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House Journal


Day 00 (01-14-2009)
Day 01 (02-11-2009)
Day 02 (02-12-2009)
Day 03 (02-13-2009)
Day 06 (02-16-2009)
Day 07 (02-17-2009)
Day 08 (02-18-2009)
Day 09 (02-19-2009)
Day 10 (02-20-2009)
Day 13 (02-23-2009)
Day 14 (02-24-2009)
Day 15 (02-25-2009)
Day 16 (02-26-2009)
Day 17 (02-27-2009)
Day 20 (03-02-2009)
Day 21 (03-03-2009)
Day 22 (03-04-2009)
Day 23 (03-05-2009)
Day 24 (03-06-2009)
Day 27 (03-09-2009)
Day 28 (03-10-2009)
Day 29 (03-11-2009)
Day 31 (03-13-2009)
Day 34 (03-16-2009)
Day 35 (03-17-2009)
Day 36 (03-18-2009)
Day 37 (03-19-2009)
Day 38 (03-20-2009)
Day 41 (03-23-2009)
Day 43 (03-25-2009)
Day 44 (03-26-2009)
Day 45 (03-27-2009)
Day 48 (03-30-2009)
Day 49 (03-31-2009)
Day 50 (04-01-2009)
Day 51 (04-02-2009)
Day 52 (04-03-2009)
Day 55 (04-06-2009)
Day 56 (04-07-2009)
Day 57 (04-08-2009)
Day 58 (04-09-2009)
Day 59 (04-10-2009)
Day 60 (04-11-2009)
Day 105 (05-26-2009)
Day 106 (05-27-2009)
Day 108 (05-29-2009)
Day 109 (05-30-2009)
Day 110 (05-31-2009)
hdj2009-04-10-59


__________*__________




Friday, April 10, 2009

FIFTY-NINTH DAY

[Mr. Speaker, Mr. Thompson, in the Chair]



The House of Delegates met at 10:00 a.m., and was called to order by the Honorable Richard Thompson, Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Thursday, April 9, 2009, being the first order of business, when the further reading thereof was dispensed with and the same approved.
At the request of Delegate Boggs, and by unanimous consent, the applicable provisions of House Rule 136, relating to privileges of the floor, were suspended for the day to extend privileges of the floor to invited guests for a presentation by the House.
Committee Reports

Mr. Speaker, Mr. Thompson, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. C. R. 95, Requesting a study of the higher education merit screening advisory committee.
H. C. R. 96, Requesting a study on regulating captive cervid farming as an agricultural business in West Virginia.
H. C. R. 97, Requesting a study of a special lifetime senior hunting, fishing and trapping license.
H. C. R. 102, Requesting a study on the terms of lender credit card agreements between financial institutions and lender credit card borrowers
H. C. R. 103, Requesting a study relating to alternative programs and cost-effective programs to keep children in schools
H. C. R. 104, Requesting that the Joint Committee on Government and Finance authorize a study relating to whether a dependent child of an insurance policyholder should have the same insurance coverage for contraceptive health services as the policyholder,
H. C. R. 105, Requesting the Joint Committee on Government and Finance to study mandatory coverage by health insurers all expenses associated with pregnancy and childbirth
H. C. R. 106, Conducting an interim study to compare the benefits and burdens upon all applicable parties regarding the creation and implementation by all state colleges, universities, and community colleges by providing paid childbirth leave,
H. C. R. 107, Requesting the Joint Committee on Government and Finance to conduct a study of the feasibility of enacting a more comprehensive expungement statute,
H. C. R. 108, Requesting the Joint Committee on Government and Finance study the requirement that all state boards, commissions, committees or councils to be gender balanced and to have proportionate representation of minorities,
H. C. R. 109, Requesting the Joint Committee on Government and Finance to study the advisability of enacting legislation to modernize the unemployment insurance program,
H. C. R. 110, Requesting that the Joint Committee on Government and Finance authorize a study relating to requiring blasting contractors to notify the State Fire Marshall and local property owners,
And,
H. C. R. 111, Naming the bridge known as the Dunbar Toll Bridge on County Route 25/47, 0.1 mile north of the junction of U.S. Route 60 and crossing U.S. Route 60, the "John H. Reed, Jr. Memorial Bridge",
And reports the same back with the recommendation that they each be adopted.
Chairman Wells, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled and, on the 9th day of April, 2009, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:
(Com. Sub. for H. B. 2225), Authorizing the Department of Education and the Arts to Promulgate Legislative Rules,
(Com. Sub. for H. B. 2305), Revising appointment and compensation provisions of the Supreme Court Clerk and his or her staff,
(H. B. 2474), Exempting land-based finfish aquaculture facilities from certain sludge management requirements,
(H. B. 2652), Repealing the Tree Fruit Industry Self-Improvement Act of 1984,
(Com. Sub. for H. B. 2702), Relating to the Deputy Sheriff Retirement System Act,
(Com. Sub. for H. B. 2703), Relating to the State Teachers Retirement System,
(Com. Sub. for H. B. 2904), Authorizing rules for higher education,
(H. B. 3066), Clarifying the supervision requirements for elevator apprentices under elevator safety,
(Com. Sub. for H. B. 3076), Relating to the regulation and operation of cranes,
And,
(H. B. 3189), Adding members to the Capitol Building Commission.
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. 2836, School Innovation Zones Act.
On motion of Delegate Boggs, 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 the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §18-5B-1, §18-5B-2, §18-5B-3, §18-5B-4, §18-5B-5, §18-5B-6, §18-5B-7, §18- 5B-8 and 18-5B-9, all to read as follows:
ARTICLE 5B. SCHOOL INNOVATION ZONES ACT.
§18-5B-1. Title.

This article shall be known as the 'School Innovation Zones Act'.
§18-5B-2. Legislative findings and purpose.
(a) Legislative findings. -- The Legislature finds that:
(1) Decades of school improvement literature substantiate that schools where the principal uses a collaborative and distributed approach to leadership and where the teachers have a unity of purpose, operate in a cohesive learning-centered culture and implement consistent, pervasive and research-based approaches to learning, can and do improve student learning;
(2) As in all enterprises, rules are established in public education to manage the resources efficiently, allot time among the activities and processes required and ensure attention to the goals mandated, but rules, by their nature, also limit the flexibility of professional educators to engage in those activities and implement those approaches that may best improve the learning of their students for the 21st century;
(3) Allowing individual schools to seek and receive exceptions from certain statutes, policies, rules and interpretations through the creation of school innovation zones will provide them greater control over important educational factors that impact student achievement, such as curriculum, personnel, organization of the school day, organization of the school year, technology utilization and the delivery of educational services to improve student learning; and
(4) Providing greater flexibility at innovation zones schools will enable school-level professional educators to exercise more fully their professional judgement to improve student learning for the 21st century by instituting creative and innovative practices.
(b) Intent and purpose. -- The intent and purpose of this article is to:
(1) Provide for the establishment of school innovation zones to improve educational performance;
(2) Provide principals and teachers at schools approved as innovation zones with greater flexibility and control to meet the needs of a diverse population of students by removing certain policy, rule, interpretive and statutory constraints;
(3) Provide a testing ground for innovative educational reform programs and initiatives to be applied on an individual school level;
(4) Provide information regarding the effects of specific innovations and policies on student achievement;
(5) Document educational strategies that enhance student success; and
(6) Increase the accountability of the state's public schools for student achievement as measured by the state assessment programs and local assessment processes identified by the schools.
§18-5B-3. School innovation zones; application for designation; state board rule.
(a) The State Board shall promulgate a rule, including an emergency rule if necessary, in accordance with article three-b, chapter twenty-nine-a of this code to implement the provisions of this article. The rule shall include provisions for at least the following:
(1) A process for schools to apply for designation as innovation zones that encompasses at least the following:
(A) The manner, time and process for the submission of a school's innovation zone application;
(B) The contents of the application; and
(C) Factors to be considered by the state board when evaluating a school's application, which shall include, but are not limited to, the following factors:
(i) The level of staff commitment to apply for designation as an innovation zone as determined by a vote by secret ballot at a special meeting of all professional educators regularly employed at the school as provided in section six of this article;
(ii) Support from parents, students, the county board of education, the local school improvement council and the school's business partners; and
(iii) The potential for a school to be successful as an innovation zone; and
(2) Standards for the state board to review school applications for designation as innovation zones and to make determinations on the designation of innovation zone schools.
(b) The state board shall review a school's application in accordance with the standards adopted by the board and shall determine whether to designate the school as an innovation zone. The state board shall notify a school of the board's determination within sixty days of receipt of the school's innovation zone application.
§18-5B-4. Innovation zone schools; required plans; plan approval; state board rule.
(a) The rule promulgated by the State Board pursuant to section three of this article also shall include at least the following:
(1) Each school designated as an innovation zone or seeking designation as an innovation zone in accordance with this article shall develop an innovation zone plan;
(2) The innovation zone plan shall contain:
(A) A description of the programs, policies or initiatives the school intends to implement as an innovative strategy to improve student learning if the plan is approved in accordance with section five of this article;
(B) A list of all county and state board rules, policies and interpretations, and all statutes, if any, that the school has identified as prohibiting or constraining the implementation of the plan, including an explanation of the specific exceptions to the rules, policies and interpretations and statutes required for plan implementation. A school may not request an exception from any State Board rule, policy or interpretation, or from any statute, nor may an exception be granted or otherwise authorized under any provisions of this article, from any of the following:
(i) An assessment program administered by the West Virginia Department of Education; and
(ii) Any provision of law or policy required by the No Child Left Behind Act of 2001, Public Law No. 107-110; and
(C) Any other information the State Board requires; and
(3) The innovation zone plan may include:
(1) An emphasis in the early childhood through intermediate grade levels on ensuring that each student is prepared fully at each grade level, including additional intervention strategies at grade levels three and eight to reinforce the preparation of students who are not prepared fully for promotion, or an emphasis in the secondary grade levels on ensuring that each student is prepared fully for college or other post-secondary education, as applicable for the school; and
(2) An emphasis on innovative strategies that allows academically advanced students to pursue academic learning above grade level or not available through the normal curriculum at the school.
(b) Each school designated or seeking designation as an innovation zone shall submit its innovation zone plan to the school's professional educators, the county superintendent and county board having jurisdiction over the school, the state board, and the state superintendent in accordance with section five of this article.
§18-5B-5. Approval of innovation zone plans; waiver of statutes, policies, rules or interpretations.

(a) Each school designated or seeking designation as an innovation zone shall:
(1) Submit its innovation zone plan to the professional educators assigned to the school for review. An innovation zone plan is approved by the school when approved by a vote by secret ballot at a special meeting of all professional educators regularly employed at the school as provided in section six of this article;
(2) Submit its innovation zone plan as approved by vote of the school's professional educators to the county superintendent and board for review. The county board shall within sixty days of receipt of the plan review the plan and with recommendations from the county superintendent report its support or concerns, or both, and return the plan and report to the school principal, faculty senate and local school improvement council; and
(3) Submit its innovation zone plan as approved by vote of the school's professional educators along with the report of the county board to the state board and state superintendent for review. The county board shall be given an opportunity to present its concerns with the plan, if any, to the state board during its review. Except as provided in subsection (c) of this section, the state board and state superintendent shall approve or disapprove the plan within sixty days of receipt, subject to the following:
(A) No exceptions to county or state board rules, policies or interpretations are granted unless both the state superintendent and the state board approve the plan at least conditionally pursuant to subsections (b) and (c) of this section; and
(B) If the plan is disapproved, the state superintendent, the state board or both, as applicable, shall communicate it's reasons for the disapproval to the school and make recommendations for improving the plan. The school may amend its plan pursuant to (d) of this section.
(b) Upon the approval of a school's innovation zone plan by the state board and state superintendent, all exceptions to county and state board rules, policies and interpretations listed within the plan are granted.
(c) If a school's innovation zone plan, or a part thereof, may not be implemented unless an exception to a statute is granted by Act of the Legislature, the state board and state superintendent may approve the plan, or the part thereof, only upon the condition that the Legislature acts to grant the exception. If the state board and state superintendent approve a plan on that condition, the state board and state superintendent shall submit the plan with the request for an exception to a statute, along with supporting reasons, to the Legislative Oversight Commission on Education Accountability. The Commission shall review the plan and request and make a recommendation to the Legislature on the exception requested.
(d) The rule promulgated by the state board pursuant to section three of this article shall include a process for amending or revising an innovation zone plan. The process shall require that any amendments or revisions to an innovation zone plan are subject to the approval requirements of subsection (a) of this section.
§18-5B-6. School approval of innovation plan application and plan; transfer of employees.
(a) A secret ballot vote at a special meeting of all professional educators regularly employed at the school shall be conducted to determine the following:
(1) The level of staff commitment to apply for designation as an innovation zone in accordance with section three of this article; and
(2) The approval of an innovation zone plan by a school as provided in section five of this article.
(b) Except for amendments or revisions to an existing innovation zone plan pursuant to section five of this article, the vote conducted to make both determinations set forth in subsection (a) of this section shall occur simultaneously at the same special meeting of all professional educators regularly employed at the school.
(c) A panel consisting of the elected officers of the school's faculty senate and one parent member of the school's local school improvement council shall call the meeting required in subsection (a) of this section, conduct the votes and certify the results to the principal, the county superintendent and the president of the county board. The panel shall provide notice of the special meeting to all professional educators regularly employed at the school at least two weeks prior to the meeting and shall provide an absentee ballot to each professional educator regularly employed at the school who can not attend the meeting to vote.
(d) At least eighty percent of the professional educators regularly employed at the school and voting as provided in this section must vote to apply for designation as an innovation zone and to approve the school's innovation zone plan before the level of staff commitment at the school is sufficient for the school to apply and before the plan is approved by the school.
(e) An employee regularly employed at a school applying for or designated as an innovation zone who is or will be affected by implementation of the innovation zone plan or proposed plan may request a transfer to another school in the school district. The county board shall make every reasonable effort to accommodate the transfer.
§18-5B-7. Progress reviews and annual reports.
(a) At least annually, the state board or its designated committee shall review the progress of the development or implementation of a school's innovation zone plan. If, following such a review, the state board determines that a designated school has not made adequate progress toward developing or implementing its plan, the board shall submit a report to the school identifying its areas of concern. The state board or its designated committee may conduct an additional review within six months of submitting a report in accordance with this section. If, following such additional review, the state board or its designated committee determines that the school has not made adequate progress toward developing or implementing its innovation zone plan, the state board may revoke the school's designation as an innovation zone or, if the school's innovation zone plan has been approved in accordance with section five of this article, rescind its approval of the plan.
(b) The state board shall provide an annual report on innovation zones and the progress of innovation zone plans to the Legislative Oversight Committee for Educational Accountability.
§18-5B-8. Teacher vacancies in an innovation zone; job postings exceeding certain qualifications and requirements; approval of postings.

A school designated as an innovation zone whose school innovation zone plan has been approved in accordance with section five of this article may make a job posting for a teacher vacancy at the school that sets forth standards or qualifications that exceed the standards and qualifications provided in section seven-a, article four, chapter eighteen-a of this code: Provided, That teachers in the county approve the job posting by majority vote: Provided, however, That the county superintendent administers the vote and the record of the vote remains on file in the personnel office of the county board until the school is no longer designated as an innovation zone.
§18-5B-9. Establishment of new innovation zone schools.
A state institution of higher education may establish a new innovation zone school with the approval of the county board with jurisdiction over the school district in which the new school is planned to be located. The state board rule required to be promulgated to implement the provisions of this article shall include a process for a state institution of higher education to establish a new innovation zone school. In order to establish a new innovation zone school, the institution of higher education must meet all the requirements of this article except for the requirements relating to professional educators voting for the designation of a school as an innovation zone and voting for the approval of the innovation zone plan."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 2836 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §18-5B-1, §18-5B-2, §18-5B-3, §18-5B-4, §18-5B-5, §18-5B-6, §18-5B-7, §18-5B-8 and §18-5B-9, all relating to school innovation zones; setting forth legislative findings, intent and purpose; authorizing State Board to designate school innovation zones; establishing processes for application and plan review and approval and amendment; providing process for grant of exceptions to State Board and county policies, rules and interpretations, and statutes, and prohibiting certain exceptions; providing for revocation of designation and plan approval; requiring annual report by the State Board; providing for the voluntary transfer of employees; providing for teacher job postings that exceed certain qualifications and requirements; authorizing the board of education to promulgate rules and emergency rules; and authorizing state institutions of higher education to establish new innovation zone schools."
On motion of Delegate Boggs, the House 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. 2920, Eliminating the felony conviction for a second or subsequent conviction of petit larceny.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, after section one, by adding the following:
"ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-6. Punishment of principals in the second degree and accessories; who not deemed accessories after the fact.

(a) In the case of every felony, every principal in the second degree and every accessory before the fact shall be punishable as if he or she were the principal in the first degree; and every accessory after the fact shall be confined in jail not more than one year and fined not exceeding $500. But no person in the relation of husband and wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, or servant to the offender, who, after the commission of a felony, shall aid or assist a principal felon, or accessory before the fact, to avoid or escape from prosecution or punishment shall be deemed an accessory after the fact.
(b) Notwithstanding the provisions of subsection (a) of this section, an accessory after the fact to a violation of the provisions of sections one, four, nine, ten-b and twelve, article two of this chapter who is not a person in the relation of husband and wife, parent, grandparent, child, grandchild, brother or sister, whether by consanguinity or affinity, shall, upon conviction, be guilty of a felony and confined in a state correctional facility for not less than one nor more than five years."
And,
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
"That §61-11-20 of the Code of West Virginia, 1931, as amended, be repealed; and that §61- 11-6 of said code be amended and reenacted, all to read as follows:".
On motion of Delegate Boggs, the House 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 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
H. B. 3208, Including the hours of training county board members have acquired.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators White, Oliverio and Guills.
On motion of Delegate Boggs, 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 Paxton, Fragale and Sumner.
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. 3017, Exempting from the consumers sales and service tax and use tax any sales of donated clothing or clothing accessories.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, after section nine-l, by adding the following:
"ARTICLE 8. LEVIES.
§11-8-6e. Effect on regular levy rate when appraisal results in tax increase; public hearings.
(a) Notwithstanding any other provision of law, where any annual appraisal, triennial appraisal or general valuation of property would produce an assessment that would cause an increase of one percent or more in the total projected property tax revenues that would be realized were the then current regular levy rates by the county commission and the municipalities to be imposed, the rate of levy shall be reduced proportionately as between the county commission and the municipalities and for all classes of property for the forthcoming tax year so as to cause such rate of levy to produce no more than one hundred one percent of the previous year's projected property tax revenues from extending the county commission and municipality levy rates, unless there has been compliance with subsection (c) of this section.
An additional appraisal or valuation due to new construction or improvements to existing real property, including beginning recovery of natural resources, and newly acquired personal property shall not be an annual appraisal or general valuation within the meaning of this section, nor shall the assessed value of such improvements be included in calculating the new tax levy for purposes of this section. Special levies shall not be included in the reduced levy calculation set forth in subsection (b) of this section.
(b) The reduced rates of levy shall be calculated in the following manner:
(1) The total assessed value of each class of property as it is defined by section five, article eight of this chapter for the assessment period just concluded shall be reduced by deducting the total assessed value of newly created properties not assessed in the previous year's tax book for each class of property;
(2) The resulting net assessed value of Class I property shall be multiplied by .01; the value of Class II by .02; and the values of Class III and IV, each by .04;
(3) Total the current year's property tax revenue resulting from regular levies for each county commission and municipality and multiply the resulting sum by one hundred one percent: Provided, That the one hundred one percent figure shall be increased by the amount the county's or municipality's increased levy provided for in subsection (b), section eight, article one-c of this chapter;
(4) Divide the total regular levy tax revenues, thus increased in subdivision (3) of this subsection, by the total weighted net assessed value as calculated in subdivision (2) of this subsection and multiply the resulting product by one hundred; the resulting number is the Class I regular levy rate, stated as cents-per-one hundred dollars of assessed value;
(5) The Class II rate is two times the Class I rate; Classes III and IV, four times the Class I rate as calculated in the preceding subdivision.
(c) The governing body of a county or municipality may, after conducting a public hearing, which may be held at the same time and place as the annual budget hearing, increase the rate above the reduced rate required in this section if any such increase is deemed to be necessary by such governing body: Provided, That in no event shall the governing body of a county or municipality increase the rate above the reduced rate required by subsection (b) of this section for any single year in a manner which would cause total property tax revenues accruing to the governing body of the county or municipality, excepting additional revenue attributable to assessed valuations of newly created properties not assessed in the previous year's tax book for each class of property, to exceed by more than ten percent those property tax revenues received by the governing body of the county or municipality for the next preceding year: Provided, however, That this provision shall not restrict the ability of a county or municipality to enact excess levies as authorized under existing statutory or constitutional provisions: Provided further, That this provision does not restrict the ability of a county or municipality to issue bonds and enact sufficient levies to pay for such bonds pursuant to article one, chapter thirteen of this code when such issuance has been approved by an election administered pursuant to said article.
Notice of the public hearing and the meeting in which the levy rate shall be on the agenda shall be given at least seven days before the date for each public hearing by the publication of a notice in at least one newspaper of general circulation in such county or municipality: Provided, That a Class IV town or village as defined in section two, article one, chapter eight of this code, in lieu of the publication notice required by this subsection, may post no less than four notices of each public hearing, which posted notices shall contain the information required by the publication notice and which shall be in available, visible locations including the town hall. The notice shall be at least the size of one-eighth page of a standard size newspaper or one-fourth page of a tabloid-size newspaper and the headline in the advertisement shall be in a type no smaller than twenty-four point. The publication notice shall be placed outside that portion, if any, of the newspaper reserved for legal notices and classified advertisements and shall also be published as a Class II-O legal advertisement in accordance with the provisions of article three, chapter fifty-nine of this code. The publication area is the county. The notice shall be in the following form and contain the following information, in addition to such other information as the local governing body may elect to include:
NOTICE OF PROPOSED TAX INCREASE.

The (name of the county or municipality) proposes to increase property tax levies.
1. Appraisal/Assessment Increase: Total assessed value of property, excluding additional assessments due to new or improved property, exceeds last year's total assessed value of property by ..... percent.
2. Lowered Rate Necessary to Offset Increased Assessment: The tax rate which would levy the same amount of property tax as last year, when multiplied by the new total assessed value of property with the exclusions mentioned above, would be $..... per $100 of assessed value for Class I property, $..... per $100 of assessed value for Class II property, $..... per $100 of assessed value for Class III and $..... per $100 of assessed value for Class IV property. These rates will be known as the "lowered tax rates".
3. Effective Rate Increase: The (name of the county or municipality) proposes to adopt a tax rate of $..... per $100 of assessed value for Class I property, $..... per $100 of assessed value for Class II property, $..... per $100 of assessed value for Class III property and $..... per $100 of assessed value for Class IV property. The difference between the lowered tax rates and the proposed rates would be $..... per $100, or ..... percent for Class I; $..... per $100, or ..... percent for Class II; $..... per $100, or ..... percent for Class III and $..... per $100, or ..... percent for Class IV. These differences will be known as the "effective tax rate increases".
Individual property taxes may, however, increase at a percentage greater than or less than the above percentage.
4. Revenue produced last year: $.....
5. Revenue projected under the effective rate increases: $.....
6. Revenue projected from new property or improvements: $.....
7. General areas in which new revenue is to be allocated: A public hearing on the increases will be held on (date and time) at (meeting place). A decision regarding the rate increase will be made on (date and time) at (meeting place).
(d) All hearings are open to the public. The governing body shall permit persons desiring to be heard an opportunity to present oral testimony within such reasonable time limits as are determined by the governing body.
(e) This section shall be effective as to any regular levy rate imposed by the county commission or a municipality for taxes due and payable on or after July 1, 1991. If any provision of this section is held invalid, such the invalidity shall does not affect other provisions or applications of this section which can be given effect without the invalid provision or its application and to this end the provisions of this section are declared to be severable."
On page one, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
"That §11-8-6e of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §11-15-9l, all to read as follows:".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3017 - "A Bill to amend and reenact §11-8-6e of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §11-15-9l, relating to clarifying in the code that a municipality or county issuing bonds approved by an election pursuant to article one, chapter thirteen of said code is not subject to the restriction described in subsection (c), section six-e, article eight, chapter eleven of said code; exempting tax- exempt organizations engaged in retail sales of clothing and clothing accessories from the consumers sales tax; and authorizing the Tax Commissioner to designate the exemption as a per se exemption, thus exemption certificates would not be required."
On motion of Delegate Boggs, the House 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.
Resolutions Introduced

Delegates Fleischauer, Argento, Barker, Beach, Blair, Brown, Caputo, Cowles, Doyle, Eldridge, Ellem, Frazier, Guthrie, Hamilton, Hatfield, Hutchins, Klempa, Longstreth, Louisos, Mahan, Manchin, Marshall, Martin, Miley, J. Miller, Moore, Perdue, D. Poling and Talbott offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 112 - "Requesting that the Joint Committee on Government and Finance conduct an interim study regarding the various benefits and burdens upon all applicable parties in the context of the implementation, enforcement, and compliance with the various provisions of the West Virginia Code regarding reporting requirements for lobbyists pursuant to article three, chapter six-b of said code."
Whereas, The ability of various individuals to petition our various government entities, including the West Virginia Legislature, plays a critical role in maintaining and facilitating a government by the people, and for the people, responsive to the needs of the citizenry; and
Whereas, One aspect of the ability of individuals to petition the West Virginia Legislature for a redress of various grievances manifests itself in conduct known as "lobbying activity"; and
Whereas, To ensure said activity further facilitates and enhances the responsiveness of the West Virginia Legislature to its constituents, said Legislature must periodically review the various lobbyist reporting requirements as contained in the West Virginia Code; and
Whereas, The majority of the states and the federal government have laws requiring that lobbyists disclose the source of their funding, just like candidates for elected offices must submit an itemized accounting of all of their contributions; and
Whereas, The federal government and many states ban "bonuses" for lobbyists who are successful in passing or defeating legislation; and
Whereas, The rationale for provisions requiring reporting of lobbyists' funding is to promote transparency in the legislative process. Like our campaign reporting laws, voters deserve to have information about the money that is involved in attempting to influence the legislative process; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance conduct a study regarding the various benefits and burdens upon all applicable parties in the context of the implementation, enforcement, and compliance with the various provisions of the West Virginia Code regarding reporting requirements for lobbyists pursuant to article three, chapter six-B of said code; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report, and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Mr. Speaker, Mr. Thompson, and Delegate Perdue offered the following resolution, which was read by the Clerk as follows:
H. C. R. 113 - "Requesting the Division of Highways to name the Jennie's Creek Bridge, numbered 50-52-49.92, in Wayne County the 'Ralph L. Dawson Memorial Bridge'."
Whereas, Ralph Leon Dawson was born in Crum, West Virginia and is one of seven children; and
Whereas, Ralph graduated as valedictorian of Crum High School in 1955. He earned both his AB and MA degrees in Education at Marshall University; and
Whereas, Ralph was a well respected and important part of the Crum community in Southern Wayne County. He was a teacher and Principal of Crum Elementary for over 43 years. He touched the lives of thousands of children. As an educator he belonged to the Wayne County Education Association, the West Virginia Education Association, and the National Education Association; and
Whereas, Ralph was also involved in the community. He was instrumental in bringing municipal water to hundreds of families, starting work on the project in 1960. Ralph was also Chairman of the Crum Public Service District until his death; and
Whereas, Ralph was also a businessman, he co-owned the ACrum Pizza House@ for over 27 years; and
Whereas, He also participated in numerous civic and fraternal organizations: He was Secretary of Jewel Lodge #140 AF & AM, Logan Royal Arch Chapter, Logan Commandry, Beni Kedem Temple AAONMS, Crum Chapter OES #160, Past Patron of Kermit Chapter OES #123, Williamson Elks Lodge and Williamson Moose Lodge. He was an active member and supporter of the Wayne County Genealogical and Historical Society. He was also a member of the General Andrew Lewis Chapter of the Sons of the American Revolution. He was a former Scout Master of the Crum Boy Scout Troop, Chairman of the Wayne County Community Service Organization, a member of the Wayne County Economic Development Association and a Kentucky Colonel; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature request the Division of Highways to name the Jennie's Creek Bridge, numbered 50-52-49.92, in Wayne County the "Ralph L. Dawson Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to erect appropriate signage at both ends of the bridge; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the family of Ralph Dawson, the Commissioner of Highways, and the Wayne County Commission.
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the resolution (H. C. R. 113) 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 demanded, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 338), 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: M. Poling.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. C. R. 113) adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Kominar, Mr. Speaker, Mr. Thompson, and Delegates Andes, Argento, Armstead, Ashley, Barker, Beach, Boggs, Border, Butcher, Campbell, Cann, Caputo, Carmichael, Craig, Crosier, Duke, Eldridge, Ellem, Ennis, Evans, Ferro, Frazier, Givens, Guthrie, Hall, Hamilton, Hartman, Iaquinta, Ireland, Klempa, Lane, Longstreth, Louisos, Mahan, Manchin, Marshall, Martin, McGeehan, Michael, Miley, C. Miller, J. Miller, Moore, Morgan, Moye, Overington, Paxton, Perdue, Perry, Pethtel, Phillips, D. Poling, M. Poling, Porter, Rodighiero, Romine, Ross, Rowan, Schadler, Schoen, Shaver, Shott, Skaff, Sobonya, Staggers, Stowers, Susman, Varner, Walker, Walters, Webster, White and Williams offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 51 - "Recognizing the importance of the coal mining industry in West Virginia and requesting West Virginia's congressional delegation to support the coal industry."
Whereas, The Legislature works tirelessly to improve the quality of life for the citizens of the Mountain State; and
Whereas, Coal mining has been, and continues to be, one of the primary industries responsible for the economic success of West Virginia and its citizens; and
Whereas, Before the national economic downturn, severance tax collections from coal were at record levels, contributing to a budget surplus at the state and county levels; and
Whereas, All 55 counties continue to receive a local share of coal severance dollars to support county, local and municipal budgets; and
Whereas, County governments and county school systems throughout the state rely on the taxes from coal companies and coal miners to fund many valuable programs, including public education, ambulance services and law enforcement; and
Whereas, Thousands of West Virginians are employed, either directly or indirectly, by the coal mining industry which generates payrolls totaling over $2 billion; and
Whereas, The loss of any of West Virginia's coal mines and the loss of any mining-related employment ultimately results in significant harm to all West Virginians; and
Whereas, Surface coal mining, including the practice of mountaintop removal, currently represents forty-two percent of the total coal production in West Virginia; and
Whereas, Actions and inactions by federal regulatory agencies which have had the effect of closing surface coal mines are more frequent and result in the loss of hundreds of mining and other jobs in West Virginia; therefore, be it
Resolved by the House of Delegates:
That the House of Delegates hereby recognizes the importance of the coal mining industry in West Virginia and requests West Virginia's congressional delegation to support the coal industry; and, be it
Further Resolved, That the House of Delegates supports the continued mining of coal in West Virginia, including surface mining by all methods recognized by state and federal law, and is prepared to cooperate with all federal agencies in an effort to resolve quickly any outstanding issues which are preventing the mining of coal and which are contributing to the loss of jobs in West Virginia; and, be it
Further Resolved, That the House of Delegates requests West Virginia's congressional delegation to make every effort possible to assist in securing the needed cooperation from federal agencies to allow the continuation of the mining of coal and to protect the jobs of coal miners and others who derive their employment from the coal industry; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a copy of this resolution to the West Virginia Coal Association and West Virginia's congressional delegation.
Special Calendar

Unfinished Business


Action on Senate Message

Having been postponed in yesterday's proceedings, Com. Sub. for H. B. 2877, Increasing the monetary penalties, removing the possibility of incarceration and adding community service for a minor who misrepresents his or her age when purchasing alcohol, was on motion of Delegate Boggs, taken up for further consideration.
On motion of Delegate Boggs, the House 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.
H. R. 45, Commemorating the passing of William Henry File, Jr., gentleman, sailor, attorney, public servant, and a great asset to his country and his faith,
H. R. 49, Commemorating the life of the Honorable Charles Berkley Lilly, retired circuit court Judge, and former member of the House of Delegates,
The following resolutions, coming up in regular order, as unfinished business, were reported by the Clerk and adopted:
H. C. R. 43, The "Vietnam Veterans Highway",
H. C. R. 53, Requesting the Joint Committee on Government and Finance to conduct a study on identifying good perinatal health education models or developing models in West Virginia,
H. C. R. 54, The "Margarette Riggins Leach Memorial Roadway",
H. C. R. 70, Requesting that the Joint Committee on Government and Finance authorize a study of the law governing the West Virginia Board of Professional Engineers,
H. C. R. 71, Requesting that the Joint Committee on Government and Finance authorize a study of the law governing the West Virginia Board of Architects,
H. C. R. 72, Requesting that the Joint Committee on Government and Finance authorize a study of the law governing the West Virginia State Board of Pharmacy,
H. C. R. 73, Requesting that the Joint Committee on Government and Finance authorize a study on the West Virginia Board of Social Work Examiners,
H. C. R. 74, Requesting the Joint Committee on Government and Finance authorize a study of the feasibility of adopting a uniform lien filing system,
H. C. R. 83, Requesting that the Joint Committee on Government and Finance authorize a study of the law governing the West Virginia Board of Physical Therapy,
H. C. R. 84- Requesting that the Joint Committee on Government and Finance authorize a study on the Athletic Commission and the regulation of Mixed Martial Arts,
H. C. R. 86, Requesting that the Joint Committee on Government and Finance study the safety, conservation, and preservation of all statewide trails,
H. C. R. 88, Requesting the Joint Committee on Government and Finance to appoint a select interim committee to study the issue of a constitutional amendment to prohibit the state from recognizing same sex marriages,
S. C. R. 12, Requesting Division of Highways name bridge in Lesage "PVT Russell Curtis Knight Memorial Bridge",
S. C. R. 17, Requesting Division of Highways name bridge in Logan County "Marine Private Robert Clayton Stephenson Memorial Bridge",
S. C. R. 38, Requesting Division of Highways name Route 9 from Martinsburg to Berkeley Springs "Ray Johnston Memorial Highway",
And,
S. C. R. 46, Requesting Division of Highways name bridge in Braxton County "Harold V. Long Memorial Bridge".
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein on those requiring Senate action.
Delegate Mahan asked and obtained unanimous consent that the remarks of Delegate Wooton regarding the life of William Henry File, Jr. be printed in the Appendix to the Journal.
Today being Friday, the House of Delegates proceeded to the consideration of business on the Local Calendar.
Local Calendar

Third Reading

S. B. 490, Authorizing Mercer County Commission appoint emergency operations center board; 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. 339), 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: Carmichael and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 490) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 340), 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: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 490) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Special Calendar

-Continued-

Third Reading

Com. Sub. for S. B. 227, Authorizing Department of Revenue promulgate legislative rules; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment to the title of the bill, recommended by the Committee on the Judiciary , was reported by the Clerk, amending the bill; on page three, section 2b, starting on line 26, by striking out the words "during the regular session of the Legislature" and inserting lieu thereof the words "on or before December 31 of each year".
On motion of Delegates Brown, Lane and Wooton, the amendment was amended on page fourteen, after line twenty-four, by inserting a new section, designated section three, to read as follows:
"§64-7-5. Lottery Commission.
The legislative rule filed in the State Register on April, 20, 2004, under the authority of section four hundred two, article twenty-two-b, chapter twenty-nine of this code, approved for promulgation by the Legislature on March 12, 2004, relating to the lottery commission (Limited Video Lottery, 179 CSR 5), is authorized with the following amendments:
§179-5-35. Prohibition Against Extending Credit.
35.1. A video lottery retailer shall not extend credit, in any manner, to a player to enable the player to play a video lottery game.
35.2. For purposes of this rule, the cashing of any check by a video lottery retailer to enable a player to play a video lottery game shall constitute an extension of credit."
The Judiciary Committee amendment, as amended, was then adopted.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 341), and there were--yeas 82, nays 18, absent and not voting 0, with the nays being as follows:
Nays: Andes, Armstead, Ashley, Blair, Border, Butcher, Eldridge, Ireland, Lane, Louisos, McGeehan, C. Miller, Overington, Schoen, Sobonya, Stowers, Sumner and Walters.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 227) 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. 227 - "A Bill to amend and reenact article 7, chapter 64 of the Code of West Virginia, 1931, as amended, relating generally to the promulgation of administrative rules by the Department of Revenue; legislative mandate or authorization for the promulgation of certain legislative rules; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee and as amended by the Legislature; repealing certain legislative rules; authorizing the State Tax Department to repeal a legislative rule relating to valuation of intangible personal property including stock accounts receivable and stock in banks and capital of savings and loan associations; authorizing the State Tax Department to promulgate a legislative rule relating to combined returns pursuant to an investigation by the Tax Commissioner; authorizing the State Tax Department to promulgate a legislative rule relating to the film industry investment tax credit; authorizing the State Tax Department to promulgate a legislative rule relating to electronic filing and payment of special district excise tax; authorizing the State Tax Department to promulgate a legislative rule relating to the withholding or denial of personal income tax refunds from taxpayers who owe municipal costs, fines, forfeitures or penalties; disapproving the State Tax Department's proposed legislative rule relating to an exchange of information agreement between the State Tax Division and the Department of Health and Human Resources Office of the Inspector General Medicaid Fraud Control Unit; authorizing the Insurance Commissioner to promulgate a legislative rule relating to coordination of health benefits; authorizing the Insurance Commissioner to promulgate a legislative rule relating to long-term care insurance; authorizing the Insurance Commissioner to promulgate a legislative rule relating to actuarial opinion and memorandum; authorizing the Insurance Commissioner to promulgate a legislative rule relating to continuing education for individual insurance producers; authorizing the Insurance Commissioner to promulgate a legislative rule relating to viatical settlements; authorizing the Insurance Commissioner to promulgate a legislative rule relating to discount medical plan organizations and discount prescription drug plan organizations; authorizing the Insurance Commissioner to promulgate a legislative rule relating to professional employer organizations; authorizing the Insurance Commissioner to promulgate a legislative rule relating to preneed life insurance minimum standards for determining reserve liabilities and nonforfeiture values; and authorizing the Racing Commission to promulgate a legislative rule relating to greyhound racing."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 342), and there were--yeas 93, nays 7, absent and not voting none, with the nays being as follows:
Nays: Andes, Blair, Louisos, C. Miller, Schoen, Sobonya and Sumner.
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. 227) 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. 256, Providing additional requirements for certain property annexation; 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. 343), and there were--yeas 86, nays 14, absent and not voting none, with the nays being as follows:
Nays: Anderson, Armstead, Ashley, Border, Lane, Louisos, Manypenny, McGeehan, Moye, Porter, Shott, Sobonya, Sumner and Walters.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 256) 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. 278, Creating felony offense of willful failure to provide certain drug benefits; 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. 344), and there were--yeas 99, nays 1, absent and not voting 0, with the nays being as follows:
Nays: Ireland.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 278) 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. 278 - "A Bill to amend and reenact §33-15E-15 of the Code of West Virginia, 1931, as amended, relating to the criminal offenses for failing to provide benefits of a discount medical plan or discount prescription drug plan; clarifying that the severity of the offense is dependant on the total of fees collected; and providing for an alternate sentence upon conviction of the felony offense."
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. 282, Relating to retail liquor licenses' classification; on third reading, coming up in regular order, was, at the request of Delegate Boggs, and by unanimous consent, placed at the foot of bills on third reading.
S. B. 322, Exempting certain life insurance policies from Medicaid assignment; 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. 345), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 322) passed.
An amendment to the title of the bill, recommended by the Committee on Health and Human Resources, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 322 - "A Bill to amend and reenact §9-5-11 of the Code of West Virginia, 1931, as amended, relating to exempting the first $25,000 of the death benefit of a life insurance policy from assignment by Medicaid recipients to the Department of Health and Human Resources."
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. 326, Mandating certain dental anesthesia insurance coverage; 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. 346), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 326) 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. 347, Correcting code reference related to extended supervision for certain sex offenders; 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. 347), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 347) 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. 279 - "A Bill to amend and reenact §62-12-26 of the Code of West Virginia, 1931, as amended, relating to making corrections to internal code references and other terminology related to extended supervision for certain sex offenders"
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 425, Disclosing certain refinanced loan's higher annual percentage rate; 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. 348), and there were--yeas 97, nays 3, absent and not voting none, with the nays being as follows:
Nays: McGeehan, Porter and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 425) passed.
On motion of Delegate Webster, the title of the bill was amended to read as follows:
S. B. 425 - "A Bill to amend and reenact §46A-4-111 of the Code of West Virginia, 1931, as amended, relating to refinancing or consolidation of certain loans or consumer credit sales by regulated consumer lenders; requiring disclosure of a higher annual percentage rate in any refinancing or consolidation of a nonrevolving consumer loan or consumer credit sale; and requiring documentation of a reasonable, net tangible benefit to the borrower of any refinancing or consolidation of a nonrevolving consumer loan or consumer credit sale secured by residential real estate."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 468, Requiring redemption property purchaser pay in certified funds; 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. 349), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 468) 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. 470, Regulating all-terrain vehicles on Hatfield-McCoy Trail; 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. 350), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 470) 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. 470 - "A Bill to amend and reenact §20-15-1, §20-15-2, §20-15-3, §20- 15-4, §20-15-5 and §20-15-6 of the Code of West Virginia, 1931, as amended, all relating to regulating all-terrain vehicles and utility-terrain vehicles on the Hatfield-McCoy Trail; standardizing the definition of 'all-terrain vehicle'; defining and regulating 'utility-terrain vehicle'; defining and regulating 'motorcycle'; extending the limitations of liability of the Hatfield-McCoy Regional Recreation Authority; and making stylistic and technical corrections."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 481, Requiring employers provide certain documentation to Public Employees Insurance Agency; 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. 351), and there were--yeas 99, nays 1, absent and not voting none, with the nays being as follows:
Nays: Porter.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 481) 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. 494, Authorizing Insurance Commissioner order restitution in certain cases; 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. 352), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 494) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 495, Authorizing Insurance Commissioner permit certain groups life insurance policies; 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. 353), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 495) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 507, Relating to Clean Coal Technology Council's powers and duties; 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. 354), 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: Cann and Doyle.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 507) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 552, Relating to affordable health insurance plan proposals; 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. 355), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 552) passed.
On motion of Delegate Perry, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 552 - "A Bill to repeal §33-15D-1, §33-15D-2, §33-15D-3, §33-15D-4, §33-15D-5, §33-15D-6, §33-15D-7, §33-15D-8, §33-15D-9, §33-15D-10 and §33-15D-11 of the Code of West Virginia, 1931, as amended; to amend said code by adding a new section thereto, designated, §33-16-3t; to amend and reenact §33-16F-1, §33-16F-2, §33-16F-3, §33-16F-4, §33- 16F-5, §33-16F-6, §33-16F-7 and §33-16F-8 of said code; and to amend said code by adding thereto two new sections, designated §33-16F-9 and §33-16F-10, all relating to health insurance; providing a special enrollment period for continued employee group accident and sickness insurance coverage for certain involuntarily terminated employees and their dependents; providing legislative findings; defining terms; mandating notice to individuals eligible for coverage; providing for a disregard of certain periods for purposes of calculating creditable coverage; establishing a program to provide affordable health care insurance coverage; requiring the Insurance Commissioner to invite carriers and other entities to submit proposals for affordable health insurance plans; defining terms; specifying that plans do not create an entitlement; establishing eligibility and standards for such plans; providing for evaluation of the plans and reports to the Legislature; providing for continuation of existing limited benefit plans; and authorizing emergency and legislative rules."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 356), and there were--yeas 100, nays none, absent and not voting none.
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. 552) 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 Stephens announced that he was absent on yesterday when the votes were taken on Roll Nos. 296 through 318, and that had he been present, he would have voted "Yea" thereon.
Delegate Sumner, asked and obtained unanimous consent to be added as a sponsor on H. R. 51, Recognizing the importance of the coal mining industry in West Virginia.
At 11:16 a.m., on motion of Delegate Boggs, the House of Delegates recessed until 1:00 p.m., and reconvened at that time.
* * * * * * *

Afternoon Session

* * * * * * *

At the request of Delegate Boggs, and by unanimous consent, the House of Delegates proceeded to the Seventh Order of Business for the purpose of introduction of resolutions.
Resolutions Introduced

Mr. Speaker, Mr. Thompson, and Delegates Boggs, Campbell, Caputo, Fragale, Guthrie, Hatfield, Mahan, Marshall, Miley, Morgan, Paxton, Perdue, M. Poling, Stephens, Talbott, Varner, Webster and White offered the following resolution, which was read by the Clerk as follows:
H. C. R. 118 - "Requesting the Joint Committee on Government and Finance to study, analyze and evaluate the operating practices, administrative procedures and legal issues associated with the state administration of the Division of Highways and discrepancies in projections made by the Division of Highways."
Whereas, Highway infrastructure is vitally important to the economic development of West Virginia; and
Whereas, The American Recovery Reinvestment Act recognizes highway maintenance and construction as a key element of both short term and long term job creation and retention; and
Whereas, West Virginia is due to receive $210 million in federal highway stimulus funds; and
Whereas, The 78th West Virginia Legislature appropriated $40 million to the Division of Highways to make up any shortfall due to the temporary freezing of the state gas tax; and
Whereas, State Transportation Secretary Paul Mattox said at the time that "he was confident the $40 million infusion of surplus revenue will help assure that the division won't have to defer planned road projects in 2009;" and
Whereas, The Division of Highways only utilized $13 million of that $40 million appropriation; and
Whereas, The Deputy Commissioner of Transportation Paul Turman now reports that by allowing the state gas tax to go down by .05 cents a gallon consumers will realize a savings of only $40 per year; and
Whereas, That estimate differs from the one provide by Governor Manchin last year by 25 to 33 percent; and
Whereas, Deputy Commissioner Turman reports that the state master plan relied on a tax increase through the end of 2014 in drawing up its plan for construction plans despite the fact that no such tax increase had been provided for by statute; and
Whereas, Deputy Commissioner Turman now reports that the total amount of lost Road Fund revenue will be $350 million through 2014; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study, analyze and evaluate the operating practices, administrative procedures and legal issues associated with the state administration of the Division of Highways and discrepancies in projections made by the Division of Highways; and, be it
Further Resolved, That the Joint Committee on Government and Finance report the Legislature on the first day of the regular session, 2010, on its findings, conclusions and recommendations together with drafts of any legislation to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, prepare a report and the drafting of necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance."
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the resolution (H. C. R. 118) to a committee was dispensed with, and it was taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegates Armstead, Lane and Walters offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 119 - "Requesting the Division of Highways to name Bridge No. 1009, located on U.S. Route 119 at mile post 25.53 crossing Coopers Creek, Big Chimney, Kanawha County the 'Private First Class Thomas Keith Coleman Memorial Bridge'."
Whereas, Thomas Keith Coleman was born on December 7, 1948, in Big Chimney, and reared and educated in Kanawha County, the son of Marvin and Kathleen Coleman; and
Whereas, Thomas Keith Coleman graduated from Herbert Hoover High School in 1966 where he excelled in academics, was an athlete participating on the high school football team, wrestling team and track team and was well liked and respected by all his classmates as well as all the faculty; and
Whereas, Thomas Keith Coleman volunteered for service in the United States Marine Corps Reserve after graduation from Herbert Hoover High School, and eventually rose to the rank of Private First Class, believing that he could serve his country best by service in the Marine Corps and was proud to be a Marine; and
Whereas, Private First Class Thomas Keith Coleman was deployed to South Vietnam in December of 1967; and
Whereas, Private First Class Thomas Keith Coleman was tragically killed on January 27, 1968, in Quang Tri, South Vietnam, from small arms fire and grenades, at the tender age of nineteen years after only serving less than a year in the Marine Corps Reserve; and
Whereas, Private First Class Coleman became the first son of Big Chimney to make the ultimate sacrifice for his country during the conflict in Vietnam earning the bronze star and purple heart posthumously; and
Whereas, At the time of his passing Private First Class Coleman was survived by his parents, Marvin and Kathleen Coleman, and sisters Barbara Ravenscroft and Susan Coleman; and
Whereas, The ultimate sacrifice of this brave and courageous son of Kanawha County, West Virginia, requires us to honor Private First Class Coleman, by ensuring that future generations are aware of his sacrifice in the cause of freedom; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name Bridge No. 1009, located on U.S. Route 119 at mile post 25.53 crossing Coopers Creek, Big Chimney, Kanawha County the "Private First Class Thomas Keith Coleman Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and placed on the bridge, signs identifying it as the "Private First Class Thomas Keith Coleman Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Secretary of Transportation, the Commissioner of the Division of Highways, and the family of Private First Class Thomas Keith Coleman.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage, and requested the concurrence of the House of Delegates in the passage, of
S. B. 771 - "A Bill making a supplementary appropriation of federal funds out of the Treasury from the balance of federal moneys remaining unappropriated for the fiscal year ending June 30, 2009, to the Crime Victims Compensation Fund, fund 8738, fiscal year 2009, organization 2300, to the Governor's Office - Office of Economic Opportunity, fund 8797, fiscal year 2009, organization 0100, to the Governor's Office - Commission for National and Community Service, fund 8800, fiscal year 2009, organization 0100, to the Department of Agriculture, fund 8736, fiscal year 2009, organization 1400, to the Division of Forestry, fund 8703, fiscal year 2009, organization 0305, to the State Department of Education, fund 8712, fiscal year 2009, organization 0402, to the State Department of Education - School Lunch Program, fund 8713, fiscal year 2009, organization 0402, to the State Department of Education - Aid for Exceptional Children, fund 8715, fiscal year 2009, organization 0402, to the State Board of Rehabilitation - Division of Rehabilitation Services, fund 8734, fiscal year 2009, organization 0932, Division of Environmental Protection, fund 8708, fiscal year 2009, organization 0313, Division of Health - Central Office, fund 8802, fiscal year 2009, organization 0506, Division of Health - West Virginia Safe Drinking Water Treatment, fund 8824, fiscal year 2009, organization 0506, to the West Virginia Health Care Authority, fund 8851, fiscal year 2009, organization 0507, to the Division of Human Services, fund 8722, fiscal year 2009, organization 0511, to the Adjutant General - State Militia, fund 8726, fiscal year 2009, organization 0603, to the West Virginia State Police, fund 8741, fiscal year 2009, organization 0612, to the Division of Criminal Justice Services, fund 8803, fiscal year 2009, organization 0620, to the Division of Public Transit, fund 8745, fiscal year 2009, organization 0805, to the Bureau of Senior Services, fund 8724, fiscal year 2009, organization 0508, to the Workforce West Virginia - Workforce Investment Act, fund 8749, fiscal year 2009, organization 0323, to the Division of Human Services - Temporary Assistance for Needy Families, fund 8816, fiscal year 2009, organization 0511, and to the Division of Human Services - Child Care and Development, fund 8817, fiscal year 2009, organization 0511, all supplementing and amending the appropriations for the fiscal year ending June 30, 2009."

A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage, and requested the concurrence of the House of Delegates in the passage, of

S. B. 772 - "A Bill making a supplementary appropriation from the balance of moneys remaining unappropriated for the fiscal year ending June 30, 2009, to the Department of Agriculture - General John McCausland Memorial Farm, fund 1409, fiscal year 2009, organization 1400, to the Department of Transportation - Division of Motor Vehicles - Motor Vehicle Fees Fund, fund 8223, fiscal year 2009, organization 0802, to the Bureau of Senior Services - Community-Based Service Fund, fund 5409, fiscal year 2009, organization 0508, and to a new item of appropriation designated to the West Virginia Northern Community and Technical College - WVNCC Land Sale Account, fund 4732, fiscal year 2009, organization 0489, supplementing and amending chapter ten, Acts of the Legislature, regular session, 2008, known as the Budget Bill."
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage, and requested the concurrence of the House of Delegates in the passage, of

S. B. 773 - "A Bill making a supplementary appropriation from the balance of moneys remaining unappropriated for the fiscal year ending June 30, 2009, to a new item of appropriation designated to the Department of Agriculture - Land Protection Authority, fund 8896, fiscal year 2009, organization 1400, by supplementing and amending chapter ten, Acts of the Legislature, regular session, 2008, known as the Budget Bill."
Special Calendar

Third Reading

-Continued-

Com. Sub. for S. B. 575, Relating to gaming operations at historic resort hotel; on third reading, coming up in regular order, with amendments pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk on page three, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §29-22-29; that §29-25-1, §29-25-2, §29-25-3, §29-25-5, §29-25-6, §29-25-8, §29-25-9, §29-25-11, §29-25-12, §29-25-13, §29-25-16, §29-25-17, §29-25-18, §29-25-19, §29-25- 20, §29-25-21, §29-25-22, §29-25-23, §29-25-24, §29-25-25 and §29-25-26 of said code be amended and reenacted; and that said code be amended by adding thereto twelve new sections, designated §29-25-22a, §29-25-28, §29-25-29, §29-25-30, §29-25-31, §29-25-32, §29-25-33, §29- 25-34, §29-25-35, §29-25-36, §29-25-37 and §29-25-38, all to read as follows:
ARTICLE 22. STATE LOTTERY ACT.
§29-22-29. Moneys transferred or allocated to non-governmental entities by the department or any of its agencies, boards, commissions, divisions and offices; moneys are state moneys and have been so in the past; right to audit state moneys transferred to nongovernmental entities.

(a) Moneys transferred by the Commission under provisions of this article and articles twenty-two-a, twenty-two-b, twenty-two-c and twenty-five of this chapter to non-governmental recipients, are state moneys and have been state moneys in prior fiscal periods.
(b) All nongovernmental entities that have received state moneys as described in subsection (a) of this section are subject to audit by the Commission. An audit provided for by this section may be conducted by employees or agents of the Commission. An audit provided for by this section may also be conducted by the legislative auditor.
ARTICLE 25. AUTHORIZED GAMING FACILITY.
§29-25-1. Authorization of limited gaming facility; findings; intent.

