that enable student performance. The measures of student performance and progress and school and school system performance, progress and processes shall include, but are not limited to, the following:
(1) The acquisition of student proficiencies as indicated by student performance and progress by grade level measured, where possible, by a uniform statewide assessment program;
(2) School attendance rates;
(3) The student dropout rate;
(4) The high school graduation rate;
(5) The percentage of graduates who enrolled in college and the percentage of graduates who enrolled in other post-secondary education within one year following high school graduation;
(6) The percentage of graduates who received additional certification of their skills, competence and readiness for college, other post-secondary education or employment above the level required for graduation; and
(7) The percentage of students who enrolled in and the percentage of students who successfully completed advanced placement, dual credit and honors classes, respectively, by grade level.
(e)
Indicators of exemplary performance and progress. - The standards shall include indicators of exemplary student, school and school system performance and progress. The indicators of exemplary student, school and school system performance and progress shall be used only as indicators for determining whether accredited and approved schools and school systems should be granted exemplary status. These indicators shall include, but are not limited to, the following:
(1) The percentage of graduates who declare their intent to enroll in college and other post- secondary education and training following high school graduation;
(2) The percentage of graduates who receive additional certification of their skills, competence and readiness for college, other post-secondary education or employment above the level required for graduation; and
(3) The percentage of students who successfully complete advanced placement, dual credit and honors classes.
(e) (f) Indicators of efficiency. -- In accordance with the provisions of article three-b, chapter twenty-nine-a of this code, the state board shall adopt by rule and periodically review and update indicators of efficiency for use by the appropriate divisions within the department to ensure efficient management and use of resources in the public schools student and school system performance and processes in the following areas:
(1) Curriculum delivery including, but not limited to, the use of distance learning;
(2) Transportation;
(3) Facilities;
(4) Administrative practices;
(5) Personnel;
(6) Utilization of regional educational service agency programs and services, including programs and services that may be established by their assigned regional educational service agency, or other regional services that may be initiated between and among participating county boards; and
(7) Any other indicators as determined by the state board.
(f) (g) Assessment and accountability of school and school system performance and processes. -- In accordance with the provisions of article three-b, chapter twenty-nine-a of this code, the state board shall establish by rule a system of education performance audits which measures the quality of education and the preparation of students based on the annual measures of student, school and school system performance and progress. standards and measures of student, school and school system performance, progress and processes, including, but not limited to, the standards and measures set forth in subsections (c) and (d) of this section. The system of education performance audits shall assist provide information to the state board, the Legislature and the governor, individually and collectively as the process for improving education council, upon which they may determine whether in ensuring that the standards and measures established pursuant to this section are, at a minimum, being met and that a thorough and efficient system of schools is being provided. The system of education performance audits shall include:
(1) The assessment of student, performance and progress, school and school system performance and progress based on the annual measures set forth in subsection (d) of this section; , and the processes in place in schools and school systems which enable student performance and progress;
(2) The evaluation of records, reports and other information collected by the department upon which the quality of education and compliance with statutes, policies and standards may be determined;
(2) (3) The review of school and school system unified improvement plans; and
(3) (4) The periodic on-site review of the processes in place in schools and school systems to enable school and school system performance and progress and compliance with the standards.
(g) (h) Uses of school and school system assessment information. -- The state board and the process for improving education council established pursuant to section five-c of this article shall use information from the system of education performance audits to assist them in ensuring that a thorough and efficient system of schools is being provided and to improve student, school and school system performance and progress. Information from the system of education performance audits further shall be used by the state board for these purposes, including, but not limited to, the following:
(1) Determining school accreditation and school system approval status;
(2) holding Holding schools and school systems accountable for the efficient use of existing resources to meet or exceed the standards; and
(3) targeting Targeting additional resources when necessary to improve performance and progress. Primary emphasis in determining school accreditation and school system approval status is based on student performance and progress, school and school system performance and progress and such other measures as selected by the state board.
The state board shall make accreditation information available to the Legislature, the governor, the general public and to any individuals individual who request requests the information, subject to the provisions of any act or rule restricting the release of information.
(i) Early detection and intervention programs. -- Based on the assessment of student, school and school system performance and progress, the state board shall establish early detection and intervention programs using the available resources of the department of education, the regional educational service agencies, the center for professional development and the principals academy, as appropriate, to assist underachieving schools and school systems to improve performance before conditions become so grave as to warrant more substantive state intervention. Assistance shall include, but is not limited to, providing additional technical assistance and programmatic, professional staff development, providing monetary, staffing and other resources where appropriate, and, if necessary, making appropriate recommendations to the process for improving education council.
(h) (j) Office of education performance audits. --
(1) To assist the state board and the process for improving education council in the operation of a system of education performance audits, that will enable them to evaluate whether a thorough and efficient education is being provided, and to assist the state board in making determinations regarding the accreditation status of schools and the approval status of school systems, the state board shall establish an office of education performance audits which consistent with the provisions of this section. The office of education performance audits shall be operated under the direction of the state board independently of the functions and supervision of the state department of education and state superintendent. The office of education performance audits shall report directly to and be responsible to the state board and the process for improving education council created in section five-c of this article in carrying out its duties under the provisions of this section.
(2) The office shall be headed by a director who shall be appointed by the state board and who shall serve at the will and pleasure of the state board. The annual salary of the director shall be set by the state board and may not exceed eighty percent of the salary cap of the state superintendent of schools.
(3) The state board shall organize and sufficiently staff the office to fulfill the duties assigned to it by law and by the state board. Employees of the state department of education who are transferred to the office of education performance audits shall retain their benefit benefits and seniority status with the department of education.
(4) Under the direction of the state board, the office of education performance audits shall receive from the West Virginia education information system staff research and analysis data on the performance and progress of students, schools and school systems, and shall receive assistance, as determined by the state board, from staff at the state department of education, the regional education service agencies, the center for professional development, the principals academy and the state school building authority to carry out the duties assigned to the office.
(5) In addition to other duties which may be assigned to it by the state board or by statute, the office of education performance audits also shall:
(A) Assure that all statewide assessments of student performance used as annual performance measures are secure as required in section one-a of this article;
(B) Administer all accountability measures as assigned by the state board, including, but not limited to, the following:
(i) Processes for the accreditation of schools and the approval of school systems; and These processes shall focus on those measurable criteria related to student performance and progress and to the delivery of instruction which will enable student performance and progress; and
(ii) Recommendations to the state board on appropriate action, including, but not limited to, accreditation and approval action;
(C) Determine, in conjunction with the assessment and accountability processes, what capacity may be needed by schools and school systems to meet the standards established by the Legislature and the state board, and recommend to the school, the school system, the state board and the process for improving education council, plans to establish those needed capacities;
(D) Determine, in conjunction with the assessment and accountability processes, whether statewide system deficiencies exist in the capacity to establish and maintain a thorough and efficient system of schools, of schools and school systems to meet the standards established by the state board, including the identification of trends and the need for continuing improvements in education, and report those deficiencies and trends to the state board and the process for improving education council;
(E) Determine, in conjunction with the assessment and accountability processes, staff development needs of schools and school systems to meet the standards established by the Legislature and the state board, and make recommendations to the state board, the process for improving education council, the center for professional development, the regional educational service agencies, the higher education policy commission, and the county boards;
(F) Identify, in conjunction with the assessment and accountability processes, exemplary schools and school systems and best practices that improve student, school and school system performance, and make recommendations to the state board and the process for improving education council for recognizing and rewarding exemplary schools and school systems and promoting the use of best practices. The state board shall provide information on best practices to county school systems and shall use information identified through the assessment and accountability processes to select schools of excellence; and
(G) Develop reporting formats, such as check lists, which shall be used by the appropriate administrative personnel in schools and school systems to document compliance with various of the applicable laws, policies and process standards as considered appropriate and approved by the state board, including, but not limited to, compliance with limitations on the number of pupils per teacher in a classroom and the number of split grade classrooms the following:
(i) The use of a policy for the evaluation of all school personnel that meets the requirements of sections twelve and twelve-a, article two, chapter eighteen-a of this code;
(ii) The participation of students in appropriate physical assessments as determined by the state board, which assessment may not be used as a part of the assessment and accountability system;
(iii) The appropriate licensure of school personnel; and
(iv) The school provides multi-cultural activities
.
Information contained in the reporting formats shall be examined is subject to examination during an on-site review to determine compliance with laws, policies and standards. Intentional and grossly negligent reporting of false information is ground are grounds for dismissal.
(i) (k) On-site reviews. --
(1) The system of education performance audits shall include on-site reviews of schools and school systems. at the direction of the state board or by weighted selection by the education performance audits. The reviews shall be conducted:
(A) At the specific direction of the state board upon its determination that the performance and progress of the school or school system are persistently below standard or other circumstances exist that warrant an on-site review. For the purposes of this section, 'persistently below standard' means that performance and progress are below standard for three consecutive years. Any discussion by the state board of schools to be subject to an on-site review or dates for which on-site reviews will be conducted may be held in executive session, and is not subject to the provisions of article nine-a, chapter six of this code, relating to open governmental proceedings;
(B) By weighted selection by the office of education performance audits:
Provided, That a school that is designated as having exemplary status one year or a school that achieves adequate yearly progress one year shall not undergo an on-site review during the succeeding year; or
(C) By a combination of the methods set forth in paragraphs (A) and (B) of this subdivision.
(2)
An on-site review shall be conducted by the office of education performance audits of any school or school system for purposes, including, but not limited to, the following:
(A) Verifying data reported by the school or county board;
(B) Documenting Examining compliance with the laws and policies and laws affecting student, school and school system performance and progress;
(C) Evaluating the effectiveness and implementation status of school and school system unified improvement plans;
(D) Investigating official complaints submitted to the state board that allege serious impairments in the quality of education in schools or school systems;
(E) Investigating official complaints submitted to the state board that allege that a school or county board is in violation of policies or laws under which schools and county boards operate; and
(F) Determining and reporting whether required reviews and inspections have been conducted by the appropriate agencies, including, but not limited to, the state fire marshal, the health department, the school building authority and the responsible divisions within the department of education, and whether noted deficiencies have been or are in the process of being corrected. The office of education performance audits may not conduct a duplicate review or inspection of any compliance reviews or inspections conducted by the department or its agents or other duly authorized agencies of the state, nor may it mandate more stringent compliance measures.
(2) (3) The selection of schools and school systems for an on-site review shall use a weighted sample so that those with lower performance and progress indicators have a greater likelihood of being selected. The director of the office of education performance audits shall notify the county superintendent of schools five school days prior to commencing an on-site review of the county school system and shall notify both the county superintendent and the principal five school days prior to commencing an on-site review of an individual school: Provided, That the state board may direct the office of education performance audits to conduct an unannounced on-site review of a school or school system if the state board believes circumstances warrant an unannounced on-site review.
(3) (4) The office of education performance audits may shall conduct on-site reviews which are limited in scope to specific areas in which performance and progress are persistently below standard as determined by the state board unless specifically directed by the state board to conduct a review which covers additional areas. addition to full reviews which cover all areas.
(4) (5) An on-site review of a school or school system shall include a person or persons from the department of education or a public education agency in the state who has expert knowledge and experience in the area or areas to be reviewed, and who is has been trained and designated by the state board to perform such functions. An on-site review also may include retired professional educators. from the department of education and the agencies responsible for assisting the office. If the size of the school or school system and issues being reviewed necessitates necessitate the use of an on-site review team or teams, the person or persons designated by the state board shall advise and assist the director to appoint the team or teams. The person or persons designated by the state board shall be the team leaders.
The persons designated by the state board shall be responsible for completing the report on the findings and recommendations of the on-site review in their area of expertise. It is the intent of the Legislature that the persons designated by the state board participate in all on-site reviews that involve their area of expertise, to the extent practicable, so that the on-site review process will evaluate compliance with the standards in a uniform, consistent and expert manner.
(5) (6) The office of education performance audits shall reimburse a county board for the costs of substitutes required to replace county board employees while they are serving on a review team.
(6) (7) At the conclusion of an on-site review of a school system, the director and team leaders shall hold an exit conference with the superintendent and shall provide an opportunity for principals to be present for at least the portion of the conference pertaining to their respective schools. In the case of an on-site review of a school, the exit conference shall be held with the principal and school curriculum team of the school or teachers designated by the school curriculum team and the superintendent shall be provided the opportunity to be present. The purpose of the exit conference is to review the initial findings of the on-site review, clarify and correct any inaccuracies and allow the opportunity for dialogue between the reviewers and the school or school system to promote a better understanding of the findings.
(7) (8) The office of education performance audits shall report the findings of an on-site review to the county superintendent and the principals whose schools were reviewed within thirty days following the conclusion of the on-site review. The office of education performance audits shall report the findings of the on-site reviews review to the state board within forty-five days after the conclusion of the on-site review. for inclusion in the evaluation and determination of a school's or county board's accreditation or approval status as applicable. The report on the findings of an on-site review shall be submitted to the state board within thirty days following the conclusion of the on-site review and to the county superintendent and principals of schools within the reviewed school system within forty- five days following the conclusion of the on-site review. A copy of the report shall be provided to the process for improving education council at its request.
(9) The Legislature finds that the accountability and oversight of the following activities and programmatic areas in the public schools is controlled through other mechanisms and that additional accountability and oversight are not only unnecessary but counter productive in distracting necessary resources from teaching and learning. Therefore, notwithstanding any other provision of this section to the contrary, the following activities and programmatic areas are not subject to review by the office of education performance audits:
(A) Work-based learning;
(B) Use of advisory councils;
(C) Program accreditation and student credentials;
(D) Student transition plans;
(E) Graduate assessment form;
(F) Casual deficit;
(G) Accounting practices;
(H) Transportation services;
(I) Special education services;
(J) Safe, healthy and accessible facilities;
(K) Attendance director;
(L) Business/community partnerships;
(M)Local school improvement council, faculty senate, student assistance team and curriculum team;
(N) Skill improvement program;
(O) Certificate of proficiency;
(P) Training of county board members;
(Q) Excellence in job performance; and
(R) Staff development.
(j) (l) School accreditation. -- The state board annually shall review the information from the system of education performance audits submitted for each school and shall issue to every school one of the following approval levels: Exemplary accreditation status, full accreditation status, temporary accreditation status, conditional accreditation status, or seriously impaired status.
(1) Full accreditation status shall be given to a school when the school's performance and progress on meet or exceed the standards adopted by the state board pursuant to subsections (c) and subsection (d) of this section are at a level which would be expected when all of the high quality education standards are being met. A school which meets or exceeds the measures of student performance and progress set forth in subsection (d) of this section, and which it does not have any deficiencies which would endanger student health or safety or other extraordinary circumstances as defined by the state board. A school that meets or exceeds the performance and progress standards but has the other deficiencies shall remain on full accreditation status for six months following an on-site review in which other deficiencies are noted. The school the remainder of the accreditation period and shall have an opportunity to correct those deficiencies, notwithstanding other provisions of this subsection.
(2) Temporary accreditation status shall be given to a school when the measure of the school's performance and progress is are below the level required for full accreditation status. Whenever a school is given temporary accreditation status, the county board shall ensure that the school's unified improvement plan is revised in accordance with subsection (b) of this section to increase the performance and progress of the school to a full accreditation status level. The revised unified school improvement plan shall include objectives, a time line, a plan for evaluation of the success of the improvements, cost estimates, and a date certain for achieving full accreditation. The revised plan shall be submitted to the state board for approval.
(3) Conditional accreditation status shall be given to a school when the school's performance and progress on the standards adopted by the state board are below the level required for full accreditation, but the school's unified improvement plan meets the following criteria:
(A) The plan
has been revised to achieve full accreditation status by a date certain to improve performance and progress on the standard or standards by a date or dates certain;
(B) The plan has been approved by the state board; and
(C) The school is meeting the objectives and time line specified in the revised plan.
(4) Exemplary accreditation status shall be given to a school when the school's performance and progress on meet or exceed the standards adopted by the state board pursuant to subsections (c) and(d) and (e) of this section. substantially exceed the minimal level which would be expected when all of the high quality education standards are being met. The state board shall promulgate legislative rules in accordance with the provisions of article three-b, chapter twenty-nine-a, designated to establish standards of performance and progress to identify exemplary schools.
(5) Seriously impaired accreditation status shall be given to a school The state board shall establish and adopt standards of performance and progress to identify seriously impaired schools and the state board may declare a school seriously impaired whenever extraordinary circumstances exist as defined by the state board.
(A) These circumstances shall include, but are not limited to, the following:
(i) The failure of a school on temporary accreditation status to obtain approval of its revised unified school improvement plan within a reasonable time period as defined by the state board;
(ii) The failure of a school on conditional accreditation status to meet the objectives and time line of its revised unified school improvement plan; or
(iii) The failure of a school to achieve full accreditation meet a standard by the date specified in the revised plan.
(B) Whenever the state board determines that the quality of education in a school is seriously impaired, the state board shall appoint a team of improvement consultants to make recommendations within sixty days of appointment for correction of the impairment. When the state board approves the recommendations, they shall be communicated to the county board. If progress in correcting the impairment as determined by the state board is not made within six months from the time the county board receives the recommendations, the state board shall place the county board on temporary approval status and provide consultation and assistance to the county board to assist it in the following areas:
(i) Improving personnel management;
(ii) Establishing more efficient financial management practices;
(iii) Improving instructional programs and rules; or
(iv) Making any other improvements that are necessary to correct the impairment.
(C) If the impairment is not corrected by a date certain as set by the state board:
(i) The state board shall appoint a monitor who shall be paid at county expense to cause improvements to be made at the school to bring it to full accreditation status within a reasonable time period as determined by the state board. The monitor's work location shall be at the school and the monitor shall work collaboratively with the principal. The monitor shall, at a minimum, report monthly to the state board on the measures being taken to improve the school's performance and the progress being made. The reports may include requests for additional assistance and recommendations required in the judgment of the monitor to improve the school's performance, including, but not limited to, the need for targeting resources strategically to eliminate deficiencies;
(ii) The state board may make a determination, in its sole judgment, that the improvements necessary to provide a thorough and efficient education to the students at the school cannot be made without additional targeted resources, in which case, it shall establish a plan in consultation with the county board that includes targeted resources from sources under the control of the state board and the county board to accomplish the needed improvements. Nothing in this subsection shall be construed to allow a change in personnel at the school to improve school performance and progress, except as provided by law;
(iii) If the impairment is not corrected within one year after the appointment of a monitor, the state board may make a determination, in its sole judgment, that continuing a monitor arrangement is not sufficient to correct the impairment and may intervene in the operation of the school to cause improvements to be made that will provide assurances that a thorough and efficient system of schools will be provided. This intervention may include, but is not limited to, establishing instructional programs, taking such direct action as may be necessary to correct the impairments, declaring the position of principal is vacant and assigning a principal for the school who shall serve at the will and pleasure of and, under the sole supervision of, the state board: Provided, That prior to declaring that the position of the principal is vacant, the state board must make a determination that all other resources needed to correct the impairment are present at the school. If the principal who was removed elects not to remain an employee of the county board, then the principal assigned by the state board shall be paid by the county board. If the principal who was removed elects to remain an employee of the county board, then the following procedure applies:
(I) The principal assigned by the state board shall be paid by the state board until the next school term, at which time the principal assigned by the state board shall be paid by the county board;
(II) The principal who was removed shall be placed on the preferred recall list for all positions in the county for which the principal is certified, as defined in section seven, article four of this chapter eligible for all positions in the county, including teaching positions, for which the principal is certified, by either being placed on the transfer list in accordance with section seven, article two, chapter eighteen-a of this code, or by being placed on the preferred recall list in accordance with section seven- a, article four, chapter eighteen-a of this code; and
(III) The principal who was removed shall be paid by the county board and may be assigned to administrative duties, without the county board being required to post that position until the end of the school term;
(6) The county board shall take no action nor refuse any action if the effect would be to impair further the school in which the state board has intervened.
(7) The state board may appoint a monitor pursuant to the provisions of this subsection to assist the school principal after intervention in the operation of a school is completed.
(k) (m) Transfers from seriously impaired schools. -- Whenever a school is determined to be seriously impaired and fails to improve its status within one year, following state intervention in the operation of the school to correct the impairment, any student attending the school may transfer once to the nearest fully accredited school in the county, subject to approval of the fully accredited school and at the expense of the school from which the student transferred.
(l) (n) School system approval. -- The state board annually shall review the information submitted for each school system from the system of education performance audits and issue one of the following approval levels to each county board: Full approval, temporary approval, conditional approval, or nonapproval.
(1) Full approval shall be given to a county board whose education system meets or exceeds all of the high quality standards for student, school and school system performance, progress and processes adopted by the state board and whose schools have all been given full, temporary or conditional accreditation status. A school system which meets or exceeds the measures of student performance and progress set forth in subsection (d) of this section, and which does not have any deficiencies which would endanger student health or safety or other extraordinary circumstances as defined by the state board. A fully approved school system in which other deficiencies are discovered shall remain on full accreditation status for six months following an on-site review in which other deficiencies are noted. The school the remainder of the approval period and shall have an opportunity to correct those deficiencies, notwithstanding other provisions of this subsection.
(2) Temporary approval shall be given to a county board whose education system is below the level required for full approval. Whenever a county board is given temporary approval status, the county board shall revise its unified county improvement plan in accordance with subsection (b) of this section to increase the performance and progress of the school system to a full approval status level. The revised plan shall include objectives, a time line, a plan for evaluation of the success of the improvements, a cost estimate, and a date certain for achieving full approval. The revised plan shall be submitted to the state board for approval.
(3) Conditional approval shall be given to a county board whose education system is below the level required for full approval, but whose unified county improvement plan meets the following criteria:
(i) The plan has been revised in accordance with subsection (b) of this section; to achieve full approval status by a date certain;
(ii) The plan has been approved by the state board; and
(iii) The county board is meeting the objectives and time line specified in the revised plan.
(4) Nonapproval status shall be given to a county board which fails to submit and gain approval for its unified county improvement plan or revised unified county improvement plan within a reasonable time period as defined by the state board or which fails to meet the objectives and time line of its revised unified county improvement plan or fails to achieve full approval by the date specified in the revised plan.
(A) The state board shall establish and adopt additional standards to identify school systems in which the program may be nonapproved and the state board may issue nonapproval status whenever extraordinary circumstances exist as defined by the state board.
(B) Whenever a county board has more than a casual deficit, as defined in section one, article one of this chapter, the county board shall submit a plan to the state board specifying the county board's strategy for eliminating the casual deficit. The state board either shall approve or reject the plan. If the plan is rejected, the state board shall communicate to the county board the reason or reasons for the rejection of the plan. The county board may resubmit the plan any number of times. However, any county board that fails to submit a plan and gain approval for the plan from the state board before the end of the fiscal year after a deficit greater than a casual deficit occurred or any county board which, in the opinion of the state board, fails to comply with an approved plan may be designated as having nonapproval status.
(C) Whenever nonapproval status is given to a school system, the state board shall declare a state of emergency in the school system and shall appoint a team of improvement consultants to make recommendations within sixty days of appointment for correcting the emergency. When the state board approves the recommendations, they shall be communicated to the county board. If progress in correcting the emergency, as determined by the state board, is not made within six months from the time the county board receives the recommendations, the state board shall intervene in the operation of the school system to cause improvements to be made that will provide assurances that a thorough and efficient system of schools will be provided. This intervention may include, but is not limited to, the following:
(i) Limiting the authority of the county superintendent and county board as to the expenditure of funds, the employment and dismissal of personnel, the establishment and operation of the school calendar, the establishment of instructional programs and rules and any other areas designated by the state board by rule, which may include delegating decision-making authority regarding these matters to the state superintendent;
(ii) Declaring that the office of the county superintendent is vacant;
(iii) Delegating to the state superintendent both the authority to conduct hearings on personnel matters and school closure or consolidation matters and, subsequently, to render the resulting decisions, and the authority to appoint a designee for the limited purpose of conducting hearings while reserving to the state superintendent the authority to render the resulting decisions;
(iv) Functioning in lieu of the county board of education in a transfer, sale, purchase or other transaction regarding real property; and
(iv) (v) Taking any direct action necessary to correct the emergency including, but not limited to, the following:
(I) Delegating to the state superintendent the authority to replace administrators and principals in low performing schools and to transfer them into alternate professional positions within the county at his or her discretion; and
(II) Delegating to the state superintendent the authority to fill positions of administrators and principals with individuals determined by the state superintendent to be the most qualified for the positions. Any authority related to intervention in the operation of a county board granted under this paragraph is not subject to the provisions of article four, chapter eighteen-a of this code;
(m) (o) Notwithstanding any other provision of this section, the state board may intervene immediately in the operation of the county school system with all the powers, duties and responsibilities contained in subsection (l) (n) of this section, if the state board finds the following:
(1) That the conditions precedent to intervention exist as provided in this section; and that delaying intervention for any period of time would not be in the best interests of the students of the county school system; or
(2) That the conditions precedent to intervention exist as provided in this section and that the state board had previously intervened in the operation of the same school system and had concluded that intervention within the preceding five years.
(n) (p) Capacity. -- The process for improving education includes a process for targeting resources strategically to improve the teaching and learning process. Development of unified school and school system improvement plans, pursuant to subsection (b) of this section, is intended, in part, to provide mechanisms to target resources strategically to the teaching and learning process to improve student, school and school system performance. When deficiencies are detected through the assessment and accountability processes, the revision and approval of school and school system unified improvement plans shall ensure that schools and school systems are efficiently using existing resources to correct the deficiencies. When the state board determines that schools and school systems do not have the capacity to correct deficiencies, the state board shall work with the county board to develop or secure the resources necessary to increase the capacity of schools and school systems to meet the standards and, when necessary, seek additional resources in consultation with the Legislature and the governor.
The state board shall recommend to the appropriate body including, but not limited to, the process for improving education council, the Legislature, county boards, schools and communities methods for targeting resources strategically to eliminate deficiencies identified in the assessment and accountability processes. When making determinations on recommendations, the state board shall include, but is not limited to, the following methods:
(1) Examining reports and unified improvement plans regarding the performance and progress of students, schools and school systems relative to the standards and identifying the areas in which improvement is needed;
(2) Determining the areas of weakness and of ineffectiveness that appear to have contributed to the substandard performance and progress of students or the deficiencies of the school or school system;
(3) Determining the areas of strength that appear to have contributed to exceptional student, school and school system performance and progress and promoting their emulation throughout the system;
(4) Requesting technical assistance from the school building authority in assessing or designing comprehensive educational facilities plans;
(5) Recommending priority funding from the school building authority based on identified needs;
(6) Requesting special staff development programs from the center for professional development, the principals academy, higher education, regional educational service agencies and county boards based on identified needs;
(7) Submitting requests to the Legislature for appropriations to meet the identified needs for improving education;
(8) Directing county boards to target their funds strategically toward alleviating deficiencies;
(9) Ensuring that the need for facilities in counties with increased enrollment are appropriately reflected and recommended for funding;
(10) Ensuring that the appropriate person or entity is held accountable for eliminating deficiencies; and
(11) Ensuring that the needed capacity is available from the state and local level to assist the school or school system in achieving the standards and alleviating the deficiencies.
§18-2E-5c. Process for improving education council established; membership; expenses; meetings; powers.

(a) Process for improving education council. -- There is hereby established the process for improving education council for the purpose of providing opportunities for consultation among state policy leaders on the process for improving education, including, but not limited to, determination of the things that students should know and be able to do as the result of a thorough and efficient education, the performance and progress of students toward meeting the high quality standards established by the state board, and any further improvements necessary to increase the capacity of schools and school systems to deliver a thorough and efficient education.
(b) Council membership. -- The legislative oversight commission on education accountability, together with the governor, ex officio, or the governor's designee, and the chancellor of the higher education policy commission, ex officio, or the chancellor's designee, comprise the process for improving education council. Ex officio members are entitled to vote. The governor or the governor's designee shall convene the council, as appropriate, and shall serve as chair. The council may meet at any time at the call of the governor or the governor's designee.
(c) Compensation. -- Members of the council shall serve without compensation, but shall be reimbursed as provided by law by their respective agencies for all reasonable and necessary expenses actually incurred in the performance of their official duties under this section upon presentation of an itemized sworn statement of their expenses.
(d) Powers of the council. --
The council has the following powers:
(1) To meet and consult with the state board, or their designees, and make recommendations on issues related to student, school and school system performance. The following steps are part of the consultation process:
(A) The state board shall notify each member of the council whenever the state board proposes to amend its rules on any of the following issues:
(i) High quality education standards and efficiency standards established pursuant to section five of this article;
(ii) Indicators of efficiency established pursuant to section five of this article; and
(iii) Assessment and accountability of school and school system performance and processes established pursuant to section five of this article.
(B) The notice to be given pursuant to paragraph (A) of this subdivision shall contain a summary and explanation of the proposed changes, including a draft of the proposal when available, and shall be sent at least fifteen days prior to filing the proposal with the secretary of state for public comment.
(B) (C) If the governor, or the governor's designee, believes it is necessary for the council to meet and consult with the state board, or its designees, on changes proposed to any of the issues outlined in subdivision (1) of this subsection, he or she may convene a meeting of the council.
(C) (D) If both the president of the Senate and the speaker of the House of Delegates believe it is necessary for the council to meet and consult with the state board, or its designees, they shall notify the governor who shall convene a meeting of the council.
(D) (E) If the chancellor, or the chancellor's designee, believes that it is necessary for the council to meet and consult with the state board, or its designees, he or she may request the governor to convene a meeting of the council.
(2) To require the state board, or its designees, to meet with the council to consult on issues that lie within the scope of the council's jurisdiction;
(3) To participate as observers in any on-site review of a school or school system conducted by the office of education performance audits; and
(4) To authorize any employee of the agencies represented by council members to participate as observers in any on-site review of a school or school system conducted by the office of education performance audits.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-15f. Affirmation regarding the suspension or expulsion of a pupil from school.

(a) Prior to the admission of a pupil to any public school in West Virginia, the county superintendent shall require the pupil's parent(s), guardian(s) or custodian(s) to provide, upon registration, a sworn statement or affirmation indicating whether the student is, at the time, under suspension or expulsion from attendance at a private or public school in West Virginia or another state. Any person willfully making a materially false statement or affirmation shall be guilty of a misdemeanor and, upon conviction, the penalty shall be the same as provided for 'false swearing' pursuant to section three, article five, chapter sixty-one of this code.
(b) Prior to the admission of a pupil to any public school, the principal of that school or his or her designee shall consult the uniform integrated regional computer information system (commonly known as the West Virginia Education Information System) described in subsection (f), section twenty-six, article two, chapter eighteen of this code, to determine whether the pupil requesting admission is, at the time of the request for admission, serving a suspension or expulsion from another public school in West Virginia.
(c) The state board of education shall provide for the West Virginia Education Information System to disallow the recording of the enrollment of any pupil who is, at the time of attempted enrollment, serving a suspension or expulsion from another public school in West Virginia, and for that system to notify the user who has attempted to record the enrollment that the pupil may not be enrolled, and to notify that user of the reason therefor.
(b)(d) Notwithstanding any other provision of this code to the contrary, any pupil who has been suspended or expelled from school pursuant to section one-a, article five, chapter eighteen-a of this code, or who has been suspended or expelled from a public or private school in another state, due to actions described in section one-a, article five, chapter eighteen-a of this code, may not be admitted to any public school within the state of West Virginia until the period of suspension or expulsion has expired.
§18-5-46. Requiring teacher to change grade prohibited.
No teacher may be required by a principal or any other person to change a student's grade on either an individual assignment or a report card unless there is clear and convincing evidence that there was a mathematical error in calculating the student's grade.
ARTICLE 20. EDUCATION OF EXCEPTIONAL CHILDREN.

§18-20-5. Powers and duties of state superintendent.

The state superintendent of schools shall organize, promote, administer and be responsible for:
(1) Stimulating and assisting county boards of education in establishing, organizing and maintaining special schools, classes, regular class programs, home-teaching and visiting-teacher services.
(2) Cooperating with all other public and private agencies engaged in relieving, caring for, curing, educating and rehabilitating exceptional children, and in helping coordinate the services of such agencies.
(3) Preparing the necessary rules, regulations policies, formula for distribution of available appropriated funds, reporting forms and procedures necessary to define minimum standards in providing suitable facilities for education of exceptional children and ensuring the employment, certification and approval of qualified teachers and therapists subject to approval by the state board of education: Provided, That no state rule, policy or standard under this article or any county board rule, policy or standard governing special education may exceed the requirements of federal law or regulation. The state superintendent shall conduct a comprehensive review and comparison of the rules, policies and standards of the state with federal law and report the findings to the legislative oversight commission on education accountability at its July, two thousand four interim meeting or as soon thereafter as requested by the commission.
(4) Receiving from county boards of education their applications, annual reports and claims for reimbursement from such moneys as are appropriated by the Legislature, auditing such claims and preparing vouchers to reimburse said counties the amounts reimbursable to them.
(5) Assuring that all exceptional children in the state, including children in mental health facilities, residential institutions, private schools and correctional facilities as provided in section thirteen-f, article two of this chapter receive an education in accordance with state and federal laws: Provided, That the state superintendent shall also assure that adults in correctional facilities and regional jails shall receive an education to the extent funds are provided therefor.
(6) Performing such other duties and assuming such other responsibilities in connection with this program as may be needed.
(7) Receive the county plan for integrated classroom submitted by the county boards of education and submit a state plan, approved by the state board of education, to the legislative oversight commission on education accountability no later than the first day of December, one thousand nine hundred ninety-five.
Nothing herein contained in this section shall be construed to prevent any county board of education from establishing and maintaining special schools, classes, regular class programs, home- teaching or visiting-teacher services out of funds available from local revenue.
CHAPTER 18A. SCHOOL PERSONNEL.

ARTICLE 2. SCHOOL PERSONNEL.

§18A-2-12. Performance evaluations of school personnel; professional personnel evaluation process.

(a) The state board of education shall adopt a written system for the evaluation of the employment performance of personnel, which system shall be applied uniformly by county boards of education in the evaluation of the employment performance of personnel employed by the board.
(b) The system adopted by the state board of education for evaluating the employment performance of professional personnel shall be in accordance with the provisions of this section.
(c) For purposes of this section, 'professional personnel', 'professional' or 'professionals', means professional personnel as defined in section one, article one of this chapter.
(d) In developing the professional personnel performance evaluation system, and amendments thereto, the state board shall consult with the professional development project of the center for professional development created in section three, article three-a of this chapter. The center shall participate actively with the state board in developing written standards for evaluation which clearly specify satisfactory performance and the criteria to be used to determine whether the performance of each professional meets such standards.
(e) The performance evaluation system shall contain, but shall not be limited to, the following information:
(1) The professional personnel positions to be evaluated, whether they be teachers, substitute teachers, administrators, principals, or others;
(2) The frequency and duration of the evaluations, which shall be on a regular basis and of such frequency and duration as to insure the collection of a sufficient amount of data from which reliable conclusions and findings may be drawn: Provided, That for school personnel with five or more years of experience, who have not received an unsatisfactory rating, evaluations shall be conducted no more than once every three years unless the principal determines an evaluation for a particular school employee is needed more frequently: Provided, however, That a classroom teacher may exercise the option of being evaluated at more frequent intervals;
(3) The evaluation shall serve the following purposes:
(A) Serve as a basis for the improvement of the performance of the personnel in their assigned duties;
(B) Provide an indicator of satisfactory performance for individual professionals;
(C) Serve as documentation for a dismissal on the grounds of unsatisfactory performance; and
(D) Serve as a basis for programs to increase the professional growth and development of professional personnel;
(4) The standards for satisfactory performance for professional personnel and the criteria to be used to determine whether the performance of each professional meets such standards and other criteria for evaluation for each professional position evaluated. Effective the first day of July, two thousand three and thereafter, professional personnel, as appropriate, shall demonstrate competency in the knowledge and implementation of the technology standards adopted by the state board. If a professional fails to demonstrate competency, in the knowledge and implementation of these standards, he or she will be subject to an improvement plan to correct the deficiencies; and
(5) Provisions for a written improvement plan, which shall be specific as to what improvements, if any, are needed in the performance of the professional and shall clearly set forth recommendations for improvements, including recommendations for additional education and training during the professional's recertification process.
(f) A professional whose performance is considered to be unsatisfactory shall be given notice of deficiencies. A remediation plan to correct deficiencies shall be developed by the employing county board of education and the professional. The professional shall be given a reasonable period of time for remediation of the deficiencies and shall receive a statement of the resources and assistance available for the purposes of correcting the deficiencies.
(g) No person may evaluate professional personnel for the purposes of this section unless the person has an administrative certificate issued by the state superintendent and has successfully completed education and training in evaluation skills through the center for professional development, or equivalent education training approved by the state board, which will enable the person to make fair, professional, and credible evaluations of the personnel whom the person is responsible for evaluating. After the first day of July, one thousand nine hundred ninety-four, no person may be issued an administrative certificate or have an administrative certificate renewed unless the state board determines that the person has successfully completed education and training in evaluation skills through the center for professional development, or equivalent education and training approved by the state board.
(h) Any professional whose performance evaluation includes a written improvement plan shall be given an opportunity to improve his or her performance through the implementation of the plan. If the next performance evaluation shows that the professional is now performing satisfactorily, no further action may be taken concerning the original performance evaluation. If the evaluation shows that the professional is still not performing satisfactorily, the evaluator either shall make additional recommendations for improvement or may recommend the dismissal of the professional in accordance with the provisions of section eight of this article.
(i) Lesson plans are intended to serve as a daily guide for teachers and substitutes for the orderly presentation of the curriculum. Lesson plans may not be used as a substitute for observations by an administrator in the performance evaluation process. A classroom teacher, as defined in section one, article one of this chapter, may not be required to post his or her lesson plans on the internet or otherwise make them available to students and parents or to include in his or her lesson plans any of the following:
(1) Teach and reteach strategies;
(2) Write to learn activities;
(3) Cultural diversity;
(4) Color coding; or
(5) Any other similar items which are not required to serve as a guide to the teacher or substitute for daily instruction; and
(j) The Legislature finds that classroom teachers must be free of unnecessary paper work so that they can focus their time on instruction. Therefore, classroom teachers may not be required to keep records or logs of routine contacts with parents or guardians.
(k) Nothing in this section may be construed to prohibit classroom teachers from voluntarily posting material on the internet.
§18A-2-12a. Statement of policy and practice for the county boards and school personnel to minimize possible disagreement and misunderstanding.

(a) The Legislature makes the following findings:
(1) The effective and efficient operation of the public schools depends upon the development of harmonious and cooperative relationships between county boards and school personnel;
(2) Each group has a fundamental role to perform in the educational program and each has certain separate, distinct and clearly defined areas of responsibility as provided in chapters eighteen and eighteen-a of this code; and
(3) There are instances, particularly involving questions of wages, salaries and conditions of work, that are subject to disagreement and misunderstanding between county boards and school personnel and may not be so clearly set forth.
(b) The purpose of this section is to establish a statement of policy and practice for the county boards and school personnel, as follows, in order to minimize possible disagreement and misunderstanding:
(1) County boards, subject to the provisions of this chapter, chapter eighteen of this code and the policies and rules of the state board, are responsible for the management of the schools within their respective counties. The powers and responsibilities of county boards in setting policy and in providing management are broad, but not absolute;
(2) The school personnel shares the responsibility for putting into effect the policies and practices approved by the county board that employs them and the school personnel also have certain rights and responsibilities as provided in statute, and in their contracts;
(3) School personnel are entitled to meet together, form associations and work in concert to improve their circumstances and the circumstances of the schools;
(4) County boards and school personnel can most effectively discharge their total responsibilities to the public and to each other by establishing clear and open lines of communication. School personnel should be encouraged to make suggestions, proposals and recommendations through appropriate channels to the county board. Decisions of the county board concerning the suggestions, proposals and recommendations should be communicated to the school personnel clearly and openly;
(5) Official meetings of county boards are public meetings. School personnel are free to attend the meetings without fear of reprisal and should be encouraged to attend;
(6) All school personnel are entitled to know how well they are fulfilling their responsibilities and should be offered the opportunity of open and honest evaluations of their performance on a regular basis and in accordance with the provisions of section twelve of this article. All school personnel are entitled to opportunities to improve their job performance prior to the termination or transfer of their services. Decisions concerning the promotion, demotion, transfer or termination of employment of school personnel, other than those for lack of need or governed by specific statutory provisions unrelated to performance, should be based upon the evaluations, and not upon factors extraneous thereto. All school personnel are entitled to due process in matters affecting their employment, transfer, demotion or promotion; and
(7) All official and enforceable personnel policies of a county board must be written and made available to its employees.
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-1. Authority of teachers and other school personnel; exclusion of pupils having infectious diseases; suspension or expulsion of disorderly pupils; corporal punishment abolished.

(a) The teacher shall stand in the place of the parent(s), guardian(s) or custodian(s) in exercising authority over the school and shall have control of all pupils enrolled in the school from the time they reach the school until they have returned to their respective homes, except that where transportation of pupils is provided, the driver in charge of the school bus or other mode of transportation shall exercise such authority and control over the children while they are in transit to and from the school.
(b) Subject to the rules of the state board of education, the teacher shall exclude from the school any pupil or pupils known to have or suspected of having any infectious disease, or any pupil or pupils who have been exposed to such disease, and shall immediately notify the proper health officer or medical inspector of such exclusion. Any pupil so excluded shall not be readmitted to the school until such pupil has complied with all the requirements of the rules governing such cases or has presented a certificate of health signed by the medical inspector or other proper health officer.
(c) The teacher shall have authority to exclude from his or her classroom or school bus any pupil who is guilty of disorderly conduct; who in any manner interferes with an orderly educational process; who threatens, abuses or otherwise intimidates or attempts to intimidate a school employee or a pupil; or who willfully disobeys a school employee; or who uses abusive or profane language directed at a school employee. Any pupil excluded shall be placed under the control of the principal of the school or a designee. The excluded pupil may be admitted to the classroom or school bus only when the principal, or a designee, provides written certification to the teacher that the pupil may be readmitted and specifies the specific type of disciplinary action, if any, which was taken. If the principal finds that disciplinary action is warranted, he or she shall provide written and, if possible, telephonic notice of such action to the parent(s), guardian(s) or custodian(s). When a teacher excludes the same pupil from his or her classroom or from a school bus three times in one school year, and after exhausting all reasonable methods of classroom discipline provided in the school discipline plan, the pupil may be readmitted to the teacher's classroom only after the principal, teacher and, if possible, the parent(s), guardian(s) or custodian(s) of the pupil have held a conference to discuss the pupil's disruptive behavior patterns, and the teacher and the principal agree on a course of discipline for the pupil and inform the parent(s), guardian(s) or custodian(s) of the course of action. Thereafter, if the pupil's disruptive behavior persists, upon the teacher's request, the principal may, to the extent feasible, transfer the pupil to another setting.
(d) The Legislature finds that suspension from school is not appropriate solely for a pupil's failure to attend class. Therefore, no pupil may be suspended from school solely for not attending class. Other methods of discipline may be used for the pupil which may include, but are not limited to, detention, extra class time or alternative class settings.
(e) Corporal punishment of any pupil by a school employee is prohibited.
(f) The West Virginia board of education and county boards of education Each county board is solely responsible for the administration of proper discipline in the public schools of the county and shall adopt policies consistent with the provisions of this section to govern disciplinary actions. These policies shall encourage encouraging the use of alternatives to corporal punishment, providing for the training of school personnel in alternatives to corporal punishment and for the involvement of parent(s), guardian(s) or custodian(s) in the maintenance of school discipline. The county boards of education shall provide for the immediate incorporation and implementation in the schools of a preventive discipline program which may include the responsible student program and a student involvement program which may include the peer mediation program, devised by the West Virginia board of education. Each board may modify such programs to meet the particular needs of the county. The county boards shall provide in-service training for teachers and principals relating to assertive discipline procedures and conflict resolution. The county boards of education may also establish cooperatives with private entities to provide middle educational programs which may include programs focusing on developing individual coping skills, conflict resolution, anger control, self-esteem issues, stress management and decision making for students and any other program related to preventive discipline.
(g) For the purpose of this section: (1) 'Pupil or student' shall include any child, youth or adult who is enrolled in any instructional program or activity conducted under board authorization and within the facilities of or in connection with any program under public school direction: Provided, That, in the case of adults, the pupil-teacher relationship shall terminate when the pupil leaves the school or other place of instruction or activity; and (2) 'teacher' shall mean all professional educators as defined in section one, article one of this chapter and shall include the driver of a school bus or other mode of transportation.
(h) Teachers shall exercise such other authority and perform such other duties as may be prescribed for them by law or by the rules of the state board of education not inconsistent with the provisions of this chapter and chapter eighteen of this code.
§18A-5-1a. Possessing deadly weapons on premises of educational facilities; possessing a controlled substance on premises of educational facilities; assaults and batteries committed by pupils upon teachers or other school personnel; temporary suspension, hearing; procedure, notice and formal hearing; extended suspension; sale of narcotic; expulsion; exception; alternative education.

(a) A principal shall suspend a pupil from school or from transportation to or from the school on any school bus if the pupil, in the determination of the principal after an informal hearing pursuant to subsection (d) of this section, has: (i) Violated the provisions of subsection (b), section fifteen, article two, chapter sixty-one of this code; (ii) violated the provisions of subsection (b), section eleven- a, article seven of said chapter; or (iii) sold a narcotic drug, as defined in section one hundred one, article one, chapter sixty-a of this code, on the premises of an educational facility, at a school-sponsored function or on a school bus. If a student has been suspended pursuant to this subsection, the principal shall, within twenty-four hours, request that the county superintendent recommend to the county board that the student be expelled. Upon such a request by a principal, the county superintendent shall recommend to the county board that the student be expelled. Upon such recommendation, the county board shall conduct a hearing in accordance with subsections (e), (f) and (g) of this section to determine if the student committed the alleged violation. If the county board finds that the student did commit the alleged violation, the county board shall expel the student.
(b) A principal shall suspend a pupil from school, or from transportation to or from the school on any school bus, if the pupil, in the determination of the principal after an informal hearing pursuant to subsection (d) of this section, has: (i) Committed an act or engaged in conduct that would constitute a felony under the laws of this state if committed by an adult; or (ii) unlawfully possessed on the premises of an educational facility or at a school-sponsored function a controlled substance governed by the uniform controlled substances act as described in chapter sixty-a of this code. If a student has been suspended pursuant to this subsection, the principal may request that the superintendent recommend to the county board that the student be expelled. Upon such recommendation by the county superintendent, the county board may hold a hearing in accordance with the provisions of subsections (e), (f) and (g) of this section to determine if the student committed the alleged violation. If the county board finds that the student did commit the alleged violation, the county board may expel the student.
(c) A principal may suspend a pupil from school, or transportation to or from the school on any school bus, if the pupil, in the determination of the principal after an informal hearing pursuant to subsection (d) of this section: (i) Threatened to injure, or in any manner injured, a pupil, teacher, administrator or other school personnel; (ii) willfully disobeyed a teacher; (iii) possessed alcohol in an educational facility, on school grounds, a school bus or at any school-sponsored function; (iv) used profane language directed at a school employee or pupil; (v) intentionally defaced any school property; (vi) participated in any physical altercation with another person while under the authority of school personnel; or (vii) habitually violated school rules or policies. If a student has been suspended pursuant to this subsection, the principal may request that the superintendent recommend to the county board that the student be expelled. Upon such recommendation by the county superintendent, the county board may hold a hearing in accordance with the provisions of subsections (e), (f) and (g) of this section to determine if the student committed the alleged violation. If the county board finds that the student did commit the alleged violation, the county board may expel the student.
(d) The actions of any pupil which may be grounds for his or her suspension or expulsion under the provisions of this section shall be reported immediately to the principal of the school in which the pupil is enrolled. If the principal determines that the alleged actions of the pupil would be grounds for suspension, he or she shall conduct an informal hearing for the pupil immediately after the alleged actions have occurred. The hearing shall be held before the pupil is suspended unless the principal believes that the continued presence of the pupil in the school poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process, in which case the pupil shall be suspended immediately and a hearing held as soon as practicable after the suspension.
The pupil and his or her parent(s), guardian(s) or custodian(s), as the case may be, shall be given telephonic notice, if possible, of this informal hearing, which notice shall briefly state the grounds for suspension.
At the commencement of the informal hearing, the principal shall inquire of the pupil as to whether he or she admits or denies the charges. If the pupil does not admit the charges, he or she shall be given an explanation of the evidence possessed by the principal and an opportunity to present his or her version of the occurrence. At the conclusion of the hearing or upon the failure of the noticed student to appear, the principal may suspend the pupil for a maximum of ten school days, including the time prior to the hearing, if any, for which the pupil has been excluded from school.
The principal shall report any suspension the same day it has been decided upon, in writing, to the parent(s), guardian(s) or custodian(s) of the pupil by regular United States mail. The suspension also shall be reported to the county superintendent and to the faculty senate of the school at the next meeting after the suspension.
(e) Prior to a hearing before the county board, the county board shall cause a written notice which states the charges and the recommended disposition to be served upon the pupil and his or her parent(s), guardian(s) or custodian(s), as the case may be. The notice shall state clearly whether the board will attempt at hearing to establish the student as a dangerous student, as defined by section one, article one of this chapter. The notice also shall include any evidence upon which the board will rely in asserting its claim that the student is a dangerous student. The notice shall set forth a date and time at which the hearing shall be held, which date shall be within the ten-day period of suspension imposed by the principal.
(f) The county board shall hold the scheduled hearing to determine if the pupil should be reinstated or should or, under the provisions of this section, must be expelled from school. If the county board determines that the student should or must be expelled from school, it may also determine whether the student is a dangerous student pursuant to subsection (g) of this section. At this, or any hearing before a county board conducted pursuant to this section, the pupil may be represented by counsel, may call his or her own witnesses to verify his or her version of the incident and may confront and cross-examine witnesses supporting the charge against him or her. Such a hearing shall be recorded by mechanical means unless recorded by a certified court reporter. Any such hearing may be postponed for good cause shown by the pupil but he or she shall remain under suspension until after the hearing. The state board may adopt other supplementary rules of procedure to be followed in these hearings. At the conclusion of the hearing the county board shall either: (1) Order the pupil reinstated immediately at the end of his or her initial suspension; (2) suspend the pupil for a further designated number of days; or (3) expel the pupil from the public schools of the county.
(g) A county board that did not intend prior to a hearing to assert a dangerous student claim, that did not notify the student prior to the hearing that such a determination would be considered and that determines through the course of the hearing that the student may be a dangerous student shall schedule a second hearing within ten days to decide the issue. The hearing may be postponed for good cause shown by the pupil, but he or she remains under suspension until after the hearing.
A county board that expels a student, and finds that the student is a dangerous student, may refuse to provide alternative education. However, after a hearing conducted pursuant to this section for determining whether a student is a dangerous student, when the student is found to be a dangerous student, is expelled and is denied alternative education, a hearing shall be conducted within three months after the refusal by the board to provide alternative education to reexamine whether or not the student remains a dangerous student and whether the student shall be provided alternative education. Thereafter, a hearing for the purpose of reexamining whether or not the student remains a dangerous student and whether the student shall be provided alternative education shall be conducted every three months for so long as the student remains a dangerous student and is denied alternative education. During the initial hearing, or in any subsequent hearing, the board may consider the history of the pupil's conduct as well as any improvements made subsequent to the expulsion. If it is determined during any of the hearings that the student is no longer a dangerous student or should be provided alternative education, the student shall be provided alternative education during the remainder of the expulsion period.
(h) The superintendent may apply to a circuit judge or magistrate for authority to subpoena witnesses and documents, upon his or her own initiative, in a proceeding related to a recommended student expulsion or dangerous student determination, before a county board conducted pursuant to the provisions of this section. Upon the written request of any other party, the superintendent shall apply to a circuit judge or magistrate for the authority to subpoena witnesses, documents or both on behalf of the other party in a proceeding related to a recommended student expulsion or dangerous student determination before a county board. If the authority to subpoena is granted, the superintendent shall subpoena the witnesses, documents or both requested by the other party. Furthermore, if the authority to subpoena is granted, it shall be exercised in accordance with the provisions of section one, article five, chapter twenty-nine-a of this code.
Any hearing conducted pursuant to this subsection may be postponed: (1) For good cause shown by the pupil; (2) when proceedings to compel a subpoenaed witness to appear must be instituted; or (3) when a delay in service of a subpoena hinders either party's ability to provide sufficient notice to appear to a witness. A pupil remains under suspension until after the hearing in any case where a postponement occurs.
The county boards are directed to report the number of pupils determined to be dangerous students to the state board of education. The state board will compile the county boards' statistics and shall report its findings to the legislative oversight commission on education accountability.
(i) Pupils may be expelled pursuant to the provisions of this section for a period not to exceed one school year, except that if a pupil is determined to have violated the provisions of subsection (a) of this section the pupil shall be expelled for a period of not less than twelve consecutive months: Provided, That the county superintendent may lessen the mandatory period of twelve consecutive months for the expulsion of the pupil if the circumstances of the pupil's case demonstrably warrant. Upon the reduction of the period of expulsion, the county superintendent shall prepare a written statement setting forth the circumstances of the pupil's case which warrant the reduction of the period of expulsion. The county superintendent shall submit the statement to the county board, the principal, the faculty senate and the local school improvement council for the school from which the pupil was expelled. The county superintendent may use the following factors as guidelines in determining whether or not to reduce a mandatory twelve-month expulsion:
(1) The extent of the pupil's malicious intent;
(2) The outcome of the pupil's misconduct;
(3) The pupil's past behavior history; and
(4) The likelihood of the pupil's repeated misconduct.
(j) In all hearings under this section, facts shall be found by a preponderance of the evidence.
(k) For purposes of this section, nothing herein may be construed to be in conflict with the federal provisions of the Individuals with Disabilities Education Act of 1990 (PL 101-476).
(l) If a pupil transfers to another school in West Virginia, the principal of the school from which the pupil transfers shall provide a written record of any disciplinary action taken against the pupil to the principal of the school to which the pupil transfers. Each suspension or expulsion imposed upon a pupil under the authority of this section shall be recorded in the uniform integrated regional computer information system (commonly known as the West Virginia Education Information System) described in subsection (f), section twenty-six, article two, chapter eighteen of this code.
(1) The principal of the school at which the pupil is enrolled shall create an electronic record within twenty-four hours of the imposition of the suspension or expulsion.
(2) Each record of a suspension or expulsion shall include the pupil's name and identification number, the reason for the suspension or expulsion, and the beginning and ending dates of the suspension or expulsion.
(3) The state board of education shall collect and disseminate data so that any principal of a public school in West Virginia can review the complete history of disciplinary actions taken by West Virginia public schools against any pupil enrolled or seeking to enroll at that principal's school. The purposes of this provision are to allow every principal to fulfill his or her duty under subsection (b), section fifteen-f, article five, chapter eighteen of this code to determine whether a pupil requesting to enroll at a public school in West Virginia is currently serving a suspension or expulsion from another public school in West Virginia and to allow principals to obtain general information about pupils' disciplinary histories.

