hdj2010-03-13-60
__________*__________
Saturday, March 13, 2010
SIXTIETH DAY
[Mr. Speaker, Mr. Thompson, in the Chair]
The House of Delegates met at 11:00 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 Friday, March 12, 2010, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment
of the House of Delegates and requested the House to recede from its amendment to
Com. Sub. for S. B. 230, Relating to Board of Optometry.
On motion of Delegate Boggs, the House of Delegates refused to recede from its amendment
and requested the Senate to agree to the appointment of a Committee of Conference of 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 Perdue, Campbell and Border.
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 concur in the amendment
of the House of Delegates and requested the House to recede from its amendment to
Com. Sub. for S. B. 480, Relating to public higher education personnel.
On motion of Delegate Boggs, the House of Delegates refused to recede from its amendment
and requested the Senate to agree to the appointment of a Committee of Conference of 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 M. Poling, Paxton and Canterbury.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
H. B. 4177, Dedicating five percent of coal severance tax to the county of origin.
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, after the article heading by inserting the following:
"§11-13A-4a. Measure of tax on integrated producer and processor of timber products.
For purposes of this section, the term 'green lumber' means boards of wood, that have been
sawed from various species of logs in various lengths, widths and thicknesses, but that have not
undergone any further processing, including, but not limited to, drying, in a dry kiln, or otherwise.
A person who produces timber and further saws, mills or otherwise manufactures the same
into green lumber or other wood products excluding manufacturing by-products for sale, profit or
commercial use, shall report twenty-five percent of his gross proceeds from the sale thereof as the
gross value of the timber be produced for purposes of the tax imposed under section three-b of this
article. Where no sale is made of such saw, milled or otherwise manufactured green lumber or other
wood products by such a producer, the amount of the gross value of the same shall be determined
according to the provisions of section two of this article used in determining the gross value of
similar natural resource products, after application of post severance processing that is generally
applied by the industry to obtain commercially marketable or usable natural resource products, which
determination may be based on data contained in regularly published independent market reports of
the current, arms-length sale of similar products in the vicinity where such post severance processing
occurs and twenty-five percent of the amount so determined shall be reported as the gross value of
the timber produced for purposes of the tax imposed under section three-b of this article:
Provided,
That in the case of green lumber that, before its sale, has undergone subsequent processing in a dry
kiln, the gross value of such green lumber, before it was transported to the dry kiln for such
processing, shall be the gross value, twenty-five percent of which is reported as the gross value of
the timber produced for purposes of the tax imposed under section three-b of this article."
And,
By amending the enacting section to read as follows:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated §11-13A-4a; and that §11-13A-5a of said code be amended and reenacted, all
to read as follows" and a colon.
And by amending the title of the bill to read as follows:
H. B. 4177 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section designated §11-13A-4a; and to amend and reenact §11-13A-5a of said code,
all relating to the severance and business privilege tax act; clarifying the measure of tax on integrated producer and processor of timber products; and dedicating five percent of coal severance tax to the
county of origin and specifying permissible uses for the money."
On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate
amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
H. B. 4593, Relating to high school graduation improvement.
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 enacting clause and inserting in lieu the
following:
"That §18-8-1 and §18-8-4 the Code of West Virginia, 1931, as amended, be amended and
reenacted; that said code be amended by adding thereto a new section, designated §18-8-6; that §18-
9A-21 of said code be amended and reenacted; and that §62-15-4 of said code be amended and
reenacted, all to read as follows:
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-1. Compulsory school attendance; exemptions.
(a)
Compulsory school attendance shall begin with the school year in which the sixth birthday
is reached prior to September 1, or upon enrolling in a publicly supported kindergarten program and
continue to the sixteenth birthday. Exemption from the
foregoing requirements of compulsory public
school attendance
established in section one-a of this article shall be made on behalf of any child for
the causes or conditions set forth in this section. Each cause or condition set forth in this section
shall be is subject to confirmation by the attendance authority of the county.
(b) A child
shall be is exempt from the compulsory school attendance requirement set forth
in
subsection (a) of this section section one-a of this article if the requirements of this subsection,
relating to instruction in a private, parochial or other approved school, are met. The instruction shall
be in a school approved by the county board and for a time equal to the instructional term set forth
in section forty-five, article five of this chapter. In all private, parochial or other schools approved
pursuant to this subsection it
shall be is the duty of the principal or other person in control, upon the
request of the county superintendent, to furnish to the county board such information and records as
may be required with respect to attendance, instruction and progress of
pupils students enrolled.
between the entrance age and sixteen years
(c) A child
shall be is exempt from the compulsory school attendance requirement set forth
in
subsection (a) of this section section one-a of this article if the requirements of either subdivision
(1)
of this subsection or subdivision (2) of this subsection, both relating to home instruction, are met.
(1) The instruction shall be in the home of the child or children or at some other place
approved by the county board and for a time equal to the instructional term set forth in section forty-
five, article five of this chapter. If the request for home instruction is denied by the county board,
good and reasonable justification for the denial shall be furnished in writing to the applicant by the
county board. The instruction shall be conducted by a person or persons who, in the judgment of the
county superintendent and county board, are qualified to give instruction in subjects required to be
taught in public elementary schools in the state. The person or persons providing the instruction,
upon request of the county superintendent, shall furnish to the county board information and records
as may be required
from time to time periodically with respect to attendance, instruction and
progress of
pupils enrolled between the entrance age and sixteen years students receiving the
instruction. The state board shall develop guidelines for the home schooling of special education
students including alternative assessment measures to assure that satisfactory academic progress is
achieved.
(2) The child meets the requirements set forth in this subdivision:
Provided, That the county superintendent may seek from the circuit court of the county an order denying home instruction of
the child. The order may be granted upon a showing of clear and convincing evidence that the child
will suffer neglect in
the child's his or her education or that there are other compelling reasons to
deny home instruction.
(A) Annually, the person or persons providing home instruction shall present to the county
superintendent or county board a notice of intent to provide home instruction and the name, address,
age and grade level of any child of compulsory school age to be instructed:
Provided, That if a child
is enrolled in a public school, notice of intent to provide home instruction shall be given at least two
weeks prior to withdrawing
such the child from public school;
(B) The person or persons providing home instruction shall submit satisfactory evidence of
a high school diploma or equivalent;
(C) The person or persons providing home instruction shall outline a plan of instruction for
the ensuing school year; and
(D) On or before June 30
of each year annually, the person or persons providing home
instruction shall obtain an academic assessment of the child for the previous school year and submit
the results to the county superintendent. When the academic assessment takes place outside of a
public school, the parent or legal guardian shall pay the cost. The requirement of an academic
assessment
shall be is satisfied in one of the following ways:
(i) The child receiving home instruction takes a nationally normed standardized achievement
test to be administered under standardized conditions as set forth by the published instructions of the
selected test in the subjects of reading, language, mathematics, science and social studies.
Provided,
That in no event may The child's parent or legal guardian
may not administer the test
in any event.
The publication date of the chosen test
shall may not be more than ten years from the date
of the
administration of the test
is administered. The child
shall be is considered to have made acceptable
progress when the mean of the child's test results in the required subject areas for any single year
meets or exceeds the fiftieth percentile or, if below the fiftieth percentile, shows improvement from the previous year's results;
(ii) The child participates in the testing program currently in use in the state's public schools.
The test shall be administered to the child at a public school in the county of residence.
Determination of acceptable progress
will shall be based on current guidelines of the state testing
program;
(iii) The county superintendent is provided with a written narrative indicating that a portfolio
of samples of the child's work has been reviewed and that the child's academic progress for the year
is in accordance with the child's abilities. If the narrative indicates that the child's academic
progress for the year is in accordance with the child's abilities, the child
shall be is considered to
have made acceptable progress. This narrative shall be prepared by a certified teacher whose
certification number shall be provided. The narrative shall include a statement about the child's
progress in the areas of reading, language, mathematics, science and social studies and shall note any
areas which, in the professional opinion of the reviewer, show need for improvement or remediation;
or
(iv) The child completes an alternative academic assessment of proficiency that is mutually
agreed upon by the parent or legal guardian and the county superintendent. Criteria for acceptable
progress shall be mutually agreed upon by the same parties; and
(E) When the annual assessment fails to show acceptable progress as defined under the
appropriate assessment option set forth in paragraph (D) of this subdivision, the person or persons
providing home instruction shall initiate a remedial program to foster acceptable progress.
and The
county board shall notify the parents or legal guardian of the child, in writing, of the services
available to assist in the assessment of the child's eligibility for special education services.
Provided, That the Identification of a disability
shall does not preclude the continuation of home
schooling. In the event that the child does not achieve acceptable progress as defined under the
appropriate assessment option set forth in paragraph (D) of this subdivision for a second consecutive
year, the person or persons providing instruction shall submit to the county superintendent additional evidence that appropriate instruction is being provided.
(3) This subdivision applies to both home instruction exemptions set forth in subdivisions
(1) and (2) of this subsection. The county superintendent or a designee shall offer such assistance,
including textbooks, other teaching materials and available resources,
all subject to availability, as
may assist the person or persons providing home instruction.
subject to their availability Any child
receiving home instruction may upon approval of the county board exercise the option to attend any
class offered by the county board as the person or persons providing home instruction may consider
appropriate subject to normal registration and attendance requirements.
(d) A child
shall be is exempt from the compulsory school attendance requirement set forth
in
subsection (a) of this section section one-a of this article if the requirements of this subsection,
relating to physical or mental incapacity, are met. Physical or mental incapacity consists of
incapacity for school attendance and the performance of school work. In all cases of prolonged
absence from school due to incapacity of the child to attend, the written statement of a licensed
physician or authorized school nurse
is required.
shall be required under the provisions of this article:
Provided, That in all cases, Incapacity shall be narrowly defined and in
no any case
shall the
provisions of this article
may not allow for the exclusion of the mentally, physically, emotionally or
behaviorally handicapped child otherwise entitled to a free appropriate education.
(e) A child
shall be is exempt from the compulsory school attendance requirement set forth
in
subsection (a) of this section section one-a of this article if conditions rendering school attendance
impossible or hazardous to the life, health or safety of the child exist.
(f) A child
shall be is exempt from the compulsory school attendance requirement set forth
in
subsection (a) of this section section one-a of this article upon regular graduation from a standard
senior high school
or alternate secondary program completion as determined by the state board.
(g) A child
shall be is exempt from the compulsory school attendance requirement set forth
in
subsection (a) of this section section one-a of this article if the child is granted a work permit
pursuant to this subsection.
After due investigation the county superintendent may
after due investigation grant work permits to youths under sixteen years of age, subject to state and federal
labor laws and regulations.
Provided, That A work permit may not be granted on behalf of any youth
who has not completed the eighth grade of school.
(h) A child
shall be is exempt from the compulsory school attendance requirement set forth
in
subsection (a) of this section section one-a of this article if a serious illness or death in the
immediate family of the
pupil child has occurred. It is expected that the county attendance director
will ascertain the facts in all cases of such absences about which information is inadequate and report
the facts to the county superintendent.
(i) A child
shall be is exempt from the compulsory school attendance requirement set forth
in
subsection (a) of this section section one-a of this article if the requirements of this subsection,
relating to destitution in the home, are met. Exemption based on a condition of extreme destitution
in the home may be granted only upon the written recommendation of the county attendance director
to the county superintendent following careful investigation of the case. A copy of the report
confirming the condition and school exemption shall be placed with the county director of public
assistance. This enactment contemplates every reasonable effort that may properly be taken on the
part of both school and public assistance authorities for the relief of home conditions officially
recognized as being so destitute as to deprive children of the privilege of school attendance.
Exemption for this cause
shall not be is not allowed when the destitution is relieved through public
or private means.
(j) A child
shall be is exempt from the compulsory school attendance requirement set forth
in
subsection (a) of this section section one-a of this article if the requirements of this subsection,
relating to church ordinances and observances of regular church ordinances, are met. The county
board may approve exemption for religious instruction upon written request of the person having
legal or actual charge of a child or children.
Provided, That the exemption shall be This exemption
is subject to the rules prescribed by the county superintendent and approved by the county board.
(k) A child
shall be is exempt from the compulsory school attendance requirement set forth in
subsection (a) of this section section one-a of this article if the requirements of this subsection,
relating to alternative private, parochial, church or religious school instruction, are met. Exemption
shall be made for any child attending any private school, parochial school, church school, school
operated by a religious order or other nonpublic school which elects to comply with the provisions
of article twenty-eight of this chapter.
(l)
The Completion of the eighth grade
shall does not exempt any child under
sixteen years
of age the termination age designated in section one-a of this article from the compulsory attendance
provision of this article.
§18-8-4. Duties of attendance director and assistant directors; complaints, warrants and
hearings.
(a) The county attendance director and the assistants shall diligently promote regular school
attendance.
They The director and assistants shall:
(1) Ascertain reasons for inexcusable absences from school of
pupils students of compulsory
school age and students who remain enrolled beyond the
sixteenth birthday the compulsory school
age as defined under
section one-a of this article; and
shall
(2) Take such steps as are, in their discretion, best calculated to correct attitudes of parents
and
pupils students which result in absences from school even though not clearly in violation of law.
(b) In the case of five
consecutive or ten total unexcused absences of a
child student during
a school year, the attendance director or assistant shall:
(1) Serve written notice to the parent, guardian or custodian of
such child the student that the
attendance of
such child the student at school is required and that within ten days of receipt of the
notice the parent, guardian or custodian, accompanied by the
child student, shall report in person to
the school the
child student attends for a conference with the principal or other designated
representative of the school in order to discuss and correct the circumstances causing the inexcusable
absences of the
child student; and if the parent, guardian or custodian does not comply with the
provisions of this article, then the attendance director or assistant shall make complaint against the parent, guardian or custodian before a magistrate of the county. If it appears from the complaint that
there is probable cause to believe that an offense has been committed and that the accused has
committed it, a summons or a warrant for the arrest of the accused shall issue to any officer
authorized by law to serve the summons or to arrest persons charged with offenses against the state.
More than one parent, guardian or custodian may be charged in a complaint. Initial service of a
summons or warrant issued pursuant to the provisions of this section shall be attempted within ten
calendar days of receipt of the summons or warrant and subsequent attempts at service shall continue
until the summons or warrant is executed or until the end of the school term during which the
complaint is made, whichever is later.
(c) The magistrate court clerk, or the clerk of the circuit court performing the duties of the
magistrate court as authorized in section eight, article one, chapter fifty of this code, shall assign the
case to a magistrate within ten days of execution of the summons or warrant. The hearing shall be
held within twenty days of the assignment to the magistrate, subject to lawful continuance. The
magistrate shall provide to the accused at least ten days' advance notice of the date, time and place
of the hearing.
(d) When any doubt exists as to the age of a
child student absent from school, the attendance
director
shall have has authority to require a properly attested birth certificate or an affidavit from
the parent, guardian or custodian of
such child the student, stating age of the
child. The county
attendance director or assistant, shall have student. In the performance of his or her duties,
the
county attendance director has authority to take without warrant any
child student absent from school
in violation of the provisions of this article and to place
such child the student in the school in which
such child he or she is or should be enrolled.
(e) The county attendance director shall devote such time as is required by section three of
this article to the duties of attendance director in accordance with this section during the instructional
term and at such other times as the duties of an attendance director are required. All attendance
directors hired for more than two hundred days may be assigned other duties determined by the superintendent during the period in excess of two hundred days. The county attendance director
shall be is responsible under direction of the county superintendent for
the efficient administration
of efficiently administering school attendance in the county.
(f) In addition to those duties directly relating to the administration of attendance, the county
attendance director and assistant directors
shall also
shall perform the following duties:
(1) Assist in directing the taking of the school census to see that it is taken at the time and
in the manner provided by law;
(2) Confer with principals and teachers on the comparison of school census and enrollment
for the detection of possible nonenrollees;
(3) Cooperate with existing state and federal agencies charged with
enforcement of enforcing
child labor laws;
(4) Prepare a report for submission by the county superintendent to the State Superintendent
of Schools on school attendance, at such times and in such detail as may be required. The state
board shall promulgate a legislative rule pursuant to article three-b, chapter twenty-nine-a of this
code that sets forth student absences that
shall be are excluded for accountability purposes. The
absences that
shall be are excluded by the rule
shall include, but
are not be limited to, excused
student absences, students not in attendance due to disciplinary measures and absent students for
whom the attendance director has pursued judicial remedies to compel attendance to the extent of
his or her authority. The attendance director shall file with the county superintendent and county
board
of education at the close of each month a report showing activities of the school attendance
office and the status of attendance in the county at the time;
(5) Promote attendance in the county by
the compilation of compiling data for schools and
by furnishing suggestions and recommendations for publication through school bulletins and the
press, or in such manner as the county superintendent may direct;
(6) Participate in school teachers' conferences with parents and students;
(7) Assist in such other ways as the county superintendent may direct for improving school attendance;
(8) Make home visits of students who have excessive unexcused absences, as provided
above, or if requested by the chief administrator, principal or assistant principal; and
(9) Serve as the liaison for homeless children and youth.
§18-8-6. The High School Graduation Improvement Act.
(a) This section is known and may be cited as 'The High School Graduation Improvement
Act'.
(b) The Legislature makes the following findings:
(1) West Virginia has a dire need to implement a comprehensive approach to addressing the
high school drop-out crisis, and to develop policies and strategies that successfully assist at-risk
students to stay in school, earn a high school diploma, and ultimately become productively
contributing members of society;
(2) The current demands for a highly skilled workforce require a high school diploma at the
very minimum;
(3) The state has several dynamic programs that are capable of actively engaging students in
learning, providing students with a sense of relevancy in academics, and motivating students to
succeed in school and ultimately earn a high school diploma;
(4) Raising the compulsory school attendance age alone will neither increase the graduation
rate nor decrease the drop-out rate. It is imperative that the state shift the focus from merely
compelling students to attend school to instead providing vibrant and engaging programs that allow
students to recognize the value of a high school diploma or workforce credential and inspire students
to graduate from high school, especially those students who are at risk of dropping out of school;
(5) Investing financially in this focus shift will result in the need for fewer resources to be
committed to enforcing compulsory attendance laws and fewer incidents of disruptive student
behavior;
(6) Absenteeism is proven to be the highest predictor of course failure. Truant students face low self-confidence in their ability to succeed in school because their absences cause them to fall
behind their classmates, and the students find dropping out easier than catching up;
(7) There is a strong relationship between truancy and dropping out of high school. Frequent
absences are one of the most common indicators that a student is disengaging from the learning
process and likely to drop out of school early. Intervention after fewer absences is likely to have a
positive impact on a student's persistence to graduation;
(8) Students cite many reasons for dropping out of school, some of which include engaging
in drug culture, lack of positive influence, role model or parental involvement, absence of boundaries
and direction, lack of a positive home environment, peer pressure, and poor community expectations;
(9) Dropping out of school has a profound negative impact on an individual's future,
resulting in limited job choices, substantially lower wages and less earned over a life-time than high
school graduates, and a greater likelihood of depending on public assistance and engaging in criminal
activity;
(10) Career-technical education is a dynamic system in West Virginia which offers numerous
concentrations that provide students with industry-recognized credentials, while also preparing them
for post-secondary education;
(11) All career-technical education students in the state have an opportunity to earn free
college credit through the Earn a Degree-Graduate Early (EDGE) program;
(12) The current high school graduation rate for secondary career-technical education
completers is significantly higher than the state graduation rate;
(13) Students involved in career-technical education learn a marketable skill, are likely to
find jobs, and become prepared for post-secondary education;
(14) A significant number of students who could benefit from participating in a career-
technical program are denied access due to a number of factors, such as dropping out of high school
prior to enrolling in career-technical education, requirements that students repeat academic courses
that they have failed, and scheduling conflicts with the high schools;
(15) There has been a dramatic change over the years from vocational education, which was
very basic and lacked high level skills, to the career-technical programs of today which are computer
based, require national tests and certification, and often result in jobs with high salaries;
(16) West Virginia's employers and technical education job placement rates show that the
state needs graduates with technical skills to compete in the current and future job markets;
(17) The job placement rate for students graduating from career-technical programs statewide
is greater than ninety-five percent;
(18) Among the reasons students cite for dropping out of school are feelings of hopelessness
when they have failed classes and can not recover credits in order to graduate;
(19) The state offers full-day programs consisting of credit recovery, hands on experiences
in career-technical programs and basic education, which are valuable resources for re-engaging
students who have dropped out of school, or have a potential for or are at risk of dropping out;
(20) A student is significantly more likely to graduate from high school if he or she completes
four units of training in technical education;
(21) Learning is increased and retained at a higher level if the content is taught through a
relevant and applied experience, and students who are able to experience academics through real life
projects have a higher probability of mastering the appropriate concepts;
(22) Programs such as 'GED Option' and 'Techademics' are valuable resources for providing
relevant and applied experience for students;
(23) The Techademics programs administered by the department of education has embedded
math competencies in career-technical program curricula whereby students simultaneously earn
credit for mastery of math competencies and career-technical courses;
(24) Students would greatly benefit if West Virginia were designated as a 'GED Option'
state. Currently a student is ineligible to take the General Educational Development (GED) exam
if he or she is enrolled in school, which requires the student to drop out of high school in order to
participate in a GED preparation program or take the exam, even if the student desires to remain enrolled;
(25) A GED Option state designation by the American Council on Education would allow
students in this state to remain enrolled in school and continue acquiring academic and career-
technical credits while pursuing a GED diploma. The GED Option would be blended with the West
Virginia virtual schools or a career-technical education pathway. Upon completion, rather than being
a dropout, the student would have a GED diploma and a certification in the chosen career-technical
or virtual school pathway;
(26) The Mountaineer Challenge Academy is a positive option for students at risk of
dropping out of school, as it provides students with structure, stability, and a focus on positive
change, all in an environment where negative influences and distractions can be left behind;
(27) Students attending the Mountaineer Challenge Academy would greatly benefit if the
GED Option were implemented at the Academy;
(28) The Health Sciences and Technology Academy (HSTA) program prepares rural,
minority and economically disadvantaged students for college and careers in the health sciences, and
demonstrates tremendous success in its high percentage of students who graduate from high school
and participate in post-secondary education.
(29) The West Virginia GEAR UP (Gaining Early Awareness and Readiness for
Undergraduate Programs) program is aimed at increasing the academic performance and rigorous
preparation of students, increasing the number of high-poverty, at-risk students who are prepared to
enter and succeed in post-secondary education, and increasing the high school graduation rate;
(30) The GEAR UP program successfully aids students in planning, applying and paying for
education and training beyond high school;
(31) Each dropout involved in drugs or crime or dependent on public assistance creates a
huge fiscal burden on society;
(32) The intense treatment and individual monitoring provided through the state's juvenile
drug courts have proven to be highly effective in treating drug addictions, and rehabilitating drug addicted youth and improving their educational outcomes;
(33) Services provided by juvenile drug courts include substance abuse treatment,
intervention, assessment, juvenile and family counseling, heavy supervision by probation officers
including school-based probation officers who provide early intervention and diversion services, and
addressing some of the underlying reasons why students are not successful in school;
(34) School participation and attendance are required for students participating in juvenile
drug courts, and along with academic progress are closely monitored by the courts;
(35) Juvenile drug courts are an important strategy to improve substance abuse treatment
outcomes, and serve to save the state significant cost on incarceration of the juveniles, along with
the future costs to society of individuals who remain substance abusers;
(36) Juvenile drug courts produce greater cost benefits than other strategies that address
criminal activity related to substance abuse and addiction that bring individuals into the criminal
justice system;
(37) Funding for the increased number of students enrolled in school during the 2010-2011
school year due to the compulsory school attendance age increase established by this act will not be
reflected in the state aid formula allocation until the 2011-2012 school year, which will require
additional funds to be provided to county boards for the 2010-2011 school year to accommodate the
increased enrollment;
(38) The state will benefit both fiscally and through improved quality of life if scarce state
resources are targeted toward programs that result in providing a competitive advantage as adults for
those students who are at risk of dropping out of school;
(39) Funds invested toward education and ensuring that students complete high school pay
tremendous dividends through the moneys saved on incarceration, unemployment and
underemployment as those students reach adulthood; and
(40) Increasing the compulsory school attendance age will have little effect in aiding students
to complete high school if additional resources, both fiscal and programmatic, are not dedicated to supporting student achievement, providing real-life relevancy in curriculum, and engaging students
in learning, particularly for those students who have become so disengaged from school and learning
that they are at risk of dropping out of school.
(c) The Legislature intends as follows:
(1) The state will continue to explore diverse instructional delivery strategies to accommodate
various learning styles and will focus on a state-wide dropout intervention and prevention program
to provide support for students having academic difficulty;
(2) A general credit recovery program shall be implemented statewide, including delivery
through West Virginia virtual schools;
(3) The state board will continue to improve the way career-technical education is offered,
including expansion of the Techademics program;
(4) Up to five additional juvenile drug courts shall be established by January 1, 2012;
(5) The state will invest additional state funds and other resources in strategies and programs
that engage disconnected and discouraged students in a positive learning environment as a critical
first step to ensuring that students persist and graduate; and
(6) County boards will develop plans to demonstrate how they will use available funds to
implement the intent of this section.
(d) Each county board shall include in its alternative education program plan required by
section six, article two, of this chapter a plan to improve student retention and increase the
graduation rate in the county. The plan is subject to approval of the state board, and shall include
strategies the county board will implement to achieve the following goals:
(1) Increasing the graduation rate for the county;
(2) Identifying at the earliest age possible those students who are at risk of dropping out of
school prior to graduation; and
(3) Providing additional options for delivering to at-risk students academic credentials and
career-technical training if appropriate or desired by the student. The options may include such programs as Techademics, Earn a Degree-Graduate Early (EDGE), Health Sciences and Technology
Academy (HSTA), Gaining Early Awareness and Readiness for Undergraduate Programs (GEAR
UP), truancy diversion, early intervention, dropout prevention, prevention resource officers, GED
option, credit recovery, alternative learning environments, or any other program or strategy approved
by the state board.
(e) As soon as is practicable the state superintendent or his or her designee shall pursue
designation of West Virginia as a 'GED Option' state by the American Council on Education. If so
designated, the state board shall:
(1) Develop and implement a program whereby a student may pursue a GED diploma while
remaining enrolled in high school; and
(2) Ensure that the GED Option is offered to students attending the Mountaineer Challenge
Academy.
(f) The state board shall continue to expand:
(1) The Techademics program to include each major academic subject and increase the
academic credit available through the program to students; and
(2) The Health Sciences and Technology Academy to ensure that the program is available
for any school containing any of the grade levels of eligible students.
(g) The state board shall ensure that the dropout information required by section twenty-four,
article one-b, chapter fifteen of this code is provided annually to the Mountaineer Challenge
Academy.
(h) Some career and technical education programs only except students in certain upper high
school grade levels due to lack of capacity to accept the students in the lower high school grade
levels. This can be detrimental to efforts to keep students identified as at risk of dropping out of
school prior to graduation in school. Therefore, those career and technical education programs that
only students in certain upper high school grade levels to enroll may make exceptions for those at
risk students and enroll any of those at risk students who are in grades nine and above.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-21. Funding for alternative education programs.
(a) An appropriation may be made to the state department to be distributed to county boards
for the operation of alternative education and prevention programs established in accordance with
policies and procedures adopted by the state board under section six, article two of this chapter. The
appropriation shall be an amount equal to
twelve eighteen dollars per student in net enrollment,
subject to appropriation by the Legislature. The state board shall distribute
ninety-seven ninety-eight
percent of the total appropriation to the county boards proportionate to each county's net enrollment.
The remaining
three two percent of the appropriation shall be retained by the state department to
support the provision of services to the county boards in administering programs established in
accordance with policies and procedures adopted by the state board under section six, article two of
this chapter.
Provided, That
(b) Nothing in this section
shall may be construed to require any specific level of funding by
the Legislature.
(c) The increase from $12 per student in net enrollment to $18 per student in net enrollment
pursuant to the amendment and enactment of this section during the 2010 regular session of the
Legislature is not subject to the provisions of section three-a.
ARTICLE 15. DRUG OFFENDER ACCOUNTABILITY AND TREATMENT ACT.
§62-15-4. Court authorization and structure.
(a) Each judicial circuit or two or more adjoining judicial circuits may establish a drug court
or regional drug court program under which drug offenders will be processed to address
appropriately, the identified substance abuse problem as a condition of pretrial release, probation,
incarceration, parole or other release from a correctional facility.
(b) The structure, method, and operation of each drug court program may differ and should
be based upon the specific needs of and resources available to the judicial circuit or circuits where
the drug court program is located.
(c) A drug court program may be preadjudication or post-adjudication for an adult offender.
(d) Participation in drug court, with the consent of the prosecution and the court, shall be
pursuant to a written agreement.
(e) A drug court may grant reasonable incentives under the written agreement if it finds that
the drug offender:
(1) Is performing satisfactorily in drug court;
(2) Is benefitting from education, treatment and rehabilitation;
(3) Has not engaged in criminal conduct; or
(4) Has not violated the terms and conditions of the agreement.
(f) A drug court may impose reasonable sanctions on the drug offender, including
incarceration for the underlying offense or expulsion from the program, pursuant to the written
agreement, if it finds that the drug offender:
(1) Is not performing satisfactorily in drug court;
(2) Is not benefitting from education, treatment or rehabilitation;
(3) Has engaged in conduct rendering him or her unsuitable for the program;
(4) Has otherwise violated the terms and conditions of the agreement; or
(5) Is for any reason unable to participate.
(g) Upon successful completion of drug court, a drug offender's case shall be disposed of by
the judge in the manner prescribed by the agreement and by the applicable policies and procedures
adopted by the drug court. This may include, but is not limited to, withholding criminal charges,
dismissal of charges, probation, deferred sentencing, suspended sentencing, split sentencing, or a
reduced period of incarceration.
(h) Drug court shall include the Ten Key Components and the drug court team shall act to
ensure compliance with them.
(i) Nothing contained in this article
shall confer confers a right or an expectation of a right
to participate in a drug court nor does it obligate a drug court to accept every drug offender.
(j) Neither the establishment of a drug court nor anything herein
shall may be construed as
limiting the discretion of the jurisdiction's prosecutor to act on any criminal case which he or she
deems advisable to prosecute.
(k) Each drug court judge may establish rules and may make special orders as necessary that
do not conflict with rules and orders promulgated by the Supreme Court of Appeals which has
administrative authority over the courts. The Supreme Court of Appeals shall provide uniform
referral, procedure and order forms that shall be used in all drug courts in this state.
(l) In addition to the number of juvenile drug courts operating on the effective date of this
section, up to five additional juvenile drug courts or regional juvenile drug court programs may be
established by January 1, 2012, as determined by the Supreme Court of Appeals."
And by amending the title of the bill to read as follows:
H. B. 4593 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §18-8-6; to amend and reenact §18-8-1 and §18-8-4 of said code;
to amend and reenact §18-9A-21 of said code; and to amend and reenact §62-15-4 of said code, all
relating to improving student participation, success and high school graduation rates; reducing the
number of days of unexcused absences at which proceedings to enforce attendance begin;
establishing the 'High School Graduation Improvement Act'; establishing legislative findings and
intent; requiring county board of education plan for improving student retention and increasing
graduation rate; requiring state board of education to develop, expand and assist certain programs;
explicitly allowing career and technical education programs only accepting students in certain upper
high school grades to make exceptions for certain at risk students who are in grade nine and above;
increasing funding for alternative education programs; and authorizing establishment of additional
juvenile drug courts."
On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate
amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
Com. Sub. for H. B. 2773, Increasing the monetary penalties for selling tobacco products
to minors.
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 two, line fourteen, by striking out "$100" and inserting in lieu thereof
"$50".
On page five, section three, line eleven, by striking out "$100" and inserting in lieu thereof
"$50".
And,
On page five, section three, line thirteen, by striking out "$150" and inserting in lieu thereof
"$100".
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 2773 - "A Bill to amend and reenact §16-9A-2 of the Code of West
Virginia, 1931, as amended, all relating to prohibited access and usage of tobacco products by
minors; increasing the monetary penalties for selling tobacco products to minors; providing that the
sale or furnishing of tobacco products to minors may constitute grounds for dismissal as an act of
misconduct; and clarifying the impact of such a dismissal on the discharged employees' eligibility
to receive unemployment benefits."
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. 325), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Hatfield and Ross.
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. 2773) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Delegate Hatfield announced that she was absent when the vote was taken on Roll No. 325,
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 amendment, a bill of
the House of Delegates, as follows:
Com. Sub. for H. B. 3152, Athletic Trainers Registration 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 §30-20A-1, §30-20A-2, §30-20A-3, §30-20A-4, §30-20A-5, §30-20A-6 and §30-
20A-7 all to read as follows:
ARTICLE 20A. ATHLETIC TRAINERS.
§30-20A-1. Definitions.
As used in this article:
(1) 'Applicant' means any person making application for an original or renewal registration
to act as an athletic trainer under the provisions of this article.
(2) 'Board' means the West Virginia Board of Physical Therapy established under article
twenty of this chapter.
(3) 'Registrant' means a person registered as an athletic trainer under the provisions of this article.
(4) 'Registration' means a registration issued by the board to practice athletic training.
§30-20A-2. Title protection.
(a) A person may not advertise or represent himself or herself as an athletic trainer in this
state and may not use the initials 'AT', the words 'registered athletic trainer' or 'athletic trainer', or
any other words, abbreviations, titles or insignia that indicates, implies or represents that he or she
is an athletic trainer, unless he or she is registered by the board.
(b) Nothing contained in this article shall be construed as preventing any person, firm,
partnership or corporation from practicing athletic training, in any manner desired.
(c) Nothing in this article may be construed to prohibit or otherwise limit the use of the term
'athletic trainer' in secondary school settings by persons who were practicing athletic training under
a West Virginia Board of Education Athletic Certification, provided the practice is in accordance
with Board of Education policy in effect prior to July 1, 2011.
§30-20A-3. Powers and duties of the board.
The board has the following powers and duties:
(1) Establish procedures for submitting, approving and denying applications for registration;
(2) Investigate alleged violations of the provisions of this article;
(3) Establish a fee schedule;
(4) Issue, renew, deny, suspend, revoke or reinstate a registration;
(5) Determine disciplinary action and issue orders;
(6) Institute appropriate legal action for the enforcement of the provisions of this article; and
(7) Maintain an accurate registry of the names and addresses of registrants.
§30-20A-4. Rulemaking authority.
The board shall propose rules for legislative approval, in accordance with the provisions of
article three, chapter twenty-nine-a of this code, to implement the provisions of this article,
including:
(1) Procedures for the issuance and renewal of a registration;
(2) A fee schedule;
(3) Procedures for denying, suspending, revoking, reinstating or limiting the registration of
a registrant; and
(4) Any other rules necessary to effectuate the provisions of this article.
§30-20A-5. Requirements for registration.
(a) To be eligible for registration by the board as an athletic trainer, an applicant shall:
(1) Submit an application in the form prescribed by the board;
(2) Submit a current certification from the National Athletic Trainers' Association Board of
Certification or successor organization; and
(3) Pay the required fee.
(b) The board shall issue a registration to an applicant satisfying all the requirements in
subsection (a) of this section:
Provided, That the board may deny an application for registration if
the applicant:
(1) Has been convicted of a felony or other crime involving moral turpitude;
(2) Is an alcohol or drug abuser as these terms are defined in section eleven, article one-a,
chapter twenty-seven of this code:
Provided, That the board may take into consideration that an
applicant in an active recovery process, which may, in the discretion of the board, be evidenced by
participation in a twelve-step program or other similar group or process;
(3) Has been convicted of fraudulent, false, misleading or deceptive advertising;
(4) Has been convicted for wrongfully prescribing medicines or drugs, or practicing any
licensed profession without legal authority;
(5) Has had a registration or other authorization revoked, suspended, restricted or other
disciplinary action taken by the proper authorities of another jurisdiction;
(6) Is incapacitated by a physical or mental disability which is determined by a physician to
render further practice by the applicant inconsistent with competency and ethic requirements; or
(7) Has been convicted of sexual abuse or sexual misconduct.
(c) In determining whether an application should be denied for any of the reasons set forth
in subsection (b), the board may consider:
(1) How recently the conduct occurred;
(2) The nature of the conduct and the context in which it occurred; and
(3) Any other relevant conduct of the applicant.
(d) A registration issued by the board is valid for two years from the date it was issued.
§30-20A-6. Renewal requirements.
(a) A registrant may apply to renew his or her registration by submitting an application for
renewal in the form prescribed by the board and paying the renewal fee. The renewal application
must be signed by the applicant.
(b) A renewal of registration issued by the board is valid for two years from the date it was
issued.
(c) The board may deny an application for renewal for any reason which would justify the
denial of an original application for a registration.
§30-20A-7. Due process procedures; grounds for disciplinary action.
(a) The board may, after notice and opportunity for hearing, suspend, restrict or revoke a
registration of, impose probationary conditions upon or take disciplinary action against, any
registrant if the board determines the registrant:
(1) Is grossly negligent in the practice of athletic training;
(2) Obtained a registration by fraud, misrepresentation or concealment of material facts;
engaged in the practice of athletic training under a false or assumed name; or impersonated another
registrant of a like or different name; or
(3) Has violated any of the provisions of subsection (b), section five of this article.
(b) For purposes of subsection (a) of this section, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fines;
(4) Practicing under supervision or other restriction;
(5) Requiring the registrant to report to the board for periodic interviews for a specified
period of time; or
(6) Other corrective action as determined by the board."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 3152 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §30-20A-1, §30-20A-2, §30-20A-3, §30-20A-4,
§30-20A-5, §30-20A-6 and §30-20A-7 all relating to athletic trainers; providing definitions;
restricting the use of certain titles; setting forth powers and duties of the board; setting forth
rulemaking authority; providing for registration of athletic trainers; establishing registration criteria;
establishing renewal requirements; and allowing for disciplinary actions."
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. 326), and there were--yeas
95, nays 3, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Ellem, Lane and J. Miller.
Absent And Not Voting: Argento and Ross.
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. 3152) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
H. B. 4134, Removing non-utilized code sections
.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:
"CHAPTER 4. THE LEGISLATURE.
ARTICLE 8. CAPITOL BUILDING COMMISSION.
§1. Repeal of section relating to the sunset review of the West Virginia Capitol Building
Commission.
That §4-8-6 of the Code of West Virginia, 1931, as amended, be repealed.
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 1D. GOVERNOR'S OFFICE OF FISCAL RISK ANALYSIS AND
MANAGEMENT.
§1 Repeal of section relating to the sunset review of the Governor's Office of Fiscal Risk
Analysis and Management.
That §5-1D-11 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§1 Repeal of section relating to the sunset review of the West Virginia Consolidated Public
Retirement Board.
That §5-10D-8 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 11. HUMAN RIGHTS COMMISSION.
§1 Repeal of section relating to the sunset review of the Human Rights Commission.
That §5-11-21 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 14. WEST VIRGINIA COMMISSION FOR THE DEAF AND HARD-OF-
HEARING.
§1 Repeal of section relating to the sunset review of the
West Virginia Commission for the
Deaf and Hard of Hearing.
That §5-14-12 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§1 Repeal of section relating to the sunset review of the Public Employees Insurance Agency
Finance Board.
That §5-16-4a of the Code of West Virginia, 1931, as amended,
be repealed.
§2 Repeal of section relating to the sunset review of the Public Employees Insurance Agency.
That §5-16-27 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 16B. WEST VIRGINIA CHILDREN'S HEALTH INSURANCE PROGRAM.
§1 Repeal of section relating to the sunset review of the Children's Health Insurance Board
.
That §5-16B-4a of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 16C. PRESCRIPTION DRUG COST MANAGEMENT ACT.