(a) Operation of authorized games of chance West Virginia Lottery table games. -- Notwithstanding any provision of law to the contrary, the operation of West Virginia lottery games permitted by this article and the related operation of a gaming facility and ancillary activities is not unlawful when conducted under the terms specified in this article and article twenty-two-c of this chapter.
(b) Legislative findings. -- The Legislature finds and declares that the tourism industry plays a critical role in the economy of this state and that a substantial state interest exists in protecting that industry. It further finds and declares that the authorization of the operation of a gaming facility at no more than one well-established historic resort hotel in this state as provided in this article will serve to protect and enhance the tourism industry, and indirectly other segments of the economy of this state, by providing a resort hotel amenity which is becoming increasingly important to many actual and potential resort hotel patrons.
The Legislature finds and declares that video lottery operations pursuant to subsection (c), section three twenty-eight of this article and the operation of the other authorized West Virginia Lottery table games permitted by this article constitute the operation of lotteries within the purview of section thirty-six, article VI of the Constitution of West Virginia.
(c) Legislative intent. -- It is the intent of the Legislature in the enactment of this article to promote tourism and year-round employment in this state. It is expressly not the intent of the Legislature to promote gaming. As a consequence, it is the intent of the Legislature to allow limited gaming as authorized by this article and article twenty-two-c of this chapter with all moneys gained from the operation of the gaming facility, other than those necessary to reimburse reasonable costs of operation, to inure to the benefit of the state. Further, it is the intent of the Legislature that amendments made to this article during the 2009 regular session will establish appropriate conformity between the operations of video lottery and West Virginia Lottery table games at the licensed gaming facility under this article and the operations of video lottery and table games at the pari-mutuel racetracks licensed under articles twenty-two-a and twenty-two-c of this chapter.
§29-25-2. Definitions.
As used in this article, unless the context otherwise requires, the following words and phrases have meanings indicated:
(a) 'Applicant' means any person or entity applying for a license.
(b) 'Adjusted gross receipts' means the gross receipts of a gaming facility from authorized games of chance West Virginia Lottery table games less winnings paid to wagerers in the such games.
(c) 'Annual average gross receipts of the pari-mutuel racetracks with table games licenses' means the amount obtained by adding the adjusted gross receipts of all West Virginia pari-mutuel racetracks with table games licenses and then dividing that calculation by the number of West Virginia pari-mutuel racetracks with table games licenses.
(c) 'Authorized game of chance' includes means baccarat, twenty-one or blackjack, poker, craps, roulette, wheel of fortune, video lottery games and any other Monte Carlo style table game expressly authorized by rule of the commission, but expressly excludes punchboard, faro, keno, numbers ticket, push card, jar ticket, pull tab or similar games.
(d) 'Background investigation' means a security, criminal and credit investigation of an applicant who has applied for the issuance or renewal or a license pursuant to this article or a licensee who holds a current license.
(d) (e) 'Controlling interest' means:
(1) For a partnership, an interest as a general or limited partner holding more than fifty five percent interest in the entity;
(2) For a corporation, an interest of more than fifty five percent of the stock in the corporation; and
(3) For any other entity, an ownership interest of more than fifty five percent in the entity.
(e) (f) 'Controlling person' means, with respect to another person, any person directly or indirectly owning or holding a controlling interest in that other person.
(f) (g) 'Commission' means the State Lottery Commission created in section four, article twenty-two of this chapter.
(h) 'Designated gaming area' means one or more specific floor areas of a licensed gaming facility within which the commission has authorized operation of video lottery terminals or West Virginia Lottery table games, or the operation of both video lottery terminals and West Virginia Lottery table games.
(g) (i) 'Director' means the Director of the State Lottery Commission.
(j) 'Erasable programmable read-only memory chips' or 'EPROM' means the electronic storage medium on which the operation software for all games playable on a video lottery terminal resides and can also be in the form of CD ROM, flash ROM or other new technology medium that the commission may from time to time approve for use in video lottery terminals. All electronic storage media are considered to be property of the State of West Virginia.
(k) 'Fringe benefits' means sickness and accident benefits and benefits relating to medical and pension coverage.
(h) (l) 'Gaming devices and supplies' mean gaming tables for all authorized games of chance West Virginia Lottery table games, roulette wheels, wheels of fortune, video lottery terminals, cards, dice, chips, tokens, markers or any other mechanical, electronic or other device, mechanism or equipment or related supplies utilized in the operation of an authorized game of chance a West Virginia Lottery table game.
(i) (m) 'Gaming facility' means a designated area on the premises of an existing historic resort hotel in which authorized games of chance West Virginia Lottery table games are conducted by a gaming licensee.
(j) (n) 'Gaming licensee' means the licensed operator of a gaming facility.
(k) (o) 'Gross receipts' means the total amount of money exchanged for the purchase of chips, tokens or electronic cards by patrons of a gaming facility reduced by gross terminal income to the extend extent gross terminal income is included in the amount of money exchanged.
(l) (p) 'Gross terminal income,' has the same meaning ascribed to the term as set forth in article twenty-two-a of this chapter as used in this article and as used in article twenty-two-a of this chapter, means the total amount of cash, vouchers or tokens inserted into the video lottery terminals operated by a licensee, minus promotional credits played, and minus the total value of coins and tokens won by a player and game credits which are cleared from the video lottery terminals in exchange for winning redemption tickets.
(m) (q) 'Historic resort hotel' means a resort hotel registered with the United States Department of the Interior as a national historic landmark in its National Registry of Historic Places having not fewer than five hundred guest rooms under common ownership and having substantial recreational guest amenities in addition to the gaming facility.
(s) 'State gaming (r) 'Historic Resort Hotel Fund' means the special fund in the State Treasury created in section twenty-two of this article.
(s) 'Human Resource Benefit Fund' means the special fund in the State Treasury created in section twenty-two-a of this article.
(t) 'Human Resource Benefit Advisory Board' or 'board' means the advisory board created in section twenty-two-a of this article.
(n) (u) 'License' means a license issued by the commission, including:
(1) A license to operate a gaming facility;
(2) A license to supply gaming devices and supplies to a gaming facility; or
(3) A license to be employed in connection with the operation of a gaming facility; or
(4) A license to provide management services under a contract to a gaming facility under this article.
(o) (v) 'Licensed gaming facility employee' means any individual licensed to be employed by a gaming licensee in connection with the operation of a gaming facility.
(p) (w) 'Licensed gaming facility supplier' means a person who is licensed by the commission to engage in the business of supplying gaming devices and gaming supplies to a gaming facility.
(q) (x) 'Licensee' means a gaming licensee, a licensed gaming facility supplier or a licensed gaming facility employee.
(y) 'Manufacturer' means any person holding a license granted by the commission to engage in the business of designing, building, constructing, assembling or manufacturing video lottery terminals, the electronic computer components of the video lottery terminals, the random number generator of the video lottery terminals, or the cabinet in which it is housed, and whose product is intended for sale, lease or other assignment to a licensed gaming facility in West Virginia and who contracts directly with the licensee for the sale, lease or other assignment to a licensed gaming facility in West Virginia.
(z) 'Net terminal income' means gross terminal income minus an amount deducted by the commission to reimburse the commission for its actual cost of administering video lottery at the licensed gaming facility. No deduction for any or all costs and expenses of a licensee related to the operation of video lottery games shall be deducted from gross terminal income.
(r) (aa) 'Person' means any natural person, corporation, association, partnership, limited partnership, limited liability company or other entity, regardless of its form, structure or nature.
(bb)'Premises of an existing historic resort hotel' means the historic resort hotel, attachments of the historic resort hotel, and the traditional, immediate grounds of the historic resort hotel.
(cc) 'Promotional credits' means credits given by the licensed gaming facility or licensed racetrack to players allowing limited free play of video lottery terminals in total amounts and under conditions approved in advance by the commission.
(t) (dd) 'Video lottery games game,' and video lottery terminals' shall have the same meaning ascribed the terms in article twenty-two-a of this chapter as used in this article and as used in article twenty-two-a of this chapter, means a commission-approved, -owned and -controlled electronically simulated game of chance which is displayed on a video lottery terminal and which:
(1) Is connected to the commission's central control computer by an online or dial-up communication system;
(2) Is initiated by a player's insertion of cash, vouchers or tokens into a video lottery terminal, which causes game play credits to be displayed on the video lottery terminal and, with respect to which, each game play credits entitles a player to choose one or more symbols or numbers or to cause the video lottery terminal to randomly select symbols or numbers;
(3) Allows the player to win additional game play credits, coins or tokens based upon game rules which establish the random selection of winning combinations of symbols or numbers or both and the number of free play credits, coins or tokens to be awarded for each winning combination of symbols or numbers or both;
(4) Is based upon a computer-generated random selection of winning combinations based totally or predominantly on chance;
(5) In the case of a video lottery game which allows the player an option to select replacement symbols or numbers or additional symbols or numbers after the game is initiated and in the course of play, either:
(A) Signals the player, prior to any optional selection by the player of randomly generated replacement symbols or numbers, as to which symbols or numbers should be retained by the player to present the best chance, based upon probabilities, that the player may select a winning combination;
(B) Signals the player, prior to any optional selection by the player of randomly generated additional symbols or numbers, as to whether such additional selection presents the best chance, based upon probabilities, that the player may select a winning combination; or
(C) Randomly generates additional or replacement symbols and numbers for the player after automatically selecting the symbols and numbers which should be retained to present the best chance, based upon probabilities, for a winning combination, so that in any event, the player is not permitted to benefit from any personal skill, based upon a knowledge of probabilities, before deciding which optional numbers or symbols to choose in the course of video lottery game play;
(6) Allows a player at any time to simultaneously clear all game play credits and print a redemption ticket entitling the player to receive the cash value of the free plays cleared from the video lottery terminal; and
(7) Does not use the following game themes commonly associated with casino gambling: Roulette, dice or baccarat card games:
Provided, That games having a display with symbols which appear to roll on drums to simulate a classic casino slot machine, game themes of other card games and keno may be used.
(ee) 'Wager' means a sum of money or thing of value risked on an uncertain occurrence.
(ff) 'West Virginia Lottery table game' means any game played with cards, dice or any mechanical, electromechanical or electronic device or machine for money, credit or any representative of value, including, but not limited to, baccarat, blackjack, poker, craps, roulette, wheel of fortune or any variation of these games similar in design or operation and expressly authorized by rule of the commission, including multiplayer electronic table games, machines and devices, but excluding video lottery, punchboards, faro, numbers tickets, push cards, jar tickets, pull tabs or similar games.
§29-25-3. Commission duties and powers.
(a) Duties. -- In addition to the duties set forth elsewhere in this article, the commission shall:
(1) Establish minimum standards for gaming devices and supplies, including electronic or mechanical gaming devices;
(2) Approve, modify or reject game rules of play for all authorized games of chance West Virginia Lottery table games proposed to be operated by a gaming licensee;
(3) Establish standards governing gaming facilities generally, Approve, modify or reject minimum internal control standards proposed by the licensee gaming facility for West Virginia Lottery table game, including the maintenance of financial books and records;
(4) Provide staff to supervise, inspect and monitor the operation of any gaming facility, including inspection of gaming devices and supplies used in the operation to assure continuous compliance with all rules of the commission and provisions of this article;
(5) Establish minimum levels of insurance to be maintained with respect to a gaming facility;
(6) Investigate applicants to determine eligibility for any license and, where appropriate, select among competing applicants;
(7) Designate appropriate classifications of personnel to be employed in the operation of a gaming facility and establish appropriate licensing standards within the classifications;
(8) Issue all licenses;
(9) Charge and collect the taxes and fees authorized, required or specified in this article: and receive, accept and pay taxes and fees collected under this article into the state gaming fund
(i) Receive, accept and pay the specified percentage of taxes collected under sections twenty and twenty-one of this article into the Historic Resort Hotel Fund; and
(ii) Receive, accept and pay the specified percentage of taxes collected under sections twenty and twenty-one of this article into the Human Resource Benefit Fund;

(10) Maintain a record of all licenses issued;
(11) Keep a public record of all commission actions and proceedings; and
(12) File a written annual report to the Governor, the President of the Senate and the Speaker of the House of Delegates on or before January 30 of each year and any additional reports as the Governor or Legislature may request.
(b) Powers. -- In addition to the powers set forth elsewhere in this article, the commission has the following powers:
(1) To sue to enforce any provision of this article by injunction;
(2) To hold hearings, administer oaths and issue subpoenas for the attendance of a witness to testify and to produce evidence;
(3) To enter a gaming facility at any time and without notice to ensure strict compliance with the rules of the commission;
(4) To bar, for cause, any person from entering or participating in any capacity in the operation of a gaming facility; and
(5) To exercise such other powers as may be necessary to effectuate the provisions of this article.
(c)Video lottery games. -- The commission is authorized to implement and operate video lottery games at the gaming facility licensed pursuant to this article consistent with the gaming licensee's operation of the gaming facility. With respect to video lottery games the provisions of article twenty-two-a of this chapter apply to this article, except in the event of a conflict or inconsistency between any of the provisions of this article and the provisions of article twenty-two-a of this chapter. In that event, the provisions of this article shall supersede any conflicting or inconsistent provisions contained in article twenty-two-a of this chapter. In carrying out its authority hereunder, the commission may: (1) Specify by rule additional licensure and fee requirements consistent with the provisions of article twenty-two-a respecting video lottery manufacturers, service technicians and validation managers; and (2) adopt and specify any reasonable procedure, protocol or requirement to enable video lottery terminals to effectively and efficiently communicates with the commission's central computer system used in administering article twenty-two-a of this chapter.
§29-25-5. Rules.
The commission shall propose for promulgation legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code as are necessary to provide for implementation and enforcement of the provisions of this article. Any legislative rules proposed by the commission before September 1, thousand nine hundred ninety-nine 2009, may be by emergency rule.
§29-25-6. Law enforcement.
(a) Generally. -- Notwithstanding any provision of this code to the contrary, the director may commission shall, by contract or cooperative agreements, with state, county or municipal law enforcement agencies operating in the county in which the gaming facility is located arrange for such law enforcement services as agreement with the West Virginia State Police, arrange for those law-enforcement services uniquely related to gaming as such occurs at the gaming facility that are necessary to enforce the provisions of this article.
(b) Costs. -- The actual cost of services provided by the State Police or municipal law enforcement agencies in connection with enforcement of the provisions of this article West Virginia State Police pursuant to a contract or cooperative agreement entered into pursuant to the provisions of subsection (a) of this section, including, but not limited to, necessary training costs, shall be paid from the state gaming fund, which cost shall include all costs of required training and equipment as well as salary, benefits and other direct costs of additional required personnel by the commission as an administrative expense.
The costs of services related to a gaming facility provided by law-enforcement officers of the county in which such gaming facility is located shall be paid from that portion of the state gaming fund allocated to such county. The costs shall include all costs of required training and equipment as well as salary, benefits and other direct costs of additional personnel.
(c) Notwithstanding any provision of this code to the contrary, the West Virginia State Police shall have exclusive jurisdiction over felony offenses committed on the grounds of the gaming facility.
§29-25-8. Licenses required.
(a) No person may engage in any activity in connection with a gaming facility in this state for which a license is required by subsection (b) of this section unless that person has been licensed by the commission in accordance with this article.
(b) Licenses are required for the following purposes:
(1) For any person engaging in the business of operating a gaming facility in the state;
(2) For any person engaging in the business of supplying a gaming facility with gaming devices, gaming supplies or gaming services; if the gaming facility expends more than fifty thousand dollars annually with such person; and
(3) For any individual employed by a gaming licensee in connection with the operation of a gaming facility in the state; and
(4) For any person providing management services under a contract to a gaming facility.
(c) Any license required under this article is in addition to all other licenses or permits otherwise required by law.
§29-25-9. License to operate a gaming facility.
(a) Single license. -- The commission may issue only one license to operate a gaming facility. If the one license limitation in the preceding sentence is found to be unconstitutional in a final, nonappealable order by a court of competent jurisdiction, the commission shall have no authority to issue any license under this article and, in such event, the provisions of this article shall not be severable and any license issued under the provisions of this article prior thereto shall be void. The Legislature intends that no more than one license to operate one gaming facility in this state shall be authorized in any event.
(b) Applicant qualifications. -- An The applicant for a license to operate a gaming facility shall be the owner or be wholly owned by the owner of an existing actual operator of the gaming facility to be located on the premises of an existing historic resort hotel in which the gaming facility is to be located, and the The applicant may be the owner of the existing historic resort hotel or a person that leases well-defined spaces on the premises of the historic resort hotel in order to operate a gaming facility as defined by this article. The resort hotel shall be located within the jurisdiction of a county approving the operation of a gaming facility in accordance with section seven of this article. An The applicant shall meet the qualifications and requirements set forth in this article and rules adopted by the commission. In determining whether to grant a license to operate a gaming facility to an applicant, the commission shall consider:
(1) The character, reputation, experience and financial integrity of the applicant and any controlling person of the applicant;
(2) Whether the applicant has adequate capital to construct and maintain the proposed gaming facility for the duration of a license;
(3) The extent to which the applicant meets standards contained in rules adopted by the commission relating to public safety or other standards; and
(4) The plan submitted by the applicant regarding employment levels and the extent to which the submitted plan demonstrates an ability on the part of the applicant to create at least one hundred full-time equivalent jobs with a salary and benefit package commensurate with existing employees at the historic resort hotel.
(c) Conditions attached to license. -- A license to operate a gaming facility may only be granted to an applicant upon the express condition that: Floor plan submission requirement. -- Prior to commencing the operation of any West Virginia Lottery table game in a designated gaming area, the gaming facility licensee shall submit to the commission for its approval a detailed floor plan depicting the location of the designated gaming area in which West Virginia Lottery table game gaming equipment will be located and its proposed arrangement of the West Virginia Lottery table game gaming equipment. If the floor plans for the designated gaming area preserve the historic integrity of the historic resort hotel where the licensed gaming facility is located, then any floor plan submission that satisfies the requirements of the rules promulgated by the commission shall be considered approved by the commission unless a gaming facility is notified in writing to the contrary within one month of filing a detailed floor plan.
(1) The licensee may not enter into any management service contract, understanding or arrangement of any kind which would act to permit any person other than the licensee to operate a licensed gaming facility unless the management service contract, understanding or arrangement is in writing and has been approved by the commission, which approval shall be conditioned upon successful completion of a thorough background investigation at the expense of the licensee;
(2) The licensee may not in any manner permit a person other than the licensee to have a share, percentage or proportion of any profits generated from the operation of a gaming facility;
(3) The licensee may not in any manner permit a person other than the licensee to have a share, percentage or proportion of any profits generated from the operation of the gaming facility without the prior written approval of the director of the Lottery Commission; and,
(4) The licensee shall permit authorized games of chance to be played only during those hours established and approved by the commission.
(d) Management service contracts. --
(1)
Approval. -- A gaming facility may not enter into any management service contract that would permit any person other than the licensee to act as the commission's agent in operating West Virginia Lottery table game unless the management service contract: (A) Is with a person licensed under this article to provide management services; (B) is in writing; and (C) the contract has been approved by the commission.
(2)
Material change. -- A licensed gaming facility shall submit any material change in a management service contract previously approved by the commission to the commission for its approval or rejection before the material change may take effect.
(3)
Prohibition on assignment or transfer. -- A management services contract may not be assigned or transferred to a third party.
(4)
Other commission approvals and licenses. -- The duties and responsibility of a management services provider under a management services contract may not be assigned, delegated, subcontracted or transferred to a third party to perform without the prior approval of the commission. Third parties shall be licensed under this article before providing service. The commission shall license and require the display of West Virginia Lottery game logos on appropriate game surfaces and other gaming items and locations as the commission considers appropriate.
(d) (e) License application requirements. -- An applicant for a license to operate a gaming facility shall:
(1) Submit an application to the commission on a form prescribed by the commission, which form shall include:
(A) Information concerning the applicant and of any controlling person of the applicant sufficient to serve as a basis for a thorough background check;
(B) Subject to the provisions of subsection (e) (g) of this section with respect to publicly- traded corporations, the identity of all stockholders or other persons having a financial interest in either the applicant or any controlling person of the applicant and the identity of each director or executive officer of the applicant and of any controlling person of the applicant;
(C) The identity of the historic resort hotel at which the gaming facility is to be located, including identification of the county in which the historic resort hotel is located; and
(D) Any other information designated by the commission as appropriate to assist it in determining whether a license should be issued;
(2) Pay to the commission a nonrefundable application fee for deposit into the state gaming Community-Based Service Fund created in section twenty-seven, article twenty-two-c of this chapter in the amount of $25,000 $65,000.
(3) Pay to the commission an investigative fee for deposit in the state gaming fund in the amount of twenty thousand dollars.
(f) Privately held corporations. -- In the event that an applicant or any controlling person of an applicant is a privately held corporation, then the commission may not grant a license until the commission determines that each person who has control of the applicant also meets all of the qualifications the applicant must meet to hold the license for which application is made. The following persons are considered to have control of an applicant:
(1) Each person associated with a corporate applicant, including any corporate holding company, parent company or subsidiary company of the applicant, but not including a bank or other licensed lending institution which holds a mortgage or other lien acquired in the ordinary course of business, who has the ability to control the activities of the corporate applicant or elect a majority of the board of directors of that corporation;
(2) Each person associated with a noncorporate applicant who directly or indirectly holds any beneficial or proprietary interest in the applicant or who the commission determines to have the ability to control the applicant; and
(3) Key personnel of an applicant, including any executive, employee or agent, having the power to exercise significant influence over decisions concerning any part of the applicant's business operation.
(e) (g) Publicly-traded corporations. -- In the event that an applicant or any controlling person of an applicant is a publicly-traded corporation, then information otherwise required to be furnished by an applicant with respect to stockholders, directors and executive officers of the publicly-traded corporation shall be limited to information concerning only those executive officers of the publicly-traced traded corporation whose ongoing and regular responsibilities relate or are expected to relate directly to the operation or oversight of the gaming facility. 'Publicly-traded corporation' as used herein means any corporation or other legal entity, except a natural person, which has one or more classes of securities registered pursuant to section twelve of the Securities Exchange Act of 1934, as amended (15 U. S. C. §78), or is an issuer subject to section fifteen-d of that said act.
(f) (h) Gaming facility qualifications. -- An applicant for a license to operate a gaming facility shall demonstrate that the gaming facility will: (1) Be accessible to disabled individuals; (2) not be located at the main entrance to the historic resort hotel; (3) be licensed in accordance with all other applicable federal, state and local laws; and (4) meet any other qualifications specified by rules adopted by the commission.
(g)Investigative fee. -- The investigative fee paid by an applicant at the time of submitting an application shall be applied to the cost of any investigation relating to the applicant required under this article.
(1) If the cost of the investigation is greater than twenty thousand dollars, the investigative agency shall show cause for the additional cost. The applicant shall pay the additional costs to the extent approved by the commission, but not to exceed a total investigative fee of forty thousand dollars;
(2) If the cost of the investigation is less than the aggregate investigative fee paid by an applicant, the commission shall refund the difference.
(h) (i) Surety bond requirement. -- The licensed operator of a gaming facility shall execute a surety bond to be given to the state to guarantee the licensee faithfully makes the all payments keeps books and records, makes reports and conducts gaming in the licensee's gaming facility in accordance with the provisions of this article and rules promulgated by the commission. The surety bond shall be:
(1) In the an amount of five million dollars determined by the commission to be adequate to protect the state against nonpayment by the licensee of amounts due the state under this article;
(2) In a form approved by the commission; and
(3) With a surety approved by the commission who is licensed to write surety insurance in this state. The bond shall remain in effect during the term of the license and may not be canceled by a surety on less than thirty days' notice in writing to the commission. The total and aggregate liability of the surety on the bond is limited to the amount specified in the bond. The bond shall remain in effect during the term of the license, and may not be canceled by a surety on less than thirty days notice in writing to the commission. The total and aggregate liability of the surety on the bond is limited to the amount specified in the bond.
(i) (j) Authorization of license. -- A license to operate a gaming facility authorizes the licensee to engage in the business of operating a gaming facility while the license is effective. A license to operate a gaming facility is not transferable or assignable and cannot be sold or pledged as collateral.
(j) (k) Audits. -- A licensed gaming facility operator shall submit to the commission an annual audit, by a certified public accountant who is, or whose firm is, licensed in the State of West Virginia, or by a nationally recognized accounting firm, of the financial transactions and condition of the licensee's total operations. The audit shall be in accordance with generally accepted auditing principles.
(k) (l) Annual license maintenance renewal fee. -- For the second year that it is licensed, the licensed gaming facility operator shall pay to the commission an annual a license maintenance renewal fee of five thousand dollars $250,000. For the third year that it is licensed, the licensed gaming facility shall pay to the commission a license renewal fee of $500,000. For every year after the third year that it is licensed, the licensed gaming facility shall pay to the commission a license renewal fee that is calculated by determining the annual average gross receipts of the West Virginia pari-mutuel racetracks with table games licenses for the last full fiscal year of adjusted gross receipts available, and dividing that number into the licensed gaming facility operator's adjusted gross receipts for the same full fiscal year of adjusted gross receipts to obtain a percentage, and by multiplying the resulting percentage by $2,500,000: Provided, That the amount required to be paid by the licensed gaming facility shall be not less than $500,000, nor more than $2,500,000.
(l) (m) The licensed gaming facility operator shall provide to the commission, at no cost to the commission, suitable office space at the gaming facility to perform the duties required of it by the provisions of this article.
§29-25-11. License to supply gaming facility.
(a) Licenses. -- The commission may issue a license to each applicant for a license to supply a gaming facility with gaming devices, gaming supplies or services who meets the requirements of this section.
(b) License qualifications. -- To qualify for a license, an applicant shall meet the requirements of this section. Each applicant who is an individual who is a controlling person of an applicant that is not an individual shall be of good moral character and reputation and shall have the necessary experience and financial ability to successfully carry out the functions of a gaming facility supplier. The commission may adopt rules establishing additional requirements for a gaming facility supplier.
(c) Supplier specification. -- An applicant for a license to supply gaming devices, equipment and supplies to a gaming facility shall demonstrate that the gaming devices, equipment and supplies that the applicant plans to sell or lease to the licensed operator of the gaming facility, conform or will conform to standards established by rules of the commission and applicable state law.
(d) License application requirements. -- An applicant for a license shall:
(1) Submit an application to the commission on the form that the commission requires including adequate information to serve as a basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and
(2) (3) Pay to the commission a nonrefundable application fee for deposit into the state gaming fund in the amount of $5,000 $100 to be retained by the commission as reimbursement for the licensing process.
(3) Pay to the commission an investigative fee for deposit into the state gaming fund in the amount of ten thousand dollars, or a lesser amount as the commission upon application may conditionally approve in a particular case.
(e) Investigative fee. -- the investigative fee paid by an applicant for a license to supply a gaming facility shall be applied to the cost of any investigation of the applicant required under this article.
(1) If the costs of the investigation of an applicant are greater than ten thousand dollars, or the lesser investigative fee as may have been conditionally approved by the commission, the investigative agency must show cause for the additional cost. If the commission approves, the applicant shall pay the additional costs as required by the commission, but not to exceed a total investigative fee of fifty thousand dollars.
(2) If the costs of the investigation of an application are less than the aggregate investigative fee paid to the commission, the commission shall refund the difference.
(f) (e) Authorization of licensee. -- A license to supply a gaming facility authorizes the licensee to engage in the business of selling gaming devices and supplies to a gaming facility while the license is effective.
(g) (f) Inventory. -- A licensed gaming facility supplier shall submit to the commission a list of all equipment, gaming devices and supplies sold or delivered to a gaming facility in this state when required by the commission.
(h) (g) Annual license maintenance renewal fee.-- A licensed gaming facility supplier shall pay to the commission an annual license maintenance renewal fee of $5,000 $100.
§29-25-12. License to be employed by operator of gaming facility.
(a) Licenses. -- The commission shall issue a license to each applicant for a license to be employed in the operation of a gaming facility who meets the requirements of this section.
(b) License qualifications. -- To qualify for a license to be employed in a gaming facility, the applicant shall be an individual of good moral character and reputation and have been offered employment by the gaming facility contingent upon licensure pursuant to the provisions of this section. The commission, by rule, may specify additional requirements to be met by applicants based on the specific job classification in which the applicant is to be employed.
(c) License application requirements. -- An applicant for a license to be employed in the operation of a gaming facility shall:
(1) Submit an application to the commission on the form that the commission requires, including adequate information to serve as a basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and
(2) (3) Pay to the commission a nonrefundable investigative application fee for deposit into the state gaming fund in the amount of three hundred dollars $100 to be retained by the commission as reimbursement for the licensing process. This which fee may be paid on behalf of the applicant by the employer.
(3) Pay to the commission a nonrefundable investigative fee for deposit into the state gaming fund in an amount to be fixed by the commission by rule, which fee may be paid on behalf of the applicant by the employer.
(d) Authorization of licensee. -- A license to be employed by a gaming facility authorizes the licensee to be so employed in the capacity designated by the commission with respect to the license while the license is effective.
(e) Annual license maintenance renewal fee. -- Each licensed employee shall pay to the commission an annual license maintenance renewal fee set by the commission, which the maintenance renewal fee may vary based on the capacity designated with respect to the licensee but in no event to exceed three hundred dollars $100. The fee may be paid on behalf of the licensed employee by the employer.
§29-25-13. False statements on applications; other license requirements and prohibitions.

(a) Any person who knowingly makes a false statement on an application is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred nor more than $500 $1,000 or confined in the county or regional jail and committed to a state correctional facility for not less more than six months, or both fined and confined except that in the case of a person other than a natural person, the amount of the fine imposed may not be more than $25,000.
(b) The commission may not grant a license pursuant to the provisions of this article if there is substantial evidence that the applicant:
(1) Has knowingly made a false statement of a material fact to the commission;
(2) Has been suspended from operating a gambling game, gaming device or gambling operation in another jurisdiction by a board or other governmental authority of that jurisdiction having responsibility for the regulation of gambling or gaming activities;
(3) Has been convicted of a felony, an offense of moral turpitude, a gambling offense, a theft or fraud offense or has otherwise demonstrated, either by a police record or other satisfactory evidence, a lack of respect for law and order;
(4) Has failed to meet any monetary obligation in connection with a gaming facility or any other form of gaming; or
(5) In the case of an applicant for a license to operate a gaming facility or to supply a gaming facility:
(A) Has not demonstrated financial responsibility sufficient to meet adequately the requirements of the enterprise proposed;
(B) Is not the true owner of the enterprise or is not the sole owner and has not disclosed the existence or identity of other persons who have an ownership interest in such enterprise; or
(C) Is a corporation and five percent or more of the stock of the corporation is subject to a contract or option to purchase at any time during the period for which the license is issued unless the contract or option was disclosed to and approved by the commission.
(c) In addition to any other grounds specified in this article, and subject to the hearing provisions of section seventeen of this article, in the case of a license to operate a gaming facility the commission may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license if the applicant or licensee or any controlling person of the applicant or licensee knowingly employs an individual in a senior management position who has been convicted of a felony under the laws of this state, another state, a territory of the United States, or the United States or employs any individual in a senior management position who has had a license relating to the operation of a gaming facility revoked by this state or any other state.
(d) Character references may be required of persons licensed, but the character reference may not be obtained from persons in the same or similar occupations or professions in other states.
§29-25-16. License denial, revocation and reprimand.
(a) The commission may deny a license to any applicant, reprimand any licensee, or suspend or revoke a license if the applicant or licensee, or any controlling person of the applicant or license:
(1) Fraudulently or deceptively obtains or attempts to obtain a license for the applicant or licensee or for another;
(2) Fraudulently or deceptively uses a license; or
(3) Is convicted of a felony under the laws of this state, another state, a territory of the United States or the United States;
(4) Is convicted of a misdemeanor under the laws of this state, another state, the United States or a territory of the United States for gambling or a gambling related activity; or
(5) Is not complying with this act, the rules or the minimum internal control standards promulgated by the commission or the gaming facility.
(b) Instead of or in addition to reprimanding a licensee or suspending or revoking a license, the commission may impose a civil penalty under section twenty-seven of this article.
§29-25-17. Hearing procedures.
(a) Right to a hearing. -- Except as otherwise provided by law, before the commission takes any action involving a licensee under the provisions of this article, it shall give the persons against whom the action is contemplated an opportunity for a hearing before the commission.
(b) Notice of hearing and right to counsel. -- The commission shall give notice and hold the hearing in accordance with state law, article five, chapter twenty-nine-a of this code. The notice shall be given to the person by certified mail to the last known address of the person at least thirty days before the hearing. The person may be represented at the hearing by counsel.
(c) Failure to comply with subpoena. -- If a person fails to comply with a subpoena issued under this section, on petition of the commission, the circuit court may compel obedience to the subpoena. If after due notice the person against whom the action is contemplated fails or refuses to appear, the commission may hear and determine the matter.
(d) Appeal. -- Any person aggrieved by a final decision of the commission in a contested case may file a petition for appeal in the circuit court of Kanawha County within thirty days after the person received notice of the final order or decision, as provided in section four, article five, as defined in chapter twenty-nine-a of this code. may appeal as provided for in that chapter
§29-25-18. Inspection and seizure.
As a condition of licensure, to inspect or investigate for criminal violations of this and notwithstanding the separate licensure of the facility as a private club pursuant to article or violations of the rule promulgated by the commission, the commission seven, chapter sixty of this code, any licensee shall consent to any search without a warrant by agents of the commission or of the State Police designated by the commission of the licensee's person, personal property and effects, and premises which are located in the gaming facility or adjacent facilities under the control of the licensee, to inspect or investigate for criminal violations of this article or violations of rules adopted by the commission. and the West Virginia State Police may each, without notice and without warrant:
(1) Inspect and examine all premises of the gaming facility with West Virginia Lottery table games, gaming devices, the premises where gaming equipment is manufactured, sold, distributed or serviced or any premises in which any records of the activities are prepared or maintained;
(2) Inspect any gaming equipment in, about, upon or around the premises of a gaming facility with West Virginia Lottery table games;
(3) Seize summarily and remove from the premises and impound any gaming equipment for the purposes of examination, inspection or testing;
(4) Inspect, examine and audit all books, records and documents pertaining to a gaming facility licensee's operation;
(5) Summarily seize, impound or assume physical control of any book, record, ledger, West Virginia Lottery table game, gaming equipment or device, cash box and its contents, counting room or its equipment or West Virginia Lottery table game operations; and
(6) Inspect the person, and the person's personal effects present on the grounds of a licensed gaming facility with West Virginia Lottery table games, of any holder of a license issued pursuant to this article while that person is present on the grounds of a licensed gaming facility having West Virginia Lottery table games.
§29-25-19. Consent to presence of law-enforcement officers; wagering limits; operations and services; posting of betting limits.

(a) Consent to presence of law-enforcement officers. -- Any individual entering a the gaming facility shall be advised by the posting of a notice or other suitable means of the possible presence of state, county or municipal law-enforcement officers and by entering the gaming facility impliedly consents to the presence of the law-enforcement officers.
(b) Setting of wagering limits Commission discretion in gaming operations. -- The operator of a gaming facility may set minimum wagers for any authorized game of chance, except for video lottery. Video lottery terminals operated at the gaming facility may not allow more than two five dollars to be wagered on a single game.
(1) Subject to the approval of the commission, the gaming facility licensee shall, with respect West Virginia Lottery table games, establish the following:
(A) Maximum and minimum wagers;
(B) Advertising and promotional activities;
(C) Hours of operation; and
(D) The days during which games may be played; and
(2) The commission may consider multiple factors, including, but not limited to, industry standards, outside competition and any other factors as determined by the commission to be relevant in its decision to approve the gaming facility's determination of those items listed in subdivision (1)of this subsection.
(c)
Setting of operations. -- Notwithstanding anything to the contrary contained elsewhere in this chapter, the commission may establish the following parameters for commission regulated lottery games of any kind which is played at a licensed gaming facility:
(1) Minimum and maximum payout percentages;
(2) Any probability limits of obtaining the maximum payout for a particular play; and
(3) Limitations on the types and amounts of financial transactions, including extension of credit to a patron, which a gaming facility can enter into with its patrons.
(d)
Posting of betting limits. -- A gaming facility shall conspicuously post a sign at each West Virginia Lottery table game indicating the permissible minimum and maximum wagers pertaining at that table. A gaming facility licensee may not require any wager to be greater than the stated minimum or less than the stated maximum. However, any wager actually made by a patron and not rejected by a gaming facility licensee prior to the commencement of play shall be treated as a valid wager.
§29-25-20. Accounting and reporting of gross terminal income; distribution.

The licensed gaming facility shall submit fifty-three thirty-six percent of the gross terminal income from video lottery games at the licensed gaming facility to the commission through electronic funds transfer to be deposited into the Historic Resort Hotel Fund created in section twenty-two of this article. The licensed gaming facility shall also submit seventeen percent of the gross terminal income from video lottery games at the licensed gaming facility to the commission through electronic funds transfer to be deposited into the Human Resource Benefit Fund created in section twenty-two-a of this article. Each of these submissions shall be made to the commission weekly. The gaming licensee shall furnish to the commission all information and bank authorizations required to facilitate the timely transfer of moneys to the commission. The gaming licensee shall provide the commission thirty days' advance notice of any proposed account changes in order to assure the uninterrupted electronic transfer of funds.
§29-25-21. Taxes on games other than video lottery games.
(a) Imposition and rate of limited gaming profits tax. -- There is hereby levied and shall be collected a privilege tax against a gaming licensee license in an amount to be determined by the application of the rate against adjusted gross receipts of the licensed gaming facility. The rate of tax is thirty-seven thirty-five percent. Of that thirty-five percent, thirty percent shall be directly deposited by the commission into the Historic Resort Hotel Fund created in section twenty-two of this article and the remaining five percent shall be directly deposited by the commission into the Human Resource Benefit Fund created in section twenty-two-a of this article. For purposes of calculating the amount of tax due under this section, the licensee shall use the accrual method of accounting. This tax is in addition to all other taxes and fees imposed: Provided, That the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code may not apply to the proceeds from any wagering with respect to an authorized game of chance a West Virginia Lottery table game pursuant to this article.
(b) Computation and payment of tax. --The taxes levied under the provisions of this section are due and payable to the commission in monthly weekly installments on or before the twenty-first day Wednesday of the month each week. following the month in which the tax is accrued The taxpayer shall, on or before the twenty-first day Wednesday of each month week, make out and mail submit by electronic communication to the commission a return for the preceding month week, in the form prescribed by the commission, showing: (1) The total gross receipts from the gaming facility for that month and the adjusted gross receipts; (2) the amount of tax for which the taxpayer is liable; and (3) any further information necessary in the computation and collection of the tax which the Tax Commissioner or the commission may require. Payment of the amount of tax due shall accompany the return. All payments made pursuant to this section shall be deposited in the state gaming fund accordance with sections twenty-two and twenty-two-a of this article. Payments due to the commission under this section and payments due to the commission under section twenty of this article shall be sent simultaneously.
(c) Negative adjusted gross receipts. -- When adjusted gross receipts for a week is a negative number because the winnings paid to patrons wagering on the gaming facility's West Virginia Lottery table games exceeds the gaming facility's gross receipts from the purchase of table game tokens, chips or electronic media by patrons, the commission shall allow the licensee to, pursuant to rules of the commission, carry over the negative amount of adjusted gross receipts to returns filed for subsequent weeks. The negative amount of adjusted gross receipts may not be carried back to an earlier week and the commission is not required to refund any tax received by the commission, except when the licensee surrenders its license to act as agent of the commission in operating West Virginia Lottery table game under this article and the licensee's last return filed under this section shows negative adjusted gross receipts. In that case, the commission shall multiply the amount of negative adjusted gross receipts by the applicable rate of tax and pay the amount to the licensee, in accordance with rules of the commission.
(c) (d) Prohibition on credits. -- Notwithstanding any other provision of this code to the contrary, no credits may be allowed against any tax imposed on any taxpayer by this code for an investment in gaming devices and supplies, for an investment in real property which would be directly utilized for the operation of a gaming facility or for any jobs created at a gaming facility. Notwithstanding any other provision of this code to the contrary, the tax imposed by this section may not be added to federal taxable income in determining West Virginia taxable income of a taxpayer for purposes of article twenty-four, chapter eleven of this code.
(e) Tax imposed by this section is in lieu of other taxes. --
(1) With the exception of the ad valorem property tax collected under chapter eleven-a of this code, the tax imposed by this section is in lieu of all other state taxes and fees imposed on the operation of, or the proceeds from operation of West Virginia Lottery table games, except as otherwise provided in this section. The consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code shall not apply to the licensee's gross receipts from any wagering on a West Virginia Lottery table game pursuant to this article or to the licensee's purchasing of gaming equipment, supplies or services directly used in operation of a West Virginia Lottery table games authorized by this article. These purchases are also exempt from the use tax imposed by article fifteen-a, chapter eleven of this code.
(2) With the exception of the ad valorem property tax collected under chapter eleven-a of this code, the tax imposed by this section is in lieu of all local taxes and fees levied on or imposed with respect to the privilege of offering a West Virginia Lottery table game to the public, including, but not limited to, the municipal business and occupation taxes and amusement taxes authorized by article thirteen, chapter eight of this code and the municipal sales and service tax and use tax authorized by article thirteen-c of said chapter.
§29-25-22. Historic Resort Hotel Fund; allocation of adjusted gross receipts; disposition of license fees.

(a) There is hereby created a special fund in the State Treasury which shall be designated and known as the state gaming Historic Resort Hotel Fund. All revenues received from licenses and applicants under this article, all Thirty-six percent of the gross terminal income received by the commission under section twenty of this article and all tax revenues from the tax imposed thirty percent of the adjusted gross receipts received by the commission under section twenty-one of this article shall be deposited with the State Treasurer and placed in the state gaming Historic Resort Hotel Fund. The fund shall be an interest bearing account with interest to be credited to and deposited in the state gaming Historic Resort Hotel Fund.
(b) All expenses of the commission shall be paid from the state gaming Historic Resort Hotel Fund, including reimbursement of the State Police for activities performed at the request of the commission in connection with background investigations or enforcement activities pursuant to this article. At no time may the commission's expenses under this article exceed fifteen percent of the total of the annual revenue received from the licensee under this article, including all license fees, taxes or other amounts required to be deposited in the state gaming Historic Resort Hotel Fund.
(c) The balance of the state gaming Historic Resort Hotel Fund shall become net income and shall be divided as follows:
(1) Eighty-nine Sixty-four percent of the state gaming Historic Resort Hotel Fund net income shall be paid into the General Revenue Fund to be appropriated by the Legislature;
(2) Nineteen percent of the Historic Resort Hotel Fund net income shall be paid into the State Debt Reduction Fund established in section twenty-seven, article twenty-two-c of this chapter to be appropriated by the Legislature;
(2) (3) The Tourism Promotion Fund established in section nine twelve, article one two, chapter five-b of this code shall receive three percent of the state gaming Historic Resort Hotel Fund net income;
(3) (4) The county where the gaming facility is located shall receive four percent of the state gaming Historic Resort Hotel Fund net income;
(4) (5) The municipality where the gaming facility is located or the municipality closest to the gaming facility by paved road access as of the effective date of the reenactment of this section by the 2009 regular session of the Legislature shall receive two and one-half percent of the state gaming Historic Resort Hotel Fund net income; and
(5) (6) The municipalities within the county where the gaming facility is located, except for the municipality receiving funds under subdivision (4) (5) of this subsection, shall receive equal shares of two and one-half percent of the state gaming Historic Resort Hotel Fund net income;
(7) Each county commission in the state that is not eligible to receive a distribution under subdivision (4) of this subsection shall receive equal shares of two and one-half percent of the Historic Resort Hotel Fund net income: Provided, That funds transferred to the county commission under this subdivision shall be used only to pay regional jail expenses and the costs of infrastructure improvements and other capital improvements; and
(8) The governing body of each municipality in the state that is not eligible to receive a distribution under subdivisions (5) and (6) of this subsection shall receive equal shares of two and one-half percent of the Historic Resort Hotel Fund net income:
Provided, That funds transferred to municipalities under this subdivision shall be used only to pay for debt reduction in municipal police and fire pension funds and the costs of infrastructure improvements and other capital improvements.
(d) Notwithstanding any provision of this article to the contrary, all limited gaming facility license fees and license renewal fees received by the commission pursuant to section nine of this article shall be deposited into the Community-Based Service Fund created in section twenty-seven, article twenty-two-c of this chapter.
(e) With the exception of the license fees and license renewal fees received by the commission pursuant to section nine of this article, all revenues received from licensees and license applicants under this article shall be retained by the commission as reimbursement for the licensing process.
§29-25-22a. Human Resource Benefit Fund.
(a) There is hereby created a special fund in the State Treasury which shall be designated and known as the Human Resource Benefit Fund. Seventeen percent of the gross terminal income received by the commission under section twenty of this article and five percent of the adjusted gross receipts received by the commission under section twenty-one of this article shall be deposited with the State Treasurer and placed in the Human Resource Benefit Fund. The fund shall be an interest-bearing account with interest to be credited to and deposited in the Human Resource Benefit Fund.
(b) For each dollar expended by the historic resort hotel
for fringe benefits for the employees of the historic resort hotel, the commission shall transfer to the historic resort hotel one dollar of recoupment from the Human Resource Benefit Fund: Provided, That the historic resort hotel is not entitled to recoupment for money spent on fringe benefits beyond the amount of money available to be expended from the Human Resource Benefit Fund at the time the request for recoupment is made by the historic resort hotel.
(c) The commission shall have full rights and powers to audit the spending of money from the Human Resource Benefit Fund to ensure that the money is being used in the manner prescribed under this section. The commission shall have the power and authority to audit as frequently as it sees fit, so long as it conducts at least two audits each fiscal year.
(d) There is hereby created the Human Resource Benefit Advisory Board, which shall meet every six months to verify the commission's audit.
(1) The board shall consist of five members, all residents and citizens of the State of West Virginia:
(A) One member shall be a representative of the collective bargaining unit that represents a majority of the employees of the historic resort hotel;
(B) One member shall be a representative of the historic resort hotel; and
(C) Three members shall be employees of the commission.
(2) The members shall be appointed or elected by the entity or persons that they represent. Establishment of terms for members shall be determined by the entity or persons that they represent, if the entity or persons choose to set terms.
(3) A majority of members constitutes a quorum for the transaction of business.
(4) The board shall meet every six months at the headquarters of the commission. Upon its own motion or upon the request of the commission, it may hold meetings in addition to the required meetings. The commission shall pay the travel expenses of members of the board who are not employed by the commission.
(5) All meetings of the board shall be open to the public.
(6) The board shall operate in an advisory capacity. Its functions shall include, but are not limited to, reviewing and verifying financial audits of the Human Resource Benefit Fund conducted by the commission and its employees and reviewing source documents associated with disbursements from the Human Resource Benefit Fund.
(7) Within thirty days of any board meeting, the board shall report to the commission its findings and any recommendations it may have. The report to the commission shall be made at a commission meeting that is open to the public.
(e) In the event that an audit conducted by the commission, or suggested changes to the audit submitted by the board and adopted by the commission, reveals that the historic resort hotel has acted improperly or negligently in its claim for money from the Human Resource Benefit Fund, the commission may impose a civil penalty against the historic resort hotel of up to one hundred percent of the improperly claimed amount. Any civil penalty imposed on the historic resort hotel by the commission under this subsection shall be deposited by the commission into the Historic Resort Hotel Fund.
§29-25-23. Prohibition on unauthorized wagering; complimentary service, gift, cash or other item.

(a) A gaming licensee may not permit any form of wagering except as authorized under this article or article twenty-two, twenty-two-a or twenty-two-c of this chapter.
(b) A gaming licensee may receive wagers only from an individual present in a licensed gaming facility.
(c) All gaming facility operations shall utilize a cashless wagering system whereby all players' money is converted to tokens, paper vouchers, electronic cards or chips at the request of the wagerer which can only be used for wagering in a licensed gaming facility and wagering may not be conducted with money or other negotiable currency:
(1) Wagering on West Virginia Lottery table games may not be conducted with money or other negotiable currency or with tokens, electronic cards or other electronic media or chips not issued by the gaming facility where the West Virginia Lottery table game will be played.
(2) At the request of the player, the licensee shall convert a player's tokens, electronic cards or other electronic media or chips back to money.
(3) The licensee may not charge a fee for converting a player's money to an acceptable media for playing a West Virginia Lottery table game or charge a fee for converting the acceptable media for wagering a West Virginia Lottery table game back to money.

(d) The gaming licensee is prohibited from offering any complimentary service, gift, cash or other item of value to any person unless: property or service, other than incidental food and beverages, to any person as an inducement to participate in a game of chance. This prohibition includes the offering of complimentary or discounted rooms in exchange for a guest participating in any game of chance at the gaming facility.
(1) The complimentary consists of room, food, beverage or entertainment expenses provided directly to the patron and his or her guests by the gaming facility licensee or indirectly to the patron and his or her guests on behalf of the licensee by a third party;
(2) The complimentary consists of documented transportation expenses provided directly to the patron and his or her guests on behalf of a gaming facility licensee by a third party:
Provided, That the licensee complies with the rules promulgated by the commission to ensure that a patron's and his or her guests' documented transportation expenses are paid for or reimbursed only once; or
(3) The complimentary consists of coins, tokens, cash or other complimentary items or services provided through any complimentary distribution program, the terms of which shall be filed with the commission upon implementation of the program or maintained pursuant to commission rule. Any change in the terms of a complimentary program shall be filed with the commission upon implementation of the change.
(e) Notwithstanding any provision of subsection (d) of this section to the contrary, a gaming facility licensee may offer and provide complimentary cash or noncash gifts that are not otherwise included in that subsection to any person:
Provided, That any complimentary cash or noncash gifts in excess of an amount per trip to be set by interpretive rule of the commission are supported by documentation regarding the reason the gift was provided to the patron and his or her guests, including, where applicable, a patron's player rating. The documentation shall be maintained by a gaming facility licensee in accordance with commission rules. For purposes of this subsection, all gifts presented to a patron and a patron's guests directly by the gaming facility licensee or indirectly on behalf of the licensee by a third party within any five-day period shall be considered to have been made during a single trip.
§29-25-24. Individual gaming restrictions.
(a) An individual may not enter a designated gaming facility area or remain in a designated gaming facility to participate in authorized games of chance area only if the individual:
(1) Is not a either;
(A) A registered overnight guest at the historic resort hotel on whose premises the gaming facility is located;
(B) A person who is a not a registered overnight guest, but is a registered participant at a convention or event being held at the historic resort hotel:
Provided, That this paragraph does not apply on any calendar day when less than four hundred guest rooms are occupied at the historic resort hotel; or
(C) A member of a home-owner or facility association that entitles members to substantial privileges at the historic resort hotel on whose premises the gaming facility is located or an overnight guest of such a member:
Provided, That the association was in existence as of April 1, 2009;
(2) Is under the age of at least twenty-one years of age;
(3) Is not visibly intoxicated;
(4) Is Has not been determined by the gaming facility operator or the commission to be unruly, disruptive or otherwise interfering with operation of the gaming facility; or to be likely to commit, or to attempt to commit, a violation of this article; or
(5) Has not been barred by the commission from entering a gaming facility.
(b) Notwithstanding any provisions of this code to the contrary, no employee of the commission or employee of the historic resort hotel or any member of his or her immediate household may wager at the gaming facility.
§29-25-25. Offenses and penalties.
(a) A gaming licensee is guilty of unlawful operation of a game of chance West Virginia Lottery table game when:
(1) The licensee operates a game of chance West Virginia Lottery table game or places a video lottery game or video lottery terminal in any location other than a gaming facility that is not a designated gaming area approved by the commission;
(2) The licensee acts or employs another person to act as if he or she is not an agent or employee of the licensee in order a shill or decoy to encourage participation in a game of chance West Virginia Lottery table game in a gaming facility;
(3) The licensee knowingly permits an individual under the age of twenty-one years of age to enter or remain in a gaming facility for the purpose of making a wager designated gaming area or to play video lottery terminals or West Virginia Lottery table game at a licensed gaming facility; or
(4) The licensee exchanges tokens, chips or other forms of credit to be used for wagering in a gaming facility for anything of value except in exchange for money or credits to a player's account;
(5) The licensee operates a West Virginia Lottery table game or places a video lottery game or video lottery terminal into play without authority of the commission to do so;
(6) The licensee knowingly conducts, carries on, operates or exposes for play or allows to be conducted, carried on, operated or exposed for play any West Virginia Lottery table game, video lottery game, video lottery terminal or other device, equipment or material that has in any manner been tampered with or placed in a condition or operated in a manner, the result of which is designed to deceive the public; or
(7) The licensee employs an individual in a position or to perform duties, for which a license is required by this article or rules of the commission and the employee does not have a license issued under the provisions of this article or the licensee continues to employ the individual in a position or to perform duties, for which a license is required by this article or rules of the commission, after the employee's license expired, was revoked by the commission or not renewed by the commission.
(b) A person is guilty of a misdemeanor when:
(1) The person operates, carries on or exposes for play an West Virginia Lottery table game prior to obtaining a license or after the person's license has expired and prior to actual renewal of the license or before the West Virginia Lottery table game and the licensee's rules for play for the game are approved or modified and approved by the commission;
(2) The person works or is employed in a position requiring a license under the provisions of this article without having the license required by this article;
(3) A licensee who possesses any video lottery terminal or other device, equipment or material which the person knows has been manufactured, distributed, sold, tampered with or serviced in violation of the provisions of this article; or
(4) A licensee who knowingly conducts, carries on, operates or exposes for play, or allows to be conducted, carried on, operated or exposed for play any video lottery game, video lottery terminal, or other device, equipment or material which has in any manner been tampered with, or placed in a condition, or operated in a manner, the result of which tends to deceive the public or tends to alter the normal random selection of characteristics or the normal random selection of characteristics or the normal chance of the video lottery game.
(b) (c) A person is guilty of felonious wager a felony when:
(1) The person offers, promises or gives anything of value or benefit to a person who is connected has an ownership or financial interest in, is employed by or has a service contract with a gaming facility or to that person's spouse or any dependent child or dependent parent, pursuant to an agreement or arrangement, in fact or implied from the circumstances, or with intent that the promise or thing of value or benefit will influence the actions of the person to whom the offer, promise, or gift was made in order to affect or attempt to affect the outcome of an authorized game of chance a West Virginia Lottery table game or to influence official action of the commission. For the purposes of this subdivision and subdivision (2) of this subsection, the term 'person who is connected with a gaming facility' includes, but is not limited to, a person licensed under this article as well as an officer or employee of a licensee;
(2) The person solicits or knowingly accepts or receives a promise of anything of value or benefit while the person is connected with a gaming facility, pursuant to an understanding or arrangement or with the intent that the promise or thing of value or benefit will influence the actions of the person to affect or attempt to affect the outcome of an authorized game of chance a West Virginia Lottery table game, or to influence official action of the commission;
(3) The person uses or possesses on property owned by the licensed gaming facility or on property contiguous to the gaming facility, with the intent to use, an electronic, electrical or mechanical a device that is designed, constructed or programmed to assist the user or another person:
(A) In projecting the outcome of an authorized game of chance a West Virginia Lottery table game;
(B) In keeping track of cards played dealt or in play;
(C) In analyzing the probability of the occurrence of an event relating to an authorized game of chance a West Virginia Lottery table game; or
(D) In analyzing the strategy for playing or betting to be used in an authorized game of chance a West Virginia Lottery table game, except as permitted in writing by the commission; or
(E) In obtaining an advantage at playing any West Virginia Lottery table game at a licensed gaming facility authorized under this article to operate a West Virginia Lottery table game;
(4) The person cheats at an authorized game of chance a West Virginia Lottery table game in a gaming facility;
(5) The person manufacturers, sells, or distributed any cards, chips, dice, game or device which is intended to be used to violate any provision of this article or the table gaming laws of any other state;
(6) The person instructs a person in cheating or in the use of a device for that purpose with the knowledge or intent that the information or use conveyed may be employed to violate any provision of the article;
(7) The person places a bet after acquiring knowledge, not available to all players, of the outcome of the game of chance West Virginia Lottery table game which is the subject of the bet or aids a person in acquiring the knowledge for the purpose of placing a bet contingent on that outcome;
(8) The person claims, collects, takes or attempts to claim, collect or take money or anything of value into or from a gaming facility, with intent to defraud, without having made a wager contingent on winning a game of chance West Virginia Lottery table game, or claims, collects or takes an amount of money or thing of value or greater value than the amount won;
(9) The person knowingly uses chips, electronic media or tokens that are counterfeit chips or tokens to place a wager in a gaming facility;
(10) The person knowingly uses any medium other than chips, tokens or other methods of credit approved by the commission to place a wager in a gaming facility;
(11) The person, not a gaming licensee or employee or agent of a gaming licensee gaming facility licensed under this article acting in furtherance of the gaming licensee's interests, has in his or her possession on grounds owned by the gaming facility licensed under this article or on grounds contiguous to the gaming facility, any device, by whatever name called, intended to be used to violate a provision of this article or a rule of the commission implementing or explaining a provision of this article; or
(12) The person, not a gaming licensee or agent of a gaming licensee acting in furtherance of the gaming licensee's interests, has in his or her possession any key or device designed for the purpose of opening, entering or affecting the operation of an authorized game of chance a West Virginia Lottery table game, drop box or an electronic or mechanical device connected with or used in connection with an authorized game of chance a West Virginia Lottery table game in a gaming facility or for removing coins, tokens, chips or other contents therefrom.
(c) (d) Any person who violates the provisions of subsection (a) or (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in a county or regional jail for not more than and confined in jail for not more than six months, except that in the case of a person other than a natural person, the amount of the fine imposed may not be more than $25,000.
(d) (e) Any person who violates the provisions of subsection (b) (c) of this section is guilty or a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $10,000 and committed to the department of corrections of a definite a state correctional facility for a term of imprisonment of not less than one year nor more than five years.
(f) With regard to subdivision (3), subsection (c) of this section, the gaming facility licensee shall post notice of this prohibition and the penalties of this section in a manner determined by the commission.
§29-25-26. Forfeiture of property.
(a) Anything of value, including all traceable proceeds including, but not limited to, real and personal property, moneys, negotiable instruments, securities and conveyances, is subject to forfeiture to the State of West Virginia if the item was used for any of the following:
(1) As a bribe intended to affect the outcome of an authorized game of chance a West Virginia Lottery table game in a gaming facility; or
(2) In exchange for or to facilitate a violation of this article.
(b) The Legislature finds and declares that the seizure and sale of items under the provisions of this section is not contemplated to be a forfeiture as that term is used in Section five, Article XII of the Constitution of West Virginia and, to the extent that a seizure and sale may be found to be a forfeiture, the Legislature hereby finds and declares that the proceeds from a seizure and sale under this article are not part of net proceeds as it is contemplated by Section five, Article XII of the Constitution of West Virginia.
(b) (c) Subsection (a) of this section does not apply if the act or omission which would give rise to the forfeiture was committed or omitted without knowledge or consent of the owner of the property to be forfeited.
§29-25-28. Specific provision for video lottery games.
The commission is authorized to implement and operate video lottery games at one gaming facility in this state in accordance with the provisions of this article and the applicable provisions of article twenty-two-a of this chapter. The provisions of said article apply to this article, except in the event of conflict or inconsistency between any of the provisions of this article and the provisions of article twenty-two-a of this chapter. In that event, the provisions of this article shall supersede any conflicting or inconsistent provisions contained in article twenty-two-a of this chapter.
§29-25-29. Video lottery terminal requirements; application for approval of video lottery terminals; testing of video lottery terminals; report of test results; modifications to previously approved models; conformity to prototype; seizure and destruction of terminals.

(a) Video lottery terminals registered with and approved by the commission for use at the gaming facility may offer video lottery games regulated, controlled, owned and operated by the commission in accordance with the provisions of this section and utilizing specific game rules.
(b) A manufacturer may not sell or lease a video lottery terminal for placement at the gaming facility unless the terminal has been approved by the commission. Only manufacturers with licenses may apply for approval of a video lottery terminal or associated equipment. The manufacturer shall submit two copies of terminal illustrations, schematics, block diagrams, circuit analysis, technical and operation manuals and any other information requested by the commission for the purpose of analyzing and testing the video lottery terminal or associated equipment.
(c) The commission may require that two working models of a video lottery terminal be transported to the location designated by the commission for testing, examination and analysis.
(1) The manufacturer shall pay all costs of testing, examination, analysis and transportation of such video lottery terminal models. The testing, examination and analysis of any video lottery terminal model may require dismantling of the terminal and some tests may result in damage or destruction to one or more electronic components of such terminal model. The commission may require that the manufacturer provide specialized equipment or pay for the services of an independent technical expert to test the terminal.
(2) The manufacturer shall pay the cost of transportation of two video lottery terminals to lottery headquarters. The commission shall conduct an acceptance test to determine terminal functions and central system compatibility. If the video lottery terminal fails the acceptance test conducted by the commission, the manufacturer shall make all modifications required by the commission.
(d) After each test has been completed, the commission shall provide the terminal manufacturer with a report containing findings, conclusions and pass/fail results. The report may contain recommendations for video lottery terminal modification to bring the terminal into compliance with the provisions of this article. Prior to approving a particular terminal model, the commission may require a trial period not to exceed sixty days for a licensed gaming facility to test the terminal. During the trial period, the manufacturer may not make any modifications to the terminal model unless modifications are approved by the commission.
(e) The video lottery terminal manufacturer and licensed gaming facility are jointly responsible for the assembly and installation of all video lottery terminals and associated equipment. The manufacturer and licensed gaming facility shall not change the assembly or operational functions of a terminal licensed for placement in West Virginia unless a request for modification of an existing video terminal prototype is approved by the commission. The request shall contain a detailed description of the type of change, the reasons for the change and technical documentation of the change.
(f) Each video lottery terminal approved for placement at the gaming facility shall conform to the exact specifications of the video lottery terminal prototype tested and approved by the commission. If any video lottery terminal or any video lottery terminal modification, which has not been approved by the commission, is supplied by a manufacturer and operated by the gaming facility, the commission shall seize and destroy all of that licensed gaming facility's and manufacturer's noncomplying video lottery terminals and shall suspend the license and permit of the licensed gaming facility and manufacturer.
§29-25-30. Video lottery terminal hardware and software requirements; hardware specifications; software requirements for randomness testing; software requirements for percentage payout; software requirements for continuation of video lottery game after malfunction; software requirements for play transaction records.

(a) The commission may approve video lottery terminals and in doing so shall take into account advancements in computer technology, competition from nearby states and the preservation of jobs at the historic resort hotel. In approving video lottery terminals licensed for placement in this state the commission shall insure that the terminals meet the following hardware specifications:
(1) Electrical and mechanical parts and design principles may not subject a player to physical hazards or injury.
(2) A surge protector shall be installed on the electrical power supply line to each video lottery terminal. A battery or equivalent power back-up for the electronic meters shall be capable of maintaining accuracy of all accounting records and terminal status reports for a period of one hundred eighty days after power is disconnected from the terminal. The power back-up device shall be located within the locked logic board compartment of the video lottery terminal.
(3) An on/off switch which controls the electrical current used in the operation of the terminal shall be located in an accessible place within the interior of the video lottery terminal.
(4) The operation of each video lottery terminal may not be adversely affected by any static discharge or other electromagnetic interference.
(5) A bill or voucher acceptor or other means accurately and efficiently to establish credits shall be installed on each video lottery terminal. All acceptors shall be approved by the commission prior to use on any video lottery terminal in this state.
(6) Access to the interior of video lottery terminal shall be controlled through a series of locks and seals.
(7) The main logic boards and all erasable programmable read-only memory chips ('EPROMS') are considered to be owned by the commission and shall be located in a separate locked and sealed area within the video lottery terminal.
(8) The cash compartment shall be located in a separate locked area within or attached to the video lottery terminal.
(9) No hardware switches, jumpers, wire posts or any other means of manipulation may be installed which alter the pay tables or payout percentages in the operation of a game. Hardware switches on a video lottery terminal to control the terminal's graphic routines, speed of play, sound and other purely cosmetic features may be approved by the commission.
(10) Each video lottery terminal shall contain a single printing mechanism capable of printing an original ticket and capturing and retaining an electronic copy of the ticket data as approved by the commission:
Provided, That the printing mechanism is optional on any video lottery terminal which is designed and equipped exclusively for coin or token payouts. The following information shall be recorded on the ticket when credits accrued on a video lottery terminal are redeemed for cash:
(i) The number of credits accrued;
(ii) Value of the credits in dollars and cents displayed in both numeric and written form;
(iii) Time of day and date;
(iv) Validation number; and
(v) Any other information required by the commission.
(11) A permanently installed and affixed identification plate shall appear on the exterior of each video lottery terminal and the following information shall be on the plate:
(i) Manufacturer of the video lottery terminal;
(ii) Serial number of the terminal; and
(iii) Model number of the terminal.
(12) The rules of play for each game shall be displayed on the video lottery terminal face or screen. The commission may reject any rules of play which are incomplete, confusing, misleading or inconsistent with game rules approved by the commission. For each video lottery game, there shall be a display detailing the credits awarded for the occurrence of each possible winning combination of numbers or symbols. All information required by this subdivision shall be displayed under glass or another transparent substance. No stickers or other removable devices may be placed on the video lottery terminal screen or face without the prior approval of the commission.
(13) Communication equipment and devices shall be installed to enable each video lottery terminal to communicate with the commission's central computer system by use of a communications protocol provided by the commission to each permitted manufacturer, which protocol shall include information retrieval and terminal activation and disable programs, and the commission may require each licensed racetrack to pay the cost of a central site computer as a part of the licensing requirement.
(14) All video lottery terminals shall have a security system which temporarily disables the gaming function of the terminal while opened.
(b) Each video lottery terminal shall have a random number generator to determine randomly the occurrence of each specific symbol or number used in video lottery games. A selection process is random if it meets the following statistical criteria:
(1)
Chi-square test. -- Each symbol or number shall satisfy the ninety-nine percent confidence limit using the standard chi-square statistical analysis of the difference between the expected result and the observed result.
(2)
Runs test. -- Each symbol or number may not produce a significant statistic with regard to producing patterns of occurrences. Each symbol or number is random if it meets the ninety-nine percent confidence level with regard to the 'runs test' for the existence of recurring patterns within a set of data.
(3)
Correlation test. -- Each pair of symbols or numbers is random if it meets the ninety-nine percent confidence level using standard correlation analysis to determine whether each symbol or number is independently chosen without regard to another symbol or number within a single game play.
(4)
Serial correlation test. -- Each symbol or number is random if it meets the ninety-nine percent confidence level using standard serial correlation analysis to determine whether each symbol or number is independently chosen without reference to the same symbol or number in a previous game.
(c) Each video lottery terminal shall pay out no less than eighty percent and no more than ninety-nine percent of the amount wagered. The theoretical payout percentage will be determined using standard methods of probability theory.
(d) Each video lottery terminal shall be capable of continuing the current game with all current game features after a video lottery terminal malfunction is cleared. If a video lottery terminal is rendered totally inoperable during game play, the current wager and all credits appearing on the video lottery terminal screen prior to the malfunction shall be returned to the player.
(e) Each video lottery terminal shall at all times maintain electronic accounting regardless of whether the terminal is being supplied with electrical power. Each meter shall be capable of maintaining a total of no less than eight digits in length for each type of data required. The electronic meters shall record the following information:
(1) Number of coins inserted by players or the coin equivalent if a bill acceptor is being used or tokens or vouchers are used;
(2) Number of credits wagered;
(3) Number of total credits, coins and tokens won;
(4) Number of credits paid out by a printed ticket;
(5) Number of coins or tokens won, if applicable;
(6) Number of times the logic area was accessed;
(7) Number of times the cash door was accessed;
(8) Number of credits wagered in the current game;
(9) Number of credits won in the last complete video lottery game; and
(10) Number of cumulative credits representing money inserted by a player and credits for video lottery games won, but not collected.
(f) No video lottery terminal may have any mechanism which allows the electronic accounting meters to clear automatically. Electronic accounting meters may not be cleared without the prior approval of the commission. Both before and after any electronic accounting meter is cleared, all meter readings shall be recorded in the presence of a commission employee.
(g) The primary responsibility for the control and regulation of any video lottery games and video lottery terminals operated pursuant to this article rests with the commission.
(h) The commission shall directly or through a contract with a third party vendor other than the video lottery licensee, maintain a central site system of monitoring the lottery terminals, utilizing an online or dial-up inquiry. The central site system shall be capable of monitoring the operation of each video lottery game or video lottery terminal operating pursuant to this article and, at the direction of the director, immediately disable and cause not to operate any video lottery game and video lottery terminal. As provided in this section, the commission may require the licensed racetrack to pay the cost of a central site computer as part of the licensing requirement.
§29-25-31. The specific video lottery duties required of the gaming facility.