(m) Principals may exercise any other authority and perform any other duties to discipline pupils consistent with state and federal law, including policies of the state board of education.
(n) Each county board is solely responsible for the administration of proper discipline in the public schools of the county and shall adopt policies consistent with the provisions of this section to govern disciplinary actions."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4001 - "A Bill to amend and reenact §18-2E-5 and §18-2E-5c of the code of West Virginia, 1931, as amended; to amend and reenact §18-5-15f of said code; to amend said code by adding thereto a new section, designated section §18-5-46; to amend and reenact §18-20-5 of said code; to amend and reenact §18A-2-12 of said code; to amend said code by adding thereto a new section, designated §18A-2-12a; and to amend and reenact §18A-5-1 and §18A-5-1a, all relating to the process for improving education and removing impediments to improving performance and progress; making technical references, grammatical corrections and stylistic changes; refocusing school and county improvement plans; requiring unified school improvement plan boilerplate; adding requirement for standards; revising performance measures and specifying their use; modifying requirements for assessments; adding indicators of exemplary performance and progress; specifying use of efficiency indicators; reorienting system of education performance audits; changing policy for making on-site reviews of schools and school systems; modifying who office of education performance audits reports to; modifying salary cap for office director; revising and adding items specified for compliance documentation on checklist format; modifying process for selection of schools and school systems for on-site review; open meetings exemption for state board during certain discussions; modifying limitation in scope of on-site review; modifying persons to be included in an on-site review; expanding on-site exit conferences and specifying purpose; modifying time limitations for on-site review reports; making certain findings and excluding certain areas from review by performance audits; further specifying conditions for student transfers from seriously impaired schools; granting certain authority for real estate transactions to state board during state intervention; clarifying rights of principal removed from seriously impaired school; specifying certain notice requirements by state board to process for improving education council; recording suspensions and expulsions on the West Virginia education information system; prohibiting a teacher from being required to change grade; exception; limiting state rules, policies and standards for exceptional children programs to federal requirements and directing report of review and comparison of laws to legislative oversight commission; restricting publication of lesson plans; setting forth general statement on relations between county boards and school personnel; and placing sole responsibility for proper student discipline with county boards and requiring county board policies."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
On page nineteen, section §18-2E-5, by striking out subsection (k) and inserting in lieu thereof a new subsection (k) to read as follows:
" (i) (k) On-site reviews. --
(1) The system of education performance audits shall include on-site reviews of schools and school systems which shall be conducted only at the specific direction of the state board upon its determination that the performance and progress of the school or school system are persistently below standard or that other circumstances exist that warrant an on-site review. or by weighted selection by the education performance audits. Any discussion by the state board of schools to be subject to an on- site review or dates for which on-site reviews will be conducted may be held in executive session, and is not subject to the provisions of article nine-a, chapter six of this code, relating to open governmental proceedings. An on-site review shall be conducted by the office of education performance audits of any a school or school system for the purpose of investigating the reasons for performance and progress that are persistently below standard and making recommendations to the school and school system, as appropriate, and to the state board on such measures as it considers necessary to improve performance and progress to meet the standard. The investigation may include, but is not limited to, purposes, including, but not limited to, the following:
(A) Verifying data reported by the school or county board;
(B) Documenting Examining compliance with the laws and policies and laws affecting student, school and school system performance and progress;
(C) Evaluating the effectiveness and implementation status of school and school system unified improvement plans;
(D) Investigating official complaints submitted to the state board that allege serious impairments in the quality of education in schools or school systems;
(E) Investigating official complaints submitted to the state board that allege that a school or county board is in violation of policies or laws under which schools and county boards operate; and
(F) Determining and reporting whether required reviews and inspections have been conducted by the appropriate agencies, including, but not limited to, the state fire marshal, the health department, the school building authority and the responsible divisions within the department of education, and whether noted deficiencies have been or are in the process of being corrected. The office of education performance audits may not conduct a duplicate review or inspection of any compliance reviews or inspections conducted by the department or its agents or other duly authorized agencies of the state, nor may it mandate more stringent compliance measures.
(2) The selection of schools and school systems for an on-site review shall use a weighted sample so that those with lower performance and progress indicators have a greater likelihood of being selected. The director of the office of education performance audits shall notify the county superintendent of schools five school days prior to commencing an on-site review of the county school system and shall notify both the county superintendent and the principal five school days prior to commencing an on-site review of an individual school: Provided, That the state board may direct the office of education performance audits to conduct an unannounced on-site review of a school or school system if the state board believes circumstances warrant an unannounced on-site review.
(3) The office of education performance audits may shall conduct on-site reviews which are limited in scope to specific areas in which performance and progress are persistently below standard as determined by the state board unless specifically directed by the state board to conduct a review which covers additional areas. addition to full reviews which cover all areas.
(4) An on-site review of a school or school system shall include a person or persons from the department of education or a public education agency in the state who has expert knowledge and experience in the area or areas to be reviewed, and who is has been trained and designated by the state board to perform such functions. from the department of education and the agencies responsible for assisting the office. If the size of the school or school system and issues being reviewed necessitates necessitate the use of an on-site review team or teams, the person or persons designated by the state board shall advise and assist the director to appoint the team or teams. The person or persons designated by the state board shall be the team leaders.
The persons designated by the state board shall be responsible for completing the report on the findings and recommendations of the on-site review in their area of expertise. It is the intent of the Legislature that the persons designated by the state board participate in all on-site reviews that involve their area of expertise, to the extent practicable, so that the on-site review process will evaluate compliance with the standards in a uniform, consistent and expert manner.
(5) The office of education performance audits shall reimburse a county board for the costs of substitutes required to replace county board employees while they are serving on a review team.
(6) At the conclusion of an on-site review of a school system, the director and team leaders shall hold an exit conference with the superintendent and shall provide an opportunity for principals to be present for at least the portion of the conference pertaining to their respective schools. In the case of an on-site review of a school, the exit conference shall be held with the principal and curriculum team of the school and the superintendent shall be provided the opportunity to be present. The purpose of the exit conference is to review the initial findings of the on-site review, clarify and correct any inaccuracies and allow the opportunity for dialogue between the reviewers and the school or school system to promote a better understanding of the findings.
(7) The office of education performance audits shall report the findings of an on-site review to the county superintendent and the principals whose schools were reviewed within thirty days following the conclusion of the on-site review. The office of education performance audits shall report the findings of the on-site reviews review to the state board within forty-five days after the conclusion of the on-site review. for inclusion in the evaluation and determination of a school's or county board's accreditation or approval status as applicable. The report on the findings of an on-site review shall be submitted to the state board within thirty days following the conclusion of the on-site review and to the county superintendent and principals of schools within the reviewed school system within forty-five days following the conclusion of the on-site review. A copy of the report shall be provided to the process for improving education council at its request.
(8) The Legislature finds that the accountability and oversight of the following activities and programmatic areas in the public schools is controlled through other mechanisms and that additional accountability and oversight are not only unnecessary but counter productive in distracting necessary resources from teaching and learning. Therefore, notwithstanding any other provision of this section to the contrary, the following activities and programmatic areas are not subject to review by the office of education performance audits:
(A) Work-based learning;
(B) Use of advisory councils;
(C) Program accreditation and student credentials;
(D) Student transition plans;
(E) Graduate assessment form;
(F) Casual deficit;
(G) Accounting practices;
(H) Transportation services;
(I) Special education services;
(J) Safe, healthy and accessible facilities;
(K) Health services;
(L) Attendance director;
(M) Business/community partnerships;
(N) Pupil-teacher ratio/split grade classes;
(O)Local school improvement council, faculty senate, student assistance team and curriculum team;
(P) Planning and lunch periods;
(Q) Skill improvement program;
(R) Certificate of proficiency;
(S) Training of county board members;
(T) Excellence in job performance;
(U) Staff development; and
(V) Preventive discipline, character education and student and parental involvement.
"
The bill, as amended by the Senate, and as further amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 651), and there were--yeas 88, nays none, absent and not voting 12, with the absent and not voting being as follows:
Absent And Not Voting: Amores, Beach, Calvert, Coleman, Ennis, Long, Mezzatesta, Schoen, Wakim, Webster, Williams and Yeager.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4001) passed.
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 652), and there were--yeas 90, nays none, absent and not voting 10, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Calvert, Coleman, Ennis, Long, Mezzatesta, Schoen, Wakim, Webster and Williams.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4001) takes effect July 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4004, Establishing an insurance fraud unit within the office of the insurance commissioner.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, 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 section, designated §33-2-20; that §33-6A-4 of said code be amended and reenacted; that said code be amended by adding thereto two new sections, designated §33-6A-4a and §33-6A-4b; that said code be amended by adding thereto a new section, designated §33-22-2a; that said code be amended by adding thereto a new section, designated §33-23-2a; that said code be amended by adding thereto a new section, designated §33-24-4b; that said code be amended by adding thereto a new section, designated §33-25-6a; that said code be amended by adding thereto a new section, designated §33- 25A-24b; that §33-41-1, §33-41-2 and §33-41-3 of said code be amended and reenacted; and that said code be amended by adding thereto nine new sections, designated §33-41-4, §33-41-5, §33-41-6, §33- 41-7, §33-41-8, §33-41-9, §33-41-10, §33-41-11 and §33-41-12, all to read as follows:
ARTICLE 2. INSURANCE COMMISSIONER.

§33-2-20. Authority of commission to allow withdrawal of insurance carriers from doing business in the state.

(a) Notwithstanding any provision of the code to the contrary, the commissioner may, consistent with the provisions of this section, authorize an insurer to withdraw from the line of authority of automobile liability insurance for personal, private passenger automobiles covered by article six-a of this chapter from doing business entirely in this state if:
(1) The insurer has submitted and received approval from the commissioner of a withdrawal plan; and
(2) The insurer demonstrates to the satisfaction of the commissioner that allowing the insurer to withdraw would be in the best interest of the insurer, its policyholders and the citizens of this state.
(b) Any insurer that elects to nonrenew or cancel the particular type or line of insurance coverage provided for by section five, article seventeen-a of this chapter shall submit to the insurance commissioner a withdrawal plan for informational purposes only prior to cancellation or nonrenewal of all its business in this state
(c) The commissioner shall promulgate rules pursuant to chapter twenty-nine-a of this code setting forth the criteria for withdrawal plans.
ARTICLE 6A. CANCELLATION OR NONRENEWAL OF AUTOMOBILE LIABILITY POLICIES.

§33-6A-4. Advance notice of nonrenewal required; assigned risk policies; reasons for nonrenewal; hearing and review after nonrenewal.

(a) No insurer shall fail to renew an outstanding automobile liability or physical damage insurance policy unless such the nonrenewal is preceded by at least forty-five days of advance notice to the named insured of such the insurer's election not to renew such the policy: Provided, That subject to this section, nothing contained in this article shall be construed so as to prevent an insurer from refusing to issue an automobile liability or physical damage insurance policy upon application to such the insurer, nor shall any provision of this article be construed to prevent an insurer from refusing to renew such a policy upon expiration, except as to the notice requirements of this section, and except further as to those applicants lawfully submitted pursuant to the West Virginia assigned risk plan. Provided, however, That an
(b) An
insurer may not fail to renew an outstanding automobile liability or physical damage insurance policy which has been in existence for two consecutive years or longer except for the following reasons:
(a) (1) The named insured fails to make payments of premium for such the policy or any installment of the premium when due;
(b) (2) The policy is obtained through material misrepresentation;
(c) (3) The insured violates any of the material terms and conditions of the policy;
(d) (4) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under such the policy:
(1) (A) Has had his or her operator's license suspended or revoked during the policy period; or
(2) (B) Is or becomes subject to epilepsy or heart attacks, a physical or mental condition that prevents the insured from operating a motor vehicle, and such the individual cannot produce a certificate from a physician testifying to his or her ability to operate a motor vehicle;
(e) (5) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under such the policy, is convicted of or forfeits bail during the policy period for any of the following reasons:
(1) (A) Any felony or assault involving the use of a motor vehicle;
(2) (B) Negligent homicide arising out of the operation of a motor vehicle;
(3) (C) Operating a motor vehicle while under the influence of intoxicating liquor or of any narcotic drug;
(4) (D) Leaving the scene of a motor vehicle accident in which the insured is involved without reporting it as required by law;
(5) (E) Theft of a motor vehicle or the unlawful taking of a motor vehicle; or
(6) (F) Making false statements in an application for a motor vehicle operator's license;
(7) (6) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under the policy, is convicted of or forfeits bail during the policy period for two or more moving traffic violations committed within a period of twelve months, each of which results in three or more points being assessed on the driver's record by the division of motor vehicles, whether or not the insurer renewed the policy without knowledge of all such of the violations: Provided, That an insurer may nonrenew an automobile liability or physical damage insurance policy if the named insured, or any other operator, either residing in the same household or who customarily operates an automobile insured under the policy is convicted of or forfeits bail during the policy period for two or more moving traffic violations committed within a period of twenty-four months, each of which occurs on or after the first day of July, two thousand four and results in three or more points being assessed on the driver's record by the division of motor vehicles, whether or not the insurer renewed the policy without knowledge of all of the violations. Notice of any nonrenewal made pursuant to this subsection subdivision shall be mailed to the named insured either during the current policy period or during the first full policy period following the date that the second moving traffic violation is recorded by the division of motor vehicles;
(f) (7) The named insured or any other operator either residing in the same household or who customarily operates an automobile insured under the policy has had a second at-fault motor vehicle accident within a period of twelve months, whether or not the insurer renewed the policy without knowledge of all such of the accidents: Provided, That an insurer may non-renew an automobile liability or physical damage insurance policy under this subsection if the named insured or any other operator either residing in the same household or who customarily operates an automobile insured under such policy has had two at-fault motor vehicle accidents within a period of thirty-six months, each of which occurs after the first day of July, two thousand four and results in a claim paid by the insurer for each accident, whether or not the insurer renewed the policy without knowledge of all of the accidents. Notice of any nonrenewal made pursuant to this subsection shall be mailed to the named insured either during the current policy period or during the first full policy period following the date of the second accident; or
(9) The insurer ceases writing automobile liability or physical damage insurance policies throughout the state after submission to and approval by the commissioner of a withdrawal plan or discontinues operations within the state pursuant to a withdrawal plan approved by the commissioner.
(c) An insurer shall not fail to renew an automobile liability or physical damage insurance policy when an operator other than the named insured has violated the provisions of subdivision (4) or (5), subsection (b) of this section, if the named insured, by restrictive endorsement, specifically excludes the operator who violated the provision. An insurer issuing a nonrenewal notice informing the named insured that the policy will be nonrenewed, the reason for that an operator has violated the provisions of subdivision (4) or (5), subsection (b) of this section, shall at that time inform the named insured of his or her option to specifically exclude the operator by restrictive endorsement and shall further inform the named insured that upon obtaining the restrictive endorsement, the insurer will renew the policy or rescind the nonrenewal absent the existence of any other basis for nonrenewal set forth in this section.
(d) A notice provided under subsection (a) of this section shall state the specific reason or reasons for nonrenewal and shall advise the named insured that Nonrenewal nonrenewal of such the policy for any reason is subject to a hearing and review as provided for in section five of this article. Cost of the hearing shall be assessed against the losing party but shall not exceed seventy-five dollars. The notice must also advise the insured of possible eligibility for insurance through the West Virginia assigned risk plan.
(e) Notwithstanding the provisions of subsection (a) of this section, the insurer shall renew reinstate any automobile liability or physical damage insurance policy that has not been renewed due to the insured's failure to pay the renewal premium when due if:
(1) None of the other grounds for nonrenewal as set forth in subsections subsection (b) through (f), inclusive, of this section exist; and
(2) the The insured makes an application for renewal reinstatement within ninety forty-five days of the original expiration date of the policy. If a policy is renewed reinstated as provided for in this paragraph, then the coverage afforded shall not be retroactive to the original expiration date of the policy but: Provided, That such policy shall begin be effective on the reinstatement date at the current premium levels offered by the company and shall not be afforded the protections of this section relating to renewal of an outstanding automobile liability or physical damage insurance policy that has been in existence for at least two consecutive years.
§33-6A-4a. Alternative method for nonrenewal for automobile liability and physical damage insurance.

(a) On or after the first day of July, two thousand four, an insurer may nonrenew an automobile liability or physical damage insurance policy for any reason other than race, religion, nationality, ethnic group, age, sex, marital status, or other reason prohibited by the provisions of this chapter, notwithstanding the provisions of section four of this article, upon forty-five days advance notice to the named insured of the insurer's election not to renew the policy.
(b) The total number of nonrenewal notices issued by the insurer pursuant to this section may not exceed one and one-half percent of the total number of the policies of the insurer in force at the end of the previous calendar year in this state: Provided, That the total number of nonrenewal notices issued to insureds within any given county in this state may not exceed one and one-half percent of the total number of the policies of the insurer in force in that county at the end of the previous calendar year: Provided, however, That an insurer may nonrenew one policy in any county if the applicable percentage limitation results in less than one policy.
(c) Notwithstanding the provisions of subsection (b) of this section, on or after the first day of July, two thousand seven, the total number of nonrenewal notices issued by the insurer pursuant to this section may not exceed one percent of the total number of the policies of the insurer in force at the end of the previous calendar year in this state: Provided, That the total number of nonrenewal notices issued to insureds within any given county in this state may not exceed one percent of the total number of the policies of the insurer in force in that county at the end of the previous calendar year: Provided, however, That an insurer may nonrenew one policy in any county if the applicable percentage limitation results in less than one policy.
(d) A notice issued pursuant to this section shall state the specific reason or reasons for refusal to renew and shall advise the named insured that nonrenewal of the policy for any reason is subject to a hearing and review as provided for in section five of this article: Provided, That the hearing shall relate to whether the nonrenewal notice was issued for a discriminatory reason, was based upon inadequate notice, or causes the insurer to exceed the percentage limitation on nonrenewal notices set forth in this section. Cost of the hearing shall be assessed against the losing party but shall not exceed seventy-five dollars. The notice shall also advise the insured of possible eligibility for insurance through the West Virginia assigned risk plan.
(e) Each insurer licensed to write automobile liability and physical damage insurance policies in this state shall file with the commissioner a copy of its underwriting standards, including any amendments or supplements. The commissioner shall review and examine the underwriting standards to ensure compliance with this chapter. The underwriting standards filed with the commissioner shall be considered confidential information and are exempt from disclosure pursuant to chapter twenty- nine-b of this code. The commissioner may promulgate rules pursuant to chapter twenty-nine-a of this code to implement the provisions of this section.
(f) Each insurer that has elected to issue nonrenewal notices pursuant to the percentage limitations provided in subsection (b) or (c) of this section shall report to the commissioner on or before the thirty-first day of March of each year the total number of nonrenewal notices issued in this state and in each county of this state for the preceding calendar year.
§33-6A-4b. Manner of making election relating to nonrenewals.
(a) Each insurer licensed to write automobile liability or physical damage insurance policies in this state as of the first day of July, two thousand four, shall make an election to issue all nonrenewal notices either pursuant to section four or section four-a of this article. Each insurer shall notify the commissioner of its election no later than the first day of July, two thousand four, and shall remain bound by the election for a period of five years. For each subsequent five-year period each insurer shall notify the commissioner of its election to issue all nonrenewal notices either pursuant to section four or section four-a of this article.
(b) An insurer that is not licensed to write automobile liability or physical damage insurance policies in this state as of the first day of July, two thousand four, but becomes licensed to write policies after that date shall, no later than two years after the date the insurer becomes licensed to write the policies, make an election to issue all nonrenewal notices either pursuant to section four or section four-a of this article, and shall notify the commissioner of its election. If the insurer elects to issue all nonrenewal notices pursuant to section four-a of this article, the total number of nonrenewal notices issued by the insurer for the subsequent three-year period may not exceed the percentage limitation set forth in subsection (b), section four-a of this article. At the end of the three-year period, the total number of nonrenewal notices issued by the insurer with regard to the policies may not exceed the percentage limitation set forth in subsection (c), section four-a of this article. An insurer first becoming licensed to issue automobile liability and physical damage insurance policies in this state after the first day of July, two thousand four, shall be bound by its election for a period of five years, and for each subsequent five-year period shall notify the commissioner of its election to issue all nonrenewal notices either pursuant to section four or section four-a of this article.
(c) Notwithstanding any provision of this article to the contrary, a named insured by restrictive endorsement may specifically exclude from automobile liability or physical damage insurance policy an operator who has violated the provisions of subdivision (4) or (5), subsection (b), section four of this article.
ARTICLE 22. FARMERS' MUTUAL FIRE INSURANCE COMPANIES.
§33-22-2a. Applicability of insurance fraud prevention act.

Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to farmers' mutual fire insurance companies. ARTICLE 23. FRATERNAL BENEFIT SOCIETIES.
§33-23-2a. Applicability of insurance fraud prevention act.

Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to fraternal benefit societies.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE CORPORATIONS.

§33-24-4b. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to hospital service corporations, medical service corporations, dental service corporations and health service corporations.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-6a. Applicability of insurance fraud prevention act.

Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to health care corporations.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24b. Applicability of insurance fraud prevention act.

Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to health maintenance organizations.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-1
. Short title; legislative findings and purpose.
(a) This article may be cited as the 'West Virginia Insurance Fraud Prevention Act'.
(b) The Legislature finds that the business of insurance involves many transactions of numerous types that have potential for fraud and other illegal activities. This article is intended to permit use of the expertise of the commissioner to investigate and help prosecute insurance fraud and other crimes related to the business of insurance more effectively, and to assist and receive assistance from state, local and federal law-enforcement and regulatory agencies in enforcing laws prohibiting crimes relating to the business of insurance.
§33-41-2. Definitions.
As used in this article:
(1) 'Benefits' mean money payments, goods, services or other thing of value paid in response to a claim filed with an insurer based upon a policy of insurance;
(2) 'Business of insurance' means the writing of insurance or the reinsuring of risks by an insurer, including acts necessary or incidental to writing insurance or reinsuring risks and the activities of persons who act as or are officers, directors, agents or employees of insurers, or who are other persons authorized to act on their behalf;
(3) 'Claim' means an application or request for payment or benefits provided under the terms of a policy of insurance;
(4) 'Commissioner' means the insurance commissioner of West Virginia or his or her designee;
(5) 'Health care provider' means a person, partnership, corporation, facility or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, pharmacist, podiatrist, chiropractor, physical therapist or psychologist;
(6) 'Insurance' means a contract or arrangement in which a person undertakes to:
(A) Pay or indemnify another person as to loss from certain contingencies called 'risks,' including through reinsurance;
(B) Pay or grant a specified amount or determinable benefit to another person in connection with ascertainable risk contingencies;
(C) Pay an annuity to another person; or
(D) Act as surety.
(7) 'Insurer' means a person entering into arrangements or contracts of insurance or reinsurance. Insurer includes, but is not limited to, any domestic or foreign stock company, mutual company, mutual protective association, farmers' mutual fire companies, fraternal benefit society, reciprocal or interinsurance exchange, nonprofit medical care corporation, nonprofit health care corporation, nonprofit hospital service association, nonprofit dental care corporation, health maintenance organization, captive insurance company, risk retention group or other insurer, regardless of the type of coverage written, benefits provided or guarantees made by each. A person is an insurer regardless of whether the person is acting in violation of laws requiring a certificate of authority or regardless of whether the person denies being an insurer;
(8) 'Person' means an individual, a corporation, a limited liability company, a partnership, an association, a joint stock company, a trust, trustees, an unincorporated organization, or any similar business entity or any combination of the foregoing. 'Person' also includes hospital service corporations, medical service corporations and dental service corporations as defined in article twenty- four of this chapter, health care corporations as defined in article twenty-five of this chapter, or a health maintenance organization organized pursuant to article twenty-five-a of this chapter;
(9) 'Policy' means an individual or group policy, group certificate, contract or arrangement of insurance or reinsurance affecting the rights of a resident of this state or bearing a reasonable relation to this state, regardless of whether delivered or issued for delivery in this state;
(10) 'Reinsurance' means a contract, binder of coverage (including placement slip) or arrangement under which an insurer procures insurance for itself in another insurer as to all or part of an insurance risk of the originating insurer;
(11) 'Statement' means any written or oral representation made to any person, insurer or authorized agency. A statement includes, but is not limited to, any oral report or representation; any insurance application, policy, notice or statement; any proof of loss, bill of lading, receipt for payment, invoice, account, estimate of property damages, or other evidence of loss, injury or expense; any bill for services, diagnosis, prescription, hospital or doctor record, X ray, test result or other evidence of treatment, services or expense; and any application, report, actuarial study, rate request or other document submitted or required to be submitted to any authorized agency. A statement also includes any written or oral representation recorded by electronic or other media; and
(12) 'Unit' means the insurance fraud unit established pursuant to the provisions of this article acting collectively or by its duly authorized representatives.
§33-41-3. Fraud warning authorized; statement required of nonadmitted insurers.

(a) Claims forms and applications for insurance, regardless of the form of transmission, may contain the following warning or a substantially similar caveat:
'Any person who knowingly presents a false or fraudulent claim for payment of a loss or benefit or knowingly presents false information in an application for insurance is guilty of a crime and may be subject to fines and confinement in prison.'
(b) The lack of a warning as authorized by the provisions of subsection (a) of this section does not constitute a defense in any prosecution for a fraudulent or illegal act nor shall it constitute the basis for any type of civil cause of action.
(c) Policies issued by nonadmitted insurers pursuant to article twelve-c of this chapter shall contain a statement disclosing the status of the insurer to do business in the state where the policy is delivered or issued for delivery or the state where coverage is in force. The requirement of this subsection may be satisfied by a disclosure specifically required by section five, article twelve-c of this chapter; section nine, article thirty-two of this chapter; and section eighteen, article thirty-two of this chapter.
§33-41-4. Authority of the commissioner; use of special assistant prosecutors.

(a) The commissioner may investigate suspected criminal acts relating to the business of insurance as authorized by the provisions of this article.
(b) If the prosecuting attorney of the county in which a criminal violation relating to the business of insurance occurs determines that his or her office is unable to take appropriate action, he or she may petition the appropriate circuit court for the appointment of a special prosecutor or special assistant prosecutor from the West Virginia Prosecuting Attorney Institute pursuant to the provisions of section six, article four, chapter seven of this code. Notwithstanding the provisions of that section, attorneys employed by the commissioner and assigned to the insurance fraud unit created by the provisions of section eight of this article may prosecute or assist in the prosecution of violations of the criminal laws of this state related to the business of insurance and may act as special prosecutors or special assistant prosecutors in those cases if assistance is sought by the prosecuting attorney or special prosecutor assigned by the institute to prosecute those matters.
(c) Funds allocated for insurance fraud prevention may be dispersed by the commissioner, at his or her discretion, for the purpose of insurance fraud enforcement as authorized by the provisions of this code.
(d) The Insurance Fraud Unit authorized by the provisions of section eight of this article may assist federal law enforcement agencies, the West Virginia state police, the state fire marshal, municipal police departments and the sheriffs of the counties in West Virginia in investigating crimes related to the business of insurance.
(e) The commissioner may conduct public outreach, education, and awareness programs on the costs of insurance fraud to the public.
§33-41-5. Reporting of insurance fraud or criminal offenses otherwise related to the business of insurance.

(a) A person engaged in the business of insurance having knowledge or a reasonable belief that fraud or another crime related to the business of insurance is being, will be or has been committed shall provide to the commissioner the information required by, and in a manner prescribed by, the commissioner.
(b) The commissioner may prescribe a reporting form to facilitate reporting of possible fraud or other offenses related to the business of insurance for use by persons other than those persons referred to in subsection (a) of this section.
§33-41-6. Immunity from liability.
(a) There shall be no civil liability imposed on and no cause of action shall arise from a person's furnishing information concerning suspected or anticipated fraud relating to the business of insurance, if the information is provided to or received from:
(1) The commissioner or the commissioner's employees, agents or representatives;
(2) Federal, state, or local law-enforcement or regulatory officials or their employees, agents or representatives;
(3) A person involved in the prevention and detection of insurance fraud or that person's agents, employees or representatives; or
(4) The national association of insurance commissioners or its employees, agents or representatives.
(b) The provisions of subsection (a) of this section are not applicable to materially incorrect statements made maliciously or fraudulently by a person designated a mandated reporter pursuant to the provisions of subsection (a), section five of this article or made in reckless disregard to the truth or falsity of the statement by those not mandated to report. In an action brought against a person for filing a report or furnishing other information concerning an alleged insurance fraud, the party bringing the action shall plead with specificity any facts supporting the allegation that subsection (a) of this section does not apply because the person filing the report or furnishing the incorrect information did so maliciously in the case of a mandated reporter or in the case of a person not designated a mandated reporter, in reckless disregard for the truth or falsity of the statement.
(c) Nothing in this article shall be construed to limit, abrogate or modify existing statutes or case law applicable to the duties or liabilities of insurers regarding bad faith or unfair trade practices.
(d) This section does not abrogate or modify common law or statutory privileges or immunities.
§33-41-7. Confidentiality.
(a) Documents, materials or other information in the possession or control of the office of the insurance commissioner that are provided pursuant to section six of this article or obtained by the commissioner in an investigation of alleged fraudulent acts related to the business of insurance shall be confidential by law and privileged, shall not be subject to the provisions of chapter twenty-nine-b of this code, shall not be open to public inspection, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action. The commissioner may use the documents, materials or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's official duties. The commissioner may use the documents, materials or other information if they are required for evidence in criminal proceedings or other action by the state or federal government and in such context may be discoverable as ordered by a court of competent jurisdiction exercising its discretion.
(b) Neither the commissioner nor any person who receives documents, materials or other information while acting under the authority of the commissioner may be permitted or required to testify in any private civil action concerning any confidential documents, materials or information subject to subsection (a) of this section except as ordered by a court of competent jurisdiction.
(c) In order to assist in the performance of the commissioner's duties, the commissioner:
(1) May share documents, materials or other information, including the confidential and privileged documents, materials or information subject to subsection (a) of this section with other state, federal and international regulatory agencies, with the national association of insurance commissioners and its affiliates and subsidiaries, and with local, state, federal and international law-enforcement authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of the document, material or other information;
(2) May receive documents, materials or information, including otherwise confidential and privileged documents, materials or information, from the national association of insurance commissioners and its affiliates and subsidiaries, and from regulatory and law-enforcement officers of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material or information; and
(3) May enter into agreements governing sharing and use of information including the furtherance of any regulatory or legal action brought as part of the recipient's official duties.
(d) No waiver of any applicable privilege or claim of confidentiality in the documents, materials or information shall occur as a result of disclosure to the commissioner under this section or as a result of sharing as authorized in subsection (c) of this section.
(e) Nothing in this section shall prohibit the commissioner from providing information to or receiving information from any local, state, federal or international law-enforcement authorities, including any prosecuting authority; or from complying with subpoenas or other lawful process in criminal actions; or as may otherwise be provided in this article.
(f) Nothing in this article may be construed to abrogate or limit the attorney-client or work product privileges existing at common law or established by statute or court rule.
§33-41-8. Creation of insurance fraud unit; purpose; duties; personnel qualifications.

(a) There is established the West Virginia insurance fraud unit within the office of the insurance commissioner of West Virginia. The commissioner may employ full-time supervisory, legal and investigative personnel for the unit, who shall be qualified by training and experience in the areas of detection, investigation or prosecution of fraud within and against the insurance industry to perform the duties of their positions. The director of the fraud unit shall be a full-time position and shall be appointed by the commissioner and serve at his or her will and pleasure. The commissioner shall provide office space, equipment, supplies, clerical and other staff that is necessary for the unit to carry out its duties and responsibilities under this article.
(b) The fraud unit may in its discretion:
(1) Initiate inquiries and conduct investigations when the unit has cause to believe violations of the provisions of this chapter or the provisions of article three, chapter sixty-one of this code relating to the business of insurance have been or are being committed;
(2) Review reports or complaints of alleged fraud related to the business of insurance activities from federal, state and local law-enforcement and regulatory agencies, persons engaged in the business of insurance and the general public to determine whether the reports require further investigation; and
(3) Conduct independent examinations of alleged fraudulent activity related to the business of insurance and undertake independent studies to determine the extent of fraudulent insurance acts.
(c) The insurance fraud unit may:
(1) Employ and train personnel to achieve the purposes of this article and to employ legal counsel, investigators, auditors and clerical support personnel and other personnel as the commissioner determines necessary from time to time to accomplish the purposes of this article;
(2) Inspect, copy or collect records and evidence;
(3) Serve subpoenas issued by grand juries and trial courts in criminal matters;
(4) Share records and evidence with federal, state or local law-enforcement or regulatory agencies, and enter into interagency agreements;
(5) Make criminal referrals to the county prosecutors;
(6) Conduct investigations outside this state. If the information the insurance fraud unit seeks to obtain is located outside this state, the person from whom the information is sought may make the information available to the insurance fraud unit to examine at the place where the information is located. The insurance fraud unit may designate representatives, including officials of the state in which the matter is located, to inspect the information on behalf of the insurance fraud unit, and the insurance fraud unit may respond to similar requests from officials of other states;
(7) The fraud unit may initiate investigations and participate in the development of, and if necessary, the prosecution of any health care provider, including a provider of rehabilitation services, suspected of fraudulent activity related to the business of insurance;
(8) Specific personnel, designated by the commissioner, shall be permitted to operate vehicles owned or leased for the state displaying Class A registration plates;
(9) Notwithstanding any provision of this code to the contrary, specific personnel designated by the commissioner may carry firearms in the course of their official duties after meeting specialized qualifications established by the governor's committee on crime, delinquency and correction, which shall include the successful completion of handgun training provided to law-enforcement officers by the West Virginia state police: Provided, That nothing in this subsection shall be construed to include any person designated by the commissioner as a law-enforcement officers as that term is defined by the provisions of section one, article twenty-nine, chapter thirty of this code; and
(10) The insurance fraud unit shall not be subject to the provisions of article nine-a, chapter six of this code and the investigations conducted by the insurance fraud unit and the materials placed in the files of the unit as a result of any such investigation are exempt from public disclosure under the provisions of chapter twenty-nine-b of this code.
§33-41-9. Other law-enforcement or regulatory authority.
This article does not:
(1) Preempt the authority or relieve the duty of other law-enforcement or regulatory agencies to investigate, examine and prosecute suspected violations of law;
(2) Prevent or prohibit a person from disclosing voluntarily information concerning insurance fraud to a law-enforcement or regulatory agency other than the insurance fraud unit; or
(3) Limit the powers granted elsewhere by the laws of this state to the commissioner or his or her agents to investigate and examine possible violations of law and to take appropriate action against violators of law.
§33-41-10. Rules.
The insurance commissioner shall, pursuant to the provisions of article three, chapter twenty- nine-a of this code, promulgate such legislative rules as are necessary or proper to carry out the purposes of this article.
§33-41-11. Fraudulent claims to insurance companies.
(a) Any person who knowingly and willfully and with intent to defraud submits a materially false statement in support of a claim for insurance benefits or payment pursuant to a policy of insurance or who conspires to do so is guilty of a crime and is subject to the penalties set forth in the provisions of this section.
(b) Any person who commits a violation of the provisions of subsection (a) of this section where the benefit sought exceeds one thousand dollars in value is guilty of a felony and, upon conviction thereof shall be confined in a correctional facility for not less than one nor more than ten years, fined not more than ten thousand dollars, or both or in the discretion of the circuit court confined in a county or regional jail for not more than one year and so fined.
(c) Any person who commits a violation of the provisions of subsection (a) of this section where the benefit sought is one thousand dollars or less in value, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than one year, fined not more than two thousand five hundred dollars, or both.
(d) Any person convicted of a violation of this section is subject to the restitution provisions of article eleven-a, chapter sixty-one of this code.
(e) The circuit court may award to the unit or other law enforcement agency investigating a violation of this section or other criminal offense related to the business of insurance its cost of investigation.
§33-41-12. Civil penalties; injunctive relief; employment disqualification.

A person or entity engaged in the business of insurance or a person or entity making a claim against an insurer who violates any provision of this article may be subject to the following:
(1) Where applicable, suspension or revocation of license or certificate of authority or a civil penalty of up to ten thousand dollars per violation, or where applicable, both. Suspension or revocation of license or certificate of authority or imposition of civil penalties may be pursuant to an order of the commissioner issued pursuant to the provisions of section thirteen, article two of this chapter. The commissioner's order may require a person found to be in violation of this article to make reasonable restitution to persons aggrieved by violations of this article. The commissioner may assess a person sanctioned pursuant to the provisions of this section the cost of investigation;
(2) Notwithstanding any other provision of law, a civil penalty imposed pursuant to the provisions of this section is mandatory and not subject to suspension;
(3) A person convicted of a felony violation law reasonably related to the business of insurance shall be disqualified from engaging in the business of insurance; and
(4) The commissioner may apply for a temporary or permanent injunction in any appropriate circuit court of this state seeking to enjoin and restrain a person from violating or continuing to violate the provisions of this article or rule promulgated under this article, notwithstanding the existence of other remedies at law. The circuit court shall have jurisdiction of the proceeding and have the power to make and enter an order or judgment awarding temporary or permanent injunctive relief restraining any person from violating or continuing to violate any provision of this article or rule promulgated under the article as in its judgment is proper."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4004 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-2-20; to amend and reenact §33-6A-4 of said code; to amend said code by adding thereto two new sections, designated §33-6A-4a and §33-6A-4b; to amend said code by adding thereto a new section, designated §33-22-2a; to amend said code by adding thereto a new section, designated §33-23-2a; to amend said code by adding thereto a new section, designated §33-24-4b; to amend said code by adding thereto a new section, designated §33-25-6a; to amend said code by adding thereto a new section, designated §33-25A-24b; to amend and reenact §33- 41-1, §33-41-2 and §33-41-3 of said code; and to amend said code by adding thereto nine new sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33-41-8, §33-41-9, §33-41-10, §33-41- 11 and §33-41-12, all relating to insurance generally; additional reasons for nonrenewal of automobile liability, physical damage and property insurance; providing that any existing policy or any policy issued or renewed after the effective date of the bill may be nonrenewed by an insurer for any reason with proper notice to the insured; authorizing the commissioner of insurance to act regarding withdrawal of insurers from the state; prevention and investigation of insurance fraud generally; subjecting farmers' mutual insurance companies, fraternal benefit societies, certain hospital, medical, dental and health services corporations, health care corporations, and health maintenance organizations to insurance fraud provisions; creating the West Virginia insurance fraud prevention act; legislative intent; defining terms; requiring fraud warning on forms; use of special assistant prosecutor; establishing an insurance fraud unit within agency of insurance commissioner; authorizing promulgation of rules; establishing powers and duties of the unit; establishing investigative powers and procedures; providing confidentiality of fraud unit records; immunity for providing information provided to law enforcement regarding fraud; exceptions; creating offense of insurance fraud; establishing penalties and fines; authorizing prosecution for insurance fraud; authorizing fraud unit attorneys to act as special prosecutors at request of county prosecutors; specifying duties of insurers; creating misdemeanor and felony offenses for the commission of fraudulent acts; creating civil penalties; granting authority to commissioner to administratively sanction regulated persons and insureds for violations of the article; and exceptions and immunities."
Delegate Staton moved that the House of Delegates concur in the Senate amendments with amendment.
Delegate Trump arose and expressed a desire to offer an amendment to the Senate amendments and raised a point of inquiry as to the precedence of such motion.
The Speaker stated that the practice of the House of Delegates is to give precedence to the motion to concur in an amendment of the other house with amendment, the same being provided for and based on provisions of Joint Rule 3 of the Rules of the House and Senate.
Subsequently,
Delegate Trump requested unanimous consent to suspend Joint Rule 3 so that the House of Delegates could take up his amendment to the Senate amendments to Com. Sub. for H. B. 4004 prior to consideration of Delegate Staton's motion to concur in the Senate amendments with further amendment.
The Speaker put the unanimous consent request and objections were heard.
Delegate Trump then so moved, and on this question the yeas and nays were taken (Roll No. 653), and there were--yeas 30, nays 69, absent and not voting 1, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Canterbury, Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Frich, Hall, Hamilton, Howard, Leggett, Overington, Romine, Schadler, Schoen, Smirl, Sobonya, Sumner, Trump, Wakim, Webb and G. White.
Absent And Not Voting: Coleman.
So, two thirds of the members present and voting not having voted in the affirmative, the motion to suspend Joint Rule 3 did not prevail.
On motion of Delegate Staton, the House then concurred in the Senate amendments with amendment, as follows:
Following the enacting clause, by striking out the remainder of the Senate amendment and inserting in lieu thereof the following:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto two new sections designated § 33-2-15b and § 33-2-15c, that said code be amended by adding thereto a new section, designated §33-2-20; that §33-6A-4 of said code be amended and reenacted; that said code be amended by adding thereto three new sections, designated §33-6A-4a, §33-6A-4b and §33-6A-4c; that said code be amended by adding thereto a new section, designated §33-22-2a; that said code be amended by adding thereto a new section, designated §33-23-2a; that said code be amended by adding thereto a new section, designated §33-24-4b; that said code be amended by adding thereto a new section, designated §33-25-6a; that said code be amended by adding thereto a new section, designated §33-25A-24b; that §33-41-1, §33-41-2 and §33-41-3 of said code be amended and reenacted; and that said code be amended by adding thereto nine new sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33-41-8, §33-41-9, §33-41-10, §33-41-11 and §33-41-12, all to read as follows:
CHAPTER 33. INSURANCE.

ARTICLE 2. INSURANCE COMMISSIONER.

§33-2-15b. Reports to the Legislature.
(a) By the first of February, two thousand five, the commissioner shall submit to the Legislature a report on third party causes of action;
(b) The report shall contain the following information:
(1) The legal history of the creation of a third party causes of action brought pursuant to Unfair Trade Practices Act as codified in article eleven of this chapter;
(2) An analysis of the impact of third party causes of action upon insurance rates and the availability of insurance in this state;
(3) A summary of the types of data which the commissioner utilized in preparing the analysis: Provided, That the commissioner will not disclose information which is otherwise confidential: Provided, further, That if the commissioner is unable to obtain data which he or she considers necessary to preparing a full analysis, the commissioner shall state in the report:
(A) The reasons that he or she was not able to obtain the data;
(B) Recommendations or proposed legislation for facilitating the collection of necessary data and protecting proprietary information;
(4) Information on what other states have this cause of action;
(5) Based upon the findings of the commissioner, and if the findings so suggest, proposed legislation to address any reforms needed for third party claims under the Unfair Trade Practices Act;
(c) For purpose of preparing the report, the commissioner may request from companies authorized to conduct business in this state any information that he or she believes is necessary to determine the economic effect of third-party lawsuits on insurance premiums. The companies shall not be required to provide the information. Any information which the company agrees to provide, shall be considered confidential by law and privileged, is exempt from disclosure pursuant to chapter twenty-nine-b of this code, is not open to public inspection, is not subject to subpoena, and is not subject to discovery or admissible in evidence in any criminal, private civil or administrative action and is not subject to production pursuant to court order. Notwithstanding any other provisions in this section, while the commissioner is to provide his or her general conclusions based upon the review of the data, the commissioner is not to disclose the information in a manner so as to violate the confidentiality provisions of this section.
§33-2-15c. Reports to the Legislature.
(a) By the first of February, two thousand five, the commissioner shall submit to the Legislature a report relating to the office of the consumer advocate.
(b) The report shall contain the following information:
(1) An overview of the function of the office of the consumer advocacy and how the office addresses consumer complaints;
(2) The number of staff in the office of the consumer advocate and the structure of the existing office;
(3) Statistics reflecting the number of consumer complaints and types handled by the office from the first of January two thousand one until the first of January two thousand four;
(4) The number of states which have consumer advocates and the lines of insurance for which the advocates are authorized to act on behalf of consumers;
(5) The recommendation of the commissioner in regard to whether this state would benefit by having the role of the consumer advocate expanded to other lines of insurance;
(6) Based upon the findings and recommendations, of the commissioner, and if the findings so suggest, proposed legislation for expanding the office of the consumer advocate to other lines of insurance.
§33-2-20. Authority of commission to allow withdrawal of insurance carriers from doing business in the state.

(a) Notwithstanding any provision of the code to the contrary, the commissioner may consistent with the provisions of this section authorize an insurer to withdraw from the line of automobile liability insurance for personal, private passenger automobiles covered by article six-a of this chapter or from doing business entirely in this state if:
(1) The insurer has submitted and received approval from the commissioner of a withdrawal plan; and
(2) The insurer demonstrates to the satisfaction of the commissioner that allowing the insurer to withdraw would be in the best interest of the insurer, its policyholders and the citizens of this state.
(b) Any insurer that elects to nonrenew or cancel the particular type or line of insurance coverage provided for by section five, article seventeen-a of this chapter shall submit to the insurance commissioner a withdrawal plan for informational purposes only prior to cancellation or nonrenewal of all its business in this state.
(c) The commissioner shall promulgate rules pursuant to chapter twenty-nine-a of this code setting forth the criteria for withdrawal plans.
ARTICLE 6A. CANCELLATION OR NONRENEWAL OF AUTOMOBILE LIABILITY POLICIES.

§33-6A-4. Advance notice of nonrenewal required; assigned risk policies; reasons for nonrenewal; hearing and review after nonrenewal.

(a) No insurer shall fail to renew an outstanding automobile liability or physical damage insurance policy unless such the nonrenewal is preceded by at least forty-five days advance notice to the named insured of such the insurer's election not to renew such the policy: Provided, That subject to this section, nothing contained in this article shall be construed so as to prevent an insurer from refusing to issue an automobile liability or physical damage insurance policy upon application to such the insurer, nor shall any provision of this article be construed to prevent an insurer from refusing to renew such a policy upon expiration, except as to the notice requirements of this section, and except further as to those applicants lawfully submitted pursuant to the West Virginia assigned risk plan. Provided, however, That an
(b) An
insurer may not fail to renew an outstanding automobile liability or physical damage insurance policy which has been in existence for two consecutive years or longer except for the following reasons:
(a) (1) The named insured fails to make payments of premium for such the policy or any installment of the premium when due;
(b) (2) The policy is obtained through material misrepresentation;
(c) (3) The insured violates any of the material terms and conditions of the policy;
(d) (4) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under such the policy:
(1) (A) Has had his or her operator's license suspended or revoked during the policy period; or
(2) (B) Is or becomes subject to epilepsy or heart attacks, a physical or mental condition that prevents the insured from operating a motor vehicle, and such the individual cannot produce a certificate from a physician testifying to his or her ability to operate a motor vehicle;
(e) (5) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under such the policy, is convicted of or forfeits bail during the policy period for any of the following reasons:
(1) (A) Any felony or assault involving the use of a motor vehicle;
(2) (B) Negligent homicide arising out of the operation of a motor vehicle;
(3) (C) Operating a motor vehicle while under the influence of intoxicating liquor or of any narcotic drug;
(4) (D) Leaving the scene of a motor vehicle accident in which the insured is involved without reporting it as required by law;
(5) (E) Theft of a motor vehicle or the unlawful taking of a motor vehicle; or
(6) (F) Making false statements in an application for a motor vehicle operator's license;
(7) (6) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under the policy, is convicted of or forfeits bail during the policy period for two or more moving traffic violations committed within a period of twelve months, each of which results in three or more points being assessed on the driver's record by the division of motor vehicles, whether or not the insurer renewed the policy without knowledge of all such of the violations: Provided, That an insurer that makes an election pursuant to section four-b of this article to issue all nonrenewal notices pursuant to this section, may nonrenew an automobile liability or physical damage insurance policy if the named insured, or any other operator, either residing in the same household or who customarily operates an automobile insured under the policy is convicted of or forfeits bail during the policy period for two or more moving traffic violations committed within a period of twenty-four months, each of which occurs on or after the first day of July, two thousand four and after the date that the insurer makes an election pursuant to section four-b of this article, and results in three or more points being assessed on the driver's record by the division of motor vehicles, whether or not the insurer renewed the policy without knowledge of all of the violations. Notice of any nonrenewal made pursuant to this subsection subdivision shall be mailed to the named insured either during the current policy period or during the first full policy period following the date that the second moving traffic violation is recorded by the division of motor vehicles;
(f) (7) The named insured or any other operator either residing in the same household or who customarily operates an automobile insured under the policy has had a second at-fault motor vehicle accident within a period of twelve months, whether or not the insurer renewed the policy without knowledge of all such of the accidents: Provided, That an insurer that makes an election pursuant to section four-b of this article to issue all nonrenewal notices pursuant to this section, may non-renew an automobile liability or physical damage insurance policy under this subsection if the named insured or any other operator either residing in the same household or who customarily operates an automobile insured under such policy has had two at-fault motor vehicle accidents within a period of thirty-six months, each of which occurs after the first day of July, two thousand four and after the date that the insurer makes an election pursuant to section four-b of this article, and results in a claim paid by the insurer for each accident, whether or not the insurer renewed the policy without knowledge of all of the accidents. Notice of any nonrenewal made pursuant to this subsection shall be mailed to the named insured either during the current policy period or during the first full policy period following the date of the second accident; or
(8) The insurer ceases writing automobile liability or physical damage insurance policies throughout the state after submission to and approval by the commissioner of a withdrawal plan or discontinues operations within the state pursuant to a withdrawal plan approved by the commissioner.
(c) An insurer that makes an election pursuant to section four-b of this article to issue all nonrenewal notices pursuant to this section shall not fail to renew an automobile liability or physical damage insurance policy when an operator other than the named insured has violated the provisions of subdivision (6) or (7), subsection (b) of this section, if the named insured, by restrictive endorsement, specifically excludes the operator who violated the provision. An insurer issuing a nonrenewal notice informing the named insured that the policy will be nonrenewed for the reason that an operator has violated the provisions of subdivision (6) or (7), subsection (b) of this section, shall at that time inform the named insured of his or her option to specifically exclude the operator by restrictive endorsement and shall further inform the named insured that upon obtaining the restrictive endorsement, the insurer will renew the policy or rescind the nonrenewal absent the existence of any other basis for nonrenewal set forth in this section.
(d) A notice provided under this section shall state the specific reason or reasons for nonrenewal and shall advise the named insured that Nonrenewal nonrenewal of such the policy for any reason is subject to a hearing and review as provided for in section five of this article. Cost of the hearing shall be assessed against the losing party but shall not exceed seventy-five dollars. The notice must also advise the insured of possible eligibility for insurance through the West Virginia assigned risk plan.
(e)
Notwithstanding the provisions of subsection (a) of this section, the insurer shall renew reinstate any automobile liability or physical damage insurance policy that has not been renewed due to the insured's failure to pay the renewal premium when due if:
(1) None of the other grounds for nonrenewal as set forth in subsections through (f), inclusive, of this section exist; and
(2) the The insured makes an application for renewal reinstatement within ninety forty-five days of the original expiration date of the policy. If a policy is renewed reinstated as provided for in this paragraph, then the coverage afforded shall not be retroactive to the original expiration date of the policy but: Provided, That such policy shall begin be effective on the reinstatement date at the current premium levels offered by the company and shall not be afforded the protections of this section relating to renewal of an outstanding automobile liability or physical damage insurance policy that has been in existence for at least two consecutive years.
§33-6A-4a. Alternative method for nonrenewal for automobile liability and physical damage insurance.
(a) On or after the first day of July, two thousand four, an insurer may nonrenew an automobile liability or physical damage insurance policy for any reason which is consistent with its underwriting standards.
(b) Notwithstanding any other provisions in this section, race, religion, nationality, ethnic group, age, sex, marital status, or other reason prohibited by the provisions of this chapter may not be considered as a reason for nonrenewal;
(c) Notwithstanding the provisions of section four of this article, a nonrenewal may only be issued pursuant to the provisions of this section upon forty-five days advance notice to the named insured of the insurer's election not to renew the policy.
(d) The total number of nonrenewal notices issued each year, commencing on the first day of July, two thousand four, by the insurer, resulting in nonrenewal, pursuant to this section may not exceed one percent per year of the total number of the policies of the insurer in force at the end of the previous calendar year in this state: Provided, That the total number of nonrenewal notices issued each year to insureds within any given county in this state resulting in nonrenewal may not exceed one percent per year of the total number of the policies of the insurer in force in that county at the end of the previous calendar year: Provided, however, That an insurer may nonrenew one policy per year in any county if the applicable percentage limitation results in less than one policy.
(e) A notice issued pursuant to this section shall state the specific reason or reasons for refusal to renew and shall advise the named insured that nonrenewal of the policy for any reason is subject to a hearing and review as provided for in section five of this article: Provided, That the hearing shall relate to whether the nonrenewal of the policy was issued for a discriminatory reason, was based upon inadequate notice, an underwriting standard by the commissioner found to be in violation of this chapter or causes the insurer to exceed the percentage limitations, or percentage limitations by county, of nonrenewal notices set forth in this section. Cost of the hearing shall be assessed against the losing party but shall not exceed seventy-five dollars. The notice shall also advise the insured of possible eligibility for insurance through the West Virginia assigned risk plan.
(f) Each insurer licensed to write automobile liability and physical damage insurance policies in this state shall file with the commissioner a copy of its underwriting standards, including any amendments or supplements. The commissioner shall review and examine the underwriting standards to ensure that they are consistent with generally accepted underwriting principles. The underwriting standards filed with the commissioner shall be considered confidential by law and privileged, are exempt from disclosure pursuant to chapter twenty-nine-b of this code, are not open to public inspection, are not subject to subpoena, and are not subject to discovery or admissible in evidence in any criminal, private civil or administrative action and are not subject to production pursuant to court order. The commissioner shall promulgate legislative rules pursuant to chapter twenty-nine-a of this code to implement the provisions of this section.
(g) Each insurer that has elected to issue nonrenewal notices pursuant to the percentage limitations provided in this section shall report to the commissioner, on a form prescribed by the commissioner, on or before the thirtieth day of September of each year the total number of nonrenewal notices issued in this state and in each county of this state for the preceding year. The insurer shall also report to the commissioner the specific reason or reasons for the nonrenewals by county which have been issued pursuant to this section.
§33-6A-4b. Manner of making election relating to nonrenewals.
(a) Each insurer licensed to write automobile liability or physical damage insurance policies in this state, as of the first day of July, two thousand four, may elect to issue all nonrenewal notices either pursuant to section four or section four-a of this article. Each insurer may notify the commissioner of its election any time after the first day of July, two thousand four, and shall remain bound by the election for a period of five years. For each subsequent five-year period each insurer shall notify the commissioner of its election to issue all nonrenewal notices either pursuant to section four or section four-a of this article.
(1) If no election is made by the first day of July, two thousand four, then, until the first day of July, two thousand five, the insurer shall continue to issue all nonrenewal notices pursuant to the existing nonrenewal provisions in section four prior to the amendments enacted therein by the acts of the Seventy-Sixth Legislature during the second session, two thousand four.
(2) As of the first day of July, two thousand five, each insurer licensed to write automobile liability or physical damage insurance policies in this state, and that has not previously made an election under this section, shall elect to issue all nonrenewal notices either pursuant to section four or section four-a of this article. Each insurer which has not previously made an election must notify the commissioner of its election no later than the first day of July, two thousand five, and shall remain bound by the election for a period of five years. For each subsequent five-year period each insurer shall notify the commissioner of its election to issue all nonrenewal notices either pursuant to section four or section four-a of this article.
(b) An insurer that is not licensed to write automobile liability or physical damage insurance policies in this state, as of the first day of July, two thousand four, but becomes licensed to write such policies after that date shall, no later than two years after the date the insurer becomes licensed to write such policies, make an election to issue all nonrenewal notices either pursuant to section four or section four-a of this article, and shall notify the commissioner of its election. If the insurer elects to issue all nonrenewal notices pursuant to section four-a of this article, the total number of nonrenewals may not exceed the percentage limitations set forth in section four-a of this article. An insurer first becoming licensed to issue automobile liability and physical damage insurance policies in this state after the first day of July, two thousand four, shall be bound by its election for a period of five years, and for each subsequent five-year period shall notify the commissioner of its election to issue all nonrenewal notices either pursuant to section four or section four-a of this article.
(c) Notwithstanding any provision of this article to the contrary, a named insured by restrictive endorsement may specifically exclude from automobile liability or physical damage insurance policy an operator who has violated the provisions of subdivision (6) or (7), subsection (b), section four of this article.
§33-6A-4c. Report to the Legislature.
(a) By the first day of January, two thousand nine the commissioner shall submit a report to the Legislature. The report shall contain the following:
(1) An analysis of the impact of legislation enacted during the two thousand four legislative session upon rates and insurance availability in the state;
(2) Statistics reflecting the rate history of insurers conducting business in West Virginia from the first day of July two thousand four until the first day of July, two thousand eight;
ARTICLE 22. FARMERS' MUTUAL FIRE INSURANCE COMPANIES.
§33-22-2a. Applicability of insurance fraud prevention act.

Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to farmers' mutual fire insurance companies. ARTICLE 23. FRATERNAL BENEFIT SOCIETIES.
§33-23-2a. Applicability of insurance fraud prevention act.

Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to fraternal benefit societies.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE CORPORATIONS.

§33-24-4b. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to hospital service corporations, medical service corporations, dental service corporations and health service corporations.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-6a. Applicability of insurance fraud prevention act.

Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to health care corporations.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24b. Applicability of insurance fraud prevention act.

Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to health maintenance organizations.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-1
. Short title; legislative findings and purpose.
(a) This article may be cited as the 'West Virginia Insurance Fraud Prevention Act'.
(b) The Legislature finds that the business of insurance involves many transactions of numerous types that have potential for fraud and other illegal activities. This article is intended to permit use of the expertise of the commissioner to investigate and help prosecute insurance fraud and other crimes related to the business of insurance more effectively, and to assist and receive assistance from state, local and federal law-enforcement and regulatory agencies in enforcing laws prohibiting crimes relating to the business of insurance.
§33-41-2. Definitions.
As used in this article:
(1) 'Benefits' mean money payments, goods, services or other thing of value paid in response to a claim filed with an insurer based upon a policy of insurance;
(2) 'Business of insurance' means the writing of insurance or the reinsuring of risks by an insurer, including acts necessary or incidental to writing insurance or reinsuring risks and the activities of persons who act as or are officers, directors, agents or employees of insurers, or who are other persons authorized to act on their behalf;
(3) 'Claim' means an application or request for payment or benefits provided under the terms of a policy of insurance;
(4) 'Commissioner' means the insurance commissioner of West Virginia or his or her designee;
(5) 'Health care provider' means a person, partnership, corporation, facility or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, pharmacist, podiatrist, chiropractor, physical therapist or psychologist;
(6) 'Insurance' means a contract or arrangement in which a person undertakes to:
(A) Pay or indemnify another person as to loss from certain contingencies called 'risks,' including through reinsurance;
(B) Pay or grant a specified amount or determinable benefit to another person in connection with ascertainable risk contingencies;
(C) Pay an annuity to another person; or
(D) Act as surety.
(7) 'Insurer' means a person entering into arrangements or contracts of insurance or reinsurance. Insurer includes, but is not limited to, any domestic or foreign stock company, mutual company, mutual protective association, farmers' mutual fire companies, fraternal benefit society, reciprocal or interinsurance exchange, nonprofit medical care corporation, nonprofit health care corporation, nonprofit hospital service association, nonprofit dental care corporation, health maintenance organization, captive insurance company, risk retention group or other insurer, regardless of the type of coverage written, benefits provided or guarantees made by each. A person is an insurer regardless of whether the person is acting in violation of laws requiring a certificate of authority or regardless of whether the person denies being an insurer;
(8) 'Person' means an individual, a corporation, a limited liability company, a partnership, an association, a joint stock company, a trust, trustees, an unincorporated organization, or any similar business entity or any combination of the foregoing. 'Person' also includes hospital service corporations, medical service corporations and dental service corporations as defined in article twenty- four of this chapter, health care corporations as defined in article twenty-five of this chapter, or a health maintenance organization organized pursuant to article twenty-five-a of this chapter;
(9) 'Policy' means an individual or group policy, group certificate, contract or arrangement of insurance or reinsurance affecting the rights of a resident of this state or bearing a reasonable relation to this state, regardless of whether delivered or issued for delivery in this state;
(10) 'Reinsurance' means a contract, binder of coverage (including placement slip) or arrangement under which an insurer procures insurance for itself in another insurer as to all or part of an insurance risk of the originating insurer;
(11) 'Statement' means any written or oral representation made to any person, insurer or authorized agency. A statement includes, but is not limited to, any oral report or representation; any insurance application, policy, notice or statement; any proof of loss, bill of lading, receipt for payment, invoice, account, estimate of property damages, or other evidence of loss, injury or expense; any bill for services, diagnosis, prescription, hospital or doctor record, X ray, test result or other evidence of treatment, services or expense; and any application, report, actuarial study, rate request or other document submitted or required to be submitted to any authorized agency. A statement also includes any written or oral representation recorded by electronic or other media; and
(12) 'Unit' means the insurance fraud unit established pursuant to the provisions of this article acting collectively or by its duly authorized representatives.
§33-41-3. Fraud warning authorized; statement required of nonadmitted insurers.

(a) Claims forms and applications for insurance, regardless of the form of transmission, may contain the following warning or a substantially similar caveat:
'Any person who knowingly presents a false or fraudulent claim for payment of a loss or benefit or knowingly presents false information in an application for insurance is guilty of a crime and may be subject to fines and confinement in prison.'
(b) The lack of a warning as authorized by the provisions of subsection (a) of this section does not constitute a defense in any prosecution for a fraudulent or illegal act nor shall it constitute the basis for any type of civil cause of action.
(c) Policies issued by nonadmitted insurers pursuant to article twelve-c of this chapter shall contain a statement disclosing the status of the insurer to do business in the state where the policy is delivered or issued for delivery or the state where coverage is in force. The requirement of this subsection may be satisfied by a disclosure specifically required by section five, article twelve-c of this chapter; section nine, article thirty-two of this chapter; and section eighteen, article thirty-two of this chapter.
§33-41-4. Authority of the commissioner; use of special assistant prosecutors.

(a) The commissioner may investigate suspected criminal acts relating to the business of insurance as authorized by the provisions of this article.
(b) If the prosecuting attorney of the county in which a criminal violation relating to the business of insurance occurs determines that his or her office is unable to take appropriate action, he or she may petition the appropriate circuit court for the appointment of a special prosecutor or special assistant prosecutor from the West Virginia Prosecuting Attorney Institute pursuant to the provisions of section six, article four, chapter seven of this code. Notwithstanding the provisions of that section, attorneys employed by the commissioner and assigned to the insurance fraud unit created by the provisions of section eight of this article may prosecute or assist in the prosecution of violations of the criminal laws of this state related to the business of insurance and may act as special prosecutors or special assistant prosecutors in those cases if assistance is sought by the prosecuting attorney or special prosecutor assigned by the institute to prosecute those matters.
(c) Funds allocated for insurance fraud prevention may be dispersed by the commissioner, at his or her discretion, for the purpose of insurance fraud enforcement as authorized by the provisions of this code.
(d) The Insurance Fraud Unit authorized by the provisions of section eight of this article may assist federal law enforcement agencies, the West Virginia state police, the state fire marshal, municipal police departments and the sheriffs of the counties in West Virginia in investigating crimes related to the business of insurance.
(e) The commissioner may conduct public outreach, education, and awareness programs on the costs of insurance fraud to the public.
§33-41-5. Reporting of insurance fraud or criminal offenses otherwise related to the business of insurance.

(a) A person engaged in the business of insurance having knowledge or a reasonable belief that fraud or another crime related to the business of insurance is being, will be or has been committed shall provide to the commissioner the information required by, and in a manner prescribed by, the commissioner.
(b) The commissioner may prescribe a reporting form to facilitate reporting of possible fraud or other offenses related to the business of insurance for use by persons other than those persons referred to in subsection (a) of this section.
§33-41-6. Immunity from liability.
(a) There shall be no civil liability imposed on and no cause of action shall arise from a person's furnishing information concerning suspected or anticipated fraud relating to the business of insurance, if the information is provided to or received from:
(1) The commissioner or the commissioner's employees, agents or representatives;
(2) Federal, state, or local law-enforcement or regulatory officials or their employees, agents or representatives;
(3) A person involved in the prevention and detection of insurance fraud or that person's agents, employees or representatives; or
(4) The national association of insurance commissioners or its employees, agents or representatives.
(b) The provisions of subsection (a) of this section are not applicable to materially incorrect statements made maliciously or fraudulently by a person designated a mandated reporter pursuant to the provisions of subsection (a), section five of this article or made in reckless disregard to the truth or falsity of the statement by those not mandated to report. In an action brought against a person for filing a report or furnishing other information concerning an alleged insurance fraud, the party bringing the action shall plead with specificity any facts supporting the allegation that subsection (a) of this section does not apply because the person filing the report or furnishing the incorrect information did so maliciously in the case of a mandated reporter or in the case of a person not designated a mandated reporter, in reckless disregard for the truth or falsity of the statement.
(c) Nothing in this article shall be construed to limit, abrogate or modify existing statutes or case law applicable to the duties or liabilities of insurers regarding bad faith or unfair trade practices.
(d) This section does not abrogate or modify common law or statutory privileges or immunities.
§33-41-7. Confidentiality.
(a) Documents, materials or other information in the possession or control of the office of the insurance commissioner that are provided pursuant to section six of this article or obtained by the commissioner in an investigation of alleged fraudulent acts related to the business of insurance shall be confidential by law and privileged, shall not be subject to the provisions of chapter twenty-nine-b of this code, shall not be open to public inspection, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action. The commissioner may use the documents, materials or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's official duties. The commissioner may use the documents, materials or other information if they are required for evidence in criminal proceedings or other action by the state or federal government and in such context may be discoverable as ordered by a court of competent jurisdiction exercising its discretion.
(b) Neither the commissioner nor any person who receives documents, materials or other information while acting under the authority of the commissioner may be permitted or required to testify in any private civil action concerning any confidential documents, materials or information subject to subsection (a) of this section except as ordered by a court of competent jurisdiction.
(c) In order to assist in the performance of the commissioner's duties, the commissioner:
(1) May share documents, materials or other information, including the confidential and privileged documents, materials or information subject to subsection (a) of this section with other state, federal and international regulatory agencies, with the national association of insurance commissioners and its affiliates and subsidiaries, and with local, state, federal and international law-enforcement authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of the document, material or other information;
(2) May receive documents, materials or information, including otherwise confidential and privileged documents, materials or information, from the national association of insurance commissioners and its affiliates and subsidiaries, and from regulatory and law-enforcement officers of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material or information; and
(3) May enter into agreements governing sharing and use of information including the furtherance of any regulatory or legal action brought as part of the recipient's official duties.
(d) No waiver of any applicable privilege or claim of confidentiality in the documents, materials or information shall occur as a result of disclosure to the commissioner under this section or as a result of sharing as authorized in subsection (c) of this section.
(e) Nothing in this section shall prohibit the commissioner from providing information to or receiving information from any local, state, federal or international law-enforcement authorities, including any prosecuting authority; or from complying with subpoenas or other lawful process in criminal actions; or as may otherwise be provided in this article.
(f) Nothing in this article may be construed to abrogate or limit the attorney-client or work product privileges existing at common law or established by statute or court rule.
§33-41-8. Creation of insurance fraud unit; purpose; duties; personnel qualifications.

(a) There is established the West Virginia insurance fraud unit within the office of the insurance commissioner of West Virginia. The commissioner may employ full-time supervisory, legal and investigative personnel for the unit, who shall be qualified by training and experience in the areas of detection, investigation or prosecution of fraud within and against the insurance industry to perform the duties of their positions. The director of the fraud unit shall be a full-time position and shall be appointed by the commissioner and serve at his or her will and pleasure. The commissioner shall provide office space, equipment, supplies, clerical and other staff that is necessary for the unit to carry out its duties and responsibilities under this article.
(b) The fraud unit may in its discretion:
(1) Initiate inquiries and conduct investigations when the unit has cause to believe violations of the provisions of this chapter or the provisions of article three, chapter sixty-one of this code relating to the business of insurance have been or are being committed;
(2) Review reports or complaints of alleged fraud related to the business of insurance activities from federal, state and local law-enforcement and regulatory agencies, persons engaged in the business of insurance and the general public to determine whether the reports require further investigation; and
(3) Conduct independent examinations of alleged fraudulent activity related to the business of insurance and undertake independent studies to determine the extent of fraudulent insurance acts.
(c) The insurance fraud unit may:
(1) Employ and train personnel to achieve the purposes of this article and to employ legal counsel, investigators, auditors and clerical support personnel and other personnel as the commissioner determines necessary from time to time to accomplish the purposes of this article;
(2) Inspect, copy or collect records and evidence;
(3) Serve subpoenas issued by grand juries and trial courts in criminal matters;
(4) Share records and evidence with federal, state or local law-enforcement or regulatory agencies, and enter into interagency agreements;
(5) Make criminal referrals to the county prosecutors;
(6) Conduct investigations outside this state. If the information the insurance fraud unit seeks to obtain is located outside this state, the person from whom the information is sought may make the information available to the insurance fraud unit to examine at the place where the information is located. The insurance fraud unit may designate representatives, including officials of the state in which the matter is located, to inspect the information on behalf of the insurance fraud unit, and the insurance fraud unit may respond to similar requests from officials of other states;
(7) The fraud unit may initiate investigations and participate in the development of, and if necessary, the prosecution of any health care provider, including a provider of rehabilitation services, suspected of fraudulent activity related to the business of insurance;
(8) Specific personnel, designated by the commissioner, shall be permitted to operate vehicles owned or leased for the state displaying Class A registration plates;
(9) Notwithstanding any provision of this code to the contrary, specific personnel designated by the commissioner may carry firearms in the course of their official duties after meeting specialized qualifications established by the governor's committee on crime, delinquency and correction, which shall include the successful completion of handgun training provided to law-enforcement officers by the West Virginia state police: Provided, That nothing in this subsection shall be construed to include any person designated by the commissioner as a law-enforcement officers as that term is defined by the provisions of section one, article twenty-nine, chapter thirty of this code; and
(10) The insurance fraud unit shall not be subject to the provisions of article nine-a, chapter six of this code and the investigations conducted by the insurance fraud unit and the materials placed in the files of the unit as a result of any such investigation are exempt from public disclosure under the provisions of chapter twenty-nine-b of this code.
§33-41-9. Other law-enforcement or regulatory authority.
This article does not:
(1) Preempt the authority or relieve the duty of other law-enforcement or regulatory agencies to investigate, examine and prosecute suspected violations of law;
(2) Prevent or prohibit a person from disclosing voluntarily information concerning insurance fraud to a law-enforcement or regulatory agency other than the insurance fraud unit; or
(3) Limit the powers granted elsewhere by the laws of this state to the commissioner or his or her agents to investigate and examine possible violations of law and to take appropriate action against violators of law.
§33-41-10. Rules.
The insurance commissioner shall, pursuant to the provisions of article three, chapter twenty- nine-a of this code, promulgate such legislative rules as are necessary or proper to carry out the purposes of this article.
§33-41-11. Fraudulent claims to insurance companies.
(a) Any person who knowingly and willfully and with intent to defraud submits a materially false statement in support of a claim for insurance benefits or payment pursuant to a policy of insurance or who conspires to do so is guilty of a crime and is subject to the penalties set forth in the provisions of this section.
(b) Any person who commits a violation of the provisions of subsection (a) of this section where the benefit sought exceeds one thousand dollars in value is guilty of a felony and, upon conviction thereof shall be confined in a correctional facility for not less than one nor more than ten years, fined not more than ten thousand dollars, or both or in the discretion of the circuit court confined in a county or regional jail for not more than one year and so fined.
(c) Any person who commits a violation of the provisions of subsection (a) of this section where the benefit sought is one thousand dollars or less in value, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than one year, fined not more than two thousand five hundred dollars, or both.
(d) Any person convicted of a violation of this section is subject to the restitution provisions of article eleven-a, chapter sixty-one of this code.
(e) The circuit court may award to the unit or other law enforcement agency investigating a violation of this section or other criminal offense related to the business of insurance its cost of investigation.
§33-41-12. Civil penalties; injunctive relief; employment disqualification.

A person or entity engaged in the business of insurance or a person or entity making a claim against an insurer who violates any provision of this article may be subject to the following:
(1) Where applicable, suspension or revocation of license or certificate of authority or a civil penalty of up to ten thousand dollars per violation, or where applicable, both. Suspension or revocation of license or certificate of authority or imposition of civil penalties may be pursuant to an order of the commissioner issued pursuant to the provisions of section thirteen, article two of this chapter. The commissioner's order may require a person found to be in violation of this article to make reasonable restitution to persons aggrieved by violations of this article. The commissioner may assess a person sanctioned pursuant to the provisions of this section the cost of investigation;
(2) Notwithstanding any other provision of law, a civil penalty imposed pursuant to the provisions of this section is mandatory and not subject to suspension;
(3) A person convicted of a felony violation law reasonably related to the business of insurance shall be disqualified from engaging in the business of insurance; and
(4) The commissioner may apply for a temporary or permanent injunction in any appropriate circuit court of this state seeking to enjoin and restrain a person from violating or continuing to violate the provisions of this article or rule promulgated under this article, notwithstanding the existence of other remedies at law. The circuit court shall have jurisdiction of the proceeding and have the power to make and enter an order or judgment awarding temporary or permanent injunctive relief restraining any person from violating or continuing to violate any provision of this article or rule promulgated under the article as in its judgment is proper."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4004 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto two new sections, designated § 33-2-15b and § 33-2-15c; to amend said code by adding thereto a new section entitled §33-2-20; to amend and reenact §33-6A-4 of said code; to amend said code by adding thereto three new sections, designated §33-6A-4a, §33-6A-4b and §33-6A-4c; to amend said code by adding thereto a new section, designated §33-22-2a; to amend said code by adding thereto a new section, designated §33-23-2a; to amend said code by adding thereto a new section, designated §33-24-4b; to amend said code by adding thereto a new section, designated §33-25-6a; to amend said code by adding thereto a new section, designated §33-25A-24b; to amend and reenact §33- 41-1, §33-41-2 and §33-41-3 of said code; and to amend said code by adding thereto nine new sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33-41-8, §33-41-9, §33-41-10, §33-41- 11 and §33-41-12, all relating to insurance generally; requiring the insurance commissioner to submit a report to the legislature on the impact of third party causes of actions on rates and availability and to make recommendations; authorizing the commissioner to request information from insurers; providing that certain information provided by insurers is not subject to disclosure; requiring the insurance commissioner to submit a report to the legislature on the office of the consumer advocate; requiring the commissioner to make recommendations regarding the office of the consumer advocate; permitting additional reasons for nonrenewal of automobile liability or physical damage policies; requiring the submission of withdrawal plans in certain instances; providing that a certain percentage of existing policies or any policies issued or renewed after the effective date of the bill may be nonrenewed by an insurer for any reason with proper notice to the insured; providing that a certain percentage of policies may be nonrenewed for underwriting reasons; allowing insurers to elect a method of nonrenewal; requiring renewal in certain instances when there are restrictive endorsements; authorizing the commissioner of insurance to act regarding withdrawal of insurers from the state; authorizing the commissioner to allow certain insurers to withdraw from the state; requiring insurers and the insurance commissioner to submit information regarding the impact of legislation on rates and availability; prevention and investigation of insurance fraud generally; subjecting farmers' mutual insurance companies, fraternal benefit societies, certain hospital, medical, dental and health services corporations, health care corporations, and health maintenance organizations to insurance fraud provisions; creating the West Virginia insurance fraud prevention act; legislative intent; defining terms; requiring fraud warning on forms; use of special assistant prosecutor; establishing an insurance fraud unit within agency of insurance commissioner; authorizing promulgation of rules; establishing powers and duties of the unit; establishing investigative powers and procedures; providing confidentiality of fraud unit records; immunity for providing information provided to law enforcement regarding fraud; exceptions; creating offense of insurance fraud; establishing penalties and fines; authorizing prosecution for insurance fraud; authorizing fraud unit attorneys to act as special prosecutors at request of county prosecutors; specifying duties of insurers; creating misdemeanor and felony offenses for the commission of fraudulent acts; creating civil penalties; granting authority to commissioner to administratively sanction regulated persons and insureds for violations of the article; and exceptions and immunities."
The bill, as amended by the Senate, and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 654), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ashley.
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4004) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4086, Including Gulf War and Afghanistan conflict veterans on the veterans' council.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4086 - "A Bill to amend and reenact §9A-1-2 and §9A-1-3 of the code of West Virginia, 1931, as amended, all relating to the veterans' council; adding Gulf War veterans and Afghanistan conflict or Iraqi conflict veterans to the veterans' council; and deleting outdated language."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 655), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4086) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4140, Requiring the ethics commission to establish a code of conduct for state administrative law judges.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES; DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES; CODE OF CONDUCT FOR ADMINISTRATIVE LAW JUDGES.
§6B-2-5a. Code of conduct for state administrative law judges.

(a) As used in this section, 'state administrative law judge' means any public employee, public officer or contractor functioning as a hearing officer, referee, trial examiner or other position in state government to whom the authority to conduct an administrative adjudication has been delegated by an agency or by statute and who exercises independent and impartial judgment in conducting hearings and in issuing recommended decisions or reports containing findings of fact and conclusions of law in accordance with applicable statutes or rules, but does not include any person whose conduct is subject to the code of judicial conduct promulgated by the West Virginia supreme court of appeals.
(b) In accordance with the provisions of chapter twenty-nine-a of this code, the commission, in consultation with the West Virginia state bar, shall propose rules for legislative approval establishing a code of conduct for state administrative law judges, which shall incorporate the following major provisions:
(1) A state administrative law judge shall uphold the integrity and independence of the administrative judiciary;
(2) A state administrative law judge shall avoid impropriety and the appearance of impropriety in all activities;
(3) A state administrative law judge shall perform the duties of the office impartially and diligently;
(4) A state administrative law judge shall regulate the judge's extra-judicial activities to minimize the risk of conflict with judicial duties;
(5) A state administrative law judge shall refrain from political activity inappropriate to the office; and
(6) Appropriate civil penalties and sanctions for violations.
In proposing the rules, the commission shall consider the model codes of judicial conduct for state administrative law judges as drafted by the National Association of Administrative Law Judges and the American Bar Association.
(c) The legislative rules shall provide that an individual agency may develop a code of conduct for its own administrative law judges, which shall supersede the general code of conduct established under this section, if the commission determines that it is in substantial compliance with the objectives of the code proposed by the commission. Upon granting a waiver to an agency, the commission shall retain a copy of the agency's code to be made available to the public.
(d) The commission shall propose the legislative rules by the first day of October, two thousand four, so that it may be considered by the Legislature at the regular session in the year two thousand five, and the commission may not promulgate an emergency rule on this matter in the interim."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 656), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4140) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 4247, Clarifying that the board of registration for professional engineers may assess civil penalties.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, section twenty-one, line three, following the word "probation" and the comma, by inserting the words "impose a".
On page four, section twenty-one, line fifty, before the word "In", by inserting "(b)" and relettering the remaining subsections.
On page five, section twenty-one, line seventy-two, following the word "penalty", by inserting the words "and related costs".
On page six, section twenty-two, line fourteen, by striking out the words "holding a certificate of authorization".
On page six, section twenty-two, lines fifteen and sixteen, by striking out the words "individual registrant or firm holding a certificate of authorization" and inserting in lieu thereof the words "person or firm".
On page six, section twenty-two, line nineteen, by striking out the word "corporation" and inserting in lieu thereof the word "firm".
On page seven, section twenty-two, lines twenty-nine and thirty, by striking out the words "An individual registrant, having a certificate of registration, or a firm, having a certificate of authorization"and the comma and inserting in lieu thereof the words "Any person or firm".
And,
On page seven, section twenty-two, lines thirty-eight and thirty-nine, by striking out the words "an individual registrant or firm holding a certificate of authorization" and inserting in lieu thereof the words "a person or firm".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 657), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4247) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 658), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4247) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4266, Requiring regulatory agencies of government, with exceptions, to study ways to expedite the issuance of licenses, permits and certificates.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, 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 §5F-4-1 and §5F-4-2, all to read as follows:
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 29. EXPEDITIOUS ISSUANCE OF LICENSES BY REGULATORY AGENCIES
.
§5-29-1. Purpose of article.
The purpose of this article is to provide for more expeditious and efficient issuance of permits, licenses or certificates by state regulatory agencies to business entities that are in good standing in the payment of taxes and other obligations to the state. For the purposes of this article, a business entity in good standing is one that:
(1) Has conducted commercial activities in this state for at least two years;
(2) Has paid any business tax, workers' compensation or unemployment compensation premiums due in the preceding two years; and,
(3) Has not engaged in activities for which any claim of a substantial violation of any statute or rule has occurred in the previous two years.
§5-29-2. Regulatory agencies to study expedited permits, licenses and certificates; reports to the Legislature.
(a) The following regulatory agencies shall study, review and develop a plan for expediting the issuance and renewal of permits, licenses and certificates for business entities in good standing:
(1) Division of labor;
(2) The office of miners' health, safety and training; (3) the division of forestry;
(4) The office of health facilities licensure and certification within the department of health and human resources; and
(5) The department of environmental protection excepting the oil and gas inspectors' examining board.
(b) On or before the first day of December, two thousand four, each agency to which this article applies shall file a report with the joint standing committee on government organization, setting forth the findings of its study, its plan to expedite the issuance and renewal of permits, licenses and certificates to business entities in good standing, and its recommendations for any legislation required to meet the purposes of this article."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4266 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-29-1 and §5-29-2, all relating to requiring certain state regulatory agencies to study ways and develop plans to expedite the issuance and renewal of licenses, permits and certificates to business entities in good standing; and requiring reports to the Legislature."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
On page one, by amending the enacting section to read as follows:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5-29-1 and §5-29-2, all to read as follows" followed by a colon.
The bill, as amended by the Senate, and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 659), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4266) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4303, Relating to Gramm-Leach-Bliley and reciprocity.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page three, by striking out everything after the article heading and inserting in lieu thereof the following:
"§33-3-33. Surcharge on fire and casualty insurance policies to benefit volunteer and part volunteer fire departments; special fund created; allocation of proceeds; effective date.
(a) For the purpose of providing additional revenue for volunteer fire departments, part- volunteer fire departments, certain retired teachers and the teachers retirement reserve fund, there is hereby authorized and imposed on and after the first day of July, one thousand nine hundred ninety- two, on the policyholder of any fire insurance policy or casualty insurance policy issued by any insurer, authorized or unauthorized, or by any risk retention group, a policy surcharge equal to one percent of the taxable premium for each such policy. For purposes of this section, casualty insurance may not include insurance on the life of a debtor pursuant to or in connection with a specific loan or other credit transaction or insurance on a debtor to provide indemnity for payments becoming due on a specific loan or other credit transaction while the debtor is disabled as defined in the policy. The policy surcharge may not be subject to premium taxes, agent commissions or any other assessment against premiums.
(b) The policy surcharge shall be collected and remitted to the commissioner by the insurer, or in the case of excess surplus lines coverage, by the resident excess lines broker surplus lines licensee, or if the policy is issued by a risk retention group, by the risk retention group. The amount required to be collected under this section shall be remitted to the commissioner on a quarterly basis 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 first day of March of the succeeding year.
(c) Any person failing or refusing to collect and remit to the commissioner any policy surcharge and whose surcharge payments are not postmarked by the due dates for quarterly filing is liable for a civil penalty of up to one hundred dollars for each day of delinquency, to be assessed by the commissioner. The commissioner may suspend the insurer, broker or risk retention group until all surcharge payments and penalties are remitted in full to the commissioner.
(d) One half of all money from the policy surcharge shall be collected by the commissioner who shall disburse the money received from the surcharge into a special account in the state treasury, designated the 'fire protection fund'. The net proceeds of this portion of the tax and the interest thereon, after appropriation by the Legislature, shall be distributed quarterly on the first day of the months of January, April, July and October to each volunteer fire company or department on an equal share basis by the state treasurer.
(1) Before each distribution date, the state fire marshal shall report to the state treasurer the names and addresses of all volunteer and part-volunteer fire companies and departments within the state which meet the eligibility requirements established in section eight-a, article fifteen, chapter eight of this code.
(2) The remaining fifty percent of the moneys collected shall be transferred to the teachers retirement system to be disbursed according to the provisions of sections twenty-six-j, twenty-six-k and twenty-six-l, article seven-a, chapter eighteen of this code. Any balance remaining after the disbursements authorized by this subdivision have been paid shall be paid by the teachers retirement system into the teachers retirement system reserve fund.
(e) The allocation, distribution and use of revenues provided in the fire protection fund are subject to the provisions of sections eight-a and eight-b, article fifteen, chapter eight of this code.
ARTICLE 12. INSURANCE PRODUCERS AND SOLICITORS.
§33-12-3. License required.
(a) A person may not sell, solicit or negotiate insurance covering subjects of insurance resident, located or to be performed in this state for any class or classes of insurance unless the person is licensed for that line of authority in accordance with this article.
(b) No person shall in West Virginia act as or hold himself or herself out to be an agent individual insurance producer or insurance agency or solicitor unless then licensed therefor pursuant to this article.
(c) No agent individual insurance producer, insurance agency or solicitor or any representative or employee thereof shall solicit or take application for, negotiate, procure or place for others any kind of insurance or receive or share, directly or indirectly, any commission or other valuable consideration arising from the sale, solicitation or negotiation of any insurance contract for which that person is not then licensed.
(d) No insurer shall accept any business from or pay any commission to any agent individual insurance producer who does not then hold an appointment as agent an individual insurance producer for such insurer pursuant to this article.
§33-12-8. Continuing education required.
The purpose of this provision is to provide continuing education under guidelines set up under the insurance commissioner's office, with the guidelines to be set up under the board of insurance agent education. Nothing in this section prohibits an individual from receiving commissions which have been vested and earned while that individual maintained an approved insurance agent's license.
(a) This section applies to individual insurance producers licensed to engage in the sale of the following types of insurance:
(1) Life. -- Life insurance coverage on human lives, including benefits of endowment and annuities, and may include benefits in the event of death or dismemberment by accident and benefits for disability income;
(2) Accident and health or sickness. -- Insurance coverage for sickness, bodily injury or accidental death and may include benefits for disability income;
(3) Property. -- Property insurance coverage for the direct or consequential loss or damage to property of every kind;
(4) Casualty. -- Insurance coverage against legal liability, including that for death, injury or disability or damage to real or personal property;
(5) Variable life and variable annuity products. -- Insurance coverage provided under variable life insurance contracts and variable annuities;
(6) Personal lines. -- Property and casualty insurance coverage sold to individuals and families for primarily noncommercial purposes; and
(7) Any other line of insurance permitted under state laws or regulations.
(b) This section does not apply to:
(1) Individual insurance producers holding limited line credit insurance licenses for any kind or kinds of insurance offered in connection with loans or other credit transactions or insurance for which an examination is not required by the commissioner, nor does it apply to any limited or restricted license as the commissioner may exempt; and
(2) Individual insurance producers selling credit life or credit accident and health insurance.
(c) (1) The board of insurance agent education as established by section seven of this article shall develop a program of continuing insurance education and submit the proposal for the approval of the commissioner on or before the thirty-first day of December of each year. No program may be approved by the commissioner that includes a requirement that any agent individual insurance producer complete more than twenty-four hours of continuing insurance education triennially biennially. No program may be approved by the commissioner that includes a requirement that any of the following individual insurance producers complete more than six hours of continuing insurance education biennially:
(A) Individual insurance producers who sell only preneed burial insurance contracts; and
(B) Individual insurance producers who engage solely in telemarketing insurance products by a scripted presentation which scripted presentation has been filed with and approved by the commissioner.
(C) The biennium mandatory continuing insurance education provisions of this section become effective on the reporting period beginning the first day of July, two thousand three six.
(2) The commissioner and the board, under standards established by the board, may approve any course or program of instruction developed or sponsored by an authorized insurer, accredited college or university, agents' association, insurance trade association or independent program of instruction that presents the criteria and the number of hours that the board and commissioner determine appropriate for the purpose of this section.
(d) Individual insurance producers licensed to sell insurance and who are not otherwise exempt shall satisfactorily complete the courses or programs of instructions the commissioner may prescribe.
(e) Every individual insurance producer subject to the continuing education requirements shall furnish, at intervals and on forms as may be prescribed by the commissioner, written certification listing the courses, programs or seminars of instruction successfully completed by the person. The certification shall be executed by, or on behalf of, the organization sponsoring the courses, programs or seminars of instruction.
(f) Any individual insurance producer failing to meet the requirements mandated in this section and who has not been granted an extension of time, with respect to the requirements, or who has submitted to the commissioner a false or fraudulent certificate of compliance shall have his or her license automatically suspended and no further license may be issued to the person for any kind or kinds of insurance until the person demonstrates to the satisfaction of the commissioner that he or she has complied with all of the requirements mandated by this section and all other applicable laws or rules.
(g) The commissioner shall notify the individual insurance producer of his or her suspension pursuant to subsection (f) of this section by certified mail, return receipt requested, to the last address on file with the commissioner pursuant to subsection (e), section nine of this article. Any individual insurance producer who has had a suspension order entered against him or her pursuant to this section may, within thirty calendar days of receipt of the order, file with the commissioner a request for a hearing for reconsideration of the matter.
(h) Any individual insurance producer who does not satisfactorily demonstrate compliance with this section and all other laws applicable thereto as of the last day of the biennium following his or her suspension shall have his or her license automatically canceled and is subject to the education and examination requirements of section five of this article.
(i) The commissioner is authorized to hire personnel and make reasonable expenditures considered necessary for purposes of establishing and maintaining a system of continuing education for insurers. The commissioner shall charge a fee of twenty-five dollars to continuing education providers for each continuing education course submitted for approval which shall be used to maintain the continuing education system. The commissioner may, at his or her discretion, designate an outside administrator to provide all of or part of the administrative duties of the continuing education system subject to direction and approval by the commissioner. The fees charged by the outside administrator shall be paid by the continuing education providers. In addition to fees charged by the outside administrator, the outside administrator shall collect and remit to the commissioner the 25-dollar course submission fee.
§33-12-10. Fees.
The fee for an agent's individual insurance producer's license shall be twenty-five dollars, as provided in section thirteen, article three of this chapter the fee for a solicitor's license shall be twenty-five dollars and the fee for an insurance agency producer license shall be two hundred dollars. The commissioner shall receive the following fees from insurance agents individual insurance producers, solicitors insurance agencies and excess line brokers and insurance agency producers: For letters of certification, five dollars; for letters of clearance, ten dollars; and for duplicate license, five dollars. All fees and moneys so collected shall be used for the purposes set forth in section thirteen, article three of this chapter.
§33-12-11. Countersignature.
No contract of insurance covering a subject of insurance, resident, located or to be performed in this state, shall be executed, issued or delivered by any insurer unless the contract, or, in the case of an interstate risk, a countersignature endorsement carrying full information as to the West Virginia risk, is signed or countersigned in writing by a licensed resident agent of the insurer, except that excess line insurance shall be countersigned by a duly licensed excess line broker. This section does not apply to: Reinsurance; credit insurance; any contract of insurance covering the rolling stock of any railroad or covering any vessel, aircraft or motor carrier used in interstate or foreign commerce or covering any liability or other risks incident to the ownership, maintenance or operation thereof; any contract of insurance covering any property in interstate or foreign commerce, or any liability or risks incident thereto. Countersignature of a duly licensed resident agent of the company originating a contract of insurance participated in by other companies as cosureties or coindemnitors shall satisfy all countersignature requirements in respect to such contract of insurance: Provided, That the countersignature requirements of this section shall no longer be required for any contract of insurance executed, issued or delivered on or after the thirty-first day of December, two thousand four.
§33-12-18. Individual insurance producer to deal only with licensed insurer or solicitor; appointment as individual insurance producer required.

(a) An individual insurance producer may not act as an agent of an insurer unless the individual insurance producer becomes an appointed agent of that insurer. An individual insurance producer who is not acting as an agent of an insurer is not required to become appointed.
(b) To appoint an individual insurance producer as its agent, the appointing insurer shall file, in a format approved by the insurance commissioner, a notice of appointment within fifteen days from the date the agency contract is executed or the first insurance application is submitted. An insurer may also elect to appoint an individual insurance producer to all or some insurers within the insurer's holding company system or group by the filing of a single appointment request.
(c) Upon receipt of the notice of appointment, the insurance commissioner shall verify within a reasonable time not to exceed thirty days that the individual insurance producer is eligible for appointment. If the individual insurance producer is determined to be ineligible for appointment, the insurance commissioner shall notify the insurer within five days of its determination.
(d) An insurer shall pay a nonrefundable appointment processing fee, in the amount and method of payment set forth in section thirteen, article three of this chapter, for each appointment notification submitted by the insurer to the commissioner.
(e) An insurer shall remit, in a manner prescribed by the insurance commissioner, a renewal appointment fee in the amount set forth in section thirteen, article three of this chapter no later than midnight the thirty-first day of May annually.
(f) Each insurer shall maintain a current list of individual insurance producers appointed to accept applications on behalf of the insurer. Each insurer shall make a list available to the commissioner upon reasonable request for purposes of conducting investigations and enforcing the provisions of this chapter.
(g) Insurance agencies licensed as producers are not subject to the provisions of this section.
§33-12-23. Payment of commissions.
(a) The entire commission payable by any insurer licensed to transact insurance in this state on any insurance policy shall be paid directly to the licensed resident agent individual insurance producer who countersigns the policy. The countersigning agent individual insurance producer may not pay any part of the commission to any person other than a licensed agent individual insurance producer: Provided, That the portion of such commission retained by the countersigning resident agent individual insurance producer may not be less than ten percent of the gross policy premium or fifty percent of the commission payable by the insurer as provided herein, whichever is the lesser amount. The term 'commission' as used herein shall include engineering fees, service fees or any other compensation incident to the issuance of a policy payable by or to any insurer or agent individual insurance producer: Provided, however, That the provisions and requirements of this subsection shall no longer be required for any insurance contract executed, issued or delivered after the thirty-first day of December, two thousand four.
(b) It shall be unlawful for any insurer or agent individual insurance producer to pay, and any person to accept, directly or indirectly, any commission except as provided in this section: Provided, That any licensed resident agent individual insurance producer may pay his or her commissions, or direct that his or her commissions be paid, to a business entity licensed as an insurance producer if:
(1) The business entity is engaged, through its licensed resident agents individual insurance producers, in conducting an insurance agency business with respect to the general public;
(2) If a partnership licensed as an insurance agency producer, each partner satisfies the commissioner that he or she meets the licensing qualifications as set forth in section six of this article;
(3) If a corporation licensed as an insurance agency producer, each officer, employee or any one or more stockholders owning, directly or indirectly, the controlling interest in the corporation satisfies the commissioner that he or she meets the licensing qualifications as set forth in section six of this article. The requirements set forth in this subdivision may do not apply to clerical employees or other employees not directly engaged in the selling or servicing of insurance;
(4) If a limited liability company licensed as an insurance agency producer, each officer, employee or any one or more members owning, directly or indirectly, the controlling interest in a limited liability company satisfies the commissioner that he or she meets the licensing qualifications as set forth in section six of this article. The requirements set forth in this subdivision shall do not apply to clerical employees or other employees not directly engaged in the selling or servicing of insurance; and
(5) If any other business entity licensed as an insurance agency producer, approval is granted by the commissioner.
(c) This section Subsections (a) and (b) of this section will do not apply to reinsurance or life insurance, or accident and sickness insurance; nor to excess line insurance procured in accordance with the provisions of article twelve-c of this chapter relating thereto; nor to limited line credit insurance, limited lines insurance, any contract of insurance covering the rolling stock of any railroad or covering any vessel, aircraft or motor carrier used in interstate or foreign commerce, any liability or other risks incident to the ownership, maintenance or operation thereof, any contract of insurance covering any property in interstate or foreign commerce or any liability or risks incident thereto.
(d) An insurance company or insurance producer may not pay a commission, service fee, brokerage or other valuable consideration to a person for selling, soliciting or negotiating insurance in this state if that person is required to be licensed under this article and is not so licensed.
(e) A person shall may not accept a commission, service fee, brokerage or other valuable consideration for selling, soliciting or negotiating insurance in this state if that person is required to be licensed under this article and is not so licensed.
(f) Renewal or other deferred commissions may be paid to a person for selling, soliciting or negotiating insurance in this state if the person was required to be licensed under this article at the time of the sale, solicitation or negotiation and was so licensed at that time.

§33-12-27. Payment of commissions under assigned risk plan.
An insurer participating in a plan for assignment of personal injury liability insurance or property damage liability insurance on owner's automobiles or operators, which plan has been approved by the commissioner, may pay a commission to a qualified agent individual insurance producer who is licensed to act as agent individual insurance producer for any insurer participating in the plan when the agent individual insurance producer is designated by the insured as the individual insurance producer of record under an automobile assigned risk plan pursuant to which a policy is issued under the plan and section eleven of this article shall not be is not applicable thereto.
§33-12-28. Service representative permit.
Individual nonresidents of West Virginia, employed on salary by an insurer, who enter the state to assist and advise resident agents individual insurance producers in the solicitation, negotiation, making or procuring of contracts of insurance on risks resident, located or to be performed in West Virginia shall obtain a service representative permit. The commissioner may, upon receipt of a properly prepared application, issue the permit without requiring a written examination therefor. On or after the first day of July, two thousand four, no service representative license will be issued which is not a renewal of an existing license. The fee for a service representative permit shall be twenty-five dollars and the permit shall expire at midnight on the thirty-first day of March next following the date of issuance. Issuance of a service representative permit may not entitle the holder to countersign policies. The representative may not in any manner sell, solicit, negotiate, make or procure insurance in this state except when in the actual company of the licensed resident agent individual producer whom he or she has been assigned to assist. All fees collected under this section shall be used for the purposes set forth in section thirteen, article three of this chapter.
§33-12-30. Termination of contractual relationship prohibited.
No insurance company may cancel, refuse to renew or otherwise terminate a written contractual relationship with any insurance agent individual insurance producer who has been employed or appointed pursuant to that written contract by an insurance company as a result of any analysis of a loss ratio resulting from claims paid under the provisions of an endorsement for uninsured and underinsured motor vehicle coverage issued pursuant to the provisions of section thirty-one, article six of this chapter, nor may any provision of that contract, including the provisions for compensation therein, operate to deter or discourage the insurance agent individual insurance producer from selling and writing endorsements for optional uninsured or underinsured motor vehicle coverage.
§33-12-31. Termination of contractual relationship; continuation of certain commissions; exceptions.
(a) In the event of a termination of a contractual relationship between a duly licensed insurance agent individual insurance producer and an automobile insurer of private passenger automobiles who is withdrawing from writing private passenger automobile insurance within the state, the insurer shall pay the agent individual insurance producer a commission, equal to the commission the agent individual insurance producer would have otherwise been entitled to under his or her contract with the insurer, for a period of two years from the date of termination of the contractual relationship for those renewal policies that cannot otherwise be canceled or nonrenewed pursuant to law, which policies the agent individual insurance producer continues to service. The insurer must continue the appointment of the agent individual insurance producer for the duration of time the agent individual insurance producer continues to service the business: Provided, That this requirement shall not obligate the withdrawing insurer to accept any new private passenger automobile insurance within the state.
(b) Subsection (a) of this section does not apply to an agent individual insurance producer who is an employee of the insurer or an agent individual insurance producer as defined by article twelve-a of this chapter or an agent individual insurance producer who by contractual agreement either represents only one insurer or group of affiliated insurers or who is required by contract to submit risks to a specified insurer or group of affiliated insurers prior to submitting them to others.
§33-12-32. Limited licenses for rental companies.
(a) Purpose. -- This section authorizes the insurance commissioner to issue limited licenses for the sale of automobile rental coverage.
(b) Definitions. -- The following words when used in this section shall have the following meanings:
(1) 'Authorized insurer' means an insurer that is licensed by the commissioner to transact insurance in West Virginia.
(2) 'Automobile rental coverage' or 'rental coverage' is insurance offered incidental to the rental of a vehicle as described in this section.
(3) 'Limited license' means the authorization by the commissioner for a person to sell rental coverage as agent an individual insurance producer of an authorized insurer pursuant to the provisions of this section without the necessity of agent individual insurance producer prelicensing education, examination or continuing education.
(4) 'Limited licensee' is an individual resident of this state or nonresident of this state who obtains a limited license.
(5) 'Rental agreement' means any written agreement setting forth the terms and conditions governing the use of a vehicle provided by the rental company for rental or lease.
(6) 'Rental company' means any person or entity in the business of providing private motor vehicles to the public under a rental agreement for a period not to exceed ninety days.
(7) 'Renter' means any person obtaining the use of a vehicle from a rental company under the terms of a rental agreement for a period not to exceed ninety days.
(8) 'Vehicle' or 'rental vehicle' means a motor vehicle of the private passenger type including passenger vans, minivans and sport utility vehicles and of the cargo type, including cargo vans, pick-up trucks and trucks with a gross vehicle weight of twenty-six thousand pounds or less and which do not require the operator to possess a commercial driver's license.
(9) 'Rental period' means the term of the rental agreement.
(c) The commissioner may issue a limited license for the sale of automobile rental coverage to an employee of a rental company, who has satisfied the requirements of this section.
(d) As a prerequisite for issuance of a limited license under this section, there shall be filed with the commissioner a written application for a limited license, signed by the applicant, in a form or forms and supplements thereto and containing any information as the commissioner may prescribe. The limited licensee shall pay to the insurance commissioner an annual fee of twenty-five dollars.
(e) The limited licensee shall be appointed by the licensed insurer or insurers for the sale of automobile rental coverage. The employer of the limited licensee shall maintain at each insurance sales location a list of the names and addresses of employees which are selling insurance at the location.
(f) In the event that any provision of this section or applicable provisions of the insurance code is violated by a limited licensee or other employees operating under his or her direction, the commissioner may:
(1) After notice and a hearing, revoke or suspend a limited license issued under this section in accordance with the provisions of section thirteen, article two of this chapter; or
(2) After notice and hearing, impose any other penalties, including suspending the transaction of insurance at specific locations where applicable violations of the insurance code have occurred, as the commissioner considers to be necessary or convenient to carry out the purposes of this section.
(g) Any limited license issued under this section shall also authorize any other employee working for the same employer and at the same location as the limited licensee to act individually, on behalf and under the supervision of the limited licensee with respect to the kinds of coverage authorized in this section. In order to sell insurance products under this section at least one employee who has obtained a limited license must be present at each location where insurance is sold. All other employees working at that location may offer or sell insurance consistent with this section without obtaining a limited license. However, the limited licensee shall directly supervise and be responsible for the actions of all other employees at that location related to the offer or sale of insurance as authorized by this section. No limited licensee under this section shall may advertise, represent or otherwise hold himself or herself or any other employees out as licensed insurers, insurance agents or insurance brokers or individual insurance producers.
(h) No automobile rental coverage insurance may be issued by a limited licensee pursuant to this section unless:
(1) The rental period of the rental agreement does not exceed ninety consecutive days; and
(2) At every rental location where rental agreements are executed, brochures or other written material are readily available to the prospective renter that:
(A) Summarize, clearly and correctly, the material terms of coverage offered to renters, including the identity of the insurer;
(B) Disclose that the coverage offered by the rental company may provide a duplication of coverage provided by a renter's personal automobile insurance policy, homeowner's insurance policy, personal liability insurance policy or other source of coverage;
(C) State that the purchase by the renter of the kinds of coverage specified in this section is not required in order to rent a vehicle; and
(D) Describe the process for filing a claim in the event the renter elects to purchase coverage. and in the event of a claim
(3) Any evidence of coverage on the face of the rental agreement is disclosed to every renter who elects to purchase the coverage.
(4) The limited licensee to sell automobile rental coverage may offer or sell insurance only in connection with and incidental to the rental of vehicles, whether at the rental office or by preselection of coverage in a master, corporate, group rental or individual agreements in any of the following general categories;:
(A) Personal accident insurance covering the risks of travel, including, but not limited to, accident and health insurance that provides coverage, as applicable, to renters and other rental vehicle occupants for accidental death or dismemberment and reimbursement for medical expenses resulting from an accident that occurs during the rental period;
(B) Liability insurance (which may include uninsured and underinsured motorist coverage whether offered separately or in combination with other liability insurance) that provides coverage, as applicable, to renters and other authorized drivers of rental vehicles for liability arising from the operation of the rental vehicle;
(C) Personal effects insurance that provides coverage, applicable to renters and other vehicle occupants of the loss of, or damage to, personal effects that occurs during the rental period;
(D) Roadside assistance and emergency sickness protection programs; and
(E) Any other travel or auto-related coverage that a rental company offers in connection with and incidental to the rental of vehicles.
(i) Each rental company for which an employee has received a limited license pursuant to this section shall conduct a training program in which its employees being trained shall receive basic instruction about the kinds of coverage specified in this section and offered for purchase by prospective renters of rental vehicles: Provided, That limited licensees and employees working hereunder are not subject to the agent prelicensing education, examination or continuing education requirements of this article.
(j) Notwithstanding any other provision of this section or any rule adopted by the commissioner, neither the rental company, the limited licensee, nor the other employees working with the limited licensee at the rental company shall be required to treat moneys collected from renters purchasing such insurance when renting vehicles as funds received in a fiduciary capacity, provided that the charges for coverage shall be itemized and be ancillary to a rental transaction. The sale of insurance not in conjunction with a rental transaction may not be is not permitted.
ARTICLE 12C. SURPLUS LINE.
§33-12C-24. Countersignature requirements.
Surplus lines insurance shall be countersigned by a duly licensed resident surplus lines licensee: Provided, That the countersignature requirements imposed by this section shall no longer be required for any surplus line of insurance executed, issued or delivered after the thirty-first day of December, two thousand four.
ARTICLE 37. MANAGING GENERAL AGENTS.
§33-37-1. Definitions.
As used in this Article For the purposes of this article:
(a) 'Actuary' means a person who is a member in good standing of the American academy of actuaries.
(b) 'Insurer' means any person, firm, association or corporation engaged as indemnitor, surety or contractor in the business of entering into contracts of insurance or of annuities as limited to:
(1) Any insurer who is doing an insurance business, or has transacted insurance in this state, and against whom claims arising from that transaction may exist now or in the future:
(2) This includes, but is not limited to, any domestic insurer as defined in section six, article one of this chapter and any foreign insurer as defined in section seven, article one of this chapter, including any stock insurer, mutual insurer, reciprocal insurer, farmers' mutual fire insurance company, fraternal benefit society, hospital service corporation, medical service corporation, dental service corporation, health service corporation, health care corporation, health maintenance organization, captive insurance company or risk retention group.
(c) 'Managing general agent' means any person, firm, association or corporation who negotiates and binds ceding reinsurance contracts on behalf of an insurer or manages all or part of the insurance business of an insurer, including the management of a separate division, department or underwriting office, and acts as an agent for such insurer whether known as a managing general agent, manager or other similar term, who, with or without the authority, either separately or together with affiliates, produces, directly or indirectly, and underwrites an amount of gross direct written premium equal to or greater than five percent of the policyholder surplus as reported in the last annual statement of the insurer in any one quarter or year, together with one or more of the following:
(1) Adjusts or pays claims in excess of an amount determined by the commissioner; or
(2) Negotiates reinsurance on behalf of the insurer.
Notwithstanding the preceding provision, the following persons are not to be considered as managing general agents for the purposes of this article:
(1) An employee of the insurer;
(2) A United States manager of the United States branch of an alien insurer;
(3) An underwriting manager that, pursuant to contract, manages all or part of the insurance operations of the insurer, is under common control with the insurer, is subject to the holding company regulatory act, and whose compensation is not based on the volume of premiums written without regard to the profitability of the business written;
(4) The attorney-in-fact authorized by and acting for the subscribers of a reciprocal insurer or inter-insurance exchange under powers of attorney
(b) 'Home state' means the District of Columbia or any state or territory of the United States in which a managing general agent is incorporated or maintains its principal place of business. If neither the state in which the managing general agent is incorporated, nor the state in which the managing general agent maintains its principal place of business has adopted this article or a substantially similar law governing managing general agents, the managing general agent may declare another state in which it conducts business to be its 'home state'.
(c) 'Insurer' means any person, firm, association or corporation duly licensed in this state as an insurance company pursuant to article three of this chapter. Insurer includes, but is not limited to, any domestic insurer as defined in section six, article one of this chapter and any foreign insurer as defined in section seven of said article, including any stock insurer, mutual insurer, reciprocal insurer, farmers' mutual fire insurance company, fraternal benefit society, hospital service corporation, medical service corporation, dental service corporation, health service corporation, health care corporation, health maintenance organization, captive insurance company or risk retention group.
(d) 'Managing general agent' (MGA) means any person, firm, association or corporation who:
(1) Manages all or part of the insurance business of an insurer (including the management of a separate division, department or underwriting office); and
(2) Acts as an agent for such insurer whether known as a managing general agent, manager or other similar term who, with or without the authority, either separately or together with affiliates, produces, directly or indirectly, and underwrites an amount of gross direct written premium equal to or more than five percent of the policyholder surplus as reported in the last annual statement of the insurer in any one quarter or year together with one or more of the following activities related to the business produced:
(A) Adjusts or pays claims in excess of ten thousand dollars per claim; or
(B) Negotiates reinsurance on behalf of the insurer.
(3) Notwithstanding the above, the following persons are not considered managing general agents for the purposes of this article:
(A) An employee of the insurer;
(B) A U. S. manager of the United States branch of an alien insurer;
(C) An underwriting manager which, pursuant to contract, manages all or part of the insurance operations of the insurer, is under common control with the insurer, subject to the holding company regulatory act, and whose compensation is not based on the volume of premiums written; and
(D) The attorney-in-fact authorized by and acting for the subscribers of a reciprocal insurer or interinsurance exchange under powers of attorney.
(e) 'Person' means an individual or a business entity.
(d) (f) 'Underwrite' means the authority to accept or reject risk on behalf of the insurer. as authorized by the insurer
§33-37-2. Licensure.
(a) Any person, or a person working for a firm, association or corporation, shall not act in the capacity of a managing general agent with respect to risks located in this state for an insurer licensed in this state unless such person is licensed and appointed as an agent of the insurer in this state.
(b) Any person, or a person working for a firm, association or corporation, shall not act in the capacity of a managing general agent representing an insurer domiciled in this state with respect to risks located outside this state unless such person is licensed and appointed as an agent of the insurer in this state. The license held by such person may be a nonresident license.
(c) The commissioner may require a bond in an amount acceptable to him or her for the protection of the insurer.
(d) The commissioner may require the managing general agent to maintain an errors and omissions policy of liability insurance.
(a) No domestic insurer may permit a person to act, and no person may act, in the capacity of a managing general agent for an insurer domiciled in this state unless such person is licensed in this state to act as a managing general agent.
(b) No foreign or alien insurer may permit a person to act, and no person may act, in the capacity of a managing general agent representing an insurer unless the person is licensed in this state to act as a managing general agent.
(c) No person may act in the capacity of a managing general agent with respect to risks located in this state for an insurer licensed in this state unless the person is a licensed insurance producer in this state.
(d) The commissioner may license as a managing general agent any individual or business entity that has complied with the requirements of this article and any regulations concerning licensure that may be promulgated by the commissioner. The commissioner may refuse to issue a license, subject to the right of the applicant to demand a hearing on the application, if the commissioner believes the applicant, any person named on the application or any member, principal, officer or director of the applicant is not trustworthy or competent to act as a managing general agent, or that any of the foregoing has given cause for revocation or suspension of such license, or has failed to comply with any prerequisite for issuance of such license.
(e) Any person seeking a license pursuant to subsection (d) of this section shall apply for the license in a form acceptable to the commissioner and shall pay to the commissioner a nonrefundable application fee in an amount prescribed by the commissioner. The application fee shall be not less than five hundred dollars nor more than one thousand dollars. Every licensed managing general agent shall pay to the commissioner a nonrefundable annual renewal fee in an amount prescribed by the commissioner. The renewal fee shall be not less than two hundred dollars nor more than one thousand dollars. Between the first day of May and the first day of June of the renewal year, each licensed managing general agent shall submit to the commissioner the renewal fee and a renewal application form as prescribed by the commissioner. All fees shall be collected by the commissioner, paid into the state treasury and placed to the credit of the special revenue account provided for in section thirteen, article three of this chapter. Each license issued pursuant to this article expires at midnight on the thirtieth day of June next following the day of issuance. (f) The commissioner may require a bond in an amount acceptable to him or her for the protection of the insurer.
(g) The commissioner may require a managing general agent to maintain an errors and omissions policy that is acceptable to the commissioner.
(h) Except where prohibited by state or federal law, by submitting an application for license, the applicant shall be deemed to have appointed the secretary of state as the agent for service of process on the applicant in any action or proceeding arising in this state out of or in connection with the exercise of the license. The appointment of the secretary of state as agent for service of process shall be irrevocable during the period within which a cause of action against the applicant may arise out of transactions with respect to subjects of insurance in this state. Service of process on the secretary of state shall conform to the provisions of section twelve, article four of this chapter.
(i) A person seeking licensure shall provide evidence, in a form acceptable to the commissioner, of its appointments or contracts as a managing general agent. The commissioner may refuse to renew the license of a person that has not been appointed by, or otherwise authorized to act for, an insurer as a managing general agent.
§33-37-3. Required contract provisions.
Any No person, or a person working for a firm, association or corporation acting in the capacity of a managing general agent shall not may place business with an insurer unless there is in force a written contract between the parties which sets forth the responsibilities of each party and whereby where both parties share responsibility for a particular function, which specifies the division of such responsibilities and which contains the following minimum provisions:
(a) The insurer may terminate the contract for cause upon written notice to the managing general agent. The insurer may suspend the underwriting authority of the managing general agent during the pendency of any dispute regarding the cause for termination.
(b) The managing general agent will render accounts to the insurer detailing all transactions and remit all funds due under the contract to the insurer on not less than a monthly basis.
(c) All funds collected for the account of an insurer will be held by the managing general agent in a fiduciary capacity in a bank which is a member of the federal reserve system with an FDIC- insured financial institution. This account shall be used for all payments on behalf of the insurer. The managing general agent may retain no more than three months estimated claims payments and allocated loss adjustment expenses.
(d) The managing general agent shall maintain separate records of business that he or she writes. The insurer shall have access to and the right to copy all accounts and records related to its business, in a form usable by it. The commissioner shall have access to all books, bank accounts and records of the managing general agent in a form usable to him or her.
(d) Separate records of business written by the managing general agent shall be maintained. The insurer shall have access and right to copy all accounts and records related to its business in a form usable by the insurer. The commissioner shall have access to all books, bank accounts and records of the managing general agent in a form usable to the commissioner.
(e) The contract may not be assigned, in whole or part, by the managing general agent.
(f) The contract shall contain appropriate underwriting guidelines including:
(1) The maximum annual premium volume;
(2) The basis of the rates to be charged;
(3) The types of risks which may be written;
(4) Maximum limits of liability;
(5) Applicable exclusions;
(6) Territorial limitations;
(7) Policy cancellation provisions; and
(8) The maximum policy period.
The insurer shall have the right to cancel or nonrenew any policy of insurance subject to the applicable laws and rules concerning the cancellation and nonrenewal of insurance policies.
(g) If the contract permits the managing general agent to settle claims on behalf of the insurer:
(1) All claims must be reported to the company in a timely manner; and
(2) A copy of the claim file will be sent to the insurer at its request or as soon as it becomes known that the claim:
(A) Has the potential to exceed an amount determined by the commissioner or exceeds the limit set by the company, whichever is less;
(B) Involves a coverage dispute;
(C) May exceed the managing general agents claims settlement authority;
(D) Is open for more than six months; or
(E) Is closed by payment of an amount set by the commissioner or an amount set by the company, whichever is less.
(3) All claims files will be the joint property of the insurer and managing general agent. However, upon an order of liquidation of the insurer, such files shall become the sole property of the insurer or its estate. The managing general agent shall have reasonable access to and the right to copy the files on a timely basis.
(4) Any settlement authority granted to the managing general agent may be terminated for cause upon the insurer's written notice to the managing general agent or upon the termination of the contract. The insurer may suspend the settlement authority during the pendency of any dispute regarding the cause for termination.
(h) If Where electronic claims files are in existence, the contract must address the timely transmission of the data
contained in such files.
(i) If the contract provides for a sharing of interim profits by the managing general agent and the managing general agent has the authority to determine the amount of the interim profits by establishing loss reserves or controlling claim payments, or in any other manner, interim profits will not be paid to the managing general agent until one year after they are earned for property insurance business and five years after they are earned on casualty business and not until the profits have been verified pursuant to section four of this article.
(j) The managing general agent may use only advertising material pertaining to the business issued by an insurer that has been approved in writing by the insurer in advance of its use.
(j) (k) The managing general agent shall may not:
(1) Bind reinsurance or retrocessions on behalf of the insurer, except that the managing general agent may bind facultative reinsurance contracts pursuant to obligatory facultative agreements if the contract with the insurer contains reinsurance underwriting guidelines including, for both reinsurance assumed and ceded, a list of reinsurers with which such automatic agreements are in effect, the coverages and amounts or percentages that may be reinsured and commission schedules;
(2) Commit the insurer to participate in insurance or reinsurance syndicates;
(3) Appoint any agent individual insurance producer without assuring that the agent individual insurance producer is lawfully licensed to transact the type of insurance for which he or she is appointed;
(4) Without prior approval of the insurer, pay or commit the insurer to pay a claim over a specified amount, net of reinsurance, which shall not exceed one percent of the insurer's policyholder's surplus as of the thirty-first day of December of the last completed calendar year;
(5) Collect any payment from a reinsurer or commit the insurer to any claim settlement with a reinsurer without prior approval of the insurer. If prior approval is given, a report must be promptly forwarded to the insurer;
(6) Permit its subproducer to serve on the insurer's board of directors;
(6) Except as provided in subsection (g), section four of this article, permit its subproducer to serve on the insurer's board of directors;
(7) Jointly employ an individual who is employed with the insurer; or
(8) Appoint a sub managing general agent.
§33-37-4. Duties of insurers.
(a) The insurer shall have on file an independent financial examination, in a form acceptable to the commissioner, of each managing general agent with which it has done business.
(a) The insurer shall have on file an independent audited financial statement or reports for the two most recent fiscal years that provide that the managing general agent has a positive net worth. If the managing general agent has been in existence for less than two fiscal years the managing general agent shall include financial statements or reports, certified by an officer of the managing general agent and prepared in accordance with generally accepted accounting procedures, for any completed fiscal years, and for any month during the current fiscal year for which financial statements or reports have been completed. An audited financial/annual report prepared on a consolidated basis shall include a columnar consolidating or combining worksheet that shall be filed with the report and include the following:
(1) Amounts shown on the consolidated audited financial report shall be shown on the worksheet;
(2) Amounts for each entity shall be stated separately; and
(3) Explanations of consolidating and eliminating entries shall be included.
(b) If a managing general agent establishes loss reserves, the insurer shall annually obtain the opinion of an actuary in a form consistent with the requirements for actuarial certifications as imposed upon the insurer by statute or rule of the commissioner attesting to the adequacy of loss reserves established for losses incurred and outstanding on business produced by the managing general agent. This required actuary's opinion is in addition to any other required loss reserve certification.
(c) The insurer shall at least semiannually conduct an on-site review of the underwriting and claims processing operations of the managing general agent.
(d) Binding authority for all reinsurance contracts or participation in insurance or reinsurance syndicates shall rest with an officer of the insurer who shall not be affiliated with the managing general agent.
(e) Within thirty days of entering into or terminating a contract with a managing general agent, the insurer shall provide written notification of such appointment or termination to the commissioner. A notice of appointment of a managing general agent shall include a statement of duties which such agent is expected to perform on behalf of the insurer, the lines of insurance for which such agent is to be authorized to act, and any other information the commissioner may request.
(e) Within thirty days of entering into or terminating a contract with a managing general agent, the insurer shall provide written notification to the commissioner. Notices of entering into a contract with a managing general agent shall include a statement of duties which the applicant is expected to perform on behalf of the insurer, the lines of insurance for which the applicant is to be authorized to act and any other information the commissioner may request.
(f) An insurer shall review its books and records each quarter to determine if any producer as defined by subsection (c), section one of this article has become, by operation of that subsection (d) of said section, a managing general agent as defined therein in that subsection. If the insurer determines that a producer has become a managing general agent as defined in subsection (c), section one pursuant to the above, the insurer shall promptly notify the producer and the commissioner of such determination and the insurer and producer must fully comply with the provisions of this article within thirty days thereafter.
(g) An insurer shall not appoint to its board of directors an officer, director, employee, subproducer or controlling shareholder of its managing general agents. This subsection shall does not apply to relationships governed by the Insurance Holding Company Systems Regulatory Act or the Business Transacted with Producer Controlled Property/Casualty Insurer Act.
§33-37-6. Penalties and liabilities.
(a) If the commissioner finds after a hearing conducted in accordance with section thirteen, article two of this chapter that any person has violated any provision of this article, the commissioner may order:
(a) If the commissioner finds that the managing general agent or any other person has violated any provision of this article, or any rule or order promulgated thereunder, after a hearing conducted in accordance with section thirteen, article two of this chapter, the commissioner may order:
(1) For each separate violation, a penalty in an amount of one thousand dollars not exceeding ten thousand dollars;
(2) Revocation or suspension of the producer's license; and
(3) Reimbursement by the managing general agent of the insurer, the rehabilitator or liquidator of the insurer for any losses incurred by the insurer and its policyholders and creditors caused by a violation of this article committed by the managing general agent; and
(4) If it was found that because of any such violation that the insurer has suffered any loss or damage, the commissioner may maintain a civil action brought by or on behalf of the insurer and its policyholders and creditors for recovery of compensatory damages for the benefit of the insurer and its policyholders and creditors or other appropriate relief.
(b) If an order of rehabilitation or liquidation of the insurer has been entered pursuant to article ten of this chapter and the receiver appointed under that order determines that the managing general agent or any other person has not materially complied with this article, or any rule or order promulgated thereunder, and the insurer suffered any loss or damage therefrom, the receiver may maintain a civil action for recovery of damages or other appropriate sanctions for the benefit of the insurer.
(c) Nothing contained in this section shall affect the right of the commissioner to impose any other penalties provided for in this chapter.
(d) Nothing contained in this article is intended to or shall in any manner limit or restrict the rights of policyholders, claimants and creditors.
(b) (e) The decision, determination or order of the commissioner pursuant to subsection (a) of this section shall be subject to judicial review pursuant to section fourteen, article two of this chapter.
§33-37-7. Rules and regulations.
The commissioner is thereby authorized to promulgate reasonable rules for the implementation and administration of the provisions of this article pursuant to chapter twenty-nine-a of this code.
§33-37-8. Effective date.
This article shall take effect on the first day of July, two thousand four. No insurer may continue to use the services of a managing general agent on and after the first day of July, two thousand four, unless such utilization is except in compliance with this article."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 660), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4303) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4388, Creating new misdemeanor and felony offenses and associated penalties related to the possession, creation and use of original, duplicated, altered or counterfeit retail sales receipts and universal product code labels with the intent to defraud.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-56. Possession of bogus receipts or universal product codes with intent to defraud; penalties.
Any person who, with intent to defraud, possesses fifteen or more fraudulently obtained or counterfeit sales receipts or fraudulently obtained or counterfeit universal product codes, or possesses a device the purpose of which is to manufacture counterfeit retail sales receipts or counterfeit universal product code labels, is guilty of a felony and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than five thousand dollars or imprisoned in a state correctional facility not less than one year nor more than three years, or both."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4388 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3-56, relating to creating the criminal offense of possession of fraudulently obtained or counterfeit sales receipts or universal product codes or devices to produce counterfeit sales receipts or universal product codes with the intent to cheat or defraud; creating new felony offense for such illegal activity; and establishing penalties."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 661), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4388) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4516, Relating to the state conservation committee and conservation districts.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
"On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 21A. CONSERVATION DISTRICTS.
§19-21A-4. State conservation committee; continuation.
(a) The state conservation committee is continued. It is to serve serves as an agency of the state and is to perform the functions conferred upon it in this article. The committee shall consist of nine consists of the following ten members:
(1) Four citizen members;
(2) The following shall serve ex officio as members: of the committee
(A) The director of the state cooperative extension service;
(B) The director of the state agricultural and forestry experiment station;
(C) the director The secretary of the division department of environmental protection;
(D) The state commissioner of agriculture, who shall be chairman is the chairperson of the committee; and
(E) The director of the division of forestry; and
(F) The president of the West Virginia association of conservation districts.
(b) The governor shall appoint, by and with the consent of the Senate, as additional members of the committee four representative citizens members. Members will shall be appointed for four-year terms, which are staggered in accordance with the initial appointments under prior enactment of this act section. In the event of a vacancy, the appointment shall be is for the unexpired term.
(c) The committee may invite the secretary of agriculture of the United States of America to appoint one person to serve with the committee as an advisory member.
(d) The committee shall keep a record of its official actions, shall adopt a seal, which seal shall be judicially noticed, and may perform such those acts, hold such public hearings and promulgate such adopt or propose for legislative approval rules as may be necessary for the execution of its functions under this article.
(b) (e) The state conservation committee may employ an administrative officer, and such technical experts and such other agents and employees, permanent and temporary, as it may require requires. and The administrative officer and support staff shall be known as the West Virginia conservation agency. The committee shall determine their qualifications, duties and compensation. The committee may call upon the attorney general of the state for such legal services as it may require requires. It shall have authority to may delegate to its chairman chairperson, to one or more of its members, or to one or more agents or employees, such powers and duties as it may deem considers proper. The committee is empowered to may secure necessary and suitable office accommodations and the necessary supplies and equipment. Upon request of the committee, for the purpose of carrying out any of its functions, the supervising officer of any state agency or of any state institution of learning shall, insofar as may be possible, under available appropriations and having due regard to the needs of the agency to which the request is directed, assign or detail to the committee, members of the staff or personnel of such the agency or institution of learning and make such special reports, surveys or studies as required by the committee may request.
(c) (f) A member of the committee shall hold holds office so long as he or she shall retain retains the office by virtue of which he or she shall be is serving on the committee. A majority of the committee shall constitute is a quorum and the concurrence of a majority in any matter within their duties shall be is required for its determination. The chairman chairperson and members of the committee shall may receive no compensation for their services on the committee, but shall be are entitled to reimbursement of expenses, including traveling expenses necessarily incurred in the discharge of their duties on the committee. The committee shall:
(1) provide for Require the execution of surety bonds for all employees and officers who shall be are entrusted with funds or property;
(2) shall Provide for the keeping of a full and accurate public record of all proceedings and of all resolutions, rules and orders issued or adopted; and
(3) shall Provide for an annual audit of the accounts of receipts and disbursements.
(d) (g) In addition to the other duties and powers hereinafter conferred upon the state conservation committee, it shall have the following duties and powers may:
(1) To offer such Offer appropriate assistance as may be appropriate to the supervisors of conservation districts, organized as provided hereinafter in this article, in the carrying out of any of their powers and programs;
(2) To keep Keep the supervisors of each of the several districts, organized under the provisions of this article, informed of the activities and experience of all other districts organized hereunder under this article and to facilitate an interchange of advice and experience between such the districts and cooperation between them;
(3) To coordinate Coordinate the programs of the several conservation districts organized hereunder so far as this may be done by advice and consultation;
(4) To secure Secure the cooperation and assistance of the United States and any of its agencies and of agencies of this state in the work of such the districts;
(5) To disseminate Disseminate information throughout the state concerning the activities and programs of the conservation districts organized hereunder and to encourage the formation of such the districts in areas where their organization is desirable;
(6) To accept Accept and receive donations, gifts, contributions, grants and appropriations in money, services, materials or otherwise from the United States or any of its agencies, from the state of West Virginia or from other sources and to use or expend such the money, services, materials or other contributions in carrying out the policy and provisions of this article, including the right to allocate such the money, services or materials in part to the various conservation districts created by this article in order to assist them in carrying on their operations; and
(7) To obtain Obtain options upon and to acquire by purchase, exchange, lease, gift, grant, bequest, devise or otherwise any property, real or personal, or rights or interests therein to in the property; maintain, administer, operate and improve any properties acquired; to receive and retain income from such the property and to expend such the income as required for operation, maintenance, administration or improvement of such the properties or in otherwise carrying out the purposes and provisions of this article; and to sell, lease or otherwise dispose of any of its property or interests therein in the property in furtherance of the purposes and the provisions of this article. Money received from the sale of land acquired in the small watershed program shall be deposited in the special account of the state conservation committee and expended as herein provided in this article.
§19-21A-7. Supervisors to constitute governing body of district; qualifications and terms of supervisors; powers and duties.