§1 Repeal of section relating to the sunset review of the
Prescription Drug Cost Management
Act.
That §5-16C-10 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 22A. DESIGN-BUILD PROCUREMENT ACT.
§1 Repeal of section relating to the sunset review of the
Design-Build Board.
That §5-22A-15 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 26A. WEST VIRGINIA COMMISSION FOR NATIONAL AND COMMUNITY
SERVICE.
§1 Repeal of section relating to the sunset review of the West Virginia Commission for
National and Community Service.
That §5-26A-6 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 28. COMMISSION ON HOLOCAUST EDUCATION.
§1 Repeal of section relating to the sunset review of the West Virginia Commission on
Holocaust Education.
That §5-28-4 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3. PURCHASING DIVISION.
§1 Repeal of section relating to the sunset review of the Division of Purchasing.
That §5A-3-57 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 8. PUBLIC RECORDS MANAGEMENT AND PRESERVATION ACT.
§1 Repeal of section relating to the sunset review of the Records Management and
Preservation Board.
That §5A-8-15a of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 11. PUBLIC LAND CORPORATION.
§1 Repeal of section relating to the sunset review of the Public Land Corporation.
That §5A-11-8 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§1 Repeal of section relating to the sunset review of the Tourism Commission.
That §5B-2-13 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 2A. OFFICE OF COALFIELD COMMUNITY DEVELOPMENT.
§1 Repeal of section relating to the sunset review of the Office of Coalfield Community
Development.
That §5B-2A-13 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 2C. WEST VIRGINIA ACADEMY OF SCIENCE AND TECHNOLOGY.
§1 Repeal of section relating to the sunset review of the West Virginia Academy of Science and Technology.
That §5B-2C-8 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 5C. BASIC ASSISTANCE FOR INDUSTRY AND TRADE.
ARTICLE 2. WEST VIRGINIA CLEAN COAL TECHNOLOGY ACT.
§1 Repeal of section relating to the sunset review of the Council for Clean Coal Technology.
That §5C-2-6 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 5D. PUBLIC ENERGY AUTHORITY ACT.
ARTICLE 1. PUBLIC ENERGY AUTHORITY OF THE STATE OF WEST VIRGINIA.
§1 Repeal of section relating to the sunset review of the West Virginia Public Energy Authority
Board.
That §5D-1-24 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 6B. PUBLIC OFFICERS AND EMPLOYEES; ETHICS; CONFLICTS OF
INTEREST; FINANCIAL DISCLOSURE.
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS
AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES;
CODE OF CONDUCT FOR ADMINISTRATIVE LAW JUDGES.
§1 Repeal of section relating to the sunset review of the West Virginia Ethics Commission.
That §6B-2-11 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 6C. PUBLIC EMPLOYEES.
ARTICLE 3. WEST VIRGINIA PUBLIC EMPLOYEES GRIEVANCE BOARD.
§1 Repeal of section relating to the sunset review of the West Virginia Public Employees
Grievance Board.
That §6C-3-5 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 9A. VETERANS AFFAIRS.
ARTICLE 1. DIVISION OF VETERANS AFFAIRS.
§1. Repeal of section relating to the sunset review of the Veterans' Council.
That §9A-1-2a of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 10. PUBLIC LIBRARIES; PUBLIC RECREATION; ATHLETIC
ESTABLISHMENTS; MONUMENTS AND MEMORIALS; ROSTER OF
SERVICEMEN; EDUCATIONAL BROADCASTING AUTHORITY.
ARTICLE 5. EDUCATIONAL BROADCASTING AUTHORITY.
§1 Repeal of section relating to the sunset review of the West Virginia Educational
Broadcasting Authority.
That §10-5-6 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 11. TAXATION.
ARTICLE 1. SUPERVISION.
§1 Repeal of section relating to the sunset review of the Department of Tax and Revenue.
That §11-1-8 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.
§1 Repeal of section relating to the sunset review of the West Virginia Investment
Management Board.
That §12-6-20 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 6C. WEST VIRGINIA BOARD OF TREASURY INVESTMENTS.
§1 Repeal of section relating to the sunset review of the West Virginia Board of Treasury
Investments.
That §12-6C-20 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§1 Repeal of section relating to the sunset review of the West Virginia State Police.
That §15-2-50 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 2D. DIVISION OF PROTECTIVE SERVICES.
§1 Repeal of section relating to the sunset review of the Division of Protective Services.
That §15-2D-6 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 2E. STATE POLICE ACADEMY POST EXCHANGE.
§1 Repeal of section relating to the sunset review of the state Police Academy Post Exchange.
That §15-2E-8 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§1 Repeal of section relating to the sunset review of the Office of Health Facility Licensure and
Certification.
That §16-1-13a of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 5P. SENIOR SERVICES.
§1 Repeal of section relating to the sunset review of the Bureau of Senior Services.
That §16-5P-15 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 5Q. THE JAMES 'TIGER' MORTON CATASTROPHIC ILLNESS FUND.
§1 Repeal of section relating to the sunset review of the James 'Tiger' Morton Catastrophic
Illness Commission.
That §16-5Q-3 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 29B. HEALTH CARE AUTHORITY.
§1 Repeal of section relating to the sunset review of the Health Care Authority.
That §16-29B-28 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 41. ORAL HEALTH IMPROVEMENT ACT.
§1 Repeal of section relating to the sunset review of the Oral Health Program.
That §16-41-7 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 2A. WEST VIRGINIA COMMISSIONER OF HIGHWAYS.
§1 Repeal of section relating to the sunset review of the Division of Highways.
That §17-2A-1a of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION,
CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.
ARTICLE 2. DIVISION OF MOTOR VEHICLES.
§1 Repeal of section relating to the sunset review of the Division of Motor Vehicles.
That §17A-2-24 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS;
SPECIAL PLATES; TEMPORARY PLATES OR MARKERS.
§1 Repeal of section relating to the sunset review of the Motor Vehicle Dealers Advisory
Board.
That §17A-6-18b of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 1D. MOTORCYCLE SAFETY EDUCATION.
§1 Repeal of section relating to the sunset review of the Motorcycle Safety Awareness Board.
That §17B-1D-10 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 18. EDUCATION.
ARTICLE 2F. INCENTIVES AND RESULTS BASED SCHOLARSHIP PROGRAM.
§1 Repeal of section relating to the sunset review of the Share in Your Future Commission.
That §18-2F-9 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§1 Repeal of section relating to the sunset review of the School Building Authority.
That §18-9D-18 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 10C. THE SOUTHERN REGIONAL EDUCATION COMPACT.
§1 Repeal of section relating to the sunset review of West Virginia's membership in the
Southern Regional Education Compact.
That §18-10C-3 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 10L. RON YOST PERSONAL ASSISTANCE SERVICES ACT.
§1 Repeal of section relating to the sunset review of the Ron Yost Personal Assistance Services
Program.
That §18-10L-8 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 3A. CENTER FOR PROFESSIONAL DEVELOPMENT.
§1 Repeal of section relating to the sunset review of the Center for Professional Development
Board.
That §18A-3A-4 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 16. HEALTH CARE EDUCATION.
§1 Repeal of section relating to the sunset review of the Rural Health Advisory Panel.
That §18B-16-6b of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 19. AGRICULTURE.
ARTICLE 1. DEPARTMENT OF AGRICULTURE.
§1 Repeal of section relating to the sunset review of the Marketing and Development Division
of the Department of Agriculture.
That §19-1-3b of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 2B. INSPECTION OF MEAT AND POULTRY.
§1 Repeal of section relating to the sunset review of the Meat and Poultry Inspection Program.
That §19-2B-1a of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 2F. BEEF INDUSTRY SELF-IMPROVEMENT ASSESSMENT PROGRAM.
§1 Repeal of section relating to the sunset review of the Beef Industry Self-improvement
Assessment Program.
That §19-2F-11 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 23. HORSE AND DOG RACING.
§1 Repeal of section relating to the sunset review of the Racing Commission.
That §19-23-30 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§1 Repeal of section relating to the sunset review of the United States Geological Survey
Program within the Department of Natural Resources.
That §20-1-18d of the Code of West Virginia, 1931, as amended, be repealed.
§2 Repeal of section relating to the sunset review of the Division of Natural Resources
.
That §20-1-21 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 2. WILDLIFE RESOURCES.
§1 Repeal of section relating to the sunset review of the Whitewater Commission.
That §20-2-23f of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 5. PARKS AND RECREATION.
§1 Repeal of section relating to the sunset review of the Parks Section of Division of Natural
Resources.
That §20-5-20 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 21. LABOR.
ARTICLE 1. DIVISION OF LABOR.
§1 Repeal of section relating to the sunset review of the
Division of Labor.
That §21-1-5 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 9. MANUFACTURED HOUSING CONSTRUCTION AND SAFETY
STANDARDS.
§1 Repeal of section relating to the sunset review of the
West Virginia Board of Manufactured
Housing Construction and Safety.
That §21-9-13 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 11. WEST VIRGINIA CONTRACTOR LICENSING ACT.
§1 Repeal of section relating to the sunset review of the
West Virginia Contractor Licensing
Board.
That §21-11-19 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 1. UNEMPLOYMENT COMPENSATION.
§1 Repeal of section relating to the sunset review of the
Division of Unemployment
Compensation.
That §21A-1-9 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 2. THE COMMISSIONER OF THE BUREAU OF EMPLOYMENT
PROGRAMS.
§1 Repeal of section relating to the sunset review of the
authority of Commissioner to
administer unemployment compensation.
That §21A-2-9 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 1. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
§1 Repeal of section relating to the sunset review of the
Department of Environmental
Protection.
That §22-1-4 of the Code of West Virginia, 1931, as amended, be repealed.
§2 Repeal of section relating to the sunset review of the
Office of Water Resources.
That §22-1-7a of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 3A. OFFICE OF EXPLOSIVES AND BLASTING.
§1 Repeal of section relating to the sunset review of the
Office of Explosives and Blasting.
That §22-3A-11 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 15A. THE A. JAMES MANCHIN REHABILITATION ENVIRONMENTAL
ACTION PLAN.
§1 Repeal of section relating to the sunset review of the
Waste Tire Remediation Program.
That §22-15A-15 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 20. ENVIRONMENTAL ADVOCATE.
§1 Repeal of section relating to the sunset review of the
Office of Environmental Advocate.
That §22-20-2 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 25. ENVIRONMENTAL EXCELLENCE PROGRAM.
§1 Repeal of section relating to the sunset review of the Environmental Excellence Program.
That §22-25-13 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 22B. ENVIRONMENTAL BOARDS.
ARTICLE 3. ENVIRONMENTAL QUALITY BOARD.
§1 Repeal of section relating to the sunset review of the
Environmental Quality Board.
That §22B-3-5 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES,
COMMISSIONS AND COMPACTS.
ARTICLE 7. ENVIRONMENTAL RESOURCES.
§1 Repeal of section relating to the sunset review of the
Oil and Gas Inspectors' Examining
Board.
That §22C-7-4 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 9. OIL AND GAS CONSERVATION.
§1 Repeal of section relating to the sunset review of the
Oil and Gas Conservation
Commission.
That §22C-9-4a of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 11. INTERSTATE COMMISSION ON THE POTOMAC RIVER BASIN.
§1 Repeal of section relating to the sunset review of West Virginia's membership in the
Interstate Commission on the Potomac River Basin
.
That §22C-11-6 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 1. GENERAL PROVISIONS.
§1 Repeal of section relating to the sunset review of the Public Service Commission.
That §24-1-10 of the Code of West Virginia, 1931, as amended,
be repealed.
CHAPTER 25. DIVISION OF CORRECTIONS.
ARTICLE 1. ORGANIZATION, INSTITUTIONS AND CORRECTIONS MANAGEMENT.
§1 Repeal of section relating to the sunset review of the Division of Corrections.
That §25-1-2 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 1. DIVISION OF CULTURE AND HISTORY.
§1 Repeal of section relating to the sunset review of the Division of Culture and History.
That §29-1-1b of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 1A. COMMISSION ON UNIFORM STATE LAWS.
§1 Repeal of section relating to the sunset review of the Interstate Commission on Uniform
State Laws.
That §29-1A-5 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 2. GEODETIC AND GEOLOGICAL SURVEY.
§1 Repeal of section relating to the sunset review of the state Geological and Economic Survey.
That §29-2-10 of the Code of West Virginia, 1931, as amended,
be repealed.
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§1 Repeal of section relating to the sunset review of the state Fire Commission.
That §29-3-31 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 6. CIVIL SERVICE SYSTEM.
§1 Repeal of section relating to the sunset review of the Division of Personnel.
That §29-6-5a of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 12. STATE INSURANCE.
§1 Repeal of section relating to the sunset review of the state Board of Risk and Insurance
Management.
That §29-12-12 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 18. WEST VIRGINIA STATE RAIL AUTHORITY.
§1 Repeal of section relating to the sunset review of the West Virginia State Rail Authority.
That §29-18-24 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 20. WOMEN'S COMMISSION.
§1 Repeal of section relating to the sunset review of the West Virginia Women's Commission.
That §29-20-7 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§1 Repeal of section relating to the sunset review of the Public Defender Services.
That §29-21-3a of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 22. STATE LOTTERY ACT.
§1 Repeal of section relating to the sunset review of the state Lottery Commission.
That §29-22-26 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§1 Repeal of section relating to the sunset review of the board of Medicine.
That §30-3-18 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 4. WEST VIRGINIA DENTAL PRACTICE ACT.
§1 Repeal of section relating to the sunset review of the West Virginia Board of Dental
Examiners.
That §30-4-30 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 5. PHARMACISTS, PHARMACY TECHNICIANS, PHARMACY INTERNS AND PHARMACIES.
§1 Repeal of section relating to the sunset review of the West Virginia Board of Pharmacy.
That §30-5-25 of the Code of West Virginia, 1931, as amended, be repealed.
§2 Repeal of section relating to the sunset review of the pharmacy collaborative agreements
in community settings.
That §30-5-29 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 6. BOARD OF FUNERAL SERVICE EXAMINERS.
§1 Repeal of section relating to the sunset review of the board of Embalmers and Funeral
Directors.
That §30-6-32 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 7. REGISTERED PROFESSIONAL NURSES.
§1 Repeal of section relating to the sunset review of the board of Examiners for Registered
Professional Nurses.
That §30-7-17 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 7A. PRACTICAL NURSES.
§1 Repeal of section relating to the sunset review of the board of Examiners for Licensed
Practical Nurses.
That §30-7A-12 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 7B. CENTER FOR NURSING.
§1 Repeal of section relating to the sunset review of the West Virginia Center for Nursing.
That §30-7B-10 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 9. ACCOUNTANTS.
§1 Repeal of section relating to the sunset review of the West Virginia Board of Accountancy.
That §30-9-32 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 12. ARCHITECTS.
§1 Repeal of section relating to the sunset review of the board of Architects.
That §30-12-15 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 13. ENGINEERS.
§1 Repeal of section relating to the sunset review of the board of Registration for Professional
Engineers.
That §30-13-25 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§1 Repeal of section relating to the sunset review of the West Virginia Board of Osteopathy.
That §30-14-16 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 21. PSYCHOLOGISTS; SCHOOL PSYCHOLOGISTS.
§1 Repeal of section relating to the sunset review of the board of Examiners of Psychologists.
That §30-21-16 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 22. LANDSCAPE ARCHITECTS.
§1 Repeal of section relating to the sunset review of the West Virginia Board of Landscape
Architects.
That §30-22-29 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 23. RADIOLOGIC TECHNOLOGISTS.
§1 Repeal of section relating to the sunset review of the West Virginia Medical Imaging and
Radiation Therapy Technology Board of Examiners.
That §30-23-30 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 30. SOCIAL WORKERS.
§1 Repeal of section relating to the sunset review of the board of Social Work Examiners.
That §30-30-14 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 32. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS.
§1 Repeal of section relating to the sunset review of the West Virginia Board of Examiners for
Speech-language Pathology and Audiology.
That §30-32-22 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 34. BOARD OF RESPIRATORY CARE PRACTITIONERS.
§1 Repeal of section relating to the sunset review of the board of Respiratory Care
Practitioners.
That §30-34-17 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 35. BOARD OF DIETITIANS.
§1 Repeal of section relating to the sunset review of the board of Licensed Dietitians.
That §30-35-15 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 36. ACUPUNCTURISTS.
§1 Repeal of section relating to the sunset review of the West Virginia Acupuncture Board.
That §30-36-20 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 37. MASSAGE THERAPISTS.
§1 Repeal of section relating to the sunset review of the Massage Therapy Licensure Board.
That §30-37-12 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 38. THE REAL ESTATE APPRAISER LICENSING AND CERTIFICATION
ACT.
§1 Repeal of section relating to the sunset review of the Real Estate Appraiser Licensing and
Certification Board
.
That §30-38-19 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 40. WEST VIRGINIA REAL ESTATE LICENSE ACT.
§1 Repeal of section relating to the sunset review of the West Virginia Real Estate
Commission.
That §30-40-28 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 31. CORPORATIONS.
ARTICLE 16. WEST VIRGINIA STEEL FUTURES PROGRAM.
§1 Repeal of section relating to the sunset review of the West Virginia Steel Futures Program.
That §31-16-5 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 31A. BANKS AND BANKING.
ARTICLE 3. BOARD OF BANKING AND FINANCIAL INSTITUTIONS.
§1 Repeal of section relating to the sunset review of the West Virginia Board of Banking and
Financial Institutions.
That §31A-3-5 of the Code of West Virginia, 1931, as amended, be repealed.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§1 Repeal of section relating to the sunset review of the Bureau for Child Support
Enforcement.
That §48-18-134 of the Code of West Virginia, 1931, as amended, be repealed.
ARTICLE 26. DOMESTIC VIOLENCE ACT.
§1 Repeal of section relating to the sunset review of the Family Protection Services Board.
That §48-26-1102 of the Code of West Virginia, 1931, as amended, be repealed."
And by amending the title to read as follows:
Com. Sub. for H. B. 4134 - "A Bill to repeal §4-8-6 of the Code of West Virginia, 1931, as
amended; to repeal §5-1D-11 of said code; to repeal §5-10D-8 of said code; to repeal §5-11-21 of
said code; to repeal §5-14-12 of said code; to repeal §5-16-4a and §5-16-27 of said code; to repeal
§5-16B-4a of said code; to repeal §5-16C-10 of said code; to repeal §5-22A-15 of said code; to
repeal §5-26A-6 of said code; to repeal §5-28-4 of said code; to repeal §5A-3-57 of said code; to
repeal §5A-8-15a of said code; to repeal §5A-11-8 of said code; to repeal §5B-2-13 of said code; to
repeal §5B-2A-13 of said code; to repeal §5B-2C-8 of said code; to repeal §5C-2-6 of said code; to
repeal §5D-1-24 of said code; to repeal §6B-2-11 of said code; to repeal §6C-3-5 of said code; to
repeal §9A-1-2a of said code; to repeal §10-5-6 of said code; to repeal §11-1-8 of said code; to repeal
§12-6-20 of said code; to repeal §12-6C-20 of said code; to repeal §15-2-50 of said code; to repeal
§15-2D-6 of said code; to repeal §15-2E-8 of said code; to repeal §16-1-13a of said code; to repeal
§16-5P-15 of said code; to repeal §16-5Q-3 of said code; to repeal §16-29B-28 of said code; to repeal §16-41-7 of said code; to repeal §17-2A-1a of said code; to repeal §17A-2-24 of said code;
to repeal §17A-6-18b of said code; to repeal §17B-1D-10 of said code; to repeal §18-2F-9 of said
code; to repeal §18-9D-18 of said code; to repeal §18-10C-3 of said code; to repeal §18-10L-8 of
said code; to repeal §18A-3A-4 of said code; to repeal §18B-16-6b of said code; to repeal §19-1-3b
of said code; to repeal §19-2B-1a of said code; to repeal §19-2F-11 of said code; to repeal §19-23-30
of said code; to repeal §20-1-18d and §20-1-21 of said code; to repeal §20-2-23f of said code; to
repeal §20-5-20 of said code; to repeal §21-1-5 of said code; to repeal §21-9-13 of said code; to
repeal §21-11-19 of said code; to repeal §21A-1-9 of said code; to repeal §21A-2-9 of said code; to
repeal §22-1-4 and §22-1-7a of said code; to repeal §22-3A-11 of said code; to repeal §22-15A-15
of said code; to repeal §22-20-2 of said code; to repeal §22-25-13 of said code; to repeal §22B-3-5
of said code; to repeal §22C-7-4 of said code; to repeal §22C-9-4a of said code; to repeal §22C-11-6
of said code; to repeal §24-1-10 of said code; to repeal §25-1-2 of said code; to repeal §29-1-1b of
said code; to repeal §29-1A-5 of said code; to repeal §29-2-10 of said code; to repeal §29-3-31 of
said code; to repeal §29-6-5a of said code; to repeal §29-12-12 of said code; to repeal §29-18-24 of
said code; to repeal §29-20-7 of said code; to repeal §29-21-3a of said code; to repeal §29-22-26 of
said code; to repeal §30-3-18 of said code; to repeal §30-4-30 of said code; to repeal §30-5-25 and
§30-5-29 of said code; to repeal §30-6-32 of said code; to repeal §30-7-17 of said code; to repeal
§30-7A-12 of said code; to repeal §30-7B-10 of said code; to repeal §30-9-32 of said code; to repeal
§30-12-15 of said code; to repeal §30-13-25 of said code; to repeal §30-14-16 of said code; to repeal
§30-21-16 of said code; to repeal §30-22-29 of said code; to repeal §30-23-30 of said code; to repeal
§30-30-14 of said code; to repeal §30-32-22 of said code; to repeal §30-34-17 of said code; to repeal
§30-35-15 of said code; to repeal §30-36-20 of said code; to repeal §30-37-12 of said code; to repeal
§30-38-19 of said code; to repeal §30-40-28 of said code; to repeal §31-16-5 of said code; to repeal
§31A-3-5 of said code; to repeal §48-18-134 of said code; and to repeal §48-26-1102 of said code,
all relating to removing outmoded code sections regarding sunset provisions."
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. 327), 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: Argento and Ross.
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. 4134) 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. 4140, Relating to the board of physical therapy.
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 clause, by striking out the remainder of the bill and
inserting in lieu thereof, the following:
"That §30-20-8a of the Code of West Virginia, 1931, as amended, be repealed; that §30-20-1,
§30-20-2, §30-20-3, §30-20-4, §30-20-5, §30-20-6, §30-20-7, §30-20-8, §30-20-9, §30-20-10, §30-
20-11, §30-20-12, §30-20-13, §30-20-14 and §30-20-15 be amended and reenacted; and that said
code be amended by adding thereto seven new sections, designated §30-20-16, §30-20-17, §30-20-
18, §30-20-19, §30-20-20, §30-20-21 and §30-20-22, all to read as follows:
ARTICLE 20. PHYSICAL THERAPISTS.
§30-20-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice physical therapy in this state
without a license or permit issued under the provisions of this article, or advertise or use any title or
description tending to convey the impression that they are a physical therapist or a physical therapist assistant unless the person has been duly licensed or permitted under the provisions of this article,
and the license or permit has not expired, been suspended or revoked.
(b) A business entity may not render any service or engage in any activity which, if rendered
or engaged in by an individual, would constitute the practice of physical therapy, except through a
licensee or permittee.
(c) A person who is not licensed under this article as a physical therapist may not characterize
himself or herself as a 'physical therapist', 'physiotherapist', or 'doctor of physical therapy', nor may
a person use the designation 'PT', 'DPT', 'LPT', 'CPT', or 'RPT'.
(d) A person who is not licensed under this article as a physical therapist assistant may not
characterize himself or herself as a 'physical therapist assistant', nor may a person use the
designation 'PTA'.
§30-20-2. Applicable law.
The practices licensed under the provisions of this article and the Board of Physical Therapy
are subject to article one of this chapter, the provisions of this article, and any rules promulgated
hereunder.
§30-20-3. Definitions.
As used in this article:
(1) 'Applicant' means any person making application for an original or renewal license or
a temporary permit under the provisions of this article.
(2) 'Board' means the West Virginia Board of Physical Therapy.
(3) 'Business entity' means any firm, partnership, association, company, corporation, limited
partnership, limited liability company or other entity providing physical therapy services.
(4) 'Consultation' means a physical therapist renders an opinion or advice to another physical
therapist or health care provider through telecommunications.
(5) 'Direct supervision' means the actual physical presence of the physical therapist in the
immediate treatment area where the treatment is being rendered.
(6) 'General supervision' means the physical therapist must be available at least by
telecommunications.
(7) 'License' means a physical therapist license or license to act as a physical therapist
assistant issued under the provisions of this article.
(8) 'Licensee' means a person holding a license under the provisions of this article.
(9) 'On-site supervision' means the supervising physical therapist is continuously on-site and
present in the building where services are provided, is immediately available to the person being
supervised, and maintains continued involvement in appropriate aspects of each treatment session.
(10) 'Permit' or 'temporary permit' means a temporary permit issued under the provisions
of this article.
(11) 'Permittee' means any person holding a temporary permit issued pursuant to the
provisions of this article.
(12) 'Physical therapy aide' means a person trained under the direction of a physical therapist
who performs designated and routine tasks related to physical therapy services under the direction
supervision of a physical therapist.
(13) 'Physical therapist' means a person engaging in the practice of physical therapy who
holds a license or permit issued under the provisions of this article.
(14) 'Physical therapist assistant' means a person holding a license or permit issued under
the provisions of this article who assists in the practice of physical therapy by performing patient
related activities delegated to him or her by a physical therapist and performs under the supervision
of a physical therapist and which patient related activities commensurate with his or her education
and training, including physical therapy procedures, but not the performance of evaluative
procedures or determination and modification of the patient plan of care.
(15) 'Practice of physical therapy' or 'physiotherapy' means the care and services as
described in section nine of this article.
(16) 'Telecommunication' means audio, video or data communication.
§30-20-4. West Virginia Board of Physical Therapy.
(a) The West Virginia Board of Physical Therapy is continued. The members of the board
in office on July 1, 2010, shall, unless sooner removed, continue to serve until their respective terms
expire and until their successors have been appointed and qualified.
(b) To be effective July 1, 2010, the Governor shall appoint, by and with the advice and
consent of the Senate:
(1) One person who is a physical therapist assistant for a term of five years; and
(2) One citizen member, who is not licensed under the provisions of this article and who does
not perform any services related to the practice of the professions regulated under the provisions of
this article or have a financial interest in any health care profession, for a term of three years.
(c) Commencing July 1, 2010, the board shall consist of the following seven members:
(1) Five physical therapists;
(2) One physical therapist assistant; and
(3) One citizen member.
(d) After the initial appointment term, the term shall be for five years. All appointments to
the board shall be made by the Governor by and with the advice and consent of the Senate.
(e) Each licensed member of the board, at the time of his or her appointment, must have held
a license in this state for a period of not less than five years immediately preceding the appointment.
(f) Each member of the board must be a resident of this state during the appointment term.
(g) A member may not serve more than two consecutive full terms. A member may continue
to serve until a successor has been appointed and has qualified.
(h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired
term of the member whose office is vacant and the appointment shall be made within sixty days of
the vacancy.
(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(j) A licensed member of the board immediately and automatically forfeits membership to
the board if his or her license to practice is suspended or revoked.
(k) Any member of the board immediately and automatically forfeits membership to the
board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a
nonresident of this state.
(l) The board shall elect annually one of its members as chairperson who serves at the will
of the board.
(m) Each member of the board is entitled to compensation and expense reimbursement in
accordance with article one of this chapter.
(n) A majority of the members of the board constitutes a quorum.
(o) The board shall hold at least two annual meetings. Other meetings may be held at the call
of the chairperson or upon the written request of two members, at the time and place as designated
in the call or request.
(p) Prior to commencing his or her duties as a member of the board, each member shall take
and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-20-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this article, by rule, in article one of
this chapter and elsewhere in law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for licenses and permits;
(3) Establish procedures for submitting, approving and rejecting applications for licenses and
permits;
(4) Determine the qualifications of any applicant for licenses and permits;
(5) Prepare, conduct, administer and grade examinations for licenses;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third party administers, including the
number of persons taking the examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix the compensation of the executive
secretary;
(9) Maintain an office, and hire, discharge, establish the job requirements and fix the
compensation of employees, investigators and contracted employees necessary to enforce the
provisions of this article;
(10) Investigate alleged violations of the provisions of this article, legislative rules, orders
and final decisions of the board;
(11) Conduct disciplinary hearings of persons regulated by the board;
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of the provisions of this article;
(14) Maintain an accurate registry of names and addresses of all persons regulated by the
board;
(15) Keep accurate and complete records of its proceedings, and certify the same as may be
necessary and appropriate;
(16) Establish the continuing education requirements for licensees;
(17) Issue, renew, combine, deny, suspend, restrict, revoke or reinstate licenses and permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a
of this code to implement the provisions of this article; and
(20) Take all other actions necessary and proper to effectuate the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer examinations required under the provisions of
this article;
(2) Sue and be sued in its official name as an agency of this state; and
(3) Confer with the Attorney General or his or her assistant in connection with legal matters
and questions.
§30-20-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in accordance with the provisions
of article three, chapter twenty-nine-a of this code, to implement the provisions of this article,
including:
(1) Standards and requirements for licenses and permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare or administer, or both, examinations and
reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses and permits;
(8) A fee schedule;
(9) The scope of practice and supervision of physical therapist assistants;
(10) Responsibilities of a physical therapist and physical therapist assistant concerning the
practice and supervision of physical therapy aides;
(11) Continuing education requirements for licensees;
(12) Establishing a maximum ratio of physical therapist assistants, or physical therapy aides
involved in the practice of physical therapy, or any combinations that can be supervised by a physical
therapist at any one time;
(13) Exceptions to the ratio of physical therapist assistants a physical therapist may supervise
including emergencies, safety and temporary situations;
(14) Permitting a physical therapist assistant to directly supervise a physical therapy aide in an emergency situation;
(15) The procedures for denying, suspending, restricting, revoking, reinstating or limiting the
practice of licensees and permittees;
(16) Adopt a standard for ethics;
(17) Requirements for inactive or revoked licenses or permits; and
(18) Any other rules necessary to effectuate the provisions of this article.
(b) The board shall promulgate emergency rules pursuant to the provisions of section fifteen,
article three, chapter twenty-nine-a of this code, to establish a maximum ratio of physical therapist
assistants, or physical therapy aides involved in the practice of physical therapy, or any combinations
that can be supervised by a physical therapist at any one time.
(c) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are
amended or repealed and references to provisions of former enactments of this article are interpreted
to mean provisions of this article.
§30-20-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be
deposited in a separate special revenue fund in the State Treasury designated the 'West Virginia
Board of Physical Therapy Fund', which is continued. The fund is used by the board for the
administration of this article. Except as may be provided in article one of this chapter, the board
retains the amount in the special revenue account from year to year. No compensation or expense
incurred under this article is a charge against the General Revenue Fund.
(b) Any amounts received as fines pursuant to this article shall be deposited into the General
Revenue Fund of the State Treasury.
§30-20-8. License to practice physical therapy.
(a) To be eligible for a license to engage in the practice of physical therapy, the applicant
must:
(1) Submit an application to the board;
(2) Be at least eighteen years of age;
(3) Be of good moral character;
(4) Have graduated from an accredited school of physical therapy approved by the
Commission on Accreditation in Physical Therapy Education or a successor organization;
(5) Pass a national examination as approved by the board;
(6) Not be an alcohol or drug abuser, as these terms are defined in section eleven, article one-
a, chapter twenty-seven of this code:
Provided, That an applicant in an active recovery process,
which may, in the discretion of the board, be evidenced by participation in a twelve-step program
or other similar group or process, may be considered;
(7) Not have been convicted of a felony in any jurisdiction within ten years preceding the date
of application for license which conviction remains unreversed;
(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for
which he or she was convicted related to the practice of physical therapy, which conviction remains
unreversed; and
(9) Has fulfilled any other requirement specified by the board.
(b) A physical therapist shall use the letters 'PT' immediately following his or her name to
designate licensure under this article.
(c) A license to practice physical therapy issued by the board prior to July 1, 2010,is
considered a license issued under this article:
Provided, That a person holding a license issued prior
to July 1, 2010, must renew the license pursuant to the provisions of this article.
§30-20-9. Scope of practice of a physical therapist.
A physical therapist may:
(1) Examine, evaluate and test patients or clients with mechanical, physiological and
developmental impairments, functional limitations, and disabilities or other health and movement
related conditions in order to determine a diagnosis, prognosis and plan of treatment intervention,
and to assess the ongoing effects of intervention:
Provided, That electromyography examination and electrodiagnostic studies other than the determination of chronaxia and strength duration curves shall
not be performed except under the supervision of a physician electromyographer and
electrodiagnostician;
(2) Alleviate impairments, functional limitations and disabilities by designing, implementing
and modifying treatment interventions that may include, but are not limited to: therapeutic exercise;
functional training in self-care in relation to motor control function; mobility; in home, community
or work integration or reintegration; manual therapy techniques including mobilization of the joints;
therapeutic massage; fabrication of assistive, adaptive, orthothic, prosthetic, protective and
supportive devices and equipment; airway clearance techniques; integumentary protection and repair
techniques; patient-related instruction; mechanical and electrotherapeutic modalities; and physical
agent or modalities including, but not limited to, heat, cold, light, air, water and sound;
(3) Reduce the risk of injury, impairment, functional limitation and disability, including the
promotion and maintenance of fitness, health and wellness in populations of all ages; and
(4) Engage in administration, consultation and research.
§30-20-10. License to act as a physical therapist assistant.
(a) To be eligible for a license to act as a physical therapist assistant, the applicant must:
(1) Submit an application to the board;
(2) Be at least eighteen years of age;
(3) Be of good moral character;
(4) Have graduated from a two-year college level education program for physical therapist
assistants which meets the standards established by the Commission on Accreditation in Physical
Therapy Education and the board;
(5) Have passed the examination approved by the board for a license to act as a physical
therapist assistant;
(6) Not be an alcohol or drug abuser, as these terms are defined in section eleven, article one-
a, chapter twenty-seven of this code:
Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-step program
or other similar group or process, may be considered;
(7) Not have been convicted of a felony in any jurisdiction within ten years preceding the date
of application for license which conviction remains unreversed;
(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for
which he or she was convicted related to the practice of physical therapy, which conviction remains
unreversed; and
(10) Meet any other requirements established by the board.
(b) A physical therapist assistant shall use the letters 'PTA' immediately following his or her
name to designate licensure under this article.
(c) A license to act as a physical therapist assistant issued by the board prior to July 1, 2010,is
considered a license issued under this article:
Provided, That a person holding a license issued prior
to July 1, 2010, must renew the license pursuant to the provisions of this article.
§30-20-11. License to practice physical therapy from another jurisdiction.
(a) The board may issue a license to practice physical therapy to an applicant who holds a
valid license or other authorization to practice physical therapy from another state, if the applicant:
(1) Holds a license or other authorization to practice physical therapy in another state which
was granted after completion of educational requirements substantially equivalent to those required
in this state;
(2) Passed an examination that is substantially equivalent to the examination required in this
state;
(3) Does not have charges pending against his or her license or other authorization to
practice, and has never had a license or other authorization to practice revoked;
(4) Has not previously failed an examination for a license to practice physical therapy in this
state;
(5) Has paid the applicable fee;
(6) Is a citizen of the United States or is eligible for employment in the United States; and
(7) Has fulfilled any other requirement specified by the board.
(b) The board may issue a license to practice physical therapy to an applicant who has been
educated outside of the United States, if the applicant:
(1) Provides satisfactory evidence that the applicant's education is substantially equivalent
to the educational requirements for physical therapists under the provisions of this article;
(2) Provides written proof that the applicant's school of physical therapy is recognized by its
own ministry of education;
(3) Has undergone a credentials evaluation as directed by the board that determines that the
candidate has met uniform criteria for educational requirements as further established by rule;
(4) Has paid the applicable fee;
(5) Is eligible for employment in the United States; and
(6) Complete any additional requirements as required by the board.
(c) The board may issue a restricted license to an applicant who substantially meets the
criteria established in subsection (b) of this section.
§30-20-12. Temporary permits.
(a) Upon completion of the application and payment of the nonrefundable fees, the board may
issue a temporary permit, for a period not to exceed 90 days, to an applicant to practice as a physical
therapist in this state or act as a physical therapist assistant in this state, if the applicant has
completed the educational requirements set out in this article, pending the examination and who
works under a supervising physical therapist with the scope of the supervision to be defined by
legislative rule.
(b) The temporary permit expires thirty days after the board gives written notice to the
permittee of the results of the first examination held following the issuance of the temporary permit,
if the permittee receives a passing score on the examination. The permit shall expire immediately
if the permittee receives a failing score on the examination.
(c) A temporary permit may be revoked by a majority vote of the board.
(d) An applicant may be issued only one temporary permit, and upon the expiration of the
temporary permit, may not practice as a physical therapist or act as physical therapist assistant until
he or she is fully licensed under the provisions of this article.
§30-20-13. Special volunteer physical therapist license, physical therapist assistant license;
civil immunity for voluntary services rendered to indigents.
(a) There is established a special volunteer license for physical therapists or physical therapist
assistants, as the case may be, retired or retiring from active practice who wish to donate their
expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics
organized, in whole or in part, for the delivery of health care services without charge. The special
volunteer license provided by this section shall be issued by the West Virginia Board of Physical
Therapy to physical therapists or physical therapist assistants licensed or otherwise eligible for
licensure under this article and the legislative rules promulgated hereunder without the payment of
an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder
of the licensing period, and renewed consistent with the boards other licensing requirements. The
board shall develop application forms for the special volunteer license provided in this section which
shall contain the applicant's acknowledgment that:
(1) The applicant's practice under the special volunteer license will be exclusively devoted
to providing physical therapy care to needy and indigent persons in West Virginia;
(2) The applicant may not receive any payment or compensation, either direct or indirect, or
have the expectation of any payment or compensation, for any physical therapy services rendered
under the special volunteer license;
(3) The applicant shall supply any supporting documentation that the board may reasonably
require; and
(4) The applicant shall continue to participate in continuing education as required by the
board for special volunteer physical therapists or physical therapist assistants license, as the case may be.
(b) Any physical therapist or physical therapist assistant who renders any physical therapy
service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of
health care services without charge under a special volunteer license authorized under subsection (a)
of this section without payment or compensation or the expectation or promise of payment or
compensation is immune from liability for any civil action arising out of any act or omission
resulting from the rendering of the physical therapy service at the clinic unless the act or omission
was the result of gross negligence or willful misconduct on the part of the physical therapist or
physical therapist assistant. In order for the immunity under this subsection to apply, there must be
a written agreement between the physical therapist or physical therapist assistant and the clinic
stating that the physical therapist or physical therapist assistant will provide voluntary
uncompensated physical therapy services under the control of the clinic to patients of the clinic
before the rendering of any services by the physical therapist or physical therapist assistant at the
clinic:
Provided, That any clinic entering into such written agreement is required to maintain
liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in
whole or in part, for the delivery of health care services without charge is not relieved from imputed
liability for the negligent acts of a physical therapist or physical therapist assistant rendering
voluntary physical therapy services at or for the clinic under a special volunteer license authorized
under this section.
(d) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of
all the requirements for licensure for a physical therapist or physical therapist assistant, as the case
may be, except the fee requirements.