The gaming facility licensee shall:
(a) Acquire video lottery terminals by purchase, lease or other assignment and provide a secure location for the placement, operation and play of the video lottery terminals;
(b) Pay for the installation and operation of commission approved telephone lines to provide direct dial-up or online communication between each video lottery terminal and the commission's central control computer;
(c) Permit no person to tamper with or interfere with the operation of any video lottery terminal;
(d) Ensure that any telephone lines from the commission's central control computer to the video lottery terminals located at the licensed gaming facility are at all times connected and prevent any person from tampering or interfering with the operation of the telephone lines;
(e) Ensure that video lottery terminals are within the sight and control of designated employees of the license gaming facility;
(f) Ensure that video lottery terminals are placed and remain placed in the specific locations within the gaming facility that have been approved by the commission. No video lottery terminal or terminals at the gaming facility shall be relocated without the prior approval of the commission;
(g) Monitor video lottery terminals to prevent access to or play by persons who are under the age of twenty-one years or who are visibly intoxicated;
(h) Maintain at all times sufficient change and cash in the denominations accepted by the video lottery terminals;
(i) Provide no access by a player to an automated teller machine (ATM) in the area of the gaming facility where video lottery games are played;
(j) Pay for all credits won upon presentment of a valid winning video lottery ticket;
(k) Report promptly to the manufacturer and the commission all video lottery terminal malfunctions and notify the commission of the failure of a manufacturer or service technician to provide prompt service and repair of such terminals and associated equipment;
(l) Install, post and display prominently at locations within or about the licensed gaming facility signs, redemption information and other promotional material as required by the commission; and
(m) Promptly notify the commission in writing of any breaks or tears to any logic unit seals.
§29-25-32. Surcharge; Capital Reinvestment Fund.
(a) For all fiscal years beginning on or after July 1, 2009, there shall be imposed a surcharge of ten percent against the share of gross terminal income retained by the gaming facility as provided by section twenty of this article.
(b) The Capital Reinvestment Fund is hereby created within the Lottery Fund. The surcharge amount attributable to the historic resort hotel shall be retained by the commission and deposited into a separate capital reinvestment account for the historic resort hotel. For each dollar expended by the historic resort hotel for capital improvements at the historic resort hotel, of any amenity associated with the historic resort hotel's destination resort facility operations, or at adjacent facilities owned by the historic resort hotel having a useful life of seven or more years and placed in service after April 1, 2009, the licensed gaming facility shall receive one dollar in recoupment from its Capital Reinvestment Fund account: If a historic resort hotel's unrecouped capital improvements exceed its Capital Reinvestment Fund account at the end of any fiscal year, the excess improvements may be carried forward to seven subsequent fiscal years.
(c) Any moneys remaining in the historic resort hotel's Capital Reinvestment Fund account at the end of any fiscal year shall be deposited in the Historic Resort Hotel Fund.
§29-25-33. License to be a provider of management services.
(a)
License. -- The commission may issue a license to a person providing management services under a management services contract to a gaming facility when the commission determines that the person meets the requirements of this section and any applicable rules of the commission.
(b)
License qualifications. -- Each applicant who is an individual and each individual who controls an applicant, as provided in subsection (f), section two of this article, shall be of good moral character, honesty and integrity and shall have the necessary experience and financial ability to successfully carry out the functions of a management services provider. The commission may adopt rules establishing additional requirements for an authorized management services provider. The commission may accept licensing by another jurisdiction, specifically determined by the commission to have similar licensing requirements, as evidence the applicant meets authorized management services provider licensing requirements.
(c)
Management service provider specifications. -- An applicant for a license to provide management services to a gaming facility licensee shall demonstrate that the management services that the applicant plans to offer to the gaming facility licensee conform or will conform to standards established by rules of the commission and applicable state law.
(d)
License application requirements. -- An applicant for a license to provide management services to a gaming facility licensee shall:
(1) Submit an application to the commission in the form required by the commission including adequate information to serve as a basis for a thorough background check;
(2) Submit fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be furnished by all persons required to be named in the application and shall be accompanied by a signed authorization for the release of information by the Criminal Investigation Bureau and the Federal Bureau of Investigation. The commission may require any applicant seeking the renewal of a license or permit to furnish fingerprints for a national criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation; and
(3) Pay to the commission a nonrefundable application fee for deposit into the Historic Resort Hotel Fund in the amount of $100.
(e)
Authorization. -- A license to provide management services to a gaming facility licensee authorizes the licensee to provide management service to a gaming facility while the license is active. The commission may by rule establish the conditions which constitute an emergency under which the commission may issue provisional licenses pending completion of final action on an application.
(f)
Fees, expiration date and renewal. -- A licensed provider of management services shall pay to the commission an annual license fee of $100 for an initial term beginning prior to the date of the provider's first contract with a gaming facility licensee and continuing through the end of the twelfth month thereafter whenever the licensee has paid the renewal fee and has continued to comply with all applicable statutory and rule requirements. The commission shall renew a license to provide management services to a gaming facility annually thereafter. A gaming facility licensee may continue to use the management services provided by the management services provider while that provider was licensed, notwithstanding the expiration of the provider's license, unless the commission finds the services provided are not conforming to standards established by rule of the commission and applicable state law.
§29-25-34. State ownership of West Virginia Lottery table games.
All West Virginia Lottery table games authorized by this article shall be West Virginia lottery games owned by the State of West Virginia. A gaming facility license granted to a historic resort hotel by the commission pursuant to this article shall include the transfer by the commission to the historic resort hotel limited license rights in and to the commission's intellectual property ownership of the West Virginia lottery games which includes granting licensees limited lawful authority relating to the conduct of lottery table games for consideration, within the terms and conditions established pursuant to this article and any rules promulgated under this article.
§29-25-35. Preemption.
No local law or rule providing any penalty, disability, restriction, regulation or prohibition for operating a historic resort hotel with
West Virginia Lottery table games or supplying a licensed gaming facility may be enacted and the provisions of this article preempt all regulations, rules, ordinances and laws of any county or municipality in conflict with this article.
§29-25-36. Exemption from federal law.
Pursuant to Section 2 of chapter 1194, 64 Stat. 1134, 15 U. S. C. §1172, approved January 2, 1951, the State of West Virginia, acting by and through duly elected and qualified members of the Legislature, does declare and proclaim that the state is exempt from chapter 1194, 64 Stat. 1134, 15 U. S. C. §1171 to §1178.
§29-25-37. Game rules of play; disputes.
(a) As an agent of the commission authorized to operate West Virginia Lottery table games, the gaming facility licensee shall have written rules of play for each West Virginia Lottery table game it operates that are approved by the commission before the West Virginia Lottery table game is offered to the public. Rules of play proposed by the gaming facility may be approved, amended or rejected by the commission.
(b) All West Virginia Lottery table games shall be conducted according to the specific rules of play approved by the commission. All wagers and pay-offs of winning wagers shall be made according to those rules of play, which shall establish any limitations necessary to assure the vitality of West Virginia Lottery table game operations.
(c) The gaming facility licensee shall make available in printed form to any patron, upon request of the patron, the complete texts of the rules of play of any West Virginia Lottery table games in operation at the gaming facility, pay-offs of winning wagers and any other advice to the player required by the commission.
(d) Patrons are considered to have agreed that the determination of whether the patron is a valid winner is subject to the game of play rules and, in the case of any dispute, will be determined by the commission. The determination by the commission shall be final and binding upon all patrons and shall not be subject to further review or appeal.
§29-25-38. Shipment of gambling devices.
All shipments of gambling devices, including video lottery machines, to the licensed gaming facility in this state, the registering, recording and labeling of which have been completed by the manufacturer or dealer thereof in accordance with Chapter 1194, 64 Stat. 1134, 15 U. S. C. §1171 to §1178, are legal shipments of gambling devices into the State of West Virginia.
"
On motion of Delegate White, the Finance Committee amendment was amended as follows:
On page twelve, section three, line twenty-three, following the words "facility for" by inserting the word "a".
On page thirty-two, section thirteen, line nineteen, by striking out the words "committed to a state correctional facility" and inserting in lieu thereof the words "confined in jail".
And,
On page fifty-four, section twenty-four, line two, following the word "article" and the semi- colon, by striking out the word "or" and inserting in lieu thereof the word "and".
The Clerk then reported an amendment by Delegates Sobonya, Sumner, Shoen and C. Miller,
on page seventy-four, line four, following subsection (m) by inserting the following new subsection:
(n) Promptly pay the commission an annual machine fee of $1000 per year, the proceeds of which fee shall be evenly divided between the PROMISE scholarship fund and the home health care programs of the Bureau of Senior Services"
On the adoption of the amendment to the amendment, Delegate Sobonya demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 357), and there were--yeas 30, nays 68, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, Duke, Ellem, Evans, Fragale, Hamilton, Ireland, Lane, Louisos, C. Miller, Moye, Overington, Porter, Reynolds, Rodighiero, Romine, Rowan, Schoen, Shott, Sobonya, Sumner, Walters and Wooton.
Absent And Not Voting: Beach and Fleischauer.
So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.
The Clerk next reported an amendment offered by Delegate Louisos on page one, by striking out the enacting section and inserting in lieu thereof the following:
That §9-2-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §23-4-6 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §29-22-29; that §29-25-1, §29-25-2, §29-25-3, §29-25-5, §29-25-6, §29-25-8, §29-25-9, §29-25-11, §29-25-12, §29-25-13, §29-25-16, §29-25-17, §29-25-18, §29-25-19, §29-25- 20, §29-25-21, §29-25-22, §29-25-23, §29-25-24, §29-25-25 and §29-25-26 of said code be amended and reenacted; and that said code be amended by adding thereto twelve new sections, designated §29-25-22a, §29-25-28, §29-25-29, §29-25-30, §29-25-31, §29-25-32, §29-25-33, §29- 25-34, §29-25-35, §29-25-36, §29-25-37 and §29-25-38, all to read as follows:
CHAPTER 9. HUMAN SERVICES.

ARTICLE 2. COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND RESPONSIBILITIES GENERALLY.
§9-2-9. Secretary to develop Medicaid monitoring and case management.

(a) The Secretary of the Department of Health and Human Resources shall:
(1) Develop a managed care system to monitor the services provided by the Medicaid program to individual clients;
(2) Develop an independent referral service, including the review of individual cases for abuses of the program; and
(3) Develop a schedule for implementation of the managed care and independent referral system. The managed care system shall focus on, but not be limited to, the behavioral health and mental health services.
(b) In addition thereto, and in accordance with applicable federal Medicaid laws, the secretary shall prepare recommendations, to be submitted to the Joint Committee on Government and Finance. In developing recommendations the secretary shall consider as options the following:
(1) Review of Medicaid services which are optional under federal Medicaid law and identification of services to be retained, reduced or eliminated;
(2) The elimination, reduction or phase-out of: (i) Services which are not generally available to West Virginia citizens not covered under the state's Medicaid program; or (ii) services which are not generally covered under group policies of insurance made available to employees of employers within the state;
(3) The elimination or reduction of services, or reduction of provider reimbursement rates, for identified services of marginal utility;
(4) Higher reimbursement rates for primary and preventive care;
(5) Changes in fee structure, which may include a system of prospective payments, and may include establishment of global fees for identified services or diagnoses including maternity care;
(6) Utilization caps for certain health care procedures;
(7) Restriction of coverage for cosmetic procedures;
(8) Identification of excessive use of certain health care procedures by individuals and a policy to restrict excessive use;
(9) Identification of services which reduce the need for more costly options for necessary care and retention or expansion of those programs;
(10) Identification of services for which preauthorization is a requirement for Medicaid reimbursement;
(11) Recommendations relating to the development of a demonstration project on long-term care, which demonstration project may be limited to patients with Alzheimer's Disease;
(12) A policy concerning the department's procedures for compliance, monitoring and inspection; and
(13) Such other options as may be developed.
(c) The secretary shall utilize in-state health care facilities for inpatient treatment when such facilities are available. Prior authorization, consistent with applicable federal law, shall be required for out-of-state inpatient treatment.
(d) The secretary shall report to the Joint Committee on Government and Finance on the development and implementation of Medicaid programs that provide incentives to working persons. The secretary shall consider: Subsidies for low income working persons; individual or small employer buy-ins to the state Medicaid Fund; prospective payment systems for primary care physicians in underserved areas; and a system to improve monitoring of collections, expenditures, service delivery and utilization.
(e) The secretary shall report quarterly to the Joint Committee on Government and Finance regarding provider and facility compliance with federal and state Medicaid laws, including, but not limited to, the following: The number of inspections conducted during the previous quarter; description of programs, services and facilities reviewed; findings; and recommendations for corrections.
(f) The secretary shall, upon federal certification of the claims management system, ensure that the claims management system processing Medicaid claims provides:
(1) Detailed quarterly financial reports to the Legislative Oversight Commission on Health and Human Resources Accountability;
(2) A management reporting system no later than July 1, 2006; and
(3) Specific utilization data by provider, member eligibility groups and service no later than October 1, 2006.
(g) Effective no later than July 1, 2009, The secretary shall develop a program for providing Medicaid recipients, who are residents in nursing homes or personal care homes, $75 a month for a personal needs account. This shall be in addition to those sums these residents receive that are paid from Medicaid for personal needs.
CHAPTER 23. WORKERS' COMPENSATION.

ARTICLE 4. DISABILITY AND DEATH BENEFITS.

§23-4-6. Classification of and criteria for disability benefits.

Where compensation is due an employee under the provisions of this chapter for personal injury, the compensation shall be as provided in the following schedule:
(a) The terms "average weekly wage earnings, wherever earned, of the injured employee, at the date of injury" and "average weekly wage in West Virginia", as used in this chapter, have the meaning and shall be computed as set forth in section fourteen of this article except for the purpose of computing temporary total disability benefits for part-time employees pursuant to the provisions of section six-d of this article.
(b) For all awards made on and after the effective date of the amendment and reenactment of this section during the year 2003, if the injury causes temporary total disability, the employee shall receive during the continuance of the disability a maximum weekly benefit to be computed on the basis of sixty-six and two-thirds percent of the average weekly wage earnings, wherever earned, of the injured employee, at the date of injury, not to exceed one hundred percent of the average weekly wage in West Virginia: Provided, That in no event shall an award for temporary total disability be subject to annual adjustments resulting from changes in the average weekly wage in West Virginia: Provided, however, in the case of a claimant whose award was granted prior to the effective date of the amendment and reenactment of this section during the year 2003, the maximum benefit rate shall be the rate applied under the prior enactment of this subsection which was in effect at the time the injury occurred. The minimum weekly benefits paid under this subdivision shall not be less than thirty-three and one-third percent of the average weekly wage in West Virginia, except as provided in sections six-d and nine of this article. In no event, however, shall the minimum weekly benefits exceed the level of benefits determined by use of the applicable federal minimum hourly wage: Provided further, That any claimant receiving permanent total disability benefits, permanent partial disability benefits or dependents' benefits prior to July 1, 1994, shall not have his or her benefits reduced based upon the requirement in this subdivision that the minimum weekly benefit shall not exceed the applicable federal minimum hourly wage.
(c) Subdivision (b) of this section is limited as follows: Aggregate award for a single injury causing temporary disability shall be for a period not exceeding two hundred eight weeks; aggregate award for a single injury for which an award of temporary total disability benefits is made on or after the effective date of the amendment and reenactment of this section in the year 2003 shall be for a period not exceeding one hundred four weeks. Notwithstanding any other provision of this subdivision to the contrary, no person may receive temporary total disability benefits under an award for a single injury for a period exceeding one hundred four weeks from the effective date of the amendment and reenactment of this section in the year 2003.
(d) For all awards of permanent total disability benefits that are made on or after February 2, 1995, including those claims in which a request for an award was pending before the division or which were in litigation but not yet submitted for a decision, then benefits shall be payable until during the lifetime of the claimant. attains the age necessary to receive federal old age retirement benefits under the provisions of the Social Security Act, 42 U.S.C. §§401 and 402, in effect on the effective date of this section The claimant shall be paid benefits so as not to exceed a maximum benefit of sixty-six and two-thirds percent of the claimant's average weekly wage earnings, wherever earned, at the time of the date of injury not to exceed one hundred percent of the average weekly wage in West Virginia. The minimum weekly benefits paid under this section shall be as is provided for in subdivision (b) of this section. In all claims in which an award for permanent total disability benefits was made prior to February 2, 1995, the awards shall continue to be paid at the rate in effect prior to the effective date of the amendment and reenactment of this section in the year 2003: Provided, That the provisions of sections one through eight, inclusive, article four-a of this chapter shall be applied thereafter to all prior awards that were previously subject to its provisions. A single or aggregate permanent disability of eighty-five percent or more entitles the employee to a rebuttable presumption of a permanent total disability for the purpose of paragraph (2), subdivision (n) of this section: Provided, however, That the claimant must also be at least fifty percent medically impaired upon a whole body basis or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section. The presumption may be rebutted if the evidence establishes that the claimant is not permanently and totally disabled pursuant to subdivision (n) of this section. Under no circumstances may the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, grant an additional permanent disability award to a claimant receiving a permanent total disability award: Provided further, That if any claimant thereafter sustains another compensable injury and has permanent partial disability resulting from the injury, the total permanent disability award benefit rate shall be computed at the highest benefit rate justified by any of the compensable injuries.
(e) (1) For all awards made on or after the effective date of the amendment and reenactment of this section during the year 2003, if the injury causes permanent disability less than permanent total disability, the percentage of disability to total disability shall be determined and the award computed on the basis of four weeks' compensation for each percent of disability determined at the maximum or minimum benefit rates as follows: Sixty-six and two-thirds percent of the average weekly wage earnings, wherever earned, of the injured employee at the date of injury, not to exceed seventy percent of the average weekly wage in West Virginia: Provided, That in no event shall an award for permanent partial disability be subject to annual adjustments resulting from changes in the average weekly wage in West Virginia: Provided, however, That in the case of a claimant whose award was granted prior to the effective date of the amendment and reenactment of this section during the year 2003, the maximum benefit rate shall be the rate applied under the prior enactment of this section which was in effect at the time the injury occurred.
(2) If a claimant is released by his or her treating physician to return to work at the job he or she held before the occupational injury occurred and if the claimant's preinjury employer does not offer the preinjury job or a comparable job to the employee when a position is available to be offered, the award for the percentage of partial disability shall be computed on the basis of six weeks of compensation for each percent of disability.
(3) The minimum weekly benefit under this subdivision shall be as provided in subdivision (b) of this section for temporary total disability.
(f) If the injury results in the total loss by severance of any of the members named in this subdivision, the percentage of disability shall be determined by the percentage of disability, specified in the following table:
The loss of a great toe shall be considered a ten percent disability.
The loss of a great toe (one phalanx) shall be considered a five percent disability.
The loss of other toes shall be considered a four percent disability.
The loss of other toes (one phalanx) shall be considered a two percent disability.
The loss of all toes shall be considered a twenty-five percent disability.
The loss of forepart of foot shall be considered a thirty percent disability.
The loss of a foot shall be considered a thirty-five percent disability.
The loss of a leg shall be considered a forty-five percent disability.
The loss of thigh shall be considered a fifty percent disability.
The loss of thigh at hip joint shall be considered a sixty percent disability.
The loss of a little or fourth finger (one phalanx) shall be considered a three percent disability.
The loss of a little or fourth finger shall be considered a five percent disability.
The loss of ring or third finger (one phalanx) shall be considered a three percent disability.
The loss of ring or third finger shall be considered a five percent disability.
The loss of middle or second finger (one phalanx) shall be considered a three percent disability.
The loss of middle or second finger shall be considered a seven percent disability.
The loss of index or first finger (one phalanx) shall be considered a six percent disability.
The loss of index or first finger shall be considered a ten percent disability.
The loss of thumb (one phalanx) shall be considered a twelve percent disability.
The loss of thumb shall be considered a twenty percent disability.
The loss of thumb and index fingers shall be considered a thirty-two percent disability.
The loss of index and middle fingers shall be considered a twenty percent disability.
The loss of middle and ring fingers shall be considered a fifteen percent disability.
The loss of ring and little fingers shall be considered a ten percent disability.
The loss of thumb, index and middle fingers shall be considered a forty percent disability.
The loss of index, middle and ring fingers shall be considered a thirty percent disability.
The loss of middle, ring and little fingers shall be considered a twenty percent disability.
The loss of four fingers shall be considered a thirty-two percent disability.
The loss of hand shall be considered a fifty percent disability.
The loss of forearm shall be considered a fifty-five percent disability.
The loss of arm shall be considered a sixty percent disability.
The total and irrecoverable loss of the sight of one eye shall be considered a thirty-three percent disability. For the partial loss of vision in one or both eyes, the percentages of disability shall be determined by the commission, using as a basis the total loss of one eye.
The total and irrecoverable loss of the hearing of one ear shall be considered a twenty-two and one-half percent disability. The total and irrecoverable loss of hearing of both ears shall be considered a fifty-five percent disability.
For the partial loss of hearing in one or both ears, the percentage of disability shall be determined by the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, using as a basis the total loss of hearing in both ears.
If a claimant sustains a compensable injury which results in the total loss by severance of any of the bodily members named in this subdivision or dies from sickness or noncompensable injury before the commission makes the proper award for the injury, the commission shall make the award to the claimant's dependents as defined in this chapter, if any; the payment to be made in the same installments that would have been paid to claimant if living: Provided, That no payment shall be made to any surviving spouse of the claimant after his or her remarriage and that this liability shall not accrue to the estate of the claimant and is not subject to any debts of, or charges against, the estate.
(g) If a claimant to whom has been made a permanent partial award dies from sickness or noncompensable injury, the unpaid balance of the award shall be paid to claimant's dependents as defined in this chapter, if any; the payment to be made in the same installments that would have been paid to claimant if living: Provided, That no payment shall be made to any surviving spouse of the claimant after his or her remarriage, and that this liability shall not accrue to the estate of the claimant and is not subject to any debts of, or charges against, such estate.
(h) For the purposes of this chapter, a finding of the occupational pneumoconiosis board has the force and effect of an award.
(i) For the purposes of this chapter, with the exception of those injuries provided for in subdivision (f) of this section and in section six-b of this article, the degree of permanent disability other than permanent total disability shall be determined exclusively by the degree of whole body medical impairment that a claimant has suffered. For those injuries provided for in subdivision (f) of this section and section six-b of this article, the degree of disability shall be determined exclusively by the provisions of said subdivision and said section. The occupational pneumoconiosis board created pursuant to section eight-a of this article shall premise its decisions on the degree of pulmonary function impairment that claimants suffer solely upon whole body medical impairment. The Workers' Compensation Commission shall adopt standards for the evaluation of claimants and the determination of a claimant's degree of whole body medical impairment. Once the degree of medical impairment has been determined, that degree of impairment shall be the degree of permanent partial disability that shall be awarded to the claimant. This subdivision is applicable to all injuries incurred and diseases with a date of last exposure on or after February 2, 1995, to all applications for an award of permanent partial disability made on and after that date and to all applications for an award of permanent partial disability that were pending before the commission or pending in litigation but not yet submitted for decision on and after that date. The prior provisions of this subdivision remain in effect for all other claims.
(j) From a list of names of seven persons submitted to the executive director by the health care advisory panel, the executive director shall appoint an interdisciplinary examining board consisting of five members to evaluate claimants, including by examination if the board elects. The interdisciplinary examining board shall terminate upon termination of the commission and all administrative and adjudicatory functions performed by the interdisciplinary examining board shall be performed by the following reviewing bodies for those claims over which they have administrative jurisdiction: (1) The Insurance Commissioner or his or her designated administrator of each of the funds set forth in this chapter; (2) private carriers; or (3) self-insured employers. The reviewing bodies shall employ or otherwise engage adequate resources, including medical professionals, to perform the functions of the interdisciplinary examining board. The board shall be composed of three qualified physicians with specialties and expertise qualifying them to evaluate medical impairment and two vocational rehabilitation specialists who are qualified to evaluate the ability of a claimant to perform gainful employment with or without retraining. One member of the board shall be designated annually as chairperson by the executive director. The term of office of each member of the board shall be six years and until his or her successor has been appointed and has qualified. Any member of the board may be appointed to any number of terms. Any two physician members and one vocational rehabilitation specialist member shall constitute a quorum for the transaction of business. The executive director, from time to time, shall fix the compensation to be paid to each member of the board, and the members are also entitled to reasonable and necessary traveling and other expenses incurred while actually engaged in the performance of their duties. The board shall perform the duties and responsibilities assigned by the provisions of this chapter, consistent with the administrative policies developed by the executive director with the approval of the board of managers.
(1) The executive director shall establish requirements for the proper completion and support for an application for permanent total disability benefits within an existing or a new rule no later than January 1, 2004. Upon adoption of the rule by the board of managers, no issue of permanent total disability may be referred to the interdisciplinary examining board, or, any other reviewing body, unless a properly completed and supported application for permanent total disability benefits has been first filed. Prior to the referral of any issue to the interdisciplinary examining board, or, upon its termination, prior to a reviewing body's adjudication of a permanent total disability application, the commission, or reviewing body shall conduct examinations of the claimant that it finds necessary and obtain all pertinent records concerning the claimant's medical history and reports of examinations and forward them to the board at the time of the referral. The commission or reviewing body shall provide adequate notice to the employer of the filing of the request for a permanent total disability award and the employer shall be granted an appropriate period in which to respond to the request. The claimant and the employer may furnish all pertinent information to the board or other reviewing body and shall furnish to the board or other reviewing body any information requested. The claimant and the employer may each submit no more than one report and opinion regarding each issue present in a given claim. The employer may have the claimant examined by medical specialists and vocational rehabilitation specialists: Provided, That the employer is entitled to only one examination on each issue present in a given claim. Any additional examinations must be approved by the commission or other reviewing body and shall be granted only upon a showing of good cause. The reports from all employer-conducted examinations must be filed with the board or other reviewing body and served upon the claimant. The board or other reviewing body may request that those persons who have furnished reports and opinions regarding a claimant provide it with additional information considered necessary. Both the claimant and the employer, as well as the commission, or other reviewing body may submit or obtain reports from experts challenging or supporting the other reports in the record regardless of whether or not the expert examined the claimant or relied solely upon the evidence of record.
(2) If the board or a quorum of the board elects to examine a claimant, the individual members shall conduct any examinations that are pertinent to each of their specialties. If a claim presents an issue beyond the expertise of the board, the board may obtain advice or evaluations by other specialists. In addition, if the board of managers determines that the number of applications pending before the interdisciplinary examining board has exceeded the level at which the board can review and make recommendations within a reasonable time, the board of managers may authorize the executive director to appoint any additional members to the board that are necessary to reduce the backlog of applications. The additional members shall be recommended by the health care advisory panel. The executive director may make any appointments he or she chooses from the recommendations. The additional board members shall not serve a set term but shall serve until the board of managers determines that the number of pending applications has been reduced to an acceptable level.
(3) Referrals to the board shall be limited to matters related to the determination of permanent total disability under the provisions of subdivision (n) of this section and to questions related to medical cost containment, utilization review decisions and managed care decisions arising under section three of this article.
(4) In the event the board members or other reviewing body elects to examine a claimant, the board or other reviewing body shall prepare a report stating the tests, examinations, procedures and other observations that were made, the manner in which each was conducted and the results of each. The report shall state the findings made by the board or other reviewing body and the reasons for the findings. Copies of the reports of all examinations made by the board or other reviewing body shall be served upon the parties and the commission until its termination. Each shall be given an opportunity to respond in writing to the findings and conclusions stated in the reports.
(5) The board or other reviewing body shall state its initial recommendations to the commission in writing with an explanation for each recommendation setting forth the reasons for each. The recommendations shall be served upon the parties and the commission and each shall be afforded a thirty-day opportunity to respond in writing to the board or other reviewing body regarding its recommendations. The board or other reviewing body shall review any responses and issue its final recommendations. The final recommendations shall be effectuated by the entry of an appropriate order by the commission, or, upon its termination, the private carrier or self-insured employer. For all awards for permanent total disability where the claim was filed on or after the effective date of the amendment and reenactment of this section in the year 2003, the commission or other reviewing body shall establish the date of onset of the claimant's permanent total disability as the date when a properly completed and supported application for permanent total disability benefits as prescribed in subdivision (1) of this subsection that results in a finding of permanent total disability was filed with the commission or other reviewing body: Provided, That upon notification of the commission or other reviewing body by a claimant or his or her representative that the claimant seeks to be evaluated for permanent total disability, the commission or other reviewing body shall send the claimant or his or her representative the proper application form. The commission or other reviewing body shall set time limits for the return of the application. A properly completed and supported application returned within the time limits set by the commission or other reviewing body shall be treated as if received on the date the commission or other reviewing body was notified the claimant was seeking evaluation for permanent total disability: Provided, however, That notwithstanding any other provision of this section to the contrary, the onset date may not be sooner than the date upon which the claimant meets the percentage thresholds of prior permanent partial disability that are established by subsection (n) of this section as a prerequisite to the claimant's qualification for consideration for a permanent total disability award.
(6) Except as noted below, objections pursuant to section one, article five of this chapter to any order shall be limited in scope to matters within the record developed before the Workers' Compensation Commission and the board or other reviewing body and shall further be limited to the issue of whether the board or other reviewing body properly applied the standards for determining medical impairment, if applicable, and the issue of whether the board's findings are clearly wrong in view of the reliable, probative and substantial evidence on the whole record. The preponderance of the evidence set forth in article one of this chapter shall apply to decisions made by reviewing bodies other than the commission instead of the clearly wrong standard. If either party contends that the claimant's condition has changed significantly since the review conducted by the board or other reviewing body, the party may file a motion with the administrative law judge, together with a report supporting that assertion. Upon the filing of the motion, the administrative law judge shall cause a copy of the report to be sent to the examining board or other reviewing body asking the board to review the report and provide comments if the board chooses within sixty days of the board's receipt of the report. The board or other reviewing body may either supply comments or, at the board's or other reviewing body's discretion, request that the claim be remanded to the board for further review. If remanded, the claimant is not required to submit to further examination by the employer's medical specialists or vocational rehabilitation specialists. Following the remand, the board or other reviewing body shall file its recommendations with the administrative law judge for his or her review. If the board or other reviewing body elects to respond with comments, the comments shall be filed with the administrative law judge for his or her review. Following the receipt of either the board's or other reviewing body's recommendations or comments, the administrative law judge shall issue a written decision ruling upon the asserted change in the claimant's condition. No additional evidence may be introduced during the review of the objection before the office of judges or elsewhere on appeal: Provided, That each party and the commission may submit one written opinion on each issue pertinent to a given claim based upon a review of the evidence of record either challenging or defending the board's or other reviewing body's findings and conclusions. Thereafter, based upon the evidence of record, the administrative law judge shall issue a written decision containing his or her findings of fact and conclusions of law regarding each issue involved in the objection. The limitation of the scope of review otherwise provided in this subsection is not applicable upon termination of the commission and any objections shall be subject to article five of this chapter in its entirety.
(k) Compensation payable under any subdivision of this section shall not exceed the maximum nor be less than the weekly benefits specified in subdivision (b) of this section.
(l) Except as otherwise specifically provided in this chapter, temporary total disability benefits payable under subdivision (b) of this section shall not be deductible from permanent partial disability awards payable under subdivision (e) or (f) of this section. Compensation, either temporary total or permanent partial, under this section shall be payable only to the injured employee and the right to the compensation shall not vest in his or her estate, except that any unpaid compensation which would have been paid or payable to the employee up to the time of his or her death, if he or she had lived, shall be paid to the dependents of the injured employee if there are any dependents at the time of death.
(m) The following permanent disabilities shall be conclusively presumed to be total in character:
Loss of both eyes or the sight thereof.
Loss of both hands or the use thereof.
Loss of both feet or the use thereof.
Loss of one hand and one foot or the use thereof.
(n) (1) Other than for those injuries specified in subdivision (m) of this section, in order to be eligible to apply for an award of permanent total disability benefits for all injuries incurred and all diseases, including occupational pneumoconiosis, regardless of the date of last exposure, on and after the effective date of the amendment and reenactment of this section during the year 2003, a claimant: (A) Must have been awarded the sum of fifty percent in prior permanent partial disability awards; (B) must have suffered a single occupational injury or disease which results in a finding by the commission that the claimant has suffered a medical impairment of fifty percent; or (C) has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section. Upon filing an application, the claim will be reevaluated by the examining board or other reviewing body pursuant to subdivision (i) of this section to determine if the claimant has suffered a whole body medical impairment of fifty percent or more resulting from either a single occupational injury or occupational disease or a combination of occupational injuries and occupational diseases or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section. A claimant whose prior permanent partial disability awards total eighty-five percent or more shall also be examined by the board or other reviewing body and must be found to have suffered a whole body medical impairment of fifty percent in order for his or her request to be eligible for further review. The examining board or other reviewing body shall review the claim as provided for in subdivision (j) of this section. If the claimant has not suffered whole body medical impairment of at least fifty percent or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section, the request shall be denied. Upon a finding that the claimant has a fifty percent whole body medical impairment or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section, the review of the application continues as provided for in the following paragraph of this subdivision. Those claimants whose prior permanent partial disability awards total eighty- five percent or more and who have been found to have a whole body medical impairment of at least fifty percent or have sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section are entitled to the rebuttable presumption created pursuant to subdivision (d) of this section for the remaining issues in the request.
(2) For all awards made on or after the effective date of the amendment and reenactment of this section during the year 2003, disability which renders the injured employee unable to engage in substantial gainful activity requiring skills or abilities which can be acquired or which are comparable to those of any gainful activity in which he or she has previously engaged with some regularity and over a substantial period of time shall be considered in determining the issue of total disability. The comparability of preinjury income to post-disability income will not be a factor in determining permanent total disability. Geographic availability of gainful employment within a driving distance of seventy-five miles from the residence of the employee or within the distance from the residence of the employee to his or her preinjury employment, whichever is greater, will be a factor in determining permanent total disability. For any permanent total disability award made after the amendment and reenactment of this section in the year 2003, permanent total disability benefits shall cease at age seventy years. In addition, the vocational standards adopted pursuant to subsection (m), section seven, article three of this chapter shall be considered once they are effective.
(3) In the event that a claimant, who has been found to have at least a fifty percent whole body medical impairment or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section, is denied an award of permanent total disability benefits pursuant to this subdivision and accepts and continues to work at a lesser paying job than he or she previously held, the claimant is eligible, notwithstanding the provisions of section nine of this article, to receive temporary partial rehabilitation benefits for a period of four years. The benefits shall be paid at the level necessary to ensure the claimant's receipt of the following percentages of the average weekly wage earnings of the claimant at the time of injury calculated as provided in this section and sections six-d and fourteen of this article:
(A) Eighty percent for the first year;
(B) Seventy percent for the second year;
(C) Sixty percent for the third year; and
(D) Fifty percent for the fourth year: Provided, That in no event shall the benefits exceed one hundred percent of the average weekly wage in West Virginia. In no event shall the benefits be subject to the minimum benefit amounts required by the provisions of subdivision (b) of this section.
(4) Notwithstanding any provision of this subsection, subsection (d) of this section or any other provision of this code to the contrary, on any claim filed on or after the effective date of the amendment and reenactment of this section in the year 2003:
(A) No percent of whole body medical impairment existing as the result of carpal tunnel syndrome for which a claim has been made under this chapter may be included in the aggregation of permanent disability under the provisions of this subsection or subsection (d) of this section; and
(B) No percent of whole body medical impairment existing as the result of any occupational disease, the diagnosis of which is based solely upon symptoms rather than specific, objective and measurable medical findings, and for which a claim has been made under this chapter may be included in the aggregation of permanent disability under the provisions of this subsection or subsection (d) of this section.
(o) To confirm the ongoing permanent total disability status of the claimant, the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, may elect to have any recipient of a permanent total disability award undergo one independent medical examination during each of the first five years that the permanent total disability award is paid and one independent medical examination during each three-year period thereafter until the claimant reaches the age of seventy years during the lifetime of the claimant: Provided, That the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, may elect to have any recipient of a permanent total disability award under the age of fifty years undergo one independent medical examination during each year that the permanent total disability award is paid until the recipient reaches the age of fifty years, and thereafter one independent medical examination during each three-year period thereafter until the claimant reaches the age of seventy years during the lifetime of the claimant.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

And,
On page forty, line three following the word "transfer" by inserting a comma, striking the words "to be deposited into the Historic Resort Hotel Fund created in section twenty-two of this article", and inserting in lieu thereof the following:
"with one percent going to the Department of Health and Human Resources to fund a program for providing Medicaid recipients, who are residents in nursing homes to receive a total of $75 a month for personal needs account pursuant to subsection (g), section nine, article two, chapter nine of this Code; fifteen percent going to the Workers' Compensation Fund to provide continued permanent total disability benefits to claimants during their lifetime, pursuant to subsection (o), section six, article four, chapter twenty-three of this Code, and; the remainder going into the Historic Resort Hotel Fund created in section twenty-two of this article."

On page forty, line twenty-two, by striking out the word "thirty" and inserting in lieu thereof the word "twenty"
On page forty, line twenty-four, as well as page forty-one, line one, by striking out the words "and the remaining" and inserting in lieu thereof a comma
On page forty-one, line three, by striking the period after the word "article" and inserting in lieu thereof a comma, and the following language:
"three percent shall go to the Department of Health and Human Resources to fund a program for providing Medicaid recipients, who are residents in nursing homes to receive a total of $75 a month for a personal needs account pursuant to subsection (g), section nine, article two, chapter nine of this code, and seven percent to the Workers' Compensation Fund to provide continued permanent total disability benefits to claimants during their lifetime, pursuant to subsection (o), section six, article four, chapter twenty-three of this Code."
On page forty-four, line fourteen, by striking the words "thirty-six" inserting in lieu thereof the word "twenty"
On page forty-four, line sixteen, by striking the word "thirty" inserting in lieu thereof the word "twenty"."
The Speaker put the question on the adoption of the foregoing amendment, and the same did not prevail.
The Clerk then read an amendment offered by Delegate Cowles on pageforty, section twenty, line eight, after the word "the" by striking out the words "Human Resource Benefit Fund created in section twenty-two-a of this article" and inserting in lieu thereof the words: "Unemployment Trust Fund".
On the adoption of the amendment to the amendment, Delegate Cowles demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 358), and there were--yeas 25, nays 75, absent and not voting none, with the yeas being as follows:
Yeas: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Carmichael, Cowles, Evans, Hatfield, Hutchins, Ireland, Louisos, C. Miller, J. Miller, Overington, Porter, Romine, Rowan, Schadler, Schoen, Shott, Sobonya and Walters.
So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted."
The Speaker then called up the Minority Report, heretofore filed with the Clerk, pursuant to House Rule 88.
[Clerk's Note: For complete text of Minority Report, see Journal of the House of Delegates, Tuesday, April 7, 2009, pp. 1423-1483.]
Delegate Lane was recognized to deliver remarks concerning the Minority Report, and at the conclusion thereof moved its adoption in lieu of the Finance Committee amendment.
Whereupon,

The Speaker propounded "Will the Minority Report amendment be substituted for and become the amendment of the Finance Committee?"
On this question Delegate Lane, demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 359), and there were--yeas 26, nays 74, absent and not voting none, with the yeas being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ireland, Lane, Louisos, Miller, C, Miller, J, Overington, Porter, Romine, Rowan, Schadler, Schoen, Shott, Sobonya, Sumner and Walters.
So, a majority of the members present and voting having not voted in the affirmative, the motion to substitute the Minority Report amendment for the Finance Committee amendment did not prevail.
The amendment, recommended by the Committee on Finance, was then adopted, as amended.
The bill was then read a third time.
Delegate Lawrence requested to be excused from voting on the passage the bill under the provisions of House Rule 49 stating that she was an employee of a gaming facility.
The Speaker replied that Delegate Lawrence was a member of a class of persons possibly to be affected by the passage of the bill but exhibited no direct personal or pecuniary interest therein, and refused to excuse the Lady from voting.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 360), and there were--yeas 83, nays 17, absent and not voting none, with the nays being as follows:
Nays: Armstead, Azinger, Border, Duke, Ellem, Iaquinta, Ireland, Lane, Louisos, Miller, C, Overington, Porter, Rowan, Schoen, Sobonya, Sumner and Walters.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 575) 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. 575 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §29-22-29; to amend and reenact §29-25-1, §29-25-2, §29-25-3, §29-25-5, §29-25-6, §29-25-8, §29-25-9, §29-25-11, §29-25-12, §29-25-13, §29-25-16, §29-25-17, §29-25-18, §29-25-19, §29-25-20, §29-25-21, §29-25-22, §29-25-23, §29-25-24, §29- 25-25 and §29-25-26 of said code; and to amend said code by adding thereto twelve new sections, designated §29-25-22a, §29-25-28, §29-25-29, §29-25-30, §29-25-31, §29-25-32, §29-25-33, §29- 25-34, §29-25-35, §29-25-36, §29-25-37 and §29-25-38, all relating to gaming at a historic resort hotel and pari-mutuel racetracks generally; designating certain moneys as state monies and establishing audit provisions; updating and conforming provisions for consistency purposes between hotel and racetracks; legislative findings and intent; authorizing certain West Virginia lottery games; modifying licensure requirements and fees therefor; renaming State Gaming Fund the Historic Resort Hotel Fund; providing for distribution of the Historic Resort Hotel Fund; creating formula for renewal fee assessments; expanding licensees' authority to set wagers with commission approval; altering maximum bets for video lottery machines; redefining gross terminal income to allow and account for promotional play at hotel and racetracks; authorizing hotel to contract for management services with commission approval; authorizing the hotel to lease certain services; creating the Human Resource Benefit Fund; permissible expenditures; establishing Human Resource Benefit Advisory Board and setting criteria for its membership; powers and duties; authorizing certain complimentary services; restricting who may enter the designated gaming area of the hotel to overnight guests, certain participants at hotel-based events and residents; clarifying and specifying forfeiture of property provisions; authorizing commission to operate slot machines and video lottery games; establishing requirements for video lottery terminals; establishing specific duties required of the gaming facility; creating Capital Reinvestment Fund; imposing surcharge against share of gross terminal income to be paid into the Capital Reinvestment Fund; declaring all authorized games to be owned by the state; preempting inconsistent county and municipal ordinances or rules; limiting taxing authority; declaring exemption from federal law to facilitate authorization of legal gaming; establishing rules of play and dispute resolution; authorizing shipment of gambling devices into state; modifying distribution of revenue; license suspension and revocation; revising civil penalties; authorizing emergency rulemaking; and establishing and modifying criminal offenses and penalties.

Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 361), and there were--yeas 84, nays 15, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Azinger, Border, Duke, Ellem, Ireland, Louisos, Miller, C, Overington, Porter, Rowan, Schoen, Sobonya, Sumner and Walters.
Absent And Not Voting: Phillips.
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. 575) 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.
Unanimous consent having been obtained, Delegates requested that remarks of other Delegates relative to Com. Sub. for S. B. 575 be printed in the Appendix to the Journal, as follows:
Delegate Ireland - Remarks of Delegate Sobonya on her amendment
Delegate Mahan - Remarks of Delegate Campbell on passage
Delegate Ellem - Remarks of Delegate Lane on Minority Report
Com. Sub. for S. B. 613, Clarifying coalbed methane notice requirements; 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. 362), 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: Phillips.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 613) 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. 613 - "A Bill to amend and reenact §22-21-6, §22-21-15, §22-21-16 and §22-21-17 of the Code of West Virginia, 1931, as amended, all relating to clarifying notice requirements for a hearing on a permit application related to coalbed methane wells; requiring a notice of hearing to be published; and making technical clarifications."
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. 641, Disclosing solid waste origins at commercial landfills; on third reading, coming up in regular order, was reported by the Clerk.
Delegate Webster asked and obtained unanimous consent to amend the bill on third reading.
On motion of Delegate Webster, the bill was amended on page three, section four-b, line twenty, immediately following the word "vehicle", by inserting the words "which deposits solid waste in violation of this section".
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 363), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 641) 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. 767, Relating to certain Medicaid program contracts; 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. 364), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 767) passed.
On motion of Delegates Perdue and Morgan, the title of the bill was amended to read as follows:
S. B. 767 - "A Bill to amend and reenact §9-2-9 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §9-2-9a; and to amend and reenact §9-4-3 of said code, all relating to the state Medicaid program; requiring public notice and comment of state plan amendments prior to submission for federal approval; providing for public comment; allowing emergency approval of certain rules; exempting certain contracts for the Medicaid program from the Division of Purchasing's competitive bid requirements; specifying contract management requirements; establishing procedures and requirements for awarding contracts; clarifying conflicts of interest provisions; and expanding membership of the Medicaid Advisory Board."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 365), and there were--yeas 100, nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 767) 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. 282 - "Relating to retail liquor licenses' classification; on third reading, coming up in regular order, with an amendment pending, was read a third time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk, amending the bill on page forty, section eighteen, line one, immediately following the word "Sundays" by inserting the words "before one o'clock p.m. or on".
On the adoption of the amendment, Delegate Overington demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 366), and there were--yeas 51, nays 49, absent and not voting none, with the nays being as follows:
Nays: Armstead, Ashley, Azinger, Beach, Blair, Border, Cann, Canterbury, Carmichael, Cowles, Doyle, Duke, Eldridge, Ellem, Ennis, Evans, Frazier, Givens, Hall, Hartman, Iaquinta, Ireland, Lane, Louisos, McGeehan, Miller, C, Miller, J, Moye, Overington, Perry, Phillips, D. Poling, M. Poling, Porter, Rodighiero, Romine, Ross, Rowan, Schoen, Shaver, Shott, Smith, Sobonya, Sumner, Susman, Tabb, Walker, Walters and Williams.
So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 367), and there were--yeas 62, nays 38, absent and not voting 0, with the nays being as follows:
Nays: Anderson, Armstead, Azinger, Blair, Border, Canterbury, Carmichael, Duke, Eldridge, Ellem, Ennis, Evans, Fleischauer, Frazier, Givens, Hall, Hamilton, Iaquinta, Ireland, Lane, Louisos, C. Miller, Moye, Overington, Perry, Phillips, Porter, Rodighiero, Romine, Rowan, Schoen, Shott, Smith, Sobonya, Sumner, Susman, Walker and Wooton.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 282) 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. 282  - "A Bill to amend and reenact §60-3A-2, §60-3A-2a, §60-3A-4, §60-3A-6, §60-3A-7, §60-3A-8, §60-3A-10, §60-3A-10b, §60-3A-11, §60-3A-12 and §60-3A-18 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §60-3A-10d, all relating to the sale of liquor; classifying retail licenses for the sale of liquor; setting forth legislative findings; defining certain terms; authorizing the Alcohol Beverage Control Commissioner to issue retail licenses for the sale of liquor; establishing certain standards for the issuance of licenses within market zones; limiting the issuance of retail licenses to operate mixed retail liquor outlets; authorizing the commissioner to adopt certain standards for retail outlets; increasing the maximum percentage of retail licenses a person may own; providing a purchase option for active retail licensees seeking to operate a freestanding liquor retail outlet; providing for financing for the purchase of a retail license for a freestanding liquor retail outlet; authorizing emergency rules; permitting the Sunday sale of liquor after one p.m., and permitting the sale of liquor on election day.
"
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
At 2:27 p.m., on motion of Delegate Boggs, the House of Delegates recessed until 5:00 p.m., and reconvened at that time.
* * * * * * *

Evening Session

* * * * * * *

Conference Committee Report Availability

At 5:09 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for S. B. 445.
At the request of Delegate Boggs, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports

On motion for leave, a resolution was introduced (Originating in the Committee on Education and reported with the recommendation that it be adopted), which was read by its title, as follows:
By Delegates M. Poling, Paxton, Beach, Crosier, Ennis, Lawrence, Louisos, Moye, Pethtel, Perry, Rodigherio, Shaver, Smith Stowers, Walker, Duke, Canterbury, Ireland, Rowan, Shott and Sumner:

H. C. R. 114 - "Requesting the Joint Committee on Government and Finance to make a study on improving the ability of public schools to effectively recruit and employ well qualified graduates from colleges and universities in this state and others to teach in the public schools,"
Whereas, Colleges and universities in West Virginia and other states each year produce well qualified candidates for employment in the state's public schools, many in subject areas that the state considers areas of critical need and shortage; and
Whereas, For the 2007-08 school year, 3860 professional educators employed in the state's public schools (nearly 16%) had 31 or mores years of experience and were nearing retirement eligibility or were eligible to retire but were still working; and
Whereas, With looming teacher shortages in other state's and approaching large numbers of retirements in West Virginia, the ability of public schools to effectively recruit and employ well qualified graduates is crucial to maintaining the quality of education in the public schools; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to make a study on improving the ability of public schools to effectively recruit and employ well qualified graduates from colleges and universities in this state and others to teach in the public schools; and be it
Further Resolved, That the said Joint Committee on Government and Finance is requested conduct the study and prepare a report of its findings, conclusions and recommendations together with drafts of any legislation necessary to effectuate its recommendations; and be it
Further Resolved, That the Joint Committee on Government and Finance is requested to report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and draft necessary legislation are requested to be paid from legislative appropriations to the Joint Committee on Government and Finance.
By Delegates M. Poling, Paxton, Beach, Crosier, Ennis, Lawrence, Louisos, Moye, Pethtel, Perry, Rodigherio, Shaver, Smith Stowers, Walker, Duke, Canterbury, Ireland, Rowan, Shott and Sumner:

H. C. R. 115 - "Requesting the Joint Committee on Government and Finance to study methods to remove the barriers to educational success that veterans face in the higher education system and the transition difficulties that the children of military personnel face in the public education system,"
Whereas, West Virginia has one of the highest numbers of active duty and injured soldiers per capita in the nation; and
Whereas, It is important that veterans and military personnel receive the honor, treatment and care they so richly deserve for volunteering their lives to protect our country and our state; and
Whereas, The State of West Virginia has a compelling interest in demonstrating its gratitude towards its veterans and military personnel by enhancing services that broaden opportunities for them and their families; and
Whereas, Many veterans are interested and motivated to seek higher education, but face obstacles and limitations unique to veterans in doing so, including unprecedented mental and physical health care issues that may be beyond the scope of care of current student services; and
Whereas, By providing veterans with enhanced educational assistance and counseling, higher education institutions in this state can help satisfy the state's moral obligations to honor and show gratitude for their service; and
Whereas, Veterans would benefit from the implementation of methods to lower the bureaucratic barriers facing them in enrollment, reenrollment, financial aid and transitioning into the educational process;
Whereas, Veterans would benefit from the appointment of veterans' advocates trained in as many institutional units as is feasible, the development of programs to ease the transition from military life into higher education, the designation of one or more areas on campus for veterans to congregate and discuss shared concerns, and the provision of information regarding all benefits available to them;
Whereas, Numerous issues affect the integration of the children of military personnel into the public school systems;
Whereas, There are barriers to educational success imposed on children of military families because of frequent moves and deployment of their parents;
Whereas, Barriers to educational success for children of military personnel include variances among states regarding kindergarten and first grade entrance age, course placements, educational program placements, records transfers, course sequencing and graduation requirements, to name a few;
Whereas, It is in the best interest of the state to remove the barriers to educational success for veterans and families of military personnel; therefore, be it
Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study methods to remove the barriers to educational success that veterans face in the higher education system and the transition difficulties that the children of military personnel face in the public education system; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
And,
By Delegates M. Poling, Paxton, Beach, Crosier, Ennis, Lawrence, Louisos, Moye, Pethtel, Perry, Rodigherio, Shaver, Stowers, Walker, Duke, Canterbury, Ireland, Rowan, Shott and Sumner:

H. C. R. 116 - "Requesting the Joint Committee on Government and Finance to study the need for personal leave benefits for higher education faculty."
Whereas, The Legislature desires to provide security for higher education faculty by granting paid personal leave and workload accommodation without limiting any flexibility held by faculty and administrative heads;
Whereas, Personal leave policies are not equitable across departments or institutions in higher education; and
Whereas, Economic burdens can be debilitating for faculty facing medical issues and can discourage faculty from having children, when those faculty do not have personal leave benefits; therefore, be it
Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the need for personal leave benefits for higher education faculty; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
In the absence of objection, the Speaker referred the resolutions (H. C. R. 114, H. C. R. 115, and H. C. R. 116) to the Committee on Rules.
Chairman White, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration:
S. B. 771, Making supplemental appropriation of federal funds to various accounts,
S. B. 772, Making supplemental appropriation to various accounts,
And,
S. B. 773, Making supplemental appropriation to Department of Agriculture, Land Protection Authority,
And reports the same back with the recommendation that they each do pass.
At the respective requests of Delegate Boggs, and by unanimous consent, the bills (S. B> 771, S. B. 772 and S. B. 773) were taken up for immediate consideration, read a first time and then ordered to second reading.
Messages from the Senate

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:
Com. Sub. forH. B. 2218, Authorizing the Department of Transportation to promulgate legislative rules.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page five, section two, after line fifteen, by striking out the remainder of the bill and inserting in lieu thereof the following:
On page two, following "2.25" by striking out the words "off premise";
On page two, following subsection 2.25, by inserting the following:
2.25.a. An off-premise CMS may not include moving video or scrolling messages. Off- premise CMS must comply with all requirements for off-premise signs generally.
2.25.b. An on-premise CMS may scroll or change message content, but may not contain flashing images. On-Premise CMS must comply with all requirements for on-premise signs generally.
2.25.c. No CMS sign, display or device, whether on-premise or off premise, may be illuminated by any rapid flashing intermittent light or lights.;
On page fourteen, paragraph 7.4.c.1. following the word "Division." by inserting the following:
With the prior written approval of the Commissioner of Highways, a county commission may enact and enforce outdoor advertising ordinances which place limitations or restrictions on outdoor advertising signs, displays or devices which are in addition to or more restrictive than the limitations or restrictions provided by the Commissioner of Highways.
On page eighteen, paragraph 7.8.d.2., following the word "No" by inserting the words "off- premise".
On page eighteen, paragraph 7.8.d.4., following the word "No" by inserting the words "off- premise".
On page eighteen, following "7.8.e.1.", by inserting the words "Off-premise".
On page eighteen, paragraph 7.8.e.1., following the word "No" by inserting the words "off- premise".
On page eighteen, following "7.8.e.2.", by inserting the words "Off-premise".
On page eighteen, following "7.8.e.3.", by inserting the words "Off-premise".
On page eighteen, paragraph 7.8.e.3., following the word "another" by inserting the words "off-premise".
On page nineteen, paragraph 7.8.e.4., following the words "may be modified to" by striking out the word "a" and inserting in lieu thereof the words "an off-premise".
On page nineteen, paragraph 7.8.e.4., following the word "with" by inserting the words "off- premise".
On page nineteen, paragraph 7.8.e.4., following the words "may not be modified to" by striking out the word "a", and inserting in lieu thereof the words "an off-premise".
On page nineteen, following "7.8.e.7.", by inserting the words "Off-premise".
On page nineteen, following "7.8.e.8.", by inserting the words "Off-premise".
On page nineteen, paragraph 7.8.e.8., following the word "way." by inserting the words "Off-premise".
On page nineteen, paragraph 7.8.e.9., following the word "on" by inserting the words "off- premise".
On page nineteen, paragraph 7.8.e.10., following the words "revised to" by striking out the word "a" and inserting the words "an off-premise".
On page nineteen, paragraph 7.8.e.10., following the words "become" by striking out the word "a" and inserting the words "an off-premise".
On page nineteen, paragraph 7.8.e.10., following the word "No" by inserting the words "off- premise".
On page nineteen, paragraph 7.8.e.11., following the word "No" by inserting the words "off- premise".
On page twenty, paragraph 7.9.d.8., by striking out the word "chapter" and inserting in lieu thereof the word "rule".
On page twenty, by striking out paragraph 7.9.d.9. in its entirety.
On pages twenty and twenty-one, by striking out subparagraph 7.9.d.9.A. in its entirety.
On page twenty-five, subparagraph 7.15.d.4.D, following the word "any" by inserting the word "rapid".
On page twenty-five, subparagraph 7.15.d.4.D, following the word "flashing" by striking out the words "intermittent or moving".
On page twenty-five, by striking out subparagraph 7.15.d.4.E. in its entirety and relettering the remaining subparagraphs.
On pages thirty-one and thirty-two, by striking out subdivision 9.5.h. in its entirety and inserting in lieu thereof a new subdivision, designated 9.5.h., to read as follows:
9.5.h. If an application for a roadside memorial sign is granted, the Commissioner shall so inform the applicant in writing. Upon the receipt of a non-refundable payment of two hundred dollars ($200), the Division shall procure and install the sign and shall notify the applicant in writing when the sign has been installed..
On page thirty-two, by striking out subdivision 9.5.i. in its entirety and inserting in lieu thereof a new subdivision, designated 9.5.i., to read as follows:
9.5.i. The initial payment of two hundred dollars ($200) shall compensate the Division for its review of the application, the installation of the roadside memorial sign and its maintenance for a period of three years from the date of installation. The applicant may make a second, optional payment of two hundred dollars ($200) to extend the display and maintenance of the sign for one additional three-year period The Division will repair or replace the sign at its election, once during each three year period if damaged or destroyed. At the end of the initial or renewal period, whichever come later, the sign will be removed and offered to the applicant(s).
And,
On page thirty-two, by striking out subdivision 9.5.j. in its entirety and inserting in lieu thereof a new subdivision, designated 9.5.j., to read as follows:
9.5.j. If at any time during the application and fabrication process another member of the victim's immediate family objects to the sign, the process shall be halted and the application, the two hundred dollar ($200) fee, and the related documentation shall be returned to the applicant.  If the sign has been installed, the Division shall remove it and furnish it to the applicant, and the Division shall retain the two hundred dollar ($200) fee.
On motion of Delegate Boggs, the House 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. 2621, Prohibiting the use of cell phone and text-messaging devices while operating a motor vehicle except when using a hands-free device or in the case of an emergency.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page six, after section fifteen, by adding the following:
"ARTICLE 6. LOCAL EMERGENCY TELEPHONE SYSTEM.
§24-6-6b. Wireless enhanced 911 fee.

(a) All CMRS providers as defined in section two of this article shall, on a monthly basis or otherwise for good cause and as directed by order of the Public Service Commission, collect from each of their in-state two-way service subscribers a wireless enhanced 911 fee. As used in this section "in-state two-way service subscriber" shall have the same meaning as that set forth in the rules of the Public Service Commission. No later than June 1, 2006, the Public Service Commission shall, after the receipt of comments and the consideration of evidence presented at a hearing, issue an updated order which directs the CMRS providers regarding all relevant details of wireless enhanced 911 fee collection, including the determination of who is considered an in-state two-way service subscriber and which shall specify how the CMRS providers shall deal with fee collection shortfalls caused by uncollectible accounts. The Public Service Commission shall solicit the views of the wireless telecommunications utilities prior to issuing the order.
(b) The wireless enhanced 911 fee is $3 per month for each valid retail commercial mobile radio service subscription, as that term is defined by the Public Service Commission in its order issued under subsection (a) of this section. Provided, That Beginning July 1, 2005, the wireless enhanced 911 fee shall include ten cents to be distributed to the West Virginia State Police to be used for equipment upgrades for improving and integrating their communication efforts with those of the enhanced 911 systems. Provided, however, That For the fiscal year beginning July 1, 2005, and for every fiscal year thereafter until June 30, 2009, $1 million of the wireless enhanced 911 fee shall be distributed by the Public Service Commission to subsidize the construction of towers. For the fiscal year beginning July 1, 2009, and for every fiscal year thereafter, $2 million of the wireless enhanced 911 fee shall be distributed by the Public Service Commission to subsidize the construction of towers. The moneys shall be deposited in a fund administered by the West Virginia Public Service Commission, entitled Enhanced 911 Wireless Tower Access Assistance Fund, and shall be expended in accordance with an enhanced 911 wireless tower access matching grant order adopted by the Public Service Commission. The commission order shall contain terms and conditions designed to provide financial assistance loans or grants to state agencies, political subdivisions of the state and wireless telephone carriers for the acquisition, equipping and construction of new wireless towers, which would provide enhanced 911 service coverage and which would not be available otherwise due to marginal financial viability of the applicable tower coverage area. Provided further, That The grants shall be allocated among potential sites based on application from county commissions demonstrating the need for enhanced 911 wireless coverage in specific areas of this state. A grant application from a county commission to the Public Service Commission shall contain a copy, available for public inspection, of all relevant written agreements between the county commission and a wireless telephone carrier, including a required written agreement on the rate of the rental fees to be charged by the county commission to the wireless telephone carrier for its use of a wireless tower subsidized to any extent under this section. Any tower constructed with assistance from the fund created by this subdivision shall be available for use by emergency services, fire departments and law-enforcement agencies communication equipment, so long as that use does not interfere with the carrier's wireless signal. And provided further, That The Public Service Commission shall promulgate rules in accordance with article three, chapter twenty-nine-a of this code to effectuate the provisions of this subsection. The Public Service Commission is specifically authorized to promulgate emergency rules. And provided further, That For the fiscal year beginning July 1, 2006, and for every fiscal year thereafter, five percent of the wireless enhanced 911 fee money received by the Public Service Commission shall be deposited in a special fund established by the Division of Homeland Security and Emergency Management to be used solely for the construction, maintenance and upgrades of the West Virginia Interoperable Radio Project and any other costs associated with establishing and maintaining the infrastructure of the system. Any funds remaining in this fund at the end of the fiscal year shall automatically be reappropriated for the following year.
(c) Beginning in the year 1997, and every two years thereafter, the Public Service Commission shall conduct an audit of the wireless enhanced 911 fee and shall recalculate the fee so that it is the weighted average rounded to the nearest penny, as of the first day of March of the respecification year, of all of the enhanced 911 fees imposed by the counties which have adopted an enhanced 911 ordinance: Provided, That the wireless enhanced 911 fee may never be increased by more than twenty-five percent of its value at the beginning of the respecification year: Provided, however, That the fee may never be less than the amount set in subsection (b) of this section. Provided further, That Beginning July 1, 2005, the wireless enhanced 911 fee shall include ten cents to be distributed to the West Virginia State Police to be used for equipment upgrades for improving and integrating their communication efforts with those of the enhanced 911 systems: And Provided further, That beginning July 1, 2005, and for every fiscal year thereafter until June 30, 2009, $1 million of the wireless enhanced 911 fee shall be distributed by the Public Service Commission to subsidize the construction of wireless towers as specified in said subsection (b) of this section. Beginning July 1, 2009, and for every fiscal year thereafter, $2 million of the wireless enhanced 911 fee shall be distributed by the Public Service Commission to subsidize the construction of wireless towers as specified in subsection (b) of this section.
(d) The CMRS providers shall, after retaining a three-percent billing fee, send the wireless enhanced 911 fee moneys collected, on a monthly basis, to the Public Service Commission. The Public Service Commission shall, on a quarterly and approximately evenly staggered basis, disburse the fee revenue in the following manner:
(1) Each county that does not have a 911 ordinance in effect as of the original effective date of this section in the year 1997 or has enacted a 911 ordinance within the five years prior to the original effective date of this section in the year 1997 shall receive eight and one-half tenths of one percent of the fee revenues received by the Public Service Commission: Provided, That after the effective date of this section, in the year 2005, when two or more counties consolidate into one county to provide government services, the consolidated county shall receive one percent of the fee revenues received by the Public Service Commission for itself and for each county merged into the consolidated county. Each county shall receive eight and one-half tenths of one percent of the remainder of the fee revenues received by the Public Service Commission: Provided, however, That after the effective date of this section, in the year 2005, when two or more counties consolidate into one county to provide government services, the consolidated county shall receive one percent of the fee revenues received by the Public Service Commission for itself and for each county merged into the consolidated county. Then, from any moneys remaining, each county shall receive a pro rata portion of that remainder based on that county's population as determined in the most recent decennial census as a percentage of the state total population. The Public Service Commission shall recalculate the county disbursement percentages on a yearly basis, with the changes effective July 1, and using data as of the preceding March 1. The public utilities which normally provide local exchange telecommunications service by means of lines, wires, cables, optical fibers or by other means extended to subscriber premises shall supply the data to the Public Service Commission on a county specific basis no later than June 1 of each year;
(2) Counties which have an enhanced 911 ordinance in effect shall receive their share of the wireless enhanced 911 fee revenue for use in the same manner as the enhanced 911 fee revenues received by those counties pursuant to their enhanced 911 ordinances;
(3) The Public Service Commission shall deposit the wireless enhanced 911 fee revenue for each county which does not have an enhanced 911 ordinance in effect into an escrow account which it has established for that county. Any county with an escrow account may, immediately upon adopting an enhanced 911 ordinance, receive the moneys which have accumulated in the escrow account for use as specified in subdivision (2) of this subsection. Provided, That A county that adopts a 911 ordinance after the original effective date of this section in the year 1997 or has adopted a 911 ordinance within five years of the original effective date of this section in the year 1997 shall continue to receive one percent of the total 911 fee revenue for a period of five years following the adoption of the ordinance. Thereafter, each county shall receive that county's eight and one-half tenths of one percent of the remaining fee revenue, plus that county's additional pro rata portion of the fee revenues then remaining, based on that county's population as determined in the most recent decennial census as a percentage of the state total population: Provided, however, That every five years from the year 1997, all fee revenue residing in escrow accounts shall be disbursed on the pro rata basis specified in subdivision (1) of this subsection, except that data for counties without enhanced 911 ordinances in effect shall be omitted from the calculation and all escrow accounts shall begin again with a zero balance.
(e) CMRS providers have the same rights and responsibilities as other telephone service suppliers in dealing with the failure by a subscriber of a CMRS provider to timely pay the wireless enhanced 911 fee.
(f) Notwithstanding the provisions of section one-a of this article, for the purposes of this section, the term 'county' means one of the counties provided in section one, article one, chapter one of this code.
(g) From any funds distributed to a county pursuant to this section, a total of three percent shall be set aside in a special fund to be used exclusively for the purchase of equipment that will provide information regarding the x and y coordinates of persons who call an emergency telephone system through a commercial mobile radio service. Provided, That Upon purchase of the necessary equipment, the special fund shall be dissolved and any surplus shall be used for general operation of the emergency telephone system as may otherwise be provided by law.
(h) Notwithstanding anything to the contrary in this code, beginning July 1, 2008, prepaid wireless calling service is no longer subject to the wireless enhanced 911 fee.
(i) For purposes of this section, 'tower' or 'wireless tower' means a wireless communication tower, together with any related equipment necessary to provide, establish or enhance wireless communication services."
On page one, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §17C-14-15; and that §24-6-6b of said code be amended and reenacted, all to read as follows:"
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2621 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-14-15; and to amend and reenact §24-6-6b of said code, all relating to wireless cell phone use and wireless cell phone tower funding, establishing the offense of unlawful use of a wireless communication device while operating a motor vehicle on a street or highway; providing exceptions and conditions for certain lawful uses; definitions; misdemeanor criminal penalties; limitation of enforcement; increasing the amount allocated from the wireless enhanced 911 fee to be deposited into the Enhanced 911 Wireless Tower Access Assistance Fund and distributed by the Public Service Commission to subsidize the construction of Wireless towers; and providing definitions."