(a) The governing body of the district shall consist consists of the supervisors, appointed or elected, as provided in this article. The two supervisors appointed by the committee shall be persons who are by training and experience qualified to perform the specialized skilled services which will be are required of them in the performance of their duties under this section and must shall be legal residents and landowners of in the district.
(b) The supervisors shall designate a chairman chairperson and may, from time to time, change the designation. The term of office of each supervisor is three years. A supervisor shall hold holds office until his or her successor has been elected or appointed. In case a new county or portion of a county is added to a district, the committee may appoint a supervisor to represent it until such time as the next regular election of supervisors for the district takes place. In case If a vacancy occurs among the elected supervisors of a district, the committee shall appoint a successor from the same county to fill the unexpired term. The appointment shall be made from a name or list of names submitted by local farm organizations and agencies.
(c) When any county or portion of a county lying within the boundaries of a district has in effect eight hundred or more signed agreements of cooperation with occupiers of land located within the county, then at the next regular election of supervisors the land occupiers within the county or portion of the county are entitled to elect two supervisors to represent the county instead of one for the term and in the manner prescribed in this section. A majority of the supervisors constitutes a quorum and the concurrence of a majority in any matter within their duties shall be is required for its determination.
(d) A supervisor is entitled to expenses and a per diem not to exceed twenty thirty dollars when engaged in the performance of his or her duties.
(e) The supervisors may, with the approval of the state committee, employ a secretary, technical experts and any other officers, agents and employees, permanent and temporary, as they may require and shall determine their qualifications, duties and compensation. The supervisors may delegate to their chairman chairperson, to one or more supervisors or to one or more agents, or employees, those administrative powers and duties they consider proper. The supervisors shall furnish to the state conservation committee, upon request, copies of the ordinances, rules, regulations, orders, contracts, forms and other documents they adopt or employ and any other information concerning their activities as it may require required in the performance of its state conservation committee's duties under this article.
(f) The supervisors shall: provide for
(1) Require
the execution of surety bonds for all employees and officers who shall be are entrusted with funds or property;
(2) shall Provide for the keeping of a full and accurate record of all proceedings and of all resolutions, regulations rules and orders issued or adopted; and
(3) shall Provide for an annual audit of the accounts of receipts and disbursements.
(g) Any supervisor may be removed by the state conservation committee upon notice and hearing for neglect of duty or malfeasance in office, but for no other reason.
(h) The supervisors may invite the legislative body of any municipality or county located near the territory comprised within the district to designate a representative to advise and consult with the supervisors of a district on all questions of program and policy which may affect the property, water supply or other interests of the municipality or county."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4516 - "A Bill to amend and reenact §19-21A-4 and §19-21A-7 of the code of West Virginia, 1931, as amended, all relating to the state conservation committee and conservation districts; adding a member to the state conservation committee; designating the administrative officer and the support staff as the West Virginia conservation agency; and increasing the per diem rate for conservation supervisors."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 662), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4516) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4553, Relating to standards for awarding certificates to teach in the public schools.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL DEVELOPMENT.
§18A-3-1. Teacher preparation programs; program approval and standards; authority to issue teaching certificates.

(a) The education of professional educators in the state shall be under the general direction and control of the state board of education after consultation with the secretary of education and the arts and the chancellor of the for higher education policy commission, who shall represent the interests of teacher preparation programs within the institutions of higher education in this state as those institutions are defined in section two, article one, chapter eighteen-b of this code.
The education of professional educators in the state includes all programs leading to certification to teach or serve in the public schools including: (1) Those programs in all institutions of higher education, including student teaching in the public schools; (2) beginning teacher internship programs; (3) the granting of West Virginia certification to persons who received their preparation to teach outside the boundaries of this state, except as provided in subsection (b) of this section; (4) any alternative preparation programs in this state leading to certification, including programs established pursuant to the provisions of section one-a of this article and programs which are in effect on the effective date of this section; and (5) any continuing professional education, professional development and in-service training programs for professional educators employed in the public schools in the state.
(b) The state board of education, after consultation with the secretary of education and the arts and the chancellor of the for higher education policy commission, who shall represent the interests of teacher preparation programs within the institutions of higher education in this state as those institutions are defined in section two, article one, chapter eighteen-b of this code, shall adopt standards for the education of professional educators in the state and for the awarding of certificates valid in the public schools of this state subject to the following conditions:
(1) The standards approved by the board for teacher preparation shall include a provision for the study of multicultural education. As used in this section, multicultural education means the study of the pluralistic nature of American society including its values, institutions, organizations, groups, status positions and social roles;
(2) Effective the first day of January, one thousand nine hundred ninety-three, the standards approved by the board shall also include a provision for the study of classroom management techniques and shall include methods of effective management of disruptive behavior which shall include societal factors and their impact on student behavior; and
(3) Effective on the effective date of this section, any teacher who has graduated from a teacher preparation program at a regionally accredited institution of higher education and who holds a valid teaching certificate or certificates issued by another state shall be, upon application, awarded a teaching certificate or certificates for the same grade level or levels and subject area or areas valid in the public schools of this state, subject only to the provisions of section ten of this article.

(c) To give prospective teachers the teaching experience needed to demonstrate competence as a prerequisite to certification, the state board of education may enter into an agreement with county boards for the use of the public schools. Such agreement shall recognize student teaching as a joint responsibility of the teacher preparation institution and the cooperating public schools and shall include: (1) The minimum qualifications for the employment of public school teachers selected as supervising teachers; (2) the remuneration to be paid public school teachers by the state board, in addition to their contractual salaries, for supervising student teachers; and (3) minimum standards to guarantee the adequacy of the facilities and program of the public school selected for student teaching. The student teacher, under the direction and supervision of the supervising teacher, shall exercise the authority of a substitute teacher.
(d) The state superintendent of schools may issue certificates to graduates of teacher education programs and alternative teacher education programs approved by the state board of education and in accordance with this section and rules adopted by the state board after consultation with the secretary of education and the arts and the chancellor of the for higher education. policy commission. A certificate to teach shall not be granted to any person who is not a citizen of the United States, is not of good moral character and physically, mentally and emotionally qualified to perform the duties of a teacher and who has not attained the age of eighteen years on or before the first day of October of the year in which his or her certificate is issued; except that an exchange teacher from a foreign country, or an alien person who meets the requirements to teach, may be granted a permit to teach within the public schools of the state.
(e) In consultation with the secretary of education and the arts and the chancellor of the for higher education, policy commission institutions of higher education approved for teacher preparation may cooperate with each other, with the center for professional development and with one or more county boards in the organization and operation of centers to provide selected phases of the teacher preparation program such as student teaching, beginning teacher internship programs, instruction in methodology and seminar programs for college students, teachers with provisional certification, professional support team members and supervising teachers.
The institutions of higher education, the center for professional development and county boards may by mutual agreement budget and expend funds for the operation of the centers through payments to the appropriate fiscal office of the participating institutions, the center for professional development and the county boards.
(f) The provisions of this section shall not be construed to require the discontinuation of an existing student teacher training center or school which meets the standards of the state board of education.
(g) All institutions of higher education approved for teacher preparation in the school year of one thousand nine hundred sixty-two--sixty-three shall continue to hold that distinction so long as they meet the minimum standards for teacher preparation. Nothing contained herein shall infringe upon the rights granted to any institution by charter given according to law previous to the adoption of this code."
And,
By amending the title of the bill to read as follows:
H. B. 4553 - "A Bill to amend and reenact §18A-3-1 of the code of West Virginia, 1931, as amended, relating to standards for awarding certificates to teach in the public schools; and establishing condition on award of certificates to teachers certified by another state."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 663), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4553) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 664), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Campbell and Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4553) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4567, Relating to the motor carrier road tax and international fuel tax agreement.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page three, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 14A. MOTOR CARRIER ROAD TAX.
§11-14A-2. Definitions.
For purposes of this article:
(1) 'Average fuel consumption factor' means the miles driven by the fleet of motor carriers for each gallon of motor fuel consumed in that activity (miles per gallon), and is calculated by dividing the total distance driven in all jurisdictions during the reporting period by the total quantity of motor fuel consumed in the operation of the motor carrier in all jurisdictions during the same reporting period.
(1) (2) 'Commissioner' or 'tax commissioner' means the tax commissioner of the state of West Virginia or his or her duly authorized agent.
(3) 'Fleet' means, for purposes of administering the tax imposed by this article, one or more motor carriers operated by the same person.
(2) (4) 'Gallon' means two hundred thirty-one cubic inches of liquid measurement, by volume: Provided, That the commissioner may by rule prescribe other measurement or definition of gallon.
(3) (5) 'Gasoline' means any product commonly or commercially known as gasoline, regardless of classification, suitable for use as fuel in an internal combustion engine, except special fuel as hereinafter defined: Provided, That effective the first day of January, two thousand four in the event there is a question as to the proper classification of any product, 'gasoline' shall have has the same meaning as in article fourteen-c of this chapter.
(4) (6) 'Highway' means every way or place of whatever nature open to the use of the public as a matter of right for the purpose of vehicular travel, which is maintained by this state or some taxing subdivision or unit thereof or the federal government or any of its agencies.
(7) 'Household goods carrier' means a person that uses a motor carrier for the movement of another's household goods.
(5) (8) 'Identification marker' means the decal issued by the commissioner for display upon a particular motor carrier and authorizing a person to operate or cause to be operated a motor carrier upon any highway of the state: Provided, That an identification marker shall include decals issued under the authority of article fourteen-b of this chapter to persons licensed thereunder: Provided, however, That said decals shall comply with the international fuel tax agreement requirements referenced under the said article fourteen-b.
(9) 'Independent contractor' means a person that uses its motor carrier or motor carriers in its own or another person's business for the purpose of transporting passengers or the goods of a third party.
(6) (10) 'Lease' means any oral or written contract for valuable consideration granting the use of a motor carrier.
(7) (11) 'Motor carrier' means any vehicle used, designed or maintained for the transportation of persons or property and having two axles and a gross vehicle weight exceeding twenty-six thousand pounds or eleven thousand seven hundred ninety-seven kilograms, or having three or more axles regardless of weight, or is used in combination when the weight of the combination exceeds twenty-six thousand pounds or eleven thousand seven hundred ninety-seven kilograms gross vehicle weight or registered gross vehicle weight. Provided, That the gross vehicle weight rating of the vehicles being towed is in excess of ten thousand pounds. The term motor carrier does not include any type of recreational vehicle.
(8) (12) 'Motor fuel' means motor fuel as defined in article fourteen-c of this chapter effective the first day of January, two thousand four.
(9) (13) 'Operation' means any operation of any motor carrier, whether loaded or empty, whether for compensation or not, and whether owned by or leased to the person who operates or causes to be operated any motor carrier.
(10) (14) 'Person' means and includes any individual, firm, partnership, limited partnership, joint venture, association, company, corporation, organization, syndicate, receiver, trust or any other group or combination acting as a unit, in the plural as well as the singular number, and means and includes the officers, directors, trustees or members of any firm, partnership, limited partnership, joint venture, association, company, corporation, organization, syndicate, receiver, trust or any other group or combination acting as a unit, in the plural as well as the singular number, unless the intention to give a more limited meaning is disclosed by the context.
(11) (15) 'Pool operation' means any operation whereby two or more taxpayers combine to operate or cause to be operated a motor carrier or motor carriers upon any highway in this state.
(12) (16) 'Purchase' means and includes any acquisition of ownership of property or of a security interest for a consideration.
(13) (17) 'Recreational vehicles' means vehicles such as motor homes, pickup trucks with attached campers and buses, when used exclusively for personal pleasure by an individual. In order to qualify as a recreational vehicle, the vehicle shall not be used in connection with any business endeavor.
(14) (18) 'Road tractor' means every motor carrier designed and used for drawing other vehicles and not constructed as to carry any load thereon either independently or any part of the weight of a vehicle or load so drawn.
(15) (19) 'Sale' means any transfer, exchange, gift, barter or other disposition of any property or security interest for a consideration.
(16) (20) 'Special fuel' means any gas or liquid, other than gasoline, used or suitable for use as fuel in an internal combustion engine. The term 'special fuel' includes products commonly known as natural or casing-head gasoline but shall not include any petroleum product or chemical compound such as alcohol, industrial solvent, heavy furnace oil, lubricant, etc., not commonly used nor practicably suited for use as fuel in an internal combustion engine: Provided, That effective the first day of January, two thousand four in the event there is a question as to the proper classification of any gas or liquid, 'special fuel' has the same meaning as in article fourteen-c of this chapter.
(17) (21) 'Tax' includes, within its meaning, interest, additions to tax and penalties, unless the intention to give it a more limited meaning is disclosed by the context.
(18) (22) 'Taxpayer' means any person liable for any tax, interest, additions to tax or penalty under the provisions of this article.
(19) (23) 'Tractor truck' means every motor carrier designed and used primarily for drawing other vehicles and not constructed as to carry a load other than a part of the weight of the vehicle and load so drawn.
(20) (24) 'Truck' means every motor carrier designed, used or maintained primarily for the transportation of property and having more than two axles.
§11-14A-3a. Leased motor carriers, household goods carriers, and independent contractors.

(a) Motor carriers.
(a) (1) Motor carriers leased for less than thirty days. -- A lessor of motor carriers who is regularly engaged in the business of leasing or renting motor carriers with or without drivers to licensees or other lessees for a period of less than thirty days is primarily liable for payment of the taxes and fees imposed by this article unless:
(A) The lessor has a written lease contract that designates the lessee as the party liable for reporting and paying the tax imposed by this article; and
(B) If the lessee is subject to article fourteen-b of this chapter, the lessor has a copy of the lessee's license issued thereunder and the license is valid for the term of the lease.
(b) (2) Motor carriers leased for thirty days or more. -- A licensee or other lessee who leases or rents a motor carrier with or without drivers for a period of thirty days or more is primarily liable for payment of the taxes and fees imposed by this article.
(b) Household goods carriers.
(1) Each household goods carrier operating only in West Virginia that uses its own motor carriers or that leases a motor carrier or motor carriers, with or without drivers, from independent contractors or others under intermittent leases for periods of thirty days or more is liable for the tax imposed by this article: Provided, That the lessor is liable for the tax imposed by this article when the lease periods are for less than thirty days.
(2) Each household goods carrier subject to article fourteen-b of this chapter that uses its own motor carriers or that leases a motor carrier or motor carriers, with or without drivers, from independent contractors or others under intermittent leases is liable for the tax imposed by this article when the motor carrier is operated under the lessee's jurisdictional operating authority: Provided, That when the motor carrier is operated under the lessors jurisdictional operating authority, the lessor is liable for the tax imposed by this article.
(c) Independent contractors.

(1) An independent contractor operating only in West Virginia, when leased to a person also operating only in West Virginia, and the lease is for a period of less than thirty days is liable for the tax imposed by this article: Provided, That if the lease is for a period of thirty days or more, the lessee is responsible for the tax imposed by this article.
(2) A person subject to article fourteen-b of this chapter that leases an independent contractor for thirty days or more is responsible for the tax imposed by this article unless there is a written contract stating that the lessor is liable for the tax imposed by this article.
(b) (d) The provision of subsections (a), (b) and (c) of this section shall govern the primary liability of lessors and licensees or other lessees of motor carriers. If a lessor or licensee or other lessee primarily liable fails, in whole or in part, to discharge his or her liability, such the failing party and other party to the transaction, whether denominated as a lessor, licensee or other lessee, shall be is jointly and severally responsible and liable for compliance with the provisions of this article and for payment of any tax or fees due under this article: Provided, That the aggregate of taxes and fees collected by the commissioner shall not exceed the total amount or amounts of taxes and fees due under this article on account of the transactions in question plus such interest, additions to tax, other penalties and costs, if any, that may be imposed: Provided, however, That no person, other than the person primarily responsible for the taxes and fees under this article, may be assessed penalties or additions to tax resulting from the failure of the party primarily liable for such taxes and fees to pay: Provided further, That once such the other party to the transaction who is not primarily liable for the taxes under this article but who is made jointly and severally liable under this subsection for such taxes is assessed for those taxes and fees and fails to discharge such the assessment within the time prescribed therefor, or within thirty days after receiving such the assessment if no time is so prescribed, nothing herein shall prohibit the commissioner from imposing additions to tax or penalties upon that person for failing to pay the assessment issued in his or her name.
§11-14A-4. Computation of tax.
Computation of the tax is based upon the amount of gallons of gasoline or special motor fuel used in the operation of any motor carrier within this state and shall be in such proportion of the total amount of such gasoline or special fuel used in any person's operations within and without this State as the total number of miles traveled within this State bears to the total number of highway miles traveled within and without this State calculated by dividing the total number of taxable miles traveled in this state during the reporting period by the average fuel consumption factor calculated for that same reporting period.
§11-14A-5. Reports of carriers; joint reports; records; examination of records; subpoenas and witnesses.

(a) Every taxpayer subject to the tax imposed by this article, or by article fourteen-c of this chapter, except as provided, in subsections (b) and (c) of this section, shall on or before the twenty- fifth last day of January, April, July and October of every calendar year make to the commissioner reports of its operations during the quarter ending the last day of the preceding month as the commissioner requires and other reports from time to time as the commissioner considers necessary. For good cause shown, the commissioner may extend the time for filing the reports for a period not exceeding thirty days.
(b) Every motor carrier which operates exclusively in this state during a fiscal year that begins on the first day of July of one calendar year and ends on the thirtieth day of June of the next succeeding calendar year and during the fiscal year consumes in its operation only gasoline or special motor fuel upon which the tax imposed by article fourteen of this chapter has been paid shall, in lieu of filing the quarterly reports required by subsection (a) of this section, file an annual report for the fiscal year on or before the last day of July each calendar year: Provided, That effective the first day of January, two thousand four, every motor carrier which operates exclusively in this state during a fiscal year that begins on the first day of July of one calendar year and ends on the thirtieth day of June of the next succeeding calendar year and during the fiscal year consumes in its operation only motor fuel upon which the tax imposed by article fourteen-c of this chapter has been paid shall, in lieu of filing the quarterly reports required by subsection (a) of this section, file an annual report for the fiscal year on or before the last day of July of each calendar year: Provided, however, That effective the first day of January, two thousand five, every motor carrier which operates exclusively in this state and during the calendar year consumes in its operation only motor fuel upon which the tax imposed by article fourteen-c of this chapter has been paid shall, in lieu of filing the quarterly reports required by subsection (a) of this section, file before the last day of January an annual report for the calendar year ending on the last day of the immediately preceding December. For good cause shown, the commissioner may extend the time for filing the report for a period of thirty days.
(c) Two or more taxpayers regularly engaged in the transportation of passengers on through buses on through tickets in pool operation may, at their option and upon proper notice to the commissioner, make joint reports of their entire operations in this state in lieu of the separate reports required by subsection (a) of this section. The taxes imposed by this article are calculated on the basis of the joint reports as though the taxpayers were a single taxpayer; and the taxpayers making the reports are jointly and severally liable for the taxes shown to be due. The joint reports shall show the total number of highway miles traveled in this state and the total number of gallons of gasoline or special motor fuel purchased in this state by the reporting taxpayers. Credits to which the taxpayers making a joint return are entitled are not allowed as credits to any other taxpayer; but taxpayers filing joint reports shall permit all taxpayers engaged in this state in pool operations with them to join in filing joint reports.
(d) (1) A taxpayer shall keep records necessary to verify the highway total miles traveled within and without the state of West Virginia, the number of gallons of gasoline and special motor fuel used and purchased within and without West Virginia and any other records which the commissioner by regulation may prescribe. A finding by the tax commissioner on the basis of the best information available that the taxpayer has failed to maintain records prescribed by the tax commissioner, or that the taxpayer refused to make available upon written request the records prescribed by the tax commissioner, is sufficient cause for the commissioner of motor vehicles to revoke the identification markers issued to the taxpayer: Provided, That upon request of the taxpayer, a hearing shall be provided, under the authority of articles ten and ten-a of this chapter prior to the revocation becoming final.
(2) If the tax commissioner determines that a taxpayer used an incorrect average fuel consumption factor resulting in the filing of incorrect returns, the tax commissioner shall determine the correct average fuel consumption factor, calculate the correct amount of tax due under this article, and under the authority of article ten of this chapter issue an assessment for the amount of tax, interest, penalties and additions due and owing: Provided, That absent adequate information to the contrary, the average fuel consumption factor is four miles per gallon (one and seven tenths kilometers per liter).
(e) In addition to the tax commissioner's powers set forth in sections five-a and five-b, article ten of this chapter, the commissioner may inspect or examine the records, books, papers, storage tanks, meters and any equipment records or records of highway miles traveled within and without West Virginia and the records of any other person to verify the truth and accuracy of any statement or report to ascertain whether the tax imposed by this article has been properly paid.
(f) In addition to the tax commissioner's powers set forth in sections five-a and five-b, article ten of this chapter, and as a further means of obtaining the records, books and papers of a taxpayer or any other person and ascertaining the amount of taxes and reports due under this article, the commissioner has the power to examine witnesses under oath; and if any witness shall fail or refuse at the request of the commissioner to grant access to the books, records and papers, the commissioner shall certify the facts and names to the circuit court of the county having jurisdiction of the party and the court shall thereupon issue a subpoena duces tecum to the party to appear before the commissioner, at a place designated within the jurisdiction of the court, on a day fixed.
§11-14A-6. Payment of tax.
The tax hereby imposed by this article shall be paid by each taxpayer quarterly annually to the tax commissioner on or before the last day of January April, July and October of each calendar year, and calculated upon the amount of gasoline or special motor fuel used as fuel in the operation of each motor carrier operated or caused to be operated by said the taxpayer during the quarter year ending with the last day of the preceding month: Provided, That each person subject to the provisions of article fourteen-b of this chapter shall pay quarterly to the tax commissioner on or before the last day of January, April, July and October of each calendar year, the correct amount of motor fuel use taxes imposed by each state on motor carriers using the highways of those states during the quarter ending with the last day of the preceding month, the taxes to be calculated in accordance with the instructions provided by those respective states.
§11-14A-7. Identification markers; fees; civil penalties; criminal penalties.

(a) Registration of motor carriers. -- No person may operate, or cause to be operated, in this state any motor carrier subject to this article without first securing from the commissioner of motor vehicles an identification marker for each such motor carrier, except as provided in subsection (b) or (c) of this section. Each identification marker for a particular motor carrier shall bear a number. This identification marker shall be displayed on the driver's side of the motor carrier as required by the commissioner. The commissioner, after issuance of any identification marker to a motor carrier, shall cause an internal cross-check to be made in his office as to any state tax which he administers, to aid in determination of any noncompliance in respect to failure to file returns or payment of tax liabilities. The identification markers herein provided for shall be valid for the period of one year, ending December thirty-first of each year. A fee of five dollars shall be paid to the commissioner for issuing each identification marker which is reasonably related to the commissioner's costs of issuing such identification. All tax or reports due under this article shall be paid or reports filed before the issuance of a new identification marker. Failure by a taxpayer to file the returns or pay the taxes imposed by this article shall give cause to the commissioner to revoke or refuse to renew the identification marker previously issued. A person who operates, or causes to be operated, in this state more than one motor carrier may obtain an identification marker for each motor carrier: Provided, That such person may also obtain an additional number of identification markers equal to twenty-five percent of the total number of motor carriers in the person's fleet of motor carriers that require identification markers.
(1) Each identification marker for a particular motor carrier shall bear a number. This identification marker shall be displayed on the driver's side of the motor carrier as required by the commissioner of motor vehicles: Provided, That the identification markers issued under the authority of article fourteen-b of this chapter shall be displayed on the exterior portion of both sides of the motor carrier.
(2) The tax commissioner, after issuance of any identification marker to a motor carrier, shall cause an internal cross-check to be made in his or her office as to any state tax which he or she administers, to aid in determination of any noncompliance in respect to failure to file returns or payment of tax liabilities. If the tax commissioner determines the motor carrier is not in compliance with the requirement to file any tax return or pay any tax liability required by any tax governed by article ten of this chapter, the identification markers issued to that motor carrier by the commissioner of motor vehicles shall be revoked until all the returns are filed and payments made.
(3) The identification markers provided for in this section are valid for a period of one year, ending the thirty-first day of December each year. A fee of five dollars shall be paid to the commissioner of motor vehicles for issuing each identification marker which is reasonably related to the commissioner of motor vehicles' costs of issuing each identification marker.
(4) All tax or returns due under this article shall be paid or returns filed before the issuance of a new identification marker. If the tax commissioner determines that a person subject to the requirements of this article has failed to file any return or pay the taxes imposed by this article, the commissioner of motor vehicles shall revoke each identification marker previously issued to that person and shall refuse to issue a new identification marker to that person until all returns are filed and all taxes imposed by this article paid.
(5) Each identification marker shall be removed from a motor carrier:
(A) Prior to the motor carrier being sold or traded in for a different motor carrier;
(B) When a motor carrier registered under subsection (a) of this section ceases doing business in this state, or requests cancellation of the account authorized under article fourteen-b of this chapter; or
(C) When the identification marker issued under subsection (a) of this section is revoked.
(6) Each identification marker so removed and any additional identification markers issued under the authority of subsection (a) of this section shall within thirty days of removal be returned to the commissioner of motor vehicles.
(b) Trip permit. -- A motor carrier that does not have a motor carrier identification marker issued under subsection (a) of this section may obtain a trip permit which authorizes the motor carrier specified therein to be operated in this state without an identification marker for a period of not more than ten consecutive days beginning and ending on the dates specified on the face of the permit: Provided, That if a motor carrier's identification marker, whether issued by this state or another jurisdiction, has been revoked, the motor carrier may not be issued a trip permit. The fee for this permit shall be is twenty-four dollars.
(1) Fees for trip permits shall be in lieu of the tax otherwise due under this article on account of the vehicles specified in the permit operating in this state during the period of the permit, and no reports of mileage shall be required with respect to that vehicle.
(2) A trip permit shall be carried in the cab of the motor vehicle for which it was issued at all times while it is in this state.
(3) A trip permit may be obtained from the commissioner of motor vehicles or from wire services authorized by the commissioner to issue such trip permits. The cost of the telegram or similar transmissions shall be is the responsibility of the motor carrier requesting the trip permit.
(c) Transportation permit. -- The commissioner of motor vehicles is hereby authorized to grant, in his or her discretion, a special permit to a new motor vehicle dealer for use on new motor vehicles driven under their own power from the factory or distributing place of a manufacturer, or other dealer, to a place of business of the new vehicle dealer, or from the place of business of a new vehicle dealer to a place of business of another dealer, or when delivered from the place of business of the new vehicle dealer to the place of business of a purchaser to whom title passes on delivery. A transporter's permit must be carried in the cab of the motor vehicle being transported. A person to whom a transporter's permit is issued shall file the reports required by section five of this article and pay any tax due. The fee for such a transporter's permit shall be is fifteen dollars and a transporter's permit is valid for the fiscal year for which it is issued unless surrendered or revoked by the tax commissioner.
(d) Civil penalties. -- Upon a finding by the tax commissioner based upon the best evidence available that a taxpayer, whether the owner, licensee or lessee, or the employee, servant or agent thereof, has performed any of the following acts, the commissioner of motor vehicles shall revoke and refuse to renew the taxpayer's identification marker or trip permit until the cause for the revocation is corrected:
(1) Maintains inaccurate or incomplete records;

(2) Fails to respond to written requests for information;
(3) Fails to make records available upon request;
(4) Falsified application for identification markers or trip permit;
(5) Has a prior revocation of identification markers in another jurisdiction without reinstatement in that jurisdiction;
(6) Is delinquent in payment of taxes, but only after the assessment of those taxes is finalized;
(7) Transfers or sells an identification marker or trip permit; or
(8) Receives or purchases from any person not the commissioner of motor vehicles an identification marker or trip permit.
Upon request of the taxpayer, a hearing shall be provided, under the authority of articles ten and ten-a of this chapter prior to the revocation becoming final.
(d) (e) Criminal penalty penalties. --
(1) Any person, whether such the person be the owner, licensee or lessee, or the employee, servant or agent thereof, who operates or causes to be operated in this state, a motor carrier in violation of this section, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty nor more than five hundred dollars; and each day such the violation continues or reoccurs shall constitute constitutes a separate offense.
(2) Any person, whether the person be the owner, licensee or lessee, or the employee, servant or agent thereof, who transfers or sells an identification marker or trip permit is guilty of a felony and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than ten thousand dollars.
(3) Any person, whether the person be the owner, licensee or lessee, or the employee, servant or agent thereof, who receives or purchases from any person not the commissioner of motor vehicles an identification marker or trip permit is guilty of a felony and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than ten thousand dollars.
(e) (f) Notwithstanding the provisions of section five-d, article ten of this chapter, the tax commissioner shall deliver to or receive from the commissioner of the division of motor vehicles and the commissioner of the public service commission, the information contained in the application filed by a motor carrier for a trip permit under this section, when the information is used to administer a combined trip permit registration program for motor carriers operating in this state, which program may be administered by one agency or any combination of the three agencies, as embodied in a written agreement executed by the head of each agency participating in the program. Such The agencies have authority to enter into such an agreement notwithstanding any provision of this code to the contrary; and the fee for such a combined trip permit shall be is twenty-four dollars, which shall be in lieu of the fee set forth in subsection (b) of this section.
§11-14A-9. Credits against tax.
Every taxpayer subject to the road tax herein imposed in this article is entitled to a credit on the tax equivalent to the amount of tax per gallon of gasoline or special fuel imposed by article fourteen of this chapter on all gasoline or special fuel purchased by the taxpayer for fuel in each motor carrier which it operates or causes to be operated within this state, and upon which gasoline or special fuel the tax imposed by the laws of this state has been paid: Provided, That the credit is not allowed for any gasoline or special fuel taxes for which any taxpayer has applied or received a refund of gasoline or special fuel tax under article fourteen of this chapter: Provided, however, That effective the first day of January, two thousand four, every taxpayer subject to the said road tax herein imposed is entitled to a credit against the tax equivalent to the amount of the flat rate of tax per gallon of motor fuel imposed by article fourteen-c of this chapter on all motor fuel purchased by the taxpayer and used as motor fuel in motor carriers which it operates or causes to be operated within this state, and upon which the motor fuel tax imposed by the laws of this state has been paid: Provided further, That no credit is allowed for any motor fuel taxes for which the taxpayer has applied or received a refund of motor fuel tax under article fourteen-c of this chapter. Evidence of the payment of the tax in the form as required by the commissioner shall be furnished by the taxpayer claiming the credit allowed in this section. When the amount of the credit provided, for in this section exceeds the amount of the tax for which the taxpayer is liable in the same quarter, the excess, if less than twenty dollars, shall upon written request by the taxpayer, be allowed as used as a credit on the tax for which the taxpayer would be otherwise liable for any of the four eight succeeding quarters: And provided further, That if the taxpayer has ceased to do business in this state under either this article or article fourteen-b of this chapter, the amount of the credit shall be refunded in accordance with section eleven of this article: And provided further, That if the amount of the credit provided in this section exceeds by twenty dollars or more the amount of the tax for which the taxpayer is liable in the same quarter, the entire amount, upon the written request by the taxpayer, shall be allowed as a credit on the tax for which the taxpayer would otherwise be liable for any of the succeeding eight quarters: And provided further, That any credit not used within the eight succeeding quarters after the credit is established shall be forfeited.
§11-14A-11. Refunds authorized; claim for refund and procedure thereon; surety bonds and cash bonds.

(a) The commissioner is hereby authorized to refund from the funds collected under the provisions of this article and article fourteen of this chapter, the amount of the credit accrued for gallons of gasoline or special motor fuel purchased in this state but consumed outside of this state, if the taxpayer by duly filed claim requests the commissioner to issue a refund and if the commissioner is satisfied that the taxpayer is entitled to the refund and that the taxpayer has not applied for a refund of the tax imposed by article fourteen of this chapter: Provided, That effective the first day of January, two thousand four, the refunds authorized in this section shall be made from the funds collected under the provisions of this article and from the flat rate of tax imposed under section five, article fourteen-c of this chapter: Provided, however, That unless the taxpayer has ceased doing business in this state under either this article or article fourteen-b of this chapter, any amount less than twenty dollars may not be refunded but shall be used as a credit in accordance with the provisions of section nine of this article: Provided further, That the commissioner shall not approve a claim for refund when the claim for a refund is filed after thirteen months from the close of the quarter in which the tax was paid or the credit, as provided for in section nine of this article, was allowed: Provided, And provided further, That effective the first day of April, two thousand four, the commissioner shall not approve a claim for refund when the claim for refund is filed after eight quarters from the close of the quarter in which the tax was paid or the credit, as provided in section nine of this article, was allowed: And provided further, That any refund or credit due a taxpayer subject to article fourteen-b of this chapter shall be withheld if the taxpayer is delinquent on any fuel taxes due any other state: the refund shall not be made until after audit of the claimant's records by the commissioner or until after a continuous surety bond or cash bond has been furnished by the claimant, as hereinafter provided in an amount fixed by the commissioner, conditioned to pay all road taxes due hereunder: And provided further, That the credit or refund shall in no case be allowed to reduce the amount of tax to be paid by a taxpayer below the amount due as tax on gasoline or special fuel used as fuel in this state as provided by article fourteen of this chapter: And provided further, That effective the first day of January, two thousand four, the credit or refund shall in no case be allowed to reduce the amount of tax to be paid by a taxpayer below the amount due as tax on motor fuel used in this state as provided by article fourteen-c of this chapter. The right to receive any refund under the provisions of this article is not assignable and any attempt at assignment thereof is void and of no effect. The claim for refund or credit shall also be subject to the provisions of section fourteen, article ten of this chapter.
A taxpayer shall furnish a continuous surety bond or a cash bond in an amount fixed by the commissioner, but the amount shall not be less than the total refunds due or to be paid within one year: Provided, That if a continuous surety bond is filed, an annual notice of renewal shall be filed thereafter: Provided, however, That if the continuous surety bond includes the requirement that the commissioner is to be notified of cancellation at least sixty days prior to the surety bond being canceled, an annual notice of renewal is not required. The bond, whether a continuous surety bond or a cash bond, is conditioned upon compliance with the requirements of this article and shall be payable to this state in the form required by the commissioner.
(b) The surety must be authorized to engage in business within this state. The cash bond or the continuous surety bond is conditioned upon faithful compliance with the provisions of this article, including the filing of the returns and payment of all tax prescribed by this article. The cash bond or the continuous surety bond shall be approved by the commissioner as to sufficiency and form, and shall indemnify the state against any loss arising from the failure of the taxpayer to pay for any cause whatever the motor carrier road tax or the motor fuel excise tax imposed by article fourteen-c of this chapter. Any surety on a continuous surety bond furnished hereunder shall be relieved, released and discharged from all liability accruing on the bond after the expiration of sixty days from the date the surety shall have lodged, by certified mail, with the commissioner a written request to be discharged. Discharge from a continuous surety bond shall not relieve, release or discharge the surety from liability already accrued, or which shall accrue before the expiration of the sixty-day period. Whenever any surety seeks discharge as provided in this section, it is the duty of the principal of the bond to supply the commissioner with another continuous surety bond or a cash bond prior to the expiration of the original bond. Failure to provide such other bond results in no refund being paid until after completion of an audit of the taxpayer's records as provided in subsection (a) of this section and the commissioner may cancel any registration card and identification marker previously issued to the person.
(c) Any taxpayer that has furnished a cash bond shall be relieved, released and discharged from all liability accruing on the cash bond after the expiration of sixty days from the date the taxpayer shall have lodged, by certified mail, with the commissioner a written request to be discharged and the amount of the cash bond refunded: Provided, That the commissioner may retain all or part of the bond until the commissioner may perform an audit of the taxpayer's business or three years, whichever first occurs. Discharge from the cash bond shall not relieve, release or discharge the taxpayer from liability already accrued, or which shall accrue before the expiration of the sixty-day period. Whenever any taxpayer seeks discharge as provided in this section, it is the duty of the taxpayer to provide the commissioner with another cash bond or a continuous surety bond prior to the expiration of the original cash bond. Failure to provide another bond results in no refund being paid until after completion of an audit of the taxpayer's records as provided in subsection (a) of this section.
§11-14A-13. Disposition of tax collected.
All tax collected under the provisions of this article shall be paid into the state treasury and shall be used only for the purpose of construction, reconstruction, maintenance and repair of highways, and payment of the interest and sinking fund obligations on state bonds issued for highway purposes: Provided, That the taxes collected under the provisions of this article but for the purposes of article fourteen-b of this chapter shall be disposed of in accordance with the provisions of section eleven, article fourteen-b of this chapter.
Unless necessary for such the bond requirements, five fourteenths of the tax collected under the provisions of this article shall be used for feeder and state local service highway purposes.
§11-14A-16. Civil penalty for failure to file required return when no tax due.

In the case of any failure to make or file a return when no tax is due, as required by this article, on the date prescribed therefor, unless it can be shown that such the failure is due to reasonable cause and not due to willful neglect, there shall be collected a civil penalty of twenty-five fifty dollars or ten percent of the net tax due, whichever is greater, for each month of such the failure or fraction thereof. The civil penalty prescribed under this section shall be assessed, collected and paid in the same manner as the motor carrier road tax.
§11-14A-27. General procedure and administration.
Each and every provision of the 'West Virginia Tax Procedure and Administration Act' set forth in article ten of this chapter shall apply to the motor carrier road tax imposed by this article fourteen-a with like effect as if said act were applicable only to such the motor carrier road tax imposed by this article fourteen-a and were set forth with respect thereto in extenso in this article fourteen-a: Provided, That for purposes of the tax imposed by this article and notwithstanding sections seventeen and seventeen-a, article ten of this chapter, the annual rate of interest in effect at the time of assessment or when the payment of delinquent tax is made shall be one percent per month, calculated for each month or part thereof from the date prescribed for payment to the date the payment is made.
§11-14A-28. Effective date.
The provisions of this act article shall take effect on the first day of April, one thousand nine hundred eighty-nine: Provided, That the amendments to this article made during the two thousand four legislative session shall be effective the first day of July, two thousand four.
ARTICLE 14B. INTERNATIONAL FUEL TAX AGREEMENT.
§11-14B-1. Purpose.