(e) Nothing in this section may be construed as requiring the board to issue a special
volunteer license to any physical therapist or physical therapist assistant whose license is or has been
subject to any disciplinary action or to any physical therapist or physical therapist assistant who has surrendered a license or caused a license to lapse, expire and become invalid in lieu of having a
complaint initiated or other action taken against his or her license, or who has elected to place a
license in inactive status in lieu of having a complaint initiated or other action taken against his or
her license or who has been denied a license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued
or delivered in this state to any physical therapist or physical therapist assistant covered under the
provisions of this article shall be read so as to contain a provision or endorsement whereby the
company issuing such policy waives or agrees not to assert as a defense on behalf of the policy
holder or any beneficiary there of the policy, to any claim covered by the terms of the policy within
the policy limits, the immunity from liability of the insured by reason of the care and treatment of
needy and indigent patients by a physical therapist or physical therapist assistant who holds a special
volunteer license.
§30-20-14. Renewal requirements.
(a) All persons regulated by this article shall annually or biannually before January 1, renew
his or her license by completing a form prescribed by the board and submitting any other information
required by the board.
(b) The board shall charge a fee for each renewal of a license and shall charge a late fee for
any renewal not paid by the due date.
(c) The board shall require as a condition of renewal that each licensee complete continuing
education.
(d) The board may deny an application for renewal for any reason which would justify the
denial of an original application for a license.
§30-20-15. Delinquent and expired license requirements.
(a) If a license is not renewed when due, then the board shall automatically place the licensee
on delinquent status.
(b) The fee for a person on delinquent status shall increase at a rate, determined by the board, for each month or fraction thereof that the renewal fee is not paid, up to a maximum of thirty-six
months.
(c) Within thirty-six months of being placed on delinquent status, if a licensee wants to return
to active practice, he or she must complete all the continuing education requirements and pay all the
applicable fees as set by rule.
(d) After thirty-six months of being placed on delinquent status, a license is automatically
placed on expired status and cannot be renewed. A person whose license has expired must reapply
for a new license.
§30-20-16. Inactive license requirements.
(a) A licensee who does not want to continue an active practice shall notify the board in
writing and be granted inactive status.
(b) A person granted inactive status is not subject to the payment of any fee and may not
practice physical therapy or act as a physical therapist assistant in this state.
(c) When the person wants to return to the practice of physical therapy or act as a physical
therapist assistant, the person shall submit an application for renewal along with all applicable fees
as set by rule.
§30-20-17. Exemptions from licensure.
(a) The following persons are exempt from licensing requirements under the provisions of
this article:
(1) A person who practices physical therapy pursuant to a course of study at an institution
of higher learning, including, but not limited to, activities conducted at the institution of higher
learning and activities conducted outside the institution if under the on-site supervision of a physical
therapist;
(2) A person who practices physical therapy in the United States Armed Services, United
States Public Health Service or Veterans Administration pursuant to federal regulations for state
licensure of health care providers;
(3) A physical therapist who is licensed in another jurisdiction of the United States or
credentialed to practice physical therapy in another country if that person is teaching, demonstrating
or providing physical therapy services in connection with teaching or participating in an educational
seminar of no more than sixty calendar days in a calendar year;
(4) A physical therapist who is licensed in another state if that person is consulting;
(5) A physical therapist who is licensed in another jurisdiction, if that person by contract or
employment is providing physical therapy to individuals affiliated with or employed by established
athletic teams, athletic organizations or performing arts companies temporarily practicing, competing
or performing in the state for no more than sixty calendar days in a calendar year;
(6) A physical therapist who is licensed in another jurisdiction who enters this state to
provide physical therapy during a declared local, state or national disaster or emergency. This
exemption applies for no longer than sixty calendar days in a calendar year following the declaration
of the emergency. The physical therapist shall notify the board of their intent to practice;
(7) A physical therapist licensed in another jurisdiction who is forced to leave his or her
residence or place of employment due to a declared local, state or national disaster or emergency and
due to the displacement seeks to practice physical therapy. This exemption applies for no longer
than sixty calendar days in a calendar year following the declaration of the emergency. The physical
therapist shall notify the board of their intent to practice; and
(8) A person administering simple massages and the operation of health clubs so long as not
intended to constitute or represent the practice of physical therapy.
(9) A physical therapist assistant assisting an exempt physical therapist.
(10) Nothing contained in this article prohibits a person from practicing within his or her
scope of practice as authorized by law.
§30-20-18. Display of license.
(a) The board shall prescribe the form for a license and permit, and may issue a duplicate
license or permit upon payment of a fee.
(b) Any person regulated by the article shall conspicuously display his or her license or
permit at his or her principal business location.
§
30-20-19. Complaints; investigations; due process procedure; grounds for disciplinary action.
(a) The board may upon its own motion based on credible information, and shall upon the
written complaint of any person, cause an investigation to be made to determine whether grounds
exist for disciplinary action under this article or the legislative rules promulgated pursuant to this
article.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the
complaint to the licensee or permittee.
(c) After reviewing any information obtained through an investigation, the board shall
determine if probable cause exists that the licensee or permittee has violated subsection (g) of this
section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee or permittee has violated
subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into
a consent decree or hold a hearing for the suspension or revocation of the license or permit or the
imposition of sanctions against the licensee or permittee. Any hearing shall be held in accordance
with the provisions of this article.
(e) Any member of the board or the executive secretary of the board may issue subpoenas and
subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations
against any person regulated by the article.
(f) Any member of the board or its executive secretary may sign a consent decree or other
legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend,
restrict or revoke the license or permit of, or impose probationary conditions upon or take
disciplinary action against, any licensee or permittee for any of the following reasons once a
violation has been proven by a preponderance of the evidence:
(1) Obtaining a license or permit by fraud, misrepresentation or concealment of material
facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by
legislative rule of the board;
(4) Intentional violation of a lawful order or legislative rule of the board;
(5) Having had a license or other authorization revoked or suspended, other disciplinary
action taken, or an application for licensure or other authorization revoked or suspended by the
proper authorities of another jurisdiction;
(6) Aiding or abetting unlicensed practice; or
(7) Engaging in an act while acting in a professional capacity which has endangered or is
likely to endanger the health, welfare or safety of the public.
(h) For the purposes of subsection (g) of this section, effective July 1, 2010, disciplinary
action may include:
(1) Reprimand;
(2) Probation;
(3) Restrictions;
(4) Administrative fine, not to exceed $1,000 per day per violation;
(5) Mandatory attendance at continuing education seminars or other training;
(6) Practicing under supervision or other restriction; or
(7) Requiring the licensee or permittee to report to the board for periodic interviews for a
specified period of time.
(i) In addition to any other sanction imposed, the board may require a licensee or permittee
to pay the costs of the proceeding.
§30-20-20. Procedures for hearing; right of appeal.
(a) Hearings are governed by the provisions of section eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct
the hearing.
(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing
he or she shall prepare a proposed written order containing findings of fact and conclusions of law.
The proposed order may contain proposed disciplinary actions if the board so directs. The board
may accept, reject or modify the decision of the administrative law judge.
(d) Any member or the executive secretary of the board has the authority to administer oaths,
examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee or permittee has violated provisions
of this article or the board's rules, a formal written decision shall be prepared which contains
findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.
§30-20-21. Judicial review.
Any licensee or permittee adversely affected by a decision of the board entered after a hearing
may obtain judicial review of the decision in accordance with section four, article five, chapter
twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance
with article six, chapter twenty-nine-a of this code.
§30-20-22. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason
to believe that a licensee or permittee has committed a criminal offense under this article, the board
may bring its information to the attention of an appropriate law-enforcement official.
(b) A person violating section one of this article is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $100 nor more than $5,000 or confined in jail not
more than six months, or both fined and confined."
And by amending the title of the bill to read as follow:
Com. Sub. for H. B. 4140 - "A Bill to repeal §30-20-8a of the Code of West Virginia, 1931,
as amended; to amend and reenact §30-20-1, §30-20-2, §30-20-3, §30-20-4, §30-20-5, §30-20-6, §30-20-7, §30-20-8, §30-20-9, §30-20-10, §30-20-11, §30-20-12, §30-20-13, §30-20-14 and §30-20-
15; and to amend said code by adding thereto seven new sections, designated §30-20-16, §30-20-17,
§30-20-18, §30-20-19, §30-20-20, §30-20-21 and §30-20-22 all relating to the Board of Physical
Therapy; prohibiting the practice of physical therapy without a license; providing other applicable
sections; providing definitions; providing for board composition; setting forth the powers and duties
of the board; clarifying rulemaking authority; continuing a special revenue account; establishing
license requirements; clarifying a scope of practice; providing for licensure for persons licensed in
another state; establishing renewal requirements; providing permit requirements; establishing a
special volunteer license; clarifying requirements for a license that is delinquent, expired or inactive;
providing exemptions from licensure; requiring display of license; setting forth grounds for
disciplinary actions; allowing for specific disciplinary actions; providing procedures for investigation
of complaints; providing for judicial review and appeals of decisions; setting forth hearing and notice
requirements; providing for civil causes of action and providing criminal penalties."
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. 328), and there were--yeas
94, nays 4, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, McGeehan and J. Miller.
Absent And Not Voting: Argento and Ross.
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. 4140) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
H. B. 4142, Relating to the board of sanitarian.
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 §30-17-1, §30-17-2, §30-17-3, §30-17-4, §30-17-5, §30-17-6, §30-17-7, §30-17-8,
§30-17-9, §30-17-10, 30-17-11, §30-17-12, §30-17-13, §30-17-14, §30-17-15, and §30-17-16 of the
Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be
amended by adding thereto three new sections, designated §30-17-17, §30-17-18 and §30-17-19, all
to read as follows:
ARTICLE 17. SANITARIANS.
§30-17-1. Unlawful acts.
It is unlawful for any person to practice or offer to practice environmental health science and
public health sanitation in this state without being licensed, certified or permitted under the
provisions of this article, or to advertise or use any title or description tending to convey the
impression that the person is a registered sanitarian, sanitarian or sanitarian-in-training unless he or
she has been duly authorized under the provisions of this article, and the license, certification or
permit has not expired or been suspended or revoked.
§30-17-2. Applicable law.
The practice of environmental health science and public health sanitation, and the board are
subject to the provisions of article one of this chapter, the provisions of this article and any rules
promulgated hereunder.
§30-17-3. Definitions.
As used in this article, the following words and terms have the following meanings:
(a) 'Board' means the State Board of Sanitarians.
(b) 'Bureau' means the Bureau for Public Health.
(c) 'Certificate holder' means a person holding a certification issued by the board.
(d) 'Certificate' means a document issued to a sanitarian under the provisions of this article.
(e) 'Environmental health science' means public health science that includes, but is not
limited to, the following bodies of knowledge: air quality, food quality and protection, hazardous and
toxic substances, consumer product safety, housing, institutional health and safety, community noise
control, radiation protection, recreational facilities, solid and liquid waste management, vector
control, drinking water quality, milk sanitation and rabies control.
(f) 'License' means a document issued to a registered sanitarian under the provisions of this
article.
(g) 'Licensee' means a person holding a license issued by the board.
(h) 'Permit' means a document issued to a sanitarian-in-training under the provisions of this
article.
(i) 'Permittee' means a person holding a permit issued by the board.
(j) 'Practice of public health sanitation' means the consultation, instruction, investigation,
inspection or evaluation by an employee of the bureau, or a municipal or county health department
with the primary purpose of improving or conducting administration of enforcement of state laws
and rules.
(k) 'Registered sanitarian' means a person who is licensed by the board and is uniquely
qualified by education, specialized training, experience and examination to assist in the enforcement
of public health sanitation laws and environmental sanitation regulations, and to effectively plan,
organize, manage, evaluate and execute one or more of the many diverse disciplines comprising the
field of public health sanitation.
(l) 'Sanitarian' means a person who is certified by the board and is uniquely qualified by
education in the arts and sciences, specialized training and credible field experience to assist in the
enforcement of public health sanitation laws and environmental sanitation regulations, and to
effectively plan, organize, manage, evaluate and execute one or more of the many diverse disciplines comprising the field of public health sanitation.
(m) 'Sanitarian-in-training' means a person who is permitted by the board and possesses the
necessary educational qualifications for certificate as a sanitarian, but who has not completed the
experience requirements in the fields of public health sanitation and environmental health science
as required for certificate.
§30-17-4. State Board of Sanitarians.
(a) The Board of Registration for Sanitarians is continued and commencing July 1, 2010,
shall be known as the State Board of Sanitarians. Any member of the board, except one registered
sanitarian, in office on July 1, 2010, may continue to serve until his or her successor has been
appointed and qualified.
(b) Prior to July 1, 2010, the Governor, by and with the advice and consent of the Senate,
shall appoint one certified sanitarian to replace one registered sanitarian.
(c) Commencing July 1, 2010, the board shall consist of the following seven voting members
with staggered terms and 1 non-voting member:
(1) The Commissioner of the Bureau of Public Health, or his or her designee, who is a
nonvoting member;
(2) Four members who are registered sanitarians, who are voting members;
(3) One member who has a certificate as a sanitarian at the time of the appointment, who is
a voting member:
Provided, That if the member becomes a registered sanitarian during his or her
appointment term, then the person may not be reappointed as the certified sanitarian member, but
may be reappointed as a registered sanitarian member; and
(4) Two citizen members, who are not licensed, certified or permitted under the provisions
of this article, and who do not perform any services related to the practice of the professions
regulated under the provisions of this article, who are voting members.
(d) Each voting member must be appointed by the Governor, by and with the advice and
consent of the Senate, and must be a resident of this state during the appointment term.
(e) The term of each voting board member is five years.
(f) No voting member may serve more than two consecutive full terms and any voting
member having served two full terms may not be appointed for one year after completion of his or
her second full term. A voting member shall continue to serve until his or her successor has been
appointed and qualified.
(g) Each licensed or certified member shall have been engaged in the practice of
environmental health science or public health sanitation for at least five years immediately preceding
the appointment.
(h) Each licensed or certified member shall maintain an active license or certificate with the
board during his or her term.
(i) The Governor may remove any voting member from the board for neglect of duty,
incompetency or official misconduct.
(j)A licensed or certified member of the board immediately and automatically forfeits
membership to the board if his or her license or certificate to practice is suspended or revoked.
(k) A voting member of the board immediately and automatically forfeits membership to the
board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a
nonresident of this state.
(l) The board shall designate one of its members as chairperson who serves at the will of the
board.
(m) Each voting member of the board is entitled to receive compensation and expense
reimbursement in accordance with section eleven, article one of this chapter.
(n) A majority of the members of the board shall constitute a quorum.
(o) The board shall hold at least two annual meetings. Other meetings may be held at the call
of the chairperson, or upon the written request of two members, at such time and place as designated
in the call or request.
(p) Prior to commencing his or her duties as a voting member of the board, each voting member shall take and subscribe to the oath required by section five, article four of the Constitution
of this state.
§30-17-5. Powers and duties of the board.
The board has all the powers and duties set forth in article one of this chapter and also the
following powers and duties:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Set the requirements for a license, permit and certificate;
(3) Establish procedures for submitting, approving and rejecting applications for a license,
permit and certificate;
(4) Determine the qualifications of any applicant for a license, permit and certificate;
(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) Contract with third parties to administer the examinations required under the provisions
of this article;
(8) 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;
(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) Define the fees charged under the provisions of this article;
(11) Issue, renew, deny, suspend, revoke or reinstate a license, permit and certificate;
(12) Investigate alleged violations of the provisions of this article, legislative rules, orders
and final decisions of the board;
(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, permittees and certificate
holders;
(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;
(20) Sue and be sued in its official name as an agency of this state;
(21) Confer with the Attorney General or his or her assistant in connection with legal matters
and questions; and
(22) Take all other actions necessary and proper to effectuate the purposes of this article.
§30-17-6. 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 a license, permit or certificate;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer examinations and
reexaminations;
(4) Educational, experience and training requirements, and the passing grade on the
examination;
(5) Standards for approval of courses;
(6) Procedures for the issuance and renewal of a license, permit or certificate
;
(7) A fee schedule;
(8) The continuing education requirements;
(9) The procedures for denying, suspending, revoking, reinstating or limiting the practice of
a licensee, permittee or certificate holder;
(10) Requirements for an inactive or revoked license, permit or certificate; and
(11) Any other rules necessary to effectuate the provisions of this article.
(b) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are
amended or repealed, and references to provisions of former enactments of this article are interpreted
to mean provisions of this article.
(c) The board is authorized to promulgate emergency rules pursuant to the provisions of
section fifteen, article three, chapter twenty-nine-a of this code, to set fees for the issuance and
renewal of licenses, certificates and permits for an eighteen month period commencing July 1, 2010,
and ending December 31, 2011.
§30-17-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be
deposited in a separate special revenue fund in the State Treasury designated the 'Sanitarians
Operating Fund', which fund is continued. The fund shall be used by the board for the
administration of this article. Except as may be provided in article one of this chapter, the board
shall retain the amounts in the special revenue account from year to year. No compensation or
expense incurred under this article is a charge against the General Revenue Fund.
(b) Any amounts received as fines imposed, pursuant to this article, shall be deposited into
the General Revenue Fund of the State Treasury.
§30-17-8. Qualifications for licensure as a registered sanitarian.
(a) To be eligible to be licensed as a registered sanitarian, the applicant must:
(1) Be of good moral character;
(2) Have a bachelor's or higher degree from an accredited college or university;
(3) Successfully complete a sanitarian's training course of a minimum of three hundred hours, as approved by the board;
(4) Have at least two years of experience in the field of public health sanitation and
environmental health science; and
(5) Pass an examination, as required by the board.
(b) An applicant may substitute a successfully completed master's or higher degree in public
health, environmental science, sanitary science, community hygiene or other science field, as
approved by the board, for one of the required years of experience.
(c) A registration issued by the board prior to July 1, 2010, shall for all purposes be
considered a license issued under this article: Provided, That a person holding a registration issued
prior to July 1, 2010, must renew pursuant to the provisions of this article.
§30-17-9. Qualifications for certificate as a sanitarian.
(a) To be eligible to be certified as a sanitarian, the applicant must:
(1) Be of good moral character;
(2) Have a bachelor's or higher degree from an accredited college or university;
(3) Successfully complete a sanitarian's training course of a minimum of three hundred hours,
as approved by the board; and
(4) Have at least two years of experience in the field of public health sanitation and
environmental health science.
(b) An applicant may substitute a successfully completed master's or higher degree in public
health, environmental science, sanitary science, community hygiene or other science field as
approved by the board for one of the required years of experience.
(c) A person who is registered as a sanitarian-in-training by the board and on or before July
1, 2010, has two or more years of experience in the field of public health sanitation and
environmental health science, as approved by the board, shall for all purposes be considered certified
under this article: Provided, That such a person must renew pursuant to the provisions of this article.
§30-17-10. Qualifications for permit as a sanitarian-in-training.
(a) To be eligible to be permitted as a sanitarian-in-training, the applicant must:
(1) Be of good moral character;
(2) Have a bachelor's or higher degree from an accredited college or university; and
(3) Successfully complete a sanitarian's training course of a minimum of three hundred hours
within twelve months of being hired as a sanitarian-in-training.
(b) A person may practice as a sanitarian-in-training for a period not to exceed three years.
(c) The board may waive the requirements of subdivision (3) of subsection (a) and subsection
(b) of this section, for a person who experiences an undue hardship, as determined by the board.
§30-17-11. Persons exempted from licensure.
The activities and services of qualified members of other recognized professions practicing
environmental health science consistent with the laws of this state, their training and any code of
ethics of their professions so long as such person does not represent themselves as a registered
sanitarian, sanitarian or sanitarian-in-training as defined by this article.
§30-17-12. License from another state.
The board may issue a license or a certificate to practice environmental health science or
public health sanitation in this state, without requiring an examination, to an applicant from another
jurisdiction who:
(1) Is of good moral character;
(2) Holds a valid sanitarian license or other authorization to practice environmental health
science or public health sanitation in another jurisdiction and meets requirements which are
substantially equivalent to the requirements set forth in this article;
(3) Is not currently being investigated by a disciplinary authority of this state or another
jurisdiction, does not have charges pending against his or her license or other authorization to
practice environmental health science or public health sanitation, and has never had a license or other
authorization to practice environmental health science or public health sanitation revoked;
(4) Has not previously failed an examination for licensure in this state;
(5) Has paid all the applicable fees;
(6) Completes any additional training as determined by the board; and
(7) Completes such other action as required by the board.
§30-17-13. Renewal requirements.
(a) The board may issue, renew and charge fees for licenses, certificates and permits for an
eighteen month period commencing July 1, 2010, and ending December 31, 2011.
(b) Commencing January 1, 2012, and annually or biennially thereafter, a person regulated
by this article shall renew his or her license, permit or certificate by completing a form prescribed
by the board, paying the applicable fees and submitting any other information required by the board.
(c) The board shall charge a fee for each renewal of a license, permit or certificate and may
charge a late fee for any renewal not paid by the due date.
(d) The board shall require as a condition for the renewal of a license, permit or certificate
that each person regulated by this article complete continuing education.
(e) The board may deny an application for renewal for any reason which would justify the
denial of an original application for a license, permit or certificate.
§30-17-14. Display of license, permit or certificate.
(a) The board shall prescribe the form for a license, permit and certificate and may issue a
duplicate upon payment of a fee.
(b) Any person, not employed by the bureau or a municipal or county health department, shall
conspicuously display his or her license, permit or certificate at his or her principal place of practice.
(c) A person regulated by the board shall carry valid proof of licensure, permit or certificate
on his or her person during the performance of his or her duties.
§30-17-15. Complaints; investigations; due process procedure; grounds for disciplinary
action.
(a) The board may upon its own motion 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.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the
complaint to the licensee, permittee or certificate holder.
(c) The board may cause an investigation to be made into the facts and circumstances giving
rise to the complaint.
(d) After reviewing any information obtained through an investigation, the board shall
determine if probable cause exists that the licensee, permittee or certificate holder has violated this
article.
(e) Upon a finding that probable cause exists that the licensee, permittee or certificate holder
has violated this article, the board may enter into a consent decree or hold a hearing for the
suspension or revocation of the license, certificate or permit or the imposition of sanctions against
the licensee, permittee or certificate holder. The hearing shall be held in accordance with the
provisions of this article.
(f) 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 this article.
(g) Any member of the board or its executive director may sign a consent decree or other
legal document on behalf of the board.
(h) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend
or revoke the license, permit or certificate of, impose probationary conditions upon or take
disciplinary action against, any licensee, permittee or certificate holder for any of the following
reasons:
(1) Obtaining a license, permit or certificate by fraud, misrepresentation or concealment of
material facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk;
(4) Violating this article or lawful order of the board that placed the public at risk;
(5) Having had a license or other authorization revoked or suspended, other disciplinary
action taken, or an application for licensure or other authorization denied by the proper authorities
of another jurisdiction, irrespective of intervening appeals and stays; or
(6) Engaging in any act which has endangered or is likely to endanger the health, welfare or
safety of the public.
(i) For the purposes of subsection (h) of this section, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee, permittee or certificate holder to report to the board for periodic
interviews for a specified period of time; or
(7) Other corrective action considered by the board to be necessary to protect the public,
including advising other parties whose legitimate interests may be at risk.
§30-17-16. Procedures for hearing; right of appeal.
(a) Hearings are governed by the provisions of section eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct
the hearing.
(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing
he or she shall prepare a proposed written order containing findings of fact and conclusions of law.
The proposed order may contain proposed disciplinary actions if the board so directs. The board
may accept, reject or modify the decision of the administrative law judge.
(d) Any member or the executive 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, permittee or certificate holder has
violated this article, a formal written decision shall be prepared which contains findings of fact,
conclusions of law and a specific description of the disciplinary actions imposed.
§30-17-17. Judicial review; appeal to Supreme Court of Appeals.
Any licensee, permittee or certificate holder 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.
§30-17-18. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason
to believe that a licensee, permittee or certificate holder has knowingly violated 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) If a court finds that a person violating 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.
§30-17-19. 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."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4142 - "A Bill to amend and reenact §30-17-1, §30-17-2, §30-17-3,
§30-17-4, §30-17-5, §30-17-6, §30-17-7, §30-17-8, §30-17-9, §30-17-10, §30-17-11, §30-17-12,
§30-17-13, §30-17-14, §30-17-15, and §30-17-16 of the Code of West Virginia, 1931, as amended;
and to amend said code by adding thereto three new sections, designated §30-17-17, §30-17-18 and
§30-17-19, all relating to the State Board of Sanitarians; prohibiting the practice of environmental health science and public health sanitation without a license, certification or permit; updating
definitions; changing the board composition; clarifying the powers and duties of the board; clarifying
rule-making authority; authorizing emergence rules; continuing a special revenue account;
establishing license, permit and certificate requirements; providing exemptions from licensure;
licensing requirements for persons licensed in another state; establishing renewal requirements;
requiring display of license, certification and permit; setting grounds for disciplinary actions;
establishing specific disciplinary actions; providing procedures for investigation of complaints,
judicial review, appeals of decisions, hearings, notice and civil causes of action; providing criminal
penalties; and providing that a single act is evidence of practice."
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. 329), and there were--yeas
88, nays 10, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Ellem, Lane, Louisos, McGeehan, J. Miller, Sobonya, Sumner
and Walters.
Absent And Not Voting: Argento and Ross.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4142) 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. 4145, Providing services and facilities to assist student veterans at state
institutions of higher 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 five, section nine, line seventy-two, by striking out the word "corroborative" and
inserting in lieu thereof the word "collaborative".
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4145 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §18B-4-9, relating to requiring the Commission and
Council to establish and implement measures to provide services and facilities to assist student
veterans at state institutions of higher education; and providing for annual reports to the Legislature."
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. 330), 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: Argento and Ross.
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. 4145) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
H. B. 4155, Permitting revenues allocated to volunteer and part time fire departments to be
used for Workers' Compensation premiums and length of service awards.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page four, section eight-b, lines fifty-eight through sixty, by striking out all of subdivision
(14) and inserting in lieu thereof a new subdivision (14), to read as follows:
"(14) Life insurance premiums to provide a benefit not to exceed $20,000 for firefighters;
and".
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4155 - "A Bill to amend and reenact §8-15-8b of the Code of West
Virginia, 1931, as amended, relating to permitting revenues allocated to volunteer and part time fire
departments to be used for Workers' Compensation premiums, certain life insurance premiums,
educational training supplies and fire prevention promotional materials; and revising references."
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. 331), 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: Argento and Ross.
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. 4155) 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. 4194, Codifying the Division of Criminal Justice Services being
incorporated into the Department of Military Affairs and Public Safety.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
The Committee on Government Organization moved to amend the bill striking out everything
after the enacting clause and inserting in lieu thereof the following:
"That §5F-2-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto three new sections, designated §15-9A-1, §15-9A-2
and §15-9A-3, all to read as follows:
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are incorporated in and administered
as a part of the Department of Administration:
(1) Building Commission provided in article six, chapter five of this code;
(2) Public Employees Insurance Agency provided in article sixteen, chapter five of this code;
(3) Governor's Mansion Advisory Committee provided in article five, chapter five-a of this
code;
(4) Commission on Uniform State Laws provided in article one-a, chapter twenty-nine of this
code;
(5) West Virginia Public Employees Grievance Board provided in article three, chapter six-c
of this code;
(6) Board of Risk and Insurance Management provided in article twelve, chapter twenty-nine
of this code;
(7) Boundary Commission provided in article twenty-three, chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one, chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article two, chapter six-b of this
code;
(11) Consolidated Public Retirement Board provided in article ten-d, chapter five of this
code; and
(12) Real Estate Division provided in article ten, chapter five-a of this code.
(b) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered
as a part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter twenty-one of this code, which
includes:
(A) Occupational Safety and Health Review Commission provided in article three-a, chapter
twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety provided in article nine, chapter
twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in article one, chapter
twenty-two-a of this code. The following boards are transferred to the Office of Miners' Health,
Safety and Training for purposes of administrative support and liaison with the office of the
Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review
Committee provided in article six, chapter twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification provided in article seven, chapter
twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine, chapter twenty-two-a of this
code;
(3) The West Virginia Development Office, which includes the Division of Tourism and the
Tourism Commission provided in article two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources Commission provided in article
one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter nineteen of this code;
(6) Geological and Economic Survey provided in article two, chapter twenty-nine of this
code; and
(7) Workforce West Virginia provided in chapter twenty-one-a of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Services;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article two-f, chapter five-b of this code.
(c) The Economic Development Authority provided in article fifteen, chapter thirty-one of
this code is continued as an independent agency within the executive branch.
(d) The Water Development Authority and Board provided in article one, chapter
twenty-two-c of this code is continued as an independent agency within the executive branch.
(e) The following agencies and boards, including all of the allied, advisory and affiliated
entities, are transferred to the Department of Environmental Protection for purposes of administrative
support and liaison with the office of the Governor:
(1) Air Quality Board provided in article two, chapter twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three, chapter twenty-two-c of this
code;
(3) Environmental Quality Board, or its successor board, provided in article three, chapter
twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in article seven, chapter twenty-two-c
of this code;
(6) Shallow Gas Well Review Board provided in article eight, chapter twenty-two-c of this
code; and
(7) Oil and Gas Conservation Commission provided in article nine, chapter twenty-two-c of
this code.
(f) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Education and the Arts:
(1) Library Commission provided in article one, chapter ten of this code;
(2) Educational Broadcasting Authority provided in article five, chapter ten of this code;
(3) Division of Culture and History provided in article one, chapter twenty-nine of this code;
(4) Division of Rehabilitation Services provided in section two, article ten-a, chapter eighteen
of this code.
(g) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are incorporated in and administered
as a part of the Department of Health and Human Resources:
(1) Human Rights Commission provided in article eleven, chapter five of this code;
(2) Division of Human Services provided in article two, chapter nine of this code;
(3) Bureau for Public Health provided in article one, chapter sixteen of this code;
(4) Office of Emergency Medical Services and Advisory Council provided in article four-c,
chapter sixteen of this code;
(5) Health Care Authority provided in article twenty-nine-b, chapter sixteen of this code;
(6) Commission on Mental Retardation provided in article fifteen, chapter twenty-nine of this
code;
(7) Women's Commission provided in article twenty, chapter twenty-nine of this code; and
(8) The Child Support Enforcement Division provided in chapter forty-eight of this code.
(h) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are incorporated in and administered
as a part of the Department of Military Affairs and Public Safety:
(1) Adjutant General's Department provided in article one-a, chapter fifteen of this code;
(2) Armory Board provided in article six, chapter fifteen of this code;
(3) Military Awards Board provided in article one-g, chapter fifteen of this code;
(4) West Virginia State Police provided in article two, chapter fifteen of this code;
(5) Division of Homeland Security and Emergency Management and Disaster Recovery
Board provided in article five, chapter fifteen of this code and Emergency Response Commission
provided in article five-a of said chapter;
(6) Sheriffs' Bureau provided in article eight, chapter fifteen of this code;
(7) Division of Justice and Community Services provided in article nine a, chapter fifteen
of this code;
(7) (8) Division of Corrections provided in chapter twenty-five of this code;
(8) (9) Fire Commission provided in article three, chapter twenty-nine of this code;
(9) (10) Regional Jail and Correctional Facility Authority provided in article twenty, chapter
thirty-one of this code;
(10) (11) Board of Probation and Parole provided in article twelve, chapter sixty-two of this
code; and
(11) (12) Division of Veterans' Affairs and Veterans' Council provided in article one, chapter
nine-a of this code.
(i) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are incorporated in and administered
as a part of the Department of Revenue:
(1) Tax Division provided in article one, chapter eleven of this code;
(2) Racing Commission provided in article twenty-three, chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director provided in article twenty-two,
chapter twenty-nine of this code;
(4) Agency of Insurance Commissioner provided in article two, chapter thirty-three of this
code;
(5) Office of Alcohol Beverage Control Commissioner provided in article sixteen, chapter
eleven of this code and article two, chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided in article three, chapter thirty-one-a of this code;
(7) Lending and Credit Rate Board provided in chapter forty-seven-a of this code;
(8) Division of Banking provided in article two, chapter thirty-one-a of this code;
(9) The State Budget Office provided in article two of this chapter;
(10) The Municipal Bond Commission provided in article three, chapter thirteen of this code;
(11) The Office of Tax Appeals provided in article ten-a, chapter eleven of this code; and
(12) The State Athletic Commission provided in article five-a, chapter twenty-nine of this
code.
(j) The following agencies and boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board, are incorporated in and administered
as a part of the Department of Transportation:
(1) Division of Highways provided in article two-a, chapter seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority provided in article sixteen-a,
chapter seventeen of this code;
(3) Division of Motor Vehicles provided in article two, chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided in article two, chapter seventeen-b of this
code;
(5) Aeronautics Commission provided in article two-a, chapter twenty-nine of this code;
(6) State Rail Authority provided in article eighteen, chapter twenty-nine of this code; and
(7) Port Authority provided in article sixteen-b, chapter seventeen of this code.
(k) Except for powers, authority and duties that have been delegated to the secretaries of the
departments by the provisions of section two of this article, the position of administrator and the
powers, authority and duties of each administrator and agency are not affected by the enactment of
this chapter.
(l) Except for powers, authority and duties that have been delegated to the secretaries of the
departments by the provisions of section two of this article, the existence, powers, authority and duties of boards and the membership, terms and qualifications of members of the boards are not
affected by the enactment of this chapter. All boards that are appellate bodies or are independent
decision makers shall not have their appellate or independent decision-making status affected by the
enactment of this chapter.
(m) Any department previously transferred to and incorporated in a department by prior
enactment of this section means a division of the appropriate department. Wherever reference is
made to any department transferred to and incorporated in a department created in section two,
article one of this chapter, the reference means a division of the appropriate department and any
reference to a division of a department so transferred and incorporated means a section of the
appropriate division of the department.
(n) When an agency, board or commission is transferred under a bureau or agency other than
a department headed by a secretary pursuant to this section, that transfer is solely for purposes of
administrative support and liaison with the Office of the Governor, a department secretary or a
bureau. Nothing in this section extends the powers of department secretaries under section two of
this article to any person other than a department secretary and nothing limits or abridges the
statutory powers and duties of statutory commissioners or officers pursuant to this code.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 9A. Division of Justice and Community Services.
§15-9A-1. Legislative findings.
The West Virginia Division of Justice and Community Services is required to perform certain
administrative and executive functions related to the improvement of the criminal justice and
juvenile justice systems, and various component agencies of state and local government with
research and performance data, planning, funding and managing programs supported by federal and
state granted funds, and through its staff activities on behalf of the Governor's Committee on Crime,
Delinquency and Correction, to provide regulatory oversight of law enforcement training and
certification, community corrections programs established under the provisions of article eleven-c, chapter sixty-two of this code, and the monitoring of facilities for compliance with juvenile detention
facilities standards established by state and federal law. These administrative and executive staffing
functions are necessary to provide for planning and coordination of services among the components
of the criminal and juvenile justice systems; program development and implementation; and
administration of grant funded programs emphasizing safety, prevention, coordination and the
general enhancement of the criminal justice system as a whole, as well as such other federal grant
funded activities as the Governor may from time to time designate for administration by the
Division.
§15-9A-2. Division established; appointment of director.
(a) The Division of Justice and Community Services is created. The purpose of the division
is to provide executive and administrative support to the Governor's Committee on Crime
Delinquency and Correction in the coordination of planning for the criminal justice system, to
administer federal and state grant programs assigned to it by the actions of the Governor or
Legislature, and to perform such other duties as the legislature may from time to time assign to the
Division.
(b) The director of the division shall be named by the Governor to serve at his will and
pleasure.
(c) The director of the division shall take and subscribe to an oath of office in conformity
with article IV, section five of the Constitution of the State of West Virginia.
§15-9A-3 Duties and powers of the director.
(a) The director is responsible for the control and supervision of the division.
(b) The director shall be charged with executive and administrative responsibility to (i) carry
out the specific duties imposed on the Governor's Committee on Crime, Delinquency and Correction
under the provisions of article nine, chapter fifteen; article twenty-nine, chapter thirty; and article
eleven-c, chapter sixty-two of this code; (ii) maintain appropriate liaison with federal, state and local
agencies and units of government, or combinations thereof, in order that all programs, projects and activities for strengthening and improving law enforcement and the administration of criminal justice
may function effectively at all levels of government, and (iii) seek sources of federal grant assistance
programs that may benefit the state when authorized by the Governor and manage the dispersal of
those funds through grant contracts to sub-grantees in a manner consistent with state and federal law,
and with sound and accountable management practices for the efficient and effective use of public
funds.
(c) The director may:
(1) Employ necessary personnel, assign them the duties necessary for the efficient
management and operation of the division;
(2) Work to bridge gaps between federal, state and local units of government, as well as
private/non-profit organizations and the general public;
(3) Provide staff assistance in the coordination of all facets of the criminal and juvenile
justice systems on behalf of the Governor's Committee on Crime Delinquency and Correction,
including but not limited to law enforcement, jails, corrections, community corrections and victim
services;
(4) Acquire criminal justice resources and coordinate the allocation of these resources to
state, local and not-for-profit agencies;
(5) Maintain a web based data base for all community correction programs;
(6) Through the Criminal Justice Statistical Analysis Center, collect, compile, and analyze
crime and justice data in the state, generating statistical and analytical products for criminal justice
professionals professional and policy makers to establish a basis for sound policy and practical
considerations for the criminal justice system and make such recommendations for system
improvement as may be warranted by such research;
(7) Receive and disburse federal and state grants.
Nothing in this chapter shall be construed as authorizing the division to undertake direct
operational responsibilities in law enforcement or the administration of criminal justice."
And by amending the title to read as follows:
Com. Sub. for H. B. 4194 - "A Bill to amend and reenact §5F-2-1 of the Code of West
Virginia, 1931, as amended, and that said code be amended by adding thereto three new sections
designated §15-9A-1, §15-9A-2 and §15-9A-3, all relating to codifying the Division of Justice and
Community Services being incorporated in and administered as a part of the Department of Military
Affairs and Public Safety."
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. 332), 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: Argento and Ross.
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. 4194) passed.
Delegate Boggs moved that the bill take effect July 1, 2010.
On this question, the yeas and nays were taken
(Roll No. 333), 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: Argento and Ross.
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. 4194) takes effect July 1, 2010.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
Com. Sub. for H. B. 4207, Making it unlawful to send obscene, anonymous, harassing and
threatening communications by computer, mobile phone, personal digital assistant or other mobile device.
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 §61-3C-14a of the Code of West Virginia, 1931, as amended, be amended and
reenacted; and that §61-8-16 of said code be amended and reenacted, all to read as follows:
ARTICLE 3C. WEST VIRGINIA COMPUTER AND MOBILE DEVICES CRIME AND
ABUSE ACT.
§61-3C-14a. Obscene, anonymous, harassing and threatening communications by computer
and mobile devices; penalty.
(a) It is unlawful for any person, with the intent to harass or abuse another person to use a
computer,
mobile phone, personal digital assistant or other mobile device to:
(1) Make contact with another without disclosing his or her identity with the intent to harass
or abuse;
(2) Make contact with a person after being requested by the person to desist from contacting
them;
(3) Threaten to commit a crime against any person or property;
or
(4) Cause obscene material to be delivered or transmitted to a specific person after being
requested to desist from sending such material
.; or
(5) Cause software, spyware, a virus, a trojan or similar programs to be installed in the
mobile phone, personal digital assistant or other mobile device of another person without that
person's knowledge and consent which program allows or causes transmission of voice or non-voice
content, conversation, text message, electronic mail or the location of the non-consenting person's
computer, mobile phone or digital assistant or other mobile device at any particular time. The
provisions of this subdivision do not apply to:
(A) Global positioning system software installed in mobile devices by the device's
manufacturer, or
(B) Installation, modification or maintenance of software or programs by a
telecommunications service provider on a mobile, personal digital assistant, or other mobile device
owned or leased by its customer.