On motion of Delegate Boggs, the House 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. 2695, Providing criminal penalties for a hunter who fails to render aid to a person the hunter shoots while hunting.
On motion of Delegate DeLong, 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 §20-2-27, §20-2-28 and §20-2-57 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and to amend said code by adding thereto three new sections, designated §20-2-42x, §20-2-57a and §20-2-57b, all to read as follows:
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-27. Necessity for license.

Except as otherwise provided by law, no resident who has reached his or her fifteenth birthday and who has not reached his or her sixty-fifth birthday before January 1, 2010, and no nonresident shall at any time take, hunt, pursue, trap for, kill or chase any wild animals, wild birds, or fish for, take, kill or catch any fish, amphibians or aquatic life of any kind whatsoever in this state without first having secured a license or permit and then only during the respective open seasons, except that a nonresident who has not reached his or her fifteenth birthday may fish for, take, kill or catch any fish, amphibians or aquatic life of any kind whatsoever in this state without first having secured a license or permit. No A person under the age of fifteen years shall not hunt or chase any wild animals or wild birds upon lands of another unless accompanied by a licensed adult.
A resident or nonresident member of any club, organization or association or persons owning or leasing a game preserve or fish preserve, plant or pond in this state shall not hunt or fish therein without first securing a license or permit as required by law: Provided, however, That resident landowners or their resident children, or bona fide resident tenants of such land, may, without a permit or license, hunt and fish on their own land during open seasons in accordance with laws and regulations rules applying to such hunting and fishing unless such the lands have been designated as a wildlife refuge or preserve.
Licenses and permits shall be of the kinds and classes set forth in this article and shall be conditioned upon the payment of the fees established therefor for the licenses and permits.
§20-2-28. When licenses or permits not required.
Persons in the following categories shall are not be required to obtain licenses or permits as indicated:
(a) Bona fide resident landowners or their resident children, or resident parents, or bona fide resident tenants of such the land may hunt, trap or fish on their own land during open season in accordance with the laws and regulations rules applying to such the hunting, trapping and fishing without obtaining a license, to do so unless such the lands have been designated as a wildlife refuge or preserve.
(b) Any bona fide resident of this state who is totally blind may fish in this state without obtaining a fishing license. to do so A written statement or certificate from a duly licensed physician of this state showing the resident to be totally blind shall serve in lieu of a fishing license and shall be carried on the person of the resident at all times while he or she is fishing in this state.
(c) All residents of West Virginia on active duty in the armed forces of the United States of America, while on leave or furlough, shall have the right and privilege to may hunt, trap or fish in season in West Virginia without obtaining a license. to do so Leave or furlough papers shall serve in lieu of any such license and shall be carried on the person at all times while trapping, hunting or fishing.
(d) In accordance with the provisions of section twenty-seven of this article, any resident sixty-five years of age or older before January 1, 2010, is not required to have a license to hunt, trap or fish during the legal seasons in West Virginia, but in lieu of such the license any such the person shall at all times while hunting, trapping or fishing carry on his or her person a valid West Virginia driver's license or nondriver identification card issued by the Division of Motor Vehicles.
(e) Residents of the state of Maryland who carry hunting or fishing licenses valid in that state may hunt or fish from the West Virginia banks of the Potomac River without obtaining licenses, to do so but the hunting or fishing shall be confined to the fish and waterfowl of the river proper and not on its tributaries: Provided, That the state of Maryland shall first enter into a reciprocal agreement with the director extending a like privilege of hunting and fishing on the Potomac River from the Maryland banks of said the river to licensed residents of West Virginia without requiring said the residents to obtain Maryland hunting and fishing licenses.
(f) Residents of the state of Ohio who carry hunting or fishing licenses valid in that state may hunt or fish on the Ohio River or from the West Virginia banks of the river without obtaining licenses, to do so but the hunting or fishing shall be confined to fish and waterfowl of the river proper and to points on West Virginia tributaries and embayments identified by the director: Provided, That the state of Ohio shall first enter into a reciprocal agreement with the director extending a like privilege of hunting and fishing from the Ohio banks of the river to licensed residents of West Virginia without requiring the residents to obtain Ohio hunting and fishing licenses.
(g) Any resident of West Virginia who was honorably discharged from the armed forces of the United States of America and who receives a veteran's pension based on total permanent service-connected disability as certified to by the Veterans Administration shall be permitted to may hunt, trap or fish in this state without obtaining a license. therefor The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code setting forth the procedure for the certification of the veteran, manner of applying for and receiving the certification and requirements as to identification while said the veteran is hunting, trapping or fishing.
(h) Any disabled veteran who is a resident of West Virginia and who, as certified to by the Commissioner of Motor Vehicles, is eligible to be exempt from the payment of any fee on account of registration of any motor vehicle owned by such the disabled veteran as provided in section eight, article ten, chapter seventeen-a of this code shall be permitted to hunt, trap or fish in this state without obtaining a license. therefor The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code setting forth the procedure for the certification of the disabled veteran, manner of applying for and receiving the certification and requirements as to identification while the disabled veteran is hunting, trapping or fishing.
(i) Any resident or inpatient in any state mental health, health or benevolent institution or facility may fish in this state, under proper supervision of the institution involved, without obtaining a fishing license. to do so A written statement or certificate signed by the superintendent of the mental health, health or benevolent institution or facility in which the resident or inpatient, as the case may be, is institutionalized shall serve in lieu of a fishing license and shall be carried on the person of the resident or inpatient at all times while he or she is fishing in this state.
(j) Any resident who is developmentally disabled, as certified by a physician and the Director of the Division of Health, may fish in this state without obtaining a fishing license. to do so As used in this section, "developmentally disabled" means a person with a severe, chronic disability which:
(1) Is attributable to a mental or physical impairment or a combination of mental and physical impairments;
(2) Is manifested before the person attains age twenty-two; (3) Results in substantial functional limitations in three or more of the following areas of major life activity: (A) Self-care; (B) receptive and expressive language; (C) learning; (D) mobility; (E) self-direction; (F) capacity for independent living; and (G) economic self-sufficiency; and
(4) Reflects the person's need for a combination and sequence of care, treatment or supportive services which are of lifelong or extended duration and are individually planned and coordinated.
(k) A student eighteen years of age or younger receiving instruction in fly fishing in a public, private, parochial or Christian school in this state may fly fish in the state for catch and release only without obtaining a fishing license to do so while under the supervision of an instructor authorized by the school.
§20-2-42x. Class XS resident senior hunting, fishing and trapping license.

A Class XS license is a resident senior hunting, fishing and trapping license and entitles the licensee to hunt and trap for all legal species of wild animals and wild birds, to fish for all legal species of fish and to take frogs in all counties of the state, except as prohibited by the rules of the director or Natural Resources Commission and when additional licenses, stamps or permits are required. No additional fees shall be required of Class XS licensees for a Class CS stamp or a Class O stamp. The Class XS license shall be issued only to residents or aliens lawfully residing in the United States who have been domiciled residents of West Virginia for a period of thirty consecutive days or more immediately prior to the date of their application for a license and who reach sixty-five years of age on or after January 1, 2010. The fee for the Class XS license shall be $15. Once issued, the Class XS license shall remain valid for the lifetime of the purchaser without payment of additional fees for the privileges associated with the Class X license, Class CS stamp and the Class O stamp. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.
§20-2-57. Negligent shooting, wounding or killing of livestock while hunting; criminal penalties.

It is unlawful for any person, while engaged in hunting, pursuing, taking or killing wild animals or wild birds, to carelessly or negligently shoot, wound or kill livestock, or to destroy or injure any other chattels or property.
Any person who, in the act of hunting, pursuing, taking or killing of wild animals or wild birds, in any manner injures any person or property shall file with the director a full description of the accident or other casualty, including such information as the director may require. Such report must be filed during a period not to exceed seventy-two hours following such incident.
Any person violating this section subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $10,000 not more than $1,000, or imprisoned in the county confined in jail not more than one year ninety days, or both fined and imprisoned confined. Restitution of the value of the livestock, chattel or property injured, damaged or destroyed shall be required upon conviction.
§20-2-57a. Negligent or reckless shooting, wounding or killing of another person while hunting; duty to render reasonable assistance; suspension of hunting and fishing license; criminal penalties.

(a) It is unlawful for any person, while engaged in the act of hunting, pursuing, taking or killing wild animals or wild birds, to negligently shoot, wound, injure or kill another person.
(b) Any person who negligently shoots, wounds, injures or kills another person while hunting with a firearm, bow and arrow, or other hunting weapon is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for not more than six months, or both fined and confined.
(c) Any person who recklessly or due to gross negligence shoots, wounds, injures or kills another person while hunting with a firearm, bow and arrow, or other hunting weapon is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $2,500 or confined in jail for not more than one year, or both fined and confined.
(d)(1) Any person who shoots, wounds or injures another person while hunting with a firearm, bow and arrow, or other hunting weapon and knowingly refuses or fails to render reasonable assistance to the injured person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $2,500 and confined in jail for not less than thirty days nor more than one year.
(2) As used in this section, "reasonable assistance" means aid appropriate to the circumstances, including, but not limited to, obtaining immediate assistance from a law enforcement officer, 911 dispatcher, emergency medical provider or other medical personnel.
(e) Any person who shoots, wounds or injures another person while hunting with a firearm, bow and arrow, or other hunting weapon and knowingly refuses or fails to render reasonable assistance to the injured person who has sustained a serious bodily injury or dies as a result of his or her injuries is guilty of a felony and, upon conviction thereof, shall be fined not less than $750 nor more than $5,000 and imprisoned in a state correctional facility for not less than one year nor more than five years.
(f) Persons found guilty of committing a misdemeanor under this section shall have their hunting and fishing licenses suspended for a period of five years from the date of conviction or the date of release from confinement, whichever is later.
(g) Persons found guilty of committing a felony offense under this section shall have their hunting and fishing licenses suspended for a period of ten years from the date of conviction or the date of release from incarceration, whichever is later.
§20-2-57b. Prohibition and offense of hunting while intoxicated; offense of shooting another person when hunting while intoxicated; suspension of hunting and fishing license; criminal penalties.

(a) It is unlawful for any person to hunt, pursue, take or kill wild animals or wild birds while:
(1) Under the influence of alcohol;
(2) Under the influence of any controlled substance;
(3) Under the influence of any other drug;
(4) Under the combined influence of alcohol and any controlled substance or any other drug; or
(5) Having an alcohol concentration in his or her blood of eight hundredths of one percent or more by weight.
(b) Any person violating subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not less than thirty days nor more than one hundred days, or both fined and confined.
(c) It is unlawful for any person to shoot, wound or injure another person while hunting with a firearm, bow and arrow, or other hunting weapon while:
(1) Under the influence of alcohol;
(2) Under the influence of any controlled substance;
(3) Under the influence of any other drug;
(4) Under the combined influence of alcohol and any controlled substance or any other drug; or
(5) Having an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight.
(d) Any person violating subsection (c) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,500 or confined in jail for not less than two months nor more than one year, or both fined and confined.
(e) It is unlawful for any person to kill another person while hunting with a firearm, bow and arrow, or other hunting weapon while:
(1) Under the influence of alcohol;
(2) Under the influence of any controlled substance;
(3) Under the influence of any other drug;
(4) Under the combined influence of alcohol and any controlled substance or any other drug; or
(5) Having an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight.
(f) Any person violating subsection (e) of this section is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 or imprisoned in a state correctional facility for not less than one year nor more than three years, or both fined and imprisoned.
(e) Persons found guilty of committing an offense under this section shall have their hunting and fishing licenses suspended for a period of five years from the date of conviction or the date of release from incarceration, whichever is later.
(f) Persons found guilty of committing a felony offense under this section shall have their hunting and fishing licenses suspended for a period of ten years from the date of conviction or the date of release from incarceration, whichever is later.
(g) Any person who shoots, wounds, injures or kills another person while hunting with a firearm, bow and arrow, or other hunting weapon while intoxicated in violation of this section has the same duty and obligation to render reasonable assistance to the injured person as is set forth in section fifty-seven-a of this article, and is subject to the additional penalties set forth therein for knowingly refusing or failing to render reasonable assistance."
And, by amending the title of the bill to read as follows:
Com. Sub. for H. B. 2695 - "A Bill to amend and reenact §20-2-27, §20-2-28 and §20-2-57 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto three new sections, designated §20-2-42x, §20-2-57a and 20-2-57b, all relating to hunting and wildlife resources generally; establishing the senior resident lifetime hunting, fishing and trapping license and fee of $15; allowing persons who are sixty-five years of age before January 1, 2010, to remain exempt from the purchase of the license; amending crimes and penalties for negligent shooting of animals and damage to property by a person while hunting; amending crimes and penalties for negligent or reckless shooting, wounding, injuring or killing of another person while hunting; creating misdemeanor and felony offenses for a person who knowingly refuses or fails to render reasonable assistance to the injured person; defining reasonable assistance; prohibiting hunting while intoxicated; creating misdemeanor offense of hunting while intoxicated; creating misdemeanor and felony offenses for shooting, wounding or killing another person while hunting under the influence of alcohol, controlled substances or drugs; providing for the suspension of hunting and fishing license for misdemeanor and felony violations; and criminal and civil penalties."
On motion of Delegate Boggs, the House 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.
Special Calendar

Second Reading

Com. Sub. for S. B. 99, Sentencing discretion for certain youthful offenders; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 246, Relating to unemployment compensation generally; on second reading, coming up in regular order, was read a second time.
At the request of Delegate Boggs, and by unanimous consent, the bill (Com. Sub. for S. B. 246) was advanced to third reading with an amendment pending.
Com. Sub. for S. B. 249
, Relating to annual school calendar; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking the remainder of the bill and inserting in lieu thereof the following:
"That §18-5-45 and §18-5A-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-45. School calendar.

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

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

(a) There is established at every public school in this state a faculty senate which is comprised of all permanent, full-time professional educators employed at the school who shall all be voting members. Professional educators, as used in this section, means professional educators as defined in chapter eighteen-a of this code. A quorum of more than one half of the voting members of the faculty shall be present at any meeting of the faculty senate at which official business is conducted. Prior to the beginning of the instructional term each year, but within the employment term, the principal shall convene a meeting of the faculty senate to elect a chair, vice chair and secretary and discuss matters relevant to the beginning of the school year. The vice chair shall preside at meetings when the chair is absent. Meetings of the faculty senate shall be held during the times provided in accordance with subdivision (12), subsection (b) of this section as determined by the faculty senate. Emergency meetings may be held during noninstructional time at the call of the chair or a majority of the voting members by petition submitted to the chair and vice chair. An agenda of matters to be considered at a scheduled meeting of the faculty senate shall be available to the members at least two employment days prior to the meeting. For emergency meetings the agenda shall be available as soon as possible prior to the meeting. The chair of the faculty senate may appoint such any committees as may be desirable necessary to study and submit recommendations to the full faculty senate, but the acts of the faculty senate shall be voted upon by the full body.
(b) In addition to any other powers and duties conferred by law, or authorized by policies adopted by the state or county board of education or bylaws which may be adopted by the faculty senate not inconsistent with law, the powers and duties listed in this subsection are specifically reserved for the faculty senate. The intent of these provisions is neither to restrict nor to require the activities of every faculty senate to the enumerated items except as otherwise stated. Each faculty senate shall organize its activities as it deems determines most effective and efficient based on school size, departmental structure and other relevant factors.
(1) Each faculty senate shall control funds allocated to the school from legislative appropriations pursuant to section nine, article nine-a of this chapter. From such those funds, each classroom teacher and librarian shall be allotted fifty dollars at least $100 for expenditure during the instructional year for academic materials, supplies or equipment which, in the judgment of the teacher or librarian, will assist him or her in providing instruction in his or her assigned academic subjects or shall be returned to the faculty senate: Provided, That nothing contained herein in this subdivision prohibits the funds from being used for programs and materials that, in the opinion of the teacher, enhance student behavior, increase academic achievement, improve self-esteem and address the problems of students at-risk. The remainder of funds shall be expended for academic materials, supplies or equipment in accordance with a budget approved by the faculty senate. Notwithstanding any other provisions of the law to the contrary, funds not expended in one school year are available for expenditure in the next school year: Provided, however, That the amount of county funds budgeted in a fiscal year may not be reduced throughout the year as a result of the faculty appropriations in the same fiscal year for such the materials, supplies and equipment. Accounts shall be maintained of the allocations and expenditures of such the funds for the purpose of financial audit. Academic materials, supplies or equipment shall be interpreted broadly, but does not include materials, supplies or equipment which will be used in or connected with interscholastic athletic events.
(2) A faculty senate may establish a process for faculty members to interview new prospective professional educators and paraprofessional employees at the school and submit recommendations regarding employment to the principal, who also may also make independent recommendations, for submission to the county superintendent: Provided, That such the process shall be chaired by the school principal and must permit the timely employment of persons to perform necessary duties.
(3) A faculty senate may nominate teachers for recognition as outstanding teachers under state and local teacher recognition programs and other personnel at the school, including parents, for recognition under other appropriate recognition programs and may establish such appropriate recognition programs for operation at the school.
(4) A faculty senate may submit recommendations to the principal regarding the assignment scheduling of secretaries, clerks, aides and paraprofessionals at the school.
(5) A faculty senate may submit recommendations to the principal regarding establishment of the master curriculum schedule for the next ensuing school year.
(6) A faculty senate may establish a process for the review and comment on sabbatical leave requests submitted by employees at the school pursuant to section eleven, article two of this chapter.
(7) Each faculty senate shall elect three faculty representatives to the local school improvement council established pursuant to section two of this article.
(8) Each faculty senate may nominate a member for election to the county staff development council pursuant to section eight, article three, chapter eighteen-a of this code.
(9) Each faculty senate shall have an opportunity to make recommendations on the selection of faculty to serve as mentors for beginning teachers under beginning teacher internship programs at the school.
(10) A faculty senate may solicit, accept and expend any grants, gifts, bequests, donations and any other funds made available to the faculty senate: Provided, That the faculty senate shall select a member who has the duty of maintaining a record of all funds received and expended by the faculty senate. which The record shall be kept in the school office and is subject to normal auditing procedures.
(11) Any faculty senate may review the evaluation procedure as conducted in their its school to ascertain whether the evaluations were conducted in accordance with the written system required pursuant to section twelve, article, two, chapter eighteen-a of this code and the general intent of this Legislature regarding meaningful performance evaluations of school personnel. If a majority of members of the faculty senate determine that such the evaluations were not so conducted, they shall submit a report in writing to the State Board: of Education Provided, That nothing herein in this subdivision creates any new right of access to or review of any individual's evaluations.
(12) A local board shall provide to each faculty senate a two-hour block of time for a faculty senate meeting on a day scheduled for the opening of school prior to the beginning of the instructional term, and a two-hour block of time on each instructional support and enhancement day scheduled by the board for instructional activities for students and professional activities for teachers pursuant to section forty-five, article five of this chapter. A faculty senate may meet for an unlimited block of time per month during noninstructional days to discuss and plan strategies to improve student instruction and to conduct other faculty senate business. A faculty senate meeting scheduled on a noninstructional day shall be considered as part of the purpose for which the noninstructional day is scheduled. This time may be utilized used and determined at the local school level and includes, but is not limited to, faculty senate meetings.
(13) Each faculty senate shall develop a strategic plan to manage the integration of special needs students into the regular classroom at their respective schools and submit the strategic plan to the superintendent of the county board of education periodically pursuant to guidelines developed by the State Department of Education. Each faculty senate shall encourage the participation of local school improvement councils, parents and the community at large in developing the strategic plan for each school.
Each strategic plan developed by the faculty senate shall include at least: (A) A mission statement; (B) goals; (C) needs; (D) objectives and activities to implement plans relating to each goal; (E) work in progress to implement the strategic plan; (F) guidelines for placing additional staff into integrated classrooms to meet the needs of exceptional needs students without diminishing the services rendered to the other students in integrated classrooms; (G) guidelines for implementation of collaborative planning and instruction; and (H) training for all regular classroom teachers who serve students with exceptional needs in integrated classrooms."
Delegate Boggs moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
Delegate Boggs moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 368), and there were--yeas 83, nays 17, absent and not voting none, with the nays being as follows:
Nays: Andes, Armstead, Blair, Border, Canterbury, Carmichael, Duke, Ellem, Lane, Miller, J, Overington, Porter, Schoen, Shott, Sobonya, Sumner and Walters.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 369), and there were - yeas 99, nays 1, absent and not voting none, with the nays being as follows:
Nays: Cowles.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. For S. B. 249) 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:
Com. Sub. for S. B. 249 - "A Bill to amend and reenact §18-5-45 of the Code of West Virginia, 1931, as amended, relating to the annual school calendar; making additional findings; providing forty-three week 'window' for employment term; adding additional specificity to types of meetings and participants on instructional support and enhancement days; providing noninstructional days for opening school are prior to the first day of instructional term rather than certain date, allowing additional days to be scheduled and reserving at least one day for classroom preparation by teacher; consolidating provisions applicable to accrued instructional time and allowing use for full days but not to avoid scheduling one hundred eighty days; providing for reporting days of accrued instructional time along with separate days; specifying accounting of accrued instructional time at schools with certain different grade levels and for county-wide use; providing for rescheduling of non instructional time on or after February 1, if one hundred eighty separate days as scheduled are not possible; exceptions; providing for additional lengthening of school day on or after February 1, to make up for lost instructional time and avoid rescheduling professional development under certain condition; providing for effect of 2009 amendment beginning 2010-11 school year; increasing the minimum allotment to classroom teachers and librarians of faculty senate funds; and making various technical and preferred language changes.

Delegate Boggs moved that the bill take effect July 1, 2009.
On this question, the yeas and nays were taken (Roll No. 370), and there were - yeas98, nay 1, absent and not voting 1, with the nays being as follows:
Nays: McGeehan.
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. 249) takes effect July 1, 2009.
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. 258, Clarifying local fiscal bodies cannot be held liable for certain deficits; on second reading, coming up in regular order, was read a second time
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 8. LEVIES.
§11-8-26. Unlawful expenditures by local fiscal body.
(a) Except as provided in sections fourteen-b, twenty-five-a and twenty-six-a of this article, a local fiscal body shall not expend money or incur obligations:
(1) In an unauthorized manner;
(2) For an unauthorized purpose;
(3) In excess of the amount allocated to the fund in the levy order; or
(4) In excess of the funds available for current expenses.
(b) Notwithstanding the foregoing and any other provision of law to the contrary, a local fiscal body or its duly authorized officials shall may not be penalized for a casual deficit which does not exceed its approved levy estimate by more than three percent: Provided, That such casual deficit be is satisfied in the levy estimate for the succeeding fiscal year: Provided, however, That in calculating a deficit for purposes of this section, account shall not be taken of any amount for which the local fiscal body may be liable for the unfunded actuarial accrued liability of the West Virginia Retiree Health Benefit Trust Fund or any amount allocated to the local fiscal body as an employer annual required contribution that exceeds the minimum annual employer payment component of the contribution, all as provided under article sixteen-d, chapter five of this code."
The bill was then ordered to third reading.
Com. Sub. for S. B. 279, Relating to industrial accidents and emergency response regulations; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page five, section three-a, line fifty, following the words "promulgation of a", by inserting the word "legislative".
On page eight, section three-a, line one hundred eighteen, immediately after the word "safe" by inserting the following: "Provided further, That within thirty minutes of obtaining information that affects the public health, safety and welfare, state and local officials shall notify the public of any hazardous materials or events which may affect the area", followed by a period.
And,
On page nine, section three-a, line one hundred fifty-one, immediately following the end of the sentence, by inserting a new subdivision four, to read as follows: "(4) All moneys collected pursuant to this section shall be deposited in the Hazardous Waste Emergency Response Fund, as established pursuant to section three, article nineteen, chapter twenty-two of this code."
Delegate Boggs moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 371), and there were--yeas 76, nays 23, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Blair, Border, Carmichael, Cowles, Duke, Ellem, Ireland, Lane, McGeehan, Miller, C, Miller, J, Overington, Porter, Romine, Rowan, Schoen, Shott, Sobonya, Sumner and Walters.
Absent and Not Voting: Beach.
So, four fifths of the members present not having voted in the affirmative, the constitutional rule was not dispensed with.
The bill was then ordered to third reading.
Com. Sub. for S. B. 280, Creating Correctional Industries Act of 2009; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance was reported by the Clerk and adopted, amending the bill on page three, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 7. CORRECTIONAL INDUSTRIES ACT OF 2009.
§25-7-1. Legislative findings.

The Legislature finds that the means now provided for the use of inmate labor are inadequate to furnish a sufficient number of inmates with employment. It is the intent of this article:
(a) To provide more adequate, regular and suitable employment for the inmates and confined juvenile or youthful offenders of this state;
(b) To use the labor of inmates and confined juvenile or youthful offenders for self-maintenance and to reimburse this state for expenses incurred by reason of their crimes and confinement;
(c) To provide for the requisition and distribution of correctional industries articles and products directly through established state authorities, with no possibility of private profit except for those specific articles and products manufactured and sold pursuant to 18 U. S. C. §1761(c), the Prison Industry Enhancement (PIE) Certification Program, and pursuant to sections thirteen, fourteen, fifteen and sixteen of this article; and
(d) To provide for correctional industries to be profitable in view of the fact that it is a self- sufficient authority.
§25-7-2. Citation of article.
This article may be cited as the Correctional Industries Act of 2009.
§25-7-3. Establishment of industries at correctional facilities; purposes and extent.
The Commissioner of the Division of Corrections or the commissioner's designee has exclusive authority to execute contracts for the sale of products manufactured or serviced at state correctional facilities, as necessary to carry out the provisions of this article. The commissioner or designee is authorized to purchase equipment, raw materials and supplies and to employ necessary supervisory personnel to establish and maintain, at state correctional facilities and institutions under the commissioner's control, industries which use the services of inmates to manufacture and produce articles and products for use by any office, department, institution or agency supported in whole or in part by this state or its political subdivisions.
§25-7-4. Correctional industries service contracts.
(a) The commissioner may enter into contracts with private entities under which inmate or resident labor is provided through correctional industries for work involving the delivery of products or for service work. Service work means work which includes but is not limited to repairs, replacement of original manufactured items, packaging, sorting, recycling, labeling or similar work that is not original equipment manufacturing. The use of inmate or resident labor may not result in the displacement of civilian workers employed in the local region where the work is performed. The division may negotiate the wage for inmate or resident labor under correctional industries contracts, and, except as provided in sections thirteen, fourteen, fifteen and sixteen of this article, the wage may be less than the prevailing wage for work of a similar nature in the private sector.
(b) The Division of Corrections, in cooperation with the Department of Commerce, shall develop and maintain a marketing plan encouraging private sector businesses to employ inmates through the correctional industries program.
§25-7-5. Purchase of inmate-made goods by state agencies.
(a) On and after the effective date of this article, all offices, departments, institutions and agencies of this state supported in whole or in part by state funds shall purchase all articles or products which they require from the commissioner, if those articles or products are produced or manufactured by correctional industries, as provided by this article. No state office, department, institution or agency may purchase an article or product which correctional industries produces from any other source, unless specifically excepted from the provisions of this section pursuant to section six of this article.
(b) Purchases of correctional industries articles or products by state offices, departments, institutions and agencies shall be made on requisition by the office, department, institution or agency requiring the articles or products.
(c) Political subdivisions, not-for-profit corporations and charitable agencies chartered in West Virginia, units of the federal government and units of government of other states may purchase articles and products produced by correctional industries. Entities which contract with the state, its political subdivisions, its agencies or its public institutions may purchase from correctional industries articles and products used in the performance of their contracts.
§25-7-6. Exceptions to mandatory purchase requirement.
Exceptions from the mandatory purchase provisions of section five of this article may be granted when a correctional industries article or product does not meet the reasonable requirements of the requesting state office, department, institution or agency, or when the requisition cannot be fulfilled because of insufficient supply or other reason. No state office, department, institution or agency may evade the requirements of section five of this article, or of this section, making insubstantial variations from the characteristics of correctional industries products or articles.
§25-7-7. Catalogues and a website of articles and products made and produced.
The commissioner shall arrange for the creation and updating of catalogues and a website containing descriptions of the correctional industries articles and products manufactured or produced pursuant to the provisions of this article. The commissioner shall make copies of the catalogue and the web site address available to entities eligible to acquire correctional industries articles and products.§25-7-8. Commissioner to determine prices.
The commissioner or the commissioner's designee shall determine the prices of correctional industries articles and products. The prices shall be uniform for all and as near as is practicable to the fair market price.
§25-7-9. Annual statements by the commissioner.
At the close of each fiscal year, the commissioner shall prepare a financial report on the financial condition of the correctional industries operation, in accordance with generally accepted accounting principles. Within sixty days after the end of the fiscal year, the commissioner shall file the report with the Secretary of the Department of Military Affairs and Public Safety, the Secretary of the Department of Administration and the Office of the Legislative Auditor.
§25-7-10. Indebtedness for capital outlay projects.
To carry out the provisions of this article, the commissioner is authorized to enter into contracts to acquire and purchase equipment, tools, supplies and materials, with payment to be made over a period not exceeding five years.
§25-7-11. Correctional industries account.

(a) There is hereby created in the State Treasury a special revenue account designated the Correctional Industries Account. All funds collected from the sale or disposition of articles and products manufactured or produced by correctional industries in accordance with this article shall be deposited in this account.
(b) Except as provided in subsection (c) of this section, funds collected and deposited may be used only to purchase manufacturing supplies, equipment, machinery and materials used to carry out the purposes of this article; to pay necessary personnel; and to defray necessary expenses, including inmate earnings, all of which are under the direction of the commissioner and subject to the commissioner's approval.
(c) The Correctional Industries Account may not be maintained in excess of the amount necessary to efficiently and properly carry out the purposes of this article. In no event may the Correctional Industries Account be maintained in excess of $1,500,000. Any moneys in the account exceeding $1,500,000, shall be transferred to the State Treasury and credited to the General Revenue Fund of hte state.
§25-7-12. Sale of inmate-made goods on open market prohibited; penalty; exceptions.
(a) Subject to the provisions of subsections (e) and (f) of this section and section five of this article, it is unlawful to sell or offer for sale on the open market any articles or products manufactured or produced, wholly or in part, by inmates of this state or any other state. This section does not apply to articles or products manufactured and sold pursuant to sections thirteen, fourteen, fifteen and sixteen of this article; pursuant to the requirements of 18 U. S. C. §1761(c), the Prison Industry Enhancement (PIE) Certification Program; or products made with waste tires. Any person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $200 nor more than $5,000 or confined not less than three months nor more than one year, or both. Each sale or offer for sale shall constitute a separate offense under this subsection.
(b) Any use of waste tires shall comply with applicable laws and with the rules of the Division of Environmental Protection.
(c) Products made by inmates from waste tires and sold on the open market must be competitively priced with privately produced goods of the same nature and may not be sold at a loss.
(d) Profits earned from the sale of products made by inmates from waste tires shall be deposited in the Correctional Industries Account to reimburse funds expended collecting waste tires and producing waste tire products, and to cover the reasonable cost of periodic replacement of outdated, obsolete or inoperable machinery or equipment used in such collection or production. Any funds remaining shall be divided equally between the Correctional Industries Account and the Crime Victims Compensation Fund created by article two-a, chapter fourteen of this code.
(e) Notwithstanding the provisions of subsection (a) of this section, any article or product manufactured or produced, wholly or in part, by inmates of West Virginia correctional facilities which is designed and intended to be used solely by blind and persons with disabilities, including but not limited to braille books and reading materials, may be sold or distributed on the open market by the Division of Corrections or other state department or agency.
(f) Notwithstanding the provisions of subsection (a) of this section, arts and crafts produced by inmates may be sold to the general public by the Division of Corrections or by such other state agencies or departments as the commissioner designates. The arts and crafts may be sold only on consignment, so that the inmates whose arts and crafts products are sold receive payment for the products. Payments shall be deposited in accounts or funds and managed as provided in section three-a, article one, chapter twenty-five of this code: Provided, That when the Division of Corrections or other agency or department of state government provides materials used in the production of an arts and crafts product, the fair market value of such materials may be deducted from the account of the individual inmate after the sale of the product.
(g) For purposes of this section, 'arts and crafts' means articles produced individually by artistic or craft skill such as painting, sculpture, pottery, jewelry or similar articles.
§25-7-13. Establishment of programs authorized by the federal Prison Industry Enhancement (PIE) Certification Program for employment of inmates by private persons; lease of land and improvements.

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

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

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

(a) The Director of the Division of Juvenile Services and a private person or entity may enter into an agreement to establish a program for residents to manufacture articles and products pursuant to the federal Prison Industry Enhancement (PIE) Certification Program. The agreement shall include the following:
(1) That a participating resident be paid at a rate not less than that paid for similar work in the same locality's private sector, including applicable wage increases for overtime work;
(2) That a resident's work or participation in a PIE certification program shall be only on a voluntary basis and only after the resident has been informed of the conditions of participation;
(3) That, in the discretion of the director or the director's designee, any resident may be removed from or refused participation in the PIE certification program;
(4) That the agreement will not result in the displacement of civilian workers; and
(5) That the private person or entity shall provide for workers' compensation insurance, or equivalent coverage, to residents participating in the PIE certification program.
(b) The provisions of this section shall not apply to correctional industry service contracts provided for in section four of this article or to operations authorized by section three of this article that are restricted from sale in the open market.
(c) A commercial or agricultural enterprise established under this chapter is a private enterprise subject to federal and state laws governing the operation of similar enterprises.
(d) The earnings of an resident participating in a PIE certification program under this article shall be deposited in the Resident Trust Account with the Division of Juvenile Services. The earnings shall be paid to the resident after withholding of state, federal and local taxes, and after other deductions provided for in this chapter. The expenses of room and board, as fixed by the director and the budget agency for facilities operated by the director or, if the resident is housed in a facility not operated by the director, the amount paid by the Division of Juvenile Services to the operator of the facility or other appropriate authority for room and board, and other incidentals as established by agreement between the Division of Juvenile Services and the appropriate authority, shall be deducted: Provided, That the director shall adopt policies and procedures for the additional deduction from a resident's earnings of not less than five percent nor more than twenty percent, to be paid into the Crime Victims Compensation Fund created by article two-a, chapter fourteen of this code. Total deductions shall not exceed eighty percent of the resident's gross earnings. Earnings deposited by the director, with accrued interest, shall be paid to the resident no later than at the resident's discharge or release on parole.
(2) When special circumstances warrant, or for just cause, the director may waive room and board charges by a facility operated by the Division of Juvenile Services or, if the resident is housed in a facility not operated by the Division of Juvenile Services, authorize payment of room and board charges from other available funds.
(e) Spousal support or child support shall be deducted from a resident's earnings as directed by the resident or by court order. If the resident's dependents are receiving Temporary Assistance for Needy Families (TANF), the disbursements shall be made to the Bureau for Child Support Enforcement or any other state's public assistance agency."
Delegate Boggs moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 372), and there were--yeas 76, nays 23, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Blair, Border, Carmichael, Cowles, Duke, Ireland, Lane, McGeehan, Miller, C, Miller, J, Overington, Porter, Romine, Rowan, Schadler, Schoen, Shott, Sobonya, Sumner and Walters.
Absent and Not Voting: Beach.
So, four fifths of the members present not having voted in the affirmative, the constitutional rule was not dispensed with.
The bill was then ordered to third reading.
Com. Sub. for S. B. 293, Creating felony offense of unauthorized practice of certain health care professions; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-13. Unauthorized practice of medicine and surgery or podiatry; criminal penalties; limitations.

(a) A person shall may not engage in the practice of medicine and surgery or podiatry, hold himself or herself out as qualified to practice medicine and surgery or podiatry or use any title, word or abbreviation to indicate to or induce others to believe that he or she is licensed to practice medicine and surgery or podiatry in this state unless he or she is actually licensed under the provisions of this article. A person engaged in the practice of telemedicine is considered to be engaged in the practice of medicine within this state and is subject to the licensure requirements of this article. As used in this section, the term 'practice of telemedicine' means the use of electronic information and communication technologies to provide health care when distance separates participants and includes one or both of the following: (1) The diagnosis of a patient within this state by a physician located outside this state as a result of the transmission of individual patient data, specimens or other material by electronic or other means from within this state to the physician or his or her agent; or (2) the rendering of treatment to a patient within this state by a physician located outside this state as a result of transmission of individual patient data, specimens or other material by electronic or other means from within this state to the physician or his or her agent. No person may practice as a physician assistant, hold himself or herself out as qualified to practice as a physician's physician assistant or use any title, word or abbreviation to indicate to or induce others to believe that he or she is licensed to practice as a physician's physician assistant in this state unless he or she is actually licensed under the provisions of this article. Any person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than ten thousand dollars, or imprisoned in the county jail not more than twelve months, or both fined and imprisoned.
(b) Any person who intentionally practices, or holds himself or herself out as qualified to practice, or uses any title, word or abbreviation to indicate to or induce others to believe he or she is licensed to practice a health care profession licensed under this article with a license classified by the board as expired, lapsed or terminated, for any period of time up to ninety days, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000 or confined in jail not more than twelve months, or both fined and confined.
(c) Any person who intentionally practices, or holds himself or herself out as qualified to practice, or uses any title, word or abbreviation to indicate to or induce others to believe he or she is licensed to practice as a physician, podiatrist or physician assistant without obtaining an active, valid West Virginia license to practice that profession or with a license that is: (1) Expired, terminated or lapsed, for over ninety days; or (2) inactive, revoked, suspended or surrendered, is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 or imprisoned in a state correctional facility for not less than one year nor more than five years, or both fined and imprisoned.
(b) (d) The provisions of this section do not apply to:
(1) Persons who are duly licensed health care providers under other pertinent provisions of this code and are acting within the scope of their license;
(2) Physicians or podiatrists licensed in other states or foreign countries who are acting in a consulting capacity with physicians or podiatrists duly licensed in this state for a period of not more than three months: Provided, That this exemption is applicable on a one-time only basis;
(3) An individual physician or podiatrist, or physician or podiatrist, or physician or podiatrist groups, or physicians or podiatrists at a tertiary care or university hospital outside this state and engaged in the practice of telemedicine who consult or render second opinions concerning diagnosis or treatment of patients within this state: (i) In an emergency or without compensation or expectation of compensation; or (ii) on an irregular or infrequent basis which occurs less than once a month or less than twelve times in a calendar year;
(4) Persons holding licenses granted by another state or foreign country who are commissioned medical officers of, a member of or employed by the armed forces of the United States, the United States Public Health Service, the Veterans' Administration of the United States, any federal institution or any other federal agency while engaged in the performance of their official duties;
(5) Any person providing first-aid care in emergency situations;
(6) The practice of the religious tenets of any recognized church in the administration of assistance to the sick or suffering by mental or spiritual means;
(7) Visiting medical faculty engaged in teaching or research duties at a medical school or institution recognized by the board and who are in this state for periods of not more than six months: Provided, That the individuals do not otherwise engage in the practice of medicine or podiatry outside of the auspices of their sponsoring institutions;
(8) Persons enrolled in a school of medicine approved by the liaison committee on medical education or by the board, or persons enrolled in a school of podiatric medicine approved by the council of podiatry education or by the board, or persons enrolled in an undergraduate or graduate physician assistant program approved by the committee on allied health education and accreditation or its successor on behalf of the American Medical Association or by the board, or persons engaged in graduate medical training in a program approved by the liaison committee on graduate medical education or the board, or engaged in graduate podiatric training in a program approved by the council on podiatric medical education or by the board, who are performing functions in the course of training including with respect to functions performed by medical residents or medical students under the supervision of a licensed physician, ordering and obtaining laboratory tests, medications and other patient orders by computer or other electronic means and no other provision of this code to the contrary may be construed to prohibit or limit medical residents' or medical students' use of computers or other electronic devices in this manner;
(9) The fitting, recommending or sale of corrective shoes, arch supports or similar mechanical appliances in commercial establishments; and
(10) The fitting or sale of a prosthetic or orthotic device not involving any surgical procedure, in accord with a prescription of a physician, osteopathic physician or where chiropractors or podiatrists are authorized by law to prescribe such a prosthetic or orthotic device, in accord with a prescription of a chiropractor or podiatrist, by a practitioner certified in the provision of custom orthotic and prosthetic devices, respectively, by a nationally recognized credentialing body for orthotics and prosthetics that is accredited by the National Commission for Certifying Agencies (NCCA): Provided, That the sale of any prosthetic or orthotic device by a partnership, proprietorship or corporation which employs such a practitioner or registered technician who fitted the prosthetic or orthotic device shall not constitute the unauthorized practice of medicine: Provided, however, That the practitioner or registered technician may, without a prescription, make recommendation solely to a physician or osteopathic physician or to a chiropractor or podiatrist otherwise authorized by law to prescribe a particular prosthetic or orthotic device regarding any prosthetic or orthotic device to be used for a patient upon a request for such recommendation.
(c) (e) This section shall may not be construed as being in any way a limitation upon the services of a physician's physician assistant performed in accordance with the provisions of this article.
(d) (f) Persons covered under this article may be permitted to utilize electronic signature or unique electronic identification to effectively sign materials, transmitted by computer or other electronic means, upon which signature is required for the purpose of authorized medical practice. Such signatures are deemed legal and valid for purposes related to the provision of medical services. This subsection does not confer any new practice privilege or right on any persons covered under this article."
The bill was then ordered to third reading.
Com. Sub. for S. B. 297, Creating Alternative and Renewable Energy Portfolio Act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk, amending the bill on page twenty-two, section five, line seventy-seven, by striking out subdivision (2) in its entirety and renumbering the remaining subdivisions.
On page twenty-four, section five, following line one hundred twenty-one by inserting the following:
"(i) Termination. - The provisions of this section shall have no force and effect after June 30, 2012.";
On page twenty-eight, section six, following line ninety-one, by striking out subsection (k) in its entirety and inserting in lieu thereof the following:
"(k) The commission shall impose a special assessment on all electric utilities required to file a compliance plan. The assessments shall be prorated among the covered electric utilities on the basis of kilowatt hours of retail sales in West Virginia and shall be due and payable on September 1 of each year. The amount of revenue collected pursuant to this subsection shall not exceed $200,000 in the first year following the effective date of this article and shall not exceed $100,000 in successive years. The funds generated from the assessments shall be used exclusively to offset all reasonable direct and indirect costs incurred by the commission in administering the provisions of this article."
On page thirty-five, section eleven, by striking out subsection (c) in its entirety and re-lettering the remaining subsections;
On page thirty-seven, following section eleven, by striking out section twelve in its entirety and renumbering the remaining sections.
On page thirty-eight, by striking out section fourteen in its entirety.
And,
On page three, by striking out the enacting section 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 §24-2F-1, §24-2F-2, §24-2F-3, §24-2F-4, §24-2F-5, §24-2F-6, §24-2F-7, §24-2F- 8, §24-2F-9, §24-2F-10, §24-2F-11, and §24-2F-12, all to read as follows:".
On motion of Delegates White, Campbell, Mahan, Guthrie, Perdue and Doyle, the amendment by the Committee on the Judiciary was amended on page one, line ten, by striking out the number "2012 " and inserting in lieu thereof the number "2021 ".
Delegate Canterbury moved to amendment the committee amendment on page one, line twenty-three, by striking out the following:
On page thirty-five, section eleven, by striking out subsection (c) in its entirety and re- lettering the remaining subsections;"
The Speaker put the question on the foregoing amendment, and the same did not prevail.
The amendment, recommended by the Committee on Finance, was then adopted, as amended.
Delegate Boggs moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 373), and there were--yeas 72, nays 27, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Azinger, Blair, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Evans, Hamilton, Ireland, Lane, C. Miller, J. Miller, Overington, Porter, Romine, Rowan, Schadler, Schoen, Shott, Sobonya, Sumner and Walters.
Absent and Not Voting: Beach.
So, four fifths of the members present not having voted in the affirmative, the constitutional rule was not dispensed with.
The bill was then ordered to third reading with the amendments pending.
S. B. 302, Expanding municipal parking authority officers' ticketing powers; on second reading, coming up in regular order, was read a second time.
At the request of Delegate Boggs, and by unanimous consent, the bill (S. B. 302) was advanced to third reading with an amendment pending.
S. B. 306
, Increasing pipeline companies' special license fees to Public Service Commission; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, section three, line eleven, by striking "$400,000 " and inserting in lieu thereof "$315,000 ".
The bill was then ordered to third reading.

Com. Sub. for S. B. 318, Expanding Division of Protective Services' law-enforcement authority over state property under certain circumstances; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 339, Exempting certain licensed medical professionals from county hiring prohibition; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page seven, section fifteen, line one hundred eight, immediately following the end of that line, by adding thereto a new subsection, designated subsection (l), to read as follows:
"(l) The provisions of subsection (a) of this section do not make unlawful the employment of a spouse of any elected county official by that county official: Provided, That the elected county official may not:
(1) Directly supervise the spouse employee, or
(2) Set the salary of the spouse employee:
Provided, however, That the provisions of this subsection shall only apply to spouse employees who were neither married to nor engaged to the elected county official at the time of their initial hiring."
The bill was then ordered to third reading.

S. B. 344, Authorizing mental hygiene commissioners sign readmission orders; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, section four, line seventeen, after the word "found" by striking out the period and inserting the words "and to the patient at the location where the patient may be found."
The bill was then ordered to third reading.
Com. Sub. for S. B. 373, Relating to PROMISE Scholarship; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page three, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §18C-7-8 of the Code of West Virginia, 1931, as amended, repealed; that said code be amended by adding thereto a new section, designated §18B-1D-9; that §18B-2A-1 of said code be amended and reenacted; that §18C-1-1 and §18C-1-5 of said code be amended and reenacted; and that §18C-7-3, §18C-7-4, §18C-7-5, §18C-7-6, §18C-7-7 and §18C-7-8 of said code be amended and reenacted, all to read as follows:
CHAPTER 18B. HIGHER EDUCATION.

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

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

ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-1. Composition of boards; terms and qualifications of members; vacancies; eligibility for reappointment. establishment of boards for independent community and technical colleges

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

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

(a) Notwithstanding any other provision of this code or rule to the contrary, a student who attended a public or private high school outside the state is eligible for state funded student financial aid, grants and scholarships if:
(1) The student meets all other eligibility requirements for the aid, grant or scholarship; and either
(2) The student resided in West Virginia while attending high school in another state, and:
(A) The student resided with his or her parent or legal guardian who:
(i) Was a resident of this state; and
(ii) Had been a resident of this state for at least two years immediately preceding the student's attendance at the school;
(B) The student commuted during the school term on a daily basis from this state to the school;
(C) The student is a dependent of the parent or legal guardian upon which eligibility is based;
(D) The student has not established domicile outside the state; and
(E) At the discretion of the State Superintendent of Schools, as defined in section one, article one, chapter eighteen of this code:
(i) The school is fully accredited in that state to the degree acceptable to the State Superintendent of Schools; and
(ii) The school's curriculum requirements for graduation are equivalent to the curriculum requirements for graduation in this state, or sufficiently similar to those requirements, as determined by the State Superintendent of Schools. or
(b) Notwithstanding any other provision of this code or rule to the contrary, a student who attended a public or private high school outside the state is eligible for state funded student financial aid, grants and scholarships if:
(1) The student meets all other eligibility requirements for the aid, grant or scholarship; and
(2)
The student resided and attended high school in another state or a United States territory, United States possession or foreign country and:
(A) The student resided with his or her parent or legal guardian; and
(B) The student's parent or legal guardian:
(i) Served in the United States armed forces while the student attended high school in such state, territory, possession or country;
(ii) Was stationed for military purposes in such state, territory, possession or country; and
(iii) Maintained legal residence in West Virginia while stationed in such state, territory, possession or country.
(b) This section may not be construed to alter, amend or extend any application deadlines or other requirements established by law or policy.
(c) The provisions of this section expire on the thirtieth day of June, two thousand ten.
§18C-1-5. Higher Education Student Financial Aid Advisory Board.
(a) The Higher Education Student Financial Aid Advisory Board is established.
(b) The purpose of the board is to provide financial aid expertise and policy guidance to the Commission, the Council the PROMISE Scholarship Board, and the Vice Chancellor for Administration and the Executive Director of the PROMISE Scholarship Programs on all matters related to federal, state and private student financial aid resources and programs.
(c) It is the intent of the Legislature that the advisory board have the following responsibilities:
(1) Recommend methods to balance the needs of state students from all levels of financial need and academic ability by focusing attention on multiple financial aid programs which meet a variety of state objectives;
(2) Recommend methods for achieving a comprehensive system of student financial aid: (A) to maximize the return on the state's investment in such student financial aid programs by increasing the skills, qualifications and education achievement of the citizens receiving the benefits; and
(B) (3) To establish Recommend methods for coordinating administration among to coordinate state-funded student financial aid programs so that the state achieves the appropriate blend of student financial aid programs to expand the range of economic opportunities available to state citizens;
(4) Recommend ways to improve state-level administration of financial aid programs for the benefit of students and institutions;
(5) Recommend ways to improve financial aid outreach activities;
(6) Make recommendations, consistent with the nature of the PROMISE scholarship program as a merit-based student financial aid program.
(7) Recommend rules that align with the goals, objectives and priorities set forth in section one-a, article one, chapter eighteen-b of this code and article one-d of said chapter and with other state and system public policy goals, objectives and priorities.
(d) The Advisory Board consists of twelve members as follows:
(1) The chair of the Higher Education Policy Commission or a designee who is a member of the Commission;
(2) The chair of the West Virginia Council for Community and Technical College Education or a designee who is a member of the Council;
(3) The State Superintendent of Schools or a designee;
(4) The Secretary of Education and the Arts or a designee;
(5) The State Treasurer or a designee;
(6) A member of the PROMISE Scholarship Board selected by that board;
(7) Three financial aid administrators, excluding the president of the West Virginia Association of Student Financial Aid Administrators.
(A) All financial aid administrators are appointed by the Vice Chancellor for Administration in consultation with the Commission and the Council, as appropriate. Of the initial appointments, the vice chancellor shall appoint one member to a two-year term, one member to a three-year term and one member to a four-year term. Thereafter, all terms are for four years.
(B) It is the duty of the Vice Chancellor for Administration to select financial aid administrators so that the following types of institutions have representatives serving on the board on a rotating basis:
(i) State institutions of higher education which are doctoral-degree granting research universities;
(ii) State institutions of higher education which primarily grant baccalaureate degrees;
(iii) State institutions of higher education which are free-standing community and technical colleges;
(iv) State institutions of higher education which are administratively linked community and technical colleges; and
(v) Private institutions of higher education which are regionally accredited and located within the state.
(8) Three at-large private sector members who are appointed jointly by the Commission and the Council. Of the initial appointments, the Commission and the Council jointly shall appoint one member to a two-year term, one member to a three-year term and one member to a four-year term. Thereafter, all terms are for four years.
(A) At-large members shall:
(i) Be representative of the state's business and economic community;
(ii) Demonstrate knowledge, skill and experience in an academic, business or financial field; and
(iii) Reside within this state.
(B) An at-large member may not be:
(i) A member of a governing board or institutional board of advisors of any public or private institution of higher education; nor
(ii) A publicly elected official or an employee of any state, county or municipal agency.
(e) No more than two of the at-large members may be from the same political party and no more than one may reside in any congressional district.
(1) After the initial appointments, each appointed member serves a term of four years and may be reappointed upon expiration of the term.
(2) In the event of a vacancy among appointed members, the Commission and the Council shall appoint a person for the remainder of the unexpired term to represent the same interests as those of the original appointee. A person appointed to fill a vacancy is eligible for reappointment. Unless a vacancy occurs due to death or resignation, an appointed member continues to serve until a successor has been appointed and qualified as provided in this section.
(d) Advisory board membership. --
(1) The advisory board shall consist of seven members selected as follows:
(A) Three members appointed by the Commission;
(B) Two members appointed by the Council;
(C) One member appointed by the West Virginia Independent Colleges and Universities; and
(D) One member appointed by the West Virginia School Counselor Association.
(2) Members appointed by the Commission and the Council shall possess a broad knowledge of state and federal higher education student financial aid programs and have experience in administering these programs, preferably at the campus or system level.
(3) The initial appointments of members shall be made as follows:
(A) The Commission shall appoint one member to a one-year term, one member to a two- year term and one member to a three-year term;
(B) The Council shall appoint one member to a one-year term and one member to a three- year term;
(C) The West Virginia Independent Colleges and Universities shall appoint one member to a one-year term; and
(D) The West Virginia School Counselor Association shall appoint one member to a two- year term.
(4) After the initial terms are completed, appointments shall be made as follows:
(A) Members shall be appointed for three-year terms; and
(B) Members are eligible to succeed themselves for one additional consecutive term.
(5) The term of each member begins on July 1 of the year in which the appointment is made and ends on June 30 of the year in which the appointment expires.
(e) The first meeting of the advisory board shall be called by the Vice Chancellor for Administration, at which time the members shall elect a chairperson for an initial term ending on July 31, 2010. The chairperson may succeed himself or herself for an additional one-year term as chairperson. Thereafter, the term of the chairperson is for one year beginning on August 1 of the year in which elected and ending on July 31 of the following year. A member may not serve more than two consecutive terms as chairperson.
(f) In the event of a vacancy, a successor shall be appointed by the entity which appointed the vacating member for the unexpired term of the vacating member. A person appointed to fill a vacancy is eligible for reappointment for one additional consecutive term unless the time remaining in the unexpired term is less than six months in which case the person filling the vacancy is eligible for reappointment for two additional terms.
(f) (g) Members of the advisory board serve without compensation, but are entitled to reimbursement by the Commission for expenses, including travel expenses, which are actually incurred by the member in the official conduct of the business of the advisory board. Members are reimbursed in a manner consistent with rules of the Higher Education Policy Commission.
ARTICLE 7. WEST VIRGINIA PROVIDING REAL OPPORTUNITIES FOR MAXIMIZING IN-STATE STUDENT EXCELLENCE SCHOLARSHIP PROGRAM.

§18C-7-3. Definitions.
(a) General. -- For the purposes of this article, terms have the meaning ascribed to them in section two, article one of this chapter, unless the context in which the term is used clearly requires a different meaning or a specific definition is provided in this section.
(b)
Definitions. -- (a) (1) 'Eligible institution' means:
(1) (A) A state institution of higher education as defined in section two, article one, chapter eighteen-b of this code;
(2) (B) Alderson-Broaddus College, Appalachian Bible College, Bethany College, Davis and Elkins College, Mountain State University, Ohio Valley University, the University of Charleston, West Virginia Wesleyan College and Wheeling Jesuit University, all in West Virginia. Any institution listed in this subdivision ceases to be an eligible institution if it meets either of the following conditions:
(A) (i) Loses It loses regional accreditation; or
(B) (ii) Changes It changes its status as a private, not-for-profit institution;
(3) (C) Any for-profit institution that meets the following criteria:
(i) Is regionally accredited through the Higher Learning Commission of the North Central Association of Colleges and Schools; and
(ii) Has a physical campus in West Virginia at which the eligible student attends classes;
(D)
Any other public or private regionally accredited institution in this state public or private, approved by the board commission.
(b) 'Board' means the West Virginia PROMISE Scholarship Board of the West Virginia PROMISE Scholarship Program as provided for in section four of this article.
(c) (2) 'Tuition' means the quarter, semester or term charges imposed by a an eligible state institution of higher education and, additionally, all mandatory fees required as a condition of enrollment by all students. For the purposes of this article, the following conditions apply:
(A) West Virginia University, Potomac State College and West Virginia University Institute of Technology are considered separate institutions for purposes of determining tuition rates; and
(B) The tuition amount paid by undergraduate health sciences students at West Virginia University is considered to be the same as the amount of tuition paid by all other West Virginia University undergraduate students.
(d) (3) 'Enrolled' means either currently enrolled or in the process of enrolling in an eligible institution.
§18C-7-4. Dissolution of the PROMISE Scholarship Board; transfer of funds.
(a) The West Virginia PROMISE Scholarship Board is hereby dissolved.
(b) All funds administered by the former PROMISE Scholarship Board shall be administered by the Higher Education Policy Commission.
§18C-7-5. Powers and duties of the West Virginia Higher Education Policy Commission regarding the PROMISE Scholarship.