This article is enacted to conform laws of this state relating to registration of motor carriers and reporting and payment of motor fuel use taxes with requirements of the 'Intermodal Surface Transportation and Efficiency Act of 1991', Public Law 102-240. More specifically:
(1) Section 4005 of that said act requires establishment of a single state registration system for commercial motor carriers. Under this system, a motor carrier is required to register annually only with one state. Single state registration is deemed considered to satisfy the registration requirements of all other states.
(2) Section 4008 of that said act mandates state participation in the international registration plan and adoption of the international fuel tax agreement by providing that after the thirtieth day of September, one thousand nine hundred ninety-six:
(A) No state, (other than a state participating in the international registration plan), may establish, maintain or enforce any commercial motor vehicle carrier registration law, regulation or agreement which limits the operation of any commercial motor vehicle carrier within its borders which is not registered under the laws of the state if the vehicle motor carrier is registered under the laws of any other state participating in the international registration plan;
(B) No state may establish, maintain or enforce any law or regulation which has fuel use tax reporting requirements (including tax reporting forms) which are not in conformity with the international fuel tax agreement; and
(C) No state may establish, maintain or enforce any law or regulation which provides for the payment of a fuel use tax unless such the law or regulation is in conformity with the international fuel tax agreement with respect to collection of such tax by a single base state jurisdiction and proportional sharing of such fuel use taxes charged among the states in which a commercial motor vehicle carrier is operated.
§11-14B-2. Definitions.
For purposes of this article:
(a) 'Base jurisdiction' means the member jurisdiction where a motor carrier is based for vehicle registration purposes and:
(1) Where the operational control and operational records of the licensee's motor carriers are maintained or can be made available; and
(2) Where some travel is accrued by motor carriers within the fleet.
(a) 'Commercial motor vehicle'
(1) As used with respect to the international registration plan, has the meaning the term 'apportionable vehicle' has under that plan; and
(2) As used with respect to the international fuel tax agreement, has the meaning the term 'qualified motor vehicle' has under that agreement.
(b) 'Fuel use tax' means a tax imposed on or measured by the consumption of fuel in a motor vehicle carrier.
(c) 'Gasoline' has the same meaning as the term is defined in article fourteen-c of this chapter.
(d) (c) 'International fuel tax agreement' means the international agreement for the collection and distribution of fuel use taxes paid by motor carriers, developed under the auspices of the national governors' association: Provided, That this term includes amendments to the international fuel tax agreement.
(e) (d) 'International registration plan' means the interstate agreement for the apportionment of vehicle registration fees paid by motor carriers developed by the American association of motor vehicle administrators.
(e) 'Licensee' means a person who holds an uncancelled license issued by a base jurisdiction in accordance with the international fuel tax agreement.
(f) 'Motor carrier':
(1) As used with respect to the international registration plan, has the meaning the term 'apportionable vehicle' has under that plan; and
(2) As used with respect to the international fuel tax agreement, has the meaning the term 'qualified motor vehicle' has under that agreement.
(g) 'Motor fuel' means motor fuel as defined in article fourteen-c of this chapter.
(f) (h) 'Motor fuel use taxes imposed by this state' means the aggregate amount of taxes, expressed in cents per gallon, imposed by this state, under articles fourteen-a and fifteen-a of this chapter, on gasoline or special motor fuel consumed in this state by a motor carrier.
(g) 'Special fuel' has the same meaning as the term is defined in article fourteen-c of this chapter.
(h) (i) 'State' means any of the forty-eight contiguous states and the District of Columbia, and any other jurisdiction which imposes a motor fuel use tax and is a member of the international fuel tax agreement.
§11-14B-3. Registration of motor carriers.
(a) To facilitate adoption of the single point registration system in this state, the powers, duties and responsibilities of the tax commissioner under section seven, article fourteen-a of this chapter, are transferred to the commissioner of the division of motor vehicles effective with the registration year that begins the first day of July, one thousand nine hundred ninety-five: Provided, That no registration identification marker or trip permit shall be is required under section seven, article fourteen-a of this chapter of a motor carrier based in another state which is a member of the international fuel tax agreement.
(b) Beginning with the registration year specified in subsection (a) of this section, the commissioner of motor vehicles shall furnish the tax commissioner with motor carrier registration information and information pertaining to the trip permit registration program for use by the tax commissioner in collecting motor fuel taxes.
(c) Also beginning with the registration year specified in subsection (a) of this section, the tax commissioner shall furnish the commissioner of motor vehicles with the taxpayer identity information for any motor carrier which fails to file required returns or report for, or to pay, the motor fuel use taxes imposed by this state. This information may give the commissioner of motor vehicles sufficient cause to revoke or refuse to renew the identification marker previously issued under section seven, article fourteen-a of this chapter.
(d) Information exchanged pursuant to this section shall be used solely for tax administration and motor carrier registration purposes and shall be treated as confidential information for all other purposes as provided in article ten of this chapter.
§11-14B-5. Scope of agreement.
An international fuel tax agreement may provide for:

(a) Determining the base state jurisdiction of motor carriers;
(b) Making and retaining of records by motor carriers;
(c) Auditing the books and records of motor carriers and auditing procedures;
(d) Exchanging information for purposes of motor fuel use tax administration and collection;
(e) Determining persons eligible for a motor carrier tax license or registration;
(f) Defining qualified motor vehicles carriers;
(g) Determining if or when bonding is required;
(h) Specify reporting requirements and periods;
(i) Specifying uniform penalty and interest rates for late reporting and payment of motor fuel use taxes;
(j) Determining methods for collecting and forwarding of motor fuel use taxes and penalties to another jurisdiction; and
(k) Any other provision which the parties to the agreement believe will facilitate administration of the agreement and collection of motor fuel use taxes from interstate motor carriers.
§11-14B-6. Effect of international fuel tax agreement on the administration or application of motor fuel use taxes imposed by this state.

(a) The reporting requirements provided in the international fuel tax agreement shall take precedence over the reporting requirements provided in article fourteen-a of this chapter.
(b) Where the international fuel tax agreement and the provisions of article fourteen-a of this chapter and any amendments thereto subsequently made address the same matters, the provisions of the international fuel tax agreement shall take precedence.
(a) Even though the state of West Virginia is a member of the international fuel tax agreement, the state of West Virginia retains substantive authority to determine when the motor fuel use taxes imposed by this state apply, the applicable rate of tax, the applicable interest rate, and any other substantive tax issues related to the administration or application of those taxes.
(b) The provisions of article fourteen-a of this chapter shall apply to every licensee that is subject to the provisions of this article: Provided, That, (c) The amount of international fuel tax agreement taxes reported as due and owing by a motor carrier based in this state shall for purposes of articles nine and ten of this chapter be treated as taxes due and owing to the state of West Virginia: and,
(d) Interstate motor fuel users (c) Every motor carrier that is not a licensee, every motor carrier based in another state which is not a member of the international fuel tax agreement and every West Virginia intrastate motor carrier shall continue to be subject to the provisions of article fourteen-a of this chapter, and any subsequent amendments thereto.
§11-14B-10. Audits.
(a) The international fuel tax agreement may provide for provides that each state base jurisdiction to audit the records of motor carriers based in that state jurisdiction to determine if the motor fuel taxes due each state all other base jurisdictions are properly reported and paid. When a base state jurisdiction performs a motor fuel use tax audit on an interstate motor carrier based in that state jurisdiction, it shall forward the findings of such the audit to each state base jurisdiction in which the interstate motor carrier has taxable use of motor fuels.
(b) The tax commissioner is authorized to participate in auditing motor carriers in other base jurisdictions to determine if the motor fuel taxes due this state are properly reported and paid: Provided, That any other base jurisdiction may participate with the tax commissioner in auditing motor carriers based in this state to determine if motor fuel taxes due that base jurisdiction are properly reported and paid.
(b) (c) No international fuel tax agreement entered into under this article may preclude the tax commissioner from auditing the records of any person covered by the provisions of this article.
§11-14B-14. General procedure and administration.
(a) All of the provisions of the 'West Virginia Tax Procedure and Administration Act' set forth in article ten of this chapter, including amendments thereto, apply to motor fuel taxes collected under an international fuel tax agreement.
(b) In the event of any inconsistency between the provisions of article ten of this chapter and the terms of the international fuel tax agreement, the terms of the international fuel tax agreement shall said article ten control."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 665), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4567) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4605, Clarifying certain provisions of the West Virginia Code as they relate to domestic violence offenses and related protective orders that are issued by various courts.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §48-5-509 and §48-5-608 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §48-27-401, §48-27-902, §48-27-903, §48-27-1001 and §48-27-1102 of said code be amended and reenacted; that §61-2-9 and §61-2-28 of said code be amended and reenacted; and that §61-7-4 and §61-7-7 of said code be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.

ARTICLE 5. DIVORCE.
PART 5. TEMPORARY RELIEF DURING PENDENCY OF ACTION FOR DIVORCE.

§48-5-509. Enjoining abuse, emergency protective order.
(a) The court may enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other, or interfering with the custodial or visitation rights of the other. This order may enjoin the offending party from:
(1) Entering the school, business or place of employment of the other for the purpose of molesting or harassing the other;
(2) Contacting the other, in person or by telephone, for the purpose of harassment or threats; or
(3) Harassing or verbally abusing the other in a public place.

(b) Any order entered by the court to protect a party from abuse may grant any other relief that may be appropriate for inclusion under the provisions of article twenty-seven of this chapter authorized by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established the grounds for that relief as required by the provisions of said article.
(c) The court, in its discretion, may enter a protective order, as provided in article twenty-seven of this chapter, as part of the final relief granted in a divorce action, either as a part of an order for temporary relief or as part of a separate order. Notwithstanding the provisions of section five hundred five of said article, a protective order entered pursuant to the provisions of this subsection shall remain in effect until a final order is entered in the divorce, unless otherwise ordered by the judge.
PART 6. JUDGMENT ORDERING DIVORCE.

§48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court shall enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other or interfering with the custodial or visitation rights of the other. The order may permanently enjoin the offending party from entering the school, business or place of employment of the other for the purpose of molesting or harassing the other; or from contacting the other, in person or by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place.
(b) Any order entered by the court to protect a party from abuse may grant relief pursuant to the provisions of article twenty-seven of this chapter any other relief authorized to be awarded by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established the grounds for that relief as required by the provisions of said article.
(c) The court, in its discretion, may enter a protective order, as provided by the provisions of article twenty-seven of this chapter, as part of the final relief in a divorce action, either as a part of a order for final relief or in a separate order.
A protective order entered pursuant to the provisions of this subsection shall remain in effect for the period of time ordered by the court not to exceed one hundred eighty days:
Provided, That if the court determines that a violation of a domestic violence protective order entered during or extended by the divorce action has occurred, it may extend the protective order for whatever period the court deems necessary to protect the safety of the petitioner and others threatened or at risk.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
PART 4. COORDINATION WITH PENDING COURT ACTIONS.

§48-27-401. Interaction between domestic proceedings.
(a) During the pendency of a divorce action, a person may file for and be granted relief provided by this article until an order is entered in the divorce action pursuant to part 5-501, et seq.,
(b) If a person who has been granted relief under this article should subsequently become a party to an action for divorce, separate maintenance or annulment, such person shall remain entitled to the relief provided under this article including the right to file for and obtain any further relief, so long as no temporary order has been entered in the action for divorce, annulment and separate maintenance, pursuant to part 5-501, et seq.,
(c) Except as provided in section 5-509 of this chapter and section 27-402 of this article for a petition and a temporary emergency protective order, no person who is a party to a pending action for divorce, separate maintenance or annulment in which an order has been entered pursuant to part 5-501, et seq., of this chapter, shall be entitled to file for or obtain relief against another party to that action under this article until after the entry of a final order which grants or dismisses the action for divorce, annulment or separate maintenance.
(d) Notwithstanding the provisions set forth in section 27-505, any order issued pursuant to this article where a subsequent when an action is filed seeking a divorce, an annulment or separate maintenance, the allocation of custodial responsibility or a habeas corpus action to establish custody, the establishment of paternity, the establishment or enforcement of child support, or other relief under the provisions of this chapter is filed or is reopened by petition, motion or otherwise, then any order issued pursuant to this article which is in effect on the day the action is filed or reopened shall remain in full force and effect by operation of this statute until: (1) a A temporary or final order is entered pursuant to the provisions of part 5-501, et seq. or part 6-601 et seq. of this chapter; or (2) an order is entered modifying such order issued pursuant to this article; or (3) the entry of a final order is entered granting or dismissing the action.
PART 9. SANCTIONS.

§48-27-902. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner or minor children, or both, or is physically present at any location in knowing and willful violation of the terms of an emergency or final protective order under the provisions of this article or section sections 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article, any person authorized to file a petition pursuant to the provisions of section 27-305 or the legal guardian or guardian ad litem may file a petition for civil contempt as set forth in section 27-901.
(b) When any such violation of a valid order has occurred, the petitioner may file a criminal complaint. If the court finds probable cause upon the complaint, the court shall issue a warrant for arrest of the person charged.
§48-27-903. Misdemeanor offenses for violation of protective order, repeat offenses, penalties.

(a) A respondent who abuses the petitioner or minor children or who is physically present at any location in knowing and willful violation of the terms of an: (1) An emergency or final protective order issued under the provisions of this article or section sections 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article; or (2) a condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred fifty dollars nor more than two thousand dollars.
(b) When a A respondent previously convicted of the offense described in who is convicted of a second or subsequent offense under subsection (a) of this section abuses the petitioner or minor children or is physically present at any location in knowing and willful violation of the terms of a temporary or final protective order issued under the provisions of this article, the respondent is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars, or both.

PART 10. ARRESTS.

§48-27-1001. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent abuse the petitioner or minor children or the respondent's physical presence at any location in knowing and willful violation of the terms of an emergency or final protective order issued under the provisions of this article or section 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article, he or she shall immediately arrest the respondent.
(b) When a family or household member is alleged to have committed a violation of the provisions of section 27-903, a law-enforcement officer may arrest the perpetrator for said offense where:
(1) The law-enforcement officer has observed credible corroborative evidence, as defined in subsection 27-1002(b), that the offense has occurred; and
(2) The law-enforcement officer has received, from the victim or a witness, a verbal or written allegation of the facts constituting a violation of section 27-903; or
(3) The law-enforcement officer has observed credible evidence that the accused committed the offense.
(c) Any person who observes a violation of a protective order as described in this section, or the victim of such abuse or unlawful presence, may call a local law-enforcement agency, which shall verify the existence of a current order, and shall direct a law-enforcement officer to promptly investigate the alleged violation.
(d) Where there is an arrest, the officer shall take the arrested person before a circuit court or a magistrate and, upon a finding of probable cause to believe a violation of an order as set forth in this section has occurred, the court or magistrate shall set a time and place for a hearing in accordance with the West Virginia rules of criminal procedure.
PART 11. MISCELLANEOUS PROVISIONS.

§48-27-1102. Authorization for the promulgation of legislative rules.

The governor's committee on crime, delinquency and correction shall develop and promulgate rules for state, county and municipal law-enforcement officers, and law-enforcement agencies and communications and emergency operations centers which dispatch law-enforcement officers with regard to domestic violence: Provided, That such rules and procedures must be consistent with the priority criteria prescribed by generally applicable department procedures. The notice of the public hearing on the rules shall be published before the first day of July, one thousand nine hundred ninety- one. Prior to the publication of the proposed rules, the governor's committee on crime, delinquency and correction shall convene a meeting or meetings of an advisory committee to assist in the development of the rules. The advisory committee shall be composed of persons invited by the committee to represent state, county and local law-enforcement agencies and officers, to represent magistrates and court officials, to represent victims of domestic violence, to represent shelters receiving funding pursuant to article 26-101, et seq., of this chapter, to represent communications and emergency operations centers that dispatch law enforcement officers and to represent other persons or organizations who, in the discretion of the committee, have an interest in the rules. The rules and the revisions thereof as provided in this section shall be promulgated as legislative rules in accordance with chapter twenty-nine-a of this code. Following the promulgation of said rules, the The committee shall meet at least annually to review the rules and to propose revisions as a result of changes in law or policy.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9. Malicious or unlawful assault; assault; battery; penalties.

(a) If any person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provided, be guilty of a felony and, upon conviction, shall be punished by confinement in the penitentiary not less than two nor more than ten years. If such act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall be guilty of a felony and, upon conviction, shall, in the discretion of the court, either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding five hundred dollars.
(b) Assault. -- If any person unlawfully attempts to commit a violent injury to the person of another or unlawfully commits an act which places another in reasonable apprehension of immediately receiving a violent injury, he shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than six months, or fined not more than one hundred dollars, or both such fine and imprisonment.
(c) Battery. -- If any person unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person, he shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than twelve months, or fined not more than five hundred dollars, or both such fine and imprisonment.
(d) Any person convicted of a violation of subsection (b) or (c) of this section who has, in the ten years prior to said conviction, been convicted of a violation of either subsection (b) or (c) of this section where the victim was a current or former spouse, current or former sexual or intimate partner, a person with whom the defendant has a child in common, a person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or convicted of a violation of section twenty-eight of this article or has served a period of pretrial diversion for an alleged violation of subsection (b) or (c) of this section or section twenty-eight of this article when the victim has such present or past relationship shall upon conviction be subject to the penalties set forth in said section for a second violation or offense.
§61-2-28. Domestic violence -- Criminal acts.

(a) Domestic battery. -- Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member current or former spouse, current or former sexual or intimate partner, a person with whom the defendant has a child in common, a person with whom the defendant cohabits or has cohabited, a parent or a guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or unlawfully and intentionally causes physical harm to his or her family or household member such person, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than twelve months, or fined not more than five hundred dollars, or both.
(b) Domestic assault. -- Any person who unlawfully attempts to commit a violent injury against his or her family or household member a current or former spouse, current or former sexual or intimate partner, a person with whom the defendant has a child in common, a person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or unlawfully commits an act which places his or her family or household member such person in reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than six months, or fined not more than one hundred dollars, or both.
(c) Second offense. -- Any person who has previously been convicted of a violation of subsection (a) or (b) of this section, a violation of the provisions of subsection (b) or (c), section nine of this article where the victim was his or her family or household member current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article where the victim was his or her family or household member a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense shall be guilty of a misdemeanor. A person convicted of a violation of subsection (a) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article where the victim was his or her family or household member current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty- two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article where the victim was his or her family or household member a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense shall be confined in a county or regional jail for not less than sixty days nor more than one year, or fined not more than one thousand dollars, or both. A person convicted of a violation of subsection (b) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article where the victim was his or her family or household member a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or having previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article where the victim was his or her family or household member a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense shall be confined in a county or regional jail for not less than thirty days nor more than six months, or fined not more than five hundred dollars, or both.
(d) Third offense. -- Any person who has been convicted of a third or subsequent violation of the provisions of subsection (a) or (b) of this section, a third or subsequent violation of the provisions of section nine of this article where the victim is a family or household member was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or a violation of the provisions of section nine of this article where in which the victim is a family or household member was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense, or any combination of convictions or diversions for these offenses, is guilty of a felony if the offense occurs within ten years of a prior conviction of any of these offenses and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than five years or fined not more than two thousand five hundred dollars, or both.
(e) A person charged with a violation of this section may not also be charged with a violation of subsection (b) or (c), section nine of this article for the same act.
(f) No law-enforcement officer may be subject to any civil or criminal action for false arrest or unlawful detention for effecting an arrest pursuant to this section or pursuant to 48-27-1002 of this code.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-4. License to carry deadly weapons; how obtained.
(a) Except as provided in subsection (h) of this section, any person desiring to obtain a state license to carry a concealed deadly weapon shall apply to the sheriff of his or her county for such license, and shall pay to the sheriff, at the time of application, a fee of seventy-five dollars, of which fifteen dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code. Concealed weapons permits may only be issued for pistols or revolvers. Each applicant shall file with the sheriff, a complete application, as prepared by the superintendent of the West Virginia state police, in writing, duly verified, which sets forth only the following licensing requirements:
(1) The applicant's full name, date of birth, social security number and a description of the applicant's physical features;
(2) That, on the date the application is made, the applicant is a bona fide resident of this state and of the county in which the application is made and has a valid driver's license or other state-issued photo identification showing such residence;
(3) That the applicant is twenty-one years of age or older: Provided, That any individual who is less than twenty-one years of age and possesses a properly issued concealed weapons license as of the effective date of this article shall be licensed to maintain his or her concealed weapons license notwithstanding the provisions of this section requiring new applicants to be at least twenty-one years of age: Provided, however, That upon a showing of any applicant who is eighteen years of age or older that he or she is required to carry a concealed weapon as a condition for employment, and presents satisfactory proof to the sheriff thereof, then he or she shall be issued a license upon meeting all other conditions of this section. Upon discontinuance of employment that requires the concealed weapons license, if the individual issued the license is not yet twenty-one years of age, then the individual issued the license is no longer eligible and must return his or her license to the issuing sheriff;
(4) That the applicant is not addicted to alcohol, a controlled substance or a drug and is not an unlawful user thereof;
(5) That the applicant has not been convicted of a felony or a misdemeanor offense of domestic violence in violation of the provisions of subsection (b) or (c), section nine, article two of this chapter, section twenty-eight of said article two in which the victim is a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or an offense with similar essential elements in a jurisdiction other than this state or of an act of violence involving the misuse of a deadly weapon;
(6) That the applicant has no criminal charges pending and is not under indictment for a felony offense or is not currently serving a sentence of confinement, parole, probation or other court-ordered supervision because of a charge of domestic violence as provided for in section twenty-eight, article two of this chapter imposed by a court of any jurisdiction or is the subject of a restraining order as a result of a domestic violence act as defined in that section, or because of in response to a verified petition of domestic violence as provided for in article two-a, chapter forty-eight of this code or is subject to a protective order as provided for in that article an emergency or temporary domestic violence protective order or is the subject of a final domestic violence protective order entered by a court of any jurisdiction;
(7) That the applicant is physically and mentally competent to carry such weapon;
(8) That the applicant has not been adjudicated to be mentally incompetent;
(9) That the applicant has qualified under the minimum requirements set forth in subsection (d) of this section for handling and firing such weapon: Provided, That this requirement shall be waived in the case of a renewal applicant who has previously qualified;
(10) That the applicant authorizes the sheriff of the county, or his or her designee, to conduct an investigation relative to the information contained in the application.
(b) The sheriff shall conduct an investigation which shall verify that the information required in subdivisions (1), (2), (3), (5), (6), (8) and (9), subsection (a) of this section are true and correct.
(c) Sixty dollars of the application fee and any fees for replacement of lost or stolen licenses received by the sheriff shall be deposited by the sheriff into a concealed weapons license administration fund. Such fund shall be administered by the sheriff and shall take the form of an interest bearing account with any interest earned to be compounded to the fund. Any funds deposited in this concealed weapon license administration fund are to be expended by the sheriff to pay for the costs associated with issuing concealed weapons licenses. Any surplus in the fund on hand at the end of each fiscal year may be expended for other law-enforcement purposes or operating needs of the sheriff's office, as the sheriff may consider appropriate.
(d) All persons applying for a license must complete a training course in handling and firing a handgun. The successful completion of any of the following courses fulfills this training requirement:
(1) Any official national rifle association handgun safety or training course;
(2) Any handgun safety or training course or class available to the general public offered by an official law-enforcement organization, community college, junior college, college or private or public institution or organization or handgun training school utilizing instructors duly certified by such institution;
(3) Any handgun training or safety course or class conducted by a handgun instructor certified as such by the state or by the national rifle association;
(4) Any handgun training or safety course or class conducted by any branch of the United States military, reserve or national guard.
A photocopy of a certificate of completion of any of the courses or classes or an affidavit from the instructor, school, club, organization or group that conducted or taught said course or class attesting to the successful completion of the course or class by the applicant or a copy of any document which shows successful completion of the course or class shall constitute evidence of qualification under this section.
(e) All concealed weapons license applications must be notarized by a notary public duly licensed under article four, chapter twenty-nine of this code. Falsification of any portion of the application constitutes false swearing and is punishable under the provisions of section two, article five, chapter sixty-one of this code.(f) If the information in the application is found to be true and correct, the sheriff shall issue a license. The sheriff shall issue or deny the license within forty-five days after the application is filed if all required background checks authorized by this section are completed.
(g) Before any approved license shall be issued or become effective, the applicant shall pay to the sheriff a fee in the amount of fifteen dollars which the sheriff shall forward to the superintendent of the West Virginia state police within thirty days of receipt. Any such license shall be valid for five years throughout the state, unless sooner revoked.
(h) All persons holding a current and valid concealed weapons license as of the sixteenth day of December, one thousand nine hundred ninety-five, shall continue to hold a valid concealed weapons license until his or her license expires or is revoked as provided for in this article: Provided, That all reapplication fees shall be waived for applications received by the first day of January, one thousand nine hundred ninety-seven, for any person holding a current and valid concealed weapons license as of the sixteenth day of December, one thousand nine hundred ninety-five, which contains use restrictions placed upon the license as a condition of issuance by the issuing circuit court. Any licenses reissued pursuant to this subsection will be issued for the time period of the original license.
(i) Each license shall contain the full name, social security number and address of the licensee and a space upon which the signature of the licensee shall be signed with pen and ink. The issuing sheriff shall sign and attach his or her seal to all license cards. The sheriff shall provide to each new licensee a duplicate license card, in size similar to other state identification cards and licenses, suitable for carrying in a wallet, and such license card is deemed a license for the purposes of this section.
(j) The superintendent of the West Virginia state police shall prepare uniform applications for licenses and license cards showing that such license has been granted and shall do any other act required to be done to protect the state and see to the enforcement of this section.
(k) In the event an application is denied, the specific reasons for the denial shall be stated by the sheriff denying the application. Any person denied a license may file, in the circuit court of the county in which the application was made, a petition seeking review of the denial. Such petition shall be filed within thirty days of the denial. The court shall then determine whether the applicant is entitled to the issuance of a license under the criteria set forth in this section. The applicant may be represented by counsel, but in no case shall the court be required to appoint counsel for an applicant. The final order of the court shall include the court's findings of fact and conclusions of law. If the final order upholds the denial, the applicant may file an appeal in accordance with the rules of appellate procedure of the supreme court of appeals.
(l) In the event a license is lost or destroyed, the person to whom the license was issued may obtain a duplicate or substitute license for a fee of five dollars by filing a notarized statement with the sheriff indicating that the license has been lost or destroyed.
(m) The sheriff shall, immediately after the license is granted as aforesaid, furnish the superintendent of the West Virginia state police a certified copy of the approved application. It shall be the duty of the sheriff to furnish to the superintendent of the West Virginia state police at any time so requested a certified list of all such licenses issued in the county. The superintendent of the West Virginia state police shall maintain a registry of all persons who have been issued concealed weapons licenses.
(n) All licensees must carry with them a state-issued photo identification card with the concealed weapons license whenever the licensee is carrying a concealed weapon. Any licensee who fails to have in his or her possession a state-issued photo identification card and a current concealed weapons license while carrying a concealed weapon shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty or more than two hundred dollars for each offense.
(o) The sheriff shall deny any application or revoke any existing license upon determination that any of the licensing application requirements established in this section have been violated by the licensee.
(p) No person who is engaged in the receipt, review or in the issuance or revocation of a concealed weapon license shall incur any civil liability as the result of the lawful performance of his or her duties under this article.
(q) Notwithstanding the provisions of subsection (a) of this section, with respect to application by a former law-enforcement officer honorably retired from agencies governed by article fourteen, chapter seven of this code; article fourteen, chapter eight of this code; article two, chapter fifteen of this code; and article seven, chapter twenty of this code, an honorably retired officer is exempt from payment of fees and costs as otherwise required by this section, and the application of the honorably retired officer shall be granted without proof or inquiry by the sheriff as to those requirements set forth in subdivision (9), subsection (a) of this section, if the officer meets the remainder of the requirements of this section and has the approval of the appropriate chief law-enforcement officer.

§61-7-7. Persons prohibited from possessing firearms; classifications; reinstatement of rights to possess; offenses; penalties.

(a) Except as provided for in this section, no person shall possess a firearm as such is defined in section two of this article who:
(1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
(2) Is addicted to alcohol;
(3) Is an unlawful user of or addicted to any controlled substance;
(4) Has been adjudicated as a mental defective or who has been involuntarily committed to a mental institution;
(5) Being an alien is illegally or unlawfully in the United States;
(6) Has been discharged from the armed forces under dishonorable conditions;
(7) Is subject to a domestic violence protective order that:
(A) Was issued after a hearing of which such person received actual notice and at which such person had an opportunity to participate;
(B) Restrains such person from harassing, stalking or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) Includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) By its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(8) Has been convicted of a violation of section twenty-eight, article two of this chapter or has been convicted of a violation of the provisions of subsection (b) or (c), section nine of said article, where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or has been convicted in any court of any jurisdiction of a comparable misdemeanor crime of domestic violence.
Any person who violates the provisions of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or confined in the county jail for not less than ninety days nor more than one year, or both.
(b) Notwithstanding the provisions of subsection (a) of this section, any person:
(1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence against the person of another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other jurisdiction of a felony controlled substance offense involving a Schedule I controlled substance other than marijuana, a Schedule II or a Schedule III controlled substance as such are defined in sections two hundred four, two hundred five and two hundred six, article two, chapter sixty-a of this code and who possesses a firearm as such is defined in section two of this article shall be guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not more than five years or fined not more than five thousand dollars, or both. The provisions of subsection (c) of this section shall not apply to persons convicted of offenses referred to in this subsection or to persons convicted of a violation of this subsection.
(c) Any person prohibited from possessing a firearm by the provisions of subsection (a) of this section may petition the circuit court of the county in which he or she resides to regain the ability to possess a firearm and if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm, the court may enter an order allowing the person to possess a firearm if such possession would not violate any federal law."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4605 - "A Bill to amend and reenact §48-5-509 and §48-5-608 of the code of West Virginia, 1931, as amended; to amend and reenact §48-27-401, §48-27-902, §48-27-903, §48-27-1001 and §48-27-1102 of said code; to amend and reenact §61-2-9 and §61-2-28 of said code; and to amend and reenact §61-7-4 and §61-7-7 of said code, all relating to domestic violence generally; clarifying the relationship between temporary and final domestic violence protective orders and the provisions of protective measures reflected in temporary or final divorce orders entered in divorce proceedings or other types of domestic proceedings; making the violation of emergency or final protective orders issued by injunctive relief or protective order in a divorce proceeding a misdemeanor; clarifying provisions related to the arrest and criminal enforcement of protective order violations; clarifying the penalties which may be imposed for the first and subsequent violation of such protective orders; authorizing the governor's committee on crime, delinquency and correction to develop and promulgate rules regarding the procedures for the dispatch of matters involving domestic violence; relating to prohibitions against the issuance of licenses and permits to carry concealed weapons and the possession of firearms as they pertain to persons who have been convicted of domestic violence offenses and/or are subject to domestic violence protection orders; and clarifying who is proscribed from possessing a firearm due to domestic violence convictions."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
On page one, line one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §48-5-509 and §48-5-608 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §48-27-401, §48-27-902, §48-27-903, §48-27-1001 and §48-27-1102 of said code be amended and reenacted; that §61-2-9 and §61-2-28 of said code be amended and reenacted; and that §61-7-4 and §61-7-7 of said code be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.

ARTICLE 5. DIVORCE.
PART 5. TEMPORARY RELIEF DURING PENDENCY OF ACTION FOR DIVORCE.

§48-5-509. Enjoining abuse, emergency protective order.
(a) The court may enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other, or interfering with the custodial or visitation rights of the other. This order may enjoin the offending party from:
(1) Entering the school, business or place of employment of the other for the purpose of molesting or harassing the other;
(2) Contacting the other, in person or by telephone, for the purpose of harassment or threats; or
(3) Harassing or verbally abusing the other in a public place.

(b) Any order entered by the court to protect a party from abuse may grant any other relief that may be appropriate for inclusion under the provisions of article twenty-seven of this chapter authorized by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established the grounds for that relief as required by the provisions of said article.
(c) The court, in its discretion, may enter a protective order, as provided in article twenty-seven of this chapter, as part of the final relief granted in a divorce action, either as a part of an order for temporary relief or as part of a separate order. Notwithstanding the provisions of section five hundred five of said article, a protective order entered pursuant to the provisions of this subsection shall remain in effect until a final order is entered in the divorce, unless otherwise ordered by the judge.
PART 6. JUDGMENT ORDERING DIVORCE.

§48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court shall enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other or interfering with the custodial or visitation rights of the other. The order may permanently enjoin the offending party from entering the school, business or place of employment of the other for the purpose of molesting or harassing the other; or from contacting the other, in person or by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place.
(b) Any order entered by the court to protect a party from abuse may grant relief pursuant to the provisions of article twenty-seven of this chapter any other relief authorized to be awarded by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established the grounds for that relief as required by the provisions of said article.
(c) The court, in its discretion, may enter a protective order, as provided in by the provisions of article twenty-seven of this chapter, as part of the final relief in a divorce action, either as a part of a order for final relief or in a separate order.
A protective order entered pursuant to the provisions of this subsection shall remain in effect for the period of time ordered by the court not to exceed one hundred eighty days: Provided, That if the court determines that a violation of a domestic violence protective order entered during or extended by the divorce action has occurred, it may extend the protective order for whatever period the court deems necessary to protect the safety of the petitioner and others threatened or at risk.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
PART 4. COORDINATION WITH PENDING COURT ACTIONS.

§48-27-401. Interaction between domestic proceedings.
(a) During the pendency of a divorce action, a person may file for and be granted relief provided by this article until an order is entered in the divorce action pursuant to part 5-501, et seq.,
(b) If a person who has been granted relief under this article should subsequently become a party to an action for divorce, separate maintenance or annulment, such person shall remain entitled to the relief provided under this article including the right to file for and obtain any further relief, so long as no temporary order has been entered in the action for divorce, annulment and separate maintenance, pursuant to part 5-501, et seq.,
(c) Except as provided in section 5-509 of this chapter and section 27-402 of this article for a petition and a temporary emergency protective order, no person who is a party to a pending action for divorce, separate maintenance or annulment in which an order has been entered pursuant to part 5-501, et seq., of this chapter, shall be entitled to file for or obtain relief against another party to that action under this article until after the entry of a final order which grants or dismisses the action for divorce, annulment or separate maintenance.
(d) Notwithstanding the provisions set forth in section 27-505, any order issued pursuant to this article where a subsequent when an action is filed seeking a divorce, an annulment or separate maintenance, the allocation of custodial responsibility or a habeas corpus action to establish custody, the establishment of paternity, the establishment or enforcement of child support, or other relief under the provisions of this chapter is filed or is reopened by petition, motion or otherwise, then any order issued pursuant to this article which is in effect on the day the action is filed or reopened shall remain in full force and effect by operation of this statute until: (1) a A temporary or final order is entered pursuant to the provisions of part 5-501, et seq. or part 6-601 et seq. of this chapter; or (2) an order is entered modifying such order issued pursuant to this article; or (3) the entry of a final order is entered granting or dismissing the action.
PART 9. SANCTIONS.

§48-27-902. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner or minor children, or both, or is physically present at any location in knowing and willful violation of the terms of an emergency or final protective order under the provisions of this article or section sections 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article, any person authorized to file a petition pursuant to the provisions of section 27-305 or the legal guardian or guardian ad litem may file a petition for civil contempt as set forth in section 27-901.
(b) When any such violation of a valid order has occurred, the petitioner may file a criminal complaint. If the court finds probable cause upon the complaint, the court shall issue a warrant for arrest of the person charged.
§48-27-903. Misdemeanor offenses for violation of protective order, repeat offenses, penalties.

(a) A respondent who abuses the petitioner or minor children or who is physically present at any location in knowing and willful violation of the terms of an: (1) An emergency or final protective order issued under the provisions of this article or section sections 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article; or (2) a condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred fifty dollars nor more than two thousand dollars.
(b) When a A respondent previously convicted of the offense described in who is convicted of a second or subsequent offense under subsection (a) of this section abuses the petitioner or minor children or is physically present at any location in knowing and willful violation of the terms of a temporary or final protective order issued under the provisions of this article, the respondent is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars, or both.

PART 10. ARRESTS.

§48-27-1001. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent abuse the petitioner or minor children or the respondent's physical presence at any location in knowing and willful violation of the terms of an emergency or final protective order issued under the provisions of this article or section 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article, he or she shall immediately arrest the respondent.
(b) When a family or household member is alleged to have committed a violation of the provisions of section 27-903, a law-enforcement officer may arrest the perpetrator for said offense where:
(1) The law-enforcement officer has observed credible corroborative evidence, as defined in subsection 27-1002(b), that the offense has occurred; and
(2) The law-enforcement officer has received, from the victim or a witness, a verbal or written allegation of the facts constituting a violation of section 27-903; or
(3) The law-enforcement officer has observed credible evidence that the accused committed the offense.
(c) Any person who observes a violation of a protective order as described in this section, or the victim of such abuse or unlawful presence, may call a local law-enforcement agency, which shall verify the existence of a current order, and shall direct a law-enforcement officer to promptly investigate the alleged violation.
(d) Where there is an arrest, the officer shall take the arrested person before a circuit court or a magistrate and, upon a finding of probable cause to believe a violation of an order as set forth in this section has occurred, the court or magistrate shall set a time and place for a hearing in accordance with the West Virginia rules of criminal procedure.
PART 11. MISCELLANEOUS PROVISIONS.

§48-27-1102. Authorization for the promulgation of legislative rules.

The governor's committee on crime, delinquency and correction shall develop and promulgate rules for state, county and municipal law-enforcement officers, and law-enforcement agencies and communications and emergency operations centers which dispatch law-enforcement officers with regard to domestic violence: Provided, That such rules and procedures must be consistent with the priority criteria prescribed by generally applicable department procedures. The notice of the public hearing on the rules shall be published before the first day of July, one thousand nine hundred ninety- one. Prior to the publication of the proposed rules, the governor's committee on crime, delinquency and correction shall convene a meeting or meetings of an advisory committee to assist in the development of the rules. The advisory committee shall be composed of persons invited by the committee to represent state, county and local law-enforcement agencies and officers, to represent magistrates and court officials, to represent victims of domestic violence, to represent shelters receiving funding pursuant to article 26-101, et seq., of this chapter, to represent communications and emergency operations centers that dispatch law enforcement officers and to represent other persons or organizations who, in the discretion of the committee, have an interest in the rules. The rules and the revisions thereof as provided in this section shall be promulgated as legislative rules in accordance with chapter twenty-nine-a of this code. Following the promulgation of said rules, the The committee shall meet at least annually to review the rules and to propose revisions as a result of changes in law or policy.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9. Malicious or unlawful assault; assault; battery; penalties.

(a) If any person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provided, be guilty of a felony and, upon conviction, shall be punished by confinement in the penitentiary not less than two nor more than ten years. If such act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall be guilty of a felony and, upon conviction, shall, in the discretion of the court, either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding five hundred dollars.
(b) Assault. -- If any person unlawfully attempts to commit a violent injury to the person of another or unlawfully commits an act which places another in reasonable apprehension of immediately receiving a violent injury, he shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than six months, or fined not more than one hundred dollars, or both such fine and imprisonment.
(c) Battery. -- If any person unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person, he shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than twelve months, or fined not more than five hundred dollars, or both such fine and imprisonment.
(d) Any person convicted of a violation of subsection (b) or (c) of this section who has, in the ten years prior to said conviction, been convicted of a violation of either subsection (b) or (c) of this section where the victim was a current or former spouse, current or former sexual or intimate partner, a person with whom the defendant has a child in common, a person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or convicted of a violation of section twenty-eight of this article or has served a period of pretrial diversion for an alleged violation of subsection (b) or (c) of this section or section twenty-eight of this article when the victim has such present or past relationship shall upon conviction be subject to the penalties set forth in section twenty-eight of this article for a second, third or subsequent criminal act of domestic violence offense, as appropriate.
§61-2-28. Domestic violence -- Criminal acts.

(a) Domestic battery. -- Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than twelve months, or fined not more than five hundred dollars, or both.
(b) Domestic assault. -- Any person who unlawfully attempts to commit a violent injury against his or her family or household member or unlawfully commits an act which places his or her family or household member in reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than six months, or fined not more than one hundred dollars, or both.
(c) Second offense. -- Domestic Assault or Domestic Battery Any person who has previously been convicted of a violation of subsection (a) or (b) of this section, a violation of the provisions of subsection (b) or (c), section nine of this article where the victim was his or her family or household member, or who has previously been granted a period of pretrial diversion pursuant to section twenty- two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article where the victim was his or her family or household member
A person convicted of a violation of subsection (a) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article where the victim was his or her family or household member current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section, or a violation of subsection (b) or (c), section nine of this article where the victim was his or her family or household member a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense shall guilty of a misdemeanor, and upon conviction thereof, be confined in a county or regional jail for not less than sixty days nor more than one year, or fined not more than one thousand dollars, or both.
A person convicted of a violation of subsection (b) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article where the victim was his or her family or household member a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or having previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article where the victim was his or her family or household member a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense shall be confined in a county or regional jail for not less than thirty days nor more than six months, or fined not more than five hundred dollars, or both.
(d) Third offense. -- Any person who has been convicted of a third or subsequent violation of the provisions of subsection (a) or (b) of this section, a third or subsequent violation of the provisions of section nine of this article where the victim is a family or household member was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or a violation of the provisions of section nine of this article where in which the victim is a family or household member was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense, or any combination of convictions or diversions for these offenses, is guilty of a felony if the offense occurs within ten years of a prior conviction of any of these offenses and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than five years or fined not more than two thousand five hundred dollars, or both.
(e) As used in this section, 'family or household member' means 'family or household member' as defined in 48-27-203 48-27-204 of this code.
(f) A person charged with a violation of this section may not also be charged with a violation of subsection (b) or (c), section nine of this article for the same act.
(g) No law-enforcement officer may be subject to any civil or criminal action for false arrest or unlawful detention for effecting an arrest pursuant to this section or pursuant to 48-27-1002 of this code.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-4. License to carry deadly weapons; how obtained.
(a) Except as provided in subsection (h) of this section, any person desiring to obtain a state license to carry a concealed deadly weapon shall apply to the sheriff of his or her county for such license, and shall pay to the sheriff, at the time of application, a fee of seventy-five dollars, of which fifteen dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code. Concealed weapons permits may only be issued for pistols or revolvers. Each applicant shall file with the sheriff, a complete application, as prepared by the superintendent of the West Virginia state police, in writing, duly verified, which sets forth only the following licensing requirements:
(1) The applicant's full name, date of birth, social security number and a description of the applicant's physical features;
(2) That, on the date the application is made, the applicant is a bona fide resident of this state and of the county in which the application is made and has a valid driver's license or other state-issued photo identification showing such residence;
(3) That the applicant is twenty-one years of age or older: Provided, That any individual who is less than twenty-one years of age and possesses a properly issued concealed weapons license as of the effective date of this article shall be licensed to maintain his or her concealed weapons license notwithstanding the provisions of this section requiring new applicants to be at least twenty-one years of age: Provided, however, That upon a showing of any applicant who is eighteen years of age or older that he or she is required to carry a concealed weapon as a condition for employment, and presents satisfactory proof to the sheriff thereof, then he or she shall be issued a license upon meeting all other conditions of this section. Upon discontinuance of employment that requires the concealed weapons license, if the individual issued the license is not yet twenty-one years of age, then the individual issued the license is no longer eligible and must return his or her license to the issuing sheriff;
(4) That the applicant is not addicted to alcohol, a controlled substance or a drug and is not an unlawful user thereof;
(5) That the applicant has not been convicted of a felony or of an act of violence involving the misuse of a deadly weapon;
(6) That the applicant has not been convicted of a misdemeanor offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine, article two of this chapter in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense; or a misdemeanor offense with similar essential elements in a jurisdiction other than this state
(6) (7) That the applicant has no criminal charges pending and is not under indictment for a felony offense or is not currently serving a sentence of confinement, parole, probation or other court- ordered supervision because of a charge of domestic violence as provided for in section twenty-eight, article two of this chapter imposed by a court of any jurisdiction or is the subject of a restraining order as a result of a domestic violence act as defined in that section, or because of in response to a verified petition of domestic violence as provided for in article two-a, chapter forty-eight of this code or is subject to a protective order as provided for in that article an emergency or temporary domestic violence protective order or is the subject of a final domestic violence protective order entered by a court of any jurisdiction;
(7) (8) That the applicant is physically and mentally competent to carry such weapon;
(8) (9) That the applicant has not been adjudicated to be mentally incompetent;
(9) (10) That the applicant has qualified under the minimum requirements set forth in subsection (d) of this section for handling and firing such weapon: Provided, That this requirement shall be waived in the case of a renewal applicant who has previously qualified;
(10) (11) That the applicant authorizes the sheriff of the county, or his or her designee, to conduct an investigation relative to the information contained in the application.
(b) The sheriff shall conduct an investigation which shall verify that the information required in subdivisions (1), (2), (3), (5), (6), (8) and (9), subsection (a) of this section are true and correct.
(c) Sixty dollars of the application fee and any fees for replacement of lost or stolen licenses received by the sheriff shall be deposited by the sheriff into a concealed weapons license administration fund. Such fund shall be administered by the sheriff and shall take the form of an interest bearing account with any interest earned to be compounded to the fund. Any funds deposited in this concealed weapon license administration fund are to be expended by the sheriff to pay for the costs associated with issuing concealed weapons licenses. Any surplus in the fund on hand at the end of each fiscal year may be expended for other law-enforcement purposes or operating needs of the sheriff's office, as the sheriff may consider appropriate.
(d) All persons applying for a license must complete a training course in handling and firing a handgun. The successful completion of any of the following courses fulfills this training requirement:
(1) Any official national rifle association handgun safety or training course;
(2) Any handgun safety or training course or class available to the general public offered by an official law-enforcement organization, community college, junior college, college or private or public institution or organization or handgun training school utilizing instructors duly certified by such institution;
(3) Any handgun training or safety course or class conducted by a handgun instructor certified as such by the state or by the national rifle association;
(4) Any handgun training or safety course or class conducted by any branch of the United States military, reserve or national guard.
A photocopy of a certificate of completion of any of the courses or classes or an affidavit from the instructor, school, club, organization or group that conducted or taught said course or class attesting to the successful completion of the course or class by the applicant or a copy of any document which shows successful completion of the course or class shall constitute evidence of qualification under this section.
(e) All concealed weapons license applications must be notarized by a notary public duly licensed under article four, chapter twenty-nine of this code. Falsification of any portion of the application constitutes false swearing and is punishable under the provisions of section two, article five, chapter sixty-one of this code.
(f) If the information in the application is found to be true and correct, the sheriff shall issue a license. The sheriff shall issue or deny the license within forty-five days after the application is filed if all required background checks authorized by this section are completed.
(g) Before any approved license shall be issued or become effective, the applicant shall pay to the sheriff a fee in the amount of fifteen dollars which the sheriff shall forward to the superintendent of the West Virginia state police within thirty days of receipt. Any such license shall be valid for five years throughout the state, unless sooner revoked.
(h) All persons holding a current and valid concealed weapons license as of the sixteenth day of December, one thousand nine hundred ninety-five, shall continue to hold a valid concealed weapons license until his or her license expires or is revoked as provided for in this article: Provided, That all reapplication fees shall be waived for applications received by the first day of January, one thousand nine hundred ninety-seven, for any person holding a current and valid concealed weapons license as of the sixteenth day of December, one thousand nine hundred ninety-five, which contains use restrictions placed upon the license as a condition of issuance by the issuing circuit court. Any licenses reissued pursuant to this subsection will be issued for the time period of the original license.
(i) Each license shall contain the full name, social security number and address of the licensee and a space upon which the signature of the licensee shall be signed with pen and ink. The issuing sheriff shall sign and attach his or her seal to all license cards. The sheriff shall provide to each new licensee a duplicate license card, in size similar to other state identification cards and licenses, suitable for carrying in a wallet, and such license card is deemed a license for the purposes of this section.
(j) The superintendent of the West Virginia state police shall prepare uniform applications for licenses and license cards showing that such license has been granted and shall do any other act required to be done to protect the state and see to the enforcement of this section.
(k) In the event an application is denied, the specific reasons for the denial shall be stated by the sheriff denying the application. Any person denied a license may file, in the circuit court of the county in which the application was made, a petition seeking review of the denial. Such petition shall be filed within thirty days of the denial. The court shall then determine whether the applicant is entitled to the issuance of a license under the criteria set forth in this section. The applicant may be represented by counsel, but in no case shall the court be required to appoint counsel for an applicant. The final order of the court shall include the court's findings of fact and conclusions of law. If the final order upholds the denial, the applicant may file an appeal in accordance with the rules of appellate procedure of the supreme court of appeals.
(l) In the event a license is lost or destroyed, the person to whom the license was issued may obtain a duplicate or substitute license for a fee of five dollars by filing a notarized statement with the sheriff indicating that the license has been lost or destroyed.
(m) The sheriff shall, immediately after the license is granted as aforesaid, furnish the superintendent of the West Virginia state police a certified copy of the approved application. It shall be the duty of the sheriff to furnish to the superintendent of the West Virginia state police at any time so requested a certified list of all such licenses issued in the county. The superintendent of the West Virginia state police shall maintain a registry of all persons who have been issued concealed weapons licenses.
(n) All licensees must carry with them a state-issued photo identification card with the concealed weapons license whenever the licensee is carrying a concealed weapon. Any licensee who fails to have in his or her possession a state-issued photo identification card and a current concealed weapons license while carrying a concealed weapon shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty or more than two hundred dollars for each offense.
(o) The sheriff shall deny any application or revoke any existing license upon determination that any of the licensing application requirements established in this section have been violated by the licensee.
(p) No person who is engaged in the receipt, review or in the issuance or revocation of a concealed weapon license shall incur any civil liability as the result of the lawful performance of his or her duties under this article.
(q) Notwithstanding the provisions of subsection (a) of this section, with respect to application by a former law-enforcement officer honorably retired from agencies governed by article fourteen, chapter seven of this code; article fourteen, chapter eight of this code; article two, chapter fifteen of this code; and article seven, chapter twenty of this code, an honorably retired officer is exempt from payment of fees and costs as otherwise required by this section, and the application of the honorably retired officer shall be granted without proof or inquiry by the sheriff as to those requirements set forth in subdivision (9), subsection (a) of this section, if the officer meets the remainder of the requirements of this section and has the approval of the appropriate chief law-enforcement officer.
§61-7-7. Persons prohibited from possessing firearms; classifications; reinstatement of rights to possess; offenses; penalties.

(a) Except as provided for in this section, no person shall possess a firearm as such is defined in section two of this article who:
(1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
(2) Is addicted to alcohol;
(3) Is an unlawful user of or addicted to any controlled substance;
(4) Has been adjudicated as a mental defective or who has been involuntarily committed to a mental institution;
(5) Being an alien is illegally or unlawfully in the United States;
(6) Has been discharged from the armed forces under dishonorable conditions;
(7) Is subject to a domestic violence protective order that:
(A) Was issued after a hearing of which such person received actual notice and at which such person had an opportunity to participate;
(B) Restrains such person from harassing, stalking or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) Includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) By its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(8) Has been has been convicted of a misdemeanor offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine, article two of this chapter in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or has been convicted in any court of any jurisdiction of a comparable misdemeanor crime of domestic violence.
Any person who violates the provisions of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or confined in the county jail for not less than ninety days nor more than one year, or both.
(b) Notwithstanding the provisions of subsection (a) of this section, any person:
(1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence against the person of another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other jurisdiction of a felony controlled substance offense involving a Schedule I controlled substance other than marijuana, a Schedule II or a Schedule III controlled substance as such are defined in sections two hundred four, two hundred five and two hundred six, article two, chapter sixty-a of this code and who possesses a firearm as such is defined in section two of this article shall be guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not more than five years or fined not more than five thousand dollars, or both. The provisions of subsection (c) of this section shall not apply to persons convicted of offenses referred to in this subsection or to persons convicted of a violation of this subsection.
(c) Any person prohibited from possessing a firearm by the provisions of subsection (a) of this section may petition the circuit court of the county in which he or she resides to regain the ability to possess a firearm and if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm, the court may enter an order allowing the person to possess a firearm if such possession would not violate any federal law."
The bill, as amended by the Senate, and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 666), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4605) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Special Calendar

Third Reading

S. B. 636, Relating to employment of members of teachers defined benefit retirement system
; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 667), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 636) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 636 - "A Bill to amend and reenact §18-7A-13a and §18-7A-17 of the code of West Virginia, 1931, as amended, relating to employment of members of the teachers' defined benefit retirement system by institutions of higher education following the retirement of the member; and including certain compensation of certain members in determination of benefits if certain conditions are met."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B 719, Increasing tax on providers of nursing facility services; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 668), and there were--yeas 86, nays 12, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Duke, Ellem, Faircloth, Hamilton, Howard, Overington, Sobonya, Sumner, Walters and Webb.
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 719) passed.
On motion of Mr. Speaker, Mr. Kiss, and Delegate Michael, the title of the bill was amended to read as follows:
S. B. 719 - "A Bill to amend and reenact §11-27-11 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §11-27-37, relating to increasing the health care provider tax imposed on gross receipts of providers of nursing facility services and establishing a contingent provider tax increase if certain conditions occur; specifying condition precedent to tax increase; study panel and setting forth effective date."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 161, Creating Model Health Plan for Uninsurable Individuals Act; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 669), and there were--yeas 86, nays 11, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead, Border, Carmichael, Ellem, Hamilton, Leggett, Schoen, Sumner, Trump, Walters and Webb.
Absent And Not Voting: Campbell, Coleman and Hall.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 161) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 161 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §33-47-1, §33-47-2, §33-47-3, §33-47-4, §33-47-5, §33-47-6, §33-47-7, §33-47-8, §33-47-9, §33-47-10, §33-47-11 and §33-47-12, all relating to creating a West Virginia insurance plan; defining terms; creating a body corporate and politic to be known as the West Virginia health insurance plan; providing for its supervision and control by a board of directors to be appointed by the governor; providing the board of directors administrative requirements; requiring a plan of operation to be approved by the insurance commissioner; requiring the plan to be operated so as to qualify as an acceptable alternative mechanism under the federal Health Insurance Portability and Accountability Act and as an option to provide health insurance coverage for individuals eligible for the federal Health Care Tax Credit; describing procedural requirements for the plan; describing powers of the plan; requiring the board to annually report to the governor summarizing preceding year activities; shielding the board and its employees from any liability resulting from obligations of the plan; authorizing the board of directors to promulgate rules to implement the act; defining eligibility for persons seeking coverage from the plan and when such coverage shall cease; making it an unfair trade practice to arrange for an employee to apply for coverage with the plan for the purpose of separating that employee from group health insurance coverage provided in connection with the employee's employment; providing for the selection of a plan administrator; providing for funding for the plan; defining the benefits to be offered; providing that participation in the plan by an insurer is not the basis of any legal action against the participating insurer; providing that the plan is exempt from taxes and providing an effective date."
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 670), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Schoen.
Absent And Not Voting: Campbell, Caputo, Coleman and Hall.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 161) takes effect July 1 ,2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 204, Relating to strategic research and development tax credit; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 671), and there were--yeas 88, nays 5, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Border, Fleischauer, Hamilton, Leggett and Trump.
Absent And Not Voting: Campbell, Coleman, Doyle, Foster, Hall, Perdue and Schoen.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 204) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 204 - "A Bill to amend and reenact §11-13R-6, §11-13R-11 and §11- 13R-12 of the code of West Virginia, 1931, as amended, all relating to the strategic research and development tax credit; providing that the credit may be refundable for small qualified research and development companies; specifying limitations on credit; requiring certain reporting and providing an effective date."
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 672), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman, Doyle, Foster, Hall and Perdue.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 204) takes effect July 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 260, Allowing design-build board to be reimbursed for certain expenses; on third reading, coming up in regular order, was reported by the Clerk and, at the request of Delegate Staton, and by unanimous consent, laid at the foot of the calendar.
Com. Sub. for S. B. 271, Relating to racial profiling data collection; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 673), and there were--yeas 88, nays 9, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Azinger, Border, Carmichael, Ellem, Hamilton, Leggett, Overington, Romine and Wakim.
Absent And Not Voting: Campbell, Coleman and Hall.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 271) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 271 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §17F-1-1, §17F-1-2, §17F-1-3, §17F-2-1, §17F-2-2 and §17F-2-3, all relating to racial profiling data collection; defining terms; requiring all state law- enforcement officers to collect certain data during traffic stops; requiring the division of motor vehicles to develop forms and compile the data collected; establishing penalties for agencies which fail to comply; providing limited civil liability protection for officers collecting data; providing form content; providing consultation with law enforcement organizations relating to developing forms; requiring director of the governor's committee on crime, delinquency and correction to conduct analysis and distribute data; requiring promulgation of emergency and legislative rules; providing effective date for requiring collection of data; providing for annual report to the legislature; and expiring data collection requirements."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 316, Providing procedures for determining daily cost for certain inmates; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 674), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman and Hall.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 316) passed.
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 675), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman, Hall and Leggett.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 316) takes effect July 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 319, Relating to centers for housing young adult offenders; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 676), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 319) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 402, Relating to authority of board of risk and insurance management to promulgate certain legislative rules; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 677), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Ellem.
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 402) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 456, Requiring state agencies administering funds or grants notify grantee in certain cases; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 678), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 456) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 460, Relating to regulating surveyors and underground surveyors; on third reading, coming up in regular order, was reported by the Clerk.
Delegate Beane requested and obtained unanimous consent to offer an amendment to the bill on third reading.
On motion of Delegate Beane, the bill was amended on page forty-four, section twenty-six, line eighteen, by striking out subsection (d) in its entirety and inserting a new item (d) as follows:
"(d) A licensee, endorsee, an exempt person under section thirty-six of this article or persons under the direct supervision of a licensee, endorsee or exempt person shall physically go to the land and perform the survey."
And,
On page sixty-six, section thirty-six, line three, by striking out items (1) and (2) in their entirety and inserting new items (1) and (2) as follows:
"(1) Any employee or agent of a person, firm, association or corporation, when such employee or agent is engaged in the practice of land surveying exclusively for the person, firm, association or corporation by which employed, or, if a corporation, its parents, affiliates or subsidiaries, and such person firm, association or corporation does not hold himself, herself or itself out to the public as being engaged in the business of land surveying.
(2) Any employee or officer of the United States, this state or any political subdivision thereof, or their agents, when such employee is engaged in the practice of land surveying exclusively for such governmental unit."
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 679), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 460) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 480, Exempting nonprofit licensed nursing homes from registration under solicitation of charitable funds act; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 680), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman and Mezzatesta.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 480) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 508, Relating to commission on arts; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 681), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Campbell and Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 508) passed.
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 682), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Campbell and Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 508) takes effect July 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 512, Authorizing rules of higher education policy commission; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 683), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman and Hrutkay.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 512) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 684), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Perdue.
Absent And Not Voting: Campbell, Coleman and Hrutkay.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 512) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The Clerk announced that, pursuant to House Rule 70a, the following request had been filed with him for the removal of bills from the Consent Calendar to the House Calendar:
Com. Sub. for S. B. 71, on second reading, Consent Calendar, to the House Calendar, by Delegate Varner
(Speaker Pro Tempore Pino in the Chair.)