(b)(1) For purposes of this section, the 'use of a computer, mobile phone, personal digital
assistant or other mobile device' includes, but is not limited to, the transmission of text messages,
electronic mail, photographs, videos, images or other non-voice data by means of a computerized
communication system, and includes the transmission of such data to another's computer, e-mail
account, mobile phone, personal digital assistant or other mobile device.
(2) For purposes of this section, 'obscene material' means material that:
(A) An average person, applying contemporary adult community standards, would find, taken
as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest, or is
pandered to a prurient interest;
(B) An average person, applying contemporary adult community standards, would find,
depicts or describes, in a patently offensive way, sexually explicit conduct consisting of an ultimate
sexual act, normal or perverted, actual or simulated, an excretory function, masturbation, lewd
exhibition of the genitals or sadomasochistic sexual abuse; and
(C) A reasonable person would find, taken as a whole, lacks literary, artistic, political or
scientific value.
(b)(c) It is unlawful for any person to knowingly permit a computer,
mobile phone or
personal digital assistant or other mobile device under his or her control to be used for any purpose
prohibited by this section.
(c)(d) Any offense committed under this section may be determined to have occurred at the
place at which the contact originated or the place at which the contact was received or intended to
be received.
(d)(e) Any person who violates a provision of this section is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not more than $500 or confined in
a county or regional jail
not more than six months, or both
fined and confined. For a second
or subsequent offense, the
person 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 one year, or both
fined and confined. For
a third or subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be
fined not more than $5,000 or confined in a state correctional facility for not more than two years,
or both fined and confined.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-16. Obscene, anonymous, harassing, repeated and threatening telephone calls; penalty.
(a) It shall be unlawful for any person with intent to harass or abuse another by means of
telephone to:
(1) Make any comment, request, suggestion or proposal which is obscene; or
(2) Make a telephone call, whether or not conversation ensues, without disclosing his identity
and with intent to harass any person at the called number; or
(3) Make or cause the telephone of another repeatedly or continuously to ring, with intent to
harass any person at the called number; or
(4) Make repeated telephone calls, during which conversation ensues, with intent to harass
any person at the called number; or
(5) Threaten to commit a crime against any person or property.
(b) It shall be unlawful for any person to knowingly permit any telephone under his control
to be used for any purpose prohibited by this section.
(c) Any offense committed under this section may be deemed to have occurred at the place
at which the telephone call was made, or the place at which the telephone call was received.
(d) Any person who violates any provision of this section shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not more than five hundred dollars, or
imprisoned confined in
the county a jail not more than six months, or both fined and
imprisoned confined."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4207 - "A Bill to amend and reenact §61-3C-14a of the Code of West
Virginia, 1931; and to amend and reenact §61-8-16 of said code, all relating to crimes using
computers and electronic devices; creating offenses for the unlawful transmission of obscene,
anonymous, harassing and threatening communications and data by mobile phone, personal digital
assistant or other mobile device; clarifying provisions pertaining to the unlawful obscene,
anonymous, harassing and threatening communications by traditional voice communication by
telephone; prohibiting using computers or electronic devices to cause eavesdropping and data
interception programs onto mobile phones and similar devices of another without that person's
knowledge and consent; creating the misdemeanor offense of unlawful impersonation of another by
computer or other electronic means; creating a felony offense for certain repeat offenses using a
computer, mobile phone or other mobile device; and establishing penalties."
On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate
amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
Com. Sub. for H. B. 4223, Increasing the safety of school children that use school buses.
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 §17C-12-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 12. SPECIAL STOPS REQUIRED.
§17C-12-7. Overtaking and passing school bus; penalties; signs and warning lights upon
buses; requirements for sale of buses; mounting of cameras; educational
information campaign; limitation on idling.
(a) The driver of a vehicle, upon meeting or overtaking from either direction any school bus
which has stopped for the purpose of receiving or discharging any school children, shall stop the
vehicle before reaching the school bus when there is in operation on the school bus flashing warning
signal lights, as referred to in section eight of this article, and the driver
shall may not proceed until
the school bus resumes motion, or is signaled by the school bus driver to proceed or the visual
signals are no longer actuated. This section applies wherever the school bus is receiving or
discharging children including, but not limited to, any street, highway, parking lot, private road or
driveway:
Provided, That the driver of a vehicle upon a controlled access highway need not stop
upon meeting or passing a school bus which is on a different roadway or adjacent to the highway and
where pedestrians are not permitted to cross the roadway.
(b) Any driver acting in violation of
this subsection
(a) of this section is guilty of a
misdemeanor and, upon conviction
for a first offense, shall be fined not less than
fifty dollars $150
or more than
two hundred dollars $500, or
imprisoned confined in
the county jail not more than six
months, or both fined and
imprisoned confined. Upon conviction of a second violation of subsection
(a), the driver shall be fined $500, or confined in jail not more than six months, or both fined and
confined. Upon conviction of a third or subsequent violation of subsection (a), the driver shall be
fined $500, and confined not less than twenty-four hours in jail but not more than six months.
(c) In addition to the penalties prescribed in subsections (b) of this section, the Commissioner
of Motor Vehicles shall, upon conviction, suspend the driver's license of the person so convicted:
(1) of a first offense under subsection (b) of this section, for a period of thirty days;
(2) of a second offense under subsection (b) of this section, for a period of ninety days; or
(3) of a third or subsequent offense under subsection (b) of this section, for a period of one
hundred and eighty days.
(d) Any driver of a vehicle who willfully violates the provisions of subsection (a) of this
section and the violation causes serious bodily injury to any person other than the driver, is guilty
of a felony and, upon conviction, shall be confined in a state correctional facility not less than one
year nor more than three years and fined not less than $500 nor more than $2,000.
(e) Any driver of a vehicle who willfully violates the provisions of subsection (a) of this
section, and the violation causes death, is guilty of a felony and, upon conviction, shall be confined
in a state correctional facility not less than one year nor more than ten years and fined not less than
$1,000 nor more than $3,000.
If the identity of the driver cannot be ascertained, then any owner or lessee of the vehicle in
violation of this subsection is guilty of a misdemeanor and, upon conviction shall be fined of not less
than twenty-five dollars nor more than one hundred dollars. The conviction shall not subject the
owner or lessee to further administrative or other penalties for the offense, notwithstanding other
provisions of this code to the contrary.
(b) (f) Every bus used for the transportation of school children shall bear upon the front and
rear of the bus a plainly visible sign containing the words 'school bus' in letters not less than eight
inches in height. When a contract school bus is being operated upon a highway for purposes other
than the actual transportation of children either to or from school, all markings on the contract school
bus indicating 'school bus' shall be covered or concealed. Any school bus sold or transferred to
another owner by a county board of education, agency or individual shall have all flashing warning
lights disconnected and all lettering removed or permanently obscured, except when sold or
transferred for the transportation of school children.
(g) Every county board of education is hereby authorized to mount a camera on any school
bus for the purpose of enforcing this section or for any other lawful purpose.
(h) To the extent that state, federal or other funds are available, the State Police shall conduct an information campaign to educate drivers concerning the provisions of this section and the
importance of school bus safety.
(c) (i) The State Board of Education shall
write a policy promulgate a rule in accordance with
the provisions of article three-b, chapter twenty-nine-a of this code governing the idling of school
buses."
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. 334), 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: Argento and Ross.
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. 4223) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
H. B. 4248, Relating to the solicitation of charitable funds
.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, section two, line seven, after the word "principles" by inserting the words
"issued by the American Institute of Certified Public Accountants".
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. 335), 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: Argento and Ross.
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. 4248) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect from passage, a bill of the House of Delegates as follows:
H. B. 4416, Declaring certain claims against the state and its agencies to be moral obligations
of the state and directing payments thereof.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 336), 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: Argento and Ross.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4416) 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 a title amendment, a bill
of the House of Delegates, as follows:
Com. Sub. for H. B. 4504, Adopting the Uniform State Military Code of Justice into West
Virginia law.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. 4504 - "A Bill to amend and reenact §15-1E-1, §15-1E-2, §15-1E-3,
§15-1E-4, §15-1E-5, §15-1E-6, §15-1E-7, §15-1E-8, §15-1E-9, §15-1E-10, §15-1E-11, §15-1E-12, §15-1E-13, §15-1E-14, §15-1E-15, §15-1E-16, §15-1E-17, §15-1E-18, §15-1E-19, §15-1E-20, §15-
1E-21, §15-1E-22, §15-1E-23, §15-1E-24, §15-1E-25, §15-1E-26, §15-1E-27, §15-1E-28, §15-1E-
29, §15-1E-30, §15-1E-31, §15-1E-32, §15-1E-33, §15-1E-34, §15-1E-35, §15-1E-36, §15-1E-37,
§15-1E-38, §15-1E-39, §15-1E-40, §15-1E-41, §15-1E-42, §15-1E-43, §15-1E-44, §15-1E-45, §15-
1E-46, §15-1E-47, §15-1E-48, §15-1E-49, §15-1E-50, §15-1E-51, §15-1E-52, §15-1E-53, §15-1E-
54, §15-1E-55, §15-1E-56, §15-1E-57, §15-1E-58, §15-1E-59, §15-1E-60, §15-1E-61, §15-1E-62,
§15-1E-63, §15-1E-64, §15-1E-65, §15-1E-66, §15-1E-67, §15-1E-68, §15-1E-69, §15-1E-70, §15-
1E-71, §15-1E-72, §15-1E-73, §15-1E-74, §15-1E-75, §15-1E-76, §15-1E-77, §15-1E-78, §15-1E-
79, §15-1E-80, §15-1E-81, §15-1E-82, §15-1E-83, §15-1E-84, §15-1E-85, §15-1E-86, §15-1E-87,
§15-1E-88, §15-1E-89, §15-1E-90, §15-1E-91, §15-1E-92, §15-1E-93, §15-1E-94, §15-1E-95, §15-
1E-96, §15-1E-97, §15-1E-98, §15-1E-99, §15-1E-100, §15-1E-101, §15-1E-102, §15-1E-103, §15-
1E-104, §15-1E-105, §15-1E-106, §15-1E-107, §15-1E-108, §15-1E-109, §15-1E-110, §15-1E-111,
§15-1E-112, §15-1E-113, §15-1E-114, §15-1E-115, §15-1E-116, §15-1E-117, §15-1E-118, §15-1E-
119, §15-1E-120, §15-1E-121, §15-1E-122, §15-1E-123, §15-1E-124, §15-1E-125, §15-1E-126,
§15-1E-127, §15-1E-128, §15-1E-129, §15-1E-130, §15-1E-131, §15-1E-132, §15-1E-133, §15-1E-
134, §15-1E-135, §15-1E-136, §15-1E-137 and §15-1E-138, of the Code of West Virginia, 1931,
as amended; and to amend said code by adding thereto eighteen new sections, designated §15-1E-
50a, §15-1E-57a, §15-1E-58a, §15-1E-58b, §15-1E-67a, §15-1E-76a, §15-1E-76b, §15-1E-112a,
§15-1E-139, §15-1E-140, §15-1E-141, §15-1E-142, §15-1E-143, §15-1E-144, §15-1E-145, §15-1E-
146, §15-1E-147 and §15-1E-148, all relating to adopting the Uniform State Military Code of
Justice; defining terms; designating persons subject to this code and jurisdiction; noting the territorial
applicability of the code; detailing apprehension and restraint procedures; establishing nonjudicial
punishment authority; stating court-martial jurisdiction; prescribing appointment and composition
of courts-martial; describing pretrial and trial procedure; specifying sentences after conviction;
delineating post-trial procedure and review of courts-martial; establishing punitive articles; and
creating miscellaneous provisions."
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. 337), and there were--yeas
97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento and Ross.
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. 4504) 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. 4512, Relating to school bus operators.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page thirteen, section eight, line two hundred twenty-one, by striking out the word
"Director" and inserting in lieu thereof the word "director".
On page twenty-two, section eight, lines three hundred eighty-one through three hundred
eighty-seven, by striking out all of subdivision (75) and inserting in lieu thereof a new subdivision
(75), to read as follows:
"(75) 'School bus supervisor' means a qualified person:
(A) Employed to assist in selecting school bus operators and routing and scheduling school
buses, operate a bus when needed, relay instructions to bus operators, plan emergency routing of
buses and promote good relationships with parents, students, bus operators and other employees; and
(B) Certified to operate a bus or previously certified to operate a bus;".
On page twenty-four, section eight, line four hundred twenty-four, by striking out the word
"must" and inserting in lieu thereof the word "shall".
On page twenty-four, section eight, line four hundred twenty-six, by striking out the words
"of education".
On page twenty-four, section eight, line four hundred twenty-nine, after the word "mechanic"
by striking out the comma and inserting in lieu thereof the word "or".
On pages thirty through forty-three, by striking out all of section eight-a.
And,
By striking out the enacting section and inserting in lieu thereof a new enacting section, to
read as follows:
"That §18A-4-8, §18A-4-8b and §18A-4-8e of the Code of West Virginia, 1931, as amended,
be amended and reenacted, all to read as follows" and a semicolon.
On page thirteen, section eight, line two hundred twenty-two, by striking out the word
"regularly" and inserting in lieu thereof the word "exclusively".
And,
On page fourteen, section eight, line two hundred twenty-four, after the word "subsection"
by changing the semicolon to a colon and inserting the following proviso: "
Provided, That nothing
in this paragraph prohibits a person in this position from being multi classified" and a semicolon.
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4512 - "A Bill to amend and reenact §18A-4-8, §18A-4-8a, §18A-4-8b
and §18A-4-8e of the Code of West Virginia, 1931, as amended, all relating to school service
personnel; limiting assignments of director or coordinator of services; requiring school bus
supervisor to be certified to operate a bus; requiring supervisor of transportation and
multiclassification position that includes this title first employed after certain date to have five years
of experience working in transportation department and defining experience; defining itinerant
status, assignments, posting, limit on positions, and exclusions; providing minimum pay for service personnel engaged in the training of bus operators for certification; requiring additional content of
notice of a job vacancy generally and aide classification category specifically; and modifying test
frequency for re-certifying a bus operators."
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. 338), and there were--yeas
97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes.
Absent And Not Voting: Argento and Ross.
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. 4512) passed.
Delegate Boggs moved that the bill take effect July 1, 2010.
On this question, 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: Argento and Ross.
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. 4512) takes effect July 1, 2010.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
Com. Sub. for H. B. 4577, Relating to elevator inspections and classifications of licensure
.On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
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. 4577, Relating to elevator inspections and classifications of licensure.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
On page one, by striking out the enacting section and inserting in lieu thereof a new enacting
section, to read as follows:
"That §21-3C-1, §21-3C-2a, §21-3C-10a and §21-3C-11 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows" and a semicolon.
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4577 - "A Bill to amend and reenact §21-3C-1, §21-3C-2a, §21-3C-10a
and §21-3C-11 of the Code of West Virginia, 1931, as amended, all relating to elevators; exempting
platform lifts from the definition of elevator; prohibiting certain elevators from being installed in
certain settings; requiring inspections on certain elevators; creating different classifications of
licensure; and providing rule-making authority to the division of labor."
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. 340), and there were--yeas
87, nays 11, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Carmichael, Cowles, Ireland, McGeehan, J. Miller, Porter, Shott,
Sobonya and Sumner.
Absent And Not Voting: Argento and Ross.
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. 4577) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 341), and there were--yeas 91, nays
7, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Cowles, McGeehan, J. Miller, Porter, Shott, Sobonya and Sumner.
Absent And Not Voting: Argento and Ross.
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. 4577) 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.
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. 4652, Establishing a school calendar committee for each county.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
"
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-45a. County school calendar committee; county-wide vote; implementation in districts
served by a multi-county career and technical education center.
(a) The county superintendent of each county shall create one county school calendar
committee. The committee shall develop multiple school calendar options for presentation to all
employees of the county board for vote. All calendars presented to the employees for selection shall
comply with all applicable sections of this code, including but not limited to, section forty-five of
this article.
(b) Each county school calendar committee shall consist of at least seven and no more than
eleven members. The committee shall be comprised of teachers, service personnel, administrators,
and two designees chosen by the county superintendent, at least one of whom shall be a parent,
guardian or custodian of a student enrolled in the district. The county board employee membership
of the committee shall be proportionally representative of the number of county board employees
in each job category represented on the committee. Except for the designees chosen by the county superintendent, members of the committee shall be determined by election in accordance with the
following:
(1) The county superintendent shall determine the number of member teachers, administrators
and service personnel necessary for proportional representation of those respective classes of
employment in the county;
(2) The county superintendent shall solicit nominations of teachers and administrators to
serve on the committee from the faculty senates of the schools of the county and of service personnel
to serve on the committee from the service personnel of the county;
(3) Teachers are eligible to vote for the nominated teachers to fill the teacher positions on the
committee, administrators are eligible to vote for the nominated administrators to fill the
administrator positions on the committee and service personnel are eligible to vote for the nominated
service personnel to fill the service personnel positions on the committee; and
(4) The superintendent shall prepare and distribute the ballots and tabulate the votes for
membership in the same manner he or she prepares and distributes the ballots and tabulates the votes
for professional staff development councils and service personnel staff development councils
pursuant to sections eight and nine, article three, chapter eighteen-a of this code.
(c) The county school calendar committee shall generate at least three calendar options for
presentation to the employees of the county board for a county-wide vote. The election shall be
administered by the county superintendent. The county superintendent shall provide a reasonable
time period for each employee to have the opportunity to vote, and shall establish a clearly stated
deadline for the return of the ballots. Voting shall be conducted by a secret ballot election, and is
optional to each employee. At least two representatives from the committee shall oversee the
counting of returned votes. The calendar option that receives the highest number of votes returned
to the county superintendent is the calendar option selected by the employees in the district, except
as provided in subsection (e) of this section for the votes of districts served by the same multi-county
career and technical education center.
(d) If the county board or the state board rejects a calendar selected by the employees in the
district, the county school calendar committee shall generate new calendar options for consideration
of the employees and the process set forth in this section shall continue until a selected school
calendar is approved by the county board and the state board. The county board shall approve a
school calendar prior to June 1 of each year. If the state board has delegated approval of school
calendars to the state superintendent pursuant to section forty-five of this article, the reference in this
subsection to the state board rejection and approval of a school calendar means the state
superintendent's rejection and approval of a school calendar.
(e) For districts that are served by a multi-county career and technical education center and
need to adopt a school calendar that is uniform to the school calendars of the other districts being
served by the same multi-county career and technical education center, all of the provisions of this
section apply, subject to the following:
(1) All of the county school calendar committees of the districts that are served by the same
multi-county career and technical education center shall collaborate in generating the required
minimum three calendar options;
(2) The calendar options presented to the employees of a county board of a district served by
a multi-county career and technical education center for a vote shall be identical to the calendar
options presented to the employees of the other county boards of districts served by the same multi-
county career and technical education center; and
(3) The county superintendents of the districts served by the same multi-county career and
technical education center shall add the vote totals for each calendar option from each of the districts
and the calendar option that receives the highest number of the combined votes is the calendar option
selected by the employees in all of those districts served by the same multi-county career and
technical education center."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4652 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-5-45a, relating to school calendars; requiring each
county superintendent to create a county school calendar committee; providing for designation and
election of members; requiring the committee to develop multiple school calendar options for
presentation to all employees for vote; requiring the generation of new calendar options if the county
board or state board rejects the selected calendar; requiring the process to continue until a school
calendar is approved by the county board and state board; requiring county board approval of school
calendar prior to June 1 of each year; and establishing process for school districts served by a multi-
county career and technical education center."
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. 342), and there were--yeas
86, nays 12, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Carmichael, Cowles, Ellem, Ireland, Lane, J. Miller, Porter,
Schoen, Shott and Walters.
Absent And Not Voting: Argento and Ross.
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. 4652) passed.
Delegate Boggs moved that the bill take effect July 1, 2010.
On this question, the yeas and nays were taken
(Roll No. 343), and there were--yeas 91, nays
7, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Cowles, Ellem, Ireland, J. Miller, Porter, Schoen and Shott.
Absent And Not Voting: Argento and Ross.
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. 4652) takes effect July 1, 2010.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, the
following bills of the House of Delegates:
Com. Sub. for H. B. 2663, Expanding the power of municipal parking authority officers,
H. B. 4018, Establishing that possession of a mixture or preparation intended for human
consumption containing salvia divinorum is unlawful,
H. B. 4034, Authorizing any municipality to enact by ordinance a vacant property registration
program,
H. B. 4039, Increasing the number of persons that may be appointed to the Marshall County
Park and Recreation Board,
H. B. 4138, Relating to the practice of medical imaging and radiation therapy,
Com. Sub. for H. B. 4172, Authorizing the Division of Motor Vehicles to issue special
license plates for members of certain organizations upon approval of the commissioner,
Com. Sub. for H. B. 4285, Relating to the licensing of residential mortgage brokers, lenders
and loan originators by the Division of Banking,
H. B. 4373, Eliminating the twelve-month look-back period for certain children who have
had employer sponsored insurance,
Com. Sub. for H. B. 4557, Reviewing all of the Department of Health and Human Resources
requests for proposals or change orders valued at over $500,000 prior to their release,
H. B. 4559, Relating to the requirements to be certified as a registered forester,
Com. Sub. for H. B. 4615, Authorizing political subdivisions to establish risk pools to insure
their workers' compensation risks,
And,
Com. Sub. for H. B. 4630, Relating to refunding of appraisal fees.
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. 61 - "Urging the U.S. Environmental Protection Agency to not veto the permit
issued by the U.S. Army Corps of Engineers for the Spruce Mine in Logan County, West Virginia."
Whereas, The U.S. Army Corps of Engineers issued a permit to the Spruce Mine in Logan
County, West Virginia after years of intensive review, including the conclusion of a full
environmental impact statements; and
Whereas, In the course of its deliberations regarding the Spruce Mine, the U.S.
Environmental Protection Agency has raised concerns regarding water quality; and
Whereas, Interpretations and implementation of West Virginia's water quality standards is
the responsibility of the West Virginia Legislature and the West Virginia Department of
Environmental Protection, who has previously determined that the Spruce Mine complies with the
water quality standards, including the narrative standards approved by the Legislature and
implemented by the West Virginia Department of Environmental Protection; and
Whereas, The permit has been in place for two years. The mine has become operational
and employees have been hired; and
Whereas, If the permit issued by the U.S. Army Corps of Engineers is vetoed by the U.S.
Environmental Protection Agency, the loss of jobs and investments at Spruce Mine Company in
Logan County, West Virginia, will have a major impact, not only to Logan County, West Virginia,
but will further impact the financial stability of the State of West Virginia in an unstable economy;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby urges the U.S. Environmental Protection Agency to not veto the
permit issued by the U.S. Army Corps of Engineers for the Spruce Mine in Logan County, West
Virginia; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers and the
members of the West Virginia Delegation to the Congress of the United States, the President of the
United States and the U.S. Council of Environmental Quality.
Committee Reports
Delegate 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 12
th
day of March, 2010, presented to His Excellency, the Governor, for his action, the following bills,
signed by the President of the Senate and the Speaker of the House of Delegates:
(Com. Sub. for S. B. 89), Relating to reinstating former police chiefs or deputy chiefs to
previously held positions,
(Com. Sub. for S. B. 349), Requiring child care centers have written evacuation plan,
(Com. Sub. for S. B. 514), Clarifying certain language in Controlled Substances Monitoring
Act,
(Com. Sub. for S. B. 543), Authorizing Energy and Water Savings Revolving Loan Fund
Program and PROMISE rules for Higher Education Policy Commission,
(Com. Sub. for S. B. 553), Extending time to purchase full service credit in Teachers'
Defined Contribution Retirement System,
And,
(Com. Sub. for S. B. 631), Updating process for adopting textbooks and other instructional
material.
Resolutions Introduced
Delegates Walters, Armstead and Lane offered the following resolution, which was read by
its title and referred to the Committee on Rules:
H. C. R. 133 - "Requesting the Joint Committee on Government and Finance to study the
mowing practices of the West Virginia Division of Highways to determine the potential cost savings to the state by increasing efficiency of mowing along West Virginia's expressway system."
Whereas, The West Virginia Division of Highways spends in excess of one million a year
mowing areas along West Virginia's expressway system; and
Whereas, The costs associated with mowing these areas has increased substantially in recent
years; and
Whereas, The utilization of a responsible mowing policy which enhances efficiency relating
to the distance from the shoulder of the highway that is mowed, addresses mowing on steep slopes,
and considers the frequency of mowing may result in significant savings to the State of West
Virginia; and
Whereas, Such a mowing policy should be followed in a manner that does not adversely
affect sight distance, safety, serviceability or functionality of the highway; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
mowing practices of the West Virginia Division of Highways to determine the potential cost savings
to the state by increasing efficiency in mowing along West Virginia's expressway system; and, be
it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expense 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.
Special Calendar
Third Reading
At the request of Delegate Boggs, and by unanimous consent, the House of Delegates
proceeded to consideration of
Com. Sub. for S. B. 394, Authorizing DMV use certain program to identify uninsured vehicles; on third reading, with an amendment pending and further right to amend,
was reported by the Clerk.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page twelve, section two, lines eight through thirteen, by striking
out the paragraph in its entirety and inserting in lieu thereof the following language:
"For the purposes of this article, commercial auto coverage is defined as any coverage
provided to an insured, regardless of number of vehicles or entity covered, under a commercial
coverage form and rated from a commercial manual approved by the Department of Insurance. This
article shall not apply to vehicles insured under commercial auto coverage; however, insurers of such
vehicles may participate on a voluntary basis."
And,
On page twenty, line eighty-seven, section six-a, by striking out the word "nine" and inserting
in lieu thereof the word "eighteen".
On motion of Delegate Miley, the bill was amended on page eighteen, section six-a, line
forty-seven, by striking out the subsection designation (d) and inserting in lieu thereof, the subsection
designation (e).
On page twenty, section six-a, line seventy-eight, by striking out the subsection designation
(e) and inserting in lieu thereof, the subsection designation (f).
On page twenty-one, section six-a, line one hundred seven, by striking out the subsection
designation (d) and inserting in lieu thereof, the subsection designation (g).
And,
On page twenty-two, section six-a, line one hundred fifteen, by striking out the subsection
designation (f) and inserting in lieu thereof, the subsection designation (h).
There being no further amendments, and having been engrossed, the bill 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 91, nays 7, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Hartman, Louisos, McGeehan, Moye, Perry, Porter and Staggers.
Absent And Not Voting: Argento and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 394) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
At the request of Delegate Boggs, and by unanimous consent, the House of Delegates
proceeded to consideration of bills on third reading with amendments pending.
Com. Sub. for S. B. 435, Relating to speed-detecting device use law;
on third reading,
coming up in regular order, with an amendment pending and the further right to amend, was reported
by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
on page two, section seven, lines seven and eight, by removing the strikethrough from the following
language:
"in classes one, two and three, as defined in chapter eight-a of this code" and a comma.
And further, by inserting directly after the reinstated language the following:
"by police officers of incorporated class four municipalities except upon controlled access
or partially controlled access highways" and a comma.
Delegate D. Walker moved to amend the Judiciary Committee amendment, in the inserted
new language, following the word the first word "access", by inserting the words "any state road,
any U. S. Highway" and a comma; which did not prevail.
The question before the House being the adoption of the Judiciary Committee amendment,
the same was put and prevailed.
There being no further amendments, the bill 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 84, nays 13, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Blair, Cowles, Hutchins, Louisos, Manypenny, J. Miller, Moye, Perry, Porter, Romine,
Shaver, Smith and Staggers.
Absent And Not Voting: Argento, Doyle and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 435) 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. 557, Clarifying legislative vacancy procedures
;
on third reading, coming
up in regular order, with an amendment pending and the further right to amend, was reported by the
Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 10. FILLING VACANCIES.
§3-10-5. Vacancies in State Legislature.
(a) Any vacancy in the office of State Senator or member of the House of Delegates shall be
filled by appointment by the Governor, in each instance from a list of three legally qualified persons
submitted by the party executive committee of the party with which the person holding the office
immediately preceding the vacancy was affiliated. Such list of qualified persons to fill the vacancy
shall be submitted to the Governor within fifteen days after the vacancy occurs and the Governor
shall duly make his or her appointment to fill the vacancy from the list of legally qualified person
within five days after the list is received. If the list is not submitted to the Governor within the fifteen day period, the Governor shall appoint within five days thereafter a legally qualified person
of the same political party as the person vacating the office.
(b) of the delegate district in In the case of a member of the House of Delegates, the list shall
be submitted by the party executive committee of the delegate district in which the vacating member
resided at the time of his or her election or appointment. The appointment to fill a vacancy in the
House of Delegates is for the unexpired term.
(c) and by the party executive committee of the state senatorial district in In the case of a
State Senator, the list shall be submitted by the party executive committee of the state senatorial
district in which the vacating senator resided at the time of his or her election or appointment. of the
party with which the person holding the office immediately preceding the vacancy was affiliated, and
of the county or state senatorial district, respectively, in which he resided at the time of his election
or appointment. If the vacating member of the House of Delegates resided in a county only a portion
of which is included in his delegate district, all three of the qualified persons submitted shall be
residents of that portion of the county in which the vacating delegate resided at the time of his
election or appointment to the House of Delegates. The appointment to fill a vacancy in the House
of Delegates shall be for the unexpired term. Such list of legally qualified persons to fill the vacancy
shall be submitted to the Governor within fifteen days after such vacancy occurs and the Governor
shall duly make his appointment to fill such vacancy from such list of legally qualified persons
within five days after same is received. If such list is not submitted to the Governor within the
fifteen day period, the Governor shall appoint within five days thereafter a legally qualified person
of the political party of the person vacating the office. If the unexpired term in the office of the State
Senator will be for less than two years and two months, the appointment shall be is for the unexpired
term. If the unexpired term will be for a period equal to or longer than two years and two months,
the appointment shall be is until the next general election and until the election and qualification of
a successor to the person appointed, at which general election the vacancy shall be filled by election
for the unexpired term. Notice of an election to fill a vacancy in the office of State Senator shall be given by the Governor by proclamation and shall be published prior to such before the election as
a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine
of this code, and the publication area for such the publication shall be each county in the senatorial
district. Nominations for candidates to fill such a vacancy shall be made in the manner prescribed
for nominating a candidate to fill a vacancy in the office of Governor to be voted for at a general
election. The state senatorial district executive committee of the political party shall discharge the
duties incident to State Senator nominations devolving upon the party state executive committee in
nominating a candidate for a state office."
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 346),
and there were--yeas 89, nays 9, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Anderson, Andes, Blair, Border, Ireland, Michael, Moore, Schoen and Susman.
Absent And Not Voting: Argento and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 557) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 557 - "A Bill to amend and reenact §3-10-5 of the Code of West
Virginia, 1931, as amended, clarifying the procedures for the filling of vacancies in the State
Legislature."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Delegate Boggs asked and obtained unanimous consent that, for the remainder of the session,
members of Conference Committee be permitted to vote on any question or issue before the House
which they may have missed as a direct result of their duties on Conference Committees, provided
that such members notify the Clerk of the House in writing as to how they wished to vote and on the
day the votes were missed, and that any such vote not change the outcome on any question.
Third Reading
Com. Sub. for S. B. 649, Establishing motor vehicle search criteria; on third reading, coming
up in regular order, with the right to amend, was reported by the Clerk.
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. 347),
and there were--yeas 78, nays 20, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Armstead, Ashley, Azinger, Carmichael, Duke, Ellem, Evans, Hamilton, Ireland,
McGeehan, C. Miller, J. Miller, Overington, Porter, Schadler, Shott, Sobonya, Sumner, D. Walker
and Walters.
Absent And Not Voting: Argento and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 649) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 649 - "A Bill to amend of the Code of West Virginia, 1931, as amended,
by adding thereto two new sections, designated §62-1A-10 and §62-1A-11, all relating to search of
motor vehicles by law enforcement officers with consent; providing for the development of a
standardized form of a written consent to search a motor vehicle with the permission of the vehicle
operator; requiring written or audio recording of a vehicle operator's permission or consent to search
of motor vehicles by law-enforcement officers when appropriate; providing exceptions; addressing
the effect of an officer's failure to document oral or written consent; providing for the establishment
of appropriate, forms, standards and criteria by the Governor's Committee on Crime, Delinquency
and Corrections; requiring legislative and emergency rules; and establishing effective date."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 328, Relating to professional licensing boards posting fee increase proposals, on third reading, coming up in regular order, with an amendment pending and the further
right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending the bill on page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
"That §30-1-15 of the Code of West Virginia, 1931, as amended, be repealed; that §30-1-2a,
§30-1-5, §30-1-6, §30-1-8, §30-1-11 and §30-1-14 of said code be amended and reenacted; that said
code be amended by adding thereto two new sections, designated §30-1-19 and §30-1-20; that
§30-27-6 and §30-27-9 of said code be amended; all to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF
EXAMINATION OR REGISTRATION REFERRED TO IN
CHAPTER.
§30-1-2a. Required orientation session.
(a)
After Between April 1 and
not later than the first day of December
31 of each year, the
Auditor shall provide at least one orientation session on relevant state law and rules governing state
boards.
and commissions All state agencies shall cooperate with and assist in providing the
orientation session if the Auditor requests.
(b)
After the effective date of this section, All chairs or chief financial officers of
state boards
and commissions newly created by the Legislature shall attend an orientation session designed to
inform the
state boards
and commissions of the duties and requirements imposed
on state boards and
commissions by state law and rules
The chair or chief financial officer of the newly created board
or commission shall attend an orientation session at the earliest possible date following the creation
of the board.
or commission
(c) The orientation session shall include a minimum of thirty minutes of instructional time
dedicated to the statutory duty of boards to investigate and resolve complaints, including procedures
for investigations, administrative hearings and remedies, due process protections, and the duty to provide public access to records of the disposition of complaints, as set forth in section five of this
article.
(d) (c) Topics for the orientation session may include, but are not limited to,
the statutory
duty of boards to investigate and resolve complaints, including procedures for investigations,
administrative hearings and remedies, and the duty to provide public access to records of the
disposition of complaints; the official conduct of members, state budgeting and financial procedures,
purchasing requirements, open meetings requirements, ethics, rule-making procedures, records
management, annual reports and any other topics the Auditor determines
to be essential in the
fulfillment of the duties of the members of state boards and commissions are necessary.
(e) (d) The orientation session
shall be is open to any member of new or existing boards
and
commissions and each board
or commission may approve expense reimbursement for the attendance
of one or more of its members.
The chair or chief financial officer of each existing board or
commission shall attend an orientation session within two years following the effective date of this
section.
(f) (e) No later than December 31 of each year, the Auditor shall provide to the chairs of the
Joint Standing Committee on Government
Operations Organization a list of the names of board
or
commission members attending,
together with the names of the boards
and commissions represented,
and the orientation session or sessions offered by the Auditor during the previous year.
(g) (f) The Auditor may charge a registration fee for the orientation session to cover the cost
of providing the orientation session. The fee may be paid from funds available to a board.
or
commission
(h) (g) Notwithstanding the member's normal rate of compensation for serving on a board,
a member attending the orientation session may be reimbursed for necessary and actual expenses,
as long as the member attends the complete orientation session.
(i) (h) Ex officio members who are elected or appointed state officers or employees, and
members of boards
or commissions that have purely advisory functions with respect to a department or agency of the state, are exempt from the requirements of this section.
§30-1-5. Meetings; quorum; investigatory powers; duties.
(a)
Every Each board
referred to in this chapter shall hold at least one meeting each year, at
such time and place as it may prescribe by rule,
for the examination of applicants who desire to
practice their respective professions or occupations in this state and to transact any
other business
which may legally come before it. The board may hold additional meetings as may be necessary,
which shall be called by the
chair secretary at the direction of the president or upon the written
request of
any three a majority of the board members. A
simple majority of
the members of the
constituent membership serving on the board
at a given time constitutes a quorum for the transaction
of
its business.
(b)
The Each board
is authorized to may compel the attendance of witnesses,
to issue
subpoenas
and subpoenas duces tecum, to conduct investigations,
and hire an investigator and
to take
testimony and other evidence concerning any matter within its jurisdiction. The
president chair and
secretary of the board
are authorized to may administer oaths for these purposes.
(c)
Every Each board
referred to in this chapter has a duty to shall investigate and resolve
complaints which it receives and shall, within six months of the complaint being filed, send a status
report to the party filing the complaint by certified mail with a signed return receipt and within one
year of the status report's return receipt date issue a final ruling, unless the party filing the complaint
and the board agree in writing to extend the time for the final ruling.
(d)
Every Each board shall
maintain a business office open to the public and shall provide
public access to
the record of its public records, including the disposition of the complaints which
it receives in accordance with the provisions of chapter twenty-nine-b of this code.
(e) Every Each board has a duty to report violations of individual practice acts contained in
this chapter to the board by which the individual may be licensed and shall do so in a timely manner
upon receiving notice of such violations.
Every Each person licensed or registered by a board has
a duty to report to the board which licenses or registers him or her a known or observed violation of the practice act or the board's rules by any other person licensed or registered by the same board and
shall do so in a timely manner.
Law-enforcement agencies or their personnel and courts shall report
in a timely manner within ten days to the appropriate board any violations of individual practice acts
by any individual. Any person who reports or provides information in good faith is not subject to
civil damages.
(e) (f) Whenever a board referred to in this chapter obtains information that a person subject
to its authority has engaged in, is engaging in or is about to engage in any act which constitutes or
will constitute a violation of the provisions of this chapter which are administered and enforced by
that board, it may apply to the circuit court for an order enjoining the act. Upon a showing that the
person has engaged, is engaging or is about to engage in any such act, the court
shall may order an
injunction, restraining order or other order as the court
may deem considers appropriate.
§30-1-6. Application for an authorization to practice; fees; prohibiting discrimination.
(a)
Every Each applicant for
license or registration an authorization to practice under the
provisions of this chapter, shall apply
for the license or registration in writing to the proper board
and shall transmit with his or her application
an examination fee which the board is authorized to
charge for an examination or investigation into the applicant's qualifications to practice the
authorized fees.
(b) Each board
referred to in this chapter is authorized to establish by
legislative rule a
deadline for application for examination which shall be no less than ten nor more than ninety days
prior to the date of the examination.
(c)
Boards Notwithstanding the specific fees set forth in the articles which govern the
licensing boards in this chapter, each board may set
fees by
legislative rule
fees relating to the
licensing or registering of individuals, which shall be sufficient to enable the
boards board to
effectively carry out
effectively their its duties and responsibilities of
licensure or registration
authorizing practices and
discipline of disciplining individuals subject to
their its authority.
Provided, That when any board proposes to promulgate a
(d) At least thirty days prior to a proposed rule regarding fees
for licensing or registration,
that is filed with the Secretary of State, a board shall notify its membership of the proposed rule by:
(1) Mailing a copy of the proposed rule to
the membership at the time that the proposed rule
is filed with the Secretary of State; for publication in the state register in accordance with section
five, article three, chapter twenty-nine-a of this code its membership; or
(2) Posting the proposed rule on its website and notifying its membership by:
(A) Mailing a postcard;
(B) Emailing a notice; or
(C) Placing a notice in its newsletter.
(d) In addition to any other information required, the applicant's social security number shall
be recorded on the application:
Provided, That a board shall redact social security numbers on
copies provided to the public.
(e) No board may discriminate against any applicant because of political or religious opinion
or affiliation, marital status, race, color, gender, creed, age, national origin, disability or other
protected group status.
(f)
Any A board may deny the application for
license or registration an authorization to
practice of an applicant whose
license or registration authorization to practice in any other state,
territory, jurisdiction or foreign nation has been revoked by the licensing authority
thereof. The
application may be denied by a board without a hearing unless the applicant requests a hearing within
thirty days of the denial.