(a) Powers of board Commission. -- In addition to the powers granted by any other provision of this article code, the board Commission has the powers necessary or convenient to carry out the purposes and provisions of this article including, but not limited to, the following express powers:
(1) To adopt and amend bylaws;
(2) (1) To propose promulgate legislative rules to the Commission for promulgation in accordance with the provisions of article three-a, chapter twenty-nine-a of this code to effectuate the purposes of this article;
(3) (2) To invest any of its funds at the board's discretion, the funds of the West Virginia PROMISE Scholarship Fund established in section seven of this article with the West Virginia Investment Management Board in accordance with the provisions of article six, chapter twelve of this code. Any investments made under pursuant to this article shall be made with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of conducting an enterprise of a like character and with like aims. Fiduciaries shall diversify plan investments to the extent permitted by law so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so;
(4) (3) To execute contracts and other necessary instruments;
(5) (4) To impose reasonable requirements for residency for students applying for the PROMISE scholarship. Except as provided in section four, article one of this chapter, the requirements shall include that an eligible a student must shall have met the following requirements to be eligible:
(A) Completed at least one half of the credits required for high school graduation in a public or private high school in this state; or
(B) Received instruction in the home or other approved place pursuant to Exemption B subsection (c), section one, article eight, chapter eighteen of this code for the two years immediately preceding application;
(C) This subdivision subsection may does not be construed to establish residency requirements for matriculation or fee payment purposes at state institutions of higher education;
(6) (5) To contract for necessary goods and services, to employ necessary personnel and to engage the services of private persons for administrative and technical assistance in carrying out the responsibilities of the scholarship program. Any services provided or secured to implement or administer the provisions of this section remain under the direction and authority of the Vice Chancellor for Administration;
(A) The board is encouraged to utilize the employees of the Vice Chancellor for Administration to provide administrative and technical assistance.
(B) Any services provided for the board by such employees remain under the direction and authority of the vice chancellor.
(7) (6) To solicit and accept gifts, including bequests or other testamentary gifts made by will, trust or other disposition, grants, loans and other aid from any source and to participate in any federal, state or local governmental programs in carrying out the purposes of this article;
(8) (7) To define the terms and conditions under which scholarships are awarded with the minimum requirements being set forth in section six of this article; and
(9) (8) To establish other policies, procedures and criteria necessary to implement and administer the provisions of this article.
(b) Duties of board Commission. -- In addition to any duty required by any other provision of this article code, the board Commission has the following responsibilities:
(1) To operate the program in a fiscally responsible manner and within the limits of available funds;
(2) To operate the PROMISE Scholarship program as a merit-based program;
(3) To raise adjust academic eligibility requirements before taking any other steps to limit student awards should projections indicate that available funds will not be sufficient to cover future costs; and
(4) To maintain contact with graduates who have received PROMISE scholarships and to provide a written statement of intent to recipients who are selected to receive a PROMISE scholarship after the effective date of this section notifying them that acceptance of the scholarship entails a responsibility to supply the following:
(A) Information requested by the board Commission to determine the number and percentage of recipients who shall:
(i) (i) Continue to live in West Virginia after graduation;
(ii) (ii) Obtain employment in West Virginia after graduation; and
(iii) (iii) Enroll in post-graduate education programs; and
(B) For PROMISE scholars who enroll in post-graduate education programs,
the name of the state in which each post-graduate institution is located; and
(B) (C) Such Any other relevant information as the board may Commission reasonably request requests to implement the provisions of this subdivision;
(5) To analyze and use the data collected pursuant to subdivision (4) of this subsection to, and:
(A) Report the findings annually to the Joint Standing Committee on Education by the tenth day of January, two thousand seven and annually thereafter Legislative Oversight Commission on Education Accountability; and
(B) Make annual recommendations annually to the Joint Standing Committee on Education Legislative Oversight Commission on Education Accountability regarding any actions the board Commission considers necessary or expedient to encourage PROMISE recipients to live and work in the state after graduation.
§18C-7-6. Promise scholarship program requirements; legislative rule.
(a) A PROMISE scholarship annual award meets shall meet the following conditions:
(1) Equals but does not exceed the cost of tuition for a student enrolled in a state institution of higher education;
(2) Equals an amount determined by the board, but not to exceed the cost of tuition at state institutions of higher education, for a student enrolled in an eligible institution that is not a state institution of higher education;
(1) For a student enrolled in a state institution of higher education, the annual award is equal to the lesser of the cost of tuition or $4,750, except that a student who was awarded and used a PROMISE scholarship annual award prior to January 1, 2010, shall continue to receive the annual award calculated under the same terms and conditions that applied on the day before the effective date of this article;
(2) For a student enrolled in an eligible institution other than a state institution of higher education, the annual award is equal to, but may not exceed, the lesser of the cost of tuition or $4,750, except that a student who was awarded and used a PROMISE scholarship annual award prior to January 1, 2010, shall continue to receive the annual award calculated under the same terms and conditions that applied on the day before the effective date of this article;
(3) The annual award may exceed $4,750, if the Commission determines that adequate funds are available, but in any case, may not be greater than the actual cost of tuition;
(3) Is (4) The annual award shall be used by an eligible institution to supplement, but may not to supplant, a tuition and fee waiver for which the individual is eligible pursuant to section five, six-a, or seven or seven-b, article ten, chapter eighteen-b of this code.
(b) The total cost of all scholarships awarded by the board Commission in any year may not exceed the amount of funds available to the board Commission during that fiscal year.
(c) An individual shall meet the following conditions in In order to be eligible to receive a PROMISE scholarship award an individual shall:
(1) Submit a scholarship award application to the board Commission:
(A) Within two years of graduating from high school or within two years of acquiring a general equivalency degree if provided instruction in the home or other approved place pursuant to Exemption B subsection (c), section one, article eight, chapter eighteen of this code; or
(B) Within seven years of initially entering military service, and within one year of discharge from such military service, if the individual has entered the United States armed services within two years after graduating from high school;
(2) Apply for and submit to the board a Free Application for Federal Student Aid;
(3) Maintain a grade point average of at least 3.0 on a 4.0 grading scale in the required core and elective course work necessary to prepare students for success in post-secondary education at the associate and baccalaureate degree levels as determined by the board Commission, if the individual has completed not more than one semester or term at an institution of higher education, excluding credits earned in advanced placement, international baccalaureate, dual credit and comparable courses while the student is enrolled in high school;
(4) Maintain appropriate academic progress toward the completion of a degree at the undergraduate education level as determined by the board Commission if the individual has completed more than one semester or term at an institution of higher education, excluding credits earned in advanced placement, international baccalaureate, dual credit and comparable courses while the student is enrolled in high school;
(5) Be a United States citizen or legal immigrant to the United States;
(6) Meet additional objective standards as the board Commission considers necessary to promote academic excellence and to maintain the financial stability of the fund; and
(6) (7) Enroll in an eligible institution. Any A student enrolled at an eligible institution who receives a PROMISE scholarship award may retain and renew the scholarship to complete his or her undergraduate education at that institution or any other eligible institution under the following circumstances:
(A) If The institution at which the student is enrolled loses its status as an eligible institution pursuant to the provisions of subdivision (2), subsection (a), section three subdivision (1), subsection (b) of this article; and
(B) If The student meets all other renewal requirements of this code and of board Commission rules.
(7) (d) It is the intent of the Legislature that the board Commission shall strongly encourage prospective candidates for the PROMISE scholarship to perform at least twenty hours of unpaid community service while in high school to help prepare them for success in post-graduate post- secondary education. The community service may include, but is not limited to, participation with nonprofit, governmental or community-based organizations designed to with any or all of the following purposes:
(A) Improve (1) Improving the quality of life for community residents;
(B) Meet (2) Meeting the needs of community residents; or
(C) Foster (3) Fostering civic responsibility.
(d) The board shall recommend a legislative rule to the Commission to implement the provisions of this article.
(e) The Commission shall promulgate a legislative rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code.
(1) The rule shall include at least the following provisions:
(A) The amount of a PROMISE scholarship award may not exceed the cost of tuition at state institutions of higher education;
(B) (A) The amount of a PROMISE scholarship award in combination with aid from all other sources may not exceed the cost of education at the institution the recipient is attending. This provision does not apply to members of the West Virginia National Guard, recipients of an Underwood-Smith teacher scholarship and recipients of a West Virginia engineering, science and technology scholarship;
(C) (B) Additional objective standards as the board Commission considers necessary:
(i) To promote academic excellence;
(ii) To maintain the financial stability of the fund; and
(iii) To operate the program within the limits of available funds.
(D) (C) Provisions for making the highest and best use of the PROMISE Scholarship Program in conjunction with the West Virginia Prepaid Tuition Trust Act West Virginia College Prepaid Tuition and Savings Program Act set forth in article thirty, chapter eighteen of this code;
(E) (D) A provision defining the relationship of PROMISE scholarship awards to all other sources of student financial aid to ensure maximum coordination. The provision shall include the following:
(i) Methods to maximize student eligibility for federal student financial aid;
(ii) A requirement that PROMISE scholarship awards not supplant tuition and fee waivers; and
(iii) Clarification of the relationship between the PROMISE Scholarship Program, tuition savings plans and other state-funded student financial aid programs;
(F) (E) A method for awarding scholarships within the limits of available appropriations, including circumstances when program funds are not sufficient to provide awards to all eligible applicants. The board Commission may not utilize use any of the following methods:
(i) Making the Providing for an annual PROMISE scholarship award for an amount that is less than the cost of full tuition for a student enrolled in a state institution of higher education amounts provided for in this section; or
(ii) Eliminating any current recipient from eligibility; and
(G) (F) A method for applicants to appeal determinations of eligibility and renewal.
(2) The rule may provide for or require the following at the board's Commission's discretion:
(A) Requiring repayment of the amount of the scholarship, in whole or in part, if a scholarship recipient chooses to work outside the state after graduation. Provided, That The rule may not require a recipient to repay a scholarship, in whole or in part, unless the prospective recipient has been informed of this requirement in writing before initial acceptance of the PROMISE scholarship award;
(B) Targeting a portion of the scholarship funds to be used for applicants enrolled in an engineering, science, technology or other designated program;
(C) Determining what other sources of funding for higher education are to be deducted from the PROMISE scholarship award; and
(D) Providing additional criteria as determined by the board Commission.
(3) The Legislature finds that an emergency exists and, therefore, the board Commission shall file a rule to implement the provisions of this section as an emergency rule pursuant to the provisions of article three-a, chapter twenty-nine-a of this code. The rule is subject to the prior approval of the Legislative Oversight Commission on Education Accountability.
(4) Any rule promulgated by the Commission pursuant to previous enactments of this article in effect on the effective date of the amendment and reenactment of this article in the year 2009 remains in effect until amended, modified, repealed or replaced by the Commission.
§18C-7-7. West Virginia PROMISE Scholarship Fund continued.

(a) The special revenue fund in the State Treasury designated and known as the PROMISE Scholarship Fund is continued. The fund consists of moneys from the following sources:
(1) All appropriations to the fund from the West Virginia Lottery, video lottery and taxes on amusement devices;
(2) All appropriations by the Legislature for the PROMISE Scholarship Fund;
(3) Any gifts, grants or contributions received for the PROMISE Scholarship Program; and
(4) All interest or other income earned from investment of the fund.
(b) The allocations to the fund are subject to appropriation by the Legislature. Nothing in this article requires any specific level of funding by the Legislature nor guarantees nor entitles any individual to any benefit or grant of funds.
(c) For the fiscal year beginning July 1, 2006, it is the intent of the Legislature that the aggregate of the amount of moneys transferred to the fund pursuant to section eighteen-a, article twenty-two, chapter twenty-nine of this code, and such any other amounts of public moneys that may be transferred to the fund by appropriation of the Legislature, shall equal, but may not exceed, $40 million. For each fiscal year thereafter until and including the fiscal year ending June 30, 2011 2009, it is the intent of the Legislature that this aggregate be an amount two percent greater than the aggregate established by this subsection for the prior fiscal year. For the fiscal year beginning July 1, 2009, it is the intent of the Legislature that the aggregate of the amount of moneys transferred to the fund pursuant to section eighteen-a, article twenty-two, chapter twenty-nine of this code and any other amounts of public moneys that may be transferred to the fund by appropriation of the Legislature, shall equal $45 million. For the fiscal year beginning July 1, 2010, it is the intent of the Legislature that the aggregate of the amount of moneys transferred to the fund shall equal $48 million. For the fiscal year beginning July 1, 2011, and every fiscal year thereafter, it is the intent of the Legislature that the aggregate of the amount of moneys transferred to the fund shall equal $47,500,000 For the fiscal year beginning July 1, 2011, and in each fiscal year thereafter, it is the intent of the Legislature that this aggregate not exceed the aggregate established by this subsection for the fiscal year beginning July 1, 2011.
(d) The board Commission may expend the moneys in the fund to implement the provisions of this article."
Delegates J. Miller and Cowles, moved to amend the amendment on page thirty-five, line fifteen following the word "thereafter" by striking the words "until and including the fiscal year ending June 30, 2011 2009 ".
On page thirty-five, line seventeen, following the word "amount" by striking the words "two percent".
On page thirty-five, line nineteen, following the word "year" by striking all of the underlined language to the end of that subsection,

and, inserting in lieu thereof, the following:
"The specific amount shall be determined by the legislature."

On the adoption of the amendment to the amendment, Delegate J. Miller demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 374), and there were--yeas 27, nays 73, absent and not voting none, with the yeas being as follows:
Yeas: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, Cowles, Ellem, Evans, Lane, Louisos, McGeehan, Miley, C. Miller, J. Miller, Overington, Porter, Rowan, Schadler, Schoen, Shott, Sobonya, Sumner and Walters.
So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.
The bill was then ordered to third reading.

Com. Sub. for S. B. 375, Relating to Office of Coalfield Community Development master land use plans; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 398, Imposing certain restrictions on graduated driver's licenses;on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk, amending the bill on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.
§17B-2-3a. Graduated driver's license.

(a) Any person under the age of eighteen may not operate a motor vehicle unless he or she has obtained a graduated driver's license in accordance with the three-level graduated driver's license system described in the following provisions.
(b) Any person under the age of twenty-one, regardless of class or level of licensure, who operates a motor vehicle with any measurable alcohol in his or her system is subject to the provisions of section two, article five, chapter seventeen-c of this code and section two, article five-a of said chapter. Any person under the age of eighteen, regardless of class or licensure level, is subject to the mandatory school attendance and satisfactory academic progress provisions of section eleven, article eight, chapter eighteen of this code.
(c) Level one instruction permit. -- An applicant who is fifteen years or older meeting all other requirements prescribed in this code may be issued a level one instruction permit.
(1) Eligibility. -- The division shall not issue a level one instruction permit unless the applicant:
(A) Presents a completed application, as prescribed by the provisions of section six of this article, and which is accompanied by a writing, duly acknowledged, consenting to the issuance of the graduated driver's license and executed by a parent or guardian entitled to custody of the applicant;
(B) Presents a certified copy of a birth certificate issued by a state or other governmental entity responsible for vital records unexpired, or a valid passport issued by the United States government evidencing that the applicant meets the minimum age requirement and is of verifiable identity;
(C) Passes the vision and written knowledge examination and completes the driving under the influence awareness program, as prescribed in section seven of this article;
(D) Presents a driver's eligibility certificate or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code; and
(E) Pays a fee of $5, which shall permit the applicant two attempts at the written knowledge test.
(2) Terms and conditions of instruction permit. -- A level one instruction permit issued under the provisions of this section is valid until thirty days after the date the applicant attains the age of eighteen and is not renewable. However, any permit holder who allows his or her permit to expire prior to successfully passing the road skills portion of the driver examination, and who has not committed any offense which requires the suspension, revocation or cancellation of the instruction permit, may reapply for a new instruction permit under the provisions of section six of this article. The division shall immediately revoke the permit upon receipt of a second conviction for a moving violation of traffic regulations and laws of the road or violation of the terms and conditions of a level one instruction permit, which convictions have become final unless a greater penalty is required by this section or any other provision of this code. Any person whose instruction permit has been revoked is disqualified from retesting for a period of ninety days. However, after the expiration of ninety days, the person may retest if otherwise eligible. In addition to all other provisions of this code for which a driver's license may be restricted, suspended, revoked or canceled, the holder of a level one instruction permit may only operate a motor vehicle under the following conditions:
(A) Under the direct supervision of a licensed driver, twenty-one years of age or older, or a driver's education or driving school instructor who is acting in an official capacity as an instructor, who is fully alert and unimpaired, and the only other occupant of the front seat. The vehicle may be operated with no more than two additional passengers, unless the passengers are family members;
(B) Between the hours of five a. m. and eleven ten p. m.;
(C) All occupants must use safety belts in accordance with the provisions of section forty-nine, article fifteen, chapter seventeen-c of this code;
(D) Without any measurable blood alcohol content, in accordance with the provisions of subsection (h), section two, article five, chapter seventeen-c of this code; and
(E) Maintains current school enrollment and is making satisfactory academic progress or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code.
(F) A holder of a level one instruction permit who is under the age of eighteen years may not use shall be prohibited from using a wireless communication device while operating a motor vehicle, unless the use of the wireless communication device is for contacting a 9-1-1 system. A law-enforcement officer may enforce the provisions of this paragraph only as a secondary action when a law-enforcement officer with probable cause detains a driver for a suspected violation of another provision of this code. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined $25; for a second offense be fined $50; and for a third or subsequent offense be fined $75. (d) Level two intermediate driver's license. -- An applicant sixteen years of age or older, meeting all other requirements of the code, may be issued a level two intermediate driver's license.
(1) Eligibility. -- The division shall not issue a level two intermediate driver's license unless the applicant:
(A) Presents a completed application as prescribed in section six of this article;
(B) Has held the level one instruction permit conviction-free for the one hundred eighty days immediately preceding the date of application for a level two intermediate license;
(C) Has completed either a driver's education course approved by the State Department of Education or thirty fifty hours of behind-the-wheel driving experience, including a minimum of ten hours of nighttime driving, certified by a parent or legal guardian or other responsible adult over the age of twenty-one as indicated on the form prescribed by the division: Provided, That nothing in this paragraph shall be construed to require any school or any county board of education to provide any particular number of driver's education courses or to provide driver's education training to any student;
(D) Presents a driver's eligibility certificate or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code;
(E) Passes the road skills examination as prescribed by section seven of this article; and
(F) Pays a fee of $5.
(2) Terms and conditions of a level two intermediate driver's license. -- A level two intermediate driver's license issued under the provisions of this section shall expire thirty days after the applicant attains the age of eighteen, or until the licensee qualifies for a level three full Class E license, whichever comes first. In addition to all other provisions of this code for which a driver's license may be restricted, suspended, revoked or canceled, the holder of a level two intermediate driver's license may only operate a motor vehicle under the following conditions:
(A) Unsupervised between the hours of five a. m. and eleven ten p. m.;
(B) Only under the direct supervision of a licensed driver, age twenty-one years or older, between the hours of eleven ten p. m. and five a. m. except when the licensee is going to or returning from:
(i) Lawful employment;
(ii) A school-sanctioned activity;
(iii) A religious event; or
(iv) An emergency situation that requires the licensee to operate a motor vehicle to prevent bodily injury or death of another;
(C) All occupants shall use safety belts in accordance with the provisions of section forty-nine, article fifteen, chapter seventeen-c of this code;
(D) Operates the vehicle with no more than three passengers under the age of nineteen, unless the passengers are family members, in addition to the driver For the first six months after issuance of a level two intermediate driver's license, the licensee may not operate a motor vehicle carrying any passengers less than twenty years old, unless these passengers are family members of the licensee; for the second six months after issuance of a level two intermediate driver's license, the licensee may not operate a motor vehicle carrying more than one passenger less than twenty years old, unless these passengers are family members of the licensee;
(E) Without any measurable blood alcohol content in accordance with the provisions of subsection (h), section two, article five, chapter seventeen-c of this code;
(F) Maintains current school enrollment and is making satisfactory academic progress or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code;
(G) A holder of a level two intermediate driver's license who is under the age of eighteen years may not use shall be prohibited from using a wireless communication device while operating a motor vehicle, unless the use of the wireless communication device is for contacting a 9-1-1 system. A law-enforcement officer may enforce the provisions of this paragraph only as a secondary action when a law-enforcement officer with probable cause detains a driver for a suspected violation of another provision of this code. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined $25; for a second offense be fined $50; and for a third or subsequent offense be fined $75.
(H) Upon the first conviction for a moving traffic violation or a violation of paragraph (A), (B), (C), (D) or (G), subdivision (1), subsection (d) of this section of the terms and conditions of a level two intermediate driver's license, the licensee shall enroll in an approved driver improvement program unless a greater penalty is required by this section or by any other provision of this code; and
At the discretion of the commissioner, completion of an approved driver improvement program may be used to negate the effect of a minor traffic violation as defined by the commissioner against the one year conviction-free driving criteria for early eligibility for a level three driver's license and may also negate the effect of one minor traffic violation for purposes of avoiding a second conviction under paragraph (I) below; and
(I) Upon the second conviction for a moving traffic violation or a violation of the terms and conditions of the level two intermediate driver's license, the licensee's privilege to operate a motor vehicle shall be revoked or suspended for the applicable statutory period or until the licensee's eighteenth birthday, whichever is longer unless a greater penalty is required by this section or any other provision of this code. Any person whose driver's license has been revoked as a level two intermediate driver, upon reaching the age of eighteen years and if otherwise eligible may reapply for an instruction permit, then a driver's license in accordance with the provisions of sections five, six and seven of this article.
(e) Level three, full Class E license. -- The level three license is valid until thirty days after the date the licensee attains his or her twenty-first birthday. Unless otherwise provided in this section or any other section of this code, the holder of a level three full Class E license is subject to the same terms and conditions as the holder of a regular Class E driver's license.
A level two intermediate licensee whose privilege to operate a motor vehicle has not been suspended, revoked or otherwise canceled and who meets all other requirements of the code may be issued a level three full Class E license without further examination or road skills testing if the licensee:
(1) Has reached the age of seventeen years; and
(A) Presents a completed application as prescribed by the provisions of section six of this article;
(B) Has held the level two intermediate license conviction free for the twelve-month period immediately preceding the date of the application;
(C) Has completed any driver improvement program required under paragraph (G), subdivision (2), subsection (d) of this section; and
(D) Pays a fee of $2.50 for each year the license is valid. An additional fee of $.50 shall be collected to be deposited in the Combined Voter Registration and Driver's Licensing Fund established in section twelve, article two, chapter three of this code;
(E) Presents a driver's eligibility certificate or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code; or
(2) Reaches the age of eighteen years; and
(A) Presents a completed application as prescribed by the provisions of section six of this article; and
(B) Pays a fee of $2.50 for each year the license is valid. An additional fee of $.50 shall be collected to be deposited in the Combined Voter Registration and Driver's Licensing Fund established in section twelve, article two, chapter three of this code.
(f) A person violating the provisions of the terms and conditions of a level one or level two intermediate driver's license is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined $25; for a second offense be fined $50; and for a third or subsequent offense be fined $75."
Delegate Klempa, moved to amend the amendment, on page ten, line five, after the period, by inserting the following:
"ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-406. Distribution to persons under the age of eighteen by persons over the age of twenty-one; distribution by persons eighteen or over in or on, or within one thousand feet of, school or college; increasing mandatory period of incarceration prior to parole eligibility.

(a) Notwithstanding any other provision of law to the contrary, a person is ineligible for parole for a period of three years if he or she is sentenced to the custody of the commissioner of corrections for service of a sentence of incarceration and is convicted of a felony violation under the provisions of subdivision (i), subsection (a), section four hundred one of this article for distribution of a controlled substance and:
(1) Is twenty-one years of age or older at the time of the distribution upon which the conviction is based, and the person to whom the controlled substance was distributed was under the age of eighteen years at the time of the distribution; or
(2) Is eighteen years of age or older and the distribution upon which the conviction is based occurred in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational or secondary school or a public or private college, junior college or university in this state, or within the first one hundred feet within the view of students awaiting, boarding or exiting a school bus, excluding the interior of all buildings except school bus stop shelters.
(b) Notwithstanding any other provision of law to the contrary, a person is ineligible for parole for a period of two years if he or she is sentenced to the custody of the commissioner of corrections for service of a sentence of incarceration and is convicted of a felony violation under the provisions of subdivision (ii), subsection (a), section four hundred one of this article for distribution of a controlled substance and:
(1) Is twenty-one years of age or older at the time of the distribution upon which the conviction is based, and the person to whom the controlled substance was distributed was under the age of eighteen years at the time of the distribution; or
(2) Is eighteen years of age or older and the distribution upon which the conviction is based occurred in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational or secondary school or a public or private college, junior college or university in this state, or within the first one hundred feet within the view of students awaiting, boarding or exiting a school bus, excluding the interior of all buildings except school bus stop shelters.
(c) The existence of any fact which would make any person subject to the provisions of this section may not be considered unless the fact is clearly stated and included in the indictment or presentment by which the person is charged and is either:
(1) Found by the court upon a plea of guilty or nolo contendere;
(2) Found by the jury, if the matter be tried before a jury, upon submission to the jury of a special interrogatory for such purpose; or
(3) Found by the court, if the matter be tried by the court without a jury.
(d) Nothing in this section shall be construed to limit the sentencing alternatives made available to circuit court judges under other provisions of this code."
At the request of Delegate Boggs, and by unanimous consent, the bill (Com. Sub. for S. B. 398) was advanced to third reading with amendments pending.
Com. Sub. for S. B. 414, Relating to Pharmaceutical Cost Management Council and health care delivery systems; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page three, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §5-16-7b of the Code of West Virginia,1931, as amended, be repealed; that §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C- 10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17 of said code be repealed; that §5F-2-2 of said code be amended and reenacted; that §16-29H-1, §16- 29H-2, §16-29H-3, §16-29H-4, and §16-29H-5 of said code be amended and reenacted; that said code be amended by adding thereto five new sections designated §16-29H-6, §16-29H-7, §16-29H- 8, §16-29H-9 and §16-29-10, all to read as follows:
5F. ORGANIZATION OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT.

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

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

§16-29H-1. Legislative findings.
The Legislature finds:
(1) Rising health care costs have a significant impact not only on the citizens of the state but also the state's ability to develop a competitive advantage in seeking new business. Reducing this level of costs and developing new, more effective options for reducing growth in health care spending is essential to ensuring the health of West Virginia's citizens and to the advancement of a well developed workforce.
(2) West Virginia spends thirteen percent more per person on health care than the national average. Moreover, the growth in spending in the state is higher than the national average. These rising costs have contributed to fewer employers, particularly small employers, offering health insurance as a benefit of employment. This is an occurrence that may further drive up health care costs throughout the state.
(3) West Virginia is among the highest in such health care indicators as childhood and adult obesity which provides a direct connection to higher rates of diabetes, hypertension, hyperlipidemia, heart disease, pulmonary disorders and comorbid depression experienced in West Virginia. Nearly one third of the rise in health care costs can be attributed to the rise in obesity throughout the state and the nation. Additionally, high rates of chronic illness represents a substantial reduction in worker productivity.
(4) To address the concerns over rising costs, West Virginia must change the way it pays for care, shifting the focus to primary care and prevention. Seventy-five percent of health care spending is associated with treatment of chronic diseases requiring on going medical management over time. Patients with chronic diseases, however, only receive fifty-six percent of the clinically recommended preventive services. This lack of preventive services creates a seventy-five percent increase in health care spending.
(5) Health care delivery in West Virginia needs to be modernized. This will require substantial changes in how health care is delivered to the chronically ill, an increase in information technology tools used for patient management, a simplification of health care processing and a broad overhaul in our perceptions of wellness and prevention.
(6) West Virginians must be challenged to engage in a more healthy lifestyle, they must alter the focus of their perception of health care from one of episodic care to prevention and wellness efforts. Equally as important, is that healthcare providers must be engaged with their patients and in the process of delivery of health care and strive for continuous improvement of the quality of care they provide.
(7) West Virginia must develop a health care system that is sufficient to meet the needs of its citizens; equitable, fair and sustainable but that is also accountable for quality, access, cost containment and service delivery.
§16-29H-2. Creation of the Governor's Office of Health Enhancement and Lifestyle Planning; duties.
(a) There is created the Governor's Office of Health Enhancement and Lifestyle Planning. The purpose of this office is to coordinate all state health care system reform initiatives among executive branch agencies, departments, bureaus and offices. The office shall be under the direct supervision of the director, who is responsible for the exercise of the duties and powers assigned to the office under the provisions of this article.
(b) All state agencies that have responsibility for the development, improvement and implementation of any aspect of West Virginia's health care system, including, but not limited to, the Public Employees Insurance Agency, the Bureau for Senior Services, the Children's Health Insurance Program, Office of the Pharmaceutical Advocate, the Health Care Authority, the West Virginia Health Information Network, the Insurance Commission, the Department of Health and Human Resources, state colleges and universities, the Pharmaceutical Advocate, public hospitals, state or local institutions such as nursing homes, veteran's homes, the Division of Rehabilitation, public health departments, shall cooperate with the Governor's Office of Health Enhancement and Lifestyle Planning established for the purpose of coordinating the health care delivery system in West Virginia for any program over which they have authority.
§16-29H-3. Director of the Governor's Office of Health Enhancement and Lifestyle Planning appointment; qualifications; oath; salary.

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

(a) The director has the power and authority to:
(1) Purchase or enter into contracts or agreements as necessary to achieve the purposes of this article;
(2) File suit;
(3) At the request of a state agency that has responsibility for any aspect of West Virginia's health care system, evaluate and advise the agency on ways that can better achieve the purposes of this article. In addition, the Director may determine in collaboration with the agencies responsible for health systems in the state to improve efficiencies and reduce costs through inter-agency agreements to enter into contracts. Contracts may only be renegotiated if there is a demonstrated and measurable cost savings for the state and the agencies are in agreement;
(4) Enter into contracts with public or private entities in this state, Governments of other states and jurisdictions and their individual departments, agencies, authorities, institutions, programs, quasi-public corporations and political subdivisions in the event that such contracts would be a collaboration between the health system agencies involved and agreed to by all parties.
(5) Participate in regional or multi-state purchasing alliances or consortia, formed for the purpose of pooling the combined purchasing power of the individual members and increasing purchasing power with agreement of all participating parties and financially advantageous to each party. This power does not effect individual state agencies from participating in any purchasing alliance or consortium as established in their own program. If the director participates in any cooperative purchasing agreement, alliance, or consortium which is comprised of at least five million covered lives, the cooperative purchasing agreement, alliance or consortium may employ an agreed-upon pricing schedule that, in the judgment of the director and the other participating entities, will maximize savings to the broadest percentage of the population of this state:
Provided, That any pharmaceutical manufacturer that deals with such cooperative purchasing agreements, alliances or consortia may request a waiver from such pricing schedule in West Virginia or any other participating state for a particular drug that should be granted if the director finds that the development, production, distribution costs, other reasonable costs and reasonable profits excluding marketing, advertising and promotional costs not essential to bringing the product to market are more than the schedule price of the pharmaceutical or in those cases in which the pharmaceutical in question has a sole source. The director shall determine fees to be paid by the applicant at the time of the waiver application and proof required to be submitted at the time of the waiver request to support the validity of the request.
(6) Make recommendations to the Governor and the Legislature regarding strategies that could more effectively make the health care delivery system in West Virginia more timely, more patient centered, provide greater patient access and quality of service and control health care costs;
(7) Develop and implement other programs, projects and initiatives to achieve the purposes of this article, including initiating, evaluating and promoting primary-care medical homes pursuant to section six of this article and other strategies that result in greater access to health care, assure greater quality of care and result in reduced costs for health care delivery services to the citizens of West Virginia:
Provided, That interagency agreements shall be utilized for services that would be duplicative:
(8) Work with the Health Care Authority to ensure that the Preventive Health Care Pilots are implementing a primary-care medical home model as defined in this article;
(9) Develop a five-year strategic plan as set forth in section six of this article for implementation of West Virginia's health care system reform initiatives together with recommendations for administration, policy, legislative rules or legislation. This plan shall be reported to the Joint Committee on Government and Finance, the Legislative Oversight Commission on Health and Human Resources Accountability and the Governor on or before December 31, 2009;
(10) Provide professional development on emerging health care policies and contracting for health care services; and
(11) Evaluate and offer, if resources become available, a grant program for local communities to encourage healthy lifestyles in collaboration with the Healthy Lifestyles Coalition.
(b) The director shall employ such professional, clerical, technical and administrative personnel as may be necessary to carry out the provisions of this article and with consideration of the appropriation provided by the Legislature;
(c) The director shall prepare and submit to the Governor and the Legislature annual proposed appropriations for the next fiscal year which shall include sums necessary to support the activities of the Governor's Office of Health Enhancement and Lifestyle Planning.
(d) The director shall submit an annual report separate from the strategic plan by January 1 of each year to the Governor and the Legislative Oversight Commission on Health and Human Resources Accountability on the condition, operation and functioning of the Governor's Office of Health Enhancement and Lifestyle Planning;
(e) The director shall supervise the fiscal management and responsibilities of the Governor's Office of Health Enhancement and Lifestyle Planning;
(f) The director shall keep an accurate and complete record of all the Governor's Office of Health Enhancement and Lifestyle Planning proceedings, records and file all bonds and contracts and assume responsibility for the custody and preservation of all papers and records of the office;
(g) The director may convene a series of focus groups, polls and any other available research tool to determine issues of importance to all stakeholders after a thorough review of available research currently in existence. The development of these survey tools shall be done in conjunction with employers, health care providers and consumers. Data received from this research should be easily available to the public and utilized in the development and design of health benefit programs. The data should also be accessible to providers to allow them to meet the needs of the health care market;
(h) The director may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty nine a of this code to accomplish the goals and purposes of this article.
§16-29H-5. Creation of the Health Enhancement and Lifestyle Planning Advisory Council.
(a) The Health Enhancement and Lifestyle Planning Advisory Council is hereby created. The advisory council is an independent, self-sustaining council that has the powers and duties specified in this article.
(b) The advisory council is a part-time council whose members perform such duties as specified in this article. The ministerial duties of the advisory council shall be administered and carried out by the Governor's Office of Health Enhancement and Lifestyle Planning.
(c) Each member of the advisory council shall devote the time necessary to carry out the duties and obligations of the office. Those members appointed by the Governor may pursue and engage in another business or occupation or gainful employment that is not in conflict with the duties of the advisory council.
(d) The advisory council is self-sustaining and independent, however, it, its members, the director and employees of the Governor's Office of Health Enhancement and Lifestyle Planning are subject to article nine-a, chapter six of this code and chapters six-b, twenty-nine-a and twenty-nine-b of this code.
(e) The advisory council is comprised of the following governmental officials: The Secretary of the Department of Health and Human Resources, or his or her designee, the Director of the Public Employees Insurance Agency, or his or her designee, the Commissioner of the Office of the Insurance Commissioner, or his or her designee, the Chair of the West Virginia Health Care Authority, or his or her designee and the director of the West Virginia Children's Health Insurance Program or his or her designee. The council shall also consist of the following public members: One public member shall represent an organization of senior citizens with at least ten thousand members within the state, one public member shall represent the West Virginia Academy of Family Physicians, one public member shall represent the West Virginia Chamber of Commerce, one public member shall represent the largest education employee organization in the state, one public member shall represent the largest labor organization in the state, one public interest organization that represents the interests of consumers, one public member shall represent West Virginia Hospital Association, one public member shall represent the West Virginia Medical Association, one public member shall represent the West Virginia Nurse's Association and two ex-officio nonvoting members shall be the Speaker of the House, or his or her designee, and the President of the Senate, or his or her designee.
(f) Public members shall be appointed by the Governor with advice and consent of the Senate. Each public member shall serve for a term of four years. Of the public members of the advisory council first appointed, one shall be appointed for a term ending June 30, 2010, and two each for terms of three and four years. The remainder shall be appointed for the full four year terms as provided in this section. Each public member serves until his or her successor is appointed and has qualified. The Director of the Governor's Office of Health Enhancement and Lifestyle Planning shall serve as chairperson of the advisory council.
(g) Advisory council members may not be compensated in their capacity as members but shall be reimbursed for reasonable expenses incurred in the performance of their duties.
(h) The advisory council shall meet within the state at such times as the chair may decide, but at least once annually. The advisory council shall also meet upon a call of seven or more members upon seventy-two hours written notice to each member.
(i) Seven members of the advisory council are a quorum for the transaction of any business.
(j) A majority vote of the members present is required for any final determination by the advisory council. Voting by proxy is not allowed.
(k) The advisory council shall keep a complete and accurate record of all its meetings according to section five, article nine-a, chapter six of this code.
(l) Notwithstanding the provisions of section four, article six, chapter six of this code, the Governor may remove any advisory council member for incompetence, misconduct, gross immorality, misfeasance, malfeasance or nonfeasance in office.
(m) The advisory council has general responsibility to review and provide advice and comment to the Governor's Office of Health Enhancement and Lifestyle Planning on its policies and procedures relating to the delivery of health care services or the purchase of prescription drugs. The advisory council shall offer advice to the director on matters over which the office has authority and oversight. This includes, but is not limited to:
(1) Hiring of professional, clerical, technical and administrative personnel as may be necessary to carry out the provisions of this article;
(2) Contracts or agreements;
(3) Rule-making authority; and
(4) Development of policy necessary to meet the duties and responsibilities of the Governor's Office of Health Enhancement and Lifestyle Planning pursuant to the provisions of this article.

§16-29H-6. Development of a strategic plan.

The director shall develop a five-year strategic plan for implementation of any and all health care system reform initiatives. These initiatives shall be included, but are not limited to:
(1) Development of pilot projects for patient-centered medical homes as set forth in section nine of this chapter;
(2) Prioritization of chronic conditions to be targeted for purposes of resource allocation and for greater chronic care management. This should include pilot projects for community based health teams for the development of care plans for healthy children and adults to maintain good health and for at risk populations to prevent development of preventable chronic diseases;
(3) Development of standardized prior authorization requirements and processes from insurers;
(4) Coordination with the State Board of Education as set forth in article two, chapter eighteen of this code to provide for:
(i) The preservation and allocation of recess time away from instruction and separate from physical education classes in the state schools;
(ii) Continuing education for school food personnel and a career hierarchy for food personnel that offers rewards for continuing education hours and credits;
(iii) School based physical education coordinators; and
(iv) Placement of a dietician in each regional education service area throughout the state.
(5) Implementation of school based initiatives to achieve greater dietary consistency in West Virginia's school system and to gain greater physical fitness from students;
(6) Development of community based projects designed for the construction, development and maintenance of bicycle and pedestrian trails and sidewalks;
(7) Development and implementation of universal wellness and health promotion benefits;
(8) Continued promotion and support for efforts to decrease the number of West Virginians using tobacco products;
(9) Any necessary changes that will increase small businesses who offer available health insurance as a benefit of employment;
(10) Development of goals to further improve health care delivery in West Virginia. This should include a means to evaluate progress toward achieving these goals in a simple and timely manner;
(11) Measurement of progress of health care providers and physicians to the adoption and use of electronic medical records in their offices;
(12 ) Collaboration on health information technology with the West Virginia Health Information Network, the Bureau of Medical Services and other appropriate entities which shall include:
(i) Working through the West Virginia Health Information Network, the Bureau of Medical Services and other appropriate entities, to develop a collaborative approach for health information exchange;
(ii) Facilitating and encouraging of ongoing projects such as electronic medical record resources in community health clinics;
(iii) Encouragement of continued development of hospital systems and deployment of hospital supported electronic medical records when available for hospital based, hospital employed and non-hospital employed physicians;
(iv) Development of strategies to implement tax incentives, vendor discounts, enhanced reimbursement and other means to individual physician offices and clinics to encourage greater adoption and use of electronic medical records;
(v) Development of recommended electronic medical record best practices utilizing the Certification Commission for Healthcare Information Technology as the minimum standard;
(vi) Development of funding mechanisms that provide initial start up funds and a mechanism for sustainability of electronic medical records; and
(vii) Exploration of federal funding to ensure the most efficient and cost effective means of meeting the state's health information technology objectives.
§16-29H-7. Coordination with higher education.
The director shall consult with all the colleges and universities in the state, both public and private, with the state's three medical schools with community and technical colleges and with the Higher Education Policy Commission. The purpose of this collaboration would be:
(1) The development of curricula focused on a chronic care model to reflect the multidisciplinary team approach to the delivery of health care services in West Virginia as contemplated by the development of a patient centered medical home as that term is defined in article nine of this chapter; and
(2) The development of technology-centered jobs that would further the state's efforts in moving toward the broader use of electronic health records.
§16-29H-8. Continuing efforts to reduce prescription drug prices.
(a) The rule-making authority previously granted to the Pharmaceutical Cost Management Council in article three-c, chapter five-a of this code to require the reporting of pharmaceutical advertising costs is here transferred to the Governor's Office of Health Enhancement and Lifestyle Planning.
(b) Advertising costs for prescription drugs, based on aggregate national data, shall be reported to the Governor's Office of Health Enhancement and Lifestyle Planning by all manufacturers and labelers of prescription drugs dispensed in this state that employs, directs or utilizes marketing representatives. The reporting shall assist this state in its role as a purchaser of prescription drugs and an administrator of prescription drug programs, enabling this state to determine the scope of prescription drug advertising costs and their effect on the cost, utilization and delivery of health care services and furthering the role of this state as guardian of the public interest.
(c) The Governor's Office of Health Enhancement and Lifestyle Planning shall establish by legislative rule pursuant to the provisions of article three, chapter twenty-nine-a of this code the reporting requirements of information by labelers and manufacturers which shall include all national aggregate expenses associated with advertising and direct promotion of prescription drugs through radio, television, magazines, newspapers, direct mail and telephone communications as they pertain to residents of this state.
(d) The following are exempt from disclosure requirements:
(1) All free samples of prescription drugs intended to be distributed to patients;
(2) All marketing items of a value less than $100;
(3) All payments of reasonable compensation and reimbursement of expenses in connection with a bona fide clinical trial. As used in this subdivision, 'clinical trial' means an approved clinical trial conducted in connection with a research study designed to answer specific questions about vaccines, new therapies or new ways of using known treatments;
(4) All scholarship or other support for medical students, residents and fellows to attend significant educational, scientific or policy making conference of national, regional or specialty medical or other professional association if the recipient of the scholarship or other support is selected by the association; and
(5) Any data that identifies specific prescription drugs or pharmaceuticals by individual name, any group of individuals or specific individual by name and any specific physician or pharmacy or group of physicians or pharmacies by name.
(e) The Governor's Office of Health Enhancement and Lifestyle Planning is authorized to revise existing rules that establish time lines, the documentation, form and manner of reporting required as he or she, with advice of the advisory council, and determine necessary changes to effectuate the purpose of this article. The director shall include in his or her annual report to the Legislature in an aggregate form, the information provided in the required reporting.
(f) Notwithstanding any provision of law to the contrary, information submitted to the director pursuant to this section is confidential and is not a public record and is not available for release pursuant to the West Virginia Freedom of Information Act codified in chapter twenty-nine-b, article one of this code. Data compiled in aggregate form by the director for the purposes of reporting required by this section is a public record as defined in the West Virginia Freedom of Information Act as long as it does not reveal trade information that is protected by state or federal law or specific prescription drugs or pharmaceuticals by individual name, any group of individuals or specific individual by name and any specific physician or pharmacy or group of physicians or pharmacies by name;
(g) The director is authorized to consider strategies by which West Virginia may manage the increasing costs of prescriptions drugs and increase access to prescription drugs for all of the state's residents, including the authority to:
(1) Explore discount prices or rebate programs for senior and person's without drug coverage;
(2) Explore and if in the best interest of the state and financially feasible, a counter-detailing program aimed at education health care practitioners about the relative costs and benefits of various prescription drugs with an emphasis on generic drugs;
(3) Explore purchasing agreements with public or private sector entities that could be beneficial in the cost pf pharmaceuticals; and
(4) Explore other strategies, as permitted under state and federal law, aimed at managing escalating prescription drug cost and increasing access for citizens of the state and develop necessary legislation to implement such strategies.
§16-29H-9. Patient-centered medical homes.
(a) Legislative findings.
The Legislature finds that:
(1) There is a need in the state to transform the health care services delivery model toward primary prevention and more proactive care management through the development of patient-centered medical homes;
(2) The concept of a patient-centered medical home would promote a partnership between the individual patient, the patients' various health care providers, the patients' family and, if necessary, the community. It integrates the patient as an active participant in their own health and well-being;
(3) The patient-centered medical home provides care through a multidisciplinary health team consisting of physicians, nurse practitioners, nurses, physicians assistants, behavioral health providers, pharmacists, social workers, physical therapists, dental and eye care providers and dieticians to meet the health care needs of a patient in all aspects of preventative, acute, chronic and end of life care using evidence-based medicine and technology;
(4) In a patient-centered medical home each patient has an ongoing relationship with a personal physician. The physician would lead a team of health care providers who take responsibility for the care of the patient or for arranging care with other qualified professionals;
(5) Transitioning health care delivery services to a patient-centered medical home would provide greater quality of care, increase patient safety and ensure greater access to health care;
(6) Currently there are medical home pilot projects underway at the Bureau for Medical Services and the Public Employees Insurance Agency that should be reviewed and evaluated for efficiency and a means to expand these to greater segments of the state's population, most importantly the uninsured.
(b) The patient-centered medical home is a health care setting that facilitates partnerships between individual patients and their personal physicians and, when appropriate, the patients' families and communities. A patient-centered medical home integrates patients as active participants in their own health and well being. Patients are cared for by a physician or physician practice that leads a multidisciplinary health team, which may include, but is not limited to, nurse practitioners, nurses, physician's assistants, behavioral health providers, pharmacists, social workers, physical therapists, dental and eye care providers and dieticians to meet the needs of the patient in all aspects of preventive, acute, chronic care and end of life care using evidence-based medicine and technology. At the point in time that the Center for Medicare and Medicaid Services includes the nurse practitioner as a leader of the multidisciplinary health team, this state will automatically implement this change.

(c) The Governor's Office of Health Enhancement and Lifestyle Planning shall consult with the Bureau for Medical Services and the Public Employees Insurance Agency on current medical home pilot projects which they are operating for their membership population. The director shall evaluate these programs in consultation with the Commissioner of the Bureau for Medical Services and the Director of the Public Employees Insurance Agency for a means to expand these beyond the populations currently being served by these pilots. Once data is available on these pilots that can be reviewed for planning purposes, the director shall utilize this as a means to develop and implement additional patient-centered medical home pilot programs beyond the limited populations served by the Bureau for Medical Services and the Public Employees Insurance Agency. The director shall develop four varying types of patient-centered medical home pilots based upon experience gained from the projects currently in operation at the Bureau for Medical Services and the Public Employees Insurance Agency. These patient-centered medical homes shall be based upon the individual practices of physicians.
(d) The four types of pilot programs shall be:
(1) Chronic Care Model Pilots. -- This model shall focus on smaller physician practices. Primary care providers shall work with payers and providers to identify various disease states. Through the collaborative effort of the primary care provider and the payers and providers, programs shall be developed to improve management of agreed upon conditions of the patient. Through this model, the primary care provider may utilize current practices of multipayer workgroups. These groups shall be comprised of the medical directors of the major health care payers and the state payers along with medical providers and others.
(2) Individual Medical Homes Pilots. -- These pilots shall focus on larger physician practices. They shall seek certification from the National Committee on Quality Assurance. That initial certification will be Level I certification. This would be granted by virtue of certifying the provider is in the process of attainting certification and currently have met provisional standards as set by the National Committee on Quality Assurance. This provisional certification lasts only one year with no renewal.
(3) Community-Centered Medical Home Pilots. -- This approach shall link primary care practices with community health teams which would grow out of the current structure in place for federally qualified health centers. The community health teams shall include social and mental health workers, nurse practitioners, care coordinators and community health workers. These personnel largely exist in community hospitals, home health agencies and other settings. These pilots shall identify these resources as a separate team to collaborate with the primary care practices. The teams would focus on primary prevention such as smoking cessation programs and wellness interventions as well as working with the primary care practices to manage patients with multiple chronic conditions. Within this pilot all health care agencies are connected and share resources. Citizens can enter the system of care from any point and receive the most appropriate level of care or be directed to the most appropriate care. Any financial incentives in this model would involve all health care payers and could be used to encourage collaboration between primary care practices and the community health teams.
(4) Medical Homes for the Uninsured Pilots. -- These pilots shall focus on medical homes to serve the uninsured. They shall include various means of providing care to the uninsured with primary and preventative care. Through this mechanism, a variety of pilots may be developed that shall include screening, treatment of chronic disease and other aspects of primary care and prevention services. The pilots will be chosen based on their design meeting the requirements of this subsection and the resources available to provide these services.
(e) The Governor's Office of Health Enhancement and Lifestyle Planning may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty nine a of this code if they deem them necessary to implement this section.
(1) The Governor's Office of Health Enhancement and Lifestyle Planning shall establish by guidelines, criteria to evaluate the pilot program and may require participating providers to submit such data and other information related to the pilot program as may be required by the Governor's Office of Health Enhancement and Lifestyle Planning. For purposes of this article, this information shall be exempt from disclosure under the Freedom of Information Act in article one, chapter twenty nine b of this code.
(2) No later than December 1, 2009, and annually thereafter during the operation of the pilot program, the Governor's Office of Health Enhancement and Lifestyle Planning must submit a report to the Legislative Oversight Commission of Health and Human Resources Accountability as established in article twenty nine e of this chapter on progress made by the pilot project including suggested legislation, necessary changes to the pilot program and suggested expansion of the pilot program.
§16-29H-10. Exemption from Purchasing Division requirements.
The provisions of article three, chapter five-a of this code do not apply to the agreements and contracts executed under the provisions of this article, except that the contracts and agreements shall be approved as to form and conformity with applicable law by the Attorney General.
"
The bill was then ordered to third reading.
Com. Sub. for S. B. 439, Permitting State Police Superintendent consult with Insurance Commissioner; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on on page five, section ten, line seventy-four, after the stricken word "commission" by striking out the underlined words "accepted and recognized by the Insurance Commissioner" and inserting lieu thereof the words "in use by the Insurance Commissioner acting as administrator of claims involving funds created in chapter twenty-three, article two-c of this code".
The bill was then ordered to third reading.
Com. Sub. for S. B. 440, Increasing county litter control officers' authority; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 451, Relating to crime victims' compensation awardson second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, line eighteen-a, line one, following the words "by section", by striking out the word "nine" and inserting in lieu thereof the word "twenty-four".
On page two, section eighteen-a, beginning on line three, following the words "in the plan", by striking out the comma, the words "including, but not limited to", and the comma and inserting in lieu thereof the words "to establish".
On page two, section eighteen-a, beginning on line four, following the word "requirements", by inserting a comma and the words "financial standards" followed by a comma.
And,
On page two, section eighteen-a, line five, following the words "contract periods", by inserting a colon and the words "Provided, that the director shall develop by rule a process to release paid claims experience once a year at the time of plan renewal for any employer unit with fifty or more covered employees who requests such experience."
The bill was then ordered to third reading.
S. B. 452, Relating to Public Employees Insurance Agency underwriting nonstate employer groups; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page five, section three, line four, by striking out "(1)" and inserting in lieu thereof "(i)".
On page five, section three, line six, by striking out "(2)" and inserting in lieu thereof "(ii)".
On page five, section three, line nine, by striking out "(3)" and inserting in lieu thereof "(iii)".
On page thirteen, section four, line thirty-six, following line thirty-five, by striking out the word "un-appropriated".
On page thirteen, section four, line thirty-eight, following the words "Prevention Act Fund" and the period, by inserting the words "The fund shall be administered by the Tax Commissioner. Expenditures from the fund are not authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That for the fiscal year ending June 30, 2010, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature."
On page twenty-one, section twelve, line three, following the word "regulation", by inserting the words "relating to cigarette fire safety standards".
On page twenty-one, section twelve, line four, following the word "with" by striking out the comma, the words "or preempted by" and the comma.
And,
On page twenty-two, section twelve, line five, following the word "article", by inserting a period and striking out the remainder of the section.
The bill was then ordered to third reading.
Com. Sub. for S. B. 456, Creating Reduced Cigarette Ignition Propensity Standard and Fire Prevention Act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page five, section three, line four, by striking out "(1)" and inserting in lieu thereof "(i)".
On page five, section three, line six, by striking out "(2)" and inserting in lieu thereof "(ii)".
On page five, section three, line nine, by striking out "(3)" and inserting in lieu thereof "(iii)".
On page thirteen, section four, line thirty-six, following line thirty-five, by striking out the word "un-appropriated".
On page thirteen, section four, line thirty-eight, following the words "Prevention Act Fund" and the period, by inserting the words "The fund shall be administered by the Tax Commissioner. Expenditures from the fund are not authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That for the fiscal year ending June 30, 2010, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature."
On page twenty-one, section twelve, line three, following the word "regulation", by inserting the words "relating to cigarette fire safety standards".
On page twenty-one, section twelve, line four, following the word "with" by striking out the comma, the words "or preempted by" and the comma.
And,
On page twenty-two, section twelve, line five, following the word "article", by inserting a period and striking out the remainder of the section.
The bill was then ordered to third reading.

Com. Sub. for S. B. 461, Extending selenium effluent limits compliance time; on second reading, coming up in regular order, was read a second time and ordered to third reading.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof, the following language:
"§22-11-6. Requirement to comply with standards of water quality and effluent limitations.
All persons affected by rules establishing water quality standards and effluent limitations shall promptly comply therewith: Provided, That where necessary and proper, the chief may specify a reasonable time for persons not complying with such standards and limitations to comply therewith, and upon the expiration of any such period of time, the chief shall revoke or modify any permit previously issued which authorized the discharge of treated or untreated sewage, industrial wastes or other wastes into the waters of this state which result in reduction of the quality of such waters below the standards and limitations established therefor by rules of the board or director. The Legislature finds that there are concerns within West Virginia regarding the applicability of the research underlying the federal selenium criteria to a state such as West Virginia which has high precipitation rates and free-flowing streams and that the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia and, further, that considerable research is required to determine if selenium is having an impact on West Virginia streams, to validate or determine the proper testing methods for selenium and to better understand the chemical reactions related to selenium mobilization in water. For existing NPDES permits, the Department may extend the time period for achieving water quality-based effluent limits for selenium discharges into waters supporting aquatic life uses is extended to July 1, 2012, upon compliance with all federally required public notice requirments for such modifications, upon a finding that the permittee cannot comply with its existing compliance schedule and that an extension is not in violation of any state or federal laws, rules or regulations. The West Virginia Department of Environmental Protection is hereby directed to undertake a comprehensive study relating to selenium and prepare a report detailing such findings and submitting the report to the Joint Committee on Government and Finance no later than January 1, 2010. In conducting such study, the West Virginia Department of Environmental Protection shall consult with, among others, West Virginia University and the West Virginia Water Research Institute."
The bill was then read a third time.
Com. Sub. for S. B. 472, Revising certain outdoor advertising restrictions' on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk, amending the bill on page ten, section thirteen, lines twenty-two and twenty-three by reinserting the following words "outdoor advertising sign, display or device solely on his or her own property".
And,
On page ten, section thirteen, line twenty-three, before the word "on-premise", by inserting the word "or".
At the request of Delegate Webster, and by unanimous consent, the Committee amendment was withdrawn.
The bill was then ordered to third reading.
Com. Sub. for S. B. 484, Relating to ad valorem property taxes; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page twenty, section fifteen-a, line seven, following the word "section", by striking out the word "fourteen" and inserting in lieu thereof the word "fifteen".
On page twenty-one, section fifteen-a, line twelve, by striking out the word "fourteen" and inserting in lieu thereof the word "fifteen".
On page forty-five, section twenty-five-a, line twenty-three, following the words "interest at", by inserting the word "the".
On page fifty, section three, line twenty-eight, following the word "fined", by striking out the number "$1,000", and inserting in lieu thereof the number "$100".
On page fifty-one, section three, line thirty, by restoring the word "for".
And,
On page fifty-five, section six, line nineteen, following the words "this chapter", by striking out the period and inserting a colon and the following: Provided, That if the assessment exceeds sixty percent of the final appraisal by the Tax Commissioner, the taxpayer may notify the Tax Commissioner in writing of this error, whereupon the Tax Commissioner shall, if such error is confirmed by the Tax Commissioner, instruct the assessor in writing to lower the assessment to sixty percent of the final appraisal. The assessor shall, upon receipt of such instruction from the Tax Commissioner, lower the assessment as required."
The bill was then ordered to third reading.

S. B. 492, Clarifying certain Public Employees Insurance Agency retirement requirements; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 498, Relating to early childhood education; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page three, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §49-2E-1, §49-2E-2, §49-2E-3 and §49-2E-4, all to read as follows:
ARTICLE 2E. QUALITY RATING AND IMPROVEMENT SYSTEM.
§49-2E-1. Findings and intent; advisory council.
(a) The Legislature finds that:
(1) High quality early childhood development substantially improves the intellectual and social potential of children and reduces societal costs;
(2) A child care program quality rating and improvement system provides incentives and resources to improve the quality child care programs; and
(3) A child care program quality rating and improvement system provides information about the quality of child care programs to parents so they may make more informed decisions about the placement of their children.
(b) It is the intent of the Legislature to:
(1) Require the Secretary of the Department of Health and Human Resources promulgate a legislative rule and establish a plan for the phased implementation of a child care program quality rating and improvement system not inconsistent with the provisions of this article.
(c) The Secretary of the Department of Health and Human Resources shall create a quality rating and improvement system advisory council to provide advice on the development of the rule and plan for the phased implementation of a child care program quality rating and improvement system and the on-going program review and policies for quality improvement. The secretary shall facilitate meetings of the advisory council. The advisory council shall include representatives from the provider community, advocacy groups, the Legislature, providers of professional development services for the early childhood community, regulatory agencies and others who may be impacted by the creation of a quality rating and improvement system.
(d) Nothing in this article requires an appropriation, or any specific level of appropriation, by the Legislature.
§49-2E-2. Creation of statewide quality rating system; legislative rule required; minimum provisions.

(a) The Secretary of the Department of Health and Human Resources shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement a quality rating and improvement system. The quality rating and improvement system shall be applicable to licensed child care centers and facilities and registered family child care homes. If other types of child care settings such as school-age child care programs become licensed after the implementation of a statewide quality rating and improvement system, the secretary may develop quality criteria and incentives that will allow the other types of child care settings to participate in the quality rating and improvement system. The rules shall include, but are not limited to, the following:
(1) A four star rating system for registered family child care homes and a four star rating system for all licensed programs, including family child care facilities and child care centers, to easily communicate to consumers four progressively higher levels of quality child care. One star indicating meeting the minimum acceptable standard and four stars indicating meeting or exceeding the highest standard. The system shall reflect the cumulative attainment of the standards at each level and all lesser levels. Any program accredited by the National Association for the Education of Young Children or the National Association for Family Child Care, as applicable, on the date of implementation of the rating shall automatically be awarded four star status until its next re- accreditation visit. Thereafter, the standards set forth in the rule required by this section must be met notwithstanding national accreditation;
(2) Program standards for registered family child care homes and program standards for all licensed programs, including family child care facilities and child care centers, that are each divided into four levels of attributes that progressively improve the quality of childcare beginning with basic state registration and licensing requirements at level one, through achievement of a national accreditation by the appropriate organization and other standards as set forth in the rule at the fourth level. Participation beyond the first level is voluntary. The program standards shall be categorized using the West Virginia State Training and Registry System Core Knowledge Areas or its equivalent;
(3) Accountability measures that provide for a fair, valid, accurate and reliable assessment of compliance with quality standards, including, but not limited to:
(A) Evaluations conducted by trained evaluators with appropriate early childhood education and training on the selected assessment tool and with a demonstrated inter-rater reliability of eighty- five percent or higher. The evaluations shall include an on-site inspection conducted at least annually to determine whether programs are rated correctly and continue to meet the appropriate standards. The evaluations and observations shall be conducted on at least a statistically valid percentage of center classrooms, with a minimum of one class per age group;
(B) The use of valid and reliable observation and assessment tools, such as environmental rating scales for early childhood, infant and toddler, school-age care and family child care as appropriate for the particular setting and age group;
(C) An annual self-assessment using the proper observation and assessment tool for programs rated at two stars; and
(D) Model program improvement planning shall be designed to help programs improve their evaluation results and level of program quality.
(b) The rules required pursuant to this section shall include policies relating to the review, reduction, suspension or disqualification of child care programs from the quality rating and improvement system.
(c) The rules shall provide for implementation of the statewide quality rating system effective July 1, 2011, subject to section four of this article.
§49-2E-3. Creation of statewide quality improvement system; financial plan to support implementation and quality improvement required as part of rules.
(a) Attached to the proposed rules required in section two of this article, the Secretary of the Department of Health and Human Resources shall submit a financial plan to support the implementation of a statewide quality rating and improvement system and help promote quality improvement. The financial plan shall be considered a part of the rule and shall include specific proposals for implementation of the provisions of this section as determined by the Secretary. The plan shall address, but is not limited to, the following:
(1) State agency staffing requirements, including, but not limited to:
(A) Highly trained evaluators to monitor the assessment process and ensure inter-rater reliability of eighty-five percent or higher;
(B) Technical assistance staff responsible for career advising, accreditation support services, improvement planning, portfolio development and evaluations for improvement planning only. The goal for technical assistance staffing is to ensure that individualized technical assistance is available to participating programs;
(C) A person within the department to collaborate with other professional development providers to maximize funding for training, scholarships and professional development. The person filling this position also shall encourage community and technical colleges to provide courses through nontraditional means such as online training, evening classes and off-campus training;
(D) Additional infant and toddler specialists to provide high level professional development for staff caring for infants and to provide on-site assistance with infant and toddler issues;
(E) At least one additional training specialist at each of the child care resource and referral agencies to support new training topics and to provide training for school-age child care programs. Training providers such as the child care resource and referral agencies shall purchase new training programs on topics such as business management, the Devereux Resiliency Training and Mind in the Making; and
(F) Additional staff necessary for program administration;
(2) Implementation of a broad public awareness campaign and communication strategies that may include, but are not limited to:
(A) Brochures, internet sites, posters, banners, certificates, decals and pins to educate parents; and
(B) Strategies such as earned media campaigns, paid advertising campaigns, e-mail and internet-based outreach, face-to-face communication with key civic groups and grassroots organizing techniques; and
(3) Implementation of an internet-based management information system that meets the following requirements:
(A) The system shall allow for multiple agencies to access and input data;
(B) The system shall provide the data necessary to determine if the quality enhancements result in improved care and better outcomes for children;
(C) The system shall allow access by Department of Health and Human Resources subsidy and licensing staff, child care resource and referral agencies, the agencies that provide training and scholarships, evaluators and the child care programs;
(D) The system shall include different security levels in order to comply with the numerous confidentiality requirements;
(E) The system shall assist in informing practice; determining training needs; and tracking changes in availability of care, cost of care, changes in wages and education levels; and
(F) The system shall provide accountability for child care programs and recipients and assure funds are being used effectively;
(4) Financial assistance for child care programs needed to improve learning environments, attain high ratings and sustain long-term quality without passing additional costs on to families that may include, but are not limited to:
(A) Assistance to programs in assessment and individual program improvement planning and providing the necessary information, coaching and resources to assist programs to increase their level of quality;
(B) Subsidizing participating programs for providing child care services to children of low- income families in accordance with the following:
(i) Base payment rates shall be established at the seventy-fifth percentile of market rate; and
(ii) A system of tiered reimbursement shall be established which increases the payment rates by a certain amount above the base payment rates in accordance with the rating tier of the child care program;
(C) Grants for helping with the cost of national accreditation shall be awarded to child care centers on an equitable basis. The amount of the grants shall be based on the amount of funding available. Two types of grants shall be awarded to child care programs in accordance with the following:
(i) An incentive grant shall be awarded based on the type of child care program and the level at which the child care program is rated with the types of child care programs having more children; and
(ii) Child care programs rated at higher tiers being awarded a larger grant than the types of child care programs having less children and child care programs rated at lower tiers;
(5) Support for increased salaries and benefits for program staff to increase educational levels essential to improving the quality of care that may include, but are not limited to:
(A) Wage supports and benefits provided as an incentive to increase child care programs ratings and as an incentive to increase staff qualifications in accordance with the following:
(i) The cost of salary supplements shall be phased in over a five-year period;
(ii) The Secretary of the Department of Health and Human Resources shall establish a salary scale for each of the top three rating tiers that varies the salary support based on the education of the care giver and the rating tier of the program; and
(iii) Any center with at least a tier two rating that employs at least one staff person participating in the scholarship program required pursuant to paragraph (B) of this subsection or employs degree staff may apply to the Secretary of the Department of Health and Human Resources for funding to provide health care benefits based on the Teacher Education and Compensation Helps model in which insurance costs are shared among the employees, the employer and the state; and
(B) The provision of scholarships and establishment of professional development plans for center staff that would promote increasing the credentials of center staff over a five-year period; and
(6) Financial assistance to the child care consumers whose income is at two hundred percent of the federal poverty level or under to help them afford the increased market price of child care resulting from increased quality.
§49-2E-4. Quality rating and improvement system pilot projects; independent third party evaluation; modification of proposed rule and financial plan; report to Legislature; limitations on implementation.

(a) The Secretary of the Department of Health and Human Resources may promulgate emergency rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement a quality rating and improvement system in up to five counties as pilot projects beginning July 1, 2009. The pilot quality rating and improvement systems shall be in accordance with the provisions of this article for the statewide system and in accordance with the policies and procedures proposed by the Partners Implementing an Early Care and Education System Advisory Council report on Building a Child Care Quality Rating and Improvement System for West Virginia to the extent those policies and procedures are not in conflict with this article. The purpose of the pilot projects is to test the rating system, assess the quality of existing child care providers, provide a basis for estimating the financial requirements of the various elements of a statewide system as set forth in this article and to inform future policy decisions. Notwithstanding any provision of this article to the contrary, the rating or potential rating of a child care provider participating in the study may not be individually disclosed. The secretary may modify and develop additional policies consistent with this article as appropriate.
(c) The Secretary shall contract with an independent third party evaluator to assist the department and the quality rating and improvement system advisory council with establishing and evaluating the pilot project quality rating and improvement system and conducting research on statewide implementation. The Secretary also may contract with the evaluator for on-going evaluation and research for quality improvement. The evaluator shall have access to all project data including data in the management information system provided for in section two of this article. (d) The Secretary shall report annually to the Legislature on the progress on development and implementation of a child care quality rating and improvement system and its impact on improving the quality of childcare in the state. The Secretary may propose amendments to the rules and financial plan necessary to promote implementation of the quality rating and improvement system and improve the quality of childcare and may recommend needed legislation. Nothing in this article requires the implementation of a quality rating and improvement system unless funds are appropriated therefore. The Secretary may prioritize the components of the financial plan for implementation and quality improvement for funding purposes. If insufficient funds are appropriated for full implementation of the quality rating and improvement system beginning on July 1, 2011, the rules shall provide for gradual implementation over a period of several years.
(e) The Legislature recognizes that expenditures, especially one time types of expenditures or expenditures of a limited duration, may be funded with moneys derived through the American Recovery and Reinvestment Act of 2009. A study of the cost of implementing a quality rating and improvement system statewide is expected to be conducted over the next two years.
(f) To accommodate its ongoing role and responsibility in advising both the Secretary of the Department of Health and Human Resources and the State Superintendent, the PIECES advisory group will evaluate and update its current roles and responsibilities, as well as update its current membership to reflect an equitable and proportionate level of representation. PIECES, with the guidance of the State Superintendent and the Secretary, will establish by-laws for workgroups and processes for recommendations and reports to be made to the superintendent and secretary concerning early care and education in West Virginia. The superintendent and secretary, with advisement from the West Virginia Head Start Collaboration Office, will recommend a tri-chair management structure comprised of designees of Head Start, the department of education and the department of health and human resources that allows for shared agenda development and rotating operational responsibilities on an annual basis.
"
The bill was then ordered to third reading.