Conference Committee Report

Delegate Mahan, from the Committee of Conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 4377, Assessing a penalty on those physicians who fail to pay the special assessment,
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 Senate to Com. Sub. for H. B. 4377 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses as follows:
That both houses recede from their respective positions as to amendments of the Senate, striking out everything following the enacting clause and inserting new language, and agree to the same as follows:
That §30-3-12
of the code of West Virginia, 1931, as amended, be amended and reenacted; that §30-14-10 of said code be amended and reenacted; and that §33-20F-4, §33-20F-5 and §33-20F-7 of said code be amended and reenacted, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-12. Biennial renewal of license to practice medicine and surgery or podiatry; continuing education; rules; fee; inactive license.

(a) A license to practice medicine and surgery or podiatry in this state is valid for a term of two years and shall be renewed upon a receipt of a reasonable fee, as set by the board, submission of an application on forms provided by the board and, beginning with the biennial renewal application forms completed by licensees and submitted to the board in one thousand nine hundred ninety-three, a certification in accordance with rules and regulations promulgated by the board in accordance with chapter twenty-nine-a of this code of participation in and successful completion of a minimum of fifty hours of continuing medical or podiatric education satisfactory to the board, as appropriate to the particular license, during the preceding two-year period. Continuing medical education satisfactory to the board is continuing medical education designated as Category I by the American Medical Association or the Academy of Family Physicians and continuing podiatric education satisfactory to the board is continuing podiatric education approved by the council on podiatric education.
In addition, the Legislature hereby finds and declares that it is in the public interest to encourage alternate categories of continuing education satisfactory to the board for physicians and podiatrists. In order to provide adequate notice of the same to physicians and podiatrists, no later than the first day of June, one thousand nine hundred ninety-one, the board shall file rules under the provisions of section fifteen, article three, chapter twenty-nine-a of this code, delineating any alternate categories of continuing medical or podiatric education which may be considered satisfactory to the board and any procedures for board approval of such continuing education.
Notwithstanding any provision of this chapter to the contrary, failure to timely submit to the board a certification in accordance with rules and regulations promulgated by the board in accordance with chapter twenty-nine-a of this code of successful completion of a minimum of fifty hours of continuing medical or podiatric education satisfactory to the board, as appropriate to the particular license, shall, beginning the first day of July, one thousand nine hundred ninety-three, result in the automatic suspension of any license to practice medicine and surgery or podiatry until such time as the certification in accordance with rules and regulations promulgated by the board in accordance with chapter twenty-nine-a of this code, with all supporting written documentation, is submitted to and approved by the board.
Any individual who accepts the privilege of practicing medicine and surgery or podiatry in this state is required to provide supporting written documentation of the continuing education represented as received within thirty days of receipt of a written request to do so by the board. If a licensee fails or refuses to provide supporting written documentation of the continuing education represented as received as required in this section, such failure or refusal to provide supporting written documentation is prima facie evidence of renewing a license to practice medicine and surgery or podiatry by fraudulent misrepresentation.
(b) The board may renew, on an inactive basis, the license of a physician or podiatrist who is currently licensed to practice medicine and surgery or podiatry in, but is not actually practicing, medicine and surgery or podiatry in this state. A physician or podiatrist holding an inactive license shall not practice medicine and surgery or podiatry in this state. His or her inactive license may be converted by the board to an active one upon a written request to the board that accounts for his or her period of inactivity to the satisfaction of the board: Provided, That beginning on the first day of July, one thousand nine hundred ninety-three, such licensee submits written documentation of participation in and successful completion of a minimum of fifty hours of continuing medical or podiatric education satisfactory to the board, as appropriate to the particular license, during each preceding two-year period. An inactive license may be obtained upon receipt of a reasonable fee, as set by the board, and submission of an application on forms provided by the board on a biennial basis.
(c) The board shall not require any physician or podiatrist who is retired or retiring from the active practice of medicine and surgery or the practice of podiatry and who is voluntarily surrendering their license to return to the board the license certificate issued to them by the board.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-10. Annual renewal of license; fee; refresher training a prerequisite; effect of failure to renew; reinstatement.

(a) All holders of certificates of license to practice as osteopathic physicians and surgeons in this state shall renew them biennially on or before the first day of July, by the payment of a reasonable renewal fee, the amount of such reasonable fee to be set by the board rules to the secretary of the board. The secretary of the board shall notify each certificate holder by mail of the necessity of renewing his or her certificate at least thirty days prior to the first day of July of each year.
(b) As a prerequisite to renewal of a certificate of license issued by the board, each holder of such a certificate shall furnish biennially to the secretary of the board satisfactory evidence of having completed thirty-two hours of educational refresher course training, of which the total amount of hours must be AOA approved, and fifty percent of the required thirty-two hours shall be category (1).
(c) The failure to renew a certificate of license shall operate as an automatic suspension of the rights and privileges granted by its issuance. The board may propose rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine-a of this code, providing that an osteopathic physician may renew a certificate of license on an inactive basis.
(d) A certificate of license suspended by a failure to make a biennial renewal thereof may be reinstated by the board upon compliance of the certificate holder with the following requirements:
(a) (1) presentation to the board of satisfactory evidence of educational refresher training of quantity and standard approved by the board for the previous two years;
(b) (2) payment of all fees for the previous two years that would have been paid had the certificate holder maintained his or her certificate in good standing; and
(c) (3) payment to the board of a reasonable reinstatement fee, the amount of such reasonable fee to be set by the board rules.
CHAPTER 33. INSURANCE.

ARTICLE 20F. PHYSICIAN' MUTUAL INSURANCE COMPANY.
§33-20F-4. Authorization for creation of company; requirements and limitations.

(a) Subject to the provisions of this article, a physicians' mutual insurance company may be created as a domestic, private, nonstock, nonprofit corporation. As an incentive for its creation, the company may be eligible for funds from the Legislature in accordance with the provisions of section seven of this article. The company must remain for the duration of its existence a domestic mutual insurance company owned by its policyholders and may not be converted into a stock corporation, a for-profit corporation or any other entity not owned by its policyholders. The company may not declare any dividend to its policyholders; sell, assign or transfer substantial assets of the company; or write coverage outside this state, except for counties adjoining this state, until after any and all debts owed by the company to the state have been fully paid.
(b) For the duration of its existence, the company is not and may not be considered a department, unit, agency, or instrumentality of the state for any purpose. All debts, claims, obligations, and liabilities of the company, whenever incurred, shall be 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.
(c) The moneys of the company are not and may not be considered part of the general revenue fund of the state. The debts, claims, obligations, and liabilities of the company are not and may not be considered a debt of the state or a pledge of the credit of the state.
(d) The company is not subject to provisions of article nine-a, chapter six of this code or the provisions of article one, chapter twenty-nine-b of this code.
(e)(1) All premiums collected by the company are subject to the premium taxes, additional premium taxes, additional fire and casualty insurance premium taxes and surcharges contained in sections fourteen, and fourteen-a, fourteen-d and thirty-three, article three of this chapter: Provided, That while the loan to the company of moneys from the West Virginia tobacco settlement medical trust fund pursuant to section nine of this article remains outstanding, the commissioner may waive the company's premium taxes, and surcharges additional premium taxes and additional fire and casualty insurance premium taxes if payment would render the company insolvent or otherwise financially impaired.
(2) On and after the first day of July, two thousand and three, any premium taxes and additional premium taxes and surcharges paid by the company and by any insurer on its medical malpractice line pursuant to sections fourteen and fourteen-a, article three of this chapter, shall be temporarily applied toward replenishing the moneys appropriated from the West Virginia tobacco settlement medical trust fund pursuant to subsection (c), section two, article eleven-a, chapter four of this code pending repayment of the loan of such moneys by the company.
(3) The state treasurer shall notify the commissioner when the moneys appropriated from the West Virginia tobacco settlement medical trust have been fully replenished, at which time the commissioner shall resume depositing premium taxes and additional premium taxes and surcharges diverted pursuant to subdivision (2) of this subsection in accordance with the provisions of sections fourteen and fourteen-a, article three of this chapter.
(4) Payments received by the treasurer from the company in repayment of any outstanding loan made pursuant to section nine of this article shall be deposited in the West Virginia tobacco settlement medical trust fund and dedicated to replenishing the moneys appropriated therefrom under subsection (c), section two, article eleven-a, chapter four of this code. Once the moneys appropriated from the West Virginia tobacco settlement medical trust fund have been fully replenished, the treasurer shall deposit any payments from the company in repayment of any outstanding loan made pursuant to section nine of this article in said fund and transfer a like amount from said fund to the commissioner for disbursement in accordance with the provisions of sections fourteen and fourteen-a, article three of this chapter.
§33-20F-5. Governance and organization.
(a)(1) The board of risk and insurance management shall implement the initial formation and organization of the company as provided by this article.
(2) From the first day of July, two thousand three, until the thirtieth day of June, two thousand four, the company shall be governed by a provisional board of directors consisting of the members of the board of risk and insurance management, the dean of the West Virginia University School of Medicine or a physician representative designated by him or her, and five physician directors, elected by the policyholders whose policies are to be transferred to the company pursuant to section nine of this article.
(3) Only physicians who are licensed to practice medicine in this state pursuant to article three or article fourteen, chapter thirty of this code and who have purchased medical professional liability coverage from the board of risk and insurance management are eligible to serve as physician directors on the provisional board of directors. One of the physician directors shall be selected from a list of three physicians nominated by the West Virginia Medical Association. The board of risk and insurance management shall develop procedures for the nomination of the remaining physician directors and for the conduct of the election, to be held no later than the first day of June, two thousand three, of all of the physician directors, including, but not limited to, giving notice of the election to the policyholders. These procedures shall be exempt from the provisions of article three, chapter twenty-nine twenty- nine-a of this code.
(b) From the first day of July, two thousand four, the company shall be governed by a board of directors consisting of eleven directors, as follows:
(1) Five directors who are physicians licensed to practice medicine in this state by the board of medicine or the board of osteopathy, including at least one general practitioner and one specialist: Provided, That only physicians who have purchased medical professional liability coverage from the board of risk and insurance management are eligible to serve as physician representatives on the company's first board of directors;
(2) Three directors who have substantial experience as an officer or employee of a company in the insurance industry;
(3) Two directors with general knowledge and experience in business management who are officers and employees of the company and are responsible for the daily management of the company; and
(4) One director who is a dean of a West Virginia school of medicine or osteopathy or his or her designated physician representative. This director's position shall rotate annually among the dean of the West Virginia University School of Medicine, the dean of the Marshall University Joan C. Edwards School of Medicine and the dean of the West Virginia School of Osteopathic Medicine. This director shall serve until such time as the moneys loaned to the company from the West Virginia tobacco settlement medical trust fund have been replenished as provided in subsection (e), section four of this article. After the moneys have been replenished to the West Virginia tobacco settlement medical trust fund, this director shall be a physician licensed to practice medicine in this state by the board of medicine or the board of osteopathy.
(c) In addition to the eleven directors required by subsection (b) of this section, the bylaws of the company may provide for the addition of at least two directors who represent an entity or institution which lends or otherwise provides funds to the company.
(d) The directors and officers of the company are to be chosen in accordance with the articles of incorporation and bylaws of the company. The initial board of directors selected in accordance with the provisions of subdivision (3), subsection (a) of this section shall serve for the following terms: (1) Three for four-year terms; (2) three for three-year terms; (3) three for two-year terms; and (4) two for one-year terms. Thereafter, the directors shall serve staggered terms of four years. If an additional director is added to the board as provided in subsection (c) of this section, his or her initial term shall be for four years. No director chosen pursuant to subsection (b) of this section may serve more than two consecutive terms.
(e) The incorporators are to prepare and file articles of incorporation and bylaws in accordance with the provisions of this article and the provisions of chapters thirty-one, and thirty-three of this code.
§33-20F-7. Initial capital and surplus; special assessment; failure to pay assessment; disposition of civil penalty collected
(a) There is hereby created in the state treasury a special revenue account designated as the "Board of Risk and Insurance Management Physicians' Mutual Insurance Company Account" solely for the purpose of receiving moneys transferred from the West Virginia Tobacco Medical Trust Fund pursuant to sub- section (c), section two, article eleven-a, chapter four of this code for the company's use as initial capital and surplus.
(b) On the first day of July, two thousand three, a special one-time assessment, in the amount of one thousand dollars, shall be imposed on every physician licensed by the board of medicine or by the board of osteopathy for the privilege of practicing medicine in this state: Provided, That the following physicians shall be exempt from the assessment:
(1) A faculty physician who meets the criteria for full-time faculty under subsection (f), section one, article eight, chapter eighteen-b of this code, who is a full-time employee of a school of medicine or osteopathic medicine in this state, and who does not maintain a private practice;
(2) A resident physician who is a graduate of a medical school or college of osteopathic medicine enrolled and who is participating in an accredited full- time program of post-graduate medical education in this state;
(3) A physician who has presented suitable proof that he or she is on active duty in armed forces of the United States and who will not be reimbursed by the armed forces for the assessment;
(4) A physician who receives more than fifty percent of his or her practice income from providing services to federally qualified health center as that term is defined in 42 U.S.C. § 1396d(l)(2); and
(5) A physician who practices solely under a special volunteer medical license authorized by section ten-a, article three or section twelve-b, article fourteen, chapter thirty of this code. The assessment is to be imposed and collected by the board of medicine and the board of osteopathy on forms prescribed by each licensing board; and
(6) A physician who is licensed on an inactive basis pursuant to subsection (b), section twelve, article three, chapter thirty of this code or section ten, article fourteen, chapter thirty or a physician who voluntarily surrenders his license: Provided, That a retired osteopathic physician, who submits to the board of osteopathy an affidavit asserting that he or she receives no monetary remuneration for any medical services provided, executed under the penalty of perjury and if executed outside the state of West Virginia, verified, may be considered to be licensed on an inactive basis: Provided, however, That if a physician elects to resume an active license to practice in the state and the physician has never paid the assessment, then as a condition of receiving an active status license, the physician must pay the special one-time assessment.
(c) The entire proceeds of the special assessment collected pursuant to subsection (b) of this section shall be dedicated to the company. The board of medicine and the board of osteopathy shall promptly pay over to the company all amounts collected pursuant to this section to be used as policyholder surplus for the company.
(d) Any physician who applies to purchase insurance from the company and who has not paid the assessment pursuant to subsection (b) of this section shall pay one thousand dollars to the company as a condition of obtaining insurance from the company.
(e) A physician who fails to pay the special one-time assessment imposed on the first day of July, two thousand three, pursuant to subsection (b) of this section, on or before thirtieth day of June, two thousand four, or when the license is due for renewal, whichever is earlier, and has received written notice of the assessment and option to elect inactive status, at least thirty days before the licensure renewal date or by thirtieth day of May, two thousand four, is subject to a civil penalty in the amount of two hundred fifty dollars payable to either the board of medicine or the board of osteopathy. Furthermore, and notwithstanding any provision of chapter thirty to the contrary, the board of medicine or the board of osteopathy shall immediately suspend the license to practice medicine or podiatry of any physician who received notice and failed to pay the special assessment by the first day of July, two thousand four. Any license to practice medicine suspended pursuant to this section shall remain suspended until both the special assessment and the civil penalty are paid in full.
(f) The entire proceeds of the civil penalty collected pursuant to subsection (e) of this section shall be dedicated to the company. The board of medicine and the board of osteopathy shall promptly pay over to the company all amounts collected pursuant to subsection (e) of this section to be used as policyholder surplus for the company.
(g) The requirements of subsection (b), (c), (d), (e) and (f) of this section shall terminate on January 1, 2008 unless continued or reestablished.
And,
That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
Com. Sub. for H. B. 4377 - "A Bill to amend and reenact §30-3-12 of the code of West Virginia, 1931, as amended; to amend and reenact §30-14-10 of said code; and to amend and reenact §33-20F-4, §33-20F-5 and §33-20F-7 of said code, all relating to physicians generally; permitting a physician who allows his or her medical license to expire upon retirement to retain the license certificate issued by the board of medicine; requiring the board of osteopathy to propose legislative rules; clarifying and correcting the premium taxes that the physicians' mutual insurance company will be subject to; physicians exempt from the special assessment; providing for suspension and a civil penalty for failure to pay the special assessment; and sunset provision."

Respectfully submitted,

Virginia Mahan,
Jeffrey V. Kessler,

Bonnie Brown,
Evan H. Jenkins,

John Ellem,
Steve Harrison,

(Did not sign)

Conferees on the part of
Conferees on the part of

the House of Delegates.
the Senate.

On motion of Delegate Mahan, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 685), and there were--yeas 89, nays none, absent and not voting 11, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman, Doyle, Fleischauer, Foster, Hall, Kominar, Perdue, R. M. Thompson, Varner and Mr. Speaker, Mr. Kiss.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4377) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 686), and there were--yeas 88, nays none, absent and not voting 12, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Campbell, Coleman, Doyle, Fleischauer, Foster, Hall, Kominar, Perdue, R. M. Thompson, Varner and Mr. Speaker, Mr. Kiss.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4377) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Miscellaneous Business

Delegate Webster announced that she was absent on today when the votes were taken on Roll Nos. 651 and 652, and that had she been present, she would have voted "Yea" thereon.
Delegate Schoen announced that she was absent on today when the votes were taken on Roll Nos. 651, 652 and 671, and that had she been present, she would have voted "Yea" thereon.
Delegate Craig asked and obtained unanimous consent that the remarks of Delegate Morgan regarding the football teams of West Virginia University and Marshall University be printed in the Appendix to the Journal.
(Mr. Speaker, Mr. Kiss, in the Chair)

At 4:37 p.m., on motion of Delegate Staton, the House of Delegates recessed until 6:30 p.m., and reconvened at that time.

* * * * * * * * * *

Evening Session

* * * * * * * * * *

Senate Messages

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had insisted on its amendment to
Com. Sub. for H. B. 2200, Creating the felony offense of destruction of property.
On motion of Delegate Staton, the House of Delegates then concurred in the Senate amendment with amendment, as follows:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-30. Removal, injury to or destruction of property, monuments designating land boundaries and of certain no trespassing signs; penalties.

(a) If any person unlawfully, but not feloniously, take and carry away, or destroy, injure or deface takes and carries away, or destroys, injures or defaces any property, real or personal, not his own of another, he shall be or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars, or imprisoned confined in the county or regional jail not more than one year, or both fined and imprisoned.
(b) Any person who unlawfully, willfully and intentionally destroys, injures or defaces the real or personal property of one or more other persons or entities during the same act, series of acts or course of conduct causing a loss in the value of the property in an amount of two thousand five hundred dollars or more, is guilty of the felony offense of destruction of property and, upon conviction thereof, shall be fined not more than two thousand five hundred dollars or imprisoned in the state correctional facility for not less than one year nor more than ten years, or in the discretion of the court, confined in the county or regional jail not more than one year, or both fined and imprisoned.
(c) If any person shall break down, destroy, injure, deface or remove breaks down, destroys, injures, defaces or removes any monument erected for the purpose of designating the boundaries of a municipality, tract or lot of land, or any tree marked for that purpose, or any sign or notice upon private property designating no trespassing upon such the property, except signs or notices posted in accordance with the provisions and purposes of sections seven, eight and ten, article two, chapter twenty of this code, he shall be or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty dollars nor more than two hundred dollars, or imprisoned confined in the county or regional jail not less than one nor more than six months, or both fined and imprisoned. Justices of the peace and magistrates shall Magistrates have concurrent jurisdiction of all offenses arising under the provisions of this section. The provisions of this paragraph shall do not apply to the owner, or his or her agent, of the lands on which such signs or notices are posted."
The bill, as amended by the Senate, and as further amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 689), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Martin.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2200) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Martin announced that he was absent when the vote was taken on Roll No. 689, and that had he been present, he would have voted "Yea" thereon.
A message from the Senate, by
The Clerk of the Senate, announced the concurrence by the Senate as to the changed effective date, to take effect from passage, of
Com. Sub. for H. B. 2268, Teachers and substitute teachers as professional educators and addressing the critical need and shortage thereof.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had receded from its amendments to, and again passed
H. B. 2991, Relating to the fee charged by fiduciary commissioners in settling an estate.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 3150, Barring state officers, agencies or entities from requiring that surety, payment, performance or bid bonds be obtained from any particular company.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out all of section one and inserting in lieu thereof a new section one, to read as follows:
"§5-22-1. Bidding required; government construction contracts to go to lowest qualified responsible bidder; procedures to be followed in awarding government construction projects; penalties for violation of procedures and requirements debarment; exceptions.

(a) This section and the requirements set forth in this section may be referred to as the 'West Virginia Fairness In Competitive Bidding Act'.
(a) (b) As used in this section:
(1) 'Lowest qualified responsible bidder' means the bidder that bids the lowest price and that meets, as a minimum, all the following requirements in connection with the bidder?s response to the bid solicitation. The bidder must certify that it:
(A) Is ready, able and willing to timely furnish the labor and materials required to complete the contract;
(B) Is in compliance with all applicable laws of the state of West Virginia; and
(C) Has supplied a valid bid bond or other surety authorized or approved by the contracting public entity.
(2) 'The state and its subdivisions' means the state of West Virginia, every political subdivision thereof, every administrative entity that includes such a subdivision, all municipalities and all county boards of education.
(b) (c) The state and its subdivisions shall, except as provided in this section, solicit competitive bids for every construction project exceeding twenty-five thousand dollars in total cost: Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, inclusive, article three, chapter five-a of this code may not bid on or be awarded a contract under this section. All bids submitted pursuant to this chapter shall include a valid bid bond or other surety as approved by the state of West Virginia or its subdivisions.
(c) (d) Following the solicitation of such bids, the construction contract shall be awarded to the lowest qualified responsible bidder who shall furnish a sufficient performance and payment bond: Provided, That the state and its subdivisions may reject all bids and solicit new bids on said the project.
(e) The contracting public entity may not award the contract to a bidder which fails to meet the minimum requirements set out in this section. As to any prospective low bidder which the contracting public entity determines not to have met any one or more of the requirements of this section or other requirements as determined by the public entity in the written bid solicitation, prior to the time a contract award is made, the contracting public entity shall document in writing and in reasonable detail the basis for the determination and shall place the writing in the bid file. After the award of a bid under this section, the bid file of the contracting
public agency and all bids submitted in response to the bid solicitation shall be open and available for public inspection.
(f) Any public official or other person who individually or together with others knowingly makes an award of a contract under this section in violation of the procedures and requirements of this section is subject to the penalties set forth in section twenty-nine, article three, chapter five-a of the code of West Virginia.
(g) No officer or employee of this state or of any public agency, public authority, public corporation or other public entity and no person acting or purporting to act on behalf of such officer or employee or public entity shall require that any performance bond, payment bond or surety bond required or permitted by this section be obtained from any particular surety company, agent, broker or producer.
(d) (h) All bids shall be opened open in accordance with the provisions of section two of this article, except design-build projects which are governed by article twenty-two-a of this chapter and are exempt from these provisions.
(e) (i) Nothing in this section shall apply to:
(1) Work performed on construction or repair projects by regular full-time employees of the state or its subdivisions;
(2) Prevent students enrolled in vocational educational schools from being utilized in construction or repair projects when such the use is a part of the student?s training program;
(3) Emergency repairs to building components and systems. For the purpose of this subdivision, the term emergency repairs means repairs that if not made immediately will seriously impair the use of such building components and systems or cause danger to those persons using such the building components and systems; and
(4) Any situation where the state or a subdivision thereof shall come to reaches an agreement with volunteers, or a volunteer group, whereby the governmental body will provide construction or repair materials, architectural, engineering, technical or any other professional services and the volunteers will provide the necessary labor without charge to, or liability upon, the governmental body."
And,
By amending the title of the bill to read as follows:
H. B. 3150 - "A Bill to amend and reenact §5-22-1 of the code of West Virginia, 1931, as amended; to amend and reenact §5-22A-10 of said code; to amend and reenact section §7-11B-14 of said code; and to amend and reenact §38-2-39 of said code, all relating to establishing the West Virginia fairness in competitive bidding act; definitions; establishing procedures and requirements for awarding contracts for government construction projects; requirements for performance, payment, bid and surety bonds; and criminal penalties."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 690), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3150) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had receded from its amendments to, and again passed
Com. Sub. for H. B. 4043, Establishing the priority for early childhood education in the basic skills of reading, mathematics and English language arts.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had again agreed to the appointment of a committee of conference of five on the disagreeing votes of the two houses as to
H. B. 4084, West Virginia Pharmaceutical Availability and Affordability Act.
The message further announced that the President had reappointed as conferees on the part of the Senate the following:
Senators Prezioso, Unger, McCabe, Ross and Smith.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4148, Allowing bail bondsmen to deliver offenders to county or regional jails without bailpiece if a magistrate or circuit clerk is inaccessible.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, after the enacting section, by inserting the following:
"CHAPTER 51. COURTS AND THEIR OFFICERS.

ARTICLE 10. PROFESSIONAL BONDSMEN IN CRIMINAL CASES.
§51-10-8. Qualifications of bondsmen; rules to be prescribed by supreme court of appeals; lists of agents to be furnished; renewal of authority to act; false swearing.

Courts of record regularly exercising criminal jurisdiction in counties of more than two hundred thousand population shall, and in counties of two hundred thousand population or less such courts may, provide
(a) The supreme court of appeals shall
under reasonable rules, and regulations specify the qualifications of persons and corporations applying for authority to engage in the bonding business in criminal cases in the state of West Virginia, and the terms and conditions upon which such the business shall may be carried on. and After the first day of September, two thousand four, no person or corporation shall may, either as principal, or as agent, clerk, or representative of another, engage in the bonding business in any court regularly exercising criminal jurisdiction until he shall by order of such court of record be authorized to do so. Such courts of record qualified pursuant to the rules. The supreme court of appeals, in making such the rules, and regulations and in granting authority to persons to engage in the bonding business, shall take into consideration both the financial responsibility and the moral qualities of the person so applying, and no person shall may be permitted to engage, either as principal or agent, in the business of becoming surety upon bonds for compensation in criminal cases, who has ever been convicted of any offense involving moral turpitude, or who is not known to be a person of good moral character. It shall be the duty of each of said courts of record to The court shall require every person qualifying to engage in the bonding business as principal to file with said the court a list showing the name, age, and residence of each person employed by said the bondsman as agent, clerk, or representative in the bonding business, and require an affidavit from each of said the persons stating that said the person shall will abide by the terms and provisions of this article. Each of said courts of record The court shall require the authority of each of said the persons to be renewed from time to time at such periods as the said courts court may by rule provide. and Before said the authority shall may be renewed the said courts court shall require from each of said the persons an affidavit that since his or her previous qualifications to engage in the bonding business he or she has abided by the provisions of this article, and any person swearing falsely in any of said the affidavits shall be is guilty of false swearing.
(b) Persons authorized to engage in the bonding business in criminal cases in the state of West Virginia on the effective date of the amendments made to this section during the regular session of the Legislature in two thousand four may continue to engage in the business until the first day of September, two thousand four.
CHAPTER 62. CRIMINAL PROCEDURE."

On page two, by amending the enacting section, to read as follows:
"That §51-10-8 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that §62-1C-14 of said code be amended and reenacted, all to read as follows" followed by a colon.
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4148 - "A Bill to amend and reenact
§51-10-8 of the code of West Virginia, 1931, as amended; and to amend and reenact §62-1C-14 of said code, all relating to bail bondspersons; requiring the supreme court of appeals shall to adopt rules specifying the qualifications of persons and corporations applying for authority to engage in the bonding business in West Virginia; allowing bail bondsperson to deliver offenders to county and regional jails without bailpiece; setting requirements; setting forth requirements related to medical treatment of defendant prior to authorities taking custody pursuant to a bailpiece; providing for certain immunities from liability; and providing penalties."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 692), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4148) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates to the amendment of the Senate, and the passage, as amended, to take effect from passage, of
Com. Sub. for H. B. 4205, Authorizing the department of health and human resources to promulgate legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4607, Conferring the duties of the industrial revenue bond allocation review committee to the board of the West Virginia economic development authority.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"CHAPTER 13. PUBLIC BONDED INDEBTEDNESS.

ARTICLE 2C. INDUSTRIAL DEVELOPMENT AND COMMERCIAL DEVELOPMENT BOND ACT.

§13-2C-3a. Continuation of industrial revenue bond allocation review committee; appointment, terms of members; voting; expenses; duties.

(a) There is hereby created continued the West Virginia industrial revenue bond allocation review committee consisting of five the members of the board of the West Virginia economic development authority created by article fifteen, chapter thirty-one of this code., as follows: The secretary of tax and revenue, who shall serve as chair of the committee, and the executive director of the development office or his or her designee, and three members chosen from the general public as private members.
(b) The three private members shall be appointed by the governor, with the advice and consent of the Senate: Provided, That one private member shall be appointed from each congressional district of the state, in such a manner as to provide a broad geographical distribution of members of the committee: Provided, however, That at least one private member appointed pursuant to this subdivision shall have significant experience in economic development. No more than two private members shall be from the same political party.
(c) Appointment of the three members shall be for staggered terms of three years. Any member whose term has expired shall serve until a successor has been duly appointed and qualified. Any member shall be eligible for reappointment. In case of any vacancy in the office of a private member, such vacancy shall be filled by appointment by the governor for the unexpired term. The governor may remove any private member in case of incompetency, neglect of duty, gross immorality or malfeasance in office; and he may declare the office vacant and may appoint a person for such vacancy as provided in other cases of vacancy.
(d) (b) Members shall are not be entitled to compensation for services performed as members, but shall be are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties: Provided, That no member may be eligible for expenses for meetings of both the board of the West Virginia economic development authority and the West Virginia industrial revenue bond allocation review committee when the meetings are held on the same day.
(e) (c) A majority of the members of the committee shall constitute constitutes a quorum for the purpose of conducting business. The affirmative vote of at least the majority of the members present is necessary for any action taken by vote of the committee. No vacancy in the membership of the committee shall impair impairs the right of a quorum to exercise all the rights and perform all the duties of the committee.
(f) (d) The committee shall review and evaluate all applications for reservation of funds submitted to the development office by a governmental body pursuant to the provisions of subsections (d) and (e), section twenty-one of this article, and shall make reservations of the state allocation (as defined in subdivision (2), subsection (b) of said section twenty-one of this article) pursuant to subdivision (3), subsection (b) and subsection (c) of said section twenty-one of this article.
CHAPTER 31. CORPORATIONS.

ARTICLE 15. WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY.
§31-15-5. West Virginia economic development authority; composition; appointment; terms; delegation of authority by chairman; voting; compensation and expenses.

(a) The West Virginia economic development authority heretofore created is hereby continued as a body corporate and politic, constituting a public corporation and government instrumentality.
(b) The authority shall be composed of a board of members consisting of a chairman, who shall be the governor, or his or her designated representative, the tax commissioner and seven members who shall be appointed by the governor, by and with the advice and consent of the Senate, and who shall be broadly representative of the geographic regions of the state. One member of the House of Delegates to be appointed by the speaker and one member of the Senate to be appointed by the president shall serve on the board in an advisory capacity as ex officio, nonvoting members. The board shall direct the exercise of all the powers given to the authority in this article. The governor shall also be the chief executive officer of the authority, and shall designate the treasurer and the secretary of the board.
(c) Upon the effective date of this legislation, the governor shall forthwith appoint seven members of the board for staggered terms. The terms of the board members first taking office on or after the effective date of this legislation shall expire as designated by the governor at the time of the nomination, two at the end of the first year, two at the end of the second year, two at the end of the third year, and one at the end of the fourth year, after the first day of July, one thousand nine hundred eighty-nine. As these original appointments expire, each subsequent appointment shall be for a full four-year term. Any member whose term has expired shall serve until his or her successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any member shall be is eligible for reappointment. The term of any person serving as a member of the board immediately preceding the effective date of this legislation shall cease and otherwise expire upon such effective date: Provided, That any such member shall be eligible for reappointment.
(d) The governor may, by written notice filed with the secretary of the authority, from time to time, delegate to any subordinate the power to represent him or her at any meeting of the authority. In such that case, the subordinate shall have has the same power and privileges as the governor and may vote on any question.
(e) Members of the authority shall are not be entitled to compensation for services performed as members, but shall be are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties.
(f) A majority of the members shall constitute constitutes a quorum for the purpose of conducting business. Except in the case of a loan or insurance application or unless the bylaws require a larger number, action may be taken by majority vote of the members present. Approval or rejection of a loan or insurance application shall be made by majority vote of the full membership of the board.
(g) The board shall manage the property and business of the authority and may prescribe, amend, adopt and repeal bylaws and rules and regulations governing the manner in which the business of the authority is conducted.
(h) The board shall, without regard to the provisions of civil service laws applicable to officers and employees of the state of West Virginia, appoint such any necessary managers, assistant managers, officers, employees, attorneys and agents as are necessary for the transaction of its business, fix their compensation, define their duties and provide a system of organization to fix responsibility and promote efficiency. Any appointee of the board may be removed at the discretion of the board. The authority may reimburse any state spending unit for any special expense actually incurred in providing any service or the use of any facility to the authority.
(i) In cases of any vacancy in the office of a voting member, such the vacancy shall be filled by the governor. Any member appointed to fill a vacancy in the board occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed for the remainder of such the term.
(j) The governor may remove a member in the case of incompetence, neglect of duty, gross immorality or malfeasance in office, and may declare such the member's office vacant and appoint a person for such the vacancy as provided in other cases of vacancy.
(k) The secretary of the board shall keep a record of the proceedings of the board and perform such any other duties as may be determined appropriate by the board. The treasurer shall be custodian of all funds of the authority and shall be bonded in such the amount as designated by other members of the board may designate."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 693), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Fleischauer.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4607) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates to the amendment of the Senate, and the passage, as amended, to take effect from passage, of
H. B. 4669, Providing for establishment of special five-year demonstration professional development school project.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 4746, Relating generally to the state treasurer's office.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §12-1-2, §12-1-7, §12-1-12 and §12-1-13 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §12-2-1 of said code be amended and reenacted; that §12-3-1 and §12-3-1a of said code be amended and reenacted; that §12-3A-3, §12-3A-4 and §12-3A-6 of said code be amended and reenacted; that §12-5-1 and §12-5-5 of said code be amended and reenacted; and that §18-30-4 of said code be amended and reenacted, all to read as follows:
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.

ARTICLE 1. STATE DEPOSITORIES.
§12-1-2. Depositories for demand deposits; categories of demand deposits; competitive bidding for disbursement accounts; maintenance of deposits by state treasurer; definition of spending unit.

The state treasurer shall designate the state and national banks and the state and federal savings and loan associations in this state which shall serve meeting the requirements of this chapter as depositories for all state funds placed in demand deposits. Any such state or national bank shall, upon request to the treasurer, be designated as a state depository for such deposits, if such bank meets the requirements set forth in this chapter.
Demand deposit accounts shall consist of receipt and disbursement accounts. Receipt accounts shall be those are accounts in which are deposited moneys belonging to or due the state of West Virginia or any official, department, board, commission or agency thereof.
Disbursement accounts shall be those are accounts from which are paid moneys due from the state of West Virginia or any official, department, board, commission, political subdivision or agency thereof to any political subdivision, person, firm or corporation, except moneys paid from investment accounts.
Investment accounts shall be those are accounts established by the West Virginia investment management board or the state treasurer for the buying and selling of securities for investment for the state of West Virginia purposes.
The state treasurer shall promulgate rules, in accordance with the provisions of article three, chapter twenty-nine-a of this code, concerning depositories for receipt accounts prescribing the selection criteria, procedures, compensation and such other contractual terms as it considers to be in the best interests of the state giving due consideration to: (1) The activity of the various accounts maintained therein; (2) the reasonable value of the banking services rendered or to be rendered the state by such depositories; and (3) the value and importance of such deposits to the economy of the communities and the various areas of the state affected thereby.
The state treasurer shall select depositories for disbursement accounts through competitive bidding by eligible banks in this state. If none of the eligible banks in this state are able to provide the needed services, then the treasurer may include eligible banks outside this state in the competitive bidding process. The treasurer shall promulgate rules in accordance with the provisions of article three, chapter twenty-nine-a of this code, prescribing the procedures and criteria for the bidding and selection. The treasurer shall, in the invitations for bids, specify the approximate amounts of deposits, the duration of contracts to be awarded and such other contractual terms as it considers to be in the best interests of the state the treasurer considers to be in the best interests of the state, consistent with obtaining the most efficient service at the lowest cost.
The amount of money needed for current operation purposes of the state government, as determined by the state treasurer, shall be maintained at all times in the state treasury, in cash, in short term investments not to exceed five days, or in disbursement accounts with banks financial institutions designated as depositories in accordance with the provisions of this section. No state officer or employee shall make or cause to be made any deposits of state funds in banks not so designated. Only banks and state and federal savings and loan associations designated by the treasurer as depositories may accept deposits of state funds. Boards, commissions and spending units with authority pursuant to this code to deposit moneys in a financial institution without approval of the state treasurer shall retain that authority and are not required to have the treasurer designate a financial institution as a depository: Provided, That boards, commissions and spending units with moneys deposited in financial institutions not approved for that purpose by the state treasurer shall submit a report on those moneys annually to the legislative auditor. The provisions of this section shall not apply to the proceeds from the sale of general obligation bonds or bonds issued by the school building authority, the parkways, economic development and tourism authority, the housing development fund, the economic development authority, the infrastructure and jobs development council, the water development authority or the hospital finance authority.
As used in this chapter, 'spending unit' means a department, agency, board, commission or institution of state government for which an appropriation is requested, or to which an appropriation is made by the Legislature.
§12-1-7. Rules; banking contracts and agreements; depositors; agreements.
In addition to rules specially authorized in this article, the West Virginia investment management board and the state treasurer are generally authorized to promulgate any rules necessary to protect the interests of the state, its depositories and taxpayers. All rules promulgated shall be are subject to the provisions of article three, chapter twenty-nine-a of this code. Any rules previously established by the board of public works, the board of investments, the investment management board or the state treasurer pursuant to this article shall remain in effect until amended, superseded or rescinded.
Only the treasurer may enter into contracts or agreements with financial institutions for banking goods or services required by spending units. Boards, commissions and spending units with authority pursuant to this code to enter into contracts or agreements with financial institution for banking goods and services without approval of the state treasurer shall retain that authority and are not required to have the treasurer designate a financial institution as a depository. The provisions of this section shall not apply to trust and investment accounts and activities for general obligation bonds or bonds issued by the school building authority, the parkways, economic development and tourism authority, the housing development fund, the economic development authority, the infrastructure and jobs development council, the water development authority or the hospital finance authority. A state spending unit requiring banking goods or services shall submit a request for the goods or services to the treasurer. If the treasurer enters into a contract or agreement for the required goods or services, spending units using the contract or agreement shall pay either the vendor or the treasurer for the goods or services used.
The treasurer is also authorized to enter into any depositors' agreements for the purpose of reorganizing or rehabilitating any depository in which state funds are deposited, and for the purpose of transferring the assets, in whole or in part, of any depository to any other lawful depository when, in the judgment of the treasurer, the interests of the state will be are promoted thereby, and upon condition that no right of the state to preferred payment be is waived.
§12-1-12. Investing funds in treasury; depositories outside the state.
When the funds in the treasury exceed the amount needed for current operational purposes, as determined by the treasurer, the treasurer shall make all of such excess available for investment by the investment management board which shall invest the excess for the benefit of the general revenue fund: Provided, That the state treasurer, after reviewing the cash flow needs of the state, may withhold and invest amounts not to exceed one hundred twenty-five million dollars of the operating funds needed to meet current operational purposes. Investments made by the state treasurer under this section shall be made in short term investments not to exceed five days. Operating funds means the consolidated fund established in section eight, article six of this chapter, including all cash and investments of the fund.
Spending units with authority to retain interest or earnings on a fund or account may submit requests to the treasurer to transfer moneys to a specific investment pool of the investment management board and retain any interest or earnings on the money invested. The general revenue fund shall receive all interest or other earnings on money invested that are not designated for a specific fund or account.
Whenever the funds in the treasury exceed the amount for which depositories within the state have qualified, or the depositories within the state which have qualified are unwilling to receive larger deposits, the treasurer may designate depositories outside the state, disbursement accounts being bid for in the same manner as required by depositories within the state, and when such depositories outside the state have qualified by giving the bond prescribed in section four of this article, the state treasurer shall deposit funds therein in like in the same manner as funds are deposited in depositories within the state under this article.
The state treasurer may transfer funds to banks financial institutions outside the state to meet obligations to paying agents outside the state and any such transfer if the financial institution must meet meets the same bond collateral requirements as set forth in this article.
§12-1-13. Payment of banking services and litigation costs for prior investment losses.

(a) The treasurer is authorized to pay for banking services, and goods and services ancillary thereto, by either a compensating balance in a noninterest-bearing an account maintained at the financial institution providing the services or with a state warrant as described in section one, article five three of this chapter.
(b) The investment management board is authorized to pay for the investigation and pursuit of claims against third parties for the investment losses incurred during the period beginning on the first day of August, one thousand nine hundred eighty-four, and ending on the thirty-first day of August, one thousand nine hundred eighty-nine. The payment may be in the form of a state warrant.
(c) If payment is made by a state warrant, the investment management board, at the request of the treasurer, is authorized to establish within the consolidated fund an investment pool which will generate sufficient income to pay for all banking services provided to the state and to pay for the investigation and pursuit of the prior investment loss claims. All income earned by the investment pool shall be paid into a special account of the treasurer to be known as the banking services account and shall be used solely for the purpose of paying to pay for all banking services and goods and services ancillary to the banking services provided to the state, for the investigation and pursuit of the prior investment loss claims, amortize and for amortization of the balance in the investment imbalance fund.
ARTICLE 2. PAYMENT AND DEPOSIT OF TAXES AND OTHER AMOUNTS DUE THE STATE OR ANY POLITICAL SUBDIVISION.

§12-2-1. How and to whom taxes and other amounts due the state or any political subdivision, official, department, board, commission or other collecting agency thereof may be paid.

All persons, firms and corporations shall promptly pay all taxes and other amounts due from them to the state, or to any political subdivision, official, department, board, commission or other collecting agency thereof authorized by law to collect the taxes and other amounts due by any authorized commercially acceptable means, in money, United States currency or by check, bank draft, certified check, cashier's check, post office money order, or express money order or electronic funds transfer payable and delivered to the official, department, board, commission or collecting agency thereof authorized by law to collect the taxes and other amounts due and having the account upon which the taxes or amounts due are chargeable against the payer of the taxes or amounts due. The duly elected or appointed officers of the state and of its political subdivisions, departments, boards, commissions and collecting agencies having the account on which the taxes or other amounts due are chargeable against the payer of the taxes or other amounts due and authorized by law to collect the taxes or other amounts due, and their respective agents, deputies, assistants and employees shall in no case be the agent of the payer in and about the collection of the taxes or other amounts, but shall at all times and under all circumstances be the agent of the state, its political subdivision, official, department, board, commission or collecting agency having the account on which the taxes or amounts are chargeable against the payer of the taxes or other amounts due and authorized by law to collect the same.
ARTICLE 3. APPROPRIATIONS, EXPENDITURES AND DEDUCTIONS.
§12-3-1. Manner of payment from treasury; form of checks.
(a) Every person claiming to receive money from the treasury of the state shall apply to the auditor for a warrant for same. The auditor shall thereupon examine the claim, and the vouchers, certificates and evidence, if any, offered in support thereof, and for so much thereof as he or she finds to be justly due from the state, if payment thereof is authorized by law, and if there is an appropriation not exhausted or expired out of which it is properly payable, the auditor shall issue his or her warrant on the treasurer, specifying to whom and on what account the money mentioned therein is to be paid, and to what appropriation it is to be charged. The auditor shall present to the treasurer daily reports on the number of warrants issued, the amounts of the warrants and the dates on the warrants for the purpose of effectuating the investment policy policies of the state treasurer and the investment management board. On the presentation of the warrant to the treasurer, the treasurer shall ascertain whether there are sufficient funds in the treasury to pay that warrant, and if he or she finds it to be so, he or she shall in that case, but not otherwise, endorse his or her check upon the warrant, directed to some depository, which check shall be payable to the order of the person who is to receive the money therein specified.
(b) If the a check is not presented for payment within six months after it is drawn, it shall then be is the duty of the treasurer to credit it to the depository on which it was drawn, to credit the unclaimed property fund pursuant to the provisions of article eight, chapter thirty-six of this code 'Treasurer's Stale Check Fund,' which is hereby created in the state treasury, and immediately notify the auditor to make corresponding entries on the auditor's books. If the state treasurer determines any funds deposited in the stale check account are federal funds, the state treasurer shall notify the spending unit authorizing the payment. Within six months following issuance of the notice, the spending unit shall inform the state treasurer of the amount of federal funds included in the check, the account from which the federal funds were disbursed, and the current fiscal year account to which the federal funds are to be transferred. After receiving the information, the state treasurer shall transfer the amount of federal funds specified as a reimbursement to the current fiscal year account specified to receive federal funds by the spending unit. For a period of up to six months, the state treasurer shall endeavor to pay the money in the stale check account to the payee. The treasurer shall credit the money that has been in the stale check account for six months, or for a shorter period as determined by the treasurer, to the unclaimed property fund pursuant to the provisions of article eight, chapter thirty-six of this code, and shall immediately notify the auditor to make corresponding entries on the auditor's books.
(c) No state depository may pay a check unless it is presented within six months after it is drawn and every check shall bear upon its face the words 'Void, unless presented for payment within six months.'
(d) Any information or records maintained by the treasurer concerning any check which has not been not presented for payment within six months of the date of issuance may only be disclosed is confidential and exempt from disclosure under the provisions of article one, chapter twenty-nine-b of this code, and is disclosable only to the state agency specified on spending unit authorizing the check, or to the payee, his or her personal representative, next of kin or attorney-at-law. and is otherwise confidential and exempt from disclosure under the provisions of article one, chapter twenty-nine-b of this code
(e) All claims required by law to be allowed by any court, and payable out of the state treasury, shall have the seal of the court allowing or authorizing the payment of the claim affixed by the clerk of the court to his or her certificate of its allowance. No claim may be audited and paid by the auditor unless the seal of the court is thereto attached as aforesaid. No tax or fee may be charged by the clerk for affixing his or her seal to the certificate, referred to in this section. The treasurer shall propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code governing the procedure for such payments from the treasury.
§12-3-1a. Payment by deposit in bank account.
The auditor may issue his warrant on the treasurer to pay any person claiming to receive money from the treasury by deposit to the person's account in any bank or other financial institution by electronic funds transfer, if the person furnishes authorization of the method of payment. The auditor shall prescribe the form of the authorization. If the authorization is in written form, it shall be sent to the auditor for review and approval and then forwarded in electronic form to the treasurer. If the authorization is in electronic form, it shall be sent to both the auditor and the treasurer. The auditor must review and approve the authorization. This section shall may not be construed to require the auditor to utilize the method of payment authorized by this section. An authorization furnished pursuant to this section may be revoked by written notice furnished to the auditor and then forwarded by the auditor in electronic form to the treasurer or by electronic notice furnished to both the auditor and the treasurer. Upon execution of the authorization and its receipt by the office of the auditor, the warrant shall be created in the manner specified on the authorization and forwarded to the treasurer for further disposition to the designated bank or other financial institution specified on the electronic warrant: Provided, That after the first day of July, two thousand two, the state auditor shall cease issuing paper warrants except for income tax refunds. After that date all warrants except for income tax refunds, shall be issued by electronic funds transfer: Provided, however, That the auditor, in his or her discretion, may issue paper warrants on an emergency basis. Provided further, That the treasurer and the auditor may contract with any bank or financial institution for the processing of electronic authorizations
ARTICLE 3A. FINANCIAL ELECTRONIC COMMERCE.
§12-3A-3. Financial electronic commerce.
The state auditor and the state treasurer shall implement electronic commerce capabilities for each of their offices to facilitate the performance of their duties under this code. The state auditor and the state treasurer shall competitively bid the selection of vendors needed to provide the necessary banking, investment and related goods and services, for their offices and the provisions of article one-b, chapter five, and articles three and seven, chapter five-a of this code shall not apply, unless requested by the state auditor or state treasurer.
A record, or an authentication, a document or a signature issued or used by the auditor, or the treasurer shall be considered an original and may not be denied legal effect solely on the ground that it is in electronic form.
The head of each spending unit is responsible for adopting and implementing security procedures to ensure adequate integrity, security, confidentiality, and auditability of the business transactions of his or her spending unit when utilizing electronic commerce.
§12-3A-4. Payment by the West Virginia check card.
The state auditor and the state treasurer may establish a state debit card known as the 'West Virginia Check Card' for recipients of employee payroll or of retirement, benefits or entitlement programs processed by the auditor who are considered unbanked and who do not possess a federally insured depository institution account. The state auditor and the state treasurer shall use every reasonable effort to make a federally insured depository account available to a recipient, and to encourage all recipients to obtain a federally insured depository account. Prior to issuing the West Virginia check card, the state auditor and the state treasurer shall first make a determination that a recipient has shown good cause that an alternative method to direct deposit is necessary. The state auditor and the state treasurer shall jointly issue a request for proposals in accordance with section three of this article to aid the auditor in the administration of the program and to aid the treasurer in the establishment of state owned bank accounts and accommodate accessible locations for use of the West Virginia check card. In carrying out the purposes of this article, the state auditor and state treasurer shall not compete with banks or other federally insured financial institutions, or for profit.
§12-3A-6. Receipting of electronic commerce purchases.
(a) The state treasurer may establish a system for acceptance of credit card and other payment methods for electronic commerce purchases from spending units. Notwithstanding any other provision of this code to the contrary, each spending unit utilizing WEB commerce, electronic commerce or other method that offers products or services for sale shall utilize the state treasurer's system for acceptance of payments.
(b) To facilitate electronic commerce, the state treasurer may charge a spending unit for the banking and other expenses incurred by the treasurer on behalf of the spending unit and for any work performed, including, without limitation, assisting in the development of a website and utilization of the treasurer's payment gateway. A special revenue account, entitled the 'Treasurer's Financial Electronic Commerce Fund,' is created in the state treasury to receive the amounts charged by the treasurer. The treasurer may expend the funds received in the Treasurer's Financial Electronic Commerce Fund only for the purposes of this article and for other purposes as determined by the Legislature.
(c) The state treasurer may authorize a spending unit to assess and collect a fee to recover or pay the cost of accepting bank, charge, check, credit or debit cards from amounts collected. The state treasurer shall propose legislative rules for promulgation in accordance with the provisions of article three of chapter twenty-nine-a of this code to establish the criteria and procedures involved in granting the authorization and may promulgate emergency rules in accordance with the provisions of article three of chapter twenty-nine-a of the code to implement the provisions of this section prior to authorization of the legislative rules.
ARTICLE 5. PUBLIC SECURITIES.
§12-5-1. Securities defined.
The term 'securities' when used in this article shall include all bonds, securities, debentures, notes or other evidences of indebtedness, and for purposes of this chapter all cash received by any state spending unit intended to serve as security for a legal obligation, whether pursuant to court order or otherwise.
§12-5-5. Protection and handling of securities.
(a) The noncash securities retained in the treasury shall be kept in a vault. The treasurer shall use due diligence in protecting the securities against loss from any cause. The treasurer shall designate certain employees to take special care of the securities. Only the treasurer and the designated employees may have access to the securities, and at least two of these persons shall be present whenever the securities are handled in any manner. The treasurer may contract with one or more banking institutions in or outside the state for the custody, safekeeping and management of securities. The contract shall prescribe the rules for the handling and protection of the securities.
(b) The 'Treasurer's Safekeeping Fund' is established in the state treasury. The treasurer shall deposit moneys received pursuant to this article in the Treasurer's Safekeeping Fund. The treasurer is authorized to invest the money in accordance with this code and the restrictions placed on the money, with earnings accruing to the moneys in the fund. The treasurer shall prescribe the forms and procedures for processing the moneys.
CHAPTER 18. EDUCATION.

ARTICLE 30. WEST VIRGINIA COLLEGE PREPAID TUITION AND SAVINGS PROGRAM ACT.