Any A hearing must be conducted pursuant to the provisions of section
eight of this article or
the provisions contained in the rules of the board.
§30-1-8. Denial, suspension or revocation of a license or registration; probation; proceedings;
effect of suspension or revocation;
authority to hire hearing examiner; transcript;
report; judicial review.
(a)
Every Each board
referred to in this chapter may suspend or revoke the
license
authorization to practice of any person who has been convicted of a felony or who has been found to have engaged in conduct, practices or acts constituting professional negligence or a willful
departure from accepted standards of professional conduct. Where any person has been convicted
of a felony or has been found to have engaged in such conduct, practices or acts,
every the board
referred to in this chapter may enter into consent decrees,
to reprimand,
to enter into probation
orders,
to levy fines
not to exceed one thousand dollars per day per violation or any of these, singly
or in combination. Each board may also assess administrative costs. Any costs which are assessed
shall be placed in the special account of the board and any fine which is levied shall be deposited in
the State Treasury's General Revenue Fund.
(b) For purposes of this section, the word 'felony' means a
felony or crime punishable as a
felony under the laws of this state, any other state or the United States.
(c)
Every Each board
referred to in this chapter may promulgate rules in accordance with the
provisions of chapter twenty-nine-a of this code to delineate conduct, practices or acts which, in the
judgment of the board, constitute professional negligence, a willful departure from accepted
standards of professional conduct or which may render an individual unqualified or unfit for
licensure, registration or other an authorization to practice.
(d)
Every Each board
referred to in this chapter may revoke
the license or registration an
authorization to practice of an individual
licensed or otherwise lawfully practicing within this state
whose
license or registration authorization to practice in any other state, territory, jurisdiction or
foreign nation has been revoked by the licensing authority.
thereof
(e) Notwithstanding any other provision of law to the contrary, no
certificate, license,
registration or authority authorization to practice issued under the provisions of this chapter may be
suspended or revoked without a prior hearing before the board or court which issued the certificate,
license, registration or authority, except:
(1) A board
is authorized to may suspend or revoke
a certificate, license, registration or
authority an authorization to practice prior to a hearing if the person's continuation in practice
constitutes an immediate danger to the public; or
(2)
After due diligence, If a board,
after reviewing all reasonably available relevant
information, cannot locate a person
licensed authorized to practice under the provisions of this
chapter within sixty days of a complaint being filed against the
licensee person,
then the board may
suspend the
license, certificate, registration or authority authorization to practice of the person
without holding a hearing.
After due diligence, If a board,
still after reviewing all reasonably
available relevant information, cannot locate the person
licensed authorized to practice under the
provisions of this chapter thirty days after the suspension of the person's
license, certificate,
registration or authority, then authorization to practice, the board may revoke the
license, certificate,
registration or authority authorization to practice of the person without holding a hearing.
(f) In all proceedings before a board or court for the suspension or revocation of any
certificate, license, registration or authority authorization to practice issued under the provisions of
this chapter, a statement of the charges against the holder of the
certificate, license, registration or
authority authorization to practice and a notice of the time and place of hearing shall be served upon
the person as a notice is served under section one, article two, chapter fifty-six of this code at least
thirty days prior to the hearing.
and He or she may appear with witnesses and be heard in person, by
counsel, or both. The board may take oral or written proof, for or against the
accused holder of the
authorization to practice, as it may consider advisable. If upon hearing the board finds that the
charges are true, it may suspend or revoke the
certificate, license, registration or authority and
suspension or revocation shall take from the person all rights and privileges acquired thereby
authorization to practice.
(g)
The board may conduct the hearing or elect to have a hearing examiner or an
administrative law judge conduct the hearing. If the hearing is conducted by a hearing examiner or
an administrative law judge:
(1) The hearing examiner or administrative law judge shall be licensed to practice law in this
state, and shall conform to the Code of Conduct for Administrative Law Judges as set forth by the
Ethics Commission in legislative rule;
(2) At the conclusion of a hearing, the hearing examiner or administrative law judge shall
prepare a proposed written order containing recommended findings of fact and conclusions of law,
and may contain recommended disciplinary sanctions if the board so directs;
(3) The board may accept, reject, modify or amend the recommendations of the hearing
examiner or administrative law judge; and
(4) If the board rejects, modifies or amends the recommendations, the board shall state in the
order a reasoned, articulate justification based on the record for the rejection, modification or
amendment.
(h) Pursuant to the provisions of section one, article five, chapter twenty-nine-a of this code,
informal disposition may
also be made by the board of any contested case by stipulation, agreed
settlement, consent order or default.
Further, The board may suspend its decision and place a
licensee found by the board to be in violation of the applicable practice
act or rules of the board on
probation.
(h) (i) Any person denied
a license, certificate, registration or authority an authorization to
practice who believes the denial was in violation of this article or the article under which the
license,
certificate, registration or authority licensee is authorized shall be entitled to a hearing on the action.
denying the license, certificate, registration or authority Hearings under this subsection are in
accordance with the provisions for hearings which are set forth in this section.
(i) (j) A stenographic report of each proceeding on the denial, suspension or revocation
of
a certificate, license, registration or authority shall be made at the expense of the board and a
transcript of the hearing retained in its files. The board shall make a written report of its findings,
which shall constitute part of the record.
(j) (k) All
hearings and administrative proceedings under the provisions of this section
will
be held in accordance with the provisions of article five, chapter twenty-nine-a of this code, and are
subject to review by the Supreme Court of Appeals.
(k) (l) On or before the first day of July, two thousand one, every Each board
referred to in this chapter shall adopt
procedural rules in accordance with the provisions of article three, chapter
twenty-nine-a of this code, which shall specify a procedure for the investigation and resolution of
all complaints against persons licensed under this chapter.
The proposed legislative rules relating
only to complaint procedures or contested case hearing procedures required by the prior enactment
of this subsection shall be redesignated as procedural rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code. Each board shall file the procedural rules required
by this subsection by the thirty-first day of January, two thousand one. The public hearing or public
comment period conducted for the proposed legislative rules shall serve as the public hearing or
public comment period required by section five, article three, chapter twenty-nine-a of this code.
§30-1-11. Compensation of members; expenses;
adherence to ethical standards.
(a) Each member of every board in this chapter is entitled to receive compensation for
attending official meetings or engaging in official duties
not to exceed the amount in the same
amount as is paid to members of the Legislature for their interim duties as recommended by the
Citizens Legislative Compensation Commission and authorized by law. A board member may not
receive compensation for travel days that are not on the same day as the official meeting or
engaging
in official duties.
(b) The limitations contained in this section do not apply if they conflict with provisions of
this chapter relating to a particular board and enacted after January 1, 1995.
(c) A board may reimburse actual and necessary expenses incurred for each day or portion
of a day engaged in the discharge of official duties in a manner consistent with guidelines of the
Travel Management Office of the Department of Administration.
(d) No member of any board in this chapter may receive compensation as an employee of the
board.
(e) Each member of every board in this chapter shall adhere to the ethical standards for
appointed officials as set forth in section five, article two, chapter six-b of this code.
§30-1-14. Remission of certain fees Modifying or waiving continuing education requirements or renewal fees for persons in active duty military service.
Every board of examination or registration referred to in this chapter is hereby authorized,
under such rules and regulations as may be adopted by each board, to remit all annual license or
annual registration fees required to be paid by any licensee or registrant under its supervision during
such time as such licensee or registrant is serving with the Armed Forces of the United States of
America, and to retain the name of such licensee or registrant in good standing on the roster of said
board during said time.
Each board in this chapter may establish and implement processes for modifying or waiving
continuing education requirements or renewal fees for the renewal of an authorization to practice for
the period of time during which a person regulated by the board is engaged in active duty military
service.
§30-1-19. Regulatory board review.
Each board is subject to a regulatory board review pursuant to the provisions of article ten,
chapter four of this code.
§30-1-20. Independent status of boards; legislative declaration; inapplicability of certain laws,
rules and policies to boards.
(a) The Legislature declares and reaffirms that, due to the statutory requirements of financial
autonomy set forth in section six of this article, the exclusion of the boards from the statutory
structure of the executive branch, and the absence of any requirement for the boards to report to an
agency head, a cabinet secretary or the Governor, the boards have independent status.
(b) Boards referred to in this chapter are not bound by the laws, rules or policies applicable
to the executive branch, including but not limited to, the purchasing requirements of the Purchasing
Division, the rules of the Division of Personnel, the laws governing the authority of the Real Estate
Division, Executive Order or instructions issued by the Governor or his or her staff.
ARTICLE 27. BOARD OF BARBERS AND COSMETOLOGISTS.
§30-27-6. 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, permits, certificates and registrations;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer examinations and
reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses, permits, certificates and registrations;
(8) A fee schedule;
(9) Continuing education requirements for professional licensees and certificate holders;
(10) The procedures for denying, suspending, revoking, reinstating or limiting the practice
of licensees, permitees, certificate holders and registrants;
(11) Designating the regions for investigators/inspectors;
(12) Criteria for the training of investigators/inspectors;
(13) Requirements for investigations and inspections;
(14) Requirements for inactive or revoked licenses, permits, certificates and registrations;
(15) Establishing the training program and requirements for instructors for schools licensed
under this article;
(16) Establishing operating procedures for salons;
and
(17)
Establishing a barber's and cosmetologist's apprentice program; and
(17) (18) 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.
(c) The board
is authorized to shall file an emergency rule
for the implementation of
creating its
fee schedule in 2009 barber's and cosmetologist's apprenticeship program.
§30-27-9. Professional license from another state; license to practice in this state.
(a) The board may issue a professional license to practice to an applicant of good moral
character who holds a valid license or other authorization to practice in that particular field from
another state, if the applicant demonstrates that he or she:
(1)
(A) Holds a license or other authorization to practice in another state which was granted
after completion of educational requirements substantially equivalent to those required in this state;
or
(B) Completed an apprentice program;
(2) Passed an examination that is substantially equivalent to the examination required in this
state;
(2) (3) Does not have charges pending against his or her license or other authorization to
practice, and has never had a license or other authorization to practice revoked;
(3) (4) Has not previously failed an examination for professional licensure in this state;
(4) (5) Has paid the applicable fee;
(5) (6) Is a citizen of the United States or is eligible for employment in the United States;
(6) (7) Has presented a certificate of health issued by a licensed physician; and
(7) (8) Has fulfilled any other requirement specified by the board.
(b) In its discretion, the board may examine a person by a written, oral or skills test for
licensing under this section, and may enter into agreements for reciprocal licensing with other
jurisdictions having substantially similar requirements for licensure.
(c) The provisions of this section do not apply to nail technicians or manicurists from another
state or jurisdiction. A nail technician or manicurist from another state or jurisdiction is required to
show that he or she has completed the required curriculum and has successfully passed the board's practical skills examination to apply for licensure under the provisions of this article."
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 348),
and there were--yeas 84, nays 14, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Ashley, Blair, Border, Carmichael, Ireland, Lane, Louisos,
McGeehan, Porter, Romine, Schoen and Walters.
Absent And Not Voting: Argento and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 328) passed.
An amendment to the title of the bill, recommended by the Committee on Government
Organization, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 328 - "A Bill to repeal §30-1-15 of the Code of West Virginia, 1931,
as amended; to amend and reenact §30-1-2a, §30-1-5, §30-1-6, §30-1-8, §30-1-11 and §30-1-14 of
said code; to amend said code by adding thereto two new sections, designated §30-1-19 and
§30-1-20; to amend and reenact §30-27-6 and §30-27-9 of said code, all relating to professional
licensing boards; removing nonutilized code sections; requiring certified persons to report violations;
providing immunity from civil liability for reporting violations; clarifying procedures for hearings,
rights of appeal and judicial review; removing automatic stay on appeal; increasing criminal
penalties; clarifying limitations on immunity in the absence of required insurance policy; repealing
antiquated ineffective provisions; revising requirements for specific subject matter at orientation
sessions; clarifying who may call a board meeting; establishing quorums; reporting violations;
clarifying the issuance of notices to cease and desist; requiring boards to maintain a business office
open to the public; authorizing boards to propose fees notwithstanding specific fees established in
code; notifying licensees of proposal of fees in legislative rules; authorizing boards to levy fines;
hiring administrative law judges; clarifying law governing hearings and administrative hearings;
requiring board members to adhere to ethical standards for appointed officials; permitting boards to establish a process for modifying or waiving continuing education requirements or renewal fees for
licensees in active duty military service; requiring regulatory board reviews; regulating to the
practice of beauty care; requiring the board to establish an apprentice program; and permitting the
board to license an applicant from another jurisdiction who has completed an apprenticeship
program."
Delegate Boggs moved that the bill take effect July 1, 2010.
On this question, the yeas and nays were taken
(Roll No. 349), and there were--yeas 91, nays
7, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes, Ireland, Louisos, McGeehan, Porter, Romine and Schoen.
Absent And Not Voting: Argento and Ross.
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. 328) takes effect July 1, 2010.
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. 352, Creating WV Community Empowerment Transportation Act; on
third reading, coming up in regular order, was reported by the Clerk.
At the request of Delegate Boggs, and by unanimous consent, the bill was placed at the foot
of the calendar.
S. B. 372, Updating language in WV Medical Practice Act; on third reading, coming up in
regular order, with an amendment pending and the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk on page one, by striking out everything after the enacting clause and inserting in lieu
thereof the following:
"That §30-1-15 of the Code of West Virginia, 1931, as amended, be repealed; that
§30-10A-1, §30-10A-2, §30-10A-3, §30-10A-4, §30-10A-5, §30-10A-6, §30-10A-7, §30-10A-8 and
§30-10A-9 of said code be repealed; that §30-1-2a, §30-1-5, §30-1-6, §30-1-8, §30-1-11 and §30-1-14 of said code be amended and reenacted; that said code be amended by adding thereto two
new sections, designated §30-1-19 and §30-1-20; that §30-3-2, §30-3-4, §30-3-5, §30-3-6 and
§30-3-8 of said code be amended and reenacted; that §30-10-1, §30-10-2, §30-10-3, §30-10-4,
§30-10-5, §30-10-6, §30-10-7, §30-10-8, §30-10-9, §30-10-10, §30-10-11, §30-10-12, §30-10-13,
§30-10-14, §30-10-15, §30-10-16, §30-10-17, §30-10-18, §30-10-19 and §30-10-20 of said code be
amended and reenacted; and that said code be amended by adding thereto three new sections,
designated §30-10-21, §30-10-22 and §30-10-23, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF
EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.
§30-1-2a. Required orientation session.
(a)
After Between April 1 and
not later than the first day of December
31 of each year, the
Auditor shall provide at least one orientation session on relevant state law and rules governing state
boards.
and commissions All state agencies shall cooperate with and assist in providing the
orientation session if the Auditor requests.
(b)
After the effective date of this section, All chairs or chief financial officers of
state boards
and commissions newly created by the Legislature shall attend an orientation session designed to
inform the
state boards
and commissions of the duties and requirements imposed
on state boards and
commissions by state law and rules
The chair or chief financial officer of the newly created board
or commission shall attend an orientation session at the earliest possible date following the creation
of the board.
or commission
(c) The orientation session shall include a minimum of thirty minutes of instructional time
dedicated to the statutory duty of boards to investigate and resolve complaints, including procedures
for investigations, administrative hearings and remedies, due process protections, and the duty to
provide public access to records of the disposition of complaints, as set forth in section five of this
article.
(d) (c) Topics for the orientation session may include, but are not limited to,
the statutory duty of boards to investigate and resolve complaints, including procedures for investigations,
administrative hearings and remedies, and the duty to provide public access to records of the
disposition of complaints; the official conduct of members, state budgeting and financial procedures,
purchasing requirements, open meetings requirements, ethics, rule-making procedures, records
management, annual reports and any other topics the Auditor determines
to be essential in the
fulfillment of the duties of the members of state boards and commissions are necessary.
(e) (d) The orientation session
shall be is open to any member of new or existing boards
and
commissions and each board
or commission may approve expense reimbursement for the attendance
of one or more of its members.
The chair or chief financial officer of each existing board or
commission shall attend an orientation session within two years following the effective date of this
section.
(f) (e) No later than December 31 of each year, the Auditor shall provide to the chairs of the
Joint Standing Committee on Government
Operations Organization a list of the names of board
or
commission members attending,
together with the names of the boards
and commissions represented,
and the orientation session or sessions offered by the Auditor during the previous year.
(g) (f) The Auditor may charge a registration fee for the orientation session to cover the cost
of providing the orientation session. The fee may be paid from funds available to a board.
or
commission
(h) (g) Notwithstanding the member's normal rate of compensation for serving on a board,
a member attending the orientation session may be reimbursed for necessary and actual expenses,
as long as the member attends the complete orientation session.
(i) (h) Ex officio members who are elected or appointed state officers or employees, and
members of boards
or commissions that have purely advisory functions with respect to a department
or agency of the state, are exempt from the requirements of this section.
§30-1-5. Meetings; quorum; investigatory powers; duties.
(a)
Every Each board
referred to in this chapter shall hold at least one meeting each year, at such time and place as it may prescribe by rule,
for the examination of applicants who desire to
practice their respective professions or occupations in this state and to transact any
other business
which may legally come before it. The board may hold additional meetings as may be necessary,
which shall be called by the
chair secretary at the direction of the president or upon the written
request of
any three a majority of the board members. A
simple majority of
the members of the
constituent membership serving on the board
at a given time constitutes a quorum for the transaction
of
its business.
(b)
The Each board
is authorized to may compel the attendance of witnesses,
to issue
subpoenas
and subpoenas duces tecum, to conduct investigations,
and hire an investigator and
to take
testimony and other evidence concerning any matter within its jurisdiction. The
president chair and
secretary of the board
are authorized to may administer oaths for these purposes.
(c)
Every Each board
referred to in this chapter has a duty to shall investigate and resolve
complaints which it receives and shall, within six months of the complaint being filed, send a status
report to the party filing the complaint by certified mail with a signed return receipt and within one
year of the status report's return receipt date issue a final ruling, unless the party filing the complaint
and the board agree in writing to extend the time for the final ruling.
(d)
Every Each board shall
maintain a business office open to the public and shall provide
public access to
the record of its public records, including the disposition of the complaints which
it receives in accordance with the provisions of chapter twenty-nine-b of this code.
(e) Every Each board has a duty to report violations of individual practice acts contained in
this chapter to the board by which the individual may be licensed and shall do so in a timely manner
upon receiving notice of such violations.
Every Each person licensed or registered by a board has
a duty to report to the board which licenses or registers him or her a known or observed violation of
the practice act or the board's rules by any other person licensed or registered by the same board and
shall do so in a timely manner.
Law-enforcement agencies or their personnel and courts shall report
in a timely manner within ten days to the appropriate board any violations of individual practice acts by any individual. Any person who reports or provides information in good faith is not subject to
civil damages.
(e) (f) Whenever a board referred to in this chapter obtains information that a person subject
to its authority has engaged in, is engaging in or is about to engage in any act which constitutes or
will constitute a violation of the provisions of this chapter which are administered and enforced by
that board, it may apply to the circuit court for an order enjoining the act. Upon a showing that the
person has engaged, is engaging or is about to engage in any such act, the court
shall may order an
injunction, restraining order or other order as the court
may deem considers appropriate.
§30-1-6. Application for license or registration; examination fee; prohibiting discrimination.
(a)
Every Each applicant for
license or registration an authorization to practice under the
provisions of this chapter shall apply
for the license or registration in writing to the proper board and
shall transmit with his or her application
an examination fee which the board is authorized to charge
for an examination or investigation into the applicant's qualifications to practice the authorized fees.
(b) Each board
referred to in this chapter is authorized to may establish by rule a deadline for
application for examination.
which shall be no less than ten nor more than ninety days prior to the
date of the examination
(c)
Boards Notwithstanding specific fees established in the articles which govern the
licensing boards in this chapter, each board may set
fees by
legislative rule
fees relating to the
licensing or registering of individuals, which shall be sufficient to enable the boards to
effectively
carry out
effectively their responsibilities
of licensure or registration of the authorization to practice
and discipline
of the individuals subject to their authority.
Provided, That when any When a board
proposes to promulgate a rule regarding fees,
for licensing or registration, that the board shall notify
its membership of the proposed rule by:
(1) Mailing a copy of the proposed rule to
the membership its licensees at the time that the
proposed rule is filed with the Secretary of State;
for publication in the state register in accordance
with section five, article three, chapter twenty-nine-a of this code. or
(2) Posting the proposed rule on its website and notifying its licensees of the website posting,
at least thirty days before the proposed rule is filed with the Secretary of State, by:
(A) Mailing a postcard to its licensees;
(B) Emailing a notice to its licensees who have an email address on file with the board; or
(C) Placing a notice in its newsletter.
(d) In addition to any other information required, the applicant's social security number shall
be recorded on the application:
Provided, That the board will redact the social security numbers on
any copies provided to the public.
(e) No board may discriminate against any applicant because of political or religious opinion
or affiliation, marital status, race, color, gender, creed, age, national origin, disability or other
protected group status.
(f)
Any A board may deny the application for
licensure or registration an authorization to
practice of an applicant whose
license or registration authorization to practice in any other state,
territory, jurisdiction or foreign nation has been revoked by the licensing authority.
thereof The
application may be denied by a board without a hearing unless the applicant requests a hearing within
thirty days of the denial. Any hearing must be conducted pursuant to the provisions of section eight
of this article or provisions contained in the rules of the board.
§30-1-8. Denial, suspension or revocation of a license or registration; probation; proceedings;
effect of suspension or revocation;
authority to hire hearing examiner;
transcript; report; judicial review.
(a)
Every Each board
referred to in this chapter may suspend or revoke the
license
authorization to practice of any person who has been convicted of a felony or who has been found
to have engaged in conduct, practices or acts constituting professional negligence or a willful
departure from accepted standards of professional conduct. Where any person has been convicted
of a felony or has been found to have engaged in such conduct, practices or acts,
every the board
referred to in this chapter may enter into consent decrees,
to reprimand,
to enter into probation orders,
to levy fines
not to exceed one thousand dollars per day per violation or any of these, singly
or in combination. Each board may also assess administrative costs. Any costs which are assessed
shall be placed in the special account of the board and any fine which is levied shall be deposited in
the State Treasury's General Revenue Fund.
(b) For purposes of this section, the word 'felony' means a
felony or crime punishable as a
felony under the laws of this state, any other state or the United States.
(c)
Every Each board
referred to in this chapter may promulgate rules in accordance with the
provisions of chapter twenty-nine-a of this code to delineate conduct, practices or acts which, in the
judgment of the board, constitute professional negligence, a willful departure from accepted
standards of professional conduct or which may render an individual unqualified or unfit for
licensure, registration or other an authorization to practice.
(d)
Every Each board
referred to in this chapter may revoke
the license or registration an
authorization to practice of an individual
licensed or otherwise lawfully practicing within this state
whose
license or registration authorization to practice in any other state, territory, jurisdiction or
foreign nation has been revoked by the licensing authority.
thereof
(e) Notwithstanding any other provision of law to the contrary, no
certificate, license,
registration or authority authorization to practice issued under the provisions of this chapter may be
suspended or revoked without a prior hearing before the board or court which issued the certificate,
license, registration or authority, except:
(1) A board
is authorized to may suspend or revoke
a certificate, license, registration or
authority an authorization to practice prior to a hearing if the person's continuation in practice
constitutes an immediate danger to the public; or
(2)
After due diligence, If a board,
after reviewing all reasonably available relevant
information, cannot locate a person
licensed authorized to practice under the provisions of this
chapter within sixty days of a complaint being filed against the
licensee person,
then the board may
suspend the
license, certificate, registration or authority authorization to practice of the person without holding a hearing.
After due diligence, If a board,
still after reviewing all reasonably
available relevant information, cannot locate the person
licensed authorized to practice under the
provisions of this chapter thirty days after the suspension of the person's
license, certificate,
registration or authority, then authorization to practice, the board may revoke the
license, certificate,
registration or authority authorization to practice of the person without holding a hearing.
(f) In all proceedings before a board or court for the suspension or revocation of any
certificate, license, registration or authority authorization to practice issued under the provisions of
this chapter, a statement of the charges against the holder of the
certificate, license, registration or
authority authorization to practice and a notice of the time and place of hearing shall be served upon
the person as a notice is served under section one, article two, chapter fifty-six of this code at least
thirty days prior to the hearing.
and He or she may appear with witnesses and be heard in person, by
counsel, or both. The board may take oral or written proof, for or against the
accused holder of the
authorization to practice, as it may consider advisable. If upon hearing the board finds that the
charges are true, it may suspend or revoke the
certificate, license, registration or authority and
suspension or revocation shall take from the person all rights and privileges acquired thereby
authorization to practice.
(g)
The board may conduct the hearing or elect to have a hearing examiner or an
administrative law judge conduct the hearing. If the hearing is conducted by a hearing examiner or
an administrative law judge:
(1) The hearing examiner or administrative law judge shall be licensed to practice law in this
state, and shall conform to the Code of Conduct for Administrative Law Judges as set forth by the
Ethics Commission in legislative rule;
(2) At the conclusion of a hearing, the hearing examiner or administrative law judge shall
prepare a proposed written order containing recommended findings of fact and conclusions of law,
and may contain recommended disciplinary sanctions if the board so directs;
(3) The board may accept, reject, modify or amend the recommendations of the hearing examiner or administrative law judge; and
(4) If the board rejects, modifies or amends the recommendations, the board shall state in the
order a reasoned, articulate justification based on the record for the rejection, modification or
amendment.
(h) Pursuant to the provisions of section one, article five, chapter twenty-nine-a of this code,
informal disposition may
also be made by the board of any contested case by stipulation, agreed
settlement, consent order or default.
Further, The board may suspend its decision and place a
licensee found by the board to be in violation of the applicable practice
act or rules of the board on
probation.
(h) (i) Any person denied
a license, certificate, registration or authority an authorization to
practice who believes the denial was in violation of this article or the article under which the
license,
certificate, registration or authority licensee is authorized shall be entitled to a hearing on the action.
denying the license, certificate, registration or authority Hearings under this subsection are in
accordance with the provisions for hearings which are set forth in this section.
(i) (j) A stenographic report of each proceeding on the denial, suspension or revocation
of
a certificate, license, registration or authority shall be made at the expense of the board and a
transcript of the hearing retained in its files. The board shall make a written report of its findings,
which shall constitute part of the record.
(j) (k) All
hearings and administrative proceedings under the provisions of this section
will
be held in accordance with the provisions of article five, chapter twenty-nine-a of this code, and are
subject to review by the Supreme Court of Appeals.
(k) (l) On or before the first day of July, two thousand one, every Each board
referred to in
this chapter shall adopt
procedural rules in accordance with the provisions of article three, chapter
twenty-nine-a of this code, which shall specify a procedure for the investigation and resolution of
all complaints against persons licensed under this chapter.
The proposed legislative rules relating
only to complaint procedures or contested case hearing procedures required by the prior enactment of this subsection shall be redesignated as procedural rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code. Each board shall file the procedural rules required
by this subsection by the thirty-first day of January, two thousand one. The public hearing or public
comment period conducted for the proposed legislative rules shall serve as the public hearing or
public comment period required by section five, article three, chapter twenty-nine-a of this code.
§30-1-11. Compensation of members; expenses;
adherence to ethical standards.
(a) Each member of every board in this chapter is entitled to receive compensation for
attending official meetings or engaging in official duties
not to exceed the amount in the same
amount as is paid to members of the Legislature for their interim duties as recommended by the
Citizens Legislative Compensation Commission and authorized by law. A board member may not
receive compensation for travel days that are not on the same day as the official meeting or
engaging
in official duties.
(b) The limitations contained in this section do not apply if they conflict with provisions of
this chapter relating to a particular board and enacted after January 1, 1995.
(c) A board may reimburse actual and necessary expenses incurred for each day or portion
of a day engaged in the discharge of official duties in a manner consistent with guidelines of the
Travel Management Office of the Department of Administration.
(d) No member of any board in this chapter may receive compensation as an employee of the
board.
(e) Each member of every board in this chapter shall adhere to the ethical standards for
appointed officials as set forth in section five, article two, chapter six-b of this code.
§30-1-14. Remission of certain fees Modifying or waiving continuing education requirements
or renewal fees for persons in active duty military service.
Every board of examination or registration referred to in this chapter is hereby authorized,
under such rules and regulations as may be adopted by each board, to remit all annual license or
annual registration fees required to be paid by any licensee or registrant under its supervision during such time as such licensee or registrant is serving with the Armed Forces of the United States of
America, and to retain the name of such licensee or registrant in good standing on the roster of said
board during said time.
Each board in this chapter may establish and implement processes for modifying or waiving
continuing education requirements or renewal fees for the renewal of an authorization to practice for
the period of time during which a person regulated by the board is engaged in active duty military
service.
§30-1-19. Regulatory board review.
Each board is subject to a regulatory board review pursuant to the provisions of article ten,
chapter four of this code.
§30-1-20. Independent status of boards; legislative declaration; inapplicability of certain laws,
rules and policies to boards.
(a) The Legislature declares and reaffirms that, due to the statutory requirements of financial
autonomy set forth in section six of this article, the exclusion of the boards from the statutory
structure of the executive branch, and the absence of any requirement for the boards to report to an
agency head, a cabinet secretary or the Governor, the boards have independent status.
(b) Boards referred to in this chapter are not bound by the laws, rules or policies applicable
to the executive branch, including but not limited to, the purchasing requirements of the Purchasing
Division, the rules of the Division of Personnel, the laws governing the authority of the Real Estate
Division, Executive Order or instructions issued by the Governor or his or her staff.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-2. Purpose.
The purpose of this article is to provide for the licensure and professional discipline of
physicians and podiatrists and for the
certification licensure and
professional discipline of physician
assistants and to provide a professional environment that encourages the delivery of quality medical
services within this state.
§30-3-4. Definitions.
As used in this article:
(1) 'Board' means the West Virginia Board of Medicine established in section five of this
article.
Whenever any other provision of this code refers to the 'medical licensing board of West
Virginia', the reference shall be construed to mean and refer to the 'West Virginia Board of
Medicine' as created and established in this article.
(2) 'Medical peer review committee' means a committee of, or appointed by, a state or local
professional medical society, or a committee of, or appointed by, a medical staff of a licensed
hospital, long-term care facility or other health care facility, or any health care peer review
organization as defined in section one, article three-c of this chapter, or any other organization of
professionals in this state formed pursuant to state or federal law and authorized to evaluate medical
and health care services.
(3) 'Practice of medicine and surgery' means the diagnosis or treatment of, or operation or
prescription for, any human disease, pain, injury, deformity or other physical or mental condition.
'Surgery' includes the use on humans of lasers, ionizing radiation, pulsed light and radiofrequency
devices, but does not include non-invasive procedures offered for purely cosmetic purposes. The
provisions of this subsection do not apply to any person who is a duly licensed health care provider
under other pertinent provisions of this code and who is acting within the scope of his or her license
as determined by the regulatory board for that profession.
(4) 'Practice of podiatry' means the examination, diagnosis, treatment, prevention and care
of conditions and functions of the human foot and ankle by medical, surgical and other scientific
knowledge and methods; with surgical treatment of the ankle authorized only when a podiatrist has
been granted privileges to perform ankle surgery by a hospital's medical staff credentialing
committee based on the training and experience of the podiatrist; and medical and surgical treatment
of warts and other dermatological lesions of the hand which similarly occur in the foot. When a
podiatrist uses other than local anesthesia, in surgical treatment of the foot
or hand, the anesthesia must be administered by, or under the direction of, an anesthesiologist or certified registered nurse
anesthetist authorized under the State of West Virginia to administer anesthesia. A medical
evaluation shall be made by a physician of every patient prior to the administration of other than
local anesthesia.
(5) 'State
director of health
officer' means the
state director of health commissioner for the
Bureau for Public Health or his or her designee, which
officer or designee
shall be a physician and
shall act as secretary of the board and shall carry out any and all responsibilities assigned in this
article to the secretary of the board.
§30-3-5. West Virginia Board of Medicine
created; transfer of powers and duties from
medical licensing board; powers and duties continued; appointment and terms
of members; vacancies; removal.
There is hereby created a medical licensing board to be known as the 'West Virginia Board
of Medicine.' The West Virginia Board of Medicine
shall assume, carry has assumed, carried on
and
succeed succeeded to all the duties, rights, powers, obligations and liabilities heretofore
belonging to or exercised by the Medical Licensing Board of West Virginia. All the rules,
and
regulations, orders, rulings, licenses, certificates, permits and other acts and undertakings of the
medical licensing board of West Virginia as heretofore constituted
shall continue have continued as
those of the West Virginia Board of Medicine until they
expire expired or
are were amended, altered
or revoked. The board
shall be remains the sole authority for the issuance of licenses to practice
medicine and surgery and to practice podiatry and
certificates for to practice as physician assistants
in this state
under the supervision of physicians licensed under this article. and The board shall
continue to be a regulatory and disciplinary body for the practice of medicine and surgery and the
practice of podiatry and for physician assistants in this state.
The board shall consist of fifteen members. One member shall be the state
director of health
officer ex officio, with the right to vote as a member of the board. The other fourteen members shall
be appointed by the Governor, with the advice and consent of the Senate. Eight of the members shall be appointed from among individuals holding the degree of doctor of medicine and two shall hold
the degree of doctor of podiatric medicine. One member shall be an individual
certified licensed by
the board as a
Type A physician assistant. Each of these members must be duly licensed
or certified
to practice his or her profession in this state on the date of appointment and must have been licensed
or certified and actively practicing that profession for at least five years immediately preceding the
date of appointment. Three lay members shall be appointed to represent health care consumers.
Neither the lay members nor any person of the lay members' immediate families shall be a provider
of or be employed by a provider of health care services. The state
director of health's health officer's
term shall continue for the period that he or she holds office as state
director of health
officer. Each
other member of the board shall be appointed to serve a term of five years:
Provided, That the
members of the
medical licensing board or Board of Medicine holding appointments on the effective
date of this section shall continue to serve as members of the Board of Medicine until the expiration
of their term unless sooner removed. Each term shall begin on October 1 of the applicable year, and
a member may not be appointed to more than two consecutive full terms on the board.
Not more than four physicians, one podiatrist and two lay members appointed by the
Governor as members of the board shall belong to the same political party. The Type A physician
assistant member may not belong to the same political party to which a majority of the lay members
belong. A person is not eligible for membership on the board who is a member of any political party
executive committee or, with the exception of the state
director of health
officer, who holds any
public office or public employment under the federal government or under the government of this
state or any political subdivision thereof.
or who is an appointee or employee of the state board of
health.
In making appointments to the board, the Governor shall, so far as practicable, select the
members from different geographical sections of the state. When a vacancy on the board occurs and
less than one year remains in the unexpired term, the appointee shall be eligible to serve the
remainder of the unexpired term and two consecutive full terms on the board.
No member may be removed from office
by the Governor except for official misconduct,
incompetence, neglect of duty or gross immorality:
Provided, That the expiration,
surrender or
revocation of the professional license
or certification by the board of a member of the board shall
be cause
for removal the membership to immediately and automatically terminate.
§30-3-6. Conduct of business of West Virginia Board of Medicine; meetings; officers;
compensation; expenses; quorum.
Every two years the board shall elect from among its members a president and vice president.
Regular meetings shall be held as scheduled by the rules
and regulations of the board. Special
meetings of the board may be called by the joint action of the president and vice president or by any
three members of the board on seven days' prior written notice by mail
postage prepaid or electronic
means or, in case of emergency, on two days' notice by telephone
and electronic means. With the
exception of the state
director of health
officer, members of the board shall receive
one hundred
dollars for each day actually spent in attending the sessions of the board or its committees. A board
member shall be reimbursed for all reasonable and necessary expenses actually incurred when a
meeting is held in a location that is removed from the member's place of residence compensation and
expense reimbursement in accordance with section eleven, article one of this chapter.
A majority of the membership of the board constitutes a quorum for the transaction of
business, and business is transacted by a majority vote of a quorum, except for disciplinary actions
which shall require the affirmative vote of not less than five members or a majority vote of those
present, whichever is greater.
Meetings of the board shall be held in public session.
except that the board may hold closed
sessions to prepare, approve, grade or administer examinations Disciplinary proceedings, prior to
a finding of probable cause as provided in subsection
(o) (p), section fourteen of this article, shall
be held in closed sessions, unless the party subject to discipline requests that the
hearing proceedings
be held in public session.
§30-3-8. State
director of health officer to act as secretary of the board.
The state
director of health
officer, in addition to being a member of the board, shall act as
its secretary.
and shall be in charge of its offices and responsible to the board for the maintenance
of the offices and the preparation of application forms, licenses, reports and all other papers or
documents that may be required by the board in the performance of its duties He
or she shall,
together with the president of the board, sign all licenses, reports,
orders and other documents
that
may be required by the board in the performance of its duties.
ARTICLE 10. VETERINARIANS.
§30-10-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice veterinary medicine, veterinary
technology or animal euthanasia in this state without a license, registration or certificate issued under
the provisions of this article, or advertise or use any title or description tending to convey the
impression that they are a veterinarian, veterinary technician or animal euthanasia technician unless
such person has been duly licensed, registered or certified under the provisions of this article.
(b) A business entity may not render any service or engage in any activity which, if rendered
or engaged in by an individual, would constitute the practice of veterinary medicine, veterinary
technology or animal euthanasia, except through a licensee, registrant or certificate holder.
§30-10-2. Applicable law.
The practice of veterinary medicine, veterinary technology and animal euthanasia and the
Board of Veterinary Medicine are subject to the provisions of article one of this chapter, the
provisions of this article and the board's rules.
§30-10-3. Definitions.
As used in this article, the following words and terms have the following meanings:
(a) 'Animal' means any animal other than human, and the term includes fowl, birds,
amphibians, fish, and reptiles, wild or domestic, living or dead.
(b) 'Animal Control Facility' means a municipal or county operated humane society or
animal shelter incorporated and organized under the laws of this state or a humane society or an animal shelter classified as 501(c)(3) by the Internal Revenue Service, with at least one certified
animal euthanasia technician.
(c) 'Applicant' means a person making application for a license, certificate, registration or
permit, under the provisions of this article.
(d) 'Board' means the West Virginia Board of Veterinary Medicine.
(e) 'Business entity' means any firm, partnership, association, company, corporation, limited
partnership, limited liability company or other entity performing veterinary medicine, veterinary
technology or animal euthanasia.
(f) 'Certificate' means an animal euthanasia technician certificate issued under the provisions
of this article.
(g) 'Certified animal euthanasia technician' means a person who is certified by the board to
euthanize animals in accordance with the provisions of this article.
(h) 'General Supervision' means the supervising veterinarian is in the building where the
animal is being treated, has given instructions for treatment and is quickly and easily available.
(i) 'Indirect supervision' means the performance of procedures on the orders of a supervising
veterinarian.
(j) 'License' means a veterinary medicine license issued under the provisions of this article.
(k) 'Permit' means a temporary permit to practice veterinary medicine issued by the board.
(l) 'Practice of veterinary medicine' means to diagnose, treat, correct, change, relieve or
prevent any disease, deformity, defect, injury, or other physical or mental condition, of any animal,
or to prescribe for or to administer to any animal any drug, medicine, biologic, apparatus,
application, anesthetic or other therapeutic or diagnostic substance or technique, or to render advice
or any recommendation with respect to any of the foregoing.
(m) 'Practice of veterinary technology' means the science and art of providing all aspects of
professional medical care, services and treatment for animals with the exceptions of diagnosis,
prognosis, surgery, prescription and application of any treatments, drugs, medications or appliances, where a valid veterinarian- client-patient relationship exists.
(n) 'Registered veterinary technician' means a person who is duly registered to practice
veterinary technology under the provisions of this article.