S. B. 515, Creating Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act; on second reading, coming up in regular order, with an amendment pending, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page three, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"

CHAPTER 44C. UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT.

ARTICLE 1. GENERAL PROVISIONS.
§44C-1-1. Short title.
This chapter may be cited as the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act and is cited in this chapter as 'this act'.
§44C-1-2

. Definitions.


For purposes of this chapter:
(1) 'Adult' means an individual who has attained eighteen years of age.
(2) 'Conservator' means a person appointed by the court to administer the property of an adult, including a person appointed under section one, article one, chapter forty-four-a of this code.
(3) 'Emergency' means a circumstance that likely will result in substantial harm to a respondent's health, safety or welfare and for which the appointment of a guardian is necessary because no other person has authority and is willing to act on the respondent's behalf.
(4) 'Guardian' means a person appointed by the court to make decisions regarding the person of an adult, including a person appointed under
article two of chapter forty-four-a of this code.
(5) 'Guardianship order' means an order appointing a guardian.
(6) 'Guardianship proceeding' means a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued.
(7) 'Home state' means the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of a petition for a protective order or the appointment of a guardian; or if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months ending within the six months prior to the filing of the petition.
(8) 'Incapacitated person' means an adult for whom a guardian has been appointed.
(9) 'Party' means the respondent, petitioner, guardian, conservator, or any other person allowed by the court to participate in a guardianship or protective proceeding.
(10) 'Person', except in the term 'incapacitated person or protected person', means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(11) 'Protected person,' for purposes of this chapter only, means an adult for whom a protective order, as defined in this section, has been issued. 'Protected person,' as used in this chapter, has the meaning ascribed to it in subsection thirteen-b, section four, article one, chapter forty-four-a of this code.
(12) 'Protective order,' for purposes of this chapter only and notwithstanding the meaning which the term may have outside of this chapter, means an order appointing a conservator or other order related to management of an adult's property.
(13) 'Protective proceeding' means a judicial proceeding in which a protective order, as defined in this section, is sought or has been issued.
(14) 'Record' means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(15) 'Respondent' means an adult for whom a protective order or the appointment of a guardian is sought.
(16) 'Significant-connection state' means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available. In determining whether a respondent has a significant connection with a particular state, the court shall consider:
(A) The location of the respondent's family and other persons required to be notified of the guardianship or protective proceeding;
(B) The length of time the respondent at any time was physically present in the state and the duration of any absence;
(C) The location of the respondent's property; and
(D) The extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver's license, social relationship and receipt of services.
(17) 'State' means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe or any territory or insular possession subject to the jurisdiction of the United States.
§44C-1-3. International application.
A court of this state may treat a foreign country as if it were a state for the purpose of applying this act.
§44C-1-4. Communication between courts.
(a) A court of this state may communicate with a court in another state concerning a proceeding arising under this act. The court may allow the parties to participate in the communication. Except as otherwise provided in subsection (b) of this section, the court shall make a record of the communication. The record may be limited to the fact that the communication occurred.
(b) Courts may communicate concerning schedules, calendars, court records and other administrative matters without making a record.

§44C-1-5. Cooperation between courts.
(a) In a guardianship or protective proceeding in this state, a court of this state may request the appropriate court of another state to do any of the following:
(1) Hold an evidentiary hearing;
(2) Order a person in that state to produce evidence or give testimony pursuant to procedures of that state;
(3) Order that an evaluation or assessment be made of the respondent;
(4) Order any appropriate investigation of a person involved in a proceeding;
(5) Forward to the court of this state a certified copy of the transcript or other record of a hearing under subdivision (1) of this subsection or any other proceeding, any evidence otherwise produced under subdivision (2)of this subsection and any evaluation or assessment prepared in compliance with an order under subdivisions (3) or (4)of this subsection;
(6) Issue any order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the incapacitated or protected person;
(7) Issue an order authorizing the release of medical, financial, criminal or other relevant information in that state, including protected health information as defined in 45 C. F. R. Section 164.504, as amended.
(b) If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in subsection (a)of this section, a court of this state has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.
§44C-1-6. Taking testimony in another state.
(a) In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms upon which the testimony is to be taken.
(b) In a guardianship or protective proceeding, a court in this state may permit a witness located in another state to be deposed or to testify by telephone or audiovisual or other electronic means. A court of this state shall cooperate with the court of the other state in designating an appropriate location for the deposition or testimony.
(c) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the best evidence rule.
ARTICLE 2. JURISDICTION.
§44C-2-1. Exclusive basis.
Other provisions of this code notwithstanding, this article provides the exclusive jurisdictional basis for a court of this state to appoint a guardian or issue a protective order for an adult.
§44C-2-2. Determination of jurisdiction.
A court of this state has jurisdiction to appoint a guardian or issue a protective order for a respondent if:
(1) This state is the respondent's home state;
(2) On the date the petition is filed, this state is a significant-connection state and:
(A) The respondent does not have a home state or a court of the respondent's home state has declined to exercise jurisdiction because this state is a more appropriate forum; or
(B) The respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state and, before the court makes the appointment or issues the order:
(i) A petition for an appointment or order is not filed in the respondent's home state;
(ii) An objection to the court's jurisdiction is not filed by a person required to be notified of the proceeding; and
(iii) The court in this state concludes that it is an appropriate forum under the factors set forth in section five of this article;
(3) This state does not have jurisdiction under either subdivision (1) or (2)of this section, the respondent's home state and all significant-connection states have declined to exercise jurisdiction because this state is the more appropriate forum and jurisdiction in this state is consistent with the constitutions of this state and the United States; or
(4) The requirements for special jurisdiction under section three of this article are met.
§44C-2-3. Special jurisdiction.
(a) A court of this state lacking jurisdiction under section two, article two of this chapter has special jurisdiction to do any of the following:
(1) Appoint a guardian in an emergency for a term not exceeding ninety days for a respondent who is physically present in this state;
(2) Issue a protective order with respect to real or tangible personal property located in this state;
(3) Appoint a guardian or conservator for an incapacitated or protected person for whom a provisional order to transfer the proceeding from another state has been issued under procedures similar to those provided in section one, article three of this chapter.
(b) If a petition for the appointment of a guardian in an emergency is brought in this state and this state was not the respondent's home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.
§44C-2-4. Exclusive and continuing jurisdiction.
Except as otherwise provided in section three of this article, a court that has appointed a guardian or issued a protective order consistent with this act has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.
§44C-2-5. Appropriate forum.
(a) A court of this state having jurisdiction under section one, article one, chapter forty-four-a of this code or section two of this article to appoint a guardian or issue a protective order may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum.
(b) If a court of this state declines to exercise its jurisdiction under subsection (a)of this section, it shall either dismiss or stay the proceeding. The court may impose any condition the court considers just and proper, including the condition that a petition for the appointment of a guardian or issuance of a protective order be filed promptly in another state.
(c) In determining whether it is an appropriate forum, the court shall consider all relevant factors, including:
(1) Any expressed preference of the respondent;
(2) Whether abuse, neglect or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect or exploitation;
(3) The length of time the respondent was physically present in or was a legal resident of this or another state;
(4) The distance of the respondent from the court in each state;
(5) The financial circumstances of the respondent's estate;
(6) The nature and location of the evidence;
(7) The ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;
(8) The familiarity of the court of each state with the facts and issues in the proceeding; and
(9) If an appointment were made, the court's ability to monitor the conduct of the guardian or conservator.
§44C-2-6. Jurisdiction declined by reason of conduct.
(a) If at any time a court of this state determines that it acquired jurisdiction to appoint a guardian or issue a protective order because of unjustifiable conduct, the court may:
(1) Decline to exercise jurisdiction;
(2) Exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety and welfare of the respondent or the protection of the respondent's property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or
(3) Continue to exercise jurisdiction after considering:
(A) The extent to which the respondent and all persons required to be notified of the proceedings have acquiesced in the exercise of the court's jurisdiction;
(B) Whether it is a more appropriate forum than the court of any other state under the factors set forth in subsection (c), section five of this article; and
(C) Whether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of section two of this article.
(b) If a court of this state determines that it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorney's fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs or expenses of any kind against this state or a governmental subdivision, agency or instrumentality of this state unless authorized by law other than this act.
§44C-2-7. Notice of proceeding.
If a petition for the appointment of a guardian or issuance of a protective order is brought in this state and this state was not the respondent's home state on the date the petition was filed, in addition to complying with the notice requirements of this state, notice of the petition must be given to those persons who would be entitled to notice of the petition if a proceeding were brought in the respondent's home state. The notice must be given in the same manner as notice is required to be given in this state.
§44C-2-8. Proceedings in more than one state.
Except for a petition for the appointment of a guardian in an emergency or issuance of a protective order limited to property located in this state under section three of this article, if a petition for the appointment of a guardian or issuance of a protective order is filed in this state and in another state and neither petition has been dismissed or withdrawn, the following rules apply:
(1) If the court in this state has jurisdiction under section two of this article, it may proceed with the case unless a court in another state acquires jurisdiction under provisions similar to said section before the appointment or issuance of the order.
(2) If the court in this state does not have jurisdiction under section two, article two of this article, whether at the time the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and communicate with the court in the other state. If the court in the other state has jurisdiction, the court in this state shall dismiss the petition unless the court in the other state determines that the court in this state is a more appropriate forum.
ARTICLE 3. TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP.
§44C-3-1. Transfer to another state.
(a) A guardian or conservator appointed in this state may petition the court to transfer the guardianship or conservatorship to another state.
(b) Notice of a petition under subsection (a) of this section must be given to the persons who would be entitled to notice of a petition in this state for the appointment of a guardian or conservator.
(c) On the court's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the petition, the court shall hold a hearing on a petition filed pursuant to subsection (a) of this section.
(d) The court shall issue an order provisionally granting a petition to transfer a guardianship and shall direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court in the other state and the court finds that:
(1) The incapacitated person is physically present in or is reasonably expected to move permanently to the other state;
(2) An objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the incapacitated person; and
(3) Plans for care and services for the incapacitated person in the other state are reasonable and sufficient.
(e) The court shall issue a provisional order granting a petition to transfer a conservatorship and shall direct the conservator to petition for conservatorship or a protective order in the other state if the court is satisfied that the conservatorship will be accepted by the court of the other state and the court finds that:
(1) The protected person is physically present in or is reasonably expected to move permanently to the other state or the protected person has a significant connection to the other state;
(2) An objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the protected person; and
(3) Adequate arrangements will be made for management of the protected person's property.
(f) The court shall issue a final order confirming the transfer and terminating the guardianship or conservatorship upon its receipt of:
(1) A provisional order accepting the proceeding from the court to which the proceeding is to be transferred which is issued under provisions similar to section two of this article; and
(2) The documents required to terminate a guardianship or conservatorship in this state.
§44C-3-2. Accepting guardianship or conservatorship transferred from another state.
(a) To confirm transfer of a guardianship or conservatorship transferred to this state under provisions similar to section one of this article, the guardian or conservator must petition the court in this state to accept the guardianship or conservatorship. The petition must include a certified copy of the other state's provisional order of transfer.
(b) Notice of a petition under subsection (a) of this section must be given to those persons that would be entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and this state. The notice must be given in the same manner as notice is required to be given in this state.
(c) On the court's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection (a) of this section.
(d) The court shall issue an order provisionally granting a petition filed under subsection (a) of this section unless:
(1) An objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the incapacitated or protected person; or
(2) The guardian or conservator is ineligible for appointment in this state.
(e) The court shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian or conservator in this state upon its receipt from the court from which the proceeding is being transferred of a final order issued under provisions similar to section one of this article transferring the proceeding to this state.
(f) Not later than ninety days after issuance of a final order accepting transfer of a guardianship or conservatorship, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the law of this state.
(g) In granting a petition under this section, the court shall recognize a guardianship or conservatorship or protective order from the other state, including the determination of the incapacitated or protected person's incapacity and the appointment of the guardian or conservator.
(h) The denial by a court of this state of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in this state under article two chapter forty-four-a of this code if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.
ARTICLE 4. REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER STATES.
§44C-4-1. Registration of guardianship orders.

If a guardian has been appointed in another state and a petition for the appointment of a guardian is not pending in this state, the guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship order in this state by filing as a foreign judgment in a court, in any appropriate county of this state, certified copies of the order and letters of office.
§44C-4-2. Registration of protective orders.
If a conservator has been appointed in another state and a petition for a protective order is not pending in this state, the conservator appointed in the other state, after giving notice to the appointing court of an intent to register, may register the protective order in this state by filing as a foreign judgment in a court of this state, in any county in which property belonging to the protected person is located, certified copies of the order and letters of office and of any bond.
§44C-4-3. Effect of registration.
(a) Upon registration of a guardianship or protective order from another state, the guardian or conservator may exercise in this state all powers authorized in the order of appointment except as prohibited under the laws of this state, including maintaining actions and proceedings in this state and, if the guardian or conservator is not a resident of this state, subject to any conditions imposed upon nonresident parties.
(b) A court of this state may grant any relief available under this act and other law of this state to enforce a registered order.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§44C-5-1. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§44C-5-2. Relation to electronic signatures in Global and National Commerce Act.
This act modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit or supersede Section 101(c) of said act, 15 U. S. C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of said act, 15 U. S. C. Section 7003(b).
§44C-5-3. Transitional provision.
(a) This act applies to guardianship and protective proceedings begun on or after the effective date of this chapter as enacted by the seventy-ninth Legislature of West Virginia in 2009.
(b) Articles one, three, and four, and sections five hundred one and five hundred two of this article apply to proceedings begun before the effective date, regardless of whether a guardianship or protective order has been issued."

The bill was then ordered to third reading.
Com. Sub. for S. B. 533, Updating terms in consumers sales and service tax; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 534, Authorizing Chief Technology Officer obtain certain confidential information; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 537, Relating to workers' compensation; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk, amending the bill on page three, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"That §23-5-17 and §23-5-18 of the Code of West Virginia, 1931, as amended, be repealed; that §23-2-1d of said code be amended and reenacted; that §23-2A-1 of said code be amended and reenacted; that §23-2C-8, §23-2C-15, §23-2C-17 and §23-2C-21 of said code be amended and reenacted; that §23-4-1c, §23-4-6b, §23-4-8, §23-4-8c and §23-4-15b of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §23-4-8d; that §23-5-1, §23-5-3 and §23-5-16 be amended and reenacted; and that §33-2-22 of said code be amended and reenacted, all to read as follows:
CHAPTER 23. WORKERS' COMPENSATION.

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

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

(a) Where a compensable injury or death is caused, in whole or in part, by the act or omission of a third party, the injured worker or, if he or she is deceased or physically or mentally incompetent, his or her dependents or personal representative are entitled to compensation under the provisions of this chapter, and shall not by having received compensation be precluded from making claim against the third party.
(b) Notwithstanding the provisions of subsection (a) of this section, if an injured worker, his or her dependents or his or her personal representative makes a claim against the third party and recovers any sum for the claim:
(1) the commission With respect to any claim arising from a right of action that arose or accrued, in whole or in part, on or after January 1, 2006, the private carrier or a self-insured employer, whichever is applicable, shall be allowed statutory subrogation with regard to indemnity and medical benefits paid as of the date of the recovery.
(2) With respect to any claim arising from a right of action that arose or accrued, in whole or in part, prior to January 1, 2006, the Insurance Commissioner and the successor to the commission shall be allowed statutory subrogation with regard to only medical payments paid as of the date of the recovery:
Provided, That with respect to any recovery arising out of a cause of action that arose or accrued prior to July 1, 2003, any money received by the commissioner or self- insured employer as subrogation to medical benefits expended on behalf of the injured or deceased worker shall not exceed fifty percent of the amount received from the third party as a result of the claim made by the injured worker, his or her dependents or personal representative, after payment of attorneys' fee and costs, if such exist.
(3) Notwithstanding the provisions of subdivisions (1) and (2) of this subsection, the Insurance Commissioner, acting as administrator of the Uninsured Employer Fund, shall be allowed statutory subrogation with regard to indemnity and medical benefits paid and to be paid from such fund regardless of the date on which the cause of action arose.

(c)
The commission or self-insured employer For claims that arose or accrued, in whole or in part, prior to the effective date of the reenactment of this section in 2009, and all claims thereafter, the party entitled to subrogation shall permit the deduction from the amount received reasonable attorneys' fees and reasonable costs and may negotiate the amount to accept as subrogation. It is the duty of the injured worker, his or her dependents, his or her personal representative, or his or her attorney to notify the commission and the employer, when the claim is filed against the third party.
(c) (d) In the event that an injured worker, his or her dependents or personal representative makes a claim against a third party, there shall be, and there is hereby created, a statutory subrogation lien upon the moneys received which shall exist in favor of the commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. Any injured worker, his or her dependents or personal representative who receives moneys in settlement in any manner of a claim against a third party remains subject to the subrogation lien until payment in full of the amount permitted to be subrogated under subsection (b) of this section is paid.
(e) (d) Effective January 1, two thousand six, the commission, any successor to the commission, any other private carrier and any self-insured employer shall be allowed statutory subrogation with regard to all medical and indemnity benefits actually paid as of the date of the recovery, The commission, successor to the commission, any other private carrier and the self- insured employer shall permit the deduction from the amount received a reasonable attorney's fees and costs, and may negotiate the amount to accept as subrogation. It is the duty of the injured worker, his or her dependents, his or her personal representative or his or her attorney to give reasonable notice to the commission, successor to the commission, any other Insurance Commissioner, private carrier or the self-insured employer after a claim is filed against the third party and prior to the disbursement of any third party recovery. The statutory subrogation described in this section does not apply to uninsured and underinsured motorist coverage or any other insurance coverage purchased by the injured worker or on behalf of the injured worker. If the injured worker obtains a recovery from a third party and the injured worker, personal representative or the injured worker's attorney fails to protect the statutory right of subrogation created herein, the injured worker, personal representative and the injured worker's attorney shall lose the right to retain attorney fees and costs out of the subrogation amount. In addition, such failure creates a cause of action for the Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, against the injured worker, personal representative and the injured worker's attorney for the amount of the full subrogation amount and the reasonable fees and costs associated with any such cause of action. The right of subrogation granted by the provisions of this subsection shall not attach to any claim arising from a right of action which arose or accrued, in whole or in part, prior to the effective date of the amendment and reenactment of this section during the year two thousand five.
(e) The right of subrogation granted the commission in subsections (a) through (c), inclusive, of this section shall be exercised by the Insurance Commissioner and his or her designated administrator of the old fund, as set forth in article two-c of this chapter, for any claim arising from a right of action which arose or accrued, in whole or in part, prior to the effective date of the amendment and reenactment of this section during the year two thousand five. The Insurance Commissioner and his or her designated administrator shall be paid a recovery fee of ten percent of the actual amount recovered through subrogation with the remainder to be deposited into the old fund.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-8. Workers' Compensation Uninsured Employer Fund.

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

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

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

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

% of Permanent
% of Speech Discrimination Partial Disability
90% and up to and including 100% 0%
80% and up to but not including 90% 1%
70% and up to but not including 80% 3%
60% and up to but not including 70% 4%
0% and up to but not including 60% 5%


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

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

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

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

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

(a) Upon termination of the Workers' Compensation Commission, all of the powers and authority previously conferred upon the Workers' Compensation Commission pursuant to article two, chapter twenty-three of this code, relating to employers in default to the Workers' Compensation Fund, are hereby transferred to the Insurance Commissioner and shall be applied by the commissioner to those employers in default to the Old Fund or having liability to the Uninsured Employer Fund or who are in policy default or fail to maintain mandatory workers' compensation coverage, all as defined in article two-c, chapter twenty-three of this code.
(b) In any case in which an employer is in default to the Old Fund or has liability to the Uninsured Employer Fund or who is in default on a policy or otherwise fails to maintain mandatory workers' compensation coverage, all as defined in article two-c, chapter twenty-three of this code, the commission may bring an action in the circuit court of Kanawha County to enjoin the employer from continuing to operate the employer's business: Provided, That the commissioner may, in his or her sole discretion, and as an alternative to this action pursuant to this subsection, require the employer to file a bond, in the form prescribed by the commissioner, with satisfactory surety in an amount not less than one hundred fifty percent of the total payments, interest and penalties due.
(c) In any action instituted pursuant to subsection (b) of this section, the circuit court shall issue an injunction prohibiting the employer from operating the employer's business, if the Insurance Commissioner proves by a preponderance of the evidence, that the employer is in default to the Old Fund or has liability to the uninsured fund or is in policy default or has otherwise failed to maintain mandatory workers' compensation coverage.
(d) Notwithstanding any provision of this code to the contrary, the commissioner shall have the authority to waive penalty and interest accrued on moneys due the Old Fund. The enactment of the provisions of this subsection shall be applied retrospectively to January 1, 2006, and may not be construed to require the commissioner to adjust or otherwise modify any agreements reached with regard to the payment of penalty or interest since that date.
(e) Notwithstanding any provision of this code to the contrary, the Insurance Commissioner may compromise and settle any claims for moneys due to the Old Fund or the Uninsured Employer Fund. Information regarding settlements is subject to chapter twenty-nine-b of this code. The commissioner shall submit to the President of the Senate, the Speaker of the House of Delegates and the Legislative Auditor an annual report summarizing the settlements into which he or she has entered pursuant to this subsection. The summary shall describe the parties involved, the total amount owed and portions paid, and the terms of the settlement."
On motion of Delegate Webster, the amendment recommended by the Committee on the Judiciary was amended on page thirty-nine, section eight, lines twenty-four and twenty-five and page forty lone one, following the period after the word "mileage" on line twenty-four of page thirty-nine, by striking out the last sentence of section eight in its entirety and inserting in lieu thereof, the following:
"Reimbursement for travel in a personal motor vehicle shall be at the milage reimbursement rates contained in the Department of Administration's Purchasing Division Travel Rules as authorized by section eleven, article three, chapter twelve of this code in effect at the time the treatment is authorized."
The amendment, recommended by the Committee on the Judiciary, was then adopted, as amended.
There being no further amendments, the bill was then ordered to third reading.
Com. Sub. for S. B. 540, Clarifying certain Tax Commissioner's authorities; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk, amending the bill on page four, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §11-6I-3 and §11-6I-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §11-10-5e of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §11-10-25; that §11-13Q-22 of said code be amended and reenacted; that §11-15-3c of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §11-15-9m; that §11-21-21, §11-21-22 and §11-21-23 of said code be amended and reenacted; that §11-24-3a and §11-24-4b of said code be amended and reenacted; that §18-9A-2a of said code be amended and reenacted; and that §21A-6-1c of said code be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 6I. SENIOR CITIZEN PROPERTY TAX PAYMENT DEFERMENT ACT.
§11-6I-3. Property tax payment deferment.
(a) The following homesteads shall qualify for the deferment provided in subsection (b) (c) of this section:
(1) Any homestead owned by an owner sixty-five years of age or older and used and occupied exclusively for residential purposes by such the owner; and
(2) Any homestead that:
(A) Is owned by an owner sixty-five years of age or older who, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility;
(B) Was most recently used and occupied exclusively for residential purposes by the owner or the owner's spouse; and
(C) Has been retained by the owner for noncommercial purposes.
(b) A homestead which is owned, in whole or in part, by any person who is required to pay the federal alternative minimum income tax in the current tax year is disqualified from the deferment provided in this article.
(b) (c) (1) For tax years commencing on or after January 1, 2009, the owner of a homestead meeting the qualifications set forth in subsection (a) of this section may apply for a deferment in the payment of the tax increment of ad valorem taxes assessed under the authority of article three of this chapter on the homestead: Provided, That the deferment may be authorized only when the tax increment is the greater of $300 or ten percent or more: Provided, however, That all deferred taxes are not subject to any rate of interest.
(2) In lieu of the deferment of the tax increment authorized pursuant to this article, a taxpayer entitled to such the deferment may elect to instead apply the senior citizen property tax relief credit authorized under section twenty-four, article twenty-one of this chapter. Any taxpayer making such election shall be fully subject to the terms and limitations set forth in section twenty-four, article twenty-one of this chapter.
§11-6I-5. Determination; notice of denial of application for deferment.
(a) The assessor shall, as soon as practicable after an application for deferment is filed, review that application and either approve or deny it. The assessor shall approve or disapprove an application for deferment within thirty days of receipt. Any application not approved or denied within thirty days is deemed approved. If the application is denied, the assessor shall promptly, but not later than January 1, serve the owner with written notice explaining why the application was denied and furnish a form for filing with the county commission, should the owner desire to take an appeal. The notice required or authorized by this section shall be served on the owner or his or her authorized representative either by personal service or by certified mail.
(b) In the event that the assessor has information sufficient to form a reasonable belief that an owner, after having been originally granted a deferment, is no longer eligible for the deferment, he or she shall, within thirty days after forming this reasonable belief, revoke the deferment and serve the owner with written notice explaining the reasons for the revocation and furnish a form for filing with the county commission should the owner desire to take an appeal.
(c) The assessor shall deny any application made by or for an owner who is required to pay the federal alternative minimum income tax in the current tax year. The application may contain an affirmation, prescribed by the Tax Commissioner, whereby the applicant shall indicate whether the applicant is required to pay the federal alternative minimum income tax in the current tax year. Failure to truthfully indicate whether the applicant is required to pay the federal alternative minimum income tax in the current tax year shall be subject to the applicable penalties of articles nine and ten of this chapter.
ARTICLE 10. TAX PROCEDURE AND ADMINISTRATION ACT.
§11-10-5e. Service of notice.
Notwithstanding any other provision of this code, the Tax Commissioner may designate those assessments, notices, statements of account or other Tax Division documents which shall be sent by personal service or United States Postal Service regular mail, or certified mail or registered mail or by any other means at the discretion of the Tax Commissioner, pursuant to any provision of this chapter. Notices of assessments and administrative decisions shall be served upon the taxpayer either by personal or substituted service or by certified mail. Service of notice by personal or substituted service shall be valid if made by any method authorized by Rule 4 of the West Virginia Rules of Civil Procedure. Service Any service of notice addressed by United States Postal Service regular mail is presumed to be accepted upon mailing unless proven otherwise by the taxpayer. Any service of notice by certified mail shall be valid if accepted by the taxpayer or if addressed to and mailed to the taxpayer's usual place of business or usual place of abode or last known address and accepted by any officer, partner, employee, spouse or child of the taxpayer over the age of eighteen. Any notice addressed and mailed in the above manner and accepted by any person shall be presumed to be accepted by such person unless proven otherwise by the taxpayer. Any notice addressed and mailed in the above manner, and which is refused or not claimed, may then be served by regular mail if such notice is subsequently mailed by first class mail, postage prepaid, to the same address; and date of posting in the United States mail shall be the date of service.
§11-10-25. Taxpayer must show tax exemption applies; presumption.
(a) The burden of proving that a tax exemption applies to any tax administered by the Tax Commissioner shall be upon the taxpayer. Tax exemptions administered by the Tax Commissioner shall be strictly construed against the taxpayer and for the payment of any applicable tax.
(b) To prevent evasion, it is presumed that a tax exemption does not apply until the contrary is clearly established by a preponderance of the evidence.
ARTICLE 13Q. ECONOMIC OPPORTUNITY TAX CREDIT.
§11-13Q-22. Credit available for taxpayers which do not satisfy the new jobs percentage requirement.

(a) Notwithstanding any provision of this article to the contrary, a taxpayer engaged in one or more of the industries or business activities specified in section nineteen of this article which does not satisfy the new jobs percentage requirement prescribed in subsection (c), section nine of this article or, if the taxpayer is a small business as defined in section ten of this article, does not create at least ten new jobs within twelve months after placing qualified investment into service as required by section ten of this article, but which otherwise fulfills the requirements prescribed in this article, is permitted to claim a credit against the taxes specified in section seven of this article in the order so specified that are attributable to and the consequence of the taxpayer's business operations in this state which result in the creation of net new jobs. Credit under this section is allowed in the amount of $3,000 per year, per new job created and filled by a new employee, as those terms are defined in section three of this article for a period of five consecutive years beginning in the tax year when the new employee is first hired. In no case may the number of new employees determined for purposes of this section exceed the total net increase in the taxpayer's employment in this state. Credit allowed under this section shall be allowed beginning in the tax year when the new employee is first hired: Provided, That each new job:
(1) Pays at least $32,000 annually. Beginning January 1, 2010, and on January 1 of each year thereafter, the commissioner shall prescribe an amount that shall apply in lieu of the $32,000 amount during that calendar year. This amount is prescribed by increasing the $32,000 figure by the cost-of-living adjustment for that calendar year;
(2) Provides health insurance and may offer benefits including child care, retirement or other benefits; and
(3) Is a full-time, permanent position, as those terms are defined in section three of this article.
Jobs that pay less than $32,000 annually, or less than the amount prescribed by the commissioner pursuant to subdivision (1) of this subsection, whichever is higher, or that pay that salary but do not also provide benefits in addition to the salary do not qualify for the credit authorized by this section. Jobs that are less than full-time, permanent positions do not qualify for the credit authorized by this section.
The employer having obtained entitlement to the credit shall not be required to raise wages of employees currently employed in jobs upon which the initial credit was based by reason of the cost of living adjustment.
(b) For purposes of this section, the following definitions apply:
(1) Cost-of-living adjustment. -- For purposes of subsection (a) of this section, the cost-of- living adjustment for any calendar year is the percentage (if any) by which the consumer price index for the preceding calendar year exceeds the consumer price index for the calendar year 2009.
(2) Consumer price index for any calendar year. -- For purposes of subdivision (1) of this subsection, the consumer price index for any calendar year is the average of the federal consumer price index as of the close of the twelve-month period ending on August 31 of that calendar year.
(3) Consumer price index. -- For purposes of subdivision (2) of this subsection, the term 'Federal Consumer Price Index' means the most recent consumer price index for all urban consumers published by the United States Department of Labor.
(4) Rounding. -- If any increase under subdivision (1) of this subsection is not a multiple of $50, the increase shall be rounded to the next lowest multiple of $50.
(b) (c) Unused credit remaining in any tax year after application against the taxes specified in section seven of this article is forfeited and does not carry forward to any succeeding tax year and does not carry back to a prior tax year.
(c) (d) The tax credit authorized by this section may be taken in addition to any credits allowable under article thirteen-c, thirteen-d, thirteen-e, thirteen-f, thirteen-g, thirteen-j, thirteen-r or thirteen-s of this chapter.
(d) (e) Reduction in number of employees credit forfeiture. -- If, during the year when a new job was created for which credit was granted under this section or during any of the next succeeding four tax years thereafter, net jobs that are attributable to and the consequence of the taxpayer's business operations in this state decrease, counting both new jobs for which credit was granted under this section and preexisting jobs, then the total amount of credit to which the taxpayer is entitled under this section shall be decreased and forfeited in the amount of $3,000 for each net job lost.
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-3c. Imposition of consumers sales tax on motor vehicle sales; rate of tax; use of motor vehicle purchased out of state; definition of sale; definition of motor vehicle; exemptions; collection of tax by Division of Motor Vehicles; dedication of tax to highways; legislative and emergency rules.

(a) Notwithstanding any provision of this article or article fifteen-a of this chapter to the contrary, beginning on July 1, 2008, all motor vehicle sales to West Virginia residents shall be subject to the consumers sales tax imposed by this article.
(b) Rate of tax on motor vehicles. -- Notwithstanding any provision of this article or article fifteen-a of this chapter to the contrary, the rate of tax on the sale and use of a motor vehicle shall be five percent of its sale price, as defined in section two, article fifteen-b of this chapter: Provided, That so much of the sale price or consideration as is represented by the exchange of other vehicles on which the tax imposed by this section or section four, article three, chapter seventeen-a of this code has been paid by the purchaser shall be deducted from the total actual sale price paid for the motor vehicle, whether the motor vehicle be new or used.
(c) Motor vehicles purchased out of state. -- Notwithstanding this article or article fifteen-a to the contrary, the tax imposed by this section shall apply to all motor vehicles, used as defined by section one, article fifteen-a of this chapter, within this state, regardless of whether the vehicle was purchased in a state other than West Virginia.
(d) Definition of sale. -- Notwithstanding any provision of this article or article fifteen-a of this chapter to the contrary, for purposes of this section, 'sale', 'sales' or 'selling' means any transfer or lease of the possession or ownership of a motor vehicle for consideration, including isolated transactions between individuals not being made in the ordinary course of repeated and successive business and also including casual and occasional sales between individuals not conducted in a repeated manner or in the ordinary course of repetitive and successive transactions.
(e) Definition of motor vehicle. -- For purposes of this section, 'motor vehicle' means every propellable device in or upon which any person or property is or may be transported or drawn upon a highway including, but not limited to: automobiles; buses; motor homes; motorcycles; motorboats; all-terrain vehicles; snowmobiles; low-speed vehicles; trucks, truck tractors and road tractors having a weight of less than fifty-five thousand pounds; trailers, semitrailers, full trailers, pole trailers and converter gear having a gross weight of less than two thousand pounds; and motorboat trailers, fold- down camping trailers, traveling trailers, house trailers and motor homes; except that the term 'motor vehicle' does not include: modular homes, manufactured homes, mobile homes, similar nonmotive propelled vehicles susceptible of being moved upon the highways but primarily designed for habitation and occupancy; devices operated regularly for the transportation of persons for compensation under a certificate of convenience and necessity or contract carrier permit issued by the Public Service Commission; mobile equipment as defined in section one, article one, chapter seventeen-a of this code; special mobile equipment as defined in section one, article one, chapter seventeen-a of this code; trucks, truck tractors and road tractors having a gross weight of fifty-five thousand pounds or more; trailers, semitrailers, full trailers, pole trailers and converter gear having weight of two thousand pounds or greater: Provided, That notwithstanding the provisions of section nine, article fifteen, chapter eleven of this code, the exemption from tax under this section for mobile equipment as defined in section one, article one, chapter seventeen-a of this code; special mobile equipment defined in section one, article one, chapter seventeen-a of this code; Class B trucks, truck tractors and road tractors registered at a gross weight of fifty-five thousand pounds or more; and Class C trailers, semitrailers, full trailers, pole trailers and converter gear having weight of two thousand pounds or greater does not subject the sale or purchase of the vehicle to the consumer sales and service tax imposed by section three of this article.
(f) Exemptions. -- Notwithstanding any other provision of this code to the contrary, the tax imposed by this section shall not be subject to any exemption in this code other than the following:
(1) The tax imposed by this section does not apply to any passenger vehicle offered for rent in the normal course of business by a daily passenger rental car business as licensed under the provisions of article six-d, of this chapter seventeen-a of this code. For purposes of this section, a daily passenger car means a motor vehicle having a gross weight of eight thousand pounds or less and is registered in this state or any other state. In lieu of the tax imposed by this section, there is hereby imposed a tax of not less than $1 nor more than $1.50 for each day or part of the rental period. The Commissioner of Motor Vehicles shall propose an emergency rule in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish this tax.
(2) The tax imposed by this section does not apply where the motor vehicle has been acquired by a corporation, partnership or limited liability company from another corporation, partnership or limited liability company that is a member of the same controlled group and the entity transferring the motor vehicle has previously paid the tax on that motor vehicle imposed by this section. For the purposes of this section, control means ownership, directly or indirectly, of stock or equity interests possessing fifty percent or more of the total combined voting power of all classes of the stock of a corporation or equity interests of a partnership or limited liability company entitled to vote or ownership, directly or indirectly, of stock or equity interests possessing fifty percent or more of the value of the corporation, partnership or limited liability company.
(3) The tax imposed by this section does not apply where motor vehicle has been acquired by a senior citizen service organization which is exempt from the payment of income taxes under the United States Internal Revenue Code, Title 26 U. S. C. §501(c)(3) and which is recognized to be a bona fide senior citizen service organization by the Bureau of Senior Services existing under the provisions of article five, chapter sixteen of this code.
(4) The tax imposed by this section does not apply to any active duty military personnel stationed outside of West Virginia who acquires a motor vehicle by sale within nine months from the date the person returns to this state.
(5) The tax imposed by this section does not apply to motor vehicles acquired by registered dealers of this state for resale only.
(6) The tax imposed by this section does not apply to motor vehicles acquired by this state or any political subdivision thereof or by any volunteer fire department or duly chartered rescue or ambulance squad organized and incorporated under the laws of this state as a nonprofit corporation for protection of life or property.
(7) The tax imposed by this section does not apply to motor vehicles acquired by an urban mass transit authority, as defined in article twenty-seven, chapter eight of this code, or a nonprofit entity exempt from federal and state income tax under the Internal Revenue Code for the purpose of providing mass transportation to the public at large or designed for the transportation of persons and being operated for the transportation of persons in the public interest.
(8) The tax imposed by this section does not apply to the registration of a vehicle owned and titled in the name of a resident of this state if the applicant:
(A) Was not a resident of this state at the time the applicant purchased or otherwise acquired ownership of the vehicle;
(B) Presents evidence as the Commissioner of Motor Vehicles may require of having titled the vehicle in the applicant's previous state of residence;
(C) Has relocated to this state and can present such evidence as the Commissioner of Motor Vehicles may require to show bona fide residency in this state; and
(D) Presents an affidavit, completed by the assessor of the applicant's county of residence, establishing that the vehicle has been properly reported and is on record in the office of the assessor as personal property; and
(E) (D) Makes application to the Division of Motor Vehicles for a title and registration and pays all other fees required by chapter seventeen-a of this code within thirty days of establishing residency in this state as prescribed in subsection (a), section one-a of this article.
(9) On and after January 1, 2009, the tax imposed by this section does not apply to Class B trucks, truck tractors and road tractors registered at a gross weight of fifty-five thousand pounds or more or to Class C trailers, semitrailers, full trailers, pole trailers and converter gear having a weight of two thousand pounds or greater. If an owner of a vehicle has previously titled the vehicle at a declared gross weight of fifty-five thousand pounds or more and the title was issued without the payment of the tax imposed by this section, then before the owner may obtain registration for the vehicle at a gross weight less than fifty-five thousand pounds, the owner shall surrender to the commissioner the exempted registration, the exempted certificate of title and pay the tax imposed by this section based upon the current market value of the vehicle.
(10) The tax imposed by this section does not apply to vehicles leased by residents of West Virginia. On or after January 1, 2009, a tax is imposed upon the monthly payments for the lease of any motor vehicle leased under a written contract of lease by a resident of West Virginia for a contractually specified continuous period of more than thirty days, which tax is equal to five percent of the amount of the monthly payment, applied to each payment, and continuing for the entire term of the initial lease period. The tax shall be remitted to the Division of Motor Vehicles on a monthly basis by the lessor of the vehicle. Leases of thirty days or less are taxable under the provisions of this article and article fifteen-a of this chapter without reference to this section.
(g) Division of Motor Vehicles to collect.-- Notwithstanding any provision of this article, article fifteen-a and article ten of this chapter to the contrary, the Division of Motor Vehicles shall collect the tax imposed by this section: Provided, That such tax is imposed upon the monthly payments for the lease of any motor vehicle leased by a resident of West Virginia, which tax is equal to five percent of the amount of the monthly payment, applied to each payment, and continuing for the entire term of the initial lease period. The tax shall be remitted to the Division of Motor Vehicles on a monthly basis by the lessor of the vehicle.
(h) Dedication of tax to highways. -- Notwithstanding any provision of this article or article fifteen-a of this chapter to the contrary, all taxes collected pursuant to this section, after deducting the amount of any refunds lawfully paid, shall be deposited in the State Road Fund in the State Treasury and expended by the Commissioner of Highways for design, maintenance and construction of roads in the state highway system.
(i) Legislative rules; emergency rules. -- Notwithstanding any provision of this article, article fifteen-a and article ten of this chapter to the contrary, the Commissioner of Motor Vehicles shall promulgate legislative rules explaining and implementing this section, which rules shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code and should include a minimum taxable value and set forth instances when a vehicle is to be taxed at fair market value rather than its purchase price. The authority to promulgate rules includes authority to amend or repeal those rules. If proposed legislative rules for this section are filed in the State Register before June 15, 2008, those rules may be promulgated as emergency legislative rules as provided in article three of said chapter twenty-nine-a.
(j) Notwithstanding any other provision of this code, effective January 1, 2009, no municipal sales or use tax or local sales or use tax or special downtown redevelopment district excise tax or special district excise tax shall be imposed under article twenty-two, chapter seven of this code or article thirteen, chapter eight of this code or article thirteen-b of said chapter or article thirty-eight of said chapter or any other provision of this code, except this section, on sales of motor vehicles as defined in this article or on any tangible personal property excepted or exempted from tax under this section. Nothing in this subsection shall be construed to prevent the application of the municipal business and occupation tax on motor vehicle retailers and leasing companies.
§11-15-9m. Discretionary designation of per se exemptions.
Notwithstanding any other provision of this code, the Tax Commissioner may, by rule, specify those exemptions authorized in this article or in other provisions of this code or applicable federal law for which exemption certificates or direct pay permits are not required.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-21. Senior citizens' tax credit for property tax paid on first $10,000 of taxable assessed value of a homestead in this state; tax credit for property tax paid on the first $20,000 of value for property tax years after December 31, 2006.

(a) Allowance of credit. --
(1) A low-income person who is allowed a $20,000 homestead exemption from the assessed value of his or her homestead for ad valorem property tax purposes, as provided in section three, article six-b of this chapter, shall be allowed a refundable credit against the taxes imposed by this article equal to the amount of ad valorem property taxes paid on up to the first $10,000 of taxable assessed value of the homestead for property tax years that begin on or after January 1, 2003, except as provided in subdivision (2) of this subsection.
(2) For tax years beginning on or after January 1, 2007, a low-income person who is allowed a $20,000 homestead exemption from the assessed value of his or her homestead for ad valorem property tax purposes, as provided in section three, article six-b of this chapter, shall be allowed a refundable credit against the taxes imposed by this article equal to the amount of ad valorem property taxes paid on up to the first $20,000 of taxable assessed value of the homestead for property tax years that begin on or after January 1, 2007: Provided, That for tax years beginning on and after January 1, 2009, any person who is required to pay the federal alternative minimum income tax in the current tax year is disqualified from receiving any tax credit provided under this section.
(3) Due to the administrative cost of processing, the refundable credit authorized by this section may not be refunded if less than $10.
(4) The credit for each property tax year shall be claimed by filing a claim for refund within three years after the due date for the personal income tax return upon which the credit is first available.
(b) Terms defined. --
For purposes of this section:
(1) 'Low income' means federal adjusted gross income for the taxable year that is one hundred fifty percent or less of the federal poverty guideline for the year in which property tax was paid, based upon the number of individuals in the family unit residing in the homestead, as determined annually by the United States Secretary of Health and Human Services.
(2) (A) For tax years beginning before January 1, 2007, 'taxes paid' means the aggregate of regular levies, excess levies and bond levies extended against not more than $10,000 of the taxable assessed value of a homestead that are paid during the calendar year determined after application of any discount for early payment of taxes but before application of any penalty or interest for late payment of property taxes for a property tax year that begins on or after January 1, 2003, except as provided in paragraph (B) of this subdivision.
(B) For tax years beginning on or after January 1, 2007, 'taxes paid' means the aggregate of regular levies, excess levies and bond levies extended against not more than $20,000 of the taxable assessed value of a homestead that are paid during the calendar year determined after application of any discount for early payment of taxes but before application of any penalty or interest for late payment of property taxes for a property tax year that begins on or after January 1, 2007.
(c) Legislative rule. --
The Tax Commissioner shall propose a legislative rule for promulgation as provided in article three, chapter twenty-nine-a of this code to explain and implement this section.
(d) Confidentiality. --
The Tax Commissioner shall utilize property tax information in the statewide electronic data processing system network to the extent necessary for the purpose of administering this section, notwithstanding any provision of this code to the contrary.
§11-21-22. Low-income family tax credit.
In order to eliminate West Virginia personal income tax on families with incomes below the federal poverty guidelines and to reduce the West Virginia personal income tax on families with incomes that are immediately above the federal poverty guidelines, there is hereby created a nonrefundable tax credit, to be known as the low-income family tax credit, against the West Virginia personal income tax. The low-income family tax credit is based upon family size and the federal poverty guidelines. and The low-income tax credit reduces the tax imposed by the provisions of this article on families with modified federal adjusted gross income below or near the federal poverty guidelines: Provided, That for tax years beginning on and after January 1, 2009, any person who is required to pay the federal alternative minimum income tax in the current tax year is disqualified from receiving any tax credit provided under this section.
§11-21-23. Refundable credit for real property taxes paid in excess of four percent of income.
(a) For the tax years beginning on or after January 1, 2008, any homeowner living in his or her homestead shall be allowed a refundable credit against the taxes imposed by this article equal to the amount of real property taxes paid in excess of four percent of their income. If the refundable credit provided in this section exceeds the amount of taxes imposed by this article, the state Department of Revenue shall refund that amount to the homeowner.
(b) Due to the administrative cost of processing, the refundable credit authorized by this section may not be refunded if less than $10.
(c) The credit for each property tax year shall be claimed by filing a claim for refund within twelve months after the real property taxes are paid on the homestead.
(d) For the purposes of this section:
(1) 'Gross household income' is defined as federal adjusted gross income plus the sum of the following:
(A) Modifications in subsection (b), section twelve of this article increasing federal adjusted gross income;
(B) Federal tax-exempt interest reported on federal tax return;
(C) Workers' compensation and loss of earnings insurance; and
(D) Nontaxable Social Security benefits; and
(2) For the tax years beginning before January 1, 2008, 'real property taxes paid' means the aggregate of regular levies, excess levies and bond levies extended against the homestead that are paid during the calendar year and determined after any application of any discount for early payment of taxes but before application of any penalty or interest for late payment of property taxes for property tax years that begin on or after January 1, 2008.
(e) A homeowner is eligible to benefit from this section or section twenty-one of this article, whichever section provides the most benefit as determined by the homeowner. No homeowner may receive benefits under both this section and section twenty-one of this article during the same taxable year. For tax years beginning on and after January 1, 2009, any person who is required to pay the federal alternative minimum income tax in the current tax year is disqualified from receiving any tax credit provided under this section. Nothing in this section denies those entitled to the homestead exemption provided in section three, article six-b of this chapter.
(f) No homeowner may receive a refundable tax credit imposed by this article in excess of $1,000. This amount shall be reviewed annually by the Legislature to determine if an adjustment is necessary.
ARTICLE 24. CORPORATION NET INCOME TAX
.
§11-24-3a. Specific terms defined.
(a) For purposes of this article:

(1) Aggregate effective rate of tax.-- The term 'aggregate effective rate of tax' shall mean the sum of the effective rates of tax imposed by a state or United States possession or any combination thereof on a related member.
(1) (2) Business income.-- The term 'business income' means income arising from transactions and activity in the regular course of the taxpayer's trade or business and includes income from tangible and intangible property if the acquisition, management and disposition of the property or the rendering of services in connection therewith constitute integral parts of the taxpayer's regular trade or business operations and includes all income which is apportionable under the Constitution of the United States.
(3) Captive real estate investment trust. -- The term 'captive real estate investment trust' shall mean a real estate investment trust, the shares or beneficial interests of which:
(A) Are not regularly traded on an established securities market and:
(B) Are more than fifty percent of the voting power or value of the beneficial interests or shares of which are owned or controlled, directly or indirectly or constructively, by a single entity that is:
(i) Treated as an association taxable as a corporation under the Internal Revenue Code of 1986, as amended; and
(ii) Not exempt from federal income tax pursuant to the provisions of Section 501(a) of the Internal Revenue Code of 1986, as amended:
(C) For purposes of applying subparagraph (i), paragraph (B) of this subdivision, the following entities are not considered an association taxable as a corporation:
(i) Any real estate investment trust as defined in Section 856 of the Internal Revenue Code of 1986, as amended, other than a 'captive real estate investment trust;'
(ii) Any qualified real estate investment trust subsidiary under Section 856(i) of the Internal Revenue Code of 1986, as amended, other than a qualified real estate investment trust subsidiary of a 'captive real estate investment trust';
(iii) Any listed Australian property trust, meaning an Australian unit trust registered as a 'managed investment scheme' under the Australian Corporations Act in which the principal class of units is listed on a recognized stock exchange in Australia and is regularly traded on an established securities market, or an entity organized as a trust, provided that a listed Australian property trust owns or controls, directly or indirectly, seventy-five percent or more of the voting power or value of the beneficial interests or shares of the trust; or
(iv) Any qualified foreign entity, meaning a corporation, trust, association or partnership organized outside the laws of the United States and which satisfies the following criteria:
(1) At least seventy-five percent of the entity's total asset value at the close of its taxable year is represented by real estate assets as defined in Section 856(c)(5)(B) of the Internal Revenue Code of 1986, as amended, thereby including shares or certificates of beneficial interest in any real estate investment trust, cash and cash equivalents and United States Government securities;
(2) The entity is not subject to tax on amounts distributed to its beneficial owners or is exempt from entity-level taxation;
(3) The entity distributes at least eighty-five percent of its taxable income as computed in the jurisdiction in which it is organized to the holders of its shares or certificates of beneficial interest on an annual basis;
(4) Not more than ten percent of the voting power or value in the entity is held directly or indirectly or constructively by a single entity or individual or the shares or beneficial interests of the entity are regularly traded on an established securities market; and
(5) The entity is organized in a country which has a tax treaty with the United States.
(D) A real estate investment trust that is intended to be regularly traded on an established securities market, and that satisfies the requirements of Section 856(a)(5) and (6) of the U. S. Internal Revenue Code by reason of Section 856(h)(2) of the Internal Revenue Code is not considered a captive real estate investment trust within the meaning of this section.
(E) A real estate investment trust that does not become regularly traded on an established securities market within one year of the date on which it first becomes a real estate investment trust is not considered not to have been regularly traded on an established securities market, retroactive to the date it first became a real estate investment trust, and shall file an amended return reflecting the retroactive designation for any tax year or part year occurring during its initial year of status as a real estate investment trust. For purposes of this section, a real estate investment trust becomes a real estate investment trust on the first day that it has both met the requirements section 856 of the Internal Revenue Code and has elected to be treated as a real estate investment trust pursuant to Section 856(c)(1) of the Internal Revenue Code.
(2) Business income. (4) Combined group. -- The term 'combined group' means the group of all persons whose income and apportionment factors are required to be taken into account pursuant to subsection (a) or (b) (j) or (k), section thirteen-a of this article in determining the taxpayer's share of the net business income or loss apportionable to this state.
(3) (5) Commercial domicile.-- The term 'commercial domicile' means the principal place from which the trade or business of the taxpayer is directed or managed: Provided, That the commercial domicile of a financial organization, which is subject to regulation as such, shall be at the place designated as its principal office with its regulating authority.
(4) (6) Compensation.-- The term 'compensation' means wages, salaries, commissions and any other form of remuneration paid to employees for personal services.
(5) (7) Corporation. -- 'Corporation' means any corporation as defined by the laws of this state or organization of any kind treated as a corporation for tax purposes under the laws of this state, wherever located, which if it were doing business in this state would be subject to the tax imposed by this article. The business conducted by a partnership which is directly or indirectly held by a corporation shall be considered the business of the corporation to the extent of the corporation's distributive share of the partnership income, inclusive of guaranteed payments to the extent prescribed by regulation. The term 'corporation' includes a joint-stock company and any association or other organization which is taxable as a corporation under the federal income tax law.
(6) (8) Delegate.-- The term 'delegate' in the phrase 'or his or her delegate', when used in reference to the Tax Commissioner, means any officer or employee of the State Tax Division duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article or regulations promulgated thereunder.
(7) (9) Domestic corporation.-- The term 'domestic corporation' means any corporation organized under the laws of West Virginia and certain corporations organized under the laws of the state of Virginia before June 20, 1863. Every other corporation is a foreign corporation.
(10) Effective rate of tax. -- The term 'effective rate of tax' means, as to any state or United States possession, the maximum statutory rate of tax imposed by the state or possession on a related member's net income multiplied by the apportionment percentage, if any, applicable to the related member under the laws of said jurisdiction. For purposes of this definition, the effective rate of tax as to any state or United States possession is zero where the related member's net income tax liability in said jurisdiction is reported on a combined or consolidated return including both the taxpayer and the related member where the reported transactions between the taxpayer and the related member are eliminated or offset. Also, for purposes of this definition, when computing the effective rate of tax for a jurisdiction in which a related member's net income is eliminated or offset by a credit or similar adjustment that is dependent upon the related member either maintaining or managing intangible property or collecting interest income in that jurisdiction, the maximum statutory rate of tax imposed by said jurisdiction shall be decreased to reflect the statutory rate of tax that applies to the related member as effectively reduced by the credit or similar adjustment.
(8) (11) Engaging in business. -- The term 'engaging in business' or 'doing business' means any activity of a corporation which enjoys the benefits and protection of government and laws in this state.
(9) (12) Federal Form 1120. -- The term 'Federal Form 1120' means the annual federal income tax return of any corporation made pursuant to the United States Internal Revenue Code of 1986, as amended, or in successor provisions of the laws of the United States, in respect to the federal taxable income of a corporation, and filed with the federal Internal Revenue Service. In the case of a corporation that elects to file a federal income tax return as part of an affiliated group, but files as a separate corporation under this article, then as to such corporation Federal Form 1120 means its pro forma Federal Form 1120.
(10) (13) Fiduciary. -- The term 'fiduciary' means, and includes, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person.
(11) (14) Financial organization. -- The term 'financial organization' means:
(A) A holding company or a subsidiary thereof. As used in this section 'holding company' means a corporation registered under the federal Bank Holding Company Act of 1956 or registered as a savings and loan holding company other than a diversified savings and loan holding company as defined in Section 408(a)(1)(F) of the federal National Housing Act, 12 U. S. C. §1730(a)(1)(F);
(B) A regulated financial corporation or a subsidiary thereof. As used in this section 'regulated financial corporation' means:
(i) An institution, the deposits, shares or accounts of which are insured under the Federal Deposit Insurance Act or by the federal Savings and Loan Insurance Corporation;
(ii) An institution that is a member of a federal home loan bank;
(iii) Any other bank or thrift institution incorporated or organized under the laws of a state that is engaged in the business of receiving deposits;
(iv) A credit union incorporated and organized under the laws of this state;
(v) A production credit association organized under 12 U. S. C. §2071;
(vi) A corporation organized under 12 U. S. C. § 611 through § 631 (an Edge Act corporation); or
(vii) A federal or state agency or branch of a foreign bank as defined in 12 U. S. C. §3101; or
(C) A corporation which derives more than fifty percent of its gross business income from one or more of the following activities:
(i) Making, acquiring, selling or servicing loans or extensions of credit. Loans and extensions of credit include:
(I) Secured or unsecured consumer loans;
(II) Installment obligations;
(III) Mortgages or other loans secured by real estate or tangible personal property;
(IV) Credit card loans;
(V) Secured and unsecured commercial loans of any type; and
(VI) Loans arising in factoring;
(ii) Leasing or acting as an agent, broker or advisor in connection with leasing real and personal property that is the economic equivalent of an extension of credit as defined by the Federal Reserve Board in 12 CFR 225.25(b)(5);
(iii) Operating a credit card business;
(iv) Rendering estate or trust services;
(v) Receiving, maintaining or otherwise handling deposits;
(vi) Engaging in any other activity with an economic effect comparable to those activities described in subparagraph (I) (i), (ii), (iii), (iv) or (v) of this paragraph.
(12) (15) Fiscal year. -- The term 'fiscal year' means an accounting period of twelve months ending on any day other than the last day of December and on the basis of which the taxpayer is required to report for federal income tax purposes.
(13) (16) Includes and including. -- The terms 'includes' and 'including', when used in a definition contained in this article, do not exclude other things otherwise within the meaning of the term being defined.
(14) (17) Insurance company. -- The term 'insurance company' means any corporation subject to taxation under section twenty-two, article three, chapter twenty-nine of this code or chapter thirty-three of this code or an insurance carrier subject to the surcharge imposed by subdivision (1) or (3), subsection (f), section three, article two-c, chapter twenty-three of this code or any corporation that would be subject to taxation under any of those provisions were its business transacted in this state.
(18) Intangible expense. -- The term 'intangible expense' includes: (A) Expenses, losses and costs for, related to or in connection directly or indirectly with the direct or indirect acquisition, use, maintenance or management, ownership, sale, exchange or any other disposition of intangible property to the extent those amounts are allowed as deductions or costs in determining taxable income before operating loss deductions and special deductions for the taxable year under the Internal Revenue Code; (B) amounts directly or indirectly allowed as deductions under Section 163 of the Internal Revenue Code for purposes of determining taxable income under the Internal Revenue Code to the extent those expenses and costs are directly or indirectly for, related to or in connection with the expenses, losses and costs referenced in subdivision(A) of this subsection; (C) losses related to, or incurred in connection directly or indirectly with, factoring transactions or discounting transactions; (D) royalty, patent, technical and copyright fees; (E) licensing fees; and (F) other similar expenses and costs.
(19)
Intangible property. -- 'Intangible property' includes patents, patent applications, trade names, trademarks, service marks, copyrights, mask works, trade secrets and similar types of intangible assets.
(20)
Interest expense. -- 'Interest expense' means amounts directly or indirectly allowed as deductions under Section 163 of the Internal Revenue Code for purposes of determining taxable income under the Internal Revenue Code.
(15) (21) 'Internal Revenue Code' means the Internal Revenue Code as defined in section three of this article, as amended and in effect for the taxable year and without regard to application of federal treaties unless expressly made applicable to states of the United States.
(16) (22) Nonbusiness income.-- The term 'nonbusiness income' means all income other than business income.
(23) Ownership. -- In determining the ownership of stock, assets or net profits of any person, the constructive ownership of Section 318(a) of the Internal Revenue Code of 1986, as amended, as modified by Section 856(d)(5) of the Internal Revenue Code of 1986, as amended, shall apply.
(17) (24) 'Partnership' means a general or limited partnership or organization of any kind treated as a partnership for tax purposes under the laws of this state.
(18) (25) Person. -- The term 'person' is considered interchangeable with the term 'corporation' in this section. The term 'person' means any individual, firm, partnership, general partner of a partnership, limited liability company, registered limited liability partnership, foreign limited liability partnership, association, corporation whether or not the corporation is, or would be if doing business in this state, subject to the tax imposed by this article, company, syndicate, estate, trust, business trust, trustee, trustee in bankruptcy, receiver, executor, administrator, assignee or organization of any kind.
(19) (26) Pro forma return. -- The term 'pro forma return' when used in this article means the return which the taxpayer would have filed with the Internal Revenue Service had it not elected to file federally as part of an affiliated group.
(20) (27) Public utility. -- The term 'public utility' means any business activity to which the jurisdiction of the Public Service Commission of West Virginia extends under section one, article two, chapter twenty-four of this code.
(21) Qualified real estate investment trust. - The term 'Qualified Real Estate Investment Trust' means any real estate invest trust where no single entity owns or controls, directly or indirectly, constructively or otherwise, fifty percent or more of the voting power or value of the beneficial interests or shares of the trust, if the single entity is:
(A) Subject to the provisions of subchapter C, chapter 1, subtitle A, title 26 of the United States Code, as amended;
(B) Not exempt from federal income tax pursuant to the provisions of Section 501 of the Internal Revenue Code of 1986, as amended; and
(C) Not a real estate invest trust as defined in this section or a qualified real estate invest trust subsidiary under Section 856(I) of the Internal Revenue Code of 1986, as amended.
(22) (28) Qualified regulated investment company. -- The term 'qualified regulated investment company' means any regulated investment company where no single entity owns or controls, other than a regulated investment company where more than fifty percent of the voting power or value of the beneficial interests or share of which are owned or controlled, directly or indirectly, constructively or otherwise, fifty percent or more of the voting power or value of the beneficial interests or shares of the company, if the by a single entity that is:
(A) Subject to the provision of subchapter C, chapter 1, subtitle A, Title 26 of the United States Code, as amended;
(B) Not exempt from federal income tax pursuant to the provision of Section 501 of the Internal Revenue Code of 1986, as amended; and
(C) Not a regulated investment company as defined in Section 3 of the Investment Company Act of 1940, as amended, 15 U. S. C. 80a-3: Provided, That a regulated invested company, the shares of which are held in a segregated asset account of a life insurance corporation (as described in Section 817 of the Internal Revenue Code of 1986, as amended), shall be treated as a qualified regulated investment company.
(23) (29) Real estate investment trust.-- The term 'real estate investment trust' has the meaning ascribed to such term in Section 856 of the Internal Revenue Code of 1986, as amended.
(24) (30) Regulated investment company.-- The term 'regulated investment company' has the same meaning as ascribed to such term in Section 851 of the Internal Revenue Code of 1986, as amended.
(31) Related entity. -- 'Related entity' means: (A) A stockholder who is an individual or a member of the stockholder's family set forth in Section 318 of the Internal Revenue Code if the stockholder and the members of the stockholder's family own, directly, indirectly, beneficially or constructively, in the aggregate, at least fifty percent of the value of the taxpayer's outstanding stock; (B) a stockholder, or a stockholder's partnership, limited liability company, estate, trust or corporation, if the stockholder and the stockholder's partnerships, limited liability companies, estates, trusts and corporations own directly, indirectly, beneficially or constructively, in the aggregate, at least fifty percent of the value of the taxpayer's outstanding stock; or (C) a corporation, or a party related to the corporation in a manner that would require an attribution of stock from the corporation to the party or from the party to the corporation under the attribution rules of the Internal Revenue Code if the taxpayer owns, directly, indirectly, beneficially or constructively, at least fifty percent of the value of the corporation's outstanding stock. The attribution rules of the Internal Revenue Code shall apply for purposes of determining whether the ownership requirements of this definition have been met.
(32)
Related member. -- 'Related member' means a person that, with respect to the taxpayer during all or any portion of the taxable year, is: (A) A related entity; (B) a component member as defined in subsection (b), Section 1563 of the Internal Revenue Code; (C) a person to or from whom there is attribution of stock ownership in accordance with subsection (e), Section 1563 of the Internal Revenue Code; or (D) a person that, notwithstanding its form or organization, bears the same relationship to the taxpayer as a person described in subdivisions (A) through (C), inclusive, of this subsection.
(25) (33) Sales.-- The term 'sales' means all gross receipts of the taxpayer that are 'business income' as defined in this section.
(26) (34) State.-- The term 'state' means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States and any foreign country or political subdivision thereof.
(28) (35) Tax.-- The term 'tax' includes, within its meaning, interest and additions to tax, unless the intention to give it a more limited meaning is disclosed by the context.
(27) (36) Taxable year, tax year. -- The term 'taxable year' or 'tax year' means the taxable year for which the taxable income of the taxpayer is computed under the federal income tax law.
(29) (37) Tax Commissioner.-- The term 'Tax Commissioner' means the Tax Commissioner of the State of West Virginia or his or her delegate.
(30) (38) Tax haven. -- The term 'tax haven' means a jurisdiction that, for a particular tax year in question: (A) Is identified by the Organization for Economic Cooperation and Development as a tax haven or as having a harmful preferential tax regime; or (B) a jurisdiction that has no, or nominal, effective tax on the relevant income and: (i) That has laws or practices that prevent effective exchange of information for tax purposes with other governments regarding taxpayers subject to, or benefitting from, the tax regime; (ii) that lacks transparency. For purposes of this definition, a tax regime lacks transparency if the details of legislative, legal or administrative provisions are not open to public scrutiny and apparent or are not consistently applied among similarly situated taxpayers; (iii) facilitates the establishment of foreign-owned entities without the need for a local substantive presence or prohibits these entities from having any commercial impact on the local economy; (iv) explicitly or implicitly excludes the jurisdiction's resident taxpayers from taking advantage of the tax regime's benefits or prohibits enterprises that benefit from the regime from operating in the jurisdiction's domestic market; or (v) has created a tax regime which is favorable for tax avoidance, based upon an overall assessment of relevant factors, including whether the jurisdiction has a significant untaxed offshore financial or other services sector relative to its overall economy. For purposes of this definition, the phrase 'tax regime' means a set or system of rules, laws, regulations or practices by which taxes are imposed on any person, corporation or entity, or on any income, property, incident, indicia or activity pursuant to governmental authority.
(31) (39) Taxpayer. -- The term 'taxpayer' means any person subject to the tax imposed by this article.
(32) (40) This code. -- The term 'this code' means the Code of West Virginia, 1931, as amended.
(33) (41) This state. -- The term 'this State' means the State of West Virginia.
(34) (42) 'United States' means the United States of America and includes all of the states of the United States, the District of Columbia and United States territories and possessions.
(35) (43) 'Unitary business' means a single economic enterprise that is made up either of separate parts of a single business entity or of a commonly controlled group of business entities that are sufficiently interdependent, integrated and interrelated through their activities so as to provide a synergy and mutual benefit that produces a sharing or exchange of value among them and a significant flow of value to the separate parts. For purposes of this article and article twenty-three of this chapter, any business conducted by a partnership shall be treated as conducted by its partners, whether directly held or indirectly held through a series of partnerships, to the extent of the partner's distributive share of the partnership's income, regardless of the percentage of the partner's ownership interest or the percentage of its distributive or any other share of partnership income. A business conducted directly or indirectly by one corporation through its direct or indirect interest in a partnership is unitary with that portion of a business conducted by one or more other corporations through their direct or indirect interest in a partnership if there is a synergy and mutual benefit that produces a sharing or exchange of value among them and a significant flow of value to the separate parts and the corporations are members of the same commonly controlled group.
(36) (44) West Virginia taxable income. -- The term 'West Virginia taxable income' means the taxable income of a corporation as defined by the laws of the United States for federal income tax purposes, adjusted, as provided in this article: Provided, That in the case of a corporation having income from business activity which is taxable without this state, its 'West Virginia taxable income' shall be the portion of its taxable income as defined and adjusted as is allocated or apportioned to this state under the provisions of this article.
(45) Valid business purpose. -- ' Valid business purpose' means one or more business purposes, other than the avoidance or reduction of taxation, which alone or in combination constitute the primary motivation for a business activity or transaction, which activity or transaction changes in a meaningful way, apart from tax effects, the economic position of the taxpayer. The economic position of the taxpayer includes an increase in the market share of the taxpayer or the entry by the taxpayer into new business markets.
(b) Effective date. -- The amendments to this section made in the year 2009 are retroactive and are effective for tax years beginning on and after January 1, 2009.
§11-24-4b. Dividends paid deduction to be added back in determining net income for captive real estate investment trusts and regulated investment companies; deductible intangible expenses and deductible interest paid to be added back in determining net income of certain entities.