§18-30-4. Creation of program; board; members; terms; compensation; proceedings generally.
(a) The West Virginia college prepaid tuition and savings program is hereby created continued. The program consists of a prepaid tuition plan and a savings plan.
(b) The board of trustees of the prepaid tuition trust fund in existence immediately prior to the effective date of this section shall become the board of the college prepaid tuition and savings program is continued and all powers, rights and responsibilities of the board of trustees of the prepaid tuition trust fund are transferred to vested in the board of the college prepaid tuition and savings program. With the exception of the members of the board appointed pursuant to the provisions of subdivision (3) of subsection (c) of this section, the members of the board of trustees of the prepaid tuition trust fund shall become the members of the board of the college prepaid tuition and savings program on the effective date of this section and shall, for all purposes, serve the same terms that they would have served had the board of trustees of the prepaid tuition trust fund continued.
(c) The board consists of nine members and includes the following:
(1) The secretary of education and the arts, or his or her designee;
(2) The state treasurer, or his or her designee;
(3) Two representatives of the higher education policy commission, who may or may not be members of the higher education policy commission, appointed by the commission who serve as voting members of the board, one of whom shall represent the interests of the universities of West Virginia and the state colleges and one of whom shall represent the interests of the state colleges and community and technical colleges of West Virginia; The members appointed pursuant to the provisions of this subdivision shall assume the positions heretofore held by the representatives of the university system board of trustees and the state college system board of directors in existence prior to July 1, 2000;
(4) Five other members, appointed by the governor, with knowledge, skill and experience in an academic, business or financial field, to be appointed as follows:
(A) A Two private citizen citizens not employed by, or an officer of, the state or any political subdivision of the state appointed from one or more nominees of the speaker of the House of Delegates;
(B) A private citizen not employed by, or an officer of, the state or any political subdivision of the state appointed from one or more nominees of the president of the Senate;
(C) One member representing the interests of private institutions of higher education located in this state appointed from one or more nominees of the West Virginia association of private colleges; and
(D) (C) Two members representing the public.
(d) The public members and the member representing the interests of private institutions of higher education are appointed by the governor with the advice and consent of the Senate.
(e) Only state residents are eligible for appointment to the board.
(f) Members appointed by the governor serve a term of five years and are eligible for reappointment at the expiration of their terms. In the event of a vacancy among appointed members, the governor shall appoint a person representing the same interests to fill the unexpired term. Of the initial appointments to the board of trustees of the prepaid tuition trust fund in existence immediately prior to the effective date of this section, the governor shall appoint one member to a one-year term, one member to a two-year term, one member to a three-year term, one member to a four-year term, and one member to a five-year term. Thereafter, all terms are five years.
(g) Members of the board serve until the later of the expiration of the term for which the member was appointed or the appointment of a successor. Members of the board serve without compensation. The treasurer may pay all expenses, including travel expenses, actually incurred by board members in the conduct of their official duties. Expense payments are made from the college prepaid tuition and savings program administrative account, and are made at the same rate paid to state employees.
(h) The treasurer may provide support staff and office space for the board.
(i) The treasurer is the chairman and presiding officer of the board, and may appoint the employees the board considers advisable or necessary. A majority of the members of the board constitute a quorum for the transaction of the business of the board."
And,
By amending the title of the bill to read as follows:
H. B. 4746 - "A Bill to amend and reenact §12-1-2, §12-1-7, §12-1-12 and §12-1-13 of the code of West Virginia, 1931, as amended; to amend and reenact §12-2-1 of said code; to amend and reenact §12-3-1 and §12-3-1a of said code; to amend and reenact §12-3A-3, §12-3A-4 and §12-3A-6 of said code; to amend and reenact §12-5-1 and §12-5-5 of said code; and to amend and reenact §18- 30-4 of said code, all relating generally to the state treasurer's office; designating financial institutions as depositories for state funds; adding state and federal savings and loan associations as candidates for depository banks; exceptions; defining spending unit for the purposes of chapter twelve of the code; allowing only the treasurer to enter into contracts for banking goods and services; exceptions; requiring financial institutions outside the state with state funds to meet the same collateral requirements for other depositories; clarifying that the treasurer may pay for banking goods and services by maintaining a compensating balance in an account other than only accounts that do not earn interest; adding electronic funds transfers to the methods the state uses to receive moneys; amending procedures for stale dated checks and requiring the treasurer to search for the payee; requiring spending units which have payments in which the checks have become stale to inform the treasurer's office when the stale dated checks contain federal funds, the amount of the federal funds and which account should receive the funds; specifying legal effect of documents and electronic signatures; adding the treasurer as additional administrator of the West Virginia check card; allowing the state treasurer to authorize spending units to assess and collect fees for electronic commerce receipts; requiring the state treasurer to issue legislative rules to authorize spending units to assess and collect fees for electronic commerce receipts; adding cash to the definition of securities; creating fund in treasury to allow for the deposit of cash into safekeeping and allowing the treasurer to invest the money and to prescribe forms and procedures for processing the moneys; changing the qualifications for certain members of the West Virginia college prepaid tuition and savings program and changing the appointment process of two members of the West Virginia college prepaid tuition and savings program."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 694), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Fleischauer.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4746) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4760, Supplemental appropriation to the governor's office - office of economic opportunity.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4761, Supplemental appropriation to the department of agriculture - donated food fund.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4762, Supplemental appropriation to the department of military affairs and public safety - office of emergency services.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 93, Suspending Joint Rule No. 5, providing for consideration on third reading of H. B. 4763.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4763, Extending the time for the city council of Dunbar to meet as a levying body for the purpose of presenting to the voters of the city an election to continue an additional city levy.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
Com. Sub. for S. B. 133, Budget bill.
On motion of Delegate Staton, the House of Delegates refused to recede from its amendment and requested the Senate to agree to the appointment of a Committee of Conference of six from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Michael, Doyle, Mezzatesta, Leach, Warner and Hall.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 8, Requesting a study on the childhood obesity epidemic in West Virginia in regards to chronic disease, poor nutrition and inadequate exercise.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the title and inserting in lieu thereof the following:
"Whereas, About a third of adults in West Virginia are overweight and one in four are obese; and
Whereas, The United States experienced unprecedented increases in overweight and obesity in the last decade--reaching epidemic proportions. In 1991, no state had an obesity rate of 20 percent or higher. As of the year 2000, 22 states reported obesity rates of 20 percent or higher. These increases cut across all ages, racial and ethnic groups and both genders; and
Whereas, West Virginia ranks first among all states in obesity; and
Whereas, Forty percent of children in West Virginia are either overweight or obese, and this prevalence has nearly tripled for adolescents in the past two decades; and
Whereas, Obesity is associated with increased mortality and risk for a number of disorders, including cardiovascular disease, hypertension, stroke, Type II diabetes, osteoarthritis and certain cancers; and
Whereas, Obesity has a significantly greater effect on the number of chronic conditions than the effects of current or past smoking or problem drinking; and
Whereas, A study by Obesity Research shows the estimated adult obesity-attributable medical expenditures in West Virginia are $588 million for the total population, $140 million for the Medicare population, and $187 million for the Medicaid population; and
Whereas, According to the United States Centers for Disease Control and Prevention (CDC), if this trend is not reversed, obesity-related health problems and associated costs will soon surpass those associated with tobacco; and
Whereas, Research supports the conviction that strong, healthy bodies promote learning and enhance mental and emotional health, social development, self-esteem and overall fitness and that coupling physical activity with an academic curriculum results in an overall increase in academic performance among school-age children; and
Whereas, Early detection and treatment of obesity as well as an emphasis on physical and nutritional education in childhood provides an opportunity for the development of lifelong health and fitness skills as well as proper eating habits; and
Whereas, Obesity is a preventable and treatable disease that has reached epidemic proportions; and education, prevention and proper treatment can reduce health care costs and improve the quality of life for a significant number of adults and children in West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance urges the Governor of the State of West Virginia, the Legislature of West Virginia, the Department of Health and Human Resources, the Public Employees Insurance Agency, the Department of Education and other state agencies and institutions to make the prevention and treatment of obesity a priority and to work to reduce obesity and improve the health and wellness of the residents of West Virginia through the following measures:
(1) Working collaboratively with federal agencies, such as the United States Centers for Disease Control and Prevention and with other states to promote guidelines and best practices in the prevention and treatment of obesity;
(2) Educating the medical community, teachers and school administrators, employers and the general public about the scope of the problem and ways to prevent and treat obesity in adults and children;
(3) Providing incentives and promoting the availability of obesity-related treatment in the state Medicaid program, PEIA and other state-funded insurance programs;
(4) Identifying and implementing strategies to increase the amount of daily quality physical activity and nutrition education in the curriculum of public schools; and
(5) Providing incentives for workplace initiatives to combat obesity and encourage physical activity; and, be it
Further Resolved, That the Joint Committee on Government and Finance is requested to study potential policies and legislation to encourage people to change their lifestyles which would result in dramatic changes in outcome measures on obesity within five years; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, 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."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The question now before the House being on the adoption of the resolution, as amended, the same was put and prevailed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendments, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 25, Requesting the three branches of state government to cooperate and encourage leaders of the state, county and municipal governments to identify and affirmatively address the racial disparities in various areas of civil rights.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the title and inserting in lieu thereof the following:
"Whereas, House Concurrent Resolution No. 76, adopted by the West Virginia Legislature in 2002, recognizes and outlines a number of employment, social, health, educational, criminal justice and economic problems confronting African Americans and their communities in this state; and
Whereas, Select Committee B on Minority Issues was created by the Joint Committee on Government and Finance as part of the 2003 legislative interims to consider House Concurrent Resolution No. 76 and to study and make recommendations and offer solutions to address problems identified in House Concurrent Resolution No. 76; and
Whereas, According to the 2000 Census, African Americans comprise approximately 3.2 percent of the state's population and more than 5 percent of the population in seven counties; and
Whereas, The West Virginia Legislature should be committed to connecting communities, exploring strategies for racial and social equality and taking proactive steps to remedy the effects of past discrimination on African American children, adults and families; and
Whereas, Prevention of discrimination in civil rights, the justice system, education, health care, economic development, employment, business development, housing and community and family services is preferable to attempting to remedy the consequences of discrimination; and
Whereas, There is a wide disparity between African American and Caucasian public school students in West Virginia with regard to standardized testing scores, indicating a significant achievement gap which widens with tragic consequences for a number of African American students as they progress in school; and
Whereas, On the 2003 ACT college entrance examination, which is used by the PROMISE scholarship program to determine eligibility for college scholarships, African American students' success rate was significantly lower than that of Caucasian students; and
Whereas, African American children have been overrepresented in special education programs in schools in Kanawha County, the only area of the state for which statistics were provided to the Committee, and underrepresented in advanced education programs and programs for performing or gifted students; but the Kanawha County Board of Education has established programs to identify and include all qualified students, without regard to race, in special programs to enhance performance and to address the academic achievement gap between African American and Caucasian children at early stages of the public education process; and
Whereas, The percentage of African American teachers and educational professionals in many of the state's public schools is disproportionately lower than the African American student population, to some degree depriving minority students of important African American role models and advocates in educational settings; and
Whereas, Training assistance and education programs with affirmative outreach to African Americans combine to help prevent racial discrimination; and
Whereas, African Americans in West Virginia experience a disproportionately higher incidence of health risk and mortality from cancer, diabetes, hypertension, heart disease and HIV; African American women tend to be diagnosed with breast cancer at later stages than Caucasian women; and the teen birth rate and the infant mortality rate among African Americans is twice that of Caucasians; and
Whereas, The percentage of African American children in the care and/or custody of the Bureau of Children and Families in 2003 was more than twice the percentage of African Americans in the general West Virginia population; and
Whereas, Business ownership among African Americans in Charleston, West Virginia, the only area of the state for which statistics were provided to the Committee, is proportionately less than minority business ownership nationwide; and
Whereas, The unemployment rate of African Americans recently has been about twice the unemployment rate for Caucasians and significantly higher in some counties with a greater concentration of African American population; and
Whereas, Statistics provided by the State Equal Employment Opportunity Office indicate that the percentage of minority employees among the full-time state government employees under the control of the Department of Administration is approximately the same as the percentage of African Americans in the state's population as a whole; and
Whereas, The West Virginia Advisory Committee to the United States Commission on Civil Rights has found continuing reports of racial discrimination in hiring, tension between law- enforcement officers and African American citizens and hate crimes and violence against minorities, including reported incidents of harassment of racial and ethnic minorities in schools; and
Whereas, The West Virginia Human Rights Commission reports that two-thirds of the hate crimes reported between 1992 and 2000 were racially motivated; and
Whereas, The West Virginia Legislative Auditor's Performance Evaluation and Research Division (PERD) reports that there is a scarcity of minority and female state troopers, especially in upper ranks, with only 16 (2.6 percent) of 606 troopers being female and only 3 (1.3 percent) of 606 troopers being African American; that the percentages of female and African American officers in county sheriff's departments are even lower; and that the state's 10 largest cities employ, on average, only 4.6 percent female officers and 3.9 percent African American officers, even though most of those cities have significantly greater populations of African Americans; and
Whereas, The West Virginia State Police have voluntarily sought to determine and monitor their own efforts relating to racial profiling sensitivity during routine traffic stops; and
Whereas, According to data voluntarily collected and provided by the West Virginia State Police, between October, 2002, and March, 2003, motor vehicles operated by minority drivers were stopped by state troopers at a rate roughly comparable to the percentage of minorities in the general state population. After being stopped, 63 percent of minority drivers were ticketed or arrested, compared to 51 percent of Caucasian drivers, and warnings were issued to 37 percent of all minority drivers, compared to 49 percent of Caucasian drivers; and
Whereas, West Virginia enjoys both a low juvenile crime rate and one of the nation's lowest juvenile detention rates, yet the percentage of minority youth in the West Virginia juvenile justice system exceeds the national rate of minority youths in the juvenile justice system; and
Whereas, In West Virginia, African Americans make up only 3.2 percent of the general population, but account for one third (1/3) of the adult prison population, one fifth (1/5) of the juveniles placed in detention and admitted to correctional facilities, and over one half (½) of the juveniles transferred to adult jurisdiction for major felonies; and
Whereas, There is a great and immediate need for comprehensive data collection and analysis on a multiyear basis and for continuing examination and review of solutions with regard to racial disparities in the areas of civil rights, health, education, housing, social issues, employment, economic development and criminal and juvenile justice systems; therefore, be it
Resolved by the Legislature of West Virginia:
That the three branches of state government should cooperate and encourage leaders of the state to identify and affirmatively address minority issues and racial disparities in the areas of civil rights, health, education, housing, social issues, employment, economic development and criminal and juvenile justice systems; and, be it
Further Resolved, That county boards of education should be encouraged to aggressively recruit minority teachers and other professionals to work in the public school system; and, be it
Further Resolved, That the Department of Education and county boards of education be given greater flexibility to employ teachers who are trained or experienced in working with African American children and parents; and, be it
Further Resolved, That the Legislature should provide funding for professional development to improve teachers' effectiveness with African American students and parents; and, be it
Further Resolved, That the Legislature should provide more funding for academic enrichment programs in locations where there are concentrations of poor and minority students, including more early preschool programs and after-school programs; and, be it
Further Resolved, That the Department of Health and Human Resources should increase access to education in welfare-to-work programs and evaluate placement and referral policies; and, be it
Further Resolved, That the Governor continue the mission of the Governor's Minority Students' Strategies Council to collect and analyze information from other states and organizations regarding effective policies and strategies for closing the academic achievement gap between Caucasian and minority students and to prepare an annual report for the Governor, the State Board of Education, the Higher Education Policy Commission, the Legislative Oversight Commission on Education Accountability and the public, outlining issues, recommendations and strategies to close the academic achievement gap; and, be it
Further Resolved, That the Department of Education be required to review its Policy No. 2421, 126 CSR 18 (1996) governing peer harassment and violence against minority students, to study the extent to which the Policy has been implemented in public schools throughout the state and to take necessary steps to ensure complete implementation of the Policy in all public schools as soon as reasonably possible; and, be it
Further Resolved, That the Department of Education and county boards of education themselves, with the input of the local communities, should provide hate crime prevention and response programs in schools and antibias training and education for students and teachers, including mechanisms to ensure harassment is reported before problems escalate, and that there are appropriate responses to incidents of harassment when they do occur; and, be it
Further Resolved, That the Legislature should direct resources to support community-level partnership and innovation to address racial and ethnic disparities in health care; and, be it
Further Resolved, That all governmental agencies, institutions and corporate bodies at state and local levels should be encouraged to regularly collect, analyze and report to the Department of Administration data relating to racial disparities among children, adults and families in West Virginia; and, be it
Further Resolved, That the Department of Administration should review and, if necessary, establish or reform state procurement policies and practices to assure that they meet federal and state requirements and that they effectively encourage meaningful participation of African Americans and other minorities in the process of competing for and awarding of state contracts for goods and services; and, be it
Further Resolved, That the State should continue to support and expand small business incubator programs like the one in place at Bluefield State College to encourage new and minority small business development; and, be it
Further Resolved, That the State should undertake initiatives to encourage African American business ownership similar to those efforts used to encourage greater rates of business ownership among women; and, be it
Further Resolved, That the State should assist community and economic development corporations to provide effective technical and business advisory services to minority-owned and - operated enterprises; and, be it
Further Resolved, That the Governor and the Legislature should encourage industry, banks and other private businesses to hire African Americans and to encourage businesses to be more aggressive in establishing diversity-conscious practices as employers and for their operations; and, be it
Further Resolved, That the State should encourage traditional and nontraditional lending institutions to be more creative and favorable to lending in minority communities and to minority persons, especially for business enterprises; and, be it
Further Resolved, That the Legislature should encourage small business start-up and expansion and provide funding to assist African American and other minority vendors to meet bid bonding requirements; and, be it
Further Resolved, That workforce investment boards should be accountable for educating poor and minority persons for jobs better than low-paying service jobs; and, be it
Further Resolved, That the West Virginia State Police and local law-enforcement officers should be trained and required to collect data regarding stops of motor vehicle operators which affect everyone's precious right of privacy in their motor vehicles, which data should include information on the stops and arrests of African Americans; and, be it
Further Resolved, That the West Virginia State Police and local law-enforcement agencies be required to provide diversity training for officers, including training to recognize and report hate crimes; and, be it
Further Resolved, That the West Virginia State Police be required to develop, in writing, goals for increasing the number of women and African Americans for all grades of officers and staff and to report annually as to its efforts and success in meeting those goals and be encouraged to employ African American and other minority persons as recruiting officers; and, be it
Further Resolved, That the Legislature, the Governor and the Supreme Court should increase support for criminal justice research and for the development, maintenance and continued assessment of data related to the effectiveness of the court system in the areas of criminal sentencing, juvenile adjudication and community-based corrections; and, be it
Further Resolved, That the Legislature should protect and maintain the confidentiality of juvenile records pending a study on the adverse impact of the release of such records on the employment and higher education opportunities of minority youth; and, be it
Further Resolved, That the West Virginia Supreme Court of Appeals should continue to study issues related to minority youth, including the highly disproportionate number of minority youth transferred from juvenile to adult jurisdiction in the criminal justice system through its Task Force to Study Perceived Racial Disparity in the Juvenile Justice System and to study and develop similar research projects with data collection in regard to adult offenders; and, be it
Further Resolved, That state agencies should study racial disparities in a number of areas to reduce gaps in educational achievement and in the overrepresentation of African Americans in adult prisons and juvenile facilities and encourage all participants in the educational and justice systems, including teachers, principals and other educational personnel, probation officers, juvenile referees, judges, justices, prosecutors, attorneys, law-enforcement officers, detention and correctional officers, caseworkers, social service providers, agency staff and members of the community to join in the study and development of policies and programs to address racial disparities; and, be it
Further Resolved, That the Legislature, the Governor and the Supreme Court should take immediate steps to develop, implement and fund a collaborative and comprehensive community-based plan to study and correct overrepresentation of minority children and adults in the state's criminal and juvenile justice systems, with particular attention to prevention of juvenile crime through mentoring, diversion, recidivism-reduction strategies, in-school and after-school programs, entrepreneurial education, job training and placement alternatives, community-based sentencing for nonviolent offenders and transition and reentry programs for offenders upon completion of their sentences; and, be it
Further Resolved, That state agencies and the Legislature should be encouraged to propose specific legislative proposals where appropriate to facilitate these recommendations; and, be it
Further Resolved, That the Legislature should continue to study minority and racial disparity issues in 2004; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby directed to forward a copy of this resolution to the Governor of West Virginia, the Justices of the West Virginia Supreme Court of Appeals, the President of the West Virginia Senate and the Speaker of the West Virginia House of Delegates."
And,
By amending the title of the resolution to read as follows:
H. C. R. 25 - "Requesting the three branches of state government to cooperate and encourage leaders of the state, county and municipal governments to identify and affirmatively address minority issues and racial disparities in the areas of civil rights, health, education, housing, social issues, employment, economic development and criminal and juvenile justice systems in West Virginia in the interest of equality."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
On the question of the adoption of the resolution, as amended, the same was put and prevailed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 30, Requesting the United States Congress to broaden the eligibility categories of membership in veterans' organizations.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, in the Resolving clause, after the words "United States", by inserting a comma and the words "wherever possible" followed by a comma.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The question now before the House being on the adoption of the resolution, as amended, the same was put and prevailed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a joint resolution of the House of Delegates as follows:
H. J. R. 114, Veterans Bonus Amendment of 2004.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page seven, line one hundred nine, by striking out the following proviso: "Provided, That no bonus may be issued until a list of veterans and relatives of deceased veterans eligible for such bonus and the amount of bonus each veteran or relative of a deceased veteran is eligible to receive is certified to the Legislature at the end of the involvement for the conflict in Afghanistan, the conflict in Kosovo and the Iraqi War by the Governor as the Legislature will provide by general law" and the period, and inserting in lieu thereof a new proviso, to read as follows: "Provided, That no bonus may be issued until the Governor certifies a list of veterans and relatives of deceased veterans eligible to receive such bonus to the Legislature at any regular or special session of the Legislature as the Legislature will provide by general law."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The resolution, as amended by the Senate, was then put upon its adoption.
On the adoption of the resolution, the yeas and nays were taken (Roll No. 695), and there were--yeas 99, nays none, absent and not voting 1, with the yeas, nays and absent and not voting being as follows:
Yeas: Amores, Anderson, Armstead, Ashley, Azinger, Beach, Beane, Blair, Boggs, Border, Brown, Browning, Butcher, Calvert, Campbell, Cann, Canterbury, Caputo, Carmichael, Caruth, Craig, Crosier, DeLong, Doyle, Duke, Ellem, Ennis, Evans, Faircloth, Ferrell, Fleischauer, Foster, Fragale, Frederick, Frich, Hall, Hamilton, Hartman, Hatfield, Houston, Howard, Hrutkay, Iaquinta, Kominar, Kuhn, Leach, Leggett, Long, Louisos, Mahan, Manchin, Manuel, Martin, Mezzatesta, Michael, Morgan, Overington, Palumbo, Paxton, Perdue, Perry, Pethtel, Pino, Poling, Proudfoot, Renner, Romine, Schadler, Schoen, Shaver, Shelton, Smirl, Sobonya, Spencer, Stalnaker, Staton, Stemple, Sumner, Susman, Swartzmiller, Tabb, Talbott, R. Thompson, R. M. Thompson, Trump, Tucker, Varner, Wakim, Walters, Warner, Webb, Webster, G. White, H. White, Williams, Wright, Yeager, Yost and Mr. Speaker, Mr. Kiss.
Nays: None
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the resolution (H. J. R. 114) adopted, as follows:
H. J. R. 114 - "Proposing an amendment to the Constitution of the State of West Virginia, authorizing appropriations and the issuance and sale of additional state bonds in an amount not exceeding eight million dollars for the purpose of paying bonuses to certain veterans or to relatives of certain veterans; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment."
Resolved by the Legislature of West Virginia, two thirds of the members elected to each house agreeing thereto:
That the question of ratification or rejection of an amendment to the Constitution of the State of West Virginia be submitted to the voters of the state at the next general election to be held in the year two thousand four, or at any special election held prior thereto, which proposed amendment is as follows:
VETERANS BONUS AMENDMENT

(Kosovo, Afghanistan, and Iraq)

The Legislature shall provide by law, either for the appropriation from the general revenues of the State, or for the issuance and sale of state bonds, which shall be in addition to all other state bonds heretofore issued, or a combination of both as the Legislature may determine, for the purpose of paying a cash bonus to: (1) Veterans of the armed forces of the United States who served on active duty in areas of conflict in Iraq, or were members of reserve components called to active duty by the President of the United States under Title 10, United States Code section 12301, 12302, 12303 or 12304 during the Iraqi War, between the nineteenth day of March, two thousand three and the date determined by the President or Congress of the United States as the end of the involvement of the United States armed forces in Iraq, both dates inclusive; or (2) veterans, active service members, or members of reserve components of the armed forces of the United States, who served on active duty in one of the military operations for which he or she received a campaign badge or expeditionary medal during the periods hereinafter described. For purposes of this amendment, periods of active duty in a campaign or expedition are designated as: The conflict in Kosovo between the twentieth day of November, one thousand nine hundred ninety-five and the thirty-first day of December, two thousand, both dates inclusive; and the conflict in Afghanistan, between the seventh day of October, two thousand one and the date determined by the President or Congress of the United States as the end of the involvement of the United States armed forces in Afghanistan, both dates inclusive. For purposes of this amendment not more than one bonus shall be paid to or on behalf of the service of a veteran. In order to be eligible to receive a bonus, a veteran must have been a bona fide resident of the State of West Virginia at the time of his or her entry into active service and for a period of at least six months immediately prior thereto, and has not been separated from service under conditions other than honorable. The bonus shall also be paid to any veteran otherwise qualified pursuant to this amendment, who was discharged within ninety days after entering the armed forces because of a service-connected disability. The amount of the bonus shall be six hundred dollars per eligible veteran who was in active service, inside the combat zone in Kosovo, Afghanistan or Iraq as designated by the President or Congress of the United States at anytime during the dates specified hereinabove. In the case of the Iraqi War and the conflict in Afghanistan, the amount of bonus shall be four hundred dollars per eligible veteran who was in active service outside the combat zone designated by the President or Congress of the United States during the dates specified hereinabove. The bonus to which any deceased veteran would have been entitled, if living, shall be paid to the following surviving relatives of the veteran, if the relatives are residents of the State when the application is made and if the relatives are living at the time payment is made: Any unremarried widow or widower, or, if none, all children, stepchildren and adopted children under the age of eighteen, or, if none, any parent, stepparent, adoptive parent or person standing in loco parentis. The categories of persons listed shall be treated as separate categories listed in order of entitlement and where there is more than one member of a class, the bonus shall be paid to each member according to his or her proportional share. Where a deceased veteran?s death was connected with the service and resulted from the service during the time period specified, however, the surviving relatives shall be paid, in accordance with the same order of entitlement, the sum of two thousand dollars in lieu of any bonus to which the deceased might have been entitled if living. The person receiving the bonus shall not be required to include the bonus as income for state income tax purposes.
The principal amount of any bonds issued for the purpose of paying the bonuses provided for in this amendment shall not exceed the principal amount of eight million dollars, but may be funded or refunded either on the maturity dates of the bonds or on any date on which the bonds are callable prior to maturity, and if any of the bonds have not matured or are not then callable prior to maturity, the Legislature may nevertheless provide at any time for the issuance of refunding bonds to fund or refund the bonds on the dates when the bonds mature or on any date on which the bonds are callable prior to maturity and for the investment or reinvestment of the proceeds of the refunding bonds in direct obligations of the United States of America until the date or dates upon which the bonds mature or are callable prior to maturity. The principal amount of any refunding bonds issued under the provisions of this paragraph shall not exceed the principal amount of the bonds to be funded or refunded thereby.
The bonds may be issued from time to time for the purposes authorized by this amendment as separate issues or as combined issues.
Whenever the Legislature shall provide for the issuance of any bonds under the authority of this amendment, it shall at the same time provide for the levy, collection and dedication of an additional tax, or enhancement to another tax as the Legislature may determine, in an amount as may be required to pay annually the interest on the bonds and the principal thereof within and not exceeding fifteen years, and all taxes or charges so levied shall be irrevocably dedicated for the payment of the principal of and interest on the bonds until the principal of and interest on the bonds are finally paid and discharged and any of the covenants, agreements or provisions in the acts of the Legislature levying the taxes or charges shall be enforceable in any court of competent jurisdiction by any of the holders of said bonds. Any revenue generated in excess of that which is required to pay the bonuses herein and to pay any administrative cost associated with the payment shall be used to pay the principal and interest on any bonds issued as soon as is economically practicable.
The Legislature shall have the power to enact legislation necessary and proper to implement the provisions of this amendment: Provided, That no bonus may be issued until the Governor certifies a list of veterans and relatives of deceased veterans eligible to receive such bonus to the Legislature at any regular or special session of the Legislature as the Legislature will provide by general law.
Resolved further, That in accordance with the provisions of article eleven, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, such proposed amendment is hereby numbered "Amendment No. 1" and designated as the "Veterans Bonus Amendment of 2004," and the purpose of the proposed amendment is summarized as follows: "To amend the State Constitution to permit the Legislature to appropriate general revenues or sell state bonds for the payment of bonuses and death benefits to veterans of the conflicts in Kosovo, Afghanistan and Iraq or to their relatives, and to impose or increase a tax to pay for the bonds.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of Conference on, and the passage, as amended by said report, to take effect from passage, and requested the concurrence of the House of Delegates in the passage, of
S. B. 448, Relating to higher education advisory boards generally.
Special Calendar

Third Reading

Com. Sub. for S. B. 513, Relating to jobs investment trust board; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 696), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 513) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 513 - "A Bill to amend and reenact §12-7-4, §12-7-6, §12-7-8a and §12- 7-11 of the code of West Virginia, 1931, as amended, all relating to the jobs investment trust board; expanding board powers; providing for sale or transfer of nonincentive tax credits; and providing that certain documents be available for public inspection."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 516, Establishing eastern panhandle highway authority; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 697), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 516) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 516 - "A Bill to establish the West Virginia eastern panhandle transportation authority to include representatives from Berkeley, Jefferson and Morgan counties; appointment of officers; and powers of authority."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 536, Relating to claims against state; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page eight, section one, following line ninety-three, by inserting "(1)".
On page twenty, section one, line three hundred fifty-eight, by striking out "(2)" and inserting in lieu thereof "(1)".
And,
On page twenty, section one, line three hundred fifty-nine, by striking out "(n)" and inserting in lieu thereof "(2)".
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 698), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 536) passed.
Delegate Varner moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 699), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 536) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 260, Allowing design-build board to be reimbursed for certain expenses; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 700), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 260) passed.
Delegate Varner moved that the bill take effect September 1, 2004.
On this question, the yeas and nays were taken (Roll No. 701), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 260) takes effect September 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 554, Continuing guardianship or conservatorship of deceased protected persons; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 702), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 554) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 558, Making misuse of power of attorney or fiduciary relationship crime; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 703), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 558) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 558 - "A Bill to amend and reenact §61-3-20 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §61-3-20a, all relating to crimes of embezzlement; removing certain evidentiary presumptions which have been deemed unconstitutional; creating a new crime of embezzlement related to the wilful and fraudulent misuse of a power of attorney or other fiduciary relationship; providing that such crimes of embezzlement or fraudulent conversion to be punishable as larceny."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 573, Providing procedure for economic development authority to address problems of state minorities; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page six, section three, line seven, by striking out the words "faith- based organizations" and inserting in lieu thereof the words "non-profit organizations".
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 704), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 573) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Frich requested that the Journal record her as voting "Nay" on the Judiciary amendment to S. B. 573.
Conference Committee Report

Delegate Williams, from the Committee of Conference on matters of disagreement between the two houses, as to
H. B. 4601, Relating to public education generally,
Submitted the following report, which was received.
Your Committee of Conference on the disagreeing votes of the two houses on the amendment of the Senate to H. B. 4601, having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the Senate striking out everything after the enacting clause and inserting new language, and agree to the same as follows:

That §18-9A-7 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that §18-9D-2, §18-9D-6, §18-9D-8, §18-9D-15 and §18-9D-16 of said code be amended and reenacted, all to read as follows:
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-7. Foundation allowance for transportation cost.

The allowance in the foundation school program for each county for transportation shall be the sum of the following computations:
(1) Eighty-five percent of the transportation cost within each high-density county and ninety percent of the transportation cost within each low-density county for maintenance, operation and related costs, exclusive of all salaries: Provided, That for the school year beginning the first day of July, one thousand nine hundred ninety-eight, and thereafter, in the event a for any county that uses an alternative fuel such as compressed natural gas or other acceptable alternative fuel for the operation of all or any portion of its school bus system, then the allowance in the foundation school program for each such the county for that portion of its school bus system shall be ninety-five percent of the transportation cost for maintenance, operation and related costs, exclusive of all salaries, incurred by the use of the alternatively fueled school buses: Provided, however, That any county using an alternative fuel and qualifying for the additional allowance shall submit a plan regarding the intended future use of alternatively fueled school buses;
(2) The total cost, within each county, of insurance premiums on buses, buildings and equipment used in transportation: Provided, That such the premiums were procured through competitive bidding;
(3) For the school year beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, an An amount equal to eight and one-third percent of the current replacement value of the bus fleet within each county as determined by the state board. such The amount to be used only shall only be used for the replacement of buses. Buses purchased after the first day of July, one thousand nine hundred ninety-nine, that are driven one hundred eighty thousand miles, regardless of year model, will be subject to the replacement value of eight and one-third percent as determined by the state board: Provided, That for the school year beginning on the first day of July, two thousand four, only, the allowance in the foundation school program for each county for transportation shall not include an amount for the replacement of buses. In addition, in any school year in which its net enrollment increases when compared to the net enrollment the year immediately preceding, a school district may apply to the state superintendent for funding for an additional bus. The state superintendent shall make a decision regarding each application based upon an analysis of the individual school district's net enrollment history and transportation needs: Provided, however, That the superintendent shall not consider any application which fails to document that the county has applied for federal funding for additional buses. If the state superintendent finds that a need exists, a request for funding shall be included in the budget request submitted by the state board for the upcoming fiscal year;
(4) Eighty-five percent of the cost of contracted transportation services and public utility transportation within each high-density county and ninety percent of the cost of contracted transportation services and public utility transportation within each low-density county;
(5) Aid in lieu of transportation equal to the state average amount per pupil for each pupil receiving such the aid within each county; and
(6) Ninety-five percent of the transportation cost for maintenance, operation and related costs, exclusive of all salaries, for transporting students to and from classes at a multicounty vocational center.
The total state share for this purpose shall be the sum of the county shares: Provided, That no county shall receive an allowance which is greater than one-third above the computed state average allowance per transportation mile multiplied by the total transportation mileage in the county: Provided, however, That one half of one percent of the transportation allowance distributed to each county shall be for the purpose of trips related to academic classroom curriculum and not related to any extracurricular activity: Provided further, That for the school year beginning on the first day of July, two thousand four, only, the transportation allowance of each county shall include an allocation for the purpose of trips related to academic classroom curriculum and not related to any extracurricular activity. The allocation shall equal the amount distributed to the county for this purpose in the school year beginning on the first day of July, two thousand three: And provided further, That any remaining funds credited to a county for the purpose of trips related to academic classroom curriculum during the fiscal year shall be carried over for use in the same manner the next fiscal year and shall be separate and apart from, and in addition to, the appropriation for the next fiscal year: And provided further, That the state board may request a county to document the use of funds for trips related to academic classroom curriculum if the board deems it determines that it is necessary.
The state department of education shall cause a comprehensive study to be made relating to student transportation. The study shall examine, but is not limited to, the issues of funding, timeliness of data used for formula distribution, service personnel needed, inter-county service, regionalization of services, bus routes, amount of time students spend on buses, maintenance, safety training, and alternative transportation systems. The state department of education shall submit a report of the study to the legislative oversight commission on education accountability by the fifteenth day of January, one thousand nine hundred ninety-nine.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-2. Definitions.

The following terms, wherever used or referred to in this article, have the following meanings unless a different meaning clearly appears from the context:
(1) "Authority" means the school building authority of West Virginia or, if said the authority shall be is abolished, any board or officer succeeding to the principal functions thereof of the school building authority or to whom the powers given to said the authority shall be are given by law;
(2) "Bonds" means bonds issued by the authority pursuant to this article;
(3) "Construction project" means a project in the furtherance of a facilities plan with a cost of the project greater than five hundred thousand dollars for the new construction, expansion or major renovation of facilities, buildings and structures for school purposes, including the acquisition of land for current or future use in connection therewith with the construction project, as well as new or substantial upgrading of existing equipment, machinery, furnishings, installation of utilities and other similar items convenient in connection with placing the foregoing construction project into operation: Provided, That a construction project may not include such items as books, computers or equipment used for instructional purposes, fuel, supplies, routine utility services fees, routine maintenance costs, ordinary course of business improvements and other items which are customarily deemed considered to result in a current or ordinary course of business operating charge: Provided, however, That a construction project may not include a major improvement project;
(4) "Cost of project" means the cost of construction, expansion, renovation, repair and safety upgrading of facilities, buildings and structures for school purposes; the cost of land, equipment, machinery, furnishings, installation of utilities and other similar items convenient in connection with placing the foregoing project into operation; and the cost of financing, interest during construction, professional service fees and all other charges or expenses necessary, appurtenant or incidental to the foregoing, including the cost of administration of this article;
(5) "Facilities plan" means the a ten-year countywide comprehensive educational facilities plan established by the county board in accordance with guidelines adopted by the authority to meet the goals and objectives of this article that: (i) Addresses the existing school facilities and facility needs of the county to provide a thorough and efficient education in accordance with the provisions of this code and policies of the state board; (ii) best serves the needs of the individual student, the general school population and the communities served by the facilities; (iii) includes a school major improvement plan as defined in this section; (iv) is updated annually to reflect projects completed, current enrollment projections and new or continuing needs; and (v) is approved by the state board and the authority for school facilities required prior to the distribution of state funds pursuant to this article to any county board or other entity applying for funds; pursuant to subsection (a), section sixteen of this article;
(6) "Project" means a construction project or a major improvement project;
(7) "Region" means the area encompassed within and serviced by a regional educational service agency established pursuant to section twenty-six, article two of this chapter;
(8) "Revenue" or "revenues" means moneys deposited in the school building capital improvements fund pursuant to the operation of section ten, article nine-a of this chapter; moneys deposited in the school construction fund pursuant to the operation of section thirty, article fifteen, chapter eleven of this code and pursuant to the operation of section eighteen, article twenty-two, chapter twenty-nine of this code; moneys deposited in the school building debt service fund pursuant to section eighteen, article twenty-two, chapter twenty-nine of this code; moneys deposited in the school major improvement fund pursuant to the operation of section thirty, article fifteen, chapter eleven of this code; any moneys received, directly or indirectly, from any source for use in any project completed pursuant to this article; and any other moneys received by the authority for the purposes of this article;
(9) "School major improvement plan" means the a ten-year school maintenance plan to be that: (i) Is prepared by each a county board of education in accordance with the guidelines established by the authority and incorporated in its countywide comprehensive educational facilities plan or is prepared by the state board of education or the administrative council of an area vocational educational center in accordance with the guidelines if such entity seeks the entities seek funding from the authority for a major improvement project; which school major improvement plan (ii) addresses the regularly scheduled maintenance for all school facilities of the county or under the jurisdiction of the entity seeking funding; (iii) includes a projected repair and replacement schedule for all school facilities of the county or of entity seeking funding; (iv) addresses the major improvement needs of each school within the county or under the jurisdiction of the entity seeking funding; and (v) is required prior to the distribution of state funds for a major improvement project pursuant to subsection (b), section sixteen of this article to the county board, state board or administrative council; and
(10) "School major improvement project" means a project with a cost greater than fifty thousand dollars and less than five hundred thousand dollars for the renovation, expansion, the repair and safety upgrading of existing school facilities, buildings and structures, including the substantial repair or upgrading of equipment, machinery, building systems, utilities and other similar items convenient in connection with such renovation, repair or upgrading in the furtherance of a school major improvement plan: Provided, That a major improvement project may not include such items as books, computers or equipment used for instructional purposes, fuel, supplies, routine utility services fees, routine maintenance costs, ordinary course of business improvements and other items which are customarily deemed considered to result in a current or ordinary course of business operating charge.
§18-9D-6. School building capital improvements fund in state treasury; school construction fund in state treasury; school building debt service fund in state treasury; school improvement fund in state treasury; collections to be paid into special funds; authority to pledge the collections as security for refunding revenue bonds; authority to finance projects on a cash basis.

(a) There is continued in the state treasury a school building capital improvements fund to be expended by the authority as provided in this article. The school building capital improvements fund shall be an interest-bearing account with interest credited to and deposited in the school building capital improvements fund and expended in accordance with the provisions of this article.
The school building authority may pledge all or any part of the revenues paid into the school building capital improvements fund that are needed to meet the requirements of any revenue bond issue or issues authorized by this article prior to the twentieth day of July, one thousand nine hundred ninety-three, or revenue bonds issued to refund revenue bonds issued prior to that date, including the payment of principal of, interest and redemption premium, if any, on the revenue bonds and the establishing and maintaining of a reserve fund or funds for the payment of the principal of, interest and redemption premium, if any, on the revenue bond issue or issues when other moneys pledged may be insufficient for the payment of the principal, interest and redemption premium, including any additional protective pledge of revenues that the authority in its discretion has provided by resolution authorizing the issuance of the bonds or in any trust agreement made in connection with the bond issue. Additionally, the authority may provide in the resolution and in the trust agreement for priorities on the revenues paid into the school building capital improvements fund that are necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this article.
Any balance remaining in the school building capital improvements fund after the authority has issued bonds authorized by this article and after the requirements of all funds, including reserve funds established in connection with the bonds issued prior to the twentieth day of July, one thousand nine hundred ninety-three, pursuant to this article have been satisfied may be used for the redemption of any of the outstanding bonds issued under this article which by their terms are then redeemable, or for the purchase of the bonds at the market price, but not exceeding the price, if any, at which the bonds are in the same year redeemable and all bonds redeemed or purchased shall immediately be canceled and shall not again be issued.
The school building authority, in its discretion, may use the moneys in the school building capital improvements fund to finance the cost of projects authorized in accordance with the provisions of section sixteen of this article on a cash basis. Any pledge of moneys in the fund for revenue bonds issued prior to the twentieth day of July, one thousand nine hundred ninety-three, is a prior and superior charge on the fund over the use of any of the moneys in the fund to pay for the cost of any project on a cash basis: Provided, That any expenditures from the fund, other than for the retirement of revenue bonds, may only be made by the authority in accordance with the provisions of this article.
(b) There is continued in the state treasury a special revenue fund named the school building debt service fund into which shall be deposited the amounts specified in section eighteen, article twenty-two, chapter twenty-nine of this code. All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this article: Provided, That deposited moneys may not be pledged to the repayment of any revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four, or with respect to revenue bonds issued for the purpose of refunding revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four. Additionally, the authority may provide in the resolution and in the trust agreement for priorities on the revenues paid into the school building debt service fund that are necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this article. On or prior to the first day of May of each year, the authority shall certify to the state lottery director the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds issued on or after the first day of January, one thousand nine hundred ninety-four, and for which moneys deposited in the school building debt service fund have been pledged, or will be pledged, for repayment pursuant to this section.
After the authority has issued bonds authorized by this article and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this article, any balance remaining in the school building debt service fund may be used for the redemption of any of the outstanding bonds issued under this article which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which the bonds are redeemable and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued: Provided, That after the authority has issued bonds authorized by this article and after the requirements of debt service and all associated funds have been satisfied for the fiscal year, including coverage and reserve funds established in connection with the bonds issued pursuant to this article, any remaining balance in the school building debt service fund may be transferred to the school construction fund created in subsection (c) of this section and used by the school building authority in its discretion to finance the cost of school construction or improvement projects authorized in accordance with the provisions of section sixteen of this article on a cash basis.
(c) There is continued in the state treasury a special revenue fund named the school construction fund into which shall be deposited the amounts specified in section thirty, article fifteen, chapter eleven of this code and section eighteen-a, article twenty-two, chapter twenty-nine of this code, together with any moneys appropriated to the fund by the Legislature: Provided, That for the school year beginning the first day of July, two thousand and four, only, funds from the excess lottery allocated in section eighteen-a, article twenty-two, chapter twenty-nine of this code shall not be transferred to the school construction fund and, in lieu thereof, made available for legislative appropriation: Provided however, That for the school year beginning the first day of July, two thousand and four, only, up to five million dollars of the amounts in the fund may be appropriated by the Legislature for budget shortfalls. Expenditures from the school construction fund shall be for the purposes set forth in this article, including lease-purchase payments under agreements made pursuant to subsection (e), section fifteen of this article and section nine, article five of this chapter and are authorized from collections in accordance with the provisions of article three, chapter twelve of this code and from other revenues annually appropriated by the Legislature from lottery revenues as authorized by section eighteen, article twenty-two, chapter twenty-nine of this code pursuant to the provisions set forth in article two, chapter five-a of this code. Amounts collected which are found, from time to time, to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. The school construction fund shall be an interest-bearing account, with the interest credited to and deposited in the school construction fund and expended in accordance with the provisions of this article. Deposits to and expenditures from the school construction fund are subject to the provisions of subsection (i), subsection (k), section fifteen of this article.
(d) There is continued in the state treasury a special revenue fund named the school major improvement fund into which shall be deposited the amounts specified in section thirty, article fifteen, chapter eleven of this code, together with any moneys appropriated to the fund by the Legislature. Expenditures from the school major improvement fund shall be for the purposes set forth in this article and are authorized from collections in accordance with the provisions of article three, chapter twelve of this code and from other revenues annually appropriated by the Legislature from lottery revenues as authorized by section eighteen, article twenty-two, chapter twenty-nine of this code pursuant to the provisions set forth in article two, chapter five-a of this code. Amounts collected which are found, from time to time, to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. The school major improvement fund shall be an interest-bearing account, with interest being credited to and deposited in the school major improvement fund and expended in accordance with the provisions of this article.
(e) The Legislature finds and declares that the supreme court of appeals of West Virginia has held that the issuance of additional revenue bonds authorized under the school building authority act, as enacted in this article prior to the twentieth day of July, one thousand nine hundred ninety-three, constituted an indebtedness of the state in violation of section four, article X of the constitution of West Virginia, but that revenue bonds issued under this article prior to the twentieth day of July, one thousand nine hundred ninety-three, are not invalid. The Legislature further finds and declares that the financial capacity of a county to construct, lease and improve school facilities depends upon the county's bonding capacity (local property wealth), voter willingness to pass bond issues and the county's ability to reallocate other available county funds instead of criteria related to educational needs or upon the ability of the school building authority created in this article to issue bonds that comply with the holding of the West Virginia supreme court of appeals or otherwise assist counties with the financing of facilities construction and improvement. The Legislature further finds and declares that this section, as well as section eighteen, article twenty-two, chapter twenty-nine of this code, have been reenacted during the first extraordinary session of the West Virginia Legislature in the year one thousand nine hundred ninety-four in an attempt to comply with the holding of the supreme court of appeals of West Virginia.
The Legislature further finds and declares that it intends, through the reenactment of this section and section eighteen, article twenty-two, chapter twenty-nine of this code, to dedicate a source of state revenues to special revenue funds for the purposes of paying the debt service on bonds and refunding bonds issued subsequent to the first day of January, one thousand nine hundred ninety-four, the proceeds of which will be used for the construction and improvement of school building facilities. The Legislature further finds and declares that it intends, through the reenactment of this section and section thirty, article fifteen, chapter eleven of this code and section eighteen, article twenty-two, chapter twenty-nine of this code, to appropriate revenues to two special revenue funds for the purposes of construction and improvement of school building facilities. Furthermore, the Legislature intends to encourage county boards to maintain existing levels of county funding for construction, improvement and maintenance of school building facilities and to generate additional county funds for those purposes through bonds and special levies whenever possible. The Legislature further encourages the school building authority, the state board and county boards of education to propose uniform project specifications for comparable projects whenever possible to meet county needs at the lowest possible cost.
The Legislature further finds and declares that it intends, through the reenactment of this section and section eighteen, article twenty-two, chapter twenty-nine of this code, to comply with the provisions of sections four and six, article X of the constitution of West Virginia; and section one, article XII of said constitution.
§18-9D-8. Use of proceeds of bonds; bonds exempt from taxation.
(a) The maximum aggregate face value of bonds that may be issued by the authority, for which the moneys in the school building debt service fund are to be pledged, is four hundred million dollars. The issuance of revenue bonds under the provisions of this article shall be authorized, from time to time, by resolution or resolutions of the school building authority which shall set forth the proposed projects authorized in accordance with the provisions of section sixteen of this article and provide for the issuance of bonds in amounts sufficient, when sold as hereinafter provided in this section, to provide moneys considered sufficient by the authority to pay the costs, less the amounts of any other funds available for the costs or from any appropriation, grant or gift for the costs: Provided, That bond issues from which bond revenues are to be distributed in accordance with section fifteen of this article shall for projects authorized pursuant to the provisions of section sixteen of this article are not be required to set forth the proposed projects in the resolution. The resolution shall prescribe the rights and duties of the bondholders and the school building authority and, for that purpose, may prescribe the form of the trust agreement hereinafter referred to in this section. The bonds may be issued, from time to time, in such amounts; shall be of such series; bear such date or dates; mature at such time or times not exceeding forty years from their respective dates; bear interest at such rate or rates; be in such denominations; be in such form, either coupon or registered, carrying such registration, exchangeability and interchangeability privileges; be payable in such medium of payment and at such place or places within or without the state; be subject to such terms of redemption at such prices not exceeding one hundred five percent of the principal amount of the bonds; and be entitled to such priorities on the revenues paid into the fund pledged for repayment of the bonds as may be provided in the resolution authorizing the issuance of the bonds or in any trust agreement made in connection with the bonds: Provided, however, That revenue bonds issued on or after the first day of January, one thousand nine hundred ninety-four, which are secured by lottery proceeds shall mature at such time or times not exceeding ten years from their respective dates.
(b) The bonds shall be signed by the governor, and by the president or vice president of the authority, under the great seal of the state, attested by the secretary of state, and the coupons attached to the bonds shall bear the facsimile signature of the president or vice president of the authority. In case any of the officers whose signatures appear on the bonds or coupons cease to be officers before the delivery of the bonds, the signatures shall nevertheless be valid and sufficient for all purposes the same as if such the officers had remained in office until such the delivery. The revenue bonds shall be sold in the manner determined by the authority to be for the best interests of the state.
(c) Any pledge of revenues made by the school building authority for revenue bonds issued prior to the twentieth day of July, one thousand nine hundred ninety-three, pursuant to this article is valid and binding between the parties from the time the pledge is made; and the revenues pledged shall immediately be subject to the lien of the pledge without any further physical delivery thereof of the revenues pledged or further act. The lien of the pledge is valid and binding against all parties having claims of any kind in tort, contract or otherwise, irrespective of whether the parties have notice of the lien of the pledge, and the pledge shall be a prior and superior charge over any other use of the revenues pledged.
(d) The proceeds of any bonds shall be used solely for the purpose or purposes as may be generally or specifically set forth in the resolution authorizing those bonds and shall be disbursed in the manner and with the restrictions, if any, that the authority provides in the resolution authorizing the issuance of the bonds or in the trust agreement hereinafter referred to in this section securing the same bonds. If the proceeds of the bonds, by error in calculations or otherwise, are less than the cost of any projects specifically set forth in the resolution, additional bonds may in like manner be issued to provide the amount of the deficiency; and unless otherwise provided for in the resolution or trust agreement hereinafter mentioned, the additional bonds shall be considered to be of the same issue and are entitled to payment from the same fund, without preference or priority, as the bonds before issued for the projects. If the proceeds of bonds issued for the projects specifically set forth in the resolution authorizing the bonds issued by the authority exceed the cost of the bonds, the surplus may be used for any other projects determined by the school building authority authorized in accordance with the provisions of section sixteen of this article or in any other manner that the resolution authorizing the bonds provides. Prior to the preparation of definitive bonds, the authority may, under like restrictions, issue temporary bonds with or without coupons, exchangeable for definitive bonds upon the issuance of the definitive bonds.
(e) After the issuance of any of revenue bonds, the revenues pledged for the revenue bonds shall not be reduced as long as any of the revenue bonds are outstanding and unpaid except under the terms, provisions and conditions that are contained in the resolution, trust agreement or other proceedings under which the revenue bonds were issued.
(f) The revenue bonds and the revenue refunding bonds and bonds issued for combined purposes, together with the interest on the bonds, are exempt from all taxation by the state of West Virginia, or by any county, school district, municipality or political subdivision thereof.
(g) To meet the operational costs of the school building authority, the school building authority may transfer to a special revenue account in the state treasury interest on any debt service reserve funds created within any resolution authorizing the issue of bonds or any trust agreement made in connection with the bonds for expenditure in accordance with legislative appropriation or allocation of appropriation.
(h) Any school construction bonds issued under this section shall be issued on parity with any existing school building authority bonds previously issued under this article.
§18-9D-15. Legislative intent; allocation of money among categories of projects; lease purchase options; limitation on time period for expenditure of project allocation; county maintenance budget requirements; project disbursements over period of years; preference for multicounty arrangements; submission of project designs; set-aside to encourage local participation; etc.

(a) It is the intent of the Legislature to empower the school building authority to facilitate and provide state funds and to administer all federal funds provided for the construction and major improvement of school facilities so as to meet the educational needs of the people of this state in an efficient and economical manner. The authority shall make funding determinations in accordance with the provisions of this article and shall assess existing school facilities and each facility's school major improvement plan in relation to the needs of the individual student, the general school population, the communities served by the facilities and facility needs statewide.
(b) An amount that is no more than three percent of the sum of moneys that are determined by the authority to be available for distribution during the then current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys paid into the school major improvement fund pursuant to section six of this article, may be allocated and may be expended by the authority for projects authorized in accordance with the provisions of section sixteen of this article that service the educational community statewide or, upon application by the state board, for educational programs that are under the jurisdiction of the state board. In addition, upon application by the state board or the administrative council of an area vocational educational center established pursuant to article two-b of this chapter, the authority may allocate and expend under this subsection moneys for school major improvement projects authorized in accordance with the provisions of section sixteen of this article proposed by the state board or an administrative council for school facilities under the direct supervision of the state board or an administrative council, respectively. Furthermore, upon application by a county board, the authority may allocate and expend under this subsection moneys for school major improvement projects for vocational programs at comprehensive high schools, vocational schools cooperating with community and technical college programs, or both. Each county board is encouraged to cooperate with community and technical colleges in the use of existing or development of new vocational technical facilities. All projects eligible for funds from this subsection shall be submitted directly to the authority which shall be solely responsible for the project's evaluation: Provided, That the authority may not expend any moneys for a school major improvement project proposed by the state board or the administrative council of an area vocational educational center unless the state board or an administrative council has submitted a ten-year school major improvement plan, to be updated annually, pursuant to section sixteen of this article: facilities plan: Provided, however, That the authority shall, before allocating any moneys to the state board or the administrative council of an area vocational educational center for a school improvement project, consider all other funding sources available for the project.
(c) An amount that is no more than two percent of the moneys that are determined by the authority to be available for distribution during the current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys deposited into the school major improvement fund, shall be set aside by the authority as an emergency fund to be distributed in accordance with the guidelines adopted by the authority.
(d) An amount that is no more than five percent of the moneys that are determined by the authority to be available for distribution during the current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys deposited into the school major improvement fund, may be reserved by the authority for multiuse vocational-technical education facilities projects that may include post-secondary programs as a first priority use. The authority may allocate and expend under this subsection moneys for any purposes authorized in this article on multiuse vocational-technical education facilities projects, including equipment and equipment updates at the facilities, authorized in accordance with the provisions of section sixteen of this article. and for equipment and equipment updates at the facilities. If the projects approved under this subsection do not require the full amount of moneys reserved, moneys above the amount required may be allocated and expended in accordance with other provisions of this article. A county board, the state board, an administrative council or the joint administrative board of a vocational-technical education facility which includes post-secondary programs may propose projects for facilities or equipment, or both, which are under the direct supervision of the respective body: Provided, That the authority shall, before allocating any moneys for a project under this subsection, consider all other funding sources available for the project.
(e) The remaining moneys determined by the authority to be available for distribution during the then current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys deposited into the school major improvement fund, shall be allocated and expended on the basis of need and efficient use of resources the basis to be determined by the authority for projects funded in accordance with the provisions of section sixteen of this article.
(f) If a county board of education proposes to finance a project that is approved pursuant to authorized in accordance with section sixteen of this article through a lease with an option to purchase leased premises upon the expiration of the total lease period pursuant to an investment contract, the authority may allocate no moneys to the county board in connection with the project: Provided, That the authority may transfer moneys to the state board of education which, with the authority, shall lend the amount transferred to the county board to be used only for a one-time payment due at the beginning of the lease term, made for the purpose of reducing annual lease payments under the investment contract, subject to the following conditions:
(1) The loan shall be secured in the manner required by the authority, in consultation with the state board, and shall be repaid in a period and bear interest at a rate as determined by the state board and the authority and shall have such any terms and conditions as that are required by the authority, all of which shall be set forth in a loan agreement among the authority, the state board and the county board;
(2) The loan agreement shall provide for the state board and the authority to defer the payment of principal and interest upon any loan made to the county board during the term of the investment contract, and annual renewals of the investment contract, among the state board, the authority, the county board and a lessor: Provided, That in the event a county board which has received a loan from the authority for a one-time payment at the beginning of the lease term does not renew the subject lease annually until performance of the investment contract in its entirety is completed, the county board is in default and the principal of the loan, together with all unpaid interest accrued to the date of the default, shall, at the option of the authority, in consultation with the state board, become due and payable immediately or subject to renegotiation among the state board, the authority and the county board: Provided, however, That if a county board renews the lease annually through the performance of the investment contract in its entirety, the county board shall exercise its option to purchase the leased premises: Provided further, That the failure of the county board to make a scheduled payment pursuant to the investment contract constitutes an event of default under the loan agreement: And provided further, That upon a default by a county board, the principal of the loan, together with all unpaid interest accrued to the date of the default, shall, at the option of the authority, in consultation with the state board, become due and payable immediately or subject to renegotiation among the state board, the authority and the county board: And provided further, That if the loan becomes due and payable immediately, the authority, in consultation with the state board, shall use all means available under the loan agreement and law to collect the outstanding principal balance of the loan, together with all unpaid interest accrued to the date of payment of the outstanding principal balance; and
(3) The loan agreement shall provide for the state board and the authority to forgive all principal and interest of the loan upon the county board purchasing the leased premises pursuant to the investment contract and performance of the investment contract in its entirety.
(g) To encourage county boards to proceed promptly with facilities planning and to prepare for the expenditure of any state moneys derived from the sources described in this subsection section, any county board failing or other entity to whom moneys are allocated by the authority that fails to expend the money within three years of the allocation to the county board shall forfeit the allocation and thereafter is ineligible for further allocations pursuant to this subsection section until the county board it is ready to expend funds in accordance with an approved facilities plan: Provided, That the authority may authorize an extension beyond the three-year forfeiture period not to exceed an additional two years. Any amount forfeited shall be added to the total funds available in the school construction fund of the authority for future allocation and distribution. Funds may not be distributed to any county board that does not have a comprehensive educational facility for any project under this article unless the responsible entity has a facilities plan approved by the state board and the school building authority or to any county board that is not and is prepared to commence expenditure of the funds during the fiscal year in which the moneys are distributed.
(h) The remaining moneys that are determined by the authority to be available for distribution during the then current fiscal year from moneys paid into the school major improvement fund pursuant to section six of this article shall be allocated and distributed on the basis of need and efficient use of resources the basis to be determined by the authority for projects authorized in accordance with the provisions of section sixteen of this article: Provided, That the moneys may not be distributed to any county board that does not have an approved school major improvement for any project under this section unless the responsible entity has a facilities plan or to any county board that is not prepared approved by the state board and the authority and is to commence expenditures of the funds during the fiscal year in which the moneys are distributed: Provided, however, That any moneys allocated to a county board project and not distributed to that county board for that project shall be deposited in an account to the credit of that county board the project, the principal amount to remain to the credit of and available to the county board project for a period of two years. Any moneys which are unexpended after a two-year period shall be redistributed on the basis of need from the school major improvement fund in that fiscal year.
(i) No local matching funds may be required under the provisions of this section. However, the responsibilities of the county boards of education to maintain school facilities are not negated by the provisions of this article. To be eligible to receive an allocation of school major improvement funds from the authority, a county board must have expended in the previous fiscal year an amount of county moneys equal to or exceeding the lowest average amount of money included in the county board's maintenance budget over any three of the previous five years and must have budgeted an amount equal to or greater than the average in the current fiscal year: Provided, That the state board of education shall promulgate rules relating to county boards' maintenance budgets, including items which shall be included in the budgets.
(j) Any county board may use moneys provided by the authority under this article in conjunction with local funds derived from bonding, special levy or other sources. Distribution to a county board, or to the state board or the administrative council of an area vocational educational center pursuant to subsection (b) of this section, may be in a lump sum or in accordance with a schedule of payments adopted by the authority pursuant to guidelines adopted by the authority.
(k) Funds in the school construction fund shall first be transferred and expended as follows:
Any funds deposited in the school construction fund shall be expended first in accordance with an appropriation by the Legislature. To the extent that funds are available in the school construction fund in excess of that amount appropriated in any fiscal year, the excess funds may be expended for projects authorized in accordance with the provisions of section sixteen of this article. Any projects which the authority identified and announced for funding on or before the first day of August, one thousand nine hundred ninety-five, or identified and announced for funding on or before the thirty-first day of December, one thousand nine hundred ninety-five, shall be funded by the authority in an amount which is not less than the amount specified when the project was identified and announced.
(l) It is the intent of the Legislature to encourage county boards to explore and consider arrangements with other counties that may facilitate the highest and best use of all available funds, which may result in improved transportation arrangements for students or which otherwise may create efficiencies for county boards and the students. In order to address the intent of the Legislature contained in this subsection, the authority shall grant preference to those projects which involve multicounty arrangements as the authority shall determine reasonable and proper.
(m) County boards shall submit all designs for construction of new school buildings to the school building authority for review and approval prior to preparation of final bid documents: Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, inclusive, article three, chapter five-a of this code, may not bid on or be awarded a contract under this section.
(n) The authority may elect to disburse funds for approved construction projects over a period of more than one year subject to the following:
(1) The authority may not approve the funding of a school construction project for over a period of more than three years;
(2) The authority may not approve the use of more than fifty percent of the revenue available for distribution in any given fiscal year for projects that are to be funded over a period of more than one year; and
(3) In order to encourage local participation in funding school construction projects, the authority may set aside limited funding, not to exceed five hundred thousand dollars, in reserve for one additional year to provide a county the opportunity to complete financial planning for a project prior to the allocation of construction funds. Any such funding shall be on a reserve basis and converted to a part of the construction grant only after all project budget funds have been secured and all county commitments have been fulfilled. Failure of the county to solidify the project budget and meet its obligations to the state within eighteen months of the date the funding is set aside by the authority will result in expiration of the reserve and the funds shall be reallocated by the authority in the succeeding funding cycle.
§18-9D-16. Authority to establish guidelines and procedures for facilities and major improvement plans; guidelines for modifications and updates, etc.; guidelines for project evaluation; submission of certified list of projects to be funded; department on-site inspection of facilities; enforcement of required changes or additions to project plans.