(o) 'Supervising veterinarian' means a veterinarian, licensed under this article, who assumes
responsibility for the professional care given to an animal by a person authorized by this article to
work under his or her general or indirect supervision.
(p) 'Veterinarian' means a person who is licensed to practice veterinary medicine under the
provisions of this article.
(q) 'Veterinary assistant' means a person who has not met the requirements for becoming a
registered veterinary technician and whose basic tasks are set by the veterinarian.
(r) 'Veterinarian-client-patient relationship' means a relationship between a veterinarian, a
client and a patient, exists when:
(1) A veterinarian assumes responsibility for medical judgments regarding the health of an
animal and the client who is the owner or other caretaker of the animal agrees to follow the
veterinarian's instructions; or
(2) A veterinarian, through personal examination of an animal or a representative sample of
a herd or flock, obtains sufficient information to make at least a general or preliminary diagnosis of
the medical condition of the animal, herd or flock, which diagnosis is expanded through medically
appropriate visits to the premises where the animal, herd or flock is kept.
§30-10-4. Board of Veterinary Medicine.
(a) The West Virginia Board of Veterinary Medicine is continued. The members of the
board in office on July 1, 2010, shall, unless sooner removed, continue to serve until their respective
terms expire and until their successors have been appointed and qualified.
(b) Commencing July 1, 2010, the board shall consist of the following nine members
appointed by the Governor by and with the advice and consent of the Senate:
(1) Six members licensed to practice veterinary medicine in this state;
(2) One member registered to practice veterinary technology in this state; and
(3) Two citizen members, who are not licensed under the provisions of this article and who
do not perform any services related to the practice of the professions regulated under the provisions
of this article.
(c) Each member shall be appointed for a term of five years and may not serve more than two
consecutive terms. Any member who has served two consecutive full terms may not be reappointed
for at least one year after completion of his or her second full term. A member may continue to serve
until his or her successor has been appointed and qualified.
(d) The terms shall be staggered by the Governor.
(e) Each licensed or registered member of the board, at the time of his or her appointment,
must have held a license or registration in this state for a period of not less than three years
immediately preceding the appointment.
(f) Each member of the board must be a resident of this state during the appointment term.
(g) A vacancy on the board shall be filled by appointment by the Governor for the unexpired
term of the member whose office is vacant.
(h) The Governor may remove any member from the board for neglect of duty, incompetency
or official misconduct.
(i) Any member of the board immediately and automatically forfeits his or her membership
if he or she has his or her license or registration suspended or revoked by the board, is convicted of
a felony, a misdemeanor involving animal abuse or neglect, or becomes a nonresident of this state.
(j) The board shall elect annually one of its members as chairperson and one member as
secretary-treasurer who shall serve at the will and pleasure of the board.
(k) Each member of the board is entitled to receive compensation and expense reimbursement
in accordance with article one of this chapter.
(l) A majority of the members serving on the board constitutes a quorum.
(m) A member may not be an officer, board member or employee of a statewide or national organization established for the purpose of advocating the interests of or conducting peer review of
veterinarians or veterinarian technicians licensed or registered pursuant to this article.
(n) A veterinary technician member may not be employed by a veterinarian on the board.
(o) The board shall hold at least one annual meeting. Other meetings shall be held at the call
of the chairperson or upon the written request of three members, at the time and place as designated
in the call or request.
(p) Prior to commencing his or her duties as a member of the board, each member shall take
and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-10-5. 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 a license, permit, certificate and registration;
(3) Establish procedures for submitting, approving and rejecting applications for a license,
permit, certificate and registration;
(4) Determine the qualifications of any applicant for a license, permit, certificate and
registration;
(5) Prepare, conduct, administer and grade written, oral or written and oral examinations for
a license, certificate and registration;
(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) Maintain an office, and hire, discharge, establish the job requirements and fix the
compensation of employees and contract with persons necessary to enforce the provisions of this
article;
(9) Investigate alleged violations of the provisions of this article, legislative rules, orders and
final decisions of the board;
(10) Conduct disciplinary hearings of persons regulated by the board;
(11) Determine disciplinary action and issue orders;
(12) Institute appropriate legal action for the enforcement of the provisions of this article;
(13) Maintain an accurate registry of names and addresses of all persons regulated by the
board;
(14) Keep accurate and complete records of its proceedings, and certify the same as may be
necessary and appropriate;
(15) Establish, by legislative rule, the continuing education requirements for licensees,
permitees, certificate holders and registrants; and
(16) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a
of this code to implement the provisions of this article.
(c) The board may:
(1) Contract with third parties to administer the examinations required under the provisions
of this article;
(2) Define, by legislative rule, the fees charged under the provisions of this article;
(3) Issue, renew, deny, suspend, revoke or reinstate a license, permit, certificate and
registration;
(4) Sue and be sued in its official name as an agency of this state;
(5) Confer with the Attorney General or his or her assistant in connection with legal matters
and questions; and
(6) Take all other actions necessary and proper to effectuate the purposes of this article.
§30-10-6. Rule-making authority.
(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 establishing:
(1) Standards and requirements for a license, permit, certificate and registration;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare, administer or prepare and administer
examinations and reexaminations;
(4) Educational and experience requirements and the passing grade on the examination;
(5) Standards for approval of courses;
(6) Procedures for the issuance and renewal of a license, permit, certificate and registration;
(7) A fee schedule;
(8) Standards for ethical conduct;
(9) Procedures and requirements for facility inspections;
(10) Clarification of the veterinarian-client-patient relationship;
(11) Procedures for denying, suspending, revoking, reinstating or limiting the practice of a
licensee, permittee, certificate holder or registrant;
(12) Requirements for reinstating a revoked license, permit, certificate and registration; and
(13) Any other rules necessary to effectuate the provisions of this article.
(b) All of the board's rules in effect on the effective date of the reenactment of this article
in the regular session of 2010 will remain in effect until they are amended, modified, repealed or
replaced.
§30-10-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except fines, received by the board shall be deposited in a
separate special revenue fund in the State Treasury designated the 'Board of Veterinary Medicine
Fund', which fund is continued. The fund is used by the board for the administration of this article.
Except as may be provided in article one of this chapter, the board shall retain the amounts in the
special revenue account from year to year. Any compensation or expense incurred under this article
is not a charge against the General Revenue Fund.
(b) The board shall deposit any amounts received as administrative fines imposed pursuant
to this article into the General Revenue Fund of the State Treasury.
§30-10-8. Requirements for Veterinary License.
(a) To be eligible for a license to practice under the provisions of this article, the applicant
must:
(1) Be of good moral character;
(2) (A) Be a graduate of an accredited school approved by the board; or
(B) Be a graduate of a foreign veterinary school and hold a certificate of competence issued
by a foreign veterinary graduate educational organization as approved by the board;
(3) Have passed the examinations required by the board;
(4) Be at least eighteen years of age;
(5) Be a citizen of the United States or be eligible for employment in the United States;
(6) Not have been convicted of a crime involving moral turpitude;
(7) Not have been convicted of a felony under the laws of any jurisdiction within five years
preceding the date of application for licensure which conviction remains unreversed;
(8) Not have been convicted of a misdemeanor or a felony under the laws of any jurisdiction
at any time if the offense for which the applicant was convicted related to the practice of veterinary
medicine or animal abuse or neglect.
(b) A person seeking a license under the provisions of this article shall submit an application
on a form prescribed by the board and pay all applicable fees.
(c) An applicant from another jurisdiction shall comply with all requirements of this article.
(d) A license to practice veterinary medicine issued by the board prior to July 1, 2010, shall
for all purposes be considered a license issued under this article and may be renewed under this
article.
§30-10-9. Scope of Practice for a Licensed Veterinarian.
A person licensed to practice veterinary medicine may:
(a) Prescribe or administer any drug, medicine, treatment, method or practice for any animal;
(b) Perform any operation or manipulation on or apply any apparatus or appliance to any
animal;
(c) Give any instruction or demonstration for the cure, amelioration, correction or reduction
or modification of any animal condition, disease, deformity, defect, wound or injury;
(d) Diagnose or prognosticate any animal condition, disease, deformity, defect, wound or
injury for hire, fee, reward or compensation that is directly or indirectly promised, offered, expected,
received or accepted; and
(e) Prescribe or administer any legally authorized drug, medicine, treatment, method or
practice, perform any operation or manipulation, or apply any apparatus or appliance for the cure,
amelioration, correction or modification of any animal condition, disease, deformity, defect, wound
or injury for hire, fee, compensation or reward that is directly or indirectly promised, offered,
expected, received or accepted.
§30-10-10. Requirements for a registered veterinary technician.
(a) To be eligible for a registration to practice veterinary technology under the provisions of
this article, the applicant must:
(1) Be of good moral character;
(2) Successfully graduate with a degree in veterinary technology at an accredited school
approved by the board;
(3) Have passed examinations required by the board;
(4) Be at least eighteen years of age;
(5) Be a citizen of the United States or be eligible for employment in the United States;
(6) Not have been convicted of a crime involving moral turpitude;
(7) Not have been convicted of a felony under the laws of any jurisdiction within five years
preceding the date of application for registration which conviction remains unreversed; and
(8) Not have been convicted of a misdemeanor or a felony under the laws of any jurisdiction at any time if the offense for which the applicant was convicted related to the practice of veterinary
technology or animal abuse or neglect.
(b) A person seeking registration under the provisions of this
article shall submit an application on a form prescribed by the board and pay all applicable fees.
(c) A person registered to practice veterinary technology issued by the board prior to July 1,
2010, shall for all purposes be considered registered under this article.
§30-10-11. Scope of practice for registered veterinary technician.
(a) A registered veterinary technician may perform the following tasks under general
veterinary supervision:
(1) Administer anesthesia including induction, intravenous sedation and maintenance and
recovery from anesthesia;
(2) Perform dental prophylaxis;
(3) Establish open airways;
(4) Administer resuscitative oxygen procedures;
(5) Administer resuscitative drugs, in the event of cardiac arrest;
(6) Administer immunizations that are not required by law to be administered by a licensed
veterinarian;
(7) Prepare or supervise the preparation of patients for surgery;
(8) Assist the veterinarian in immunologic, diagnostic, medical, chemotherapeutic and
surgical procedures; and
(9) Perform external suturing.
(b) A registered veterinary technician may perform the following tasks under either general
or indirect supervision:
(1) Perform diagnostic imaging;
(2) Perform intravenous catheterization;
(3) Administer and apply medications and treatments by oral intramuscular, intravenous and subcutaneous routes;
(4) Apply bandages;
(5) Perform cardiac and respiratory monitoring;
(6) Perform appropriate procedures to control bleeding;
(7) Apply temporary splints or immobilizing bandages;
(8) Perform ear flushing;
(9) Collect specimens; and
(10) Perform laboratory procedures.
(c) A veterinary technician may, without supervision, use emergency treatment procedures
when an animal has been placed in a life threatening condition and immediate treatment is necessary
to sustain the animal's life. The registered veterinary technician shall immediately take steps to
secure the general supervision of a veterinarian.
§30-10-12. Requirements to be a certified animal euthanasia technician.
(a) To be a certified animal euthanasia technician a person must:
(1) Apply at least thirty days prior to the date the next written examinations are scheduled,
using a form prescribed by the board;
(2) Have a high school diploma or GED,
(3) Pay application and examination fees;
(4) Complete the certified animal euthanasia technicians program sponsored by the board and
pass the written and practical skills examinations;
(5) Pass the prescribed background check; and
(6) Complete other requirements established by the board by legislative rule.
(b) A certified animal euthanasia technician may practice animal euthanasia at a legally
operated animal control facility.
§
30-10-13. Requirements for certified animal euthanasia technicians program.
(a) The board shall create a certified animal euthanasia technicians program. The board shall design this program to teach applicants for certification record keeping and the legal, safety and
practical information needed to become a certified animal euthanasia technician.
(b) (1) The board shall administer written examinations to an applicant for certification. The
written examinations shall test the applicant's knowledge of the following:
(A) Animal restraint;
(B) Drug enforcement agency regulations;
(C) Record keeping requirements for controlled substances;
(D) Handling, inventory, security and proper storage of euthanasia drugs, solutions and
syringes;
(E) The certification process;
(F) Legal requirements;
(G) Stress management;
(H) Approved animal euthanasia drug usage;
(I) Jurisprudence; and
(J) Other subject areas specified by the board in a legislative rule.
(2) The applicant shall pass the written examinations with a minimum correct score as
determined by the board by legislative rule in order to be eligible to take the practical skills
examination provided in subsection (c) of this section.
(c) In addition to the written examinations provided under subsection (b) of this section, the
board shall administer a practical skills examination to an applicant who has successfully passed the
written examinations. The board shall conduct the practical skills examination in a manner that tests
an applicant's ability to properly restrain an animal, measure a correct dosage of euthanasia solution,
locate an injection site and perform an injection. In order to pass the practical skills examination,
an applicant shall exhibit to the board that he or she can locate an injection site and perform an
injection and also perform euthanasia correctly and humanely.
(d) An applicant who successfully passes the written examinations and the practical skills examination required by this section shall sign a form authorizing the board to make inquiries
through the United States Department of Justice, or any other legal jurisdiction or entity, for the
purpose of determining the character and reputation of the applicant and other matters relating to the
certification of the applicant.
§30-10-14. Scope of practice for an animal euthanasia technician.
(a) A certified animal euthanasia technician may euthanize animals assigned to the care of
an animal control facility.
(b) A certified animal euthanasia technician shall practice euthanasia within the limitations
imposed by this article and rules promulgated by the board under this article.
(c) A certified animal euthanasia technician may not practice or offer to practice his or her
profession outside the direct authority of the animal control facility which employs him or her or
otherwise contracts for his or her services.
(d) A certified animal euthanasia technician is not qualified and may not indicate that he or
she is qualified to act in any capacity relative to animals beyond his or her specified and regulated
authority to euthanize animals at the instruction of the animal control facility by which he or she is
employed.
(e) Annually, before January 15, a certified animal euthanasia technician shall report to the
board the number of animals euthanized at his or her facility during the previous calendar year.
§30-10-15. Renewal requirements.
(a) All persons regulated by the article shall annually before January 1, renew his or her
license, registration or certification by completing a form prescribed by the board and submit any
other information required by the board.
(b) At least thirty days prior to January 1, annually, the board shall mail to every person
regulated by the article an application for renewal.
(c) The board shall charge a fee for each renewal of a license permit, registration or
certification and shall charge a late fee for any renewal not properly completed and received with the appropriate fee by the board before January 1.
(d) The board shall require as a condition for the renewal of a license, registration or
certificate that each person regulated by the article complete continuing education.
(e) The board may deny an application for renewal for any reason which would justify the
denial of an original application for a license, registration or certification.
(f) The board may authorize the waiving of the renewal fee of a licensed veterinarian or
veterinarian technician during the period when he or she is on active duty with any branch of the
armed services or the public health service of the United States or a declared emergency.
(g) After July 1, 2010, a previously certified animal euthanasia technician may renew his or
her certification without having obtained a high school degree or GED.
§30-10-16. Temporary permits for a veterinarian.
(a) Upon completion of the application and payment of the applicable fees, the board may
issue a temporary permit to a person for a period not to exceed the next scheduled examination date
to practice veterinary medicine in this state to a person who has completed the educational
requirements set out in this article, pending the state examination, who is practicing under a
supervising veterinarian. The temporary permit expires the day after the board gives written notice
to the permitee of the results of the first examination held following the issuance of the temporary
permit.
(b) A temporary permit may be revoked by a majority vote of the board without a hearing.
§30-10-17. Exemptions from article.
The following persons are exempt from licensing under the provisions of this article:
(a) An employee of the federal government performing his or her official duties, as defined
by the employing agency;
(b) A student of a veterinary school working under the direct supervision of a licensed
veterinarian;
(c) A person advising with respect to or performing acts which the board has prescribed by legislative rule as accepted livestock management practices;
(d) The owner of an animal, the owner's employees, or persons assisting the owner without
any fee or compensation, caring for and treating the animal, except where the ownership of the
animal was transferred for the purpose of circumventing the provisions of this article;
(e) A member of the faculty of a veterinary school performing his or her regular duties and
functions, including lecturing, giving instructions or demonstrations, at a veterinary school or in
connection with a board approved continuing education course or seminar;
(f) A person selling or applying a pesticide, insecticide or herbicide;
(g) A person engaging in bona fide scientific research which reasonably requires
experimentation involving animals;
(h) A person engaging in bona fide scientific research in consultation with a licensed
veterinarian in this state;
(i) A person treating or relieving a living animal in the case of an emergency for no fee or
other compensation; and
(j) A person who disposes of the carcass of a dead animal.
§30-10-18. Display of license.
(a) The board shall prescribe the form for a license, permit, registration and certificate and
may issue a duplicate upon payment of a fee.
(b) Any person regulated by the article shall conspicuously display his or her
license, permit, registration or certification at his or her principal business location.
§
30-10-19. Complaints; investigations; due process procedure; grounds for disciplinary
action.
(a) The board may upon its own motion 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, permittee, registrant or certificate holder.
(c) The board may cause an investigation to be made into the facts and circumstances giving
rise to the complaint and any person regulated by this article has an affirmative duty to assist the
board, or its authorized representative, in the conduct of its investigation.
(d) After reviewing any information obtained through an investigation, the board shall
determine if probable cause exists that the licensee, permittee, registrant or certificate holder has
violated any provision of this article or rules promulgated pursuant to this article.
(e) Upon a finding that probable cause exists that the licensee, permittee, registrant or
certificate holder 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, permit, registration or certification or the imposition of sanctions against the licensee,
permittee, registrant or certificate holder. The hearing shall be held in accordance with the
provisions of section twenty-one of this article.
(f) 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.
(g) Any member of the board or its executive director may sign a consent decree or other
legal document on behalf of the board.
(h) The board may, after notice and opportunity for hearing, deny, refuse to renew, suspend
or revoke the license, permit, registration or certification of, impose probationary conditions upon
or take disciplinary action against, any licensee, permittee, registrant or certificate holder for any of
the following reasons:
(1) Obtaining a license, permit, registration or certification 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 as defined by legislative rule of the board;
(4) Violating any provision of this article, lawful order or legislative rule of the board;
(5) Having had a license or other authorization revoked or suspended, other disciplinary
action taken, or an application for licensure or other authorization refused, revoked or suspended by
the proper authorities of another jurisdiction, irrespective of intervening appeals and stays; or
(6) Engaging in any act which has endangered or is likely to endanger the health, welfare or
safety of the public.
(i) For the purposes of subsection (h) of this section, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 a day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee, permittee, registrant or certificate holder to report to the board for
periodic interviews for a specified period of time; or
(7) Other corrective action considered by the board to be necessary to protect the public,
including advising other parties whose legitimate interests may be at risk.
§30-10-20. 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, the administrative law judge
shall prepare a proposed written order containing findings of fact and conclusions of law at the
conclusion of a hearing. 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, permittee, registrant or certificate
holder 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.
§30-10-21. Judicial review; appeal to Supreme Court of Appeals.
Any licensee, permittee, registrant or certificate holder 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.
§30-10-22. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason
to believe that a 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) Any 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 a
correctional facility not more than six months, or both fined and confined.
§30-10-23. 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 Morgan, the Government Organization amendment was amended
on page one, by amending the enacting section to read as follows:
"That §30-3-18 of the Code of West Virginia, 1931, as amended, be repealed; and that §30-3-
2, §30-3-4, §30-3-5, §3-3-6 and §30-3-8 of said code be amended and reenacted, all to read as
follows" and a semicolon.
On page sixteen, section twenty, line twelve, after the words "boards to report to", by striking
out the words "an agency head, a cabinet secretary or the Governor," and inserting in lieu thereof the
words "an agency head or cabinet secretary" and a comma.
On page seventeen, line twenty-four, section four, after the words "radiofrequency devices",
by striking out the comma and inserting in lieu thereof a period, and by striking out the words "but
does not include non-invasive procedures offered for purely cosmetic purposes" and a period.
And,
On page twenty-three, following line nineteen, by striking out the remainder of the
amendment.
The Government Organization Committee amendment, as amended, was then adopted.
There being no further amendments, the bill 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 88, nays 9, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Armstead, Lane, Louisos, McGeehan, J. Miller, Porter, Schoen, Sobonya and Sumner.
Absent And Not Voting: Argento, Brown and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 372) passed.
On motion of Delegate Morgan, the title of the bill was amended to read as follows:
S. B. 372 - "A Bill to repeal §30-1-15 of the Code of West Virginia, 1931, as amended; to
amend and reenact §30-1-2a, §30-1-5, §30-1-6, §30-1-8, §30-1-11 and §30-1-14 of said code; to
amend said code by adding thereto two new sections, designated §30-1-19 and §30-1-20; and to
amend and reenact §30-3-2, §30-3-4, §30-3-5, §30-3-6 and §30-3-8 of said code, all relating to
professional licensing boards; revising requirements for specific subject matter at board training
sessions; clarifying who may call a board meeting; clarifying the establishment of quorums;
clarifying that boards must maintain offices open to the public; clarifying the requirement to report violations; providing civil immunity for reporting violations in good faith; authorizing boards to
propose fees notwithstanding specific fees established in code; requiring boards to redact social
security numbers from copies of documents provided to the public; expanding the methods by which
boards may notify licensees of proposed fees in legislative rules; authorizing boards to levy fines;
removing the limitation on the amount of fines which may be levied; authorizing boards to hire
administrative law judges; clarifying procedures governing hearings; clarifying that board members
must adhere to ethical standards for appointed officials; authorizing boards to establish a process for
modifying or waiving continuing education requirements or renewal fees for licensees in active duty
military service; requiring regulatory board reviews; clarifying independent status of boards;
providing definitions; updating current terminology; removing outdated language; and making
technical corrections."
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. 483, Authorizing HMOs offer point of service option; on third reading,
coming up in regular order, with an amendment pending and the further right to amend, was reported
by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"That §33-25A-2 and §33-25A-5 of the Code of West Virginia, 1931, as amended, be
amended and reenacted to read as follows:
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-2. Definitions.
(1) 'Basic health care services' means physician, hospital, out-of-area, podiatric, chiropractic,
laboratory, X ray, emergency, treatment for serious mental illness as provided in section three-a,
article sixteen of this chapter, and cost-effective preventive services including immunizations, well-child care, periodic health evaluations for adults, voluntary family planning services, infertility
services, and children's eye and ear examinations conducted to determine the need for vision and
hearing corrections, which services need not necessarily include all procedures or services offered
by a service provider.
(2) 'Capitation' means the fixed amount paid by a health maintenance organization to a
health care provider under contract with the health maintenance organization in exchange for the
rendering of health care services.
(3) 'Commissioner' means the commissioner of insurance.
(4) 'Consumer' means any person who is not a provider of care or an employee, officer,
director or stockholder of any provider of care.
(5) 'Copayment' means a specific dollar amount, or percentage, except as otherwise provided
for by statute, that the subscriber must pay upon receipt of covered health care services and which
is set at an amount or percentage consistent with allowing subscriber access to health care services.
(6) 'Employee' means a person in some official employment or position working for a salary
or wage continuously for no less than one calendar quarter and who is in such a relation to another
person that the latter may control the work of the former and direct the manner in which the work
shall be done.
(7) 'Employer' means any individual, corporation, partnership, other private association, or
state or local government that employs the equivalent of at least two full-time employees during any
four consecutive calendar quarters.
(8) 'Enrollee', 'subscriber' or 'member' means an individual who has been voluntarily
enrolled in a health maintenance organization, including individuals on whose behalf a contractual
arrangement has been entered into with a health maintenance organization to receive health care
services.
(9) 'Evidence of coverage' means any certificate, agreement or contract issued to an enrollee
setting out the coverage and other rights to which the enrollee is entitled.
(10) 'Health care services' means any services or goods included in the furnishing to any
individual of medical, mental or dental care, or hospitalization or incident to the furnishing of the
care or hospitalization, osteopathic services, chiropractic services, podiatric services, home health,
health education or rehabilitation, as well as the furnishing to any person of any and all other services
or goods for the purpose of preventing, alleviating, curing or healing human illness or injury.
(11) 'Health maintenance organization' or 'HMO' means a public or private organization
which provides, or otherwise makes available to enrollees, health care services, including at a
minimum basic health care services and which:
(a) (A) Receives premiums for the provision of basic health care services to enrollees on a
prepaid per capita or prepaid aggregate fixed sum basis, excluding copayments;
(b) (B) Provides physicians' services primarily: (i) Directly through physicians who are
either employees or partners of the organization; or (ii) through arrangements with individual
physicians or one or more groups of physicians organized on a group practice or individual practice
arrangement; or (iii) through some combination of paragraphs (i) and (ii) of this subdivision;
(c) (C) Assures the availability, accessibility and quality, including effective utilization, of
the health care services which it provides or makes available through clearly identifiable focal points
of legal and administrative responsibility; and
(d) (D) Offers services through an organized delivery system in which a primary care
physician or primary care provider is designated for each subscriber upon enrollment. The primary
care physician or primary care provider is responsible for coordinating the health care of the
subscriber and is responsible for referring the subscriber to other providers when necessary:
Provided, That when dental care is provided by the health maintenance organization the dentist
selected by the subscriber from the list provided by the health maintenance organization shall
coordinate the covered dental care of the subscriber, as approved by the primary care physician or
the health maintenance organization.
(12) 'Impaired' means a financial situation in which, based upon the financial information
which would be required by this chapter for the preparation of the health maintenance organization's
annual statement, the assets of the health maintenance organization are less than the sum of all of
its liabilities and required reserves including any minimum capital and surplus required of the health
maintenance organization by this chapter so as to maintain its authority to transact the kinds of
business or insurance it is authorized to transact.
(13) 'Individual practice arrangement' means any agreement or arrangement to provide
medical services on behalf of a health maintenance organization among or between physicians or
between a health maintenance organization and individual physicians or groups of physicians, where
the physicians are not employees or partners of the health maintenance organization and are not
members of or affiliated with a medical group.
(14) 'Insolvent' or 'insolvency' means a financial situation in which, based upon the financial
information that would be required by this chapter for the preparation of the health maintenance
organization's annual statement, the assets of the health maintenance organization are less than the
sum of all of its liabilities and required reserves.
(15) 'Medical group' or 'group practice' means a professional corporation, partnership,
association or other organization composed solely of health professionals licensed to practice
medicine or osteopathy and of other licensed health professionals, including podiatrists, dentists and
optometrists, as are necessary for the provision of health services for which the group is responsible:
(a) A majority of the members of which are licensed to practice medicine or osteopathy; (b) who as
their principal professional activity engage in the coordinated practice of their profession; (c) who
pool their income for practice as members of the group and distribute it among themselves according
to a prearranged salary, drawing account or other plan; and (d) who share medical and other records
and substantial portions of major equipment and professional, technical and administrative staff.
(16) 'Point of service option' means a delivery system that permits an enrollee to receive
health care services from a provider outside of the panel of providers with which the health maintenance organization has a contractual arrangement under the terms and conditions of the
enrollee's contract with the health maintenance organization or the insurance carrier that provides
the point of service option.
(16)(17) 'Premium' means a prepaid per capita or prepaid aggregate fixed sum unrelated to
the actual or potential utilization of services of any particular person which is charged by the health
maintenance organization for health services provided to an enrollee.
(17)(18) 'Primary care physician' means the general practitioner, family practitioner,
obstetrician/gynecologist, pediatrician or specialist in general internal medicine who is chosen or
designated for each subscriber who will be responsible for coordinating the health care of the
subscriber, including necessary referrals to other providers.
(18)(19) 'Primary care provider' means a person who may be chosen or designated in lieu
of a primary care physician for each subscriber, who will be responsible for coordinating the health
care of the subscriber, including necessary referrals to other providers, and includes:
(a) (A) An advanced nurse practitioner practicing in compliance with article seven, chapter
thirty of this code and other applicable state and federal laws, who develops a mutually agreed upon
association in writing with a primary care physician on the panel of and credentialed by the health
maintenance organization; and
(b) (B) A certified nurse-midwife, but only if chosen or designated in lieu of a subscriber's
primary care physician or primary care provider during the subscriber's pregnancy and for a period
extending through the end of the month in which the sixty-day period following termination of
pregnancy ends.
(c) (C) Nothing in this subsection may be construed to expand the scope of practice for
advanced nurse practitioners as governed by article seven, chapter thirty of this code or any
legislative rule, or for certified nurse-midwives, as defined in article fifteen, chapter thirty of this
code.
(19)(20) 'Provider' means any physician, hospital or other person or organization which is
licensed or otherwise authorized in this state to furnish health care services.
(20)(21) 'Uncovered expenses' means the cost of health care services that are covered by a
health maintenance organization, for which a subscriber would also be liable in the event of the
insolvency of the organization.
(21)(22) 'Service area' means the county or counties approved by the commissioner within
which the health maintenance organization may provide or arrange for health care services to be
available to its subscribers.
(22)(23) 'Statutory surplus' means the minimum amount of unencumbered surplus which a
corporation must maintain pursuant to the requirements of this article.
(23)(24) 'Surplus' means the amount by which a corporation's assets exceeds its liabilities
and required reserves based upon the financial information which would be required by this chapter
for the preparation of the corporation's annual statement except that assets pledged to secure debts
not reflected on the books of the health maintenance organization shall not be included in surplus.
(24)(25) 'Surplus notes' means debt which has been subordinated to all claims of subscribers
and general creditors of the organization.
(25)(26) 'Qualified independent actuary' means an actuary who is a member of the American
academy of actuaries or the society of actuaries and has experience in establishing rates for health
maintenance organizations and who has no financial or employment interest in the health
maintenance organization.
(26)(27) 'Quality assurance' means an ongoing program designed to objectively and
systematically monitor and evaluate the quality and appropriateness of the enrollee's care, pursue
opportunities to improve the enrollee's care and to resolve identified problems at the prevailing
professional standard of care.
(27)(28) 'Utilization management' means a system for the evaluation of the necessity,
appropriateness and efficiency of the use of health care services, procedure and facilities.
§33-25A-5. Powers of health maintenance organizations.
(a) Upon obtaining a certificate of authority as required under this article, a health
maintenance organization may enter into health maintenance contracts in this state and engage in any
activities, consistent with the purposes and provisions of this article, which are necessary to the
performance of its obligations under such contracts, subject to the limitations provided
for in this
article.
A health maintenance organization may offer to its enrollees in conjunction with the benefits
provided to them through their contractual arrangement for health services with the health
maintenance organization a point of service option to be provided either by the health maintenance
organization directly or by an insurance carrier licensed in this state with which the health
maintenance organization has a contractual arrangement. Benefits for health care services within
the health maintenance organization's contracted provider panel shall comply with all other
provisions of this article. The commissioner may promulgate rules and regulations limiting or
regulating the powers of health maintenance organizations which he finds to be in the public interest.
(b) The commissioner shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code limiting or regulating the powers of
health maintenance organizations which the commissioner finds to be in the public interest. The
commissioner may promulgate emergency rules pursuant to the provisions of section fifteen, article
three, chapter twenty-nine-a of this code to implement standards and requirements for a point of
service option."
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 351),
and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Brown, Paxton and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 483) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 483 - "A Bill to amend and reenact §33-25A-5 and §33-25A-5 of the
Code of West Virginia, 1931, as amended, relating to health maintenance organizations; authority
to provide a point of service option; and authority for the Office of the Insurance Commissioner to
develop standards for a point of service option by legislative and emergency rule."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Delegate Doyle announced that he was absent on the vote was taken on
Com. Sub. for S.
B. 435, (Roll No. 345)
Relating to speed-detecting device use law
, and that had he been present, he
would have voted "Yea" thereon.
Delegate Hatfield announced that she was absent when the vote was taken on Com. Sub. for
H. B. 2773, (Roll No. 325) Increasing the monetary penalties for selling tobacco products to minors,
and that had she been present, she would have voted "Yea" thereon.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment
and requested the House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
H. B. 4177, Dedicating five percent of coal severance tax to the county of origin.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Fanning, White and K. Facemyer.
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 Kominar, Eldridge and Walters.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment
and requested the House of Delegates to agree to the appointment of a Committee of Conference of
five from each house on the disagreeing votes of the two houses as to
H. B. 4593, Relating to high school graduation improvement.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Prezioso, Edgell, White, Boley and Guills.
On motion of Delegate Boggs, the House of Delegates agreed to the appointment of a
Committee of Conference of five 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 M. Poling, Paxton, Stowers, Perry and Duke.
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 agreed to the appointment of a
Committee of Conference of three from each house on the disagreeing votes of the two houses as
to
Com. Sub. for S. B. 230, Relating to Board of Optometry.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Bowman, Kessler and K. Facemyer.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had agreed to the appointment of a
Committee of Conference of three from each house on the disagreeing votes of the two houses as
to
Com. Sub. for S. B. 480, Relating to public higher education personnel.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Plymale, Laird and Guills.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendments of the House of
Delegates and the passage, as amended, of
Com. Sub. for S. B. 183, Creating Diesel-Powered Motor Vehicle Idling Act,
Com Sub. for S. B. 496, Allowing Environmental Protection Council certain rule-making
authority,
Com. Sub. for S. B. 507, Creating WV Innovative Mine Safety Technology Tax Credit Act,
Com. Sub. for S. B. 515, Relating to firearms' purchases and licensing,
Com. Sub. for S. B. 614, Relating to PSC approval of high voltage transmission line
construction,
And,
S. B. 648, Repealing outdated and obsolete sections of education code.
Special Calendar
Third Reading
Com. Sub. for S. B. 518, Creating Governor's Commission to Seize Future of Energy for
America; on third reading, coming up in regular order, with an amendment pending and the further
right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §5B-2F-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted,
to read as follows:
ARTICLE 2F. DIVISION OF ENERGY.
.
§5B-2F-2. Purpose; office of Director for Energy Development; director to be member of
Public Energy Authority; division to develop energy policy and development
plan; contents of energy policy and development plan; and division to promote
energy initiatives.
(a) Effective July 1, 2007, the Division of Energy is created as a state agency under the
Department of Commerce. The division may receive federal funds. The division shall be
administered by a director, who shall be appointed by the Governor, by and with the advice and
consent of the Senate, and shall continue to serve until his or her successor is appointed and qualified
as provided. The director shall be selected with special preference and consideration given to his
or her training, experience, capacity and interest in energy policy and development activities.
(b) Creation of the division is intended to provide leadership for developing energy policies
emphasizing the increased efficiency of energy use, the increased development and production of
new and existing domestic energy sources, the increased awareness of energy use on the environment
and the economy, dependable, efficient and economical statewide energy systems capable of
supporting the needs of the state, increased energy self-sufficiency where the ratio of indigenous to
imported energy use is increased, reduce the ratio energy consumption to economic activity and
maintain low-cost energy. The energy policies and development plans shall also provide direction
for the private sector.
(c) The director shall administer the daily operations of the Public Energy Authority provided
under the provisions of chapter five-d of this code. The director shall also have authority over the
Office of Coalfield Community Development, created by the provisions of article two-a of this
chapter, and the energy efficiency program existing under the West Virginia Development Office which are hereby transferred to the division. The director shall effectuate coordination of these
entities relative to the purposes provided in this article.
(d) The division shall develop an energy policy and shall report the same back to the
Governor and the Joint Committee on Government and Finance before December 1, 2007. The
energy policy shall be a five-year plan setting forth the state's energy policies and shall provide a
direction for the private sector. Prior to the expiration of the energy policy, the division shall begin
review of the policy and submit a revised energy policy to the Governor and the Joint Committee on
Government and Finance six months before the expiration of the policy.
(e) The director shall be a member of the Public Energy Authority and as such shall attend
and participate in all official meetings and public hearings conducted under the auspices of the
authority.
(f) The division shall prepare and submit an annual energy development plan to the Governor
and the Joint Committee on Government and Finance on or before December 1, of each year. The
development plan shall relate to the division's implementation of the energy policy and the activities
of the division during the previous year. The development plan shall include any recommended
legislation. The Public Energy Authority, the Office of Coalfield Community Development, the
energy efficiency program, the Department of Environmental Protection and the Public Service
Commission, in addition to their other duties prescribed by this code, shall assist the division and
the director in the development of an energy policy and related development plans. The energy
development plan shall set forth the plans for implementing the state's energy policy and shall
provide a direction for the private sector. The energy development plan shall recognize the powers
of the Public Energy Authority as to development and financing of projects under its jurisdiction and
shall make such recommendations as are reasonable and practicable for the exercise of such powers.
(g) The division shall hold public hearings and meetings with notice to receive public input
regarding proposed energy policies and development plans. The energy policy and development
plans required by subsections (d) and (f) of this section shall address increased efficiency of energy use, traditional and alternative energy, water as a resource and a component of energy production,
energy distribution systems, the siting of energy facilities, the increased development and production
of new and existing domestic energy sources, increased awareness of energy use on the environment
and the economy, energy infrastructure, the development and implementation of renewable, clean,
technically innovative and advanced energy projects in this state. Projects may include, without
limitation, solar and wind energy, low-impact hydro power, geothermal, biomass, landfill gas, fuel
cells, renewable hydrogen fuel technologies, waste coal, coal mine methane, coal gasification to
ultraclean fuels, solid waste to fuel grade ethanol and coal liquefaction technologies.
(h) The division may propose rules for legislative approval in accordance with the provisions
of article three, chapter twenty-nine-a of this code designed to implement an energy policy and
development plan in accordance with the provisions of this chapter.
(i) The energy policy and development plans required by subsections (d) and (f) of this
section shall identify and report on the energy infrastructure in this state and include without
limitation energy infrastructure related to protecting the state's essential data, information systems
and critical government services in times of emergency, inoperativeness or disaster. In consultation
with the Director of the Division of Homeland Security and Emergency Management, the director
of the division shall encourage the development of energy infrastructure and strategic resources that
will ensure the continuity of governmental operations in situations of emergency, inoperativeness
or disaster.
(j) In preparing or revising the energy policy and development plan, the division may rely
upon internal staff reports or the advice of outside advisors or consultants and may procure such
services with the consent of the Secretary of Commerce. The division may also involve national,
state and local government leadership and energy experts.
(k) The division shall prepare an energy use database, including without limitation, end-use
applications and infrastructure needs for different classes of energy users including residential,
commercial and industrial users, data regarding the interdependencies and sources of electricity, oil, coal, water and gas infrastructure, data regarding energy use of schools and state-owned facilities and
collect data on the impact of the energy policy and development plan on the decisions and strategies
of energy users of the state.
(l) The division shall promote collaboration between the state's universities and colleges,
private industry and nonprofit organizations to encourage energy research and leverage available
federal energy research and development resources.
(m) The division shall promote initiatives to enhance the nation's energy security through
research and development directed at transforming the state's energy resources into the resources that
fuel the nation.
(n) The Performance Evaluation and Research Division of the Legislative Auditor's office
shall perform an agency review of the Division of Energy in 2010 as part of its review of the
Department of Commerce as set forth in article four, chapter ten of this code.
(o) The division shall work with the President of the United States and his or her
administration to develop a plan that would allow West Virginia to become the leader in
transitioning the United States to a new energy future.
(p) The division is to determine the best way for West Virginia to utilize its resources and
any federal funding to develop the technologies that are necessary for such a transition.
(q) The division is to clearly articulate West Virginia's position on an energy solution for the
United States that encompasses clean coal, natural gas, transtech energy technologies and renewable
energy technologies.
(r) The division shall develop and distribute an informational program and policies that
emphasize the importance of West Virginia energy resources and their positive impact on the eastern
seaboard and the nation.
(s) The division shall monitor legal challenges to the energy industries in the state and submit
a report quarterly to the Joint Committee on Government and Finance. The report shall contain
information relating to any litigation that challenges any statute that could affect the production, distribution and utilization of natural resources of the state."
There being no further amendments, the bill 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 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Brown and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 518) passed.