(a) The tax imposed by this article shall be imposed upon regulated investment companies as defined by this article, and shall be computed only upon that part of the net income of the regulated investment company which is subject to federal income tax as provided in Sections 852 and 4982 of the Internal Revenue Code of 1986, as amended, except as otherwise provided in this section.
(b) The dividend paid deduction otherwise allowed by a federal law in computing net income of a regulated investment company that is subject to federal income tax shall be added back in computing the tax imposed by this article unless the regulated invested company is a qualified regulated investment company, as defined in this article.
(c) The tax imposed by this article shall be imposed upon real estate investment trusts and shall be computed only upon that part of the net income of the real estate investment trust which is subject to federal income tax as provided in Sections 857 and 858 of the Internal Revenue Code of 1986, as amended, except as otherwise provided in this section.
(d) The dividend paid deduction otherwise allowed by federal law in computing net income of real estate investment trusts that is subject to federal income tax shall be added back in computing the tax imposed by this article unless the real estate investment trust is either:
(1) Publicly traded on an established securities market; or,
(2) A qualified real estate investment trust, as defined in this article.
(a) The dividend paid deduction otherwise allowed by federal law in computing net income of a real estate investment trust that is subject to federal income tax shall be added back in computing the tax imposed by this article if the real estate investment trust is a captive real estate investment trust.
(b) The dividend paid deduction otherwise allowed by federal law in computing net income of a regulated investment company that is subject to federal income tax shall be added back in computing the tax imposed by this article unless the regulated investment company is a qualified regulated investment company as defined in this article.
(c)
Intangible expenses otherwise deductible to be added back for certain taxpayers. --
(1) For purposes of computing its net income under this chapter, a taxpayer shall add back otherwise deductible intangible expense directly or indirectly paid, accrued or incurred in connection with one or more direct or indirect transactions with one or more related members.
(2) If the related member was subject to tax in this state or another state or possession of the United States or a foreign nation or some combination thereof on a tax base that included the intangible expense paid, accrued or incurred by the taxpayer, the taxpayer shall receive a credit against tax due in this state in an amount equal to the higher of the tax paid by the related member with respect to the portion of its income representing the intangible expense paid, accrued or incurred by the taxpayer, or the tax that would have been paid by the related member with respect to that portion of its income if: (A) That portion of its income had not been offset by expenses or losses; or (B) the tax liability had not been offset by a credit or credits. The credit determined shall be multiplied by the apportionment factor of the taxpayer in this state. However, in no case shall the credit exceed the taxpayer's liability in this state attributable to the net income taxed as a result of the adjustment required by subdivision (1) of this subsection.
(3) (A) The adjustment required in subdivision (1) of this subsection and the credit allowed in subdivision (2) of this subsection shall not apply to the portion of the intangible expense that the taxpayer establishes by clear and convincing evidence meets both of the following requirements: (i) The related member during the same taxable year directly or indirectly paid, accrued or incurred a portion to a person that is not a related member; and (ii) the transaction giving rise to the intangible expense between the taxpayer and the related member was undertaken for a valid business purpose.
(B) The adjustment required in subdivision (1) of this subsection and the credit allowed in subdivision (2) of this subsection shall not apply if the taxpayer establishes by clear and convincing evidence of the type and in the form specified by the Tax Commissioner that: (i) The related member was subject to tax on its net income in this state or another state or possession of the United States or some combination thereof; (ii) the tax base for said tax included the intangible expense paid, accrued or incurred by the taxpayer; and (iii) the aggregate effective rate of tax applied to the related member is no less than the tax rate imposed under this article.
(C) The adjustment required in subdivision (1) of this subsection and the credit allowed in subdivision (2) of this subsection shall not apply if the taxpayer establishes by clear and convincing evidence of the type and in the form specified by the commissioner that: (i) The intangible expense was paid, accrued or incurred to a related member organized under the laws of a country other than the United States; (ii) the related member's income from the transaction was subject to a comprehensive income tax treaty between that country and the United States; (iii) the related member's income from the transaction was taxed in that country at a tax rate at least equal to that imposed by this state; and (iv) the intangible expense was paid, accrued or incurred pursuant to a transaction that was undertaken for a valid business purpose and using terms that reflect an arm's length relationship.
(D) The adjustment required in subdivision (1) of this subsection and the credit allowed in subdivision (2) of this subsection shall not apply if the corporation and the commissioner agree in writing to the application or use of alternative adjustments or computations. The commissioner may, in his or her discretion, agree to the application or use of alternative adjustments or computations when he or she concludes that in the absence of agreement the income of the taxpayer would not be reflected accurately.
(d)
Interest expense otherwise deductible to be added back for certain taxpayers. --
(1) For purposes of computing its net income under this chapter, a taxpayer shall add back otherwise deductible interest paid, accrued or incurred to a related member during the taxable year.
(2) If the related member was subject to tax in this state or another state or possession of the United States or a foreign nation or some combination thereof on a tax base that included the interest expense paid, accrued or incurred by the taxpayer, the taxpayer shall receive a credit against tax due in this state equal to the higher of the tax paid by the related member with respect to the portion of its income representing the interest expense paid, accrued or incurred by the taxpayer, or the tax that would have been paid by the related member with respect to that portion of its income if: (A) That portion of its income had not been offset by expenses or losses; or (B) the tax liability had not been offset by a credit or credits. The credit determined shall be multiplied by the apportionment factor of the taxpayer in this state. However, in no case shall the credit exceed the taxpayer's liability in this state attributable to the tax imposed under this article as a result of the adjustment required by subdivision (1) of this subsection.
(3) (A) The adjustment required in subdivision (1) of this subsection and the credit allowed in subdivision (2) of this subsection shall not apply if the taxpayer establishes by clear and convincing evidence, of the type and in the form determined by the commissioner, that: (i) The transaction giving rise to interest expense between the taxpayer and the related member was undertaken for a valid business purpose; and (ii) the interest expense was paid, accrued or incurred using terms that reflect an arm's length relationship.
(B) The adjustment required in subdivision (1) of this subsection and the credit allowed in subdivision (2) of this subsection shall not apply if the taxpayer establishes by clear and convincing evidence of the type and in the form specified by the commissioner that: (i) The related member was subject to tax on its net income in this state or another state or possession of the United States or some combination thereof; (ii) the tax base for said tax included the interest expense paid, accrued or incurred by the taxpayer; and (iii) the aggregate effective rate of tax applied to the related member is no less than the statutory rate of tax applied to the taxpayer under this chapter.
(C) The adjustment required in subdivision (1) of this subsection and the credit allowed in subdivision (2) of this subsection shall not apply if the taxpayer establishes by clear and convincing evidence of the type and in the form specified by the commissioner that: (i) The interest expense is paid, accrued or incurred to a related member organized under the laws of a country other than the United States; (ii) the related member's income from the transaction is subject to a comprehensive income tax treaty between that country and the United States; (iii) the related member's income from the transaction is taxed in that country at a tax rate at least equal to that imposed by this state; and (iv) the interest expense was paid, accrued or incurred pursuant to a transaction that was undertaken for a valid business purpose and using terms that reflect an arm's length relationship.
(D) The adjustment required in subdivision (1) of this subsection and the credit allowed in subdivision (2) of this subsection shall not apply if the corporation and the commissioner agree in writing to the application or use of alternative adjustments or computations. The commissioner may, in his or her discretion, agree to the application or use of alternative adjustments or computations when he or she concludes that in the absence of agreement the income of the taxpayer would not be properly reflected.
(e) Nothing in this subsection shall be construed to limit or negate the commissioner's authority to otherwise enter into agreements and compromises otherwise allowed by law.
(f)
Effective date. -- The amendments to this section made in the year 2009 are retroactive and are effective for tax years beginning on and after January 1, 2009.
CHAPTER 18. EDUCATION.

ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-2a. Definition of levies for general current expense purposes.

(a) For the purposes of this section only, 'property' means only Classes II, III and IV properties exclusive of natural resources property as defined in section ten, article one-c, chapter eleven of this code, personal property, farmland, managed timberland, public utility property or any other centrally assessed property provided in paragraphs (A), (B), (C) and (D), subdivision (2), subsection (a), section five, article one-c, chapter eleven of this code: Provided, That nothing in this subsection may be construed to require that levies for general current expense purposes be applied only to those properties that are included in this definition.
(b) For the purposes of this section only, the median ratio of the assessed values to actual selling prices in the assessment ratio study applicable to the immediately preceding fiscal year shall be used as the indicator to determine the percentage market value that properties are being assessed at.
(c) Notwithstanding any other provision of this section or section two of this article, effective the first day of July, two thousand ten July 1, 2013, for any county that is not assessing property at least at fifty-four percent of market value, 'levies for general current expense purposes' means ninety-eight percent of the levy rate for county boards of education set by the Legislature pursuant to section six-f, article eight, chapter eleven of this code.
(d) Any county that receives additional state aid due to its using a percentage less than ninety-eight percent in the calculation of levies for general current expense purposes, shall report to the state board how the additional state aid was used. The state board shall compile the reports from all the county boards into a single report, and shall report to the Legislative Oversight Commission on Education Accountability how the county boards used this additional state aid. The report shall be made annually as soon as practical after the end of each fiscal year.
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.

ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.
§21A-6-1c. Voluntary withholding program.

(a) An individual filing a new claim for unemployment compensation shall, at the time of filing such the claim, be advised by the appropriate bureau employee that:
(1) Unemployment compensation is subject to federal and state income tax;
(2) Requirements exist pertaining to estimated tax payments;
(3) The individual may elect to have federal and state income tax deducted and withheld from the individual's payment of unemployment compensation at the specified in the federal Internal Revenue Code appropriate federal and state withholding rate; and
(4) The individual may change a previously elected withholding status.
(b) Amounts deducted and withheld from unemployment compensation shall remain in the unemployment fund until transferred to the appropriate federal or state taxing authority as payment of income tax.
(c) The commissioner shall follow all procedures specified by the United States Department of Labor, and the federal Internal Revenue Service and the West Virginia State Tax Division pertaining to the deducting and withholding of income tax.
(d) Amounts shall be deducted and withheld in accordance with the priorities established in rules developed by the commissioner.
(e) This section shall not be effective prior to payments made after December 31, one thousand nine hundred and ninety-six.
(e) Effective date. -- The amendments made to this section regarding withholding for state income tax shall be effective for payments made on and after January 1, 2010."
Delegate Dukemoved to amend the amendment of the Committee on Finance on page sixteen, section three-c, following line seventeen, by inserting the following:
"(11) The tax imposed by this section does not apply to any motor vehicle made in this state before January 1, 1920. If the owner of the motor vehicle sells it to an out-of-state resident, he or she is liable for any tax he or she would have incurred upon previously purchasing the vehicle, but for this exemption."
On the adoption of the amendment to the amendment, Delegate Duke demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 375), and there were--yeas 39, nays 61, absent and not voting none, with the yeas being as follows:
Yeas: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Cowles, Doyle, Duke, Ellem, Evans, Hall, Hamilton, Ireland, Lane, Lawrence, Louisos, McGeehan, Michael, C. Miller, J. Miller, Moye, Overington, Phillips, Porter, Romine, Rowan, Schadler, Schoen, Shaver, Shott, Sobonya, Sumner, Susman, Tabb, Walker and Walters.
So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.
The bill was then ordered to third reading.

S. B. 556, Relating to defensive driving course points deduction; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"That §8-11-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §17B-3-6 of said code be amended and reenacted, all to read as follows:
ARTICLE 11. POWERS AND DUTIES WITH RESPECT TO ORDINANCES AND ORDINANCE PROCEDURES.

§8-11-5. Prejudgment alternative disposition of certain traffic offenses.

(a) Municipal courts are hereby authorized to establish a prejudgment alternative disposition procedure for traffic offenses over which the court has jurisdiction.
(b) Under a prejudgment disposition procedure authorized by subsection (a) of this section, if a person is found guilty of a traffic offense, the municipal court may, with the person's consent, withhold for a reasonable time not to exceed ninety 180 days the entry of a judgment of conviction so that the person may attend a driver safety education course designated by the municipal court. If the person attends said course, the municipal court, if satisfied with the person's participation in the course, shall, without entering a judgment of conviction, dismiss the proceeding against the person.
(c) It shall be a condition of any prejudgment alternative disposition authorized by the provisions of this section that the person pay any fine assessed by the court and pay all fees and costs required to be paid by any provision of this code where a person is convicted of a criminal traffic offense. No municipal court shall utilize any prejudgment alternative disposition procedure unless it collects such fees and costs as are required by any provision of this code and transmits the moneys collected as required by law. No municipal court shall utilize any prejudgment alternative disposition procedure unless it conforms with the requirements of this section.
(d) The procedure authorized by the provisions of this section shall not be available to any person who:
(1) Holds a commercial driver's license issued by this state in accordance with chapter seventeen e of this code, or who holds a commercial driver's license issued by any other state or jurisdiction;
(2) Is arrested while operating a commercial motor vehicle as defined in chapter seventeen-e of this code; or
(3) Is arrested for driving under the influence of alcohol or drugs or any other offense for which a mandatory period of confinement in jail is required.
ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.
§17B-3-6. Authority of division to suspend or revoke license; hearing.

(a) The division is hereby authorized to suspend the driver's license of any person without preliminary hearing upon a showing by its records or other sufficient evidence that the licensee:
(1) Has committed an offense for which mandatory revocation of a driver's license is required upon conviction;
(2) Has by reckless or unlawful operation of a motor vehicle, caused or contributed to an accident resulting in the death or personal injury of another or property damage;
(3) Has been convicted with such frequency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disrespect for traffic laws and a disregard for the safety of other persons on the highways;
(4) Is an habitually reckless or negligent driver of a motor vehicle;
(5) Is incompetent to drive a motor vehicle;
(6) Has committed an offense in another state which if committed in this state would be a ground for suspension or revocation;
(7) Has failed to pay or has defaulted on a plan for the payment of all costs, fines, forfeitures or penalties imposed by a magistrate court or municipal court within ninety days, as required by section two-a, article three, chapter fifty of this code or section two-a, article ten, chapter eight of this code;
(8) Has failed to appear or otherwise respond before a magistrate court or municipal court when charged with a motor vehicle violation as defined in section three-a of this article;
(9) Is under the age of eighteen and has withdrawn either voluntarily or involuntarily due to misconduct from a secondary school or has failed to maintain satisfactory academic progress, as provided in section eleven, article eight, chapter eighteen of this code; or
(10) Has failed to pay overdue child support or comply with subpoenas or warrants relating to paternity or child support proceedings, if a circuit court has ordered the suspension of the license as provided in article five-a, chapter forty-eight-a of this code and the Child Support Enforcement Division has forwarded to the division a copy of the court order suspending the license, or has forwarded its certification that the licensee has failed to comply with a new or modified order that stayed the suspension and provided for the payment of current support and any arrearage due.
(b) The driver's license of any person having his or her license suspended shall be reinstated if:
(1) The license was suspended under the provisions of subdivision (7), subsection (a) of this section and the payment of costs, fines, forfeitures or penalties imposed by the applicable court has been made;
(2) The license was suspended under the provisions of subdivision (8), subsection (a) of this section and the person having his or her license suspended has appeared in court and has prevailed against the motor vehicle violations charged; or
(3) The license was suspended under the provisions of subdivision (10), subsection (a) of this section and the division has received a court order restoring the license or a certification by the Child Support Enforcement Division that the licensee is complying with the original support order or a new or modified order that provides for the payment of current support and any arrearage due.
(c) Any reinstatement of a license under subdivision (1), (2) or (3), subsection (b) of this section shall be subject to a reinstatement fee designated in section nine of this article.
(d) Upon suspending the driver's license of any person as hereinbefore in this section authorized, the division shall immediately notify the licensee in writing, sent by certified mail, return receipt requested, to the address given by the licensee in applying for license, and upon his or her request shall afford him or her an opportunity for a hearing as early as practical within not to exceed twenty days after receipt of such request in the county wherein the licensee resides unless the division and the licensee agree that such hearing may be held in some other county. Upon such hearing the commissioner or his or her duly authorized agent may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may require a reexamination of the licensee. Upon such hearing the division shall either rescind its order of suspension or, good cause appearing therefor, may extend the suspension of such license or revoke such license. The provisions of this subsection providing for notice and hearing are not applicable to a suspension under subdivision (10), subsection (a) of this section.
(e) Notwithstanding the provisions of legislative rule 91 CSR 5, the division may, upon completion of an approved defensive driving course, deduct three points from a licensee's point accumulation provided the licensee has not reached fourteen points. If a licensee has been notified of a pending thirty-day driver's license suspension based on the accumulation of twelve or thirteen points, the licensee may submit proof of completion of an approved defensive driving course to deduct three points and rescind the pending license suspension: Provided, That the licensee submits proof of prior completion of the course and payment of the reinstatement fee in accordance with section nine, article three of this chapter to division prior to the effective date of the suspension."
The bill was then ordered to third reading.
Com. Sub. for S. B. 561, Requiring county land surveyors be licensed; on second reading, coming up in regular order, was read a second time.
At the request of Delegate Boggs, and by unanimous consent, the bill (Com. Sub. for S. B. 561) was advanced to third reading with an amendment pending.
Com. Sub. for S. B. 631, Relating to certain insurance policy cancellation; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:
ARTICLE 6A. CANCELLATION OR NONRENEWAL OF AUTOMOBILE LIABILITY POLICIES.

§33-6A-1. Cancellation prohibited except for specified reasons; notice.

No insurer once having issued or delivered a policy providing automobile liability insurance for a private passenger automobile may, after the policy has been in effect for sixty days, or in case of renewal effective immediately, issue or cause to issue a notice of cancellation during the term of the policy except for one or more of the reasons specified in this section:
(a) The named insured fails to make payments of premium for the policy or any installment of the premium when due;
(b) The policy is obtained through material misrepresentation;
(c) The insured violates any of the material terms and conditions of the policy;
(d) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under the policy:
(1) Has had his or her operator's license suspended or revoked during the policy period including suspension or revocation for failure to comply with the provisions of article five-a, chapter seventeen-c of this code, regarding consent for a chemical test for intoxication: Provided, That when a license is suspended for sixty days by the Commissioner of the Division of Motor Vehicles because a person drove a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, pursuant to subsection (l), section two of said article, the suspension shall may not be grounds for cancellation; or
(2) Is or becomes subject to epilepsy or heart attacks and the individual cannot produce a certificate from a physician testifying to his or her ability to operate a motor vehicle;
(e) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under such policy, is convicted of or forfeits bail during the policy period for any of the following reasons:
(1) Any felony or assault involving the use of a motor vehicle;
(2) Negligent homicide arising out of the operation of a motor vehicle;
(3) Operating a motor vehicle while under the influence of alcohol or of any controlled substance or while having an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(4) Leaving the scene of a motor vehicle accident in which the insured is involved without reporting it as required by law;
(5) Theft of a motor vehicle or the unlawful taking of a motor vehicle;
(6) Making false statements in an application for a motor vehicle operator's license;
(7) Three 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 violations. Notice of any cancellation 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 that the third moving traffic violation is recorded by the Division of Motor Vehicles.
Notwithstanding any of the provisions of this section to the contrary, no insurer may cancel a policy of automobile liability insurance without first giving the insured thirty days' notice of its intention to cancel: Provided, That cancellation of the insurance policy is voidable from the effective date and time of the policy issued by the insurer if the insurer cancels the policy for failure of consideration to be paid by the insured upon initial issuance of the insurance policy and provides written notice to the insured of the cancellation within fifteen days of receipt of notice of the failure of consideration and consideration has not otherwise been provided within ten days of the notice of cancellation. Notice of cancellation for nonpayment of consideration shall be delivered to the named insured or sent by first class mail to the named insured at the address supplied on the application for insurance, and shall state the effective date of the cancellation and shall be accompanied by a written explanation of the specific reason for the cancellation If the insurer fails to provide such written notice to the insured, then the cancellation of the policy for failure of consideration is effective upon the expiration of ten days' notice of cancellation to the insured."
The bill was then ordered to third reading.
Com. Sub. for S. B. 694, Creating intrastate mutual aid system; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page three, section twenty-eight, line twenty-seven, by striking out the words, "Director of the Division of Homeland Security and Emergency Management" and inserting in lieu thereof the word, "Governor".
On page three, section twenty-eight, line twenty-eight, after the word "Director" by inserting the words "of the Division of Homeland Security and Emergency Management".
And,
On page twelve, section twenty-eight, line two hundred-fourteen, by striking subsection (o) in its entirety.
The bill was then ordered to third reading.

Com. Sub. for S. B. 702, Changing workers' compensation purchase date deadline for governmental entities; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 706, Creating State Police leave donation program; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 714, Relating to alternative sentencing programs; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or in a magistrate court under any criminal provision of this code of a misdemeanor or felony, which is punishable by imposition of a fine or confinement in the county or regional jail or a state correctional facility, or both fine and confinement, may, in the discretion of the sentencing judge or magistrate, as an alternative to the sentence imposed by statute for the crime, be sentenced under one of the following programs:
(1) The weekend jail program under which persons would be required to spend weekends or other days normally off from work in jail;
(2) The work program under which sentenced persons would be required to spend the first two or more days of their sentence in jail and then, in the discretion of the court, would be assigned to a county agency to perform labor within the jail, or in and upon the buildings, grounds, institutions, bridges, roads, including orphaned roads used by the general public and public works within the county. Eight hours of labor are to be credited as one day of the sentence imposed. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch and work clothes; or
(3) The community service program under which persons sentenced would spend no time in jail but would be sentenced to a number of hours or days of community service work with government entities or charitable or nonprofit entities approved by the circuit court. Regarding any portion of the sentence designated as confinement, eight hours of community service work is to be credited as one day of the sentence imposed. Regarding any portion of the sentence designated as a fine, the fine is to be credited at an hourly rate equal to the prevailing federal minimum wage at the time the sentence was imposed. In the discretion of the court, the sentence credits may run concurrently or consecutively. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch and work clothes; or
(4) A day-reporting center program if the program has been implemented in the sentencing court's jurisdiction or in the area where the offender resides. For purposes of this subdivision, "day-reporting center" means a court-operated or court-approved facility where persons ordered to serve a sentence in this type of facility are required to report under the terms and conditions set by the court for purposes which include, but are not limited to, counseling, employment training, alcohol or drug testing or other medical testing.
(b) In no event shall any circuit court judge supervise, direct or manage a work program.
(c) In no event may the duration of the alternate sentence exceed the maximum period of incarceration otherwise allowed.
(d) In imposing a sentence under the provisions of this section, the court shall first make the following findings of fact and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for which a mandatory period of confinement is imposed by statute;
(2) In circuit court cases, that the person sentenced is not a habitual criminal within the meaning of sections eighteen and nineteen, article eleven, chapter sixty-one of this code;
(3) In circuit court cases, that the offense underlying the sentence is not a felony offense for which violence or the threat of violence to the person is an element of the offense;
(4) In circuit court cases, that adequate facilities for the administration and supervision of alternative sentencing programs are available through the court's probation officers or the county sheriff or, in magistrate court cases, that adequate facilities for the administration and supervision of alternative sentencing programs are available through the county sheriff; and
(5) That an alternative sentence under provisions of this article will best serve the interests of justice.
(e) Persons sentenced by the circuit court under the provisions of this article remain under the administrative custody and supervision of the court's probation officers, community corrections board, or the county sheriff. Persons sentenced by a magistrate remain under the administrative custody and supervision of the county sheriff.
(f) Persons sentenced under the provisions of this section may be required to pay the costs of their incarceration, including meal costs: Provided, That the judge or magistrate considers the person's ability to pay the costs.
(g) Persons sentenced under the provisions of this section remain under the jurisdiction of the court. The court may withdraw any alternative sentence at any time by order entered with or without notice and require that the remainder of the sentence be served in the county jail, regional jail or a state correctional facility: Provided, That no alternative sentence directed by the sentencing judge or magistrate or administered under the supervision of the sheriff, his or her deputies, a jailer or a guard may require the convicted person to perform duties which would be considered detrimental to the convicted person's health as attested by a physician.
(h) No provision of this section may be construed to limit a circuit judge or magistrate's ability to impose a period of supervision or participation in a community corrections program created pursuant to article eleven-c, chapter sixty-two of this code."
The bill was then ordered to third reading.
Com. Sub. for S. B. 715, Establishing Chesapeake Bay Restoration Initiative"; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page six, section thirty, lines eighty-five through eighty-seven, by striking our the words "final approval by the Legislature of recommendations contained in subsection (g) of this section" and inserting in lieu thereof the words "no later than June 1, 2014."
And,
On page six, section thirty, lines eighty-nine through ninety-one by striking out the words "final approval by the Legislature of recommendations contained in subsection (g) of this section" and inserting in lieu thereof the words "no later than Jun 1, 2014."
The bill was then ordered to third reading.

Com. Sub. for S. B. 724, Relating to health care provider tax; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 756, Increasing military facilities security guards' patrol areas; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page three, section twenty-two, line twenty-three after the word "installation" by inserting a colon and the following words "Provided, That noting in this subparagraph shall confer upon security guards the right to enter upon private property".
On motion of Delegates Webster and Wooton, the bill was then amended on page four, line forty-four, by inserting a new subsection (d) to read as follows:
"(d) Notwithstanding any provision of this code to the contrary, bona fide members of the West Virginia National Guard assigned by the Adjutant General to function as firefighters to safeguard military property of the state or of the United States are hereby empowered to respond to areas adjacent to military facilities and installations at the request of state and local authorities to provide support and mutual aid in the event of accidents, emergency or otherwise."
There being no further amendments was then ordered to third reading.
S. B. 763, Clarifying Racing Commission's authority over certain thoroughbred race horses' registration; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk, amending the bill on page twenty, section thirteen-b, line one hundred sixty-nine, by striking out the words "one restricted race" and inserting in lieu thereof the words "three restricted races".
On page twenty, section thirteen-b, line one hundred seventy-three, by striking out the colon and the following language:
"Provided further, That if sufficient horses and funds are available, any thoroughbred horse racetrack whose licensee participated in the Thoroughbred Development Fund for at least four consecutive calendar years prior to December 31, 1992, shall provide two restricted races per racing day, at least one of which may be split at the discretion of the racing secretary".
And,
On page twenty, section thirteen-b, line one hundred seventy-nine, by striking out the word "race" and inserting in lieu thereof, the word "races".
At the request of Delegate Boggs, and by unanimous consent, the bill (Com. Sub. for S. B. 763) was advanced to third reading with the amendment pending.
Conference Committee Report Availability

At 6:34 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on H. B. 3208.
Miscellaneous Business

Delegate Phillips announced that she was absent on today when the vote was taken on Roll No. 362 , and that had she been present, she would have voted "Yea" thereon.
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. 2170, Authorizing the Department of Commerce to promulgate legislative rules. On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page seven, section two, after line sixty-two, by inserting the following:
On page two, section four, subsection 4.1, after the word "Escalators'" by inserting a comma and the words "issued or effective on October 6, 2007, October 5, 2007, and March 31, 2006, respectively,"
On page two, section four, subsection 4.1, after the word "Chairlifts'" by inserting a comma and the words "published on August 28, 2008,".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2170 - "A Bill to amend and reenact article 10, chapter 64 of the code of West Virginia, 1931, as amended, all relating generally to the promulgation of administrative rules by the Department of Commerce; 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; repealing certain legislative rules; authorizing the Development Office to promulgate a legislative rule relating to brownfield economic development districts; authorizing the Division of Labor to repeal a legislative rule relating to packaging and labeling; authorizing the Division of Labor to repeal a legislative rule relating to a method of sale of commodities; authorizing the Division of Labor to promulgate a legislative rule relating to the West Virginia Manufactured Housing Construction and Safety Standards Board; authorizing the Division of Labor to promulgate a legislative rule relating to weights and measures calibration fees; authorizing the Division of Labor to promulgate a legislative rule relating to standards for weights and measures inspectors adoption of National Conference of Weights and Measures (NCWM) Handbook 130, 1987 edition; authorizing the Division of Labor to promulgate a legislative rule relating to the Amusement Rides and Attractions Safety Act; authorizing the Division of Labor to promulgate a legislative rule relating to the Elevator Safety Act; authorizing the Division of Labor to promulgate a legislative rule relating to the supervision of elevator mechanics and apprentices; authorizing the Division of Natural Resources to promulgate a legislative rule relating to boating; authorizing the Division of Natural Resources to promulgate a legislative rule relating to deer hunting; authorizing the Division of Natural Resources to promulgate a legislative rule relating to lifetime hunting, trapping and fishing licenses; authorizing the Division of Natural Resources to promulgate a legislative rule relating to hunting, trapping and fishing license and stamp fees; authorizing the Division of Tourism to promulgate a legislative rule relating to the direct advertising grants program."
On motion of Delegate Boggs, 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. 376), and there were--yeas 88, nays 10, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Ashley, Border, Lane, McGeehan, C. Miller, Romine, Sobonya and Walters.
Absent And Not Voting: Hall 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. 2170) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 377), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: McGeehan, C. Miller and Sobonya.
Absent And Not Voting: Martin.
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. 2170) 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. 2421, Requires that inoperable fire hydrants be painted black and be reported to emergency dispatch centers.
On motion of Delegate Boggs, 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 article heading and inserting in lieu thereof the following:
"§8-19-22. Identification requirement for fire hydrants that are inoperable or unavailable for use in emergency situations.

(a) The owner or operator of a fire hydrant or any device having the appearance of a fire hydrant that is located in a place that an entity responsible for providing fire suppression services in a fire emergency would expect a fire hydrant to typically be located, shall mark the fire hydrant or device, as set out in subsection (b) of this section, if the owner or operator has actual knowledge that the fire hydrant or device is inoperable or is unavailable for use by an entity providing fire suppression services in a fire emergency.
(b) To mark the fire hydrant or device, the owner or operator of the fire hydrant or device shall:
(1) Paint the fire hydrant or device black if the fire hydrant or device is inoperable or unavailable for use; or
(2) Place a black tarp over the fire hydrant or device if the device is temporarily inoperable or temporarily unavailable for use in a fire emergency, for a period not to exceed fourteen days.
(c) For the purposes of this section, the word 'inoperable' means a fire hydrant that does not produce water flow when activated."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2421 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §8-19-22, relating to fire hydrants; requiring the marking of an inoperable fire hydrant; setting requirements for the marking; and defining inoperable."
On motion of Delegate Boggs, 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. 378), and there were--yeas 95, nays 4, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Doyle, Schadler and Shott.
Absent And Not Voting: 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. 2421) 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. 2464, Authorizing county commissions to designate locations for early voting other than the county courthouse or annex.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 3. VOTING BY ABSENTEES.
§3-3-2a. Early voting areas; prohibition against display of campaign material.

(a) The county commission shall designate the courthouse or annex to the courthouse as the primary location for early voting and in addition, the commission may designate other locations as provided in subsection (b).
(b) The county commission may, with the approval of the county clerk or other official charged with the administration of elections, and the written agreement of the chairpersons of the county executive committees of the two major political parties, designate additional locations for early voting other than the county courthouse or courthouse annex. The additional locations shall comply with the requirements of this article for early in-person voting and criteria prescribed by the Secretary of State.

(c) The Secretary of State is hereby directed to propose legislative and emergency rules in accordance with the provisions of article three, chapter twenty-nine-a of this code as may be necessary to implement the provisions of this section. The rules shall include establishment of criteria to assure neutrality and security in the selection of additional locations.
(d) Throughout the period of early in-person voting, the official designated to supervise and conduct absentee voting shall make the following provisions for voting:
(1) The official shall provide a sufficient number of voting booths or devices appropriate to the voting system at which voters may prepare their ballots. The booths or devices are to be in an area separate from but within clear view of the public entrance area of the official's office or other area designated by the county commission for absentee voting and are to be arranged to ensure the voter complete privacy in casting the ballot.
(2) The official shall make the voting area secure from interference with the voter and shall ensure that voted and unvoted ballots are at all times secure from tampering. No person, other than a person lawfully assisting the voter according to the provisions of this chapter, may be permitted to come within five feet of the voting booth while the voter is voting. No person, other than the officials or employees of the official designated to supervise and conduct absentee voting or members of the board of ballot commissioners assigned to conduct absentee voting, may enter the area or room set aside for voting.
(3) The official designated to supervise and conduct absentee voting shall request the county commission designate another area within the county courthouse, any annex of the courthouse or any other designated as early in-person voting locations within the county, as a portion of the official's office, for the purpose of absentee in-person voting in the following circumstances:
(A) If the voting area is not accessible to voters with physical disabilities;
(B) If the voting area is not within clear view of the public entrance of the office of the official designated to supervise and conduct absentee voting; or
(C) If there is no suitable area for absentee in-person voting within the office.
Any designated area is subject to the same requirements as the regular absentee voting area.
(4) The official designated to supervise and conduct absentee voting shall have at least two representatives to assist with absentee voting: Provided, That the two representatives shall may not be registered with the same political party affiliation or two persons registered with no political party affiliation. The representatives may be full-time employees, temporary employees hired for the period of absentee voting in person or volunteers.
(5) No person may do any electioneering nor may any person display or distribute in any manner, or authorize the display or distribution of, any literature, posters or material of any kind which tends to influence the voting for or against any candidate or any public question on the property of the county courthouse, or any annex facilities, or any other designated early voting locations within the county, during the entire period of regular in-person absentee voting. The official designated to supervise and conduct absentee voting is hereby authorized to remove the material and to direct the sheriff of the county to enforce the prohibition."
On motion of Delegate Boggs, 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. 379), and there were--yeas 75, nays 25, absent and not voting none, with the nays being as follows:
Nays: Armstead, Azinger, Blair, Butcher, Duke, Ellem, Ennis, Evans, Givens, Hamilton, Ireland, Lane, C. Miller, J. Miller, Moye, Overington, Porter, Rodighiero, Rowan, Schadler, Shott, Sobonya, Stowers, Sumner and Walters.
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. 2464) 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. 2504, Establishing the Silver Alert Plan, an alert system for missing cognitively impaired persons.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page seven, section four, line eight, after the word "Police", by inserting the words "or other appropriate law-enforcement agency".
On page seven, section four, line eleven, after the word "domiciled", by inserting the words "or believed to be located".

And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2504 - "A Bill to amend and reenact §15-3A-7 of the Code of West Virginia, 1931, as amended; and by further amending said code by adding thereto a new article, designated §15-3B-1, §15-3B-2, §15-3B-3, §15-3B-4, §15-3B-5 and §15-3B-6 of said code, all relating to the establishment of an alert system for missing cognitively impaired persons; providing for the use of video image recording devices for search purposes during a Silver Alert; providing legislative findings; providing criteria for the activation of a Silver Alert; providing for notice and broadcasting of a Silver Alert; and providing immunity for individuals providing information pursuant to a Silver Alert in good faith."
On motion of Delegate Boggs, 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. 380), and there were--yeas 100, nays none, absent and not voting none.
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. 2504) 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. 2530, Relating to further defining professional student support personnel.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On pages twelve and thirteen, section three-a, by striking out all of subsection (b) and inserting in lieu thereof a new subsection (b), to read as follows:
"(b) When computing the basic foundation program for fiscal years 2010 through 2013 only, the allowance for professional educators and the allowance for service personnel computed for each school district in accordance with the provisions of this article that became effective on July 1, 2008, shall be based on the number of personnel that would be eligible based on the net enrollment of the county notwithstanding the number employed for the second month of the prior school term and notwithstanding the pro rata reduction for failure to establish and maintain the minimum professional instructional personnel ratios set forth in section four of this article."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2530 - "A Bill to amend and reenact §18-9A-2, §18-9A-3a and §18-9A-9 of the Code of West Virginia, 1931, as amended, all relating to further defining professional student support personnel; clarifying definition of net enrollment; modifying method for computing increase in net enrollment for certain counties; providing for computation of certain personnel allowances for certain fiscal years based on number of personnel that would be eligible based on net enrollment; and including professional student support personnel in the public school support formula allowance calculations for current expense and faculty senates."
On motion of Delegate Boggs, 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. 381), and there were--yeas 100, nays none, absent and not voting none.
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. 2530) passed.
Delegate Boggs moved that the bill take effect July 1, 2009.
On this question, the yeas and nays were taken
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. 2530) takes effect July 1, 2009.
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. 2532, Creating licensure for Marriage and Family Therapists. On motion of Delegate Boggs, 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 31. COUNSELORS.
§30-31-1. License required.
It is unlawful for any person to practice or offer to practice professional counseling or marriage and family therapy in this state without a license issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that the person is a licensed professional counselor or a licensed marriage and family therapist unless the person has been licensed under the provisions of this article, and the license has not expired, been suspended, revoked or exempted.
§30-31-2. Applicable law.
The practices of professional counseling and marriage and family therapy, and the Board of Examiners of Counseling are subject to the provisions of article one of this chapter, the provisions of this article and any rules promulgated hereunder.
§30-31-3. Definitions.
As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:
(a) 'Applicant' means a person making an application for a license or renewal under the provisions of this article.
(b) 'Board' means the West Virginia Board of Examiners in Counseling.
(c) 'Clinical counseling procedures' means an approach to counseling that emphasizes the counselor's role in systematically assisting clients through all of the following including, but are not limited to, observing, assessing and analyzing background and current information; utilizing assessment techniques useful in appraising aptitudes, abilities, achievements, interests or attitudes; diagnosing; and developing a treatment plan. The goal of these procedures is the prevention or elimination of symptomatic, maladaptive, or undesired behavior, cognitions, or emotions in order to integrate a wellness, preventative, pathology and multicultural model of human behavior to assist an individual, couple, family, group of individuals, organization, institution or community to achieve mental, emotional, physical, social, moral, educational, spiritual, vocational or career development and adjustment through the life span of the individual, couple, family, group of individuals, organization, institution or community.
(d) 'Licensed professional counselor' means a person licensed under the provisions of this article to practice professional counseling.
(e) 'Licensee' means a person holding a license issued under the provisions of this article.
(f) 'Licensed marriage and family therapist' means a person licensed under the provisions of this article to practice marriage and family therapy.
(g) 'Marriage and family therapy' means the diagnosis and treatment of mental and emotional disorders whether cognitive, affective or behavioral, specifically within the context of marriage and family systems, that involve the professional application of theories and techniques to individuals, couples and families, singly or in groups.
(h) 'Professional counseling' means the assessment, diagnosis, treatment and prevention of mental, emotional or addiction disorders through the application of clinical counseling procedures. Professional counseling includes the use of psychotherapy, assessment instruments, counseling, consultation, treatment planning, and supervision in the delivery of services to individuals, couples, families and groups.
§30-31-4. Board of Examiners in Counseling.
(a) The West Virginia Board of Examiners in Counseling is continued. The members of the board in office on July 1, 2009, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.
(b) To be effective on July 1, 2009, the Governor shall appoint, by and with the advice and consent of the Senate, a licensed marriage and family therapist from a list of three nominees submitted by The West Virginia Association of Marriage and Family Therapy, to replace the citizen member whose term ends on June 30, 2009.
(c) Commencing July 1, 2009, the board shall consist of the following seven members:
(1) Two licensed professional counselors engaged in the teaching of counseling at an accredited institution of higher education;
(2) Three licensed professional counselors;
(3) One licensed marriage and family therapist; and
(4) One citizen, who is not licensed under the provisions of this article and who does not perform any services related to the practice of the professions regulated under the provisions of this article.
(d) Each member shall be appointed by the Governor by and with the advice and consent of the Senate. The term is for five years.
(e) A member may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member may continue to serve until a successor has been appointed and has qualified.
(f) Each licensed member shall maintain an active license with the board: Provided, That the initial marriage and family therapist appointed to the board must qualify for licensure under the provisions of section nine of this article.
(g) Each member of the board shall be a resident of West Virginia during the appointment term.
(h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.
(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(j) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.
(k) The board shall elect annually one of its members as chairperson who serves at the will of the board.
(l) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.
(m) A majority of the members of the board shall constitute a quorum.
(n) The board shall hold at least two annual meetings. Other meetings shall be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.
(o) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-31-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for licenses;
(3) Establish procedures for submitting, approving and rejecting applications for a license;
(4) Determine the qualifications of any applicant for a license;
(5) Prepare, conduct, administer and grade written, oral or written and oral examinations for a license;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix the compensation of the executive director;
(9) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees and contracted employees necessary to enforce the provisions of this article;
(10) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;
(11) Establish a fee schedule;
(12) Issue, renew, deny, suspend, revoke or reinstate a license;
(13) Conduct disciplinary hearings of persons regulated by the board;
(14) Determine disciplinary action and issue orders;
(15) Institute appropriate legal action for the enforcement of the provisions of this article;
(16) Maintain an accurate registry of names and addresses of all persons regulated by the board;
(17) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;
(18) Establish the continuing education requirements for licensees;
(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and
(20) Take all other actions necessary and proper to effectuate the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer the examinations required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this state; and
(3) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.
§30-31-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:
(1) Standards and requirements for licenses to practice professional counseling and marriage and family therapy;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examination;
(6) Standards for approval of courses;
(7) Procedures for the issuance and renewal of a license;
(8) A fee schedule;
(9) Continuing education requirements for licensees;
(10) The procedures for denying, suspending, revoking, reinstating or limiting the practice of a licensee;
(11) Requirements to reinstate a revoked license;
(12) Specific master's and doctoral degree programs considered to be equivalent to a master's or doctoral degree program required under this article;
(13) The nature of supervised professional experience approved by the board for the purposes of licensure of this article;
(14) A code of ethics; and
(15) Any other rules necessary to effectuate the provisions of this article.
(b) All of the board's rules in effect on July 1, 2009, shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.
§30-31-7. Fees; special revenue account.
(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the 'Board of Examiners in Counseling Fund'. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.
§30-31-8. Requirements for license to practice counseling.
(a) To be eligible for a license to practice professional counseling, an applicant must:
(1) Be of good moral character;
(2) Be at least eighteen years of age;
(3) Be a citizen of the United States or be eligible for employment in the United States;
(4) Pay the applicable fee;
(5)(A)(i) Have earned a master's degree in an accredited counseling program or in a field closely related to an accredited counseling program as determined by the board, or have received training equivalent to such degree as may be determined by the board; and
(ii) Have at least two years of supervised professional experience in counseling of such a nature as is designated by the board after earning a master's degree or equivalent; or
(B)(i) Have earned a doctorate degree in an accredited counseling program or in a field closely related to an accredited counseling program as determined by the board, or have received training equivalent to such degree as may be determined by the board; and
(ii) Have at least one year of supervised professional experience in counseling of such a nature as is designated by the board after earning a doctorate degree or equivalent;
(6) Have passed a standardized national certification examination in counseling approved by the board;
(7) Not have been convicted of a misdemeanor, felony or crime involving moral turpitude under the laws of any jurisdiction:
(A) If the applicant has never been convicted of a misdemeanor, felony or a crime involving moral turpitude, the applicant shall submit letters of recommendation from three persons not related to the applicant and a sworn statement from the applicant stating that he or she has never been convicted of a felony or a crime involving moral turpitude; or
(B) If the applicant has been convicted of a misdemeanor, felony or a crime involving moral turpitude, it is a rebuttable presumption that the applicant is unfit for licensure unless he or she submits competent evidence of sufficient rehabilitation and present fitness to perform the duties of a licensed professional counselor as may be established by the production of:
(i) Documentary evidence including a copy of the relevant release or discharge order, evidence showing compliance with all conditions of probation or parole, evidence showing that at least one year has elapsed since release or discharge without subsequent conviction, and letters of reference from three persons who have been in contact with the applicant since his or her release or discharge; and
(ii) Any collateral evidence and testimony as may be requested by the board which shows the nature and seriousness of the crime, the circumstances relative to the crime or crimes committed and any mitigating circumstances or social conditions surrounding the crime or crimes and any other evidence necessary for the board to judge present fitness for licensure or whether licensure will enhance the likelihood that the applicant will commit the same or similar offenses;
(8) Not be an alcohol or drug abuser as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code: Provided, That an applicant who has had at least two continuous years of uninterrupted sobriety in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-step program or other similar group or process, may be considered; and
(9) Has fulfilled any other requirement specified by the board.
(b) A person who holds a license or other authorization to practice counseling issued by another state, the qualifications for which license or other authorization are determined by the board to be at least substantially equivalent to the license requirements in this article, is eligible for licensure.
(c) A person seeking licensure under the provisions of this section shall submit an application on a form prescribed by the board and pay all applicable fees.
(d) A person who has been continually licensed under this article since 1987, pursuant to prior enactments permitting waiver of certain examination and other requirements, is eligible for renewal under the provisions of this article.
(e) A license to practice professional counseling issued by the board prior to July 1, 2009, shall for all purposes be considered a license issued under this article: Provided, That a person holding a license issued prior to July 1, 2009, must renew the license pursuant to the provisions of this article.
§30-31-9. Requirements for a license to practice marriage and family therapy.
(a) To be eligible for a license to practice marriage and family therapy, an applicant must:
(1) Be of good moral character;
(2) Be at least eighteen years of age;
(3) Be a citizen of the United States or be eligible for employment in the United States;
(4) Pay the applicable fee;
(5)(A)(i) Have earned a master's in marriage and family therapy from a program accredited by the Commission on Accreditation for Marriage and Family Therapy Education, Council for Accreditation of Counseling and Related Education Programs or a comparable accrediting body as approved by the board or in a field closely related to an accredited marriage and family therapy program as determined by the board, or have received training equivalent to such degree as may be determined by the board; and
(ii) Have at least two years of supervised professional experience in marriage and family therapy of such a nature as is designated by the board after earning a master's or equivalent.
(B) (i) Have earned a doctorate degree in marriage and family therapy from a program accredited by the Commission on Accreditation for Marriage and Family Therapy Education, the Council for Accreditation of Counseling and Related Education Programs, or a comparable accrediting body as approved by the board or in a field closely related to an accredited marriage and family therapy program as determined by the board, or have received training equivalent to such degree as may be determined by the board; and
(ii) Have at least one year of supervised professional experience in marriage and family therapy of such a nature as is designated by the board after earning a doctorate or equivalent. (6) Have passed a standardized national certification examination in marriage and family therapy as approved by the board.
(7) Not have been convicted of a misdemeanor, felony or crime involving moral turpitude under the laws of any jurisdiction:
(A) If the applicant has never been convicted of a misdemeanor, felony or a crime involving moral turpitude, the applicant shall submit letters of recommendation from three persons not related to the applicant and a sworn statement from the applicant stating that he or she has never been convicted of a felony or a crime involving moral turpitude; or
(B) If the applicant has been convicted of a misdemeanor, felony or a crime involving moral turpitude, it is a rebuttable presumption that the applicant is unfit for licensure unless he or she submits competent evidence of sufficient rehabilitation and present fitness to perform the duties of a licensed professional counselor as may be established by the production of:
(i) Documentary evidence including a copy of the relevant release or discharge order, evidence showing compliance with all conditions of probation or parole, evidence showing that at least one year has elapsed since release or discharge without subsequent conviction, and letters of reference from three persons who have been in contact with the applicant since his or her release or discharge; and
(ii) Any collateral evidence and testimony as may be requested by the board which shows the nature and seriousness of the crime, the circumstances relative to the crime or crimes committed and any mitigating circumstances or social conditions surrounding the crime or crimes and any other evidence necessary for the board to judge present fitness for licensure or whether licensure will enhance the likelihood that the applicant will commit the same or similar offenses;
(8) Not be an alcohol or drug abuser as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code: Provided, That an applicant who has had at least two continuous years of uninterrupted sobriety in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-step program or other similar group or process, may be considered; and
(9) Has fulfilled any other requirement specified by the board.
(b) A person seeking licensure under the provisions of this section shall submit an application on a form prescribed by the board and pay all applicable fees.
(c) A person who is licensed for the previous five years and has similar qualifications as required by subdivision (1), (2), (3), (5)(A)(i), (5)(B)(i), (6) and (7) of subsection (a) of this section is eligible for a license to practice marriage and family therapy until July 1, 2012, and is eligible for renewal under section ten.
§30-31-10. Renewal requirements.
(a) A licensed professional counselor and a licensed marriage and family therapist shall annually or biennially renew his or her license at a time determined by the board, by completing a form prescribed by the board, paying the renewal fee and submitting any other information required by the board.
(b) The board shall charge a fee for each renewal of a license and a late fee for any renewal not properly completed and received with the appropriate fee by the board at the appropriate date.
(c) The board shall require as a condition of renewal that each licensee complete continuing education.
(d) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license.
§30-31-11. Persons exempted from licensure.
(a) The following activities are exempt from the provisions of this article:
(1) Teaching, lecturing or engaging in research in professional counseling or marriage and family therapy so long as such activities do not otherwise involve the practice of professional counseling or marriage and family therapy directly affecting the welfare of the person counseled;
(2) The official duties of persons employed as professional counselors or marriage and family therapists by the State of West Virginia or any of its departments, agencies, divisions, bureaus or political subdivisions, counties, county boards of education, regional education service agencies, municipalities or any other facilities or programs established, supported or funded, in whole or in part, by the governmental entity;
(3) The official duties of persons employed as professional counselors or marriage and family therapists by any department, agency, division or bureau of the United States of America;
(4) The official duties of persons serving as professional counselors or marriage and family therapists, whether as volunteers or for compensation or other personal gain, in any public or private nonprofit corporations, organizations, associations or charities;
(5) The official duties of persons who are employed by a licensed professional counselor or licensed marriage and family therapist, whose duties are supervised by a licensed professional counselor or licensed marriage and family therapists and who represent themselves by the title provisionally licensed counselor or provisionally licensed marriage and family therapist, and do not represent themselves as licensed professional counselors or licensed marriage and family therapists as defined in this article;
(6) The activities of a student of professional counseling or marriage and family therapy which are part of the prescribed course of study at an accredited educational institution and are supervised by a licensed professional counselor, licensed marriage and family therapist or by a teacher, instructor or professor of counseling or marriage and family therapy acting within the official duties or scope of activities exempted by this section; or
(7) The activities and services of qualified members of other recognized professions such as physicians, psychologists, psychoanalysts, social workers, lawyers, clergy, nurses or teachers performing counseling or marriage and family therapy consistent with the laws of this state, their training and any code of ethics of their professions so long as such persons do not represent themselves as licensed professional counselors or licensed marriage and family therapists as defined by section three of this article.
(b) Nothing in the article requires licensing of the following persons pursuant to this article:
(1) A school counselor who holds a school counseling certificate issued by the West Virginia Department of Education and who is engaged in counseling solely within the scope of his or her employment with the department, a county board of education or a regional education service agency; or
(2) A nonresident professional counselor or marriage and family therapist who holds a license or other authorization to engage in the practice of professional counseling or marriage and family therapy issued by another state, the qualifications for which in the opinion of the board are at least as stringent as those provided in section eight and section nine of this article, and who renders counseling services in this state for no more than thirty days in any calendar year.
(c) Nothing in this article permits a licensed professional counselor or licensed marriage and family therapist to administer or prescribe drugs or otherwise engage in the practice of medicine as defined in articles three and fourteen of chapter thirty of this code.
§30-31-12. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee.
(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee has violated any provision of this article or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee has violated any provision of this article or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license or the imposition of sanctions against the licensee. Any hearing shall be held in accordance with the provisions of this article.
(e) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.
(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license of, impose probationary conditions upon or take disciplinary action against, any licensee for any of the following reasons once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a license by fraud, misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the board;
(4) Intentional violation of a lawful order or rule of the board;
(5) Having had a license or other authorization revoked or suspended, other disciplinary action taken, or an application for licensure or other authorization revoked or suspended by the proper authorities of another jurisdiction;
(6) Aiding or abetting unlicensed practice; or
(7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public.
(h) For the purposes of subsection (g) of this section, effective July 15, 2009, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee to report to the board for periodic interviews for a specified period of time; or
(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk: Provided, That the other disciplinary action may only be used as grounds for the revocation or suspension of a license upon a further finding that the underlying disciplinary action was directly related to an act of the licensee which created an imminent danger to the public.
§30-31-13. Procedures for hearing; right of appeal.

(a) Hearings shall be governed by the provisions of section eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.
(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee has violated any provision of this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.
§30-31-14. Judicial review.
Any licensee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.
§30-31-15. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has knowingly violated the provisions of this article or rules promulgated pursuant to this article, the board may bring its information to the attention of an appropriate law-enforcement official who may cause criminal proceedings to be brought.
(b) Effective July 15, 2009, a person violating a provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.
§30-31-16. Disclosure.
All information communicated to or acquired by a licensee while engaged in the practice of counseling or marriage and family therapy with a client is privileged information and may not be disclosed by the licensee except:
(a) With the written consent of the client, or in the case of death or disability, with the written consent of a personal representative or other person authorized to sue, or the beneficiary of any insurance policy on the client's life, health or physical condition;
(b) When a communication reveals the contemplation of an act dangerous to the client or others; or
(c) When the client, or his or her personal representative, waives the privilege by bringing charges against the licensee.
§30-31-17. Single act evidence of practice.
In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct."
On motion of Delegate Boggs, 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. 383), 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: Cann.
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. 2532) 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. 2541, Including poultry among those domesticated farm animals or stock which the owner shall be liable for damages caused by those animals.On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, section one, line two, after the word "poultry" by inserting the words "as defined in section two, article two-b of this chapter".
On motion of Delegate Boggs, 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. 384), and there were--yeas 96, nays 4, absent and not voting none, with the nays being as follows:
Nays: Ellem, Evans, McGeehan and Romine.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2541) 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. 2685, Amending the Uniform Principal and Income Act.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate title amendment was reported by the Clerk:
Com. Sub. for H. B. 2685 - "A Bill to amend and reenact §44B-4-409 of the Code of West Virginia, 1931, as amended; to amend and reenact §44B-5-505 of said code; and to amend said code by adding thereto a new section, designated §44B-6-606, all relating to amending the Uniform Principal and Income Act; complying with IRS comments regarding allocation of IRA distributions; clarifying the formula for calculating how much a trust needs to distribute and how much it can use to pay taxes; and providing effective dates of amendments."
On motion of Delegate Boggs, 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. 385), and there were--yeas 100, nays none, absent and not voting none.
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. 2685) 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. 2694, Establishing certain requirements for modification of custodial rights for parent's or guardian's that have been deployed to the United States Armed Forces. On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, following the enacting clause, by striking out the remainder of the bill 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 §48-1-233.3 and §48-1-233.4; that said code be amended by adding thereto a new section, designated §48-9-404; that §48-11-106 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §48-11-108, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS

ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
PART 2--DEFINITIONS.

§48-1-233.3. Military parent defined.
'Military parent' means a natural parent or adoptive parent of a child under the age of eighteen whose parental rights have not been terminated by a court of competent jurisdiction.
§ 48-1-233.4. Military service or service defined.

(a) In the case of a parent who is a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or a Reserve component of these services, "military service or service" means a deployment for combat operations, a contingency operation, or a natural disaster based on orders that do not permit a family member to accompany the member on the deployment.
(b) In the case of a parent who is a member of the National Guard, 'military service or service' means service under a call to active service authorized by the President of the United States or the Secretary of Defense for a period of more than thirty consecutive days pursuant to 32 U.S.C. 502(f) for purposes of responding to a national emergency declared by the President and supported by federal funds.
(c) 'Military service or service' includes a period during which a military parent remains subject to deployment orders and remains deployed on account of sickness, wounds, leave or other lawful cause.
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.

PART 4. MODIFICATION OF PARENTING PLAN.

§48-9-404. Modification of a parenting plan due to military service.

(a) If a military parent is required to be separated from a child due to military service, a court shall not enter a final order modifying the terms of an existing parenting plan until ninety days after the military parent is released from military service. A military parent's absence or relocation because of military service must not be the sole factor supporting a change in circumstance or grounds sufficient to support a permanent modification of an existing parenting plan.
(b) A parenting plan establishing the terms of custody or visitation in place at the time a military parent is called to military service may be temporarily modified to make reasonable accommodation for the parties because of the military parent's service.
(c) A temporary parenting plan pursuant to this section shall provide that the military parent has at least substantial custodial responsibility of the child during a period of leave granted to the military parent during their military service, unless the court determines that it is not in the best interest of the child. If a temporary parenting plan is not issued pursuant to this section, the nonmilitary custodial parent shall make the child or children reasonably available to the military parent when the military parent has leave to ensure that the military parent has reasonable custodial responsibility and is able to exercise custodial responsibility of the child or children.
(d) If there is no existing parenting plan or order establishing the terms of custody or visitation and it appears that military service is imminent, upon motion by either parent, the court shall expedite a temporary hearing to establish a temporary parenting plan to ensure the military parent has access to the child, to establish support, and provide other appropriate relief.
ARTICLE 11. SUPPORT OF CHILDREN
§48-11-106. Expedited process for modification.