(a) The authority shall establish guidelines and procedures to promote the intent and purposes of this article and assure the prudent and resourceful expenditure of state funds for projects under this article including, but not limited to, the following:
(1) Guidelines and procedures for the facilities plans, school major improvement plans and projects submitted in the furtherance of the plans that address, but are not limited to, the following:
(A) All of the elements of the respective plans as defined in section two of this article;
(B) The procedures for a county to submit a preliminary plan, a plan outline or a proposal for a plan to the authority prior to the submission of the facilities plan. The preliminary plan, plan outline or proposal for a plan shall be the basis for a consultation meeting between representatives of the county and members of the authority, including at least one citizen member, which shall be held promptly following submission of the preliminary plan, plan outline or proposal for a plan to assure understanding of the general goals of this article and the objective criteria by which projects will be evaluated, to discuss ways the plan may be structured to meet those goals, and to assure efficiency and productivity in the project approval process;
(C) The manner, time line and process for the submission of each plan and annual plan updates to the authority;
(D) The requirements for public hearings, comments or other means of providing broad-based input on plans and projects under this article within a reasonable time period as the authority may consider appropriate. The submission of each plan must be accompanied by a synopsis of all comments received and a formal comment by the county board, the state board or the administrative council of an area vocational educational center submitting the plan;
(E) Any project specifications and maintenance specifications considered appropriate by the authority including, but not limited to, such matters as energy efficiency, preferred siting, construction materials, maintenance plan and any other matter related to how the project is to proceed;
(F) A prioritization by the county board, the state board or the administrative council submitting the plan of each project contained in the plan. In prioritizing the projects, the county board, the state board or the administrative council submitting the plan shall make determinations in accordance with the objective criteria formulated by the school building authority in accordance with this section. The priority list is one of the criteria that shall be considered by the authority deciding how the available funds should be expended;
(G) The objective means to be set forth in the plan and used in evaluating implementation of the overall plan and each project included in the plan. The evaluation must measure how the plan addresses the goals of this article and any guidelines adopted under this article, and how each project is in furtherance of the facilities plan and school major improvement plan, as applicable, as well as the importance of the project to the overall success of the facilities plan or school major improvement plan and the overall goals of the authority; and
(H) Any other matters considered by the authority to be important reflections of how a construction project or a major improvement project or projects will further the overall goals of this article.
(2) Guidelines and procedures which may be adopted by the authority for requiring that a county board modify, update, supplement or otherwise submit changes or additions to an approved facilities plan or for requiring that a county board, the state board or the administrative council of an area vocational educational center modify, update, supplement or otherwise submit changes or additions to an approved school major improvement plan. The authority shall provide reasonable notification and sufficient time for the change or addition as delineated in guidelines developed by the authority.
(3) Guidelines and procedures for evaluating project proposals that are submitted to the authority that address, but are not limited to, the following:
(A) Any project funded by the authority must be in furtherance of the facilities plan or school major improvement plan and in compliance with the guidelines established by the authority;
(B) If a project is to benefit more than one county in the region, the facilities plan must state the manner in which the cost and funding of the project will be apportioned among the counties;
(C) If a county board proposes to finance a construction project through a lease with an option to purchase pursuant to an investment contract as described in subsection (f), section fifteen of this article, the specifications for the project must include the term of the lease, the amount of each lease payment, including the payment due upon exercise of the option to purchase, and the terms and conditions of the proposed investment contract; and
(D) The objective criteria for the evaluation of projects which shall include, but are not limited to, the following:
(i) How the current facilities do not meet and how the plan and any project under the plan meets the following:
(I) Student health and safety including, but not limited to, critical health and safety needs;
(II) Economies of scale, including compatibility with similar schools that have achieved the most economical organization, facility use and pupil-teacher ratios;
(III) Reasonable travel time and practical means of addressing other demographic considerations;
(IV) Multicounty and regional planning to achieve the most effective and efficient instructional delivery system;
(V) Curriculum improvement and diversification, including the use of instructional technology, distance learning and access to advanced courses in science, mathematics, language arts and social studies;
(VI) Innovations in education;
(VII) Adequate space for projected student enrollments;
(VIII) The history of efforts taken by the county board to propose or adopt local school bond issues or special levies to the extent constitutionally permissible; and
(IX) Regularly scheduled preventive maintenance; and
(ii) How the project will assure the prudent and resourceful expenditure of state funds and achieve the purposes of this article for constructing, expanding, renovating or otherwise improving and maintaining school facilities for a thorough and efficient education.
(4) Guidelines and procedures for evaluating projects for funding that address, but are not limited to, the following:
(A) Requiring each county board's facilities plan and school major improvement plan to prioritize all the construction projects or major improvement projects, respectively, within the county. A school major improvement plan submitted by the state board or the administrative council of an area vocational educational center shall prioritize all the school improvement projects contained in the plan. The priority list shall be one of the criteria to be considered by the authority in determining how available funds shall be expended. In prioritizing the projects, the county board, the state board or the administrative council submitting a plan shall make determinations in accordance with the objective criteria formulated by the school building authority;
(B) The return to each county submitting a project proposal an explanation of the evaluative factors underlying the decision of the authority to fund or not to fund the project; and
(C) The allocation and expenditure of funds in accordance with this article, subject to the availability of funds.
(b) Prior to final action on approving projects for funding under this article, the authority shall submit a certified list of the projects to the joint committee on government and finance.
(c) The state department of education shall conduct on-site inspections, at least annually, of all facilities which have been funded wholly or in part by moneys from the authority or state board to ensure compliance with the county board's facilities plan and school major improvement plan as related to the facilities; to preserve the physical integrity of the facilities to the extent possible; and to otherwise extend the useful life of the facilities: Provided, That the state board shall submit reports regarding its on-site inspections of facilities to the authority within thirty days of completion of the on- site inspections: Provided, however, That the state board shall promulgate rules regarding the on-site inspections and matters relating thereto, in consultation with the authority, as soon as practical and shall submit proposed rules for legislative review no later than the first day of December, one thousand nine hundred ninety-four.
(d) Based on its on-site inspection or notification by the authority to the state board that the changes or additions to a county's board facilities plan or school major improvement plan required by the authority have not been implemented within the time period prescribed by the authority, the state board shall restrict the use of the necessary funds or otherwise allocate funds from moneys appropriated by the Legislature for those purposes set forth in section nine, article nine-a of this chapter.
And,
That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
H. B. 4601 - "A Bill to amend and reenact §18-9A-7 of the code of West Virginia, 1931, as amended; and to amend and reenact §18-9D-2, §18-9D-6, §18-9D-8, §18-9D-15 and §18-9D-16 of said code, all relating to public education; suspending basic foundation allocation for bus replacement and providing allocation for academic trips for one school year; school building authority; redefining certain terms; correcting references; allowing expenditure of certain moneys for vocational programs at comprehensive high schools and vocational schools cooperating with community and technical college programs; encouraging cooperation relating to vocational technical facilities; authorizing appropriation of up to certain amount of school construction funds for budget purposes for next school year only; providing that excess lottery revenues not be transferred to school construction fund for the next school year only, with funds made available for legislative appropriation; project submission and evaluation; requiring facilities plan as condition of receiving funds; providing for certain guidelines and procedures by authority for plans, plan modifications and evaluating projects; clarifying that certain revenues can only be expended on projects authorized in accordance with the guidelines and procedures section; and providing for certified list of projects to joint committee."
Respectfully submitted,

Larry A. Williams,
Robert H. Plymale,

Randy Swartzmiller,
Larry J. Edgell,

Everette W. Anderson, Jr.,
Donna J. Boley,

Conferees on the part of
Conferees on the part of

the House of Delegates.
of the Senate.

On motion of Delegate Williams, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 705), and there were--yeas 77, nays 22, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Calvert, Canterbury, Carmichael, Duke, Evans, Frich, Hamilton, Howard, Kuhn, Louisos, Manuel, Overington, Schadler, Sobonya, Sumner, R. Thompson, Wakim, Walters, Webb and Yeager.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4601) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 706), and there were--yeas 89, nays 10, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Frich, Martin, Paxton, Sumner, R. Thompson, Wakim, Walters, Webb and Yeager.
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4601) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate R. Thompson, from the Committee of Conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 2088, Increasing the penalty for the manufacture, distribution or possession of certain controlled or counterfeit substances near a park,
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 Senate to Com. Sub. for H. B. 2088 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses as follows:
That the House of Delegates agree to the Senate amendments.
Respectfully submitted,
Richard Thompson,
C. Randy White ,

William F. Stemple,
Anita Skeens Caldwell ,

Tim Armstead
,
J. Frank Deem,

Conferees on the part of
Conferees on the part of

the House of Delegates.
of the Senate.

On motion of Delegate R. Thompson, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 707), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2088) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Special Calendar

Third Reading

S. B. 574, Allowing commissioner to sell liquor warehouse under certain circumstances; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 708), and there were--yeas 95, nays 4, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Hrutkay, Manuel, Martin and Paxton.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 574) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 709), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Hrutkay, Manuel and Martin.
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 574) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 596, Relating to powers and duties of board of directors of state board of risk and insurance management; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 710), and there were--yeas 87, nays 12, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ashley, Blair, Carmichael, Ellem, Hrutkay, Martin, Perdue, Poling, R. Thompson, Wakim, Webb and Webster.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 596) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 637, Relating to termination of tenancy of factory-built home site; other provisions; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 711), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 637) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 637 - "A Bill to amend and reenact §37-15-2, §37-15-3 and §37-15-6 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated section §37-15-3a; and to amend said code by adding thereto a new article, designated §55- 3B-1, §55-3B-2, §55-3B-3, §55-3B-4, §55-3B-5, §55-3B-6 and §55-3B-7, all relating to factory-built home sites; definition of good cause and section; written agreements for factory-built home sites; adoption of rules and regulations by owners of factory-built home sites; terms of written agreement related to termination of tenancy; remedies for wrongful occupation of factory-built home site; definitions; tenancy of factory-built home site; termination of tenancy; petition for summary relief for wrongful occupation; defenses; proceedings; final order; disposition of abandoned property; and waiver of rights."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 638, Authorizing special license plate for Davis & Elkins college and plate recognizing breast cancer survivors; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 712), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Carmichael.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 638) passed.
An amendment to the title of the bill, recommended by the Committee on Roads and Transportation, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 638 - "A Bill to amend and reenact §17A-3-14 of the code of West Virginia, 1931, as amended, relating to registration plates; providing registration plates for promoting education; Fairmont State College; West Virginia farmers; native Americans; members of the 82nd airborne association; Knights of Pythias or Pythian sisters; white water rafting; survivors of wounds received in the line of duty as law-enforcement members; authorizing a special license plate commemorating the centennial anniversary of the creation of Davis and Elkins college; authorizing a special license plate recognizing and honoring breast cancer survivors setting fees; exemptions from fees; extending the time period for certain organizations to achieve the minimum number of applicants for a registration plate; setting forth requirements to obtain certain registration plates; and expanding the number of registration plates certain persons may obtain."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 673, Relating to reporting requirements on coal resource transportation roads; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 713), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ashley, Border and Schoen.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 673) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 673 - "A Bill to amend and reenact §17C-17-8a, §17C-17-9 and §17C-17-11d of the code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §17C-17-9a; and to amend and reenact §17C-17A-1, §17C-17A-3, §17C-17A-6 and §17C- 17A-12 of said code, all relating generally to regulating the weights of vehicles on roads and highways; authorizing tolerances for certain gross weight vehicle loads; requiring compliance with weight load limits on the national system of interstate and defense highways; providing tolerance limits for maximum gross vehicle weights; adding roads and highways eligible to qualify as part of the coal resource transportation road system; limiting certain reporting requirements relating to coal hauled on coal resource transportation roads; requiring certain receivers to report receiving vehicles transporting coal in excess of eighty-eight thousand pounds on non-coal transportation highways to the public service commission; and authorizing the commissioner of the division of highways to designate certain public roads, highways and bridges as feeder roads and designate them on a temporary basis as being qualified for inclusion in the coal resource transportation system."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 675, Relating to outdoor advertising revenues; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 714), and there were--yeas 83, nays 15, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Blair, Border, Carmichael, Evans, Howard, Louisos, Schadler, Schoen, Sobonya, Sumner, Wakim, Walters and Webb.
Absent And Not Voting: Coleman and Kominar.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 675) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 678, Providing reduced tax rate applies to certain underground mines; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 715), and there were--yeas 91, nays 8, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Butcher, Caputo, Faircloth, Louisos, Manchin, Manuel, Tucker and Wakim.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 678) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 700, Requiring state agencies make timely payments for telecommunications services; other provisions; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 716), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 700) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 700 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5A-7-4a, relating to payments for telecommunications services; providing legislative findings; creating a special revenue account; requiring certain duties of the information services and communications division; requiring state spending units budget for telecommunications services and submit payment or transfer funds to pay for services; authorizing secretary of department of administration to transfer funds to pay for telecommunications services and certain fees and penalties from funds supporting the administration of a spending unit; providing for payment and determination of contested telecommunications charges; requiring payment of telecommunications services within ninety days of receipt of invoice; providing for discontinuance of telecommunications services; authorizing fees for administration of section; and authorizing legislative and emergency rules."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 717), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Azinger, Coleman, Schoen and Susman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 700) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 701, Authorizing certain taxes imposed by municipalities; on third reading, coming up in regular order, was reported by the Clerk and, at the request of Delegate Staton, and by unanimous consent, laid at the foot of bills on Second Reading.
Com. Sub. for S. B. 709, Providing additional internal controls and procedures for purchasing card program; other provisions; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 718), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 709) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4753, Supplemental appropriation to the department of environmental protection - division of environmental protection - stream restoration fund; on third reading, coming up in regular order, was reported by the Clerk and, at the request of Delegate Staton, and by unanimous consent, laid at the foot of bills on Second Reading.
H. B. 4766, Relating to reporting requirements for medicaid fraud for senior centers; on third reading, coming up in regular order, was reported by the Clerk.
On motion of Delegate Beane, the bill was amended on page six, section two, line thirty, by striking out the words "any state or federal funding, including but not limited to" and the comma.
On page eight, section three, line forty-one, by striking out the words "any state or federal funding, including but not limited to" and the comma.
And,
On page fifteen, section three, line forty, by striking out the words "nursing home" and inserting in lieu thereof the words "assisted living residence".
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 719), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and R. M. Thompson.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4766) passed.
On motion of Delegate Beane, the title of the bill was amended to read as follows:
H. B. 4766 - "A Bill to amend and reenact §9-7-1 and §9-7-2 of the code of West Virginia, 1931, as amended; to amend and reenact §16-5P-3 and §16-5P-6 of said code; and to amend said code by adding thereto a new article, designated §16-5U-1, §16-5U-2, §16-5U-3, §16-5U-4, §16-5U-5, §16-5U-6, §16-5U-7 and §16-5U-8, all relating to the oversight of senior centers; providing that the medicaid fraud unit of the department of health and human resources may investigate; requiring the commissioner of the bureau of senior services to report violations to the governor; authorizing the commissioner of the bureau of senior services to investigate and audit senior centers; establishing that senior centers are subject to governmental ethics act, open governmental meetings act and audit requirements; and establishing criminal penalties."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 408, Relating generally to levies by county boards of education and expenditure of property taxes collected; on third reading, coming up in regular order, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page four, section six-f, line forty, following the word "subdivision", by inserting a period and striking out the remainder of the paragraph.
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 720), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Evans.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 408) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 721), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 408) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 616, Relating to environmental protection advisory council; on third reading, coming up in regular order, was reported by the Clerk.
Delegate Amores requested and obtained unanimous consent to amend the bill on third reading.
On motion of Delegate Amores, the bill was then amended on page one, line five, by striking out subsections (a) and (b) in their entirety and inserting in lieu thereof, the following:
"(a) There is created within the department of commerce, labor and environmental resources environmental protection the environmental protection advisory council. The environmental protection advisory council consists of seven twelve members. The director secretary serves as an ex officio member of the council and as its chair. The remaining six eleven members are appointed by the governor. Each member serves for a term of four years and may be reappointed. Of the new members of the council first appointed, as a result of the enactment of this section during the two thousand four regular session, two four shall be appointed for terms ending on the thirtieth day of June, one thousand nine hundred ninety-six, and two each for terms ending one and two years thereafter. two thousand six, four shall be appointed for terms ending two thousand seven and three shall be appointed for terms ending two thousand eight. Thereafter, each appointment shall be for a term of four years. Vacancies on the council shall be filled within sixty days after the vacancy occurs.
(b) Two members of the council shall represent industries regulated by the division or their trade associations. Two members shall represent organizations advocating environmental protection. One member shall represent organizations representing local governments. One member shall represent public service districts.
(b) The governor shall appoint members of the from nominations submitted by the following organizations:
(1) The largest state organization representing manufacturers;
(2) The largest state trade organization representing coal producers;
(3) The largest state organization representing farming interests; and
(4) The largest employee organization representing coal miners within this state.
And from the following areas of interest:
(5) A forester registered pursuant to article nineteen, chapter thirty of this code and representing the interests of private owners of forest land;
(6) Two members shall represent organizations advocating environmental protection;
(7) One member shall represent wild life conservation;
(8) One member shall be the department of environmental protection environmental advocate;
(9) One member shall represent organizations representing local governments; and
(10) One member shall represent public service districts.
In making subsequent appointments this balance of membership shall be maintained."
The bill was then read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 722), and there were--yeas 95, nays 3, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Kominar, Manuel and H. White.
Absent And Not Voting: Coleman and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 616) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 616 - "A Bill to amend and reenact §22-1-9 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section designated §22-3-33, all relating to the department of environmental protection generally; increasing the membership of the environmental protection advisory council; requiring that a meeting of the advisory council be called upon the written request of a majority of members; requiring that the council timely receive an agenda and related materials for each meeting; allowing council members to submit rule-making suggestions to the secretary for consideration; authorizing appointment of technical advisors; establishing a new quality assurance and compliance advisory committee; providing for procedures for committee meetings; authorizing payment of expenses; and authorizing the committee to review coal mining permit procedures and processes."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 518, Relating to policemen and firemen required to work during holidays; compensation; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 723), and there were--yeas 70, nays 29, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ashley, Boggs, Butcher, Canterbury, Caputo, Craig, Fleischauer, Fragale, Frich, Hall, Hamilton, Houston, Hrutkay, Iaquinta, Leggett, Manchin, Manuel, Martin, Perdue, Perry, Poling, Schoen, Shaver, Sobonya, Sumner, R. Thompson, Tucker, Wakim and Yost.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 518) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Conference Committee Report

Delegate Campbell, from the Committee of Conference on matters of disagreement between the two houses, as to
H. B. 4084, Pharmaceutical Availability and Affordability Act,
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 Senate to H. B. 4084, having met, after full and free conference, have agreed to recommend to their respective houses as follows:
That both houses recede from their respective positions as to the amendment of the Senate, striking out everything after the enacting clause and inserting new language, and agree to the same as follows:
That the code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §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, all to read as follows:
ARTICLE 3C. PHARMACEUTICAL AVAILABILITY AND AFFORDABILITY ACT OF 2004.

§5A-3C-1. Title.

The provisions of this article shall be known as and referred to as the "West Virginia Pharmaceutical Availability and Affordability Act".
§5A-3C-2. Purpose.
(a) The Legislature finds:
(1) That the rising cost of prescription drugs has imposed a significant hardship on individuals who have limited budgets, are uninsured or who have prescription coverage that is unable to control costs successfully due to cost shifting and disparate pricing policies;
(2) That the average cost per prescription for seniors rose significantly between one thousand nine hundred ninety-two and two thousand, and is expected to continue increasing significantly through two thousand ten;
(3) That there is an increasing need for citizens of West Virginia to have affordable access to prescription drugs; and
(4) That the Legislature does not intend the imposition of the programs under this article to penalize or otherwise jeopardize the benefits of veterans and other recipients of federal supply schedule drug prices.
(b) In an effort to promote healthy communities and to protect the public health and welfare of West Virginia residents, the Legislature finds that it is its responsibility to make every effort to provide affordable prescription drugs for all residents of West Virginia.
§5A-3C-3. Definitions.
In this article:
(1) "Advertising or marketing" means any manner of communication of information, either directly or indirectly, that is paid for and usually persuasive in nature about products, services or ideas related to pharmaceuticals by identified sponsors through various media, persons or other forms as further defined by legislative rule.
(2) "AWP" or "average wholesale price" means the amount determined from the latest publication of the blue book, a universally subscribed pharmacist reference guide annually published by the Hearst corporation. "AWP" or "average wholesale price" may also be derived electronically from the drug pricing database synonymous with the latest publication of the blue book and furnished in the national drug data file (NDDF) by first data bank (FDB), a service of the Hearst corporation.
(3) "Dispensing fee" means the fee charged by a pharmacy to dispense pharmaceuticals.
(4) "Drug manufacturer" or "pharmaceutical manufacturer" means any entity which is engaged in: (A) The production, preparation, propagation, compounding, conversion or processing of prescription drug products, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; or (B) in the packaging, repackaging, labeling, relabeling or distribution of prescription drug products. "Drug manufacturer" or "pharmaceutical manufacturer" does not include a wholesale distributor of drugs or a retail pharmacy licensed under state law.
(5) "Federal supply schedule" or "FSS" means the price available to all federal agencies for the purchase of pharmaceuticals authorized in the Veterans Health Care Act of 1992, PL 102-585. FSS prices are intended to equal or better the prices manufacturers charge their "most-favored" non-federal customers under comparable terms and conditions.
(6) "Multiple-source drug", "innovator drug" and "noninnovator drug" mean the following:
(A) The term "multiple-source drug" means, for which there are two or more drug products which are: Rated as therapeutically equivalent (under the food and drug administration's most recent publication of "Approved Drug Products with Therapeutic Equivalence Evaluations"), except as provided in paragraph (B) of this subdivision, are pharmaceutically equivalent and bioequivalent, as determined by the food and drug administration, and the term "innovator drug" shall hereinafter be referred to as "brand". The term "innovator drug" means a drug which is produced or distributed under an original new drug application approved by the food and drug administration, including a drug product marketed by any cross-licensed producers or distributors operating under the new drug application and any multiple-source drug that was originally marketed under an original new drug application approved by the food and drug administration. The term "noninnovator drug" shall hereinafter be referred to as "generic". The term "noninnovator drug" means a multiple-source drug that is not an "innovator drug".
(B) Paragraph (A) of this subdivision shall not apply if the food and drug administration changes by regulation the requirement that, for purposes of the publication described in paragraph (A) of this subdivision, in order for drug products to be rated as therapeutically equivalent, they must be pharmaceutically equivalent and bioequivalent.
(7) "Labeler" means an entity or person that receives prescription drugs from a manufacturer or wholesaler and repackages those drugs for later retail sale and that has a labeler code from the federal food and drug administration pursuant to 21 C. F. R. §207.20 (1999).
(8) "Person" means any natural person or persons or any corporation, partnership, company, trust or association of persons.
(9) "Pharmaceutical drug detailing" or "detailing" means the function performed by a sales representative who is employed by a pharmaceutical manufacturer for the purpose of: Promotion of pharmaceutical drugs or related products; education about pharmaceutical drugs or related products; or to provide samples of pharmaceutical drugs, related products or related materials, gifts, food or meals.
(10) "Savings" means the difference between the previous price of a prescription drug including any discounts, rebates or price containments and the current price after the effective date of this article for the public employees insurance agency, children's health insurance program, medicaid and workers' compensation programs or other programs which are payors for prescription drugs.
(11) "Sole source" means a pharmaceutical that provides a unique and powerful advantage available in the market to a broad group of patients established under federal law.
(12) "West Virginia Pharmaceutical Cost Management Council" or "council" means the council created pursuant to section eight of this article.
§5A-3C-4. Creation of clearinghouse program.
(a) There is hereby created the state prescription drug assistance clearinghouse program. The brand pharmaceutical manufacturers shall create and implement a program to assist state residents of who are low income or uninsured to gain access to prescription medications through existing private and public sector programs and prescription drug assistance programs offered by manufacturers, including discount and coverage programs. The brand pharmaceutical manufacturers shall use available computer software programs that access an eligible individual with the appropriate private or public programs relating to the individual's medically necessary drugs. The brand pharmaceutical manufacturers shall provide education to individuals and providers to promote the program and to expand enrollment and access to necessary medications for low-income or uninsured individuals qualifying for the programs. The participating brand pharmaceutical manufacturers shall be responsible for the cost of the establishment of the program, and be responsible for running the program, regardless of the date of transfer of the program to the state, for the period of time until a date no earlier than the thirthieth day of June two thousand five, and ownership of the technology, website and other program features shall be transferred to the state on the same date. The secretary of the department of health and human resources and the director of the public employees insurance agency shall provide joint oversight over the establishment and construction of the program and program features for the period of time prior to the transfer of ownership to the state. The pharmaceutical council shall recommend the state agency to own, control and operate the program, technology and program features, and shall include such recommendation in its report on or before the first day of September, two thousand four, to the joint committee on government and finance, as provided for in section eight of this article. In addition, the pharmaceutical manufacturers shall report to the Joint Committee on Government and Finance on a monthly basis all activities related to the implementation of this program including the number of citizens serviced and the services provided.
(b) The participating brand pharmaceutical manufacturers shall contribute the funding for the promotion of the public relations program attendant to the establishment of the program. The participating brand pharmaceutical manufacturers shall be responsible for the cost of the establishment of the program and the cost of the ongoing program, regardless of the date of transfer of ownership of the program to the state, for the period of time until the thirty-first day of December, two thousand four.
§5A-3C-5. Pharmaceutical discount program; establishment; eligible individuals; discount pass through; terms.

There is hereby established a discount drug program to provide low-income, uninsured individuals with access to prescription drugs from participating brand pharmaceutical companies and pharmacists through either a state-sponsored discount card program or a program that extends current brand pharmaceutical manufacturer prescription drug assistance programs:
(a) The state hereby establishes a state-sponsored prescription drug discount card program for certain eligible residents of West Virginia:
(1) Eligible individuals include uninsured residents of West Virginia up to two hundred per cent of the federal poverty guideline who have not been covered by a prescription drug program, whether public or private, at least six months prior to applying to the discount card program;
(2) The state may negotiate voluntary discounts with brand pharmaceutical manufacturers and pharmacists: Provided, That the total discount received from the manufacturer shall pass through to the eligible resident;
(3) Failure of a brand pharmaceutical manufacturer to participate in the voluntary discount card program will not result in prior authorization on their drugs in the medicaid program which would not otherwise be subject to prior authorization but for the failure of the manufacturer to participate in this program; and
(4) The state shall not establish a formulary or preferred drug list as part of the discount card program.
(b) The brand pharmaceutical manufacturers may extend existing prescription drug assistance programs to eligible residents of West Virginia. Eligible individuals include uninsured residents of West Virginia up to two hundred percent of the federal poverty level who have not been covered by a prescription drug program, whether public or private, at least six months prior to applying to the program.
(c) The program established under this section shall be structured so that a member presenting a discount card at a participating pharmacy will receive the full benefit of the pharmacy discount, as well as the manufacturer's discount, at a point of sale transaction. The program, or the pharmacy benefit manager contracted by the program, shall coordinate the drug discount information provided by participating pharmacies and manufacturers so that the available drug discounts are provided to the member at the point of sale.
(d) Manufacturers participating in the voluntary program established under this section shall cooperate with the program, or the pharmacy benefit manager contracted by the program, to provide the current list of drugs and the percentage of discount from the AWP for such drugs, or the rebates that the manufacturer will provide under the program. It is the intent of this program that adequate drug price and discount or rebate information be provided by the manufacturer, such that the program and participating pharmacies will have available such drug prices and discounts or rebates at a point of sale pharmaceutical drug transaction. Retail pharmacies will be responsible for no more than fifty percent of the discount offered by the manufacturer to the participant.
(1) Pharmacies participating in the voluntary program(s) established under this section will be responsible for no more than fifty percent of the discount offered by the manufacturer to the participant, and be paid a dispensing fee of no more than three dollars and fifty cents per prescription with regard to prescriptions filled under the program(s).
(2) Upon the presentation of a valid discount card, payment for the prescription and otherwise meeting appropriate criteria to have their prescription filled, the card-holder will have their prescription filled by a participating pharmacy. To accomplish the transaction, the participating pharmacy shall electronically transmit the transaction to the program or pharmacy benefit manager contracted by the program for processing. The program, or the program's pharmacy benefit manager, shall determine the discounted cost of the drug, including the discount provided, the discount provided by the pharmacy, the discount or rebate provided by the manufacturer, the pharmacy dispensing fee, and any pharmacy benefit manager transaction fee. The program, or the program's pharmacy benefit manager, shall then transmit to the manufacturer an electronic statement of the amount the manufacturer owes on the transaction to cover the manufacturer's discount or rebate and the program's or the pharmacy benefit manager's processing fee. The manufacturer shall, in turn, at least every fourteen days, transmit such monetary amounts for the transaction to the program, or the program's pharmacy benefit manager, and the program, or the program's pharmacy benefit manager, shall pass such discount or rebate amounts back to the participating pharmacy which originated the transaction immediately.
(e) The pharmaceutical manufacturers shall report to the Joint Committee on Government and Finance on a monthly basis all activities related to the implementation of this program including the number of citizens serviced and the services provided, as well as, the benefits, the costs and the discounts obtained.
§5A-3C-6. Creation of program; administrative support; medicaid and chip program.

(a) There is hereby created in the state a program to obtain favorable pharmaceutical prices for state agencies and other qualified entities pursuant to this article.
(b) The medicaid program and the West Virginia children's health insurance program may be exempt from participation in this program until approval by the center for medicare and medicaid services has been granted if it is determined to be required by the council.
(c) Administrative staff support for the council created by this article shall be provided by the departments represented on the council.
(d) The council shall establish a pricing schedule using or referencing the FSS prices, or using or referencing to the price, as adjusted for currency valuations, set by Canada patented medicine prices review board (PMPRB) or any other appropriate referenced price that will maximize savings to the broadest percentage of the population of this state.
(e) By September fifteenth of two thousand four, the council shall report back to the Legislature the pricing schedule developed and a strategic plan for implementation. The council shall implement the proposed pricing schedule and strategic plan upon concurrent resolution of the Legislature. If, at the time of the acceptance or rejection of the concurrent resolution to implement the proposed pricing schedule and strategy, the concurrent resolution is not passed due to the Legislature's lack of acceptance of the same, the Legislature shall accept or reject a concurrent resolution to implement the pricing schedule and strategy using or referencing the FSS: Provided, That acceptance or rejection of the above referenced resolutions shall occur prior to the end of the regular session of the Legislature in two thousand five.
(f) If neither of the above referenced resolutions pass during the regular session of the Legislature in two thousand five, the Legislature may, at any time in the future, pass a concurrent resolution to implement the above referenced pricing schedule and strategy or any subsequent recommendation of the council to the Legislature and the Legislature determines that the proposed pricing schedule and strategy are the most effective method of reducing pharmaceutical prices for the citizens of the state.
(g) Qualified entities, including but not limited to, licensed private insurers, self insured employers, free clinics and other entities who provide pharmaceuticals either directly or through some form of coverage to the citizens of West Virginia shall have an option to apply for participation in the program established by this article in the form and manner established by the council. The council, in it's sole discretion, shall approve or deny participation through review of documentation determined to be necessary for full consideration and as established by rule. The council shall consider, but not be limited to, the fiscal stability and the size of each applicant.
(h) Pharmaceutical manufacturers may request a waiver from the pricing schedule to be granted by the council for a particular drug in which the development, production, distribution costs, other reasonable costs and reasonable profits, but exclusive of all marketing and advertising costs as determined by the council, is more than the pricing schedule rate of the pharmaceutical or in those cases in which the pharmaceutical in question has a sole source. The determination of reasonable costs and reasonable profits may fluctuate between different pharmaceuticals under consideration by the council. The council shall determine by legislative rule fees to be paid by the applicant at the time a waiver request is made and documentation required to be submitted at the time of the waiver request.
5A-3C-7. Multistate discussion group.
For the purposes of reviewing or amending the program establishing the process for making pharmaceuticals more available and affordable to the citizens of West Virginia, the state may continue to enter into multistate discussions and agreements. For purposes of participating in these discussions, the state shall be represented by members of the council created in section eight of this article.
§5A-3C-8. West Virginia pharmaceutical cost management council.
(a) There is hereby created the West Virginia pharmaceutical cost management council which consists of the secretary of the department of administration or his or her designee, the director of the public employees insurance agency or his or her designee, the commissioner of the bureau of medical services of the department of health and human resources or his or her designee, the secretary of the department of health and human resources or his or her designee, the executive director of the workers' compensation commission or his or her designee, bureau of senior services or his or her designee and five members from the public who shall be appointed by the governor with the advice and consent of the Senate. One public member shall be a licensed pharmacist employed by a community retail pharmacy, one public member shall be a representative of a pharmaceutical manufacturer with substantial operations located in the state of West Virginia that has at least seven hundred fifty employees, one public member shall be a primary care physician, one public member shall represent those who will receive benefit from the establishment of this program and one public member shall have experience in the financing, development or management of a health insurance company which provides pharmaceutical coverage. Each public member shall serve for a term of four years. Of the public members of the council first appointed, one shall be appointed for a term ending the thirtieth day of June, two thousand six, and two each for terms of three and four years. Each public member shall serve until his or her successor is appointed and has qualified. A member of the council may be removed by the governor for cause.
(b) The secretary of the department of administration shall serve as chairperson of the council, which shall meet at times and places specified by the chairperson or upon the request of two members of the council.
(c) Authority members shall not be compensated in their capacity as members but shall be reimbursed for reasonable expenses incurred in the performance of their duties.
(d) The council has the power and authority to:
(1) Contract for the purpose of implementing the cost containment provisions of this article;
(2) File suit;
(3) Execute as permitted by applicable federal law, prescription drug purchasing agreements with:
(A) All departments, agencies, authorities, institutions, programs, any agencies or programs of the federal government, quasi public corporations and political subdivisions of this state, including, but not limited to, the children's health insurance program, 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, such as nursing homes, veterans' homes, the division of rehabilitation, public health departments, state programs, including, but not limited to, programs established in sections four and five of this article, and the bureau of medical services: Provided, That any contract or agreement executed with or on behalf of the bureau of medical services shall contain all necessary provisions to comply with the provisions of Title XIX of the Social Security Act, 42 U. S. C. §1396 et seq., dealing with pharmacy services offered to recipients under the medical assistance plan of West Virginia;
(B) Governments of other states and jurisdictions and their individual departments, agencies, authorities, institutions, programs, quasi-public corporations and political subdivisions; and (C) Regional or multi-state purchasing alliances or consortia, formed for the purpose of pooling the combined purchasing power of the individual members in order to increase bargaining power; and
(4) Consider strategies by which West Virginia may manage the increasing costs of prescription drugs and increase access to prescription drugs for all of the state's citizens, including the authority to:
(A) Explore the enactment of fair prescription drug pricing policies;
(B) Explore discount prices or rebate programs for seniors and persons without prescription drug coverage;
(C) Explore programs offered by pharmaceutical manufacturers that provide prescription drugs for free or at reduced prices;
(D) Explore requirements and criteria, including the level of detail, for prescription drug manufacturers to disclose to the council expenditures for advertising, marketing and promotion, based on aggregate national data;
(E) Explore the establishment of counter-detailing programs aimed at educating health care practitioners authorized to prescribe prescription drugs about the relative costs and benefits of various prescription drugs, with an emphasis on generic substitution for brand name drugs when available and appropriate; prescribing older, less costly drugs instead of newer, more expensive drugs, when appropriate; and prescribing lower dosages of prescription drugs, when available and appropriate;
(F) Explore disease state management programs aimed at enhancing the effectiveness of treating certain diseases identified as prevalent among this state's population with prescription drugs; (G) Explore prescription drug purchasing agreements with large private sector purchasers of prescription drugs and including those private entities in pharmacy benefit management contracts: Provided, That no private entity may be compelled to participate in a purchasing agreement;
(H) Explore the feasibility of using or referencing, the federal supply schedule or referencing to the price, as adjusted for currency valuations, set by the Canada patented medicine prices review board ("PMPRB"), or any other appropriate referenced price to establish prescription drug pricing for brand name drugs in the state; and to review and determine the dispensing fees for pharmacies in such as established in section six of this article;
(I) Explore , if possible, joint negotiations for drug purchasing and a shared prescription drug pricing schedule and shared preferred drug list for use by the public employees insurance agency, the medicaid program, other state payors and private insurers;
(J) Explore coordination between the medicaid program, the public employees insurance agency and, to the extent possible, in-state hospitals and private insurers toward the development of a uniform preferred prescription drug list which is clinically appropriate and which leverages retail prices;
(K) Explore policies which promote the use of generic drugs, where appropriate;
(L) Explore a policy that precludes a drug manufacturer from reducing the amounts of drug rebates or otherwise penalize an insurer, health plan or other entity which pays for prescription drugs based upon the fact that the entity uses step therapy or other clinical programs before a drug is covered or otherwise authorized for payment;
(M) Explore arrangements with entities in the private sector, including self-funded benefit plans and nonprofit corporations, toward combined purchasing of health care services, health care management services, pharmacy benefits management services or pharmaceutical products on the condition that no private entity be compelled to participate in the prescription drug purchasing pool; and
(N) Explore other strategies, as permitted under state and federal law, aimed at managing escalating prescription drug prices and increasing affordable access to prescription drugs for all West Virginia citizens;
(5) Contract with appropriate legal, actuarial and other service providers required to accomplish any function within the powers of the council;
(6) Develop other strategies, as permitted under state and federal law, aimed at managing escalating prescription drug prices and increasing affordable access to prescription drugs for all West Virginia citizens;
(7) Explore the licensing and regulation of pharmaceutical detailers, including the requirement of continuing professional education, the imposition of fees for licensing and continuing education, the establishment of a special revenue account for deposit of the fees and the imposition of penalties for noncompliance with licensing and continuing education requirements, and rules to establish procedures to implement the provisions of the subdivision;
(8) The council shall report to the Legislature's joint committee on government and finance on or before the first day of September, two thousand four, and report on or before the thirty-first day of December, two thousand four, and annually thereafter to the Legislature, and provide recommendations to the Legislature on needed legislative action and other functions established by the article or requested by the joint committee on government and finance of the Legislature; and
(9) The council shall, upon the passage of this article, immediately commence to study the fiscal impact to this state of the federal "Medicare Prescription Drug Improvement and Modernization Act of 2003" and shall report to the Legislature's joint committee on government and finance on or before the fifteenth day of October, two thousand four, as to the findings of the council.
(10) The council shall develop an evaluation methodology to certify and audit savings in the discount savings program by determining the impact on growth and profit of the pharmaceutical manufacturers to ensure that prices have not been inflated to offset the discount card value.
(11) The council shall evaluate the clearinghouse established by this article and the discount card program established by this article to report to the Joint Committee on Government and Finance, and the Legislative Oversight Commission on Health and Human Resources Accountability, their findings and recommendations for further action by the Legislature.
(12) The council shall further (1)review determine that the implementation of the programs under this article will not jeopardize, reduce or penalize the benefits of veterans or other recipients of FSS drug prices, considering their respective co-pay structures, and the pricing mechanisms of their respective programs; (2) commence negotations to obtain independent agreements or multi-state agreements as many as ten states to use or reference a pricing schedule as set forth in section six of this article; (3) and determine the ability to establish a savings of forty two percent of the retail cost to be reported to the Joint Committee on Government and Finance and the Legislative Oversight Commission on Health and Human Resources Accountability, as established in section eight of this article.
§5A-3C-9. Investigation of Canadian drugs; wholesaling; federal waivers.

The council created in section eight of this article and the director of the public employees insurance agency are authorized to investigate the feasibility of purchasing prescription drugs from sources in Canada, which may include the feasibility of the state or an instrumentality thereof serving as a wholesale distributor of prescription drugs in the state.
(a) Upon a determination by the council or the director of the public employees insurance agency that the same is feasible and in the best interests of the citizens of the state, the council or the director is authorized to pursue waivers from the federal government, including, but not limited to, from the United States food and drug administration, as necessary for the state to accomplish prescription drug purchasing from sources in Canada provided, however, if a waiver is not granted, the council is authorized to take necessary legal action.
(b) Upon a favorable finding by the appropriate federal agencies or courts, notwithstanding any provision of this code to the contrary, the council or the director of the public employees insurance agency may establish and implement a methodology to provide wholesale drugs to licensed pharmacies located within West Virginia, provided however, prior to the implementation, the Legislature must adopt a concurrent resolution authorizing such action.
§5A-3C-10. Director's powers; ability to enter drug purchasing contracts.

Notwithstanding any provision of this code to the contrary, nothing contained in this article shall be construed to limit the powers and authority granted to the director of the public employees insurance agency pursuant to article sixteen-c, chapter five of this code. Notwithstanding any provision of this code to the contrary and specifically subdivision four, subsection (a), section four, article five-c, chapter five of this code, the director is authorized to execute prescription drug purchasing agreements without further enactment of the Legislature.
§5A-3C-11. Agency's management ability continued.

Nothing contained in this article shall be construed to limit the ability of the various state agencies to enter into contracts or arrangements or to otherwise manage their pharmacy programs until such time as the programs created or authorized pursuant to this article are implemented.
§5A-3C-12. Restraint of trade; civil and criminal violations defined.

(a) The following are considered to restrain trade or commerce unreasonably and shall be unlawful:
(1) A contract, combination or conspiracy between two or more persons:
(A) For the purpose or with the intent to fix, control or maintain the market price, rate or fee of pharmaceuticals; or
(B) Allocate or divide customers or markets, functional or geographic, for any pharmaceutical.
(2) The establishment, maintenance or use of a monopoly or an attempt to establish a monopoly of trade or commerce, any part of which is within this state, by any persons for the purpose of or with the intent to exclude competition or control, fix or maintain pharmaceutical prices.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than one nor more than ten years, or fined in an amount consistent with the Clayton Act 15 U.S.C. §15 et seq. which may include treble damages, or both fined and confined.
(c) Any person violating the provisions of this section is liable for a civil penalty and fine in an amount consistent with the Clayton Act 15 U.S.C. §15 et seq. which may include treble damages, for each violation.
(d) The county prosecutor shall investigate suspected violations of, and institute criminal proceedings pursuant to, the provisions of this section.
(e) The attorney general or special counsel appointed by the governor, in his or her discretion, shall represent the state in all civil proceedings brought on behalf of the state to enforce the provisions of this section. After payment of all attorney fees and costs, no less than fifty percent of all judgments or settlements shall be placed in the general revenue fund of the state.
§5A-3C-13. Advertising costs; reporting of same.

(a) Advertising costs for prescription drugs, based on aggregate national data, must be reported to the state council 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.
(b) The council shall establish, by legislative rule, 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.
(c) The following shall be exempt from disclosure requirements:
(1) All free samples of prescription drugs intended to be distributed to patients;
(2) 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; or
(3) 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.
(d) The council is further authorized to establish time lines, the documentation, form and manner of reporting required as the council determines necessary to effectuate the purpose of this article. The council shall report to the joint committee on government and finance, in an aggregate form, the information provided in the required reporting.
(e) Notwithstanding any provision of law to the contrary, information submitted to the council 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. Data compiled in aggregate form by the council 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.
§5A-3C-14. State role.
For purpose of implementing this article, the state represented by the council shall have authority to negotiate pharmaceutical prices to be paid by program participants. These negotiated prices shall be available to all programs.
§5A-3C-15. Rulemaking.
The council may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to implement any section of this article.
§5A-3C-16. Sunset provision.
The council shall continue to exist, pursuant to the provisions of article ten, chapter four of this code, until the first day of July, two thousand eight, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
§5A-3C-17. Potential use of savings.
Savings identified by all program participants shall be quantified and certified to the council and included in the annual report of the council to the Legislature provided for in section eight of this article. Savings, or any part thereof, created by the implementation of this program may, in the sole discretion of the Legislature, be directed towards the maintenance of existing state health programs and the expansion of insurance programs for the uninsured and underinsured.
And,
That both houses recede from their positions as to the title of the bill and agree to the same as follows:
H. B. 4084 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §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, all relating generally to the creation of a pharmaceutical program for the state; legislative findings; definitions; creation of the prescription drug assistance clearinghouse program; requiring costs of program to be paid by drug manufacturers; transfer of ownership of the program to the state; establishment of pharmaceutical discount program; eligibility for participation in the pharmaceutical discount program; discount pass through; creation of a West Virginia pharmaceutical cost management council; establishing membership; establishing powers and responsibilities; reporting requirements; authority to investigate the feasibility of purchasing Canadian drugs; authority to establish a pricing schedule to be implemented upon concurrent resolution of the legislature; authority to explore numerous strategies, policies, and programs, including, but not limited to, referenced prices for prescription drug purchases and pricing in the state; authority to implement certain designated programs; state responsibilities; prohibiting restraint of trade; providing civil and criminal penalties for restraint of trade; advertising costs and reporting; rule-making authority; sunset provisions; and identifying potential use of savings."
Respectfully submitted,
Thomas W. Campbell,
Roman W. Prezioso,

John Doyle,
Mike Ross,

Don Perdue,
Brooks McCabe,

Dan Foster,
John Unger,

Mike Hall,
Lisa Smith,

Conferees on the part
Conferees on the part

of the House of Delegates.
of the Senate.

On motion of Delegate Campbell, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 724), and there were--yeas 94, nays 5, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Blair, Carmichael, Ellem, Overington and Trump.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4084) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 725), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4084) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Miscellaneous Business

Delegate Staton asked and obtained unanimous consent that the remarks of Mr. Speaker, Mr. Kiss, and Delegates Wakim and Carmichael regarding H. B. 4084 be printed in the Appendix to the Journal.
Delegate Frich asked and obtained unanimous consent that the remarks of Delegate Smirl regarding her legislative career be printed in the Appendix to the Journal.
Delegate Frich announced that she was absent on today when the vote was taken on Roll No. 687, and that had she been present, she would have voted "Yea" thereon.
Delegate Azinger announced that he was absent on today when the vote was taken on Roll No. 717, and that had he been present, he would have voted "Yea" thereon.
At 9:25 p.m., on motion of Delegate Staton, the House of Delegates recessed until 10:45 p.m., and reconvened at that time.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had agreed to the appointment of a Committee of Conference of six from each house on the disagreeing votes of the two houses as to
Com. Sub. for S. B. 133, Budget bill.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Helmick, Sharpe, Prezioso, Plymale, Minear and Facemyer.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with amendments, and the passage, as amended, of
Com. Sub. for S. B. 566, Establishing Unborn Victims of Violence Act.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments to the House of Delegates amendment were reported by the Clerk:
On page one, by striking out the section heading and inserting in lieu thereof a new section heading, to read as follows:
"§61-2-30. Recognizing an embryo or fetus as a distinct unborn victim of certain crimes of violence against the person."

On page one, section thirty, by striking out all of subsection (b) and inserting in lieu thereof a new subsection (b), to read as follows:
"(b) For the purposes of this article, the following definitions shall apply: Provided, That these definitions only apply for purposes of prosecution of unlawful acts under this section and may not otherwise be used: (1) To create or to imply that a civil cause of action exists; or (2) for purposes of argument in a civil cause of action, unless there has been a criminal conviction under this section."
On page one, section thirty, subsection (b), by striking out all of subdivision (3).
On page two, section thirty, subsection (c), following the words "pregnant woman and the", by inserting the words "embryo or".
On page two, section thirty, subsection (c), following the word "carrying", by inserting the words "in the womb".
On page two, section thirty, subsection (d), subdivision (2), following the words "by medical", by inserting the words "or health care".
On page two, section thirty, subsection (d), subdivision (3), following the word "medical", by inserting the words "or health care personnel or scientific research".
On page two, section thirty, subsection (e), by striking out "twenty-one" and inserting in lieu thereof "two-i".
And,
By amending the title of the bill to read as follows:
Com. Sub. for S. B. 566 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-2-30, relating to creating the 'Unborn Victims of Violence Act'; defining certain terms; identifying offenses of violence against a person that are committed against a pregnant woman or her embryo or fetus in the womb; establishing that an embryo or fetus in the womb may be a separate and distinct unborn victim in the case of certain violent crimes against a pregnant woman or her embryo or fetus in the womb; providing exceptions against the application of this section to certain persons or entities; specifying penalties; and providing that a conviction under this section, or of this article, is not a bar to prosecution of, or punishment for, any other crime allegedly committed by the defendant arising from the same incident."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments to the House amendment.
The bill, as amended by the House, and as further amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 726), and there were--yeas 83, nays 16, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Amores, Brown, Campbell, Caputo, Doyle, Fleischauer, Foster, Hatfield, Leach, Manuel, Mezzatesta, Morgan, Palumbo, Spencer, Talbott and Webster.
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 566) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4008, Abolishing the insurance and retirement division and creating a new employee and insurance services division.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, 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 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§5-10D-1. Consolidated public retirement board continued; members; vacancies; investment of plan funds.

(a) There is hereby continued a The consolidated public retirement board is continued to administer all public retirement plans in this state. It shall administer the public employees retirement system established in article ten of this chapter; the teachers retirement system established in article seven-a, chapter eighteen of this code; the teachers' defined contribution retirement system created by article seven-b of said chapter; the West Virginia state police death, disability and retirement fund created by article two, chapter fifteen of this code; the West Virginia state police retirement system created by article two-a of said chapter; the death, disability and retirement fund for deputy sheriffs created by article fourteen-d, chapter seven of this code; and the judges' retirement system created under article nine, chapter fifty-one of this code.
(b) The consolidated public retirement board shall begin administration of the death, disability and retirement fund for deputy sheriffs established in article fourteen-d, chapter seven of this code on the first day of July, one thousand nine hundred ninety-eight.
(c) (b) The membership of the consolidated public retirement board consists of:
(1) The governor or his or her designee;
(2) The state treasurer or his or her designee;
(3) The state auditor or his or her designee;
(4) The secretary of the department of administration or his or her designee
(4) The commissioner of the employee and insurance services division of the department of administration;
(5) Four residents of the state, who are not members, retirants or beneficiaries of any of the public retirement systems, to be appointed by the governor, with the advice and consent of the Senate; and
(6) A member, annuitant or retirant of the public employees retirement system who is or was a state employee; a member, annuitant or retirant of the public employees retirement system who is not or was not a state employee; a member, annuitant or retirant of the teachers retirement system; a member, annuitant or retirant of the West Virginia state police death, disability and retirement fund; a member, annuitant or retirant of the deputy sheriff's death, disability and retirement fund; and a member, annuitant or retirant of the teachers' defined contribution retirement system, all to be appointed by the governor, with the advice and consent of the Senate.
(d) (c) The appointed members of the board shall serve five-year terms. The governor shall appoint the member representing the deputy sheriff's death, disability and retirement fund by the first day of July, one thousand nine hundred ninety-eight, to a five-year term. A member appointed pursuant to subdivision (6), subsection (c) (b) of this section ceases to be a member of the board if he or she ceases to be a member of the represented system. If a vacancy occurs in the appointed membership, the governor, within sixty days, shall fill the vacancy by appointment for the unexpired term. No more than five appointees shall be of the same political party.
(e) (d) The consolidated public retirement board has all the powers, duties, responsibilities and liabilities of the public employees retirement system established pursuant to article ten of this chapter; the teachers retirement system established pursuant to article seven-a, chapter eighteen of this code; the teachers' defined contribution system established pursuant to article seven-b of said chapter; the West Virginia state police death, disability and retirement fund created pursuant to article two, chapter fifteen of this code; the death, disability and retirement fund for deputy sheriffs created pursuant to article fourteen-d, chapter seven of this code; and the judges' retirement system created pursuant to article nine, chapter fifty-one of this code and their appropriate governing boards. The consolidated public retirement board may propose for promulgation all rules necessary to effectuate its powers, duties and responsibilities pursuant to article three, chapter twenty-nine-a of this code: Provided, That the board may adopt any or all of the rules, previously promulgated, of a retirement system which it administers.
(f) Effective on the first day of July, one thousand nine hundred ninety-six, the consolidated public retirement board shall, within two business days of receipt, transfer (e) The consolidated public retirement board shall continue to transfer all funds received by the consolidated public retireme