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. 518 - "A Bill to amend and reenact §5B-2F-2 of the Code of West
Virginia, 1931, as amended, relating to the duties of the Division of Energy and the Office of the
Director for Energy Development."
Delegate Boggs moved that the bill take effect July 1, 2010.
On this question, the yeas and nays were taken
(Roll No. 353), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Brown and Ross.
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. 518) takes effect July 1, 2010.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 698, Relating to mini-trucks' registration and certificate of title requirements; on third
reading, coming up in regular order, with an amendment pending and the further right to amend, was
reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page four, section two, line forty, following the word "persons", by striking out the remainder of the paragraph and in lieu thereof, inserting a period and the
following language:
"
For the purposes of this section, mini-truck means a foreign-manufactured import or
domestic-manufactured vehicle designed primarily for off-road use and powered by an engine
ranging in size from 550cc to 660cc and weighing approximately one thousand eight hundred
pounds" and a semicolon.
And,
On page seven, section two, line one hundred one, following the words "all-terrain vehicles"
by adding a comma and the words "
utility terrain vehicle".
On motion of Delegate Miley, the bill was amended on page on page five, section two, line
seventy-seven, after the word "property" and the period inserting the following:
"
Nothing in this section or any rule promulgated under the authority of chapter twenty-nine-a
of this code may be construed to require any applicant for a renewal of a farm use exemption
certificate to appear personally before any assessor."
There being no further amendments, the bill 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 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Brown and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 698) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
S. B. 698 - "A Bill to amend and reenact §17A-3-2 of the Code of West Virginia, 1931, as
amended, relating to motor vehicle registration requirements; adding an exemption from registration
and certificate of title requirements for mini-trucks used for agricultural or horticultural purposes;
increasing the distance for transporting fixtures attached to implements of husbandry; providing that an applicant for a farm use exemption certificate may not be required to appear before any assessor
for renewal; and adding utility terrain vehicles to the list of recreational vehicles exempt from
registration requirements."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 664, Relating to duties of protected person's guardian; on third reading, coming up in
regular order, with an amendment pending and the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
on page one, following the enacting section, by striking out the remainder of the bill and inserting
in lieu thereof the following language:
"
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-1. Duties of guardian of protected person.
A (a) The guardian of a protected person
owes a fiduciary duty to the protected person and
shall be is responsible for obtaining provision for and making decisions with respect to the protected
person's support, care, health, habilitation, education, therapeutic treatment,
social interactions with
visiting friends and family, and, if not inconsistent with an order of commitment or custody, to
determine the protected person's residence.
(b) A guardian shall maintain sufficient contact
of not less than once very six months with
the protected person to know of the protected person's capabilities, limitations, needs, and
opportunities.
and such contact shall not be less frequent than one visit every six months.
(c) A guardian shall be required to seek prior court authorization to change the protected
person's residence to another state, to terminate or consent to a termination of the protected person's
parental rights, to initiate a change in the protected person's marital status, to deviate from a
protected person's living will or medical power of attorney, or to revoke or amend a durable power
of attorney executed by the protected person.
(d) A guardian shall exercise authority only to the extent necessitated by the protected person's limitations, and, where feasible, shall encourage the protected person to participate in
decisions, to act on his or her own behalf, and to develop or regain the capacity to manage personal
affairs.
(e) A guardian shall, to the extent known, consider the express desires and personal values
of the protected person when making decisions, and shall otherwise act in the protected person's best
interests and exercise reasonable care, diligence, and prudence.
(f) Upon the petition of an interested party or upon its own motion, the court or Mental
Hygiene Commissioner may order the guardian to take appropriate action to address the needs and
best interests of the protected person as required by this section.
§44A-3-2. Reports by guardian of protected person.
(a) Any guardian appointed pursuant to the provisions of this chapter shall file periodic
reports, in accordance with section eleven of this article
including:
(a) The guardian's report shall include:
(1) A description of the current mental, physical, and social condition of the protected person;
(2) A description of the protected person's living arrangements during the reported period;
(3) The medical, educational, vocational, and other professional services provided to the
protected person and the guardian's opinion as to the adequacy of the protected person's care;
(4) A summary of the guardian's visits with
the protected person, the guardian's social
interactions with the protected persons, the guardian's efforts and activities on behalf of the protected
person, including the guardian's efforts facilitating on behalf of the protected person social
interactions with visiting friends and families, and the guardian's efforts facilitating the protected
person engagement in social activities; and the activities on behalf of the protected person;
(5) A statement of whether the guardian agrees with the current treatment or habilitation plan;
(6) A recommendation as to the need for continued guardianship and any recommended
changes in the scope of the guardianship;
(7) Any other information requested by the court or useful in the opinion of the guardian;
(8) The compensation requested and the reasonable and necessary expenses incurred by the
guardian; and
(9) A verification signed by the guardian stating that all of the information contained in the
report is true and correct to the best of his or her knowledge.
(b) The court may order the guardian to attend a hearing on the report by motion of the court
or Mental Hygiene Commissioner, or upon the petition of any interested person. A report of the
guardian may be incorporated into and made a part of the accounting of the conservator."
On motion of Delegate Miley, the House Judiciary Committee Amendment was amended on
page one, section one, line seven, immediately following the word "with", by striking out the word
"visiting",
And,
On page three, section two, line seven, immediately following the word "with" by striking
out the word "visiting".
The Judiciary Committee amendment, as amended, was then adopted.
There being no further amendments, the bill 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 98, nays none, absent and not voting 2, with the absent and not voting being
as follows:
Absent And Not Voting: Argento and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 664) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
S. B. 664 - "A Bill to amend and reenact §44A-3-1 and §44A-3-2 of the Code of West
Virginia, 1931, as amended, all relating to the duties and reports of the guardian of a protected
person; providing that the guardian owes a fiduciary duty to act in the best interests of the protected
person; requiring the guardian to make provision for social interactions between the protected person and the protected person's friends and family; requiring the periodic guardian reports to include a
summary of the guardian's efforts and activities on behalf of the protected person; and including the
guardian's efforts to facilitate the protected persons involvement in social activities and social
interaction with friends and family as a part of the guardian's periodic reports."
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. 669, Allowing municipalities to operate teen courts; on third reading,
coming up in regular order, with an amendment pending and the further right to amend, was reported
by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"That §49-5-11 and §49-5-13d of the Code of West Virginia, 1931, as amended, be amended
and reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-11. Adjudication for alleged status offenders and delinquents; mandatory initial
disposition of status offenders.
At the outset of an adjudicatory hearing, the court shall inquire of the juvenile whether he or
she wishes to admit or deny the allegations in the petition. The juvenile may elect to stand mute, in
which event the court shall enter a general denial of all allegations in the petition.
(a) If the respondent juvenile admits the allegations of the petition, the court shall consider
the admission to be proof of the allegations if the court finds: (1) The respondent fully understands
all of his or her rights under this article; (2) the respondent voluntarily, intelligently and knowingly
admits all facts requisite for an adjudication; and (3) the respondent in his or her admission has not
set forth facts which constitute a defense to the allegations.
(b) If the respondent juvenile denies the allegations, the court shall dispose of all pretrial motions and the court or jury shall proceed to hear evidence.
(c) If the allegations in a petition alleging that the juvenile is delinquent are admitted or are
sustained by proof beyond a reasonable doubt, the court shall schedule the matter for disposition
pursuant to section thirteen of this article.
(d) If the allegations in a petition alleging that the juvenile is a status offender are admitted
or sustained by clear and convincing proof, the court shall refer the juvenile to the department of
health and human resources for services, pursuant to section eleven-a of this article and order the
department to report back to the court with regard to the juvenile's progress at least every ninety days
or until the court, upon motion or sua sponte, orders further disposition under section eleven-a of this
article or dismisses the case from its docket:
Provided, That in a judicial circuit operating its own
truancy program, a circuit judge may in lieu of referring truant juveniles to the department, order that
the juveniles be supervised by his or her probation office.
(e) If the allegations in a petition are not sustained by proof as provided in subsections (c)
and (d) of this section, the petition shall be dismissed and the juvenile shall be discharged if he or
she is in custody.
(f) Findings of fact and conclusions of law addressed to all allegations in the petition shall
be stated on the record or reduced to writing and filed with the record or incorporated into the order
of the court.
§49-5-13d. Teen court program.
(a) Notwithstanding any provision of this article to the contrary, in any county
or municipality
that chooses to institute a teen court program in accordance with the provisions of this section, any
juvenile who is alleged to have committed a status offense or an act of delinquency which would be
a misdemeanor if committed by an adult
or in the case of a violation of a municipal ordinance, an
offense over which municipal courts have concurrent jurisdiction, and who is otherwise subject to
the provisions of this article may be given the option of proceeding in the teen court program as an
alternative to the filing of a formal petition under section seven of this article or proceeding to a disposition as provided by section eleven-a or thirteen of this article, as the case may be. The
decision to extend the option to enter the teen court program as an alternative procedure shall be
made by the circuit
or municipal court if the court finds that the offender is a suitable candidate for
the program. No juvenile may enter the teen court program unless he or she and his or her parent
or guardian consent. Any juvenile who does not successfully cooperate in and complete the teen
court program and any disposition imposed therein shall be returned to the circuit court for further
disposition as provided by section eleven-a or thirteen of this article, as the case may be
or return to
a municipal court for further disposition for cases originating in circuit court consistent with any
applicable ordinance.
(b) The following provisions apply to all teen court programs:
(1) The judge for each teen court proceeding shall be an acting or retired circuit court judge
or an active member of the West Virginia State Bar, who serves on a voluntary basis.
(2) Any juvenile who selects the teen court program as an alternative disposition shall agree
to serve thereafter on at least two occasions as a teen court juror.
(3) Volunteer students from grades seven through twelve of the schools within the county
shall be selected to serve as defense attorney, prosecuting attorney, court clerk, bailiff and jurors for
each proceeding.
(4) Disposition in a teen court proceeding shall consist of requiring the juvenile to perform
sixteen to forty hours of community service, the duration and type of which shall be determined by
the teen court jury from a standard list of available community service programs provided by the
county juvenile probation system and a standard list of alternative consequences that are consistent
with the purposes of this article. The performance of the juvenile shall be monitored by the county
juvenile probation system
for cases originating in the circuit court's jurisdiction, or municipal teen
court coordinator or other designee for cases originating in the municipal court's jurisdiction. The
juvenile shall also perform at least two sessions of teen court jury service and, if considered
appropriate by the circuit court judge
or teen court judge, participate in an education program. Nothing in this section may be construed so as to deny availability of the services provided under
section eleven-a of this article to juveniles who are otherwise eligible
therefor for such service.
(c) The rules for administration, procedure and admission of evidence shall be determined
by the chief circuit judge
or teen court judge, but in no case may the court require a juvenile to admit
the allegation against him or her as a prerequisite to participation in the teen court program. A copy
of these rules shall be provided to every teen court participant.
(d) Each county
or municipality that operates, or wishes to operate, a teen court program as
provided in this section is hereby authorized to adopt a mandatory fee of up to five dollars to be
assessed as provided in this subsection. Municipal courts may assess a fee pursuant to the provisions
of this section upon authorization by the city council of
said the municipality. Assessments collected
by the clerk of the court pursuant to this subsection shall be deposited into an account specifically
for the operation and administration of a teen court program. The clerk of the court of conviction
shall collect the fees established in this subsection and shall remit the fees to the teen court program.
Any mandatory fee established by a county commission or city council in accordance with
the provisions of this subsection shall be paid by the defendant on a judgment of guilty or a plea of
nolo contendere for each violation committed in the county or municipality of any felony,
misdemeanor or any local ordinance, including traffic violations and moving violations but
excluding municipal parking ordinances.
Municipalities operating teen courts are authorized to use
fees assessed in municipal court pursuant to this subsection for operation of a teen court in their
municipality."
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 356),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Porter and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 669) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 669 - "A Bill to amend and reenact §49-5-11 and §49-5-13d of the
Code of West Virginia, 1931, as amended, all relating to juvenile proceedings; providing circuit
court judges the option to refer truant juveniles to be supervised by his or her probation office in
judicial circuits that operate a truancy program; allowing municipalities to operate teen courts;
clarifying jurisdiction and procedures for teen courts; authorizing the establishment additional
mandatory municipal court fees to support a municipal teen court; and providing for supervision of
juveniles referred by teen courts."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 357), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Porter and Ross.
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. 669) 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.
S. B. 169, Relating to Economic Development Authority loans' criteria; on third reading,
coming up in regular order, with an amendment pending and the further right to amend, was reported
by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page twelve, section four, line ninety-four, following the word
"operation" and the period, by striking out the remainder of the bill and inserting in lieu thereof the
following:
"
§31-15-12b. Tourism projects; criteria for loans.
Notwithstanding any other provision of this article to the contrary, in developing criteria for loans to a tourism project under this article, the authority shall consider many factors including, but
not limited to, whether any specific number of jobs are or will be created by the project, whether any
existing jobs or jobs to be created by the project are to meet any specific compensation levels, or
whether any existing jobs or jobs to be created by the project provide any specific employee benefits:
Provided, That no tourism project may be denied a loan for the sole reason that a specific number
of jobs will not be created by the project or that existing jobs or jobs to be created by the project will
not meet specific compensation levels or offer any specific employee benefits. Any criteria for a
loan application for a tourism project under this article shall include a requirement that the applicant
provide a jobs impact statement with information as required by the authority".
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 358),
and there were--yeas 82, nays 15, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Armstead, Border, Carmichael, Cowles, Duke, Ireland, McGeehan, C. Miller, J.
Miller, Overington, Porter, Reynolds, Shott, Sobonya and Walters.
Absent And Not Voting: Argento, Ross and Schoen.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 169) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 169 - "A Bill to amend and reenact §31-15-2 and §31-15-4 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated
§31-15-12b, all relating to the West Virginia Economic Development Authority; adding legislative
findings; defining terms; and providing requirements for loan criteria for loans to tourism projects."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 573, Allowing audits published electronically with notice to proper authorities; on third
reading, coming up in regular order, with the right to amend, was reported by the Clerk.
There being no amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 359),
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: Argento and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 573) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 70, Relating to municipalities and counties issuing bonds; on third
reading, coming up in regular order, with an amendment pending and the further right to amend, was
reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page one, after the enacting clause, by striking out the remainder of
the bill in its entirety and inserting in lieu thereof the following:
"That §11-8-6e of the Code of West Virginia, 1931, as amended, be amended and reenacted,
to read as follows:
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 that 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."
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 360),
and there were--yeas 75, nays 23, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Ashley, Azinger, Blair, Border, Cowles, Duke, Ellem, Ireland,
Lane, Louisos, McGeehan, J. Miller, Overington, Porter, Schadler, Schoen, Shott, Sobonya, Sumner,
Susman and Walters.
Absent And Not Voting: Argento and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 70) 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. 70 - "A Bill to amend and reenact §11-8-6e of the Code of West Virginia, 1931, as amended, relating to tile clarification 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."
Delegate Boggs moved that the bill take effect July 1, 2010.
On this question, the yeas and nays were taken
(Roll No. 361), and there were--yeas 85, nays
13, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Cowles, Duke, Ellem, Ireland, Louisos, McGeehan, J. Miller, Porter, Schadler,
Schoen, Shott, Sobonya and Sumner.
Absent And Not Voting: Argento and Ross.
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. 70) takes effect July 1, 2010.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 41, Relating to community enhancement districts; on third reading, coming up in
regular order, with an amendment pending, was, at the request of Delegate Boggs, and by unanimous
consent, placed at the foot of the calendar.
Com. Sub. for S. B. 422, Limiting liability for nonhealth care provider defibrillator users;
on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
There being no amendments, the bill 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 97, nays 1, absent and not voting 2, with the nays and absent and not voting
being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 422) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Delegate Paxton announced that he was absent the vote was taken on
S. B. 483, Authorizing
HMOs offer point of service option, and that had he been present, he would have voted "Yea"
thereon.
Delegate Porter announced that he was absent when the vote was taken on
S. B. 669,
Allowing municipalities to operate teen courts, and that had he been present, he would have voted
"Yea" thereon.
Delegate Brown announced that she was absent when the votes were taken on Roll Nos. 350
through 354, and that had she been present, she would have voted "Yea" thereon.
At 12:34 p.m., on motion of Delegate Boggs, the House of Delegates recessed until 3:00 p.m,
and reconvened at that time.
* * * * * * *
Afternoon Session
* * * * * * *
Reordering of the Calendar
Delegate
Boggs
announced that the Committee on Rules had transferred
S. B. 122, S. B. 350,
Com. Sub. for S. B. 401, Com. Sub. for S. B. 462, S. B. 511. S. B. 512, S. B. 519, S. B. 574, Com.
Sub. for S. B. 624, S. B. 627and S. B. 633, on third reading, House Calendar, to the Special
Calendar.
Special Calendar
Third Reading
Com. Sub. for S. B. 401, Relating to ad valorem property taxes; on third reading, coming
up in regular order, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page five, section one, line thirteen, following the words "arrived at
by", by inserting the word "
also".
On page ten, section two-a, line twenty-four, following the words "valuation in", by striking
out the words "any one or more
districts tax district" and inserting in lieu thereof the words "one or
more
of the tax districts".
On page seventeen, section twelve, following line forty-eight, by striking out subsection (c)
in its entirety.
On page twenty-two, section fifteen-a, line six, following the words "the report required",
by striking out the words "of partnerships".
On page forty-nine, section twenty-four-b, line sixty-one, following the words "a valuation
matter", by inserting the words "that arose".
On page fifty, section twenty-four-b, line sixty-two, following the words "property books",
by striking out the words "are before the board for" and inserting in lieu thereof the words "were
before the board of".
On page fifty, section twenty-four-b, beginning on line seventy-five, following the words
"natural resources property" and the period, by striking out the words "The assessor shall make a
correction in the property books for the next assessment year in accordance with the order" and the
period.
On page sixty, section thirty-two, line three, following the words "on or after", by striking
out the word "January" and inserting in lieu thereof the word "July".
And,
On page seventy-three, section seven, line two, following the words "effective for the", by
striking out the remainder of the sentence and inserting in lieu thereof the words "assessment years
and the tax years beginning on or after July 1, 2011".
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment
and requested the House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
H. B. 4207, Making it unlawful to send obscene, anonymous, harassing and threatening
communications by computer, mobile phone, personal digital assistant or other mobile device.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Browning, Laird and Barnes.
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 Moore, Barker and Ellem.
Third Reading
Com. Sub. for S. B. 401, Relating to ad valorem property taxes; on third reading, was again
reported by the Clerk.
There being no further amendments, the bill was 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 93, nays 2, absent and not voting 5, with the nays and absent and not voting
being as follows:
Nays: Hall and Phillips.
Absent And Not Voting: Argento, Azinger, Cann, Hutchins and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 401) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Delegate Azinger announced that he was absent when the vote was taken on Roll Nos. 363,
and that had he been present, he would have voted "Yea" thereon.
S. B. 350, Recategorizing recycled energy as renewable energy resource; on third reading,
coming up in regular order, with the right to amend, was reported by the Clerk.
There being no amendments, the bill 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 94, nays 1, absent and not voting 5, with the nays and absent and not voting
being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento, Cann, Hutchins, Moore and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 350) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 350 - "A Bill to amend and reenact §24-2F-3 of the Code of West Virginia, 1931, as
amended, relating to definitions used in the alternative and renewable energy portfolio standard;
recategorizing recycled energy as a renewable energy resource for the purposes of purchasing energy
resource credits; and removing restriction that ethanol be produced from sources other than corn in
order to be a renewable energy resource."
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. 238, Relating to mineral rights' 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. 365),
and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann, Hutchins and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 238) 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. 610, Extending statutory exemption to certain out-of-school time programs; 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. 366),
and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting
being as follows:
Nays: Walters.
Absent And Not Voting: Argento, Cann, Hutchins and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 610) passed.
An amendment to the title of the bill, recommended by the Committee on Government
Organization, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 610 - "A Bill to amend and reenact §49-2B-3 of the Code of West Virginia, 1931, as
amended, relating to child care services; providing requirements for out-of-school time programs;
exempting certain programs; requiring registration of certain programs; requiring licensed or
registered child care centers to have an annually updated written plan for evacuation in the event of
an emergency; providing for plan requirements; providing for plan distribution and availability
requirements; and making the evacuation plan a point of investigation before a new license is
received."
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. 449, Relating to PEIA preexisting conditions limitations; 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. 367),
and there were--yeas 86, nays 10, absent and not voting 4, with the nays and absent and not voting
being as follows:
Nays: Andes, Blair, Border, Ellem, McGeehan, J. Miller, Overington, Schoen, Shott and
Walters.
Absent And Not Voting: Argento, Cann, Hutchins and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 449) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 449 - "A Bill to amend and reenact §5-16-17 of the Code of West Virginia, 1931, as
amended, relating to the West Virginia Public Employees Insurance Act generally; clarifying the
definition of pre-existing condition; and providing instances in which participants may enroll or
make plan selections."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 453, Providing State Register subscribers electronic format option; 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. 368),
and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann, Hutchins and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 453) 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. 465, Relating to utility service disconnection; on third reading, coming
up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was 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 language:
"That §8-19-12a of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that §8-20-10 of said code be amended and reenacted; that §16-13-16 of said code be amended and
reenacted; that §16-13A-9 of said code be amended and reenacted; and that §24-3-10 of said code
be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 19. MUNICIPAL AND COUNTY WATERWORKS AND ELECTRIC POWER
SYSTEMS.
§8-19-12a. Deposit required for new customers; lien for delinquent service rates and charges;
failure to cure delinquency; payment from deposit; reconnecting deposit;
return of deposit; liens; civil actions; deferral of filing fees and costs in
magistrate court action; limitations with respect to foreclosure.
(a)(1) Whenever any rates and charges for water services or facilities furnished remain unpaid
for a period of twenty days after the same become due and payable, the property and the owner
thereof, as well as the user of the services and facilities provided, shall be delinquent and the owner,
user and property shall be held liable at law until such time as all such rates and charges are fully
paid. When a payment has become delinquent, the municipality may utilize any funds held as a
security deposit to satisfy the delinquent payment. All new applicants for service shall indicate to
the municipality or governing body whether they are an owner or tenant with respect to the service
location.
(2) The municipality or governing body, but only one of them, may collect from all new applicants for service a deposit of $50 or two twelfths of the average annual usage of the applicant's
specific customer class, whichever is greater, to secure the payment of water service rates, fees and
charges in the event they become delinquent as provided in this section. In any case where a deposit
is forfeited to pay service rates, fees and charges which were delinquent and the user's service is
disconnected or terminated, no reconnection or reinstatement of service may be made by the
municipality or governing body until another deposit equal to $50 or a sum equal to two twelfths of
the average usage for the applicant's specific customer class, whichever is greater, is remitted to the
municipality or governing body. After twelve months of prompt payment history, the municipality
or governing body shall return the deposit to the customer or credit the customer's account with
interest at a rate as the Public Service Commission may prescribe:
Provided, That where the
customer is a tenant, the municipality or governing body is not required to return the deposit until
the time the tenant discontinues service with the municipality or governing body. Whenever any
rates, fees, rentals or charges for services or facilities furnished remain unpaid for a period of twenty
days after the same become due and payable, the user of the services and facilities provided is
delinquent and the user is liable at law until all rates, fees and charges are fully paid. The
municipality or governing body may, under reasonable rules promulgated by the Public Service
Commission, shut off and discontinue water services to a delinquent user of water facilities ten days
after the water services become delinquent regardless of whether the municipality or governing body
utilizes the security deposit to satisfy any delinquent payments:
Provided further, That nothing
contained within the rules of the Public Service Commission shall be deemed to require any agents
or employees of the municipality or governing body to accept payment at the customer's premises
in lieu of discontinuing service for a delinquent bill.
(b) All rates or charges for water service whenever delinquent shall be liens of equal dignity,
rank and priority with the lien on such premises of state, county, school and municipal taxes for the
amount thereof upon the real property served, and the municipality shall have plenary power and
authority from time to time to enforce such lien in a civil action to recover the money due for such services rendered plus court fees and costs and a reasonable attorney's fee:
Provided, That an owner
of real property may not be held liable for the delinquent rates or charges for services or facilities of
a tenant, nor shall any lien attach to real property for the reason of delinquent rates or charges for
services or facilities of a tenant of such real property, unless the owner has contracted directly with
the municipality to purchase such services or facilities.
(c) Municipalities are hereby granted a deferral of filing fees or other fees and costs incidental
to the bringing and maintenance of an action in magistrate court for the collection of the delinquent
rates and charges. If the municipality collects the delinquent account, plus fees and costs, from its
customer or other responsible party, the municipality shall pay to the magistrate court the filing fees
or other fees and costs which were previously deferred.
(d) No municipality may foreclose upon the premises served by it for delinquent rates or
charges for which a lien is authorized by this section except through the bringing and maintenance
of a civil action for such purpose brought in the circuit court of the county wherein the municipality
lies. In every such action, the court shall be required to make a finding based upon the evidence and
facts presented that the municipality had exhausted all other remedies for the collection of debts with
respect to such delinquencies prior to the bringing of such action. In no event shall foreclosure
procedures be instituted by any municipality or on its behalf unless such delinquency had been in
existence or continued for a period of two years from the date of the first such delinquency for which
foreclosure is being sought.
ARTICLE 20. COMBINED SYSTEMS.
§8-20-10. Power and authority of municipality to enact ordinances and make rules and fix
rates, fees or charges; deposit required for new customers; change in rates, fees
or charges; failure to cure delinquency; delinquent rates, discontinuance of
service; reconnecting deposit; return of deposit; fees or charges as liens; civil
action for recovery thereof; deferral of filing fees and costs in magistrate court
action; limitations with respect to foreclosure.
(a)(1) The governing body of a municipality availing itself of the provisions of this article
shall have plenary power and authority to make, enact and enforce all necessary rules for the repair,
maintenance, operation and management of the combined system of the municipality and for the use
thereof. The governing body of a municipality also has the plenary power and authority to make,
enact and enforce all necessary rules and ordinances for the care and protection of any such system
for the health, comfort and convenience of the public, to provide a clean water supply, to provide
properly treated sewage insofar as it is reasonably possible to do and, if applicable, to properly
collecting and controlling the stormwater as is reasonably possible to do:
Provided, That no
municipality may make, enact or enforce any rule, regulation or ordinance regulating any highways,
road or drainage easements or storm water facilities constructed, owned or operated by the West
Virginia Division of Highways.
(2) A municipality has the plenary power and authority to charge the users for the use and
service of a combined system and to establish required deposits, rates, fees or charges for such
purpose. Separate deposits, rates, fees or charges may be fixed for the water and sewer services
respectively and, if applicable, the stormwater services, or combined rates, fees or for the combined
water and sewer services, and, if applicable, the storm water services. Such deposits, rates, fees or
charges, whether separate or combined, shall be sufficient at all times to pay the cost of repair,
maintenance and operation of the combined system, provide an adequate reserve fund, an adequate
depreciation fund and pay the principal and interest upon all revenue bonds issued under this article.
Deposits, rates, fees or charges shall be established, revised and maintained by ordinance and
become payable as the governing body may determine by ordinance. The rates, fees or charges shall
be changed, from time to time, as necessary, consistent with the provisions of this article.
(3) All new applicants for service shall indicate to the municipality or governing body
whether they are an owner or tenant with respect to the service location. An entity providing
stormwater service shall provide a tenant a report of the stormwater fee charged for the entire
property and, if appropriate, that portion of the fee to be assessed to the tenant.
(4) The municipality or governing body, but only one of them, may collect from all new
applicants for service a deposit of $100 or two twelfths of the average annual usage of the applicant's
specific customer class, whichever is greater, to secure the payment of water and sewage service
rates, fees and charges in the event they become delinquent as provided in this section. In any case
where a deposit is forfeited to pay service rates, fees and charges which were delinquent and the
user's service is disconnected or terminated, service may not be reconnected or reinstated by the
municipality or governing body until another deposit equal to $100 or a sum equal to two twelfths
of the average usage for the applicant's specific customer class, whichever is greater, is remitted to
the municipality or governing body. After twelve months of prompt payment history, the
municipality or governing body shall return the deposit to the customer or credit the customer's
account with interest at a rate to be set by the Public Service Commission:
Provided, That where
the customer is a tenant, the municipality or governing body is not required to return the deposit until
the time the tenant discontinues service with the municipality governing body. Whenever any rates,
fees, rentals or charges for services or facilities furnished remain unpaid for a period of twenty days
after they become due, the user of the services and facilities provided is delinquent and the user is
liable at law until all rates, fees and charges are fully paid. The municipality or governing body may
terminate water services to a delinquent user of either water or sewage facilities, or both, ten days
after the water or sewage services become delinquent regardless of whether the governing body
utilizes the security deposit to satisfy any delinquent payments:
Provided further, That any
termination of water service must comply with all rules and orders of the Public Service
Commission:
Provided however, That nothing contained within the rules of the Public Service
Commission shall be deemed to require any agents or employees of the municipality or governing
body to accept payment at the customer's premises in lieu of discontinuing service for a delinquent
bill.
(b) Whenever any rates, fees or charges for services or facilities furnished remain unpaid for
a period of twenty days after they become due, the user of the services and facilities provided shall be delinquent and the municipality or governing body may apply any deposit against any delinquent
fee. The user is liable until such time as all rates, fees and charges are fully paid.
(c) All rates, fees or charges for water service, sewer service and, if applicable, stormwater
service, whenever delinquent, as provided by ordinance of the municipality, shall be liens of equal
dignity, rank and priority with the lien on such premises of state, county, school and municipal taxes
for the amount thereof upon the real property served. The municipality has the plenary power and
authority to enforce such lien in a civil action to recover the money due for services rendered plus
court fees and costs and reasonable attorney's fees:
Provided, That an owner of real property may
not be held liable for the delinquent rates, fees or charges for services or facilities of a tenant, nor
shall any lien attach to real property for the reason of delinquent rates, fees or charges for services
or facilities of a tenant of the real property, unless the owner has contracted directly with the
municipality to purchase such services or facilities.
(d) Municipalities are hereby granted a deferral of filing fees or other fees and costs
incidental to filing an action in magistrate court for collection of the delinquent rates and charges.
If the municipality collects the delinquent account, plus fees and costs, from its customer or other
responsible party, the municipality shall pay to the magistrate court the filing fees or other fees and
costs which were previously deferred.
(e) No municipality may foreclose upon the premises served by it for delinquent rates, fees
or charges for which a lien is authorized by this section except through a civil action in the circuit
court of the county wherein the municipality lies. In every such action, the court shall be required
to make a finding based upon the evidence and facts presented that the municipality has exhausted
all other remedies for collection of debts with respect to such delinquencies prior to bringing the
action. In no event shall foreclosure procedures be instituted by any municipality or on its behalf
unless the delinquency has been in existence or continued for a period of two years from the date of
the first delinquency for which foreclosure is being sought.
(f) Notwithstanding any other provision contained in this article, a municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia
Separate Storm Sewer System community, as defined in 40 C.F.R. §122.26, has the authority to
enact ordinances or regulations which allow for the issuance of orders, the right to enter properties
and the right to impose reasonable fines and penalties regarding correction of violations of municipal
stormwater ordinances or regulations within the municipal watershed served by the municipal
stormwater system, as long as such rules, regulations, fines or acts are not contrary to any rules or
orders of the Public Service Commission.
(g) Notice of a violation of a municipal stormwater ordinance or regulation shall be served
in person to the alleged violator or by certified mail, return receipt requested. The notice shall state
the nature of the violation, the potential penalty, the action required to correct the violation and the
time limit for making the correction. Should a person, after receipt of proper notice, fail to correct
violation of the municipal stormwater ordinance or regulation, the municipality may correct or have
the corrections of the violation made and bring the party into compliance with the applicable
stormwater ordinance or regulation. The municipality may collect the costs of correcting the
violation from the person by instituting a civil action, as long as such actions are not contrary to any
rules or orders of the Public Service Commission.
(h) A municipality which has been designated by the Environmental Protection Agency as
an entity to serve a West Virginia Separate Storm Sewer System community shall prepare an annual
report detailing the collection and expenditure of rates, fees or charges and make it available for
public review at the place of business of the governing body and the stormwater utility main office.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13. SEWAGE WORKS AND STORMWATER WORKS.
§16-13-16. Rates for service; deposit required for new customers; forfeiture of deposit;
reconnecting deposit; tenant's deposit; change or readjustment; hearing; lien
and recovery; discontinuance of services.
A governing body has the power and duty, by ordinance, to establish and maintain just and equitable rates, fees or charges for the use of and the service rendered by:
(a) Sewerage works, to be paid by the owner of each and every lot, parcel of real estate or
building that is connected with and uses such works by or through any part of the sewerage system
of the municipality or that in any way uses or is served by such works; and
(b) Stormwater works, to be paid by the owner of each and every lot, parcel of real estate or
building that in any way uses or is served by such stormwater works or whose property is improved
or protected by the stormwater works or any user of such stormwater works.
(c) The governing body may change and readjust such rates, fees or charges from time to
time. However, no rates, fees or charges for stormwater services may be assessed against highways,
road and drainage easements or stormwater facilities constructed, owned or operated by the West
Virginia Division of Highways.
(d) All new applicants for service shall indicate to the governing body whether they are an
owner or tenant with respect to the service location. An entity providing stormwater service shall
provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate, that
portion of the fee to be assessed to the tenant.
(e) The governing body may collect from all new applicants for service a deposit of $50 or
two twelfths of the average annual usage of the applicant's specific customer class, whichever is
greater, to secure the payment of service rates, fees and charges in the event they become delinquent
as provided in this section. In any case where a deposit is forfeited to pay service rates, fees and
charges which were delinquent at the time of disconnection or termination of service, service may
not be reconnected or reinstated by the governing body until another deposit equal to $50 or a sum
equal to two twelfths of the average usage for the applicant's specific customer class, whichever is
greater, is remitted to the governing body. After twelve months of prompt payment history, the
governing body shall return the deposit to the customer or credit the customer's account with interest
at a rate as the Public Service Commission may prescribe:
Provided, That where the customer is a
tenant, the governing body is not required to return the deposit until the time the tenant discontinues service with the governing body. Whenever any rates, fees, rentals or charges for services or
facilities furnished remain unpaid for a period of twenty days after they become due, the user of the
services and facilities provided is delinquent. The user is liable until all rates, fees and charges are
fully paid. The governing body may, under reasonable rules promulgated by the Public Service
Commission, shut off and discontinue water services to a delinquent user of sewer facilities ten days
after the sewer services become delinquent regardless of whether the governing body utilizes the
security deposit to satisfy any delinquent payments:
Provided, however, That nothing contained
within the rules of the Public Service Commission shall be deemed to require any agents or
employees of the governing body to accept payment at the customer's premises in lieu of
discontinuing service for a delinquent bill.
(f) Such rates, fees or charges shall be sufficient in each year for the payment of the proper
and reasonable expense of operation, repair, replacements and maintenance of the works and for the
payment of the sums herein required to be paid into the sinking fund. Revenues collected pursuant
to this section shall be considered the revenues of the works.
(g) No such rates, fees or charges shall be established until after a public hearing, at which
all the users of the works and owners of property served or to be served thereby and others interested
shall have an opportunity to be heard concerning the proposed rates, fees or charges.
(h) After introduction of the ordinance fixing such rates, fees or charges, and before the same
is finally enacted, notice of such hearing, setting forth the proposed schedule of rates, fees or charges,
shall be given by publication as a Class II-0 legal advertisement in compliance with the provisions
of article three, chapter fifty-nine of this code and the publication area for such publication shall be
the municipality. The first publication shall be made at least ten days before the date fixed in the
notice for the hearing.
(i) After the hearing, which may be adjourned, from time to time, the ordinance establishing
rates, fees or charges, either as originally introduced or as modified and amended, shall be passed
and put into effect. A copy of the schedule of the rates, fees and charges shall be kept on file in the office of the board having charge of the operation of such works, and also in the office of the clerk
of the municipality, and shall be open to inspection by all parties interested. The rates, fees or
charges established for any class of users or property served shall be extended to cover any additional
premises thereafter served which fall within the same class, without the necessity of any hearing or
notice.
(j) Any change or readjustment of such rates, fees or charges may be made in the same
manner as the rates, fees or charges were originally established as hereinbefore provided:
Provided,
That if a change or readjustment be made substantially pro rata, as to all classes of service, no
hearing or notice shall be required. The aggregate of the rates, fees or charges shall always be
sufficient for the expense of operation, repair and maintenance and for the sinking fund payments.
(k) All rates, fees or charges, if not paid when due, shall constitute a lien upon the premises
served by such works. If any service rate, fees or charge is not paid within twenty days after it is due,
the amount thereof, together with a penalty of ten percent and a reasonable attorney's fee, may be
recovered by the board in a civil action in the name of the municipality. The lien may be foreclosed
against such lot, parcel of land or building in accordance with the laws relating thereto. Where both
water and sewer services are furnished by any municipality to any premises, the schedule of charges
may be billed as a single amount or individually itemized and billed for the aggregate thereof.
(l) Whenever any rates, rentals, fees or charges for services or facilities furnished shall remain
unpaid for a period of twenty days after they become due, the property and the owner thereof, as well
as the user of the services and facilities shall be delinquent until such time as all rates, fees and
charges are fully paid. When any payment for rates, rentals, fees or charges becomes delinquent, the
governing body may use the security deposit to satisfy the delinquent payment.
(m) The board collecting the rates, fees or charges shall be obligated under reasonable rules
to shut off and discontinue both water and sewer services to all delinquent users of water, sewer or
stormwater facilities and shall not restore either water facilities or sewer facilities to any delinquent
user of any such facilities until all delinquent rates, fees or charges for water, sewer and stormwater facilities, including reasonable interest and penalty charges, have been paid in full, as long as such
actions are not contrary to any rules or orders of the Public Service Commission:
Provided, That
nothing contained within the rules of the Public Service Commission shall be deemed to require any
agents or employees of the municipality or governing body to accept payment at the customer's
premises in lieu of discontinuing service for a delinquent bill.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS.
§16-13A-9. Rules; service rates and charges; discontinuance of service; required water and
sewer connections; lien for delinquent fees.
(a) (1) The board may make, enact and enforce all needful rules in connection with the
acquisition, construction, improvement, extension, management, maintenance, operation, care,
protection and the use of any public service properties owned or controlled by the district. The board
shall establish rates, fees and charges for the services and facilities it furnishes, which shall be
sufficient at all times, notwithstanding the provisions of any other law or laws, to pay the cost of
maintenance, operation and depreciation of the public service properties and principal of and interest
on all bonds issued, other obligations incurred under the provisions of this article and all reserve or
other payments provided for in the proceedings which authorized the issuance of any bonds under
this article. The schedule of the rates, fees and charges may be based upon:
(A) The consumption of water or gas on premises connected with the facilities, taking into
consideration domestic, commercial, industrial and public use of water and gas;
(B) The number and kind of fixtures connected with the facilities located on the various
premises;
(C) The number of persons served by the facilities;
(D) Any combination of paragraphs (A), (B) and (C) of this subdivision; or
(E) May be determined on any other basis or classification which the board may determine
to be fair and reasonable, taking into consideration the location of the premises served and the nature
and extent of the services and facilities furnished. However, no rates, fees or charges for stormwater services may be assessed against highways, road and drainage easements or stormwater facilities
constructed, owned or operated by the West Virginia Division of Highways.