(a) An expedited process for modification of a child support order may be utilized if:
(1) Either parent experiences a substantial change of circumstances resulting in a decrease in income due to loss of employment or other involuntary cause;
(2) An increase in income due to promotion, change in employment or reemployment; or
(3) Other such change in employment status; or
(4) If a military parent is called to military service
.
(b) The party seeking the recalculation of support and modification of the support order shall file a description of the decrease or increase in income and an explanation of the cause of the decrease or increase on a standardized form to be provided by the secretary-clerk or other employee of the family court. The standardized form shall be verified by the filing party. Any available documentary evidence shall be filed with the standardized form. Based upon the filing and information available in the case record, the amount of support shall be tentatively recalculated.
(c) The secretary-clerk shall serve a notice of the filing, a copy of the standardized form and the support calculations upon the other party by certified mail, return receipt requested, with delivery restricted to the addressee, in accordance with rule 4(d)(1)(D) of the West Virginia rules of civil procedure. The secretary-clerk shall also mail a copy, by first-class mail, to the local office of the bureau for child support enforcement for the county in which the family court is located in the same manner as original process under rule 4(d) of the rules of civil procedure.
(d) The notice shall fix a date fourteen days from the date of mailing and inform the party that unless the recalculation is contested and a hearing request is made on or before the date fixed, the proposed modification will be made effective. If the filing is contested, the proposed modification shall be set for hearing; otherwise, the court shall enter an order for a judgment by default. Either party may move to set aside a judgment by default, pursuant to the provisions of rule 55 or rule 60(b) of the rules of civil procedure.
(e) If an obligor uses the provisions of this section to expeditiously reduce his or her child support obligation, the order that effected the reduction shall also require the obligor to notify the obligee of reemployment, new employment or other such change in employment status that results in an increase in income. If an obligee uses the provisions of this section to expeditiously increase his or her child support obligation, the order that effected the increase shall also require the obligee to notify the obligor of reemployment, new employment or other such change in employment status that results in an increase in income of the obligee.
(f) The supreme court of appeals shall develop the standardized form required by this section.
§48-11-108. Modification of support based on military service.
(a) If a military parent is called to military service, either parent may file a notice of activation of military service and a request for an expedited modification of a support order pursuant to section one hundred six of this article. In the petition, the parent must cite the basis for modifying the support order and the military parent's change in financial circumstances supporting the petition.
(b) The court shall temporarily modify the amount of child support for the duration of the military parent's military service pursuant to the provisions of section fifteen of this article if there is a substantial change in circumstances based upon changes in income and earning capacity of the military parent during military service. An increase or decrease in income or earning capacity of a military parent due to military service may only be used to calculate support during the period of military service and must not be considered a permanent increase or decrease in income or earning capacity. The effective date for a temporary modification must be the date the military parent begins military service.
(c) Upon return from military service, the military parent's child support obligation prior to a temporary modification is automatically reinstated, effective on the date the military parent is released from service. Within ninety days of the military parent's release from service, either parent may make a request for a modification of child support to correspond to a change in the military parent's nonservice related income or earning capacity. A modification of child support must be based solely upon the income or earning capacity the military parent has following his or her period of military service."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2694 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §48-1-233.3 and §48-1-233.4; to amend said code by adding thereto a new section, designated §48-9-404; to amend and reenact §48-11-106 of said code; and to amend said code by adding thereto a new section, designated §48-11-108, all relating to modifying custodial rights and child support for a parent who has been deployed for military service; providing definitions; modifying the terms of a parenting plan; requiring that any order is only a temporary order; providing for temporary modification of child support during the military service; requiring an expedited process for modification of a child support order; reinstating the child support obligation in place prior to the parent's military service upon release from service; and requiring that a further modification of child support be based solely on the income and earning capacity the parent has after the military service."
On motion of Delegate Boggs, 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. 386), and there were--yeas 100, nays none, absent and not voting none.
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. 2694) 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. 2739, Enhancing the service and enforcement of domestic violence protective orders issued by state courts.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
"That §48-27-505, §48-27-701, §48-27-902, §48-27-903 and §48-27-1002 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §48-27-1003 and §48-27-1004, all to read as follows:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.

§48-27-505. Time period a protective order is in effect; extension of order; notice of order or extension.

(a) Except as otherwise provided in subsection (d), section four hundred one of this article, a protective order, entered by the family court pursuant to this article, is effective for either ninety days or one hundred eighty days, in the discretion of the court. If the court enters an order for a period of ninety days, upon receipt of a written request from the petitioner prior to the expiration of the ninety-day period, the family court shall extend its order for an additional ninety-day period.
(b) To be effective, a written request to extend an order from ninety days to one hundred eighty days must be submitted to the court prior to the expiration of the original ninety-day period. A notice of the extension shall be sent by the clerk of the court to the respondent by first-class mail, addressed to the last known address of the respondent as indicated by the court file. The extension of time is effective upon mailing of the notice.
(c) Certified copies of any order entered or extension notice made under the provisions of this section shall be served upon the respondent by first class mail, addressed to the last known address of the respondent as indicated by the court file, and delivered to the petitioner and any law-enforcement agency having jurisdiction to enforce the order, including the city police, the county sheriff's office or local office of the West Virginia State Police within twenty-four hours of the entry of the order. The protective order shall be in full force and effect in every county of this state.
(d) The family court may modify the terms of a protective order upon motion of either party.
(e) The clerk of the circuit court shall cause a copy of any protective order entered by the family court pursuant to the provisions of this article or pursuant to the provisions of chapter forty-eight of this code to be forwarded to the magistrate or magistrate court clerk and the magistrate or magistrate court clerk shall forward a copy of the protective order to the appropriate state and federal agency agencies for registration of domestic violence offenders as required by state and federal law.
§48-27-701. Service of pleadings and orders by law-enforcement officers.
Notwithstanding any other provision of this code to the contrary, all law-enforcement officers are hereby authorized to serve all pleadings and orders filed or entered pursuant to this article on Sundays and legal holidays. No law-enforcement officer shall refuse to serve any pleadings or orders entered pursuant to this article. Law enforcement shall attempt to serve all protective orders without delay: Provided, That service of process shall be attempted within seventy-two hours of law enforcement's receipt of the order. If service is not made, law enforcement shall continue to attempt service on the respondent until proper service is made.
§48-27-902. Violations of protective orders; criminal complaints.
(a) Any person authorized to file a petition pursuant to section three hundred five of this article, and any person authorized to file a petition for civil contempt pursuant to section nine hundred one of this article may file a criminal complaint:
(1) Against a respondent who knowingly and willfully violates a provision of an emergency or final protective order entered pursuant to:
(A) Subsection (a) or (b) of section five hundred two of this article;
(B) If the court has ordered such relief; subsection (2), (7) or (9) of section five hundred three of this article;
(C) Subsection (b) or (c) of section five hundred nine, article five of this chapter; or
(D) Subsection (b) or (c) of section six hundred eight, article five of this chapter;.
(2) Against a person who violates 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;
(3) Against a respondent who knowingly and willfully violates the terms of a protection order from another jurisdiction that is required to be enforced pursuant to section three, article twenty-eight of this chapter; or
(4) Against a person who, in violation of subdivision (3), subsection (a), section seven, article twenty-eight of this chapter, knowingly and willfully violates the terms of a condition of bail, probation or parole imposed in another state which has the express intent or effect of protecting the personal safety of a particular person or persons.
(b) If the court finds probable cause upon the complaint, the court shall issue a warrant for the arrest of the person charged.
§48-27-903. Misdemeanor offenses for violation of protective order, repeat offenses, penalties.

(a) Any person who knowingly and willfully violates:
(1) a provision of an emergency or final protective order entered pursuant to: (A) subsection (a) or (b) of section five hundred two of this article; (B) if the court has ordered such relief; subsection (2), (7) or (9) of section five hundred three of this article; (C) subsection (b) or (c) of section five hundred nine, article five of this chapter; or (D) subsection (b) or (c) of section six hundred eight, article five of this chapter; 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 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 $250 nor more than $2,000.
(b) Any person who is convicted of a second or subsequent offense under subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in 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 $500 nor more than $3,000, or both.
§48-27-1002. Arrest in domestic violence matters; conditions.
(a) Notwithstanding any provision of this code to the contrary, if a person is alleged to have committed a violation of the provisions of subsection (a) or (b), section twenty-eight, article two, chapter sixty-one of this code against a family or household member, in addition to any other authority to arrest granted by this code, a law-enforcement officer has authority to arrest that person without first obtaining a warrant if:
(1) The law-enforcement officer has observed credible corroborative evidence that an offense has occurred; and either:
(2) The law-enforcement officer has received, from the victim or a witness, an oral or written allegation of facts constituting a violation of section twenty-eight, article two, chapter sixty-one of this code; or
(3) The law-enforcement officer has observed credible evidence that the accused committed the offense.
(b) For purposes of this section, credible corroborative evidence means evidence that is worthy of belief and corresponds to the allegations of one or more elements of the offense and may include, but is not limited to, the following:
(1) Condition of the alleged victim. -- One or more contusions, scratches, cuts, abrasions, or swellings; missing hair; torn clothing or clothing in disarray consistent with a struggle; observable difficulty in breathing or breathlessness consistent with the effects of choking or a body blow; observable difficulty in movement consistent with the effects of a body blow or other unlawful physical contact.
(2) Condition of the accused. -- Physical injury or other conditions similar to those set out for the condition of the victim which are consistent with the alleged offense or alleged acts of self-defense by the victim.
(3) Condition of the scene. -- Damaged premises or furnishings; disarray or misplaced objects consistent with the effects of a struggle.
(4) Other conditions. -- Statements by the accused admitting one or more elements of the offense; threats made by the accused in the presence of an officer; audible evidence of a disturbance heard by the dispatcher or other agent receiving the request for police assistance; written statements by witnesses.
(c) Whenever any person is arrested pursuant to subsection (a) of this section, the arrested person shall be taken before a magistrate within the county in which the offense charged is alleged to have been committed in a manner consistent with the provisions of Rule 1 of the Administrative Rules for the Magistrate Courts of West Virginia.
(d) If an arrest for a violation of subsection (c), section twenty-eight, article two, chapter sixty-one of this code is authorized pursuant to this section, that fact constitutes prima facie evidence that the accused constitutes a threat or danger to the victim or other family or household members for the purpose of setting conditions of bail pursuant to section seventeen-c, article one-c, chapter sixty-two of this code.
(e) Whenever any person is arrested pursuant to the provisions of this article or for a violation of an order issued pursuant article five, section five hundred nine, the arresting officer, subject to the requirements of the Constitutions of this State and of the United States:
(1) Shall seize all weapons that are alleged to have been involved or threatened to be used in the commission of domestic violence; and
(2) May seize a weapon that is in plain view of the officer or was discovered pursuant to a consensual search, as necessary for the protection of the officer or other persons; and
(3) May seize all weapons that are possessed in violation of a valid protective order.
§48-27-1003. Nonjudicial enforcement of order.
(a) A law-enforcement officer of this state, upon determining that there is probable cause to believe that a valid protective order exists and that the order has been violated, shall enforce the order pursuant to any authority to arrest under the code. Presentation of a protective order that identifies both the protected individual and the respondent and that appears, on its face, to be authentic and currently in effect constitutes probable cause to believe that a valid protective order exists. For the purposes of this section, the protective order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protective order is not required for enforcement.
(b) If a protective order is not presented, a law-enforcement officer of this state may consider other credible information in determining whether there is probable cause to believe that a valid protective order exists.
(c) If a law-enforcement officer of this state determines that an otherwise valid protective order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.
§48-27-1004. Immunity.
This state or a local governmental agency, or a law-enforcement officer, prosecuting attorney, clerk of court or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the enforcement of a protective order or the detention or arrest of an alleged violator of a protective order if the act or omission was done in good faith in an effort to comply with this article."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2739 - "A Bill to amend and reenact §48-27-505, §48-27-701, §48-27-902, §48-27-903 and §48-27-1002 of the Code of West Virginia, 1931, as amended; and to amend said code by adding two new sections, designated §48-27-1003 and §48-27-1004, all relating to revising and expanding the procedures and methods for service, enforcement, and registration of domestic violence protective orders; requiring circuit court clerks to forward copies of protective orders to magistrates or magistrate court clerks; requiring magistrates or magistrate court clerks to forward copies of protective orders to state and federal agencies; requiring law enforcement to attempt service of protective orders within seventy-two hours of receipt of order; authorizing certain persons to file a criminal complaint for violation of a protective order; providing a criminal penalty for violation of a protective order; authorizing the seizure of weapons possessed in violation of a protective order; authorizing nonjudicial enforcement and service of state protective orders; and providing civil and criminal immunity to government officials for acts or omissions arising out of enforcement of a protective order, or the detention or arrest of an alleged violator of a protective order, if the official acted in a good faith effort to comply with the statutes related to the prevention and treatment of domestic violence."
On motion of Delegate Boggs, 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. 387), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ireland.
Absent And Not Voting: Staggers.
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. 2739) 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:
Com. Sub. for H. B. 2819, Authorizing miscellaneous agencies and boards to promulgate legislative rules.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page twenty, section seven, line twenty-seven, by striking out "3" and inserting in lieu thereof "13";
And,
On page twenty, section seven, line twenty-seven, after the word "authorized", by changing the period to a comma and adding the following: with the following amendment:
On pages one and two, section seven, by striking out all of subsection 1.5.
On motion of Delegate Boggs, 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. 388), and there were--yeas 96, nays 4, absent and not voting none, with the nays being as follows:
Nays: Andes, Armstead, Lane and Walters.
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. 2819) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 389), and there were--yeas 100, nays none, absent and not voting none.
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. 2819) 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, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2863, Relating to construction of state utility projects.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On pages twenty-three and twenty-four, section six, by striking out all of subsection (d).
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B 2863 - "A Bill to amend and reenact §5G-1-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §22C-1-5 of said code; to amend and reenact §24-2-11 of said code; to amend and reenact §31-15A-3 and §31-15A-6 of said code, all relating to construction of state utility projects; putting limitations on engineering design and construction inspection fees for state and state subdivision sponsored utility construction; requiring all Water Development Authority sponsored utility projects to get authorization prior to removal of proposed customers of a project; requiring the governmental agency administering the utility project to perform an annual maintenance audit of the utility; altering the number of customers or proposed customers protesting requiring a formal hearing; reducing time periods for the Public Service Commission to review and approve certain applications by public utilities for certificate of public convenience and necessity; and providing for additional members of the West Virginia Infrastructure and Jobs Development Council."
On motion of Delegate Boggs, 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. 390), and there were--yeas 87, nays 13, absent and not voting none, with the nays being as follows:
Nays: Andes, Blair, Duke, Ellem, Hamilton, Ireland, Lane, C. Miller, Overington, Schoen, Sobonya, Sumner and Walters.
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. 2863) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 391), and there were--yeas 92, nays 7, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Duke, Hamilton, Ireland, C. Miller, Schoen, Sobonya and Sumner.
Absent And Not Voting: Butcher.
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. 2863) 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:
H. B. 3036, Relating to notice and publication requirements for expungement petitions. On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
Com. Sub. for H. B 3036 - "A Bill to amend and reenact §61-11-26 of the Code of West Virginia, 1931, as amended, relating to removing the notice and publication requirements for expungement petitions."
On motion of Delegate Boggs, 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. 392), and there were--yeas 100, nays none, absent and not voting none.
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. 3036) 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. 3120, Increasing the WV Prosecuting Attorneys Institute's executive council's elected members from five to seven and permitting the appointment of special prosecutors in juvenile delinquency, child abuse or neglect proceedings
.On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section six, line thirty-three, after the word "code" by inserting a comma and the words "or in any matter wherein a special prosecutor previously appointed has failed to take any action thereon within such time as the Executive Director deems unreasonable, not to exceed three terms of court from the date on which the special prosecutor was appointed: Provided, That such replacement or original appointment may be any attorney with a license in good standing in this state".
On page six, section six, line seventy-six, by striking out the word "or".
And,
On page six, section six, line seventy-seven, after the word "code" by inserting a comma and the words "or in any matter wherein a special prosecutor previously appointed has failed to take any action thereon within such time as the Executive Director deems unreasonable, not to exceed three terms of court from the date on which the special prosecutor was appointed: Provided, That such replacement or original appointment may be any attorney with a license in good standing in this state".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3120 - "A Bill to repeal §7-4-6a of the Code of West Virginia, 1931, as amended; and to amend and reenact §7-4-6, relating to increasing the West Virginia Prosecuting Attorneys Institute executive council to seven members; permitting the appointment of special prosecutors in matters of juvenile delinquency and child abuse and neglect; and repealing outdated section that continued the Prosecuting Attorneys Institute.
"
On motion of Delegate Boggs, 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. 393), and there were--yeas 100, nays none, absent and not voting none.
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. 3120) 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. 3134, Municipal vote by mail pilot program.
On motion of Delegate Boggs, 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 3A. VOTE BY MAIL PILOT PROGRAM.
§3-3A-1. Short title.
This article shall be known as the 'West Virginia Vote By Mail Pilot Program'.
§3-3A-2. Vote by mail pilot program.
This article establishes a two phase pilot project that will allow certain municipalities to vote by mail. Phase one authorizes Class IV municipalities to conduct only early voting for municipal elections by mail beginning with the municipal election of 2010. Phase two authorizes five municipalities in the state to conduct all voting by mail beginning with the primary election of 2011. The pilot project will permit registered and other qualified voters of the authorized municipalities to vote a ballot by mail during the pilot program period. The Class IV municipalities that choose to participate in phase one may conduct only the early voting for the municipal elections entirely by mail. The five municipalities selected for participation in phase two may conduct both the primary and general elections entirely by mail.
§3-3A-3. Secretary of State Rulemaking.

(a) The Secretary of State is hereby directed to propose emergency and legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to implement phase one of the vote by mail pilot program. In addition to any other provisions the Secretary believes are necessary to provide for the effective, efficient and orderly administration of phase one of the vote by mail pilot program, the rules proposed by the Secretary shall provide for phase one municipal elections the requirements and procedures for conducting an election by mail including:
(1) That a notice of early voting by mail will be mailed to each registered voter in the municipality no more than four weeks nor less than two weeks prior to the start of the early voting period. The notice may be included in any utility or service statement or invoice mailed to every household in the municipality or a postcard sent to all registered voters in the municipality;
(2) That each ballot packet shall consist of the actual ballot, instructions, a secrecy envelope and a ballot return envelope;
(3) That each ballot will be mailed with detailed instructions on how to mark the ballot, place it in the secrecy envelop and the ballot return envelope and how to sign the ballot return envelope, a warning that the ballot return envelope must be signed or the ballot will not be counted, a warning that signing someone else's ballot return envelope is illegal, an alternative procedure for any person who is unable to sign a ballot return envelope and a procedure for returning a spoiled ballot should the voter make a mistake or otherwise need a new ballot; and
(4) That each ballot must be mailed or brought to the municipal precinct by the close of the early voting period.
(b) The Secretary of State is hereby directed to propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to implement the phase two vote by mail pilot program. In addition to any other provisions the Secretary believes are necessary to provide for the effective, efficient and orderly administration of phase two of the vote by mail pilot program, the rules proposed by the Secretary shall include:
(1) Criteria for the selection of up to five municipalities to participate in the vote by mail pilot program;
(2) Procedures for conducting voting by mail including those specified in subsection (a) of this section;
(3) Requirements and criteria for the designation of places of deposit for the ballots cast in an election; and
(4) Dates and times the places of deposit must be open and the security requirements for the places of deposit. Places of deposit shall be open on the date of the election for a period of eight or more hours, but must be open until at least eight p.m., at a minimum.
(c) Each municipality wishing to conduct early voting by mail shall adopt an ordinance expressing the municipality's intent and notifying the public of the changes in voting.
(d) It is the duty of all officials designated to supervise and conduct the vote by mail program, other municipal officials, and all election commissioners and poll clerks to abide by the Secretary of State's rules, orders and instructions and to use the forms, lists and records prescribed by the Secretary of State.
§3-3A-4. Authority to conduct voting by mail
The voting by mail program is to be supervised and conducted by the municipal recorder or other officer authorized by charter or ordinance provisions to conduct voting for any election held entirely within the municipality. All other provisions of this article for conducting a municipal election shall apply.
§3-3A-5. Termination of Pilot Project.
The provisions of this article related to phase two of the pilot project shall terminate on January 1, 2014, unless sooner terminated, continued or reestablished."
And,
By amending the title of the bill to read as follows:
Com. Sub for H. B. 3134 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §3-3A-1, §3-3A-2, §3-3A-3, §3-3A-4 and §3-3A-5, all relating to a voting by mail; creating a two phase vote by mail pilot program for municipalities; allowing class IV municipalities to conduct early voting in municipal elections by mail; requiring adoption of an ordinance; requiring the Secretary of State select five municipalities for a pilot project; allowing selected municipalities conduct municipal elections by mail; requiring emergency and legislative rules; setting forth criteria; granting authority to conduct voting by mail; and providing for termination of phase two of the pilot project."
On motion of Delegate Boggs, 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. 394), and there were--yeas 62, nays 38, absent and not voting none, with the nays being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Butcher, Cann, Canterbury, Carmichael, Cowles, Craig, Duke, Ellem, Evans, Hall, Hamilton, Ireland, Lane, Louisos, Mahan, McGeehan, Michael, C. Miller, J. Miller, Overington, Porter, Rodighiero, Romine, Rowan, Schadler, Schoen, Shaver, Shott, Sobonya, Sumner and Walters.
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. 3134) 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. 3194, Making it a misdemeanor to knowingly file false information with the Secretary of State
.On motion of Delegate Boggs, 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:
§31B-1-114. Penalty for signing false document.
Any person who signs a document required to be filed with the Secretary of State by this article which he or she knows is false in any material respect is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail not more than one year, or both fined and confined."
On motion of Delegate Boggs, 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. 395), and there were--yeas 100, nays none, absent and not voting none.
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. 3194) 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. 3288, Relating to mental health parity.
On motion of Delegate Boggs, 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 §5-16-7 of the Code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that §33-16-3a of said code be amended and reenacted, 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 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-7. Authorization to establish group hospital and surgical insurance plan, group major medical insurance plan, group prescription drug plan and group life and accidental death insurance plan; rules for administration of plans; mandated benefits; what plans may provide; optional plans; separate rating for claims experience purposes.

(a) The agency shall establish a group hospital and surgical insurance plan or plans, a group prescription drug insurance plan or plans, a group major medical insurance plan or plans and a group life and accidental death insurance plan or plans for those employees herein made eligible and establish and promulgate rules for the administration of these plans, subject to the limitations contained in this article. Those plans shall include:
(1) Coverages and benefits for X-ray and laboratory services in connection with mammograms when medically appropriate and consistent with current guidelines from the United States Preventive Services Task Force; pap smears, either conventional or liquid-based cytology, whichever is medically appropriate and consistent with the current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists; and a test for the human papilloma virus (HPV) when medically appropriate and consistent with current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists, when performed for cancer screening or diagnostic services on a woman age eighteen or over;
(2) Annual checkups for prostate cancer in men age fifty and over;
(3) Annual screening for kidney disease as determined to be medically necessary by a physician using any combination of blood pressure testing, urine albumin or urine protein testing and serum creatinine testing as recommended by the National Kidney Foundation;
(4) For plans that include maternity benefits, coverage for inpatient care in a duly licensed health care facility for a mother and her newly born infant for the length of time which the attending physician considers medically necessary for the mother or her newly born child: Provided, That a plan may not deny payment for a mother or her newborn child prior to forty-eight hours following a vaginal delivery, or prior to ninety-six hours following a caesarean section delivery, if the attending physician considers discharge medically inappropriate;
(5) For plans which provide coverages for post-delivery care to a mother and her newly born child in the home, coverage for inpatient care following childbirth as provided in subdivision (4) of this subsection if inpatient care is determined to be medically necessary by the attending physician. Those plans may also include, among other things, medicines, medical equipment, prosthetic appliances, and any other inpatient and outpatient services and expenses considered appropriate and desirable by the agency; and
(6) Coverage for treatment of serious mental illness.
(A) The coverage does not include custodial care, residential care or schooling. For purposes of this section, 'serious mental illness' means an illness included in the American psychiatric association's diagnostic and statistical manual of mental disorders, as periodically revised, under the diagnostic categories or subclassifications of: (i) Schizophrenia and other psychotic disorders; (ii) bipolar disorders; (iii) depressive disorders; (iv) substance-related disorders with the exception of caffeine-related disorders and nicotine-related disorders; (v) anxiety disorders; and (vi) anorexia and bulimia. With regard to any covered individual who has not yet attained the age of nineteen years, 'serious mental illness' also includes attention deficit hyperactivity disorder, separation anxiety disorder and conduct disorder.
(B) Notwithstanding any other provision in this section to the contrary, in the event that the agency can demonstrate actuarially that its total anticipated costs for the treatment of mental illness for any plan will exceed or have exceeded exceed two percent of the total costs for such plan in any experience period, then the agency may apply whatever additional cost-containment measures may be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two percent of the total costs for the plan for the next experience period.
(C) The agency shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its plan. With regard to both medical-surgical and mental health benefits, it may make determinations of medical necessity and appropriateness, and it may use recognized health care quality and cost management tools, including, but not limited to, limitations on inpatient and outpatient benefits, utilization review, implementation of cost-containment measures, preauthorization for certain treatments, setting coverage levels, setting maximum number of visits within certain time periods, using capitated benefit arrangements, using fee-for-service arrangements, using third-party administrators, using provider networks and using patient cost sharing in the form of copayments, deductibles and coinsurance.
(b) The agency shall make available to each eligible employee, at full cost to the employee, the opportunity to purchase optional group life and accidental death insurance as established under the rules of the agency. In addition, each employee is entitled to have his or her spouse and dependents, as defined by the rules of the agency, included in the optional coverage, at full cost to the employee, for each eligible dependent; and with full authorization to the agency to make the optional coverage available and provide an opportunity of purchase to each employee.
(c) The finance board may cause to be separately rated for claims experience purposes:
(1) All employees of the State of West Virginia;
(2) All teaching and professional employees of state public institutions of higher education and county boards of education;
(3) All nonteaching employees of the Higher Education Policy Commission, West Virginia Council for Community and Technical College Education and county boards of education; or
(4) Any other categorization which would ensure the stability of the overall program.
(d) The agency shall maintain the medical and prescription drug coverage for Medicare-eligible retirees by providing coverage through one of the existing plans or by enrolling the Medicare-eligible retired employees into a Medicare-specific plan, including, but not limited to, the Medicare/Advantage Prescription Drug Plan. In the event that a Medicare-specific plan would no longer be available or advantageous for the agency and the retirees, the retirees shall remain eligible for coverage through the agency.
CHAPTER 33. INSURANCE.

ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3a. Same -- Mental health.

(a) (1) Notwithstanding the requirements of subsection (b) of this section, any health benefits plan described in this article that is delivered, issued or renewed in this state shall provide benefits to all individual subscribers and members and to all group members for expenses arising from treatment of serious mental illness. The expenses do not include custodial care, residential care or schooling. For purposes of this section, "serious mental illness" means an illness included in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, as periodically revised, under the diagnostic categories or subclassifications of: (I) (A) Schizophrenia and other psychotic disorders; (ii) (B) bipolar disorders; (iii) (C) depressive disorders; (iv) (D) substance-related disorders with the exception of caffeine-related disorders and nicotine-related disorders; (v) (E) anxiety disorders; and (vi) (F) anorexia and bulimia.
(2) Notwithstanding any other provision in this section to the contrary, in the event that an insurer can demonstrate actuarially to the Insurance Commissioner that its total anticipated costs for treatment for mental illness, for any plan will exceed or have exceeded two percent of the total costs for such plan in any experience period, then the insurer may apply whatever cost containment measurers measures may be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two percent of the total costs for the plan: Provided, That for any group with twenty-five members or less, the insurer may apply such additional cost containment measures as may be necessary if the total anticipated actual costs for the treatment of mental illness will exceed one percent of the total costs for the group plan year beginning after October 3, 2009, an insurer providing a "group health plan," as defined in section one-a of this article, with an average of more than fifty employees on business days during the preceding calendar year, may not apply cost containment measures as provided in this subdivision unless the insurer can demonstrate that the application of this section results in an increase of two percent of the actual total costs of coverage for the plan year involved with respect to medical-surgical benefits and mental health benefits under the plan: Provided, however, That such cost containment measures implemented are applicable only for the plan year following approval of the request to implement cost containment measures.
(3) The insurer shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its plan. With regard to both medical-surgical and mental health benefits, it may make determinations of medical necessity and appropriateness, and it may use recognized health care quality and cost management tools, including, but not limited to, utilization review, use of provider networks, implementation of cost containment measures, preauthorization for certain treatments, setting coverage levels including the number of visits in a given time period, using capitated benefit arrangements, using fee-for-service arrangements, using third-party administrators, and using patient cost sharing in the form of copayments, deductibles and coinsurance.
(4) The provisions of amendments to this subsection shall apply with respect to group health plans for plan years beginning on or after January 1, two thousand three October 3, 2009.
(b) With respect to mental health benefits furnished to an enrollee of a health benefit plan offered in connection with a group health plan, for a plan year beginning on or after January 1, 1998, the following requirements shall apply to aggregate lifetime limits and annual limits.
(1) Aggregate lifetime limits:
(A) If the health benefit plan does not include an aggregate lifetime limit on substantially all medical and surgical benefits, as defined under the terms of the plan but not including mental health benefits, the plan may not impose any aggregate lifetime limit on mental health benefits;
(B) If the health benefit plan limits the total amount that may be paid with respect to an individual or other coverage unit for substantially all medical and surgical benefits (in this paragraph, "applicable lifetime limit"), the plan shall either apply the applicable lifetime limit to medical and surgical benefits to which it would otherwise apply and to mental health benefits, as defined under the terms of the plan, and not distinguish in the application of the limit between medical and surgical benefits and mental health benefits, or not include any aggregate lifetime limit on mental health benefits that is less than the applicable lifetime limit;
(C) If a health benefit plan not previously described in this subdivision includes no or different aggregate lifetime limits on different categories of medical and surgical benefits, the commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code under which paragraph (B) of this subdivision shall apply, substituting an average aggregate lifetime limit for the applicable lifetime limit.
(2) Annual limits:
(A) If a health benefit plan does not include an annual limit on substantially all medical and surgical benefits, as defined under the terms of the plan but not including mental health benefits, the plan may not impose any annual limit on mental health benefits, as defined under the terms of the plan;
(B) If the health benefit plan limits the total amount that may be paid in a twelve-month period with respect to an individual or other coverage unit for substantially all medical and surgical benefits (in this paragraph, 'applicable annual limit'), the plan shall either apply the applicable annual limit to medical and surgical benefits to which it would otherwise apply and to mental health benefits, as defined under the terms of the plan, and not distinguish in the application of the limit between medical and surgical benefits and mental health benefits, or not include any annual limit on mental health benefits that is less than the applicable annual limit;
(C) If a health benefit plan not previously described in this subdivision includes no or different annual limits on different categories of medical and surgical benefits, the commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code under which paragraph (B) of this subdivision shall apply, substituting an average annual limit for the applicable annual limit.
(3) If a group health plan or a health insurer offers a participant or beneficiary two or more benefit package options, this subsection shall apply separately with respect to coverage under each option."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On motion of Delegate Boggs, 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. 396), and there were--yeas 99, nays 1, absent and not voting none, with the nays being as follows:
Nays: Walters.
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. 3288) 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. 3288, Relating to mental health parity
.On motion of Delegate Boggs, 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 §5-16-7 of the Code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that §33-16-3a of said code be amended and reenacted, 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 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-7. Authorization to establish group hospital and surgical insurance plan, group major medical insurance plan, group prescription drug plan and group life and accidental death insurance plan; rules for administration of plans; mandated benefits; what plans may provide; optional plans; separate rating for claims experience purposes.

(a) The agency shall establish a group hospital and surgical insurance plan or plans, a group prescription drug insurance plan or plans, a group major medical insurance plan or plans and a group life and accidental death insurance plan or plans for those employees herein made eligible and establish and promulgate rules for the administration of these plans, subject to the limitations contained in this article. Those plans shall include:
(1) Coverages and benefits for X-ray and laboratory services in connection with mammograms when medically appropriate and consistent with current guidelines from the United States Preventive Services Task Force; pap smears, either conventional or liquid-based cytology, whichever is medically appropriate and consistent with the current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists; and a test for the human papilloma virus (HPV) when medically appropriate and consistent with current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists, when performed for cancer screening or diagnostic services on a woman age eighteen or over;
(2) Annual checkups for prostate cancer in men age fifty and over;
(3) Annual screening for kidney disease as determined to be medically necessary by a physician using any combination of blood pressure testing, urine albumin or urine protein testing and serum creatinine testing as recommended by the National Kidney Foundation;
(4) For plans that include maternity benefits, coverage for inpatient care in a duly licensed health care facility for a mother and her newly born infant for the length of time which the attending physician considers medically necessary for the mother or her newly born child: Provided, That a plan may not deny payment for a mother or her newborn child prior to forty-eight hours following a vaginal delivery, or prior to ninety-six hours following a caesarean section delivery, if the attending physician considers discharge medically inappropriate;
(5) For plans which provide coverages for post-delivery care to a mother and her newly born child in the home, coverage for inpatient care following childbirth as provided in subdivision (4) of this subsection if inpatient care is determined to be medically necessary by the attending physician. Those plans may also include, among other things, medicines, medical equipment, prosthetic appliances, and any other inpatient and outpatient services and expenses considered appropriate and desirable by the agency; and
(6) Coverage for treatment of serious mental illness.
(A) The coverage does not include custodial care, residential care or schooling. For purposes of this section, Boggsserious mental illnessBoggs means an illness included in the American psychiatric association's diagnostic and statistical manual of mental disorders, as periodically revised, under the diagnostic categories or subclassifications of: (i) Schizophrenia and other psychotic disorders; (ii) bipolar disorders; (iii) depressive disorders; (iv) substance-related disorders with the exception of caffeine-related disorders and nicotine-related disorders; (v) anxiety disorders; and (vi) anorexia and bulimia. With regard to any covered individual who has not yet attained the age of nineteen years, Boggsserious mental illnessBoggs also includes attention deficit hyperactivity disorder, separation anxiety disorder and conduct disorder.
(B) Notwithstanding any other provision in this section to the contrary, in the event that the agency can demonstrate actuarially that its total anticipated costs for the treatment of mental illness for any plan will exceed or have exceeded exceed two percent of the total costs for such plan in any experience period, then the agency may apply whatever additional cost-containment measures may be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two percent of the total costs for the plan for the next experience period.
(C) The agency shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its plan. With regard to both medical-surgical and mental health benefits, it may make determinations of medical necessity and appropriateness, and it may use recognized health care quality and cost management tools, including, but not limited to, limitations on inpatient and outpatient benefits, utilization review, implementation of cost-containment measures, preauthorization for certain treatments, setting coverage levels, setting maximum number of visits within certain time periods, using capitated benefit arrangements, using fee-for-service arrangements, using third-party administrators, using provider networks and using patient cost sharing in the form of copayments, deductibles and coinsurance.
(b) The agency shall make available to each eligible employee, at full cost to the employee, the opportunity to purchase optional group life and accidental death insurance as established under the rules of the agency. In addition, each employee is entitled to have his or her spouse and dependents, as defined by the rules of the agency, included in the optional coverage, at full cost to the employee, for each eligible dependent; and with full authorization to the agency to make the optional coverage available and provide an opportunity of purchase to each employee.
(c) The finance board may cause to be separately rated for claims experience purposes:
(1) All employees of the State of West Virginia;
(2) All teaching and professional employees of state public institutions of higher education and county boards of education;
(3) All nonteaching employees of the Higher Education Policy Commission, West Virginia Council for Community and Technical College Education and county boards of education; or
(4) Any other categorization which would ensure the stability of the overall program.
(d) The agency shall maintain the medical and prescription drug coverage for Medicare- eligible retirees by providing coverage through one of the existing plans or by enrolling the Medicare-eligible retired employees into a Medicare-specific plan, including, but not limited to, the Medicare/Advantage Prescription Drug Plan. In the event that a Medicare-specific plan would no longer be available or advantageous for the agency and the retirees, the retirees shall remain eligible for coverage through the agency.
CHAPTER 33. INSURANCE.

ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3a. Same -- Mental health.

(a) (1) Notwithstanding the requirements of subsection (b) of this section, any health benefits plan described in this article that is delivered, issued or renewed in this state shall provide benefits to all individual subscribers and members and to all group members for expenses arising from treatment of serious mental illness. The expenses do not include custodial care, residential care or schooling. For purposes of this section, Boggsserious mental illnessBoggs means an illness included in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, as periodically revised, under the diagnostic categories or subclassifications of: (I) (A) Schizophrenia and other psychotic disorders; (ii) (B) bipolar disorders; (iii) (C) depressive disorders; (iv) (D) substance-related disorders with the exception of caffeine-related disorders and nicotine-related disorders; (v) (E) anxiety disorders; and (vi) (F) anorexia and bulimia.
(2) Notwithstanding any other provision in this section to the contrary, in the event that an insurer can demonstrate actuarially to the Insurance Commissioner that its total anticipated costs for treatment for mental illness, for any plan will exceed or have exceeded two percent of the total costs for such plan in any experience period, then the insurer may apply whatever cost containment measurers measures may be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two percent of the total costs for the plan: Provided, That for any group with twenty-five members or less, the insurer may apply such additional cost containment measures as may be necessary if the total anticipated actual costs for the treatment of mental illness will exceed one percent of the total costs for the group plan year beginning after October 3, 2009, an insurer providing a Boggsgroup health plan,Boggs as defined in section one-a of this article, with an average of more than fifty employees on business days during the preceding calendar year, may not apply cost containment measures as provided in this subdivision unless the insurer can demonstrate that the application of this section results in an increase of two percent of the actual total costs of coverage for the plan year involved with respect to medical-surgical benefits and mental health benefits under the plan: Provided, however, That such cost containment measures implemented are applicable only for the plan year following approval of the request to implement cost containment measures.
(3) The insurer shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its plan. With regard to both medical-surgical and mental health benefits, it may make determinations of medical necessity and appropriateness, and it may use recognized health care quality and cost management tools, including, but not limited to, utilization review, use of provider networks, implementation of cost containment measures, preauthorization for certain treatments, setting coverage levels including the number of visits in a given time period, using capitated benefit arrangements, using fee-for-service arrangements, using third-party administrators, and using patient cost sharing in the form of copayments, deductibles and coinsurance.
(4) The provisions of amendments to this subsection shall apply with respect to group health plans for plan years beginning on or after January 1, two thousand three October 3, 2009.
(b) With respect to mental health benefits furnished to an enrollee of a health benefit plan offered in connection with a group health plan, for a plan year beginning on or after January 1, 1998, the following requirements shall apply to aggregate lifetime limits and annual limits.
(1) Aggregate lifetime limits:
(A) If the health benefit plan does not include an aggregate lifetime limit on substantially all medical and surgical benefits, as defined under the terms of the plan but not including mental health benefits, the plan may not impose any aggregate lifetime limit on mental health benefits;
(B) If the health benefit plan limits the total amount that may be paid with respect to an individual or other coverage unit for substantially all medical and surgical benefits (in this paragraph, Boggsapplicable lifetime limitBoggs), the plan shall either apply the applicable lifetime limit to medical and surgical benefits to which it would otherwise apply and to mental health benefits, as defined under the terms of the plan, and not distinguish in the application of the limit between medical and surgical benefits and mental health benefits, or not include any aggregate lifetime limit on mental health benefits that is less than the applicable lifetime limit;
(C) If a health benefit plan not previously described in this subdivision includes no or different aggregate lifetime limits on different categories of medical and surgical benefits, the commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code under which paragraph (B) of this subdivision shall apply, substituting an average aggregate lifetime limit for the applicable lifetime limit.
(2) Annual limits:
(A) If a health benefit plan does not include an annual limit on substantially all medical and surgical benefits, as defined under the terms of the plan but not including mental health benefits, the plan may not impose any annual limit on mental health benefits, as defined under the terms of the plan;
(B) If the health benefit plan limits the total amount that may be paid in a twelve-month period with respect to an individual or other coverage unit for substantially all medical and surgical benefits (in this paragraph, Boggsapplicable annual limitBoggs), the plan shall either apply the applicable annual limit to medical and surgical benefits to which it would otherwise apply and to mental health benefits, as defined under the terms of the plan, and not distinguish in the application of the limit between medical and surgical benefits and mental health benefits, or not include any annual limit on mental health benefits that is less than the applicable annual limit;
(C) If a health benefit plan not previously described in this subdivision includes no or different annual limits on different categories of medical and surgical benefits, the commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code under which paragraph (B) of this subdivision shall apply, substituting an average annual limit for the applicable annual limit.
(3) If a group health plan or a health insurer offers a participant or beneficiary two or more benefit package options, this subsection shall apply separately with respect to coverage under each option."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3288 - "A Bill to amend and reenact §5-16-7 of the Code of West Virginia, 1931, as amended, and to amend and reenact §33-16-3a of said code, all relating to group accident and sickness insurance requirements to cover treatment of mental illness; providing that actual increases in costs for certain coverage determine whether cost containment measures may be applied by Public Employees Insurance Agency and private carriers; and removing certain provisions regarding small groups."
On motion of Delegate Boggs, 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. 396), and there were--yeas 99, nays 1, absent and not voting none, with the nays being as follows:
Nays: Walters.
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. 3288) 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. 3305, Relating to the powers and duties of probation officers. On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page three, section six, lines thirty-three and thirty-four, by striking out the words "taken without unreasonable delay before a judge" and inserting in lieu thereof the words "brought before the court for a prompt and summary hearing."
On motion of Delegate Boggs, 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. 397), and there were--yeas 99, nays 1, absent and not voting 0, with the nays being as follows:
Nays: Ellem.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3305) 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. 3313, Allowing depositories and banks to meet the security requirement necessary to be a depository for boards of education by providing a letter of credit from a federal home loan bank
.On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page eight, section six, lines one hundred sixteen and one hundred seventeen, by striking out the words "Investment Management Board or the West Virginia Board of Treasury Investments" and inserting in lieu thereof the words "Municipal Bond Commission".
On motion of Delegate Boggs, 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. 398), and there were--yeas 89, nays 11, absent and not voting none, with the nays being as follows:
Nays: Blair, Duke, Ellem, Ireland, Lane, McGeehan, C. Miller, Porter, Sobonya, Sumner and Walters.
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. 3313) 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. 3340, Relating to entry into a data state compact among the Higher Education Policy Commission, Council for Community and Technical College Education and State Board of Education.
On motion of Delegate Boggs, 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 1D. HIGHER EDUCATION ACCOUNTABILITY.
§18B-1D-10. State data sharing compact; legislative intent; findings; definitions.

(a) The intent of the Legislature in enacting this section is to direct the commission, council and State Board of Education to enter into a state compact, consistent with the provisions of section six of this article, on or before July 1, 2009, to develop and maintain a longitudinal education data system and to share educational information.
(b) The Legislature makes the following findings:
(1) Sound data collection, reporting and analysis are critical to building an education system capable of ensuring that all West Virginia students are adequately prepared for college and the global workforce. Elementary schools, middle schools, secondary schools and higher education institutions can improve instructional and educational decision-making using data that are collected and made available to them.
(2) State education policymaking benefits from partnerships between state education agencies and entities with expertise in education research. It is beneficial for West Virginia to establish systems and processes that permit qualified researchers to assist with state evaluation and research functions in a manner that is consistent with privacy protection laws.
(3) West Virginia is committed to establishing and maintaining a longitudinal student unit record data system that educators and policymakers can use to analyze and assess student progress beginning with early learning programs and continuing through post-secondary education and into employment. The commission, council and State Board of Education have designed, built and deployed some of the fundamental components of a longitudinal data system and have engaged in extensive efforts to link and use available education data effectively. Now, it is necessary to integrate and manage the various education data components in a cooperative manner to establish a data-driven, decision-making environment for this state's education system.
(4) Students will achieve improved learning outcomes because of the longitudinal data system established through the state compact mandated by this section.
(6) State use and management of education data shall be in accordance with all legal requirements protecting student privacy and shall protect personal information from intentional or accidental release to unauthorized persons and from intentional or accidental use for unauthorized purposes.
(c) Definitions:
(1) 'Longitudinal data system' means a student unit record data system that links student records beginning with early learning programs and continuing through post-secondary education, entry into the workforce and beyond. The system may consist of separate student unit record systems integrated through agreement and data transfer mechanisms.
(2) 'Privacy protection laws' means the federal Family Educational Rights and Privacy Act of 1974 (20 U.S.C. 1232g) and any other state or federal laws relating to the confidentiality and protection of personally identifiable information.
(3) 'Research organization' means a governmental entity, institution of higher education, public policy organization or other person or entity conducting educational research that meets the following conditions:
(i) Qualified to perform educational research and protect the privacy of student data;
(ii) Seeks to perform research for a non-commercial purpose authorized by privacy protection laws; and
(iii) Agrees to perform the research pursuant to a written agreement meeting the requirements of privacy protection laws and best research practices.
(d) The state data-sharing compact entered into by the commission, council and State Board of Education shall contain the following:
(1) A plan to establish and maintain a longitudinal data system that links early learning, elementary, middle and secondary school student unit records with higher education institution student unit records;
(2) A plan to establish a data warehouse that integrates data from multiple student unit record systems and supports all of the uses and functions of the longitudinal data system;
(3) A list of areas for collaborative research and a preliminary plan for conducting that research;
(4) A system for entering into data sharing arrangements with each other and with research organizations consistent with subsection (f) of this section; and
A provision that allows another party to the compact to review any draft report or study generated using that party's data at least ten days before the report or study is released publicly. During that ten day period, each party shall be given the opportunity to submit comments regarding the accuracy, conclusions and recommendations of the report or study.
(e) To facilitate implementation of the requirements of this section:
(1) The commission, council and State Board of Education are authorized to disclose data to the longitudinal data system and to each other consistent with the purposes of this section;
(2) With the assistance of the State Board of Education, the commission, council and state institutions of higher education shall collect the State Board of Education's unique identifier for all students who have attended public schools in West Virginia to facilitate better matching of student unit record data.
(3) The commission, council and State Board of Education shall collect, use, maintain, disclose and share data in accordance with personal privacy laws and shall develop security measures and procedures that protect personal information from intentional or accidental release to unauthorized persons and from intentional or accidental use for unauthorized purposes.
(f) A data sharing arrangement entered into with a research organization pursuant to this section shall meet the following criteria:
(1) Permitted by and undertaken in accordance with privacy protection laws;
(2) Receives prior approval from the State Superintendent of Schools or designee, the Chancellor for Higher Education or designee, and the Chancellor for Community and Technical College Education or designee, as appropriate, if data from that entity are being utilized in the research;
(3) Prohibits the personal identification of any person by individuals other than authorized representatives of the research organization who have legitimate interests in the information;
(4) Ensures the destruction or return of the data when no longer needed for the authorized purposes under the data sharing arrangement;
(5) Performed pursuant to a written agreement with the research organization that does the following:
(A) Specifies the purpose, scope and duration of the data sharing arrangement;
(B) Requires the recipient of the data to use personally identifiable information from education records only to meet the purpose or purposes of the data sharing arrangement stated in the written agreement;
(C) Describes specific data access, use and security restrictions that the recipient will undertake; and
(D) Contains such other terms and provisions as the commission, council and State Board of Education, as appropriate, consider necessary or appropriate.
(g) As a condition of participating in state-level financial aid programs provided for in chapter eighteen-c of this code, the commission may require non-public institutions of higher education to provide data for the longitudinal data system and data warehouse."
On motion of Delegate Boggs, 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. 399), and there were--yeas 93, nays 7, absent and not voting none, with the nays being as follows:
Nays: Cowles, Duke, Ireland, Lane, Miller, C, Romine and Sobonya.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3340) 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 in the amendment of the House of Delegates and the passage, as amended, of
S. B. 12, Allowing 2-year motorcycle registration period.
Com. Sub. for S. B. 239, Allowing majority vote for certain metro government approval,
S. B. 335, Authorizing Division of Culture and History distribute fairs and festivals' funding,
Com. Sub. for S. B. 382, Adjusting State Rail Authority's contract authority,
Com. Sub. for S. B. 404, Creating esquicentennial,commission and fund,
S. B. 424, Converting financial institution to state-chartered bank
S. B. 434,Relating to long-term care policy insurance agents,
S. B. 464, Authorizing Public Employees Insurance Agency charge fee for paper transactions,
Com. Sub. for S. B. 501, Prohibiting animal gas chamber euthanasia,
S. B. 521, Including telecommunications devices as jail contraband,
S. B. 528, Depositing certain fees in counties' general funds,
Com. Sub. for S. B. 532, Creating WV SAFE Mortgage Licensing Act,
S. B. 594, Requiring monthly fund installments to Courtesy Patrol,
S. B. 595, Relating to assignment of child support obligations,
S. B. 600, Relating to coal reclamation tax,
Com. Sub. for S. B. 610, Relating to Film Industry Investment Act,
S. B. 699, Relating to properly apportioning percentage of fault in certain cases,
Com. Sub. for S. B. 687, Relating to Comprehensive Behavioral Health Commission,
And,
S. B. 761, Relating to illegal entries upon certain property.
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. 2418, Relating to exempting certain records of the Division of Corrections and Regional Jail Authority from the Freedom of Information Act that, if released, could aid inmates in committing unlawful acts.
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. 2419 - "A Bill to amend and reenact §31-20-5d of the Code of West Virginia, 1931, as amended, relating to providing certain inmates a reduction in sentence for successful completion of education and rehabilitation programs."
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. 2423 - "A Bill to amend and reenact §30-23-4, §30-23-5, §30-23-6, §30-23-9, §30-23-10, §30-23-13, §30-23-14, §30-23-16, §30-23-17 and §30-23-19 of the Code of West Virginia, 1931, as amended, all relating to the Board of Medical Imaging and Radiation Therapy Technology."
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. 2567 - "A Bill to amend and reenact §18-7A-3, §18-7A-13, §18-7A- 14, §18-7A-23, §18-7A-28c and §18-7A-34 of the Code of West Virginia, 1931, as amended, all relating to State Teachers Retirement System; making technical changes; modifying definitions; specifying cessation of membership; clarifying loan offsets at time of withdrawal; specifying procedures for the correction of errors; permitting rollovers of any dollar amount; and permitting loan borrowers to receive retirement income or disability payments when outstanding loan balance is deducted from the actuarial reserve of accrued benefit."
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. 2719 - "A Bill to amend and reenact §11-16-3 of the Code of West Virginia, 1931, as amended, relating to 'nonintoxicating beer'; defining 'nonintoxicating craft beer'; including 'nonintoxicating craft beer' with the definition of 'nonintoxicating beer'; and increasing the maximum alcohol level in the stated definition of 'nonintoxicating beer'."
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 and referred to the Committee on Rules:
S. C. R. 57 - "Requesting the Joint Committee on Government and Finance study a proposed new state business and occupation tax on high-voltage electric power transmission lines.
Whereas, The constitutionality of Senate Bill No. 505 or House Bill No. 3000 introduced in the 2009 regular session of the West Virginia Legislature or similar bills in the near future, if passed, will likely be challenged in federal court as an unlawful restraint on interstate commerce; and
Whereas, The proposed TrAIL line subject to the proposed West Virginia business and occupation tax would not be operational before 2011 and the proposed PATH line subject to the proposed West Virginia business and occupation tax would not be operational before 2013 and, consequently, the Legislature has adequate time to fully study the implications of a proposed new West Virginia business and occupation tax on high-voltage electric power transmission; and
Whereas, Any new state tax on high-voltage interstate transmission lines regulated under federal Energy Regulatory Commission (FERC) rate tariffs may be interpreted by other states in the PJM Interconnection as an attempt by the State of West Virginia to circumvent the FERC rate regime and would prompt retaliatory impositions of taxes on those lines by other states; and
Whereas, West Virginia ratepayers would bear the burden of the initial cost of those extra high-voltage transmission lines, the taxes imposed by Senate Bill No. 505 or House Bill No. 3000 and the retaliatory taxes imposed by other states; and
Whereas, The United States Court of Appeals for the Fourth Circuit has determined that FERC may not assert federal eminent domain power if the West Virginia Public Service Commission declines to issue a certificate of need for an interstate high-voltage transmission line regulated by FERC; and
Whereas, The current certificate of need application process at the West Virginia Public Service Commission does not take into account the full range of direct and indirect impacts of the siting of high-voltage transmission lines as defined in Senate Bill No. 505 and House Bill No. 3000; and
Whereas, Current and future developments in conservation, demand-side management and increased power generation capacity in the eastern sector of the PJM Interconnection may render the need for the PATH and TrAIL transmission lines obsolete; and
Whereas, State governments and public utility regulators in the eastern end of the PJM Interconnection are challenging FERC mandates to financially support interstate transmission lines such as PATH and TrAIL; and
Whereas, The West Virginia Legislature needs a thorough investigation of the current status of national, regional and state policy and financial implications of high-voltage transmission lines as defined in Senate Bill No. 505 and House Bill No. 3000 before acting unilaterally to impose a special new West Virginia business and occupation tax on these high-voltage electric power transmission lines; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study a proposed new state business and occupation tax on high-voltage electric power transmission lines; and, be it
Further Resolved, That the Joint Committee on Government and Finance may seek input from experts and other resources appropriate to these studies; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
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 and referred to the Committee on Rules:
S. C. R. 59 - "Requesting the Joint Committee on Government and Finance study improving and updating West Virginia's severance tax on natural gas and oil."
Whereas, Currently the producer, or severer, of natural gas or oil remits the severance tax to the state; and
Whereas, Opportunities for improved efficiency in administration of the severance tax on natural gas or oil may exist if severance taxes are remitted by the first purchaser of natural gas or oil after the gas or oil has been severed, rather than remitted by the producer; and
Whereas, Neighboring states provide that the severance tax on natural gas and oil be remitted by the first purchaser; and
Whereas, An increase in the collection of severance taxes may occur through the elimination of certain severance tax provisions, including the exemption on low-producing wells and the $500 per taxpayer tax credit; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study improving and updating West Virginia's severance tax on natural gas and oil; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested to study the impact of the elimination of certain credits and exemptions relating to the severance tax on natural gas and oil, including the low-producing well exemption and the $500 per taxpayer credit; and be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
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 and referred to the Committee on Rules:
S. C. R. 60 - "Requesting the Joint Committee on Government and Finance study the implementation and administration of grants for economic development, infrastructure and capital improvement through the West Virginia Economic Development Grant Committee."
Whereas, In 2002, House Bill No. 4005 established the West Virginia Economic Development Grant Committee to authorize bonds through the Economic Development Authority from excess state lottery revenue to award 48 grants to public entities throughout the state for economic development projects; and
Whereas, On January 29, 2004, the Economic Development Authority issued $249,895,000 in lottery revenue bonds to fund the various grants approved though the selection process of the grant committee; and
Whereas, The grant committee is no longer a functioning entity and the Economic Development Authority is now administering disbursements to projects previously approved; and
Whereas, As of February 28, 2009, 95.7 percent of the total amount of approved grants has been disbursed and $2,387,771.09 remains in the Economic Development Projects Bridge Loan Fund; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the implementation and administration of grants for economic development, infrastructure and capital improvement through the West Virginia Economic Development Grant Committee; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested to study ways to allocate and distribute public funds for economic development, infrastructure and capital improvement projects, in as efficient and effective method as possible to maximize the use of such funds, and to review the 48 projects selected by the grant committee to determine whether the projects achieved the economic development results as contemplated by the enabling legislation; and, be it
Further Resolved, That the Joint Committee on Government and Finance engage the services and expertise of a consultant for business and economic research to assist in this comprehensive study; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
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 and referred to the Committee on Rules:
S. C. R. 62 - "Reequesting the Joint Committee on Government and Finance study the tax structure, including payments in lieu of taxes, in the State of West Virginia, including a comparison of all tax relief for corporations, whether situated within the state or not, against tax relief for individuals at this time of economic recession."
Whereas, Nearly all of the state's general revenue budget comes from taxes collected; and
Whereas, West Virginia, like the rest the nation, is experiencing budget shortfalls; and
Whereas, In this time of economic recession, individuals and businesses alike are finding it more difficult to meet the tax burdens imposed upon them; and
Whereas, It is critical to assess the burden of taxes by the State of West Virginia upon its citizens as compared to the economic impact that any reduction in tax revenue would have on our economic prosperity and security; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the tax structure, including payments in lieu of taxes, in the State of West Virginia, including a comparison of all tax relief for corporations, whether situated within the state or not, against tax relief for individuals at this time of economic recession; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
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 and referred to the Committee on Rules:
S. C. R. 64 - "Requesting the Joint Committee on Government and Finance study the public policy issues involved in the possible development and implementation of carbon dioxide cap and trade proposals within the State of West Virginia."
Whereas, The production of increased amounts of carbon dioxide are alleged to be a threat to the health of the citizens of this state, this country and the world by causing an increase or growth in "greenhouse gas" in the form of carbon dioxide pollutant; and
Whereas, It is alleged that, to some extent, the increase or growth in carbon dioxide is caused by the burning of fossil fuels which include coal mined and produced in West Virginia; and
Whereas, It is in the interest of the citizens of this state that there be maintenance of a healthy environment and protection of life-sustaining ecological processes, based upon thorough knowledge as to how coal may be mined in this state and utilized in a manner that is in harmony with essential ecological processes and human health; and
Whereas, There appears to be growing interest in this country and elsewhere in the world to develop cap and trade systems that involve the trading of emission allowances, where the total allowance is strictly limited or "capped" considerably lower than the historic level of emissions, and where a market mechanism is established that allows emitters to buy emissions from or sell emissions to other emitters; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the public policy issues involved in the possible development and implementation of carbon dioxide cap and trade proposals within the State of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance may seek input and information from experts and other resources appropriate to this study; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
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 and referred to the Committee on Rules:
H. C. R. 65 - " Requesting theJoint Committee on Government and Finance study public safety, health and welfare issues related to the sale, storage and use of fireworks in this state."
Whereas, Certain fireworks may be sold to consumers in this state. Issues remain regarding public safety at locations that sell fireworks to consumers, education of the public regarding the safe use of fireworks and enforcement of current laws regarding the sale and use of fireworks; and
Whereas, The State Fire Marshal has certain jurisdiction over the sale and use of fireworks in this state and there is a need to examine whether the State Fire Marshal's role should be increased and whether the existing laws need to be changed to better protect the health, welfare and safety of the public; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to studypublic safety, health and welfare issues related to the sale, storage and use of fireworks in this state; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested to seek the input of the State Fire Marshal and any other interested and informed persons selected by the joint committee to study issues related to the retail sale, storage and use of fireworks; and, be it
Further Resolved, That this study should include whether there should be additional regulation of the retail sale, storage or use of fireworks and how the additional regulation, if necessary, in the public interest, should be provided and funded; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee onGovernment and Finance.
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 and referred to the Committee on Rules:
S. C. R. 66 - "Requesting the Joint Committee on Government and Finance study the overall costs of highway and sewer and water projects in West Virginia, including, but not limited to, the costs associated with the selection of professional engineering and design firms for projects funded by the Division of Highways and/or the Water Development Authority that are not funded by federal funds."
Whereas, The overall costs of completing highway and sewer and water projects in the state has steadily risen; and
Whereas, The qualifications-based selection process is required by federal law and has been in use by the State of West Virginia since 1990 for the purpose of selecting engineering and design firms; and
Whereas, Time and cost savings are critical to the success of any public works project such as highways maintenance and construction and sewer and water development; and
Whereas, Proposed changes to existing procurement law related to engineering and design services could significantly impact numerous state agencies, along with counties and municipalities; and
Whereas, The professional engineering community has maintained its willingness to provide assistance in improving the process of selection and project delivery to taxpayers; and
Whereas, Further review and determination of best practices is merited related to managing overall costs of completing highway and sewer and water projects and the procurement of engineering and design services related thereto and is otherwise necessary before proceeding with changes to existing law; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the overall costs of highway and sewer and water projects in West Virginia, including, but not limited to, the selection of professional engineering and design firms for projects funded by the Division of Highways and Water Development Authority that are not funded by federal funds; and, be it
Further Resolved
, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance
.
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 and referred to the Committee on Rules:
S. C. R. 67 - "Requesting the Joint Committee on Government and Finance study issues related to asbestos trust disclosures."
Whereas, Millions of American workers and others were exposed to asbestos, especially during and after World War II and prior to the promulgation of regulations by the Occupational Safety and Health Administration in the early 1970s; and
Whereas, Exposure to asbestos has been associated with various types of cancer, including mesothelioma and lung cancer, as well as such nonmalignant conditions as asbestosis, pleural plaques and diffuse pleural thickening; and
Whereas, Corporations filed for bankruptcy, some as a result of claims arising out of asbestos exposure, resulting in the creation of trust or claims facilities intended to provide compensation to claimants alleging injuries as a result of asbestos exposure; and
Whereas, In excess of $30 billion has been placed with these trusts for the payment of asbestos claims; and
Whereas, Asbestos claimants may seek compensation for alleged asbestos-related conditions from both the civil tort system and from trusts or claims facilities formed in bankruptcy proceedings if they meet the requirements of a particular trust; and
Whereas, There is a current case management order requiring an asbestos trust affidavit disclosing all asbestos bankruptcy filings for a particular case set for trial that some parties feel may be inadequate; and
Whereas, In order to afford defendants against whom asbestos claims are filed the right to complete disclosure regarding claims filed against bankruptcy trusts and in order to preserve assets for individuals who may in the future bring asbestos claims against bankruptcy trusts, more transparency about bankruptcy trust claims may be necessary; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study issues related to asbestos trust disclosures; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested to study the need for further disclosure by claimants in civil actions involving exposure to asbestos of all current and anticipated claims against bankruptcy trusts and all supporting documentation filed with the bankruptcy trusts; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved,
That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
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 and referred to the Committee on Rules:
S. C. R. 71 - "Recognizing the importance of the oil and natural gas industry in West Virginia and requesting West Virginia's congressional delegation to support the oil and natural gas industry."
Whereas, The Legislature works tirelessly to improve the quality of life for the citizens of the Mountain State; and
Whereas, Oil and Natural Gas Industry has been, and continues to be, one of the primary industries responsible for the economic success of West Virginia and its citizens; and
Whereas, Thousands of West Virginians are employed, either directly or indirectly, by the oil and natural gas industry which generates payrolls totaling over $1 billion; and
Whereas, Production, transmission, storage and distribution of oil and natural gas currently accounts for the payment of millions of dollars in severance taxes, millions of dollars in income taxes and millions of dollars in other related taxes paid to the State of West Virginia; and
Whereas, County governments and county school systems throughout the state rely on the taxes from oil and natural gas companies that annually fund many valuable programs, including public education, ambulance services and law enforcement; and
Whereas, The reduction of West Virginia's oil and natural gas production and the loss of any oil- and natural gas-related employment ultimately results in significant harm to all West Virginians; and
Whereas, The United States of America, in its effort to become energy independent, may be compromised if oil and natural gas investment is not maintained; and
Whereas, Concerns have been raised about President Obama's proposal to eliminate a number of key tax incentives which have benefitted the domestic natural gas industry; and
Whereas, Continued incentives will allow for development of geophysical analysis necessary to evaluate known reserves such as the Marcellus Shale and other shale formations vital for our domestic reserves; and
Whereas, The continued development of domestic reserves is not only good energy policy, it is sound fiscal policy and vital to our national security; and
Whereas, Fewer wells in production would result in significant direct West Virginia job losses and accompanying loss of property and severance tax revenues; and
Whereas, The reduction in oil and natural gas development will keep potential royalty payments to ordinary West Virginians who for years have waited for and paid property taxes on minerals with the hope they would be developed; and
Whereas, Actions by the United States Congress should be in an effort to ensure our domestic energy resources are developed responsibly in conjunction with federal and state regulatory agencies; and
Whereas, The United States Congress is responsible for securing our national defense and providing for our energy independence from foreign influence; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby recognizes the importance of the oil and natural gas industry in West Virginia and requesting West Virginia's congressional delegation to support the oil and natural gas industry; and, be it
Further Resolved, That the Legislature hereby requests the West Virginia congressional delegation join in opposition to proposed changes in the United States Tax Code which reduce incentives that stimulated domestic oil and natural gas production; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the President and Vice President of the United States, Governor of West Virginia and members of West Virginia's delegation.
At 7:11 p.m., the House of Delegates adjourned until 10:00 a.m.,Saturday, April 11, 2009 .

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