(2) Where water, sewer, stormwater or gas services, or any combination thereof, are all
furnished to any premises, the schedule of charges may be billed as a single amount for the aggregate
of the charges. The board shall require all users of services and facilities furnished by the district
to designate on every application for service whether the applicant is a tenant or an owner of the
premises to be served. If the applicant is a tenant, he or she shall state the name and address of the
owner or owners of the premises to be served by the district. Notwithstanding the provisions of
section eight, article three, chapter twenty-four of this code to the contrary, all new applicants for
service shall deposit the greater of a sum equal to two twelfths of the average annual usage of the
applicant's specific customer class or $50, with the district to secure the payment of service rates,
fees and charges in the event they become delinquent as provided in this section. If a district
provides both water and sewer service, all new applicants for service shall deposit the greater of a
sum equal to two twelfths of the average annual usage for water service or $50 and the greater of a
sum equal to two twelfths of the average annual usage for wastewater service of the applicant's
specific customer class or $50. In any case where a deposit is forfeited to pay service rates, fees and
charges which were delinquent at the time of disconnection or termination of service, no
reconnection or reinstatement of service may be made by the district until another deposit equal to
the greater of a sum equal to two twelfths of the average usage for the applicant's specific customer
class or $50 has been remitted to the district. After twelve months of prompt payment history, the
district shall return the deposit to the customer or credit the customer's account at a rate as the Public
Service Commission may prescribe:
Provided, That where the customer is a tenant, the district is
not required to return the deposit until the time the tenant discontinues service with the district.
Whenever any rates, fees, rentals or charges for services or facilities furnished remain unpaid for a
period of twenty days after the same become due and payable, the user of the services and facilities
provided is delinquent and the user is liable at law until all rates, fees and charges are fully paid. The board may, under reasonable rules promulgated by the Public Service Commission, shut off and
discontinue water or gas services to all delinquent users of either water or gas facilities, or both, ten
days after the water or gas services become delinquent.
Provided, however, That nothing contained
within the rules of the Public Service Commission shall be deemed to require any agents or
employees of the board to accept payment at the customer's premises in lieu of discontinuing service
for a delinquent bill.
(b) In the event that any publicly or privately owned utility, city, incorporated town, other
municipal corporation or other public service district included within the district owns and operates
separately water facilities, sewer facilities or stormwater facilities and the district owns and operates
another kind of facility either water or sewer, or both, as the case may be, then the district and the
publicly or privately owned utility, city, incorporated town or other municipal corporation or other
public service district shall covenant and contract with each other to shut off and discontinue the
supplying of water service for the nonpayment of sewer or stormwater service fees and charges:
Provided, That any contracts entered into by a public service district pursuant to this section shall
be submitted to the Public Service Commission for approval. Any public service district which
provides water and sewer service, water and stormwater service or water, sewer and stormwater
service has the right to terminate water service for delinquency in payment of water, sewer or
stormwater bills. Where one public service district is providing sewer service and another public
service district or a municipality included within the boundaries of the sewer or stormwater district
is providing water service and the district providing sewer or stormwater service experiences a
delinquency in payment, the district or the municipality included within the boundaries of the sewer
or stormwater district that is providing water service, upon the request of the district providing sewer
or stormwater service to the delinquent account, shall terminate its water service to the customer
having the delinquent sewer or stormwater account:
Provided, however, That any termination of
water service must comply with all rules and orders of the Public Service Commission.
Provided
further, That nothing contained within the rules of the Public Service Commission shall be deemed to require any agents or employees of the Public Service Districts to accept payment at the
customer's premises in lieu of discontinuing service for a delinquent bill.
(c) Any district furnishing sewer facilities within the district may require, or may by petition
to the circuit court of the county in which the property is located, compel or may require the Division
of Health to compel all owners, tenants or occupants of any houses, dwellings and buildings located
near any sewer facilities where sewage will flow by gravity or be transported by other methods
approved by the Division of Health, including, but not limited to, vacuum and pressure systems,
approved under the provisions of section nine, article one, chapter sixteen of this code, from the
houses, dwellings or buildings into the sewer facilities, to connect with and use the sewer facilities
and to cease the use of all other means for the collection, treatment and disposal of sewage and waste
matters from the houses, dwellings and buildings where there is gravity flow or transportation by any
other methods approved by the Division of Health, including, but not limited to, vacuum and
pressure systems, approved under the provisions of section nine, article one, chapter sixteen of this
code and the houses, dwellings and buildings can be adequately served by the sewer facilities of the
district and it is declared that the mandatory use of the sewer facilities provided for in this paragraph
is necessary and essential for the health and welfare of the inhabitants and residents of the districts
and of the state. If the public service district requires the property owner to connect with the sewer
facilities even when sewage from dwellings may not flow to the main line by gravity and the
property owner incurs costs for any changes in the existing dwellings' exterior plumbing in order to
connect to the main sewer line, the Public Service District Board shall authorize the district to pay
all reasonable costs for the changes in the exterior plumbing, including, but not limited to,
installation, operation, maintenance and purchase of a pump or any other method approved by the
Division of Health. Maintenance and operation costs for the extra installation should be reflected
in the users charge for approval of the Public Service Commission. The circuit court shall adjudicate
the merits of the petition by summary hearing to be held not later than thirty days after service of
petition to the appropriate owners, tenants or occupants.
(d) Whenever any district has made available sewer facilities to any owner, tenant or
occupant of any house, dwelling or building located near the sewer facility and the engineer for the
district has certified that the sewer facilities are available to and are adequate to serve the owner,
tenant or occupant and sewage will flow by gravity or be transported by other methods approved by
the Division of Health from the house, dwelling or building into the sewer facilities, the district may
charge, and the owner, tenant or occupant shall pay, the rates and charges for services established
under this article only after thirty-day notice of the availability of the facilities has been received by
the owner, tenant or occupant. Rates and charges for sewage services shall be based upon actual
water consumption or the average monthly water consumption based upon the owner's, tenant's or
occupant's specific customer class.
(e) The owner, tenant or occupant of any real property may be determined and declared to
be served by a stormwater system only after each of the following conditions is met: (1) The district
has been designated by the Environmental Protection Agency as an entity to serve a West Virginia
Separate Storm Sewer System community, as defined in 40 C.F.R. §122.26; (2) the district's
authority has been properly expanded to operate and maintain a stormwater system; (3) the district
has made available a stormwater system where stormwater from the real property affects or drains
into the stormwater system; and (4) the real property is located in the Municipal Separate Storm
Sewer System's designated service area. It is further hereby found, determined and declared that the
mandatory use of the stormwater system is necessary and essential for the health and welfare of the
inhabitants and residents of the district and of the state. The district may charge and the owner,
tenant or occupant shall pay the rates, fees and charges for stormwater services established under this
article only after thirty-day notice of the availability of the stormwater system has been received by
the owner. An entity providing stormwater service shall provide a tenant a report of the stormwater
fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the
tenant.
(f) All delinquent fees, rates and charges of the district for either water facilities, sewer facilities, gas facilities or stormwater systems or stormwater management programs are liens on the
premises served of equal dignity, rank and priority with the lien on the premises of state, county,
school and municipal taxes.
Nothing contained within the rules of the Public Service Commission
shall be deemed to require any agents or employees of the Public Service Districts to accept payment
at the customer's premises in lieu of discontinuing service for a delinquent bill. In addition to the
other remedies provided in this section, public service districts are granted a deferral of filing fees
or other fees and costs incidental to the bringing and maintenance of an action in magistrate court
for the collection of delinquent water, sewer, stormwater or gas bills. If the district collects the
delinquent account, plus reasonable costs, from its customer or other responsible party, the district
shall pay to the magistrate the normal filing fee and reasonable costs which were previously deferred.
In addition, each public service district may exchange with other public service districts a list of
delinquent accounts:
Provided, That an owner of real property may not be held liable for the
delinquent rates or charges for services or facilities of a tenant, nor may any lien attach to real
property for the reason of delinquent rates or charges for services or facilities of a tenant of the real
property, unless the owner has contracted directly with the public service district to purchase the
services or facilities.
(g) Anything in this section to the contrary notwithstanding, any establishment, as defined
in section three, article eleven, chapter twenty-two of this code, now or hereafter operating its own
sewage disposal system pursuant to a permit issued by the Department of Environmental Protection,
as prescribed by section eleven of said article, is exempt from the provisions of this section.
(h) A public service district which has been designated by the Environmental Protection
Agency as an entity to serve a West Virginia Separate Storm Sewer System community shall prepare
an annual report detailing the collection and expenditure of rates, fees or charges and make it
available for public review at the place of business of the governing body and the stormwater utility
main office.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 3. DUTIES AND PRIVILEGES OF PUBLIC UTILITIES SUBJECT TO
REGULATIONS OF COMMISSION.
§24-3-10. Termination of water service for delinquent sewer bills.
(a) In the event that any publicly or privately owned utility, city, incorporated town,
municipal corporation or public service district owns and operates either water facilities or sewer
facilities, and a privately owned public utility or a public utility that is owned and operated by a
homeowners' association owns and operates the other kind of facilities, either water or sewer, then
the privately owned public utility or the homeowners' association may contract with the publicly or
privately owned utility, city, incorporated town, or public service district which provides the other
services to shutoff and discontinue the supplying of water service for the nonpayment of sewer
service fees and charges.
(b) Any contracts entered into by a privately owned public utility or by a public utility that
is owned and operated by a homeowners' association pursuant to this section must be submitted to
the Public Service Commission for approval.
(c) Any privately owned public utility or any public utility that is owned and operated by a
homeowners' association which provides water and sewer service to its customers may terminate
water service for delinquency in payment of either water or sewer bills.
(d) Where a privately owned public utility or a public utility that is owned and operated by
a homeowners' association is providing sewer service and another utility is providing water service,
and the privately owned public utility or the homeowners' association providing sewer service
experiences a delinquency in payment, the utility providing water service, upon the request of the
homeowners' association or the privately owned public utility providing sewer service to the
delinquent account, shall terminate its water service to the customer having the delinquent sewer
account.
(e) Any termination of water service must comply with all rules and orders of the Public
Service Commission:
Nothing contained within the rules of the Public Service Commission shall be deemed to require any agents or employees of the water or sewer utility to accept payment at the
customer's premises in lieu of discontinuing water service for a delinquent water or sewer bill."
The Clerk next reported an amendment by Delegate Duke, on page five line fifty-three, after
the word "service", by inserting "
Provided further, however, That any water or sewer facility which
is owned or operated by a public or private utility, city, incorporated town, or municipal corporation
shall give every customer a thirty day grace period for payment of the customer's water and sewer
bill before charging a late fee."
On page eleven, line eighty-five, after the word "service", by inserting "
Provided further,
That any water or sewer facility which is owned or operated by a public or private utility, city,
incorporated town, or municipal corporation shall give every customer a thirty day grace period for
payment of the customer's water and sewer bill before charging a late fee."
On page eighteen, line sixty-two, after the word "paid", by inserting "
Provided further, That
any water or sewer facility which is owned or operated by a public or private utility, city,
incorporated town, or municipal corporation shall give every customer a thirty day grace period for
payment of the customer's water and sewer bill before charging a late fee."
On page twenty-two, line one hundred forty-two, after the word "service", by inserting
"
Provided further, however, That any water or sewer facility which is owned or operated by a public
or private utility, city, incorporated town, or municipal corporation shall give every customer a thirty
day grace period for payment of the customer's water and sewer bill before charging a late fee."
On page twenty-six, line eighty-five, following after the word "service", by inserting
"
Provided further, That any public service district shall give every customer a thirty day grace period
for payment of the customer's water and sewer bill before charging a late fee."
On page twenty-eight, line one hundred twenty-four, after the word "service", by inserting
"
Provided further, That any public service district shall give every customer a thirty day grace period
for payment of the customer's water and sewer bill before charging a late fee."
On page thirty-three, line two hundred nineteen, after the word "service", by inserting "
Provided, That any public service district shall give every customer a thirty day grace period for
payment of the customer's water and sewer bill before charging a late fee."
The amendment having been put, did not prevail.
There being no further amendments, 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. 369),
and there were--yeas 82, nays 14, absent and not voting 4, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Blair, Carmichael, Ellem, Lane, Louisos, Manypenny, McGeehan,
J. Miller, Porter, Romine, Shott and Walters.
Absent And Not Voting: Argento, Cann, Hutchins and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 465) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 465 - "A Bill to amend and reenact §8-19-12a of the Code of West
Virginia, 1931, as amended; to amend and reenact §8-20-10 of said code; to amend and reenact §16-
13-16 of said code; to amend and reenact §16-13A-9 of said code; and to amend and reenact §24-3-
10 of said code, all relating to the discontinuation of water and sewer utility service for a delinquent
bill; and eliminating the requirement that a water utility's employee or agent be required to accept
payment at the customer's premises in lieu of discontinuing service for a delinquent water or sewer
bill."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Messages from the Senate
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. 4513, Establishing requirements for Marcellus gas well operations use
of water resources.
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 §22-6-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that said code be amended by adding thereto a new section, designated §22-6-42; that §22C-8-2 of
said code be amended and reenacted; and that §22C-9-2 of said code be amended and reenacted, all
to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 6. OFFICE OF OIL AND GAS; OIL AND GAS WELLS; ADMINISTRATION;
ENFORCEMENT.
§22-6-1. Definitions.
Unless the context in which used clearly requires a different meaning, as used in this article:
(a) 'Casing' means a string or strings of pipe commonly placed in wells drilled for natural
gas or petroleum or both;
(b) 'Cement' means hydraulic cement properly mixed with water;
(c) 'Chair' means the chair of the West Virginia Shallow Gas Well Review Board as
provided in section four, article eight, chapter twenty-two-c of this code;
(d) 'Coal operator' means any person or persons, firm, partnership, partnership association
or corporation that proposes to or does operate a coal mine;
(e) 'Coal seam' and 'workable coal bed' are interchangeable terms and mean any seam of
coal twenty inches or more in thickness, unless a seam of less thickness is being commercially
worked, or can in the judgment of the department foreseeably be commercially worked and will
require protection if wells are drilled through it;
(f) 'Director' means the director of the Division of Environmental Protection as established
in article one of this chapter or such other person to whom the director has delegated authority or
duties pursuant to sections six or eight, article one of this chapter.
(g) (f) 'Deep well' means any well other than a shallow well
or coalbed methane well, drilled
and completed in to a formation
at or below the top of the uppermost member of the 'Onondaga
Group';
(h) (g) 'Expanding cement' means any cement approved by the office of oil and gas which
expands during the hardening process, including, but not limited to, regular oil field cements with
the proper additives;
(i) (h) 'Facility' means any facility utilized in the oil and gas industry in this state and
specifically named or referred to in this article or in article eight or nine of this chapter, other than
a well or well site;
(j) (i) 'Gas' means all natural gas and all other fluid hydrocarbons not defined as oil in this
section;
(k) (j) 'Oil' means natural crude oil or petroleum and other hydrocarbons, regardless of
gravity, which are produced at the well in liquid form by ordinary production methods and which
are not the result of condensation of gas after it leaves the underground reservoirs;
(l) (k) 'Owner' when used with reference to any well, shall include any person or persons,
firm, partnership, partnership association or corporation that owns, manages, operates, controls or
possesses such well as principal, or as lessee or contractor, employee or agent of such principal;
(m) (l) 'Owner' when used with reference to any coal seam, shall include any person or
persons who own, lease or operate such coal seam;
(n) (m) 'Person' means any natural person, corporation, firm, partnership, partnership
association, venture, receiver, trustee, executor, administrator, guardian, fiduciary or other
representative of any kind, and includes any government or any political subdivision or any agency
thereof;
(o) (n) 'Plat' means a map, drawing or print showing the location of a well or wells as herein
defined;
(p) (o) 'Review board' means the West Virginia shallow gas well review board as provided
for in section four, article eight, chapter twenty-two-c of this code;
(q) (p) 'Safe mining through of a well' means the mining of coal in a workable coal bed up
to a well which penetrates such workable coal bed and through such well so that the casing or plug
in the well bore where the well penetrates the workable coal bed is severed;
(q) 'Secretary' means the Secretary of the Department of Environmental Protection as
established in article one of this chapter or such other person to whom the secretary has delegated
authority or duties pursuant to sections six or eight, article one of this chapter;
(r) 'Shallow well' means any gas well,
other than a coalbed methane well, drilled
no deeper
than one hundred feet below the top of the 'Onondaga Group': and completed in a formation above
the top of the uppermost member of the 'Onondaga Group' Provided, That
in drilling a shallow well
the operator may penetrate into the 'Onondaga Group' to a reasonable depth, not in excess of twenty
feet, in order to allow for logging and completion operations, but in no event may the 'Onondaga
Group' formation
or any formation below the 'Onondaga Group' be otherwise produced, perforated
or stimulated in any manner;
(s) 'Stimulate' means any action taken by a well operator to increase the inherent productivity
of an oil or gas well, including, but not limited to, fracturing, shooting or acidizing, but excluding
cleaning out, bailing or workover operations;
(t) 'Waste' means: (i) Physical waste, as the term is generally understood in the oil and gas
industry; (ii) the locating, drilling, equipping, operating or producing of any oil or gas well in a
manner that causes, or tends to cause a substantial reduction in the quantity of oil or gas ultimately
recoverable from a pool under prudent and proper operations, or that causes or tends to cause a
substantial or unnecessary or excessive surface loss of oil or gas; or (iii) the drilling of more deep
wells than are reasonably required to recover efficiently and economically the maximum amount of oil and gas from a pool; (iv) substantially inefficient, excessive or improper use, or the substantially
unnecessary dissipation of, reservoir energy, it being understood that nothing in this chapter shall
be construed to authorize any agency of the state to impose mandatory spacing of shallow wells
except for the provisions of section eight, article nine, chapter twenty-two-c of this code and the
provisions of article eight, chapter twenty-two-c of this code; (v) inefficient storing of oil or gas:
Provided, That storage in accordance with a certificate of public convenience issued by the Federal
Energy Regulatory Commission shall be conclusively presumed to be efficient and; (vi) other
underground or surface waste in the production or storage of oil, gas or condensate, however caused.
Waste does not include gas vented or released from any mine areas as defined in section two, article
one, chapter twenty-two-a of this code or from adjacent coal seams which are the subject of a current
permit issued under article two of chapter twenty-two-a of this code:
Provided, however, That
nothing in this exclusion is intended to address ownership of the gas;
(u) 'Well' means any shaft or hole sunk, drilled, bored or dug into the earth or into
underground strata for the extraction or injection or placement of any liquid or gas, or any shaft or
hole sunk or used in conjunction with such extraction or injection or placement. The term 'well'
does not include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of
core drilling or pumping or extracting therefrom potable, fresh or usable water for household,
domestic, industrial, agricultural or public use;
(v) 'Well work' means the drilling, redrilling, deepening, stimulating, pressuring by injection
of any fluid, converting from one type of well to another, combining or physically changing to allow
the migration of fluid from one formation to another or plugging or replugging of any well;
(w) 'Well operator' or 'operator' means any person or persons, firm, partnership, partnership
association or corporation that proposes to or does locate, drill, operate or abandon any well as herein
defined;
(x) 'Pollutant' shall have the same meaning as provided in subsection (17), section three,
article eleven, chapter twenty-two of this code; and
(y) 'Waters of this state' shall have the same meaning as the term 'waters' as provided in
subsection (23), section three, article eleven, chapter twenty-two of this code.
§22-6-42. Additional permitting requirements for gas wells withdrawing more than two
hundred ten thousand gallons of water from waters of this state in a calendar
month for fracturing or stimulating gas production; rule-making authority.
(a) When a gas well operator applies for a well work permit under section six of this article,
and it is reasonably ascertainable that the operator is likely to withdraw more than two hundred ten
thousand gallons of water in a calendar month from any waters of this State for use in drilling and
completing the well, the Secretary shall require the operator to submit a water resources management
plan with its application for a well work permit in addition to any other information required to be
submitted under this article. The water resources management plan shall include the following
information:
(1) The type of water source from which withdrawals will be made and the planned
percentage of water withdrawals that will be made from surface water or groundwater;
(2) The location of each water source from which withdrawals are planned, including the
name of the water source, if any, the county in which the water withdrawal will occur, and the
latitude and longitude of the planned water withdrawal location and identification of any public
water supply intakes within one mile downstream of the withdrawal location;
(3) The planned volume of water withdrawals from each water source based on the best
information available at the time;
(4) The months when water withdrawals are planned; and
(5) The planned methods of disposing or reusing any water associated with drilling and
completing the well, would include but not be limited to, disposing of water into oil and gas wells
in which the fresh water casing has been cemented to the surface:
Provided, That such wells are
approved as disposal wells by the Director of the Oil and Gas Division of the Department of
Environmental Protection.
(b) Withdrawal of water for purposes of this section by an operator shall comply with water
quality standards promulgated pursuant to section seven-b, article eleven, chapter twenty-two of this
code.
(c) The operator shall provide the information required by subsection (a) of this section based
on the information available and reasonable planning efforts by operators at the time the well work
permit application is submitted.
(d) The Secretary may prescribe forms on which the information in subsection (a) of this
section is to be reported.
(e) The Secretary shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code addressing records that must be kept
regarding the management and disposal of water from any well covered by a well work permit issued
pursuant to an application that is subject to subsection (a) of this section which shall include records
containing: a listing of the additives as presented on material safety data sheets that are used in water
used for fracturing or stimulating wells; quantities of water utilized and disposed of by operators;
methods for water management or disposal; location of water disposal site or facility; and a name
and address of the water hauler and the producer for which the water was hauled.
(f) This section is intended to be consistent with and shall not supersede, revise, repeal or
otherwise modify, articles eleven and twenty-six, of this chapter, and shall not revise, repeal or
otherwise modify the common law doctrine of riparian rights under West Virginia law.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 8. SHALLOW GAS WELL REVIEW BOARD.
§22C-8-2. Definitions.
Unless the context in which used clearly requires a different meaning, as used in this article:
(1) 'Board' means the Shallow Gas Well Review Board provided
for in section four of this
article;
(2) 'Chair' means the chair of the Shallow Gas Well Review Board provided
for in section
four of this article;
(3) 'Coal operator' means any person who proposes to or does operate a coal mine;
(4) 'Coal seam' and 'workable coal bed' are interchangeable terms and mean any seam of
coal twenty inches or more in thickness, unless a seam of less thickness is being commercially
worked, or can in the judgment of the
division department foreseeably be commercially worked and
will require protection if wells are drilled through it;
(5) 'Commission' means the oil and gas conservation commission provided
for in section
four, article nine of this chapter;
(6) 'Commissioner' means the oil and gas conservation commissioner provided
for in section
four, article nine of this chapter;
(7) 'Correlative rights' means the reasonable opportunity of each person entitled thereto to
recover and receive without waste the gas in and under a tract or tracts, or the equivalent thereof;
(8) 'Deep well' means any well other than a shallow well
or coalbed methane well, drilled
and completed in to a formation
at or below the top of the uppermost member of the 'Onondaga
Group';
(9)
'Division' Department means the state
Division Department of Environmental Protection
provided
for in chapter twenty-two of this code;
(10) 'Director' means the director of the Division of Environmental Protection as established
in article one, chapter twenty-two of this code or such other person to whom the director delegates
authority or duties pursuant to sections six or eight, article one, chapter twenty-two of this code;
(11) (10) 'Drilling unit' means the acreage on which the board decides one well may be
drilled under section ten of this article;
(12) (11) 'Gas' means all natural gas and all other fluid hydrocarbons not defined as oil in
subdivision (15) of this section;
(13) (12) 'Gas operator' means any person who owns or has the right to develop, operate and produce gas from a pool and to appropriate the gas produced therefrom either for such person or for
such person and others. In the event that there is no gas lease in existence with respect to the tract
in question, the person who owns or has the gas rights therein shall be considered a 'gas operator'
to the extent of seven eighths of the gas in that portion of the pool underlying the tract owned by
such person, and a 'royalty owner' to the extent of one eighth of such gas;
(14) (13) 'Just and equitable share of production' means, as to each person, an amount of gas
in the same proportion to the total gas production from a well as that person's acreage bears to the
total acreage in the drilling unit;
(15) (14) 'Oil' means natural crude oil or petroleum and other hydrocarbons, regardless of
gravity, which are produced at the well in liquid form by ordinary production methods and which
are not the result of condensation of gas after it leaves the underground reservoir;
(16) (15) 'Owner' when used with reference to any coal seam, shall include any person or
persons who own, lease or operate such coal seam;
(17) (16) 'Person' means any natural person, corporation, firm, partnership, partnership
association, venture, receiver, trustee, executor, administrator, guardian, fiduciary or other
representative of any kind, and includes any government or any political subdivision or any agency
thereof;
(18) (17) 'Plat' means a map, drawing or print showing the location of one or more wells or
a drilling unit;
(19) (18) 'Pool' means an underground accumulation of gas in a single and separate natural
reservoir (ordinarily a porous sandstone or limestone). It is characterized by a single natural-pressure
system so that production of gas from one part of the pool tends to or does affect the reservoir
pressure throughout its extent. A pool is bounded by geologic barriers in all directions, such as
geologic structural conditions, impermeable strata, and water in the formation, so that it is effectively
separated from any other pools which may be present in the same district or in the same geologic
structure;
(20) (19) 'Royalty owner' means any owner of gas in place, or gas rights, to the extent that
such owner is not a gas operator as defined in subdivision (13) of this section;
(20) 'Secretary' means the Secretary of the Department of Environmental Protection as
established in article one, chapter twenty-two of this code or such other person to whom the secretary
delegates authority or duties pursuant to section six or eight, article one, chapter twenty-two of this
code;
(21) 'Shallow well' means any gas well
other than a coalbed methane well, drilled
no deeper
than one hundred feet below the top of the 'Onondaga Group': and completed in a formation above
the top of the uppermost member of the 'Onondaga Group' Provided, That
in drilling a shallow well
the well operator may penetrate into the 'Onondaga Group' to a reasonable depth, not in excess of
twenty feet, in order to allow for logging and completion operations, but in no event may the
'Onondaga Group' formation
or formation below the Onondaga Group' be
otherwise produced,
perforated or stimulated in any manner;
(22) 'Tracts comprising a drilling unit' means that all separately owned tracts or portions
thereof which are included within the boundary of a drilling unit;
(23) 'Well' means any shaft or hole sunk, drilled, bored or dug into the earth or into
underground strata for the extraction, injection or placement of any liquid or gas, or any shaft or hole
sunk or used in conjunction with such extraction, injection or placement. The term 'well' does not
include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of core
drilling or pumping or extracting therefrom potable, fresh or usable water for household, domestic,
industrial, agricultural or public use; and
(24) 'Well operator' means any person who proposes to or does locate, drill, operate or
abandon any well.
ARTICLE 9. OIL AND GAS CONSERVATION.
§22C-9-2. Definitions.
(a) Unless the context in which used clearly requires a different meaning, as used in this article:
(1) 'Commission' means the Oil and Gas Conservation Commission and 'commissioner'
means the Oil and Gas Conservation Commissioner as provided
for in section four of this article;
(2)
'Director' 'Secretary' means the
director Secretary of the
division Department of
Environmental Protection and 'chief' means the chief of the office of oil and gas;
(3) 'Person' means any natural person, corporation, partnership, receiver, trustee, executor,
administrator, guardian, fiduciary or other representative of any kind, and includes any government
or any political subdivision or any agency thereof;
(4) 'Operator' means any owner of the right to develop, operate and produce oil and gas from
a pool and to appropriate the oil and gas produced therefrom, either for such person or for such
person and others; in the event that there is no oil and gas lease in existence with respect to the tract
in question, the owner of the oil and gas rights therein shall be considered as 'operator' to the extent
of seven eighths of the oil and gas in that portion of the pool underlying the tract owned by such
owner, and as 'royalty owner' as to one-eighth interest in such oil and gas; and in the event the oil
is owned separately from the gas, the owner of the substance being produced or sought to be
produced from the pool shall be considered as 'operator' as to such pool;
(5) 'Royalty owner' means any owner of oil and gas in place, or oil and gas rights, to the
extent that such owner is not an operator as defined in subdivision (4) of this section;
(6) 'Independent producer' means a producer of crude oil or natural gas whose allowance for
depletion is determined under Section 613A of the federal Internal Revenue Code in effect on July
1, 1997;
(7) 'Oil' means natural crude oil or petroleum and other hydrocarbons, regardless of gravity,
which are produced at the well in liquid form by ordinary production methods and which are not the
result of condensation of gas after it leaves the underground reservoir;
(8) 'Gas' means all natural gas and all other fluid hydrocarbons not defined as oil in
subdivision (7) of this section;
(9) 'Pool' means an underground accumulation of petroleum or gas in a single and separate
natural reservoir (ordinarily a porous sandstone or limestone). It is characterized by a single natural-
pressure system so that production of petroleum or gas from one part of the pool affects the reservoir
pressure throughout its extent. A pool is bounded by geologic barriers in all directions, such as
geologic structural conditions, impermeable strata, and water in the formations, so that it is
effectively separated from any other pools that may be presented in the same district or on the same
geologic structure;
(10) 'Well' means any shaft or hole sunk, drilled, bored or dug into the earth or underground
strata for the extraction of oil or gas;
(11) 'Shallow well' means any well
other than coalbed methane well, drilled
no deeper than
one hundred feet below the top of the 'Onondaga Group': and completed in a formation above the
top of the uppermost member of the 'Onondaga Group' Provided, That
in drilling a shallow well
the operator may penetrate into the 'Onondaga Group' to a reasonable depth, not in excess of twenty
feet, in order to allow for logging and completion operations, but in no event may the 'Onondaga
Group' formation
or any formation below the 'Onondaga Group' be
otherwise produced, perforated
or stimulated in any manner;
(12) 'Deep well' means any well
or coalbed methane well, other than a shallow well, drilled
and completed to in a formation
at or below the top of the uppermost member of the 'Onondaga
Group';
(13) 'Drilling unit' means the acreage on which one well may be drilled;
(14) 'Waste' means and includes:
(A) Physical waste, as that term is generally understood in the oil and gas industry;
(B) The locating, drilling, equipping, operating or producing of any oil or gas well in a
manner that causes, or tends to cause, a reduction in the quantity of oil or gas ultimately recoverable
from a pool under prudent and proper operations, or that causes or tends to cause unnecessary or
excessive surface loss of oil or gas; or
(C) The drilling of more deep wells than are reasonably required to recover efficiently and
economically the maximum amount of oil and gas from a pool. Waste does not include gas vented
or released from any mine areas as defined in section two, article one, chapter twenty-two-a of this
code or from adjacent coal seams which are the subject of a current permit issued under article two
of chapter twenty-two-a of this code:
Provided, That nothing in this exclusion is intended to address
ownership of the gas;
(15) 'Correlative rights' means the reasonable opportunity of each person entitled thereto to
recover and receive without waste the oil and gas in and under his
or her tract or tracts, or the
equivalent thereof; and
(16) 'Just and equitable share of production' means, as to each person, an amount of oil or
gas or both substantially equal to the amount of recoverable oil and gas in that part of a pool
underlying such person's tract or tracts.
(b) Unless the context clearly indicates otherwise, the use of the word 'and' and the word 'or'
shall be interchangeable, as, for example, 'oil and gas' shall mean oil or gas or both."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4513 - "A Bill to amend and reenact §22-6-1 of the Code of West
Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §22-6-
42; to amend and reenact §22C-8-2 of said code; and to amend and reenact §22C-9-2 of said code,
all relating to environmental regulation of the development of shallow gas well operations; clarifying
the definitions of 'shallow well' and 'deep well'; establishing gas well operator water resource
reporting requirements; and authorizing the Department of Environmental Protection to promulgate
legislative rules."
On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate
amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 510, Extending DNR license and stamp fees sunset provision; 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. 370),
and there were--yeas 83, nays 12, absent and not voting 5, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Lane, Louisos, McGeehan, C. Miller, J. Miller, Rowan, Schoen,
Sobonya, Sumner and Walters.
Absent And Not Voting: Argento, Cann, Hutchins, M. Poling and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 510) 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. 236, Creating Aquaculture Development Act; 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. 371),
and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann, Hutchins, M. Poling and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 236) 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. 397, Creating single dwelling residential housing index and multiplier;
on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, section two-b, line one, following "(a)" at the beginning of the subsection, by striking out the word "Annually," and inserting in lieu thereof the words "For
purposes of this section only, annually" and a comma.
On page two, section two-b, line six, following the words "housing by county", by inserting
the words "and by square footage, if available".
On page two, section two-b, line eight, following "(b)" at the beginning of the subsection,
by striking out the word "The" and inserting in lieu thereof the words "For purposes of this section
only, the".
And,
On page three, section two-b, line twenty-six, following "(c)" at the beginning of the
subsection, by striking out the word "The" and inserting in lieu thereof the words "For purposes of
this section only, the".
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. 372),
and there were--yeas 77, nays 17, absent and not voting 6, with the nays and absent and not voting
being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Border, Canterbury, Carmichael, Craig, Evans,
Ireland, Lane, Louisos, C. Miller, Reynolds, Schoen, Sobonya and Walters.
Absent And Not Voting: Argento, Cann, Hutchins, Paxton, M. Poling and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 397) 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. 397 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §11-1-2b, relating to creating a single dwelling
residential housing index and multiplier generally; providing requirements for the Tax
Commissioner; establishing required contents of the index and multiplier; and requiring an annual reporting."
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. 51, Relating to child custody plans for National Guard or military
reserve parents; 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. 373),
and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann, Hutchins, M. Poling and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 51) 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. 442, Clarifying PEIA Finance Board may offset certain annual retiree premium
increases; 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. 374),
and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann, Hutchins, M. Poling and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 442) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 375), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Cann and Ross.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 442) 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. 596, Exempting Adjutant General and National Guard from certain
leasing and accounting 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. 376),
and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann, Canterbury, Hutchins, Paxton, M. Poling and
Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 596) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for S. B. 696, Relating to limited liability partnerships; 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. 377),
and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting
being as follows:
Nays: Louisos.
Absent And Not Voting: Argento, Cann, Hutchins and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 696) 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. 232, Transferring certain requirements for redeeming delinquent land
sales from county clerks to State Auditor; on third reading, coming up in regular order, was passed
over.
Conference Committee Report Availability
At 3:44 p.m., the Clerk announced availability in his office of the report of the Committee
of Conference on
Com. Sub. for H. B. 4166.
Third Reading
(-Continued-)
S. B. 122, Increasing mental health treatment refusal age of consent; on third reading, coming
up in regular order, with an amendment pending and the further right to amend, was reported by the
Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
on page one, following the enacting section, by striking out the remainder of the bill and inserting
in lieu thereof the following language:
"
ARTICLE 4. VOLUNTARY HOSPITALIZATION.
§27-4-1. Authority to receive voluntary patients.
The chief medical officer of a mental health facility, subject to the availability of suitable
accommodations and to the rules
and regulations promulgated by the board of health, shall admit for
diagnosis, care and treatment any individual:
(a) Over eighteen years of age who is mentally ill, mentally retarded or addicted or who has
manifested symptoms of mental illness, mental retardation or addiction and who makes application
for hospitalization; or
(b) Under eighteen years of age who is mentally ill, mentally retarded or addicted or who has
manifested symptoms of mental illness, mental retardation or addiction and there is application for
hospitalization therefor in his
or her behalf: (1) By the parents of such person; or (2) if only one
parent is living, then by such parent; or (3) if the parents are living separate and apart, by the parent who has the custody of such person; or (4) if there is a guardian who has custody of such person,
then by such guardian.
Such admission shall be conditioned upon the consent of the prospective
patient if he or she is twelve eighteen years of age or over. Such admission shall be conditioned upon
the consent of the prospective patient if he or she is an emancipated minor.
(c) No person under eighteen years of age shall be admitted under this section to any state
hospital unless said person has first been reviewed and evaluated by a local mental health facility and
recommended for admission.
(d) If the candidate for voluntary admission is a minor who is fourteen years of age or older,
the admitting health care facility shall determine if the minor consents to or objects to his or her
admission to the facility. If the parent or guardian who requested the minor's admission under this
section revokes his or her consent at any time, or if the minor fourteen years of age or older objects
at any time to his or her further treatment, the minor shall be discharged within ninety-six hours to
the custody of the consenting parent or guardian, unless the chief medical officer of the mental health
facility files a petition for involuntary hospitalization, pursuant to the provisions of section three of
this article, or the minor's continued hospitalization is authorized as an involuntary hospitalization
pursuant to the provisions of article five of this chapter: Provided, That, if the ninety-six hour time
period would result in the minor being discharged and released on a Saturday, a Sunday or a holiday
on which the court is closed, the period of time in which the patient shall be released by the facility
shall be extended until the next day which is not a Saturday, Sunday or legal holiday on which the
court is lawfully closed.
(e) Nothing in this section may be construed to obligate the State of West Virginia for costs
of voluntary hospitalizations permitted by the provisions of this section.
(f) Any provider must release an unemancipated minor's drug addiction and treatment
records to a parent or legal guardian without the unemancipated minor's written consent.
§27-4-3. Right to release on application.
A voluntary patient who requests his
or her release or whose release is requested in writing by his
or her parents, parent, guardian, spouse or adult next of kin shall be released forthwith except
that:
(a) If the patient was admitted on his
or her own application, and request for release is made
by a person other than the patient, release shall be conditioned upon the agreement of the patient
thereto;
(b) If the patient is under
twelve eighteen years of age, his
or her release prior to becoming
twelve eighteen years of age may be conditioned upon the consent of the person or persons who
applied for his
or her admission; or
(c) If, within ninety-six hours of the receipt of the request, the chief medical officer of the
mental health facility in which the patient is hospitalized files with the clerk of the circuit court or
mental hygiene commissioner of the county where the facility is situated an application for
involuntary hospitalization as provided in section four, article five of this chapter, release may be
postponed for twenty days pending a finding in accordance with the legal proceedings prescribed
therein.
Legal proceedings for involuntary hospitalization shall not be commenced with respect to a
voluntary patient unless release of the patient has been requested by him
or her or the individual or
individuals who applied for his
or her admission."
On motion of Delegate Miley, the Judiciary Committee amendment was amended on page
one, following the enacting section, by striking out the remainder of the bill and inserting in lieu
thereof the following language:
"
ARTICLE 4. VOLUNTARY HOSPITALIZATION.
§27-4-1. Authority to receive voluntary patients.
The chief medical officer of a mental health facility, subject to the availability of suitable
accommodations and to the rules
and regulations promulgated by the board of health, shall admit for
diagnosis, care and treatment any individual:
(a) Over eighteen years of age who is mentally ill,
mentally retarded intellectually disabled or addicted or who has manifested symptoms of mental illness, mental retardation intellectually
disabled or addiction and who makes application for hospitalization; or
(b) Under eighteen years of age who is mentally ill,
mentally retarded intellectually disabled
or addicted or who has manifested symptoms of mental illness,
mental retardation intellectual
disability or addiction and there is application for hospitalization therefor in his
or her behalf: (1)
By the parents of such person; or (2) if only one parent is living, then by such parent; or (3) if the
parents are living separate and apart, by the parent who has the custody of such person; or (4) if there
is a guardian who has custody of such person, then by such guardian.
Such admission shall be
conditioned upon the consent of the prospective patient if he is twelve years of age or over. Such
admission shall be conditioned upon the consent of the prospective patient if he or she is an
emancipated minor.
(c) No person under eighteen years of age shall be admitted under this section to any state
hospital unless said person has first been reviewed and evaluated by a local mental health facility and
recommended for admission.
(d) If the candidate for voluntary admission is a minor who is fourteen years of age or older,
the admitting health care facility shall determine if the minor consents to or objects to his or her
admission to the facility. If the parent or guardian who requested the minor's admission under this
section revokes his or her consent at any time, or if the minor fourteen years of age or older objects
at any time to his or her further treatment, the minor shall be discharged within ninety-six hours to
the custody of the consenting parent or guardian, unless the chief medical officer of the mental health
facility files a petition for involuntary hospitalization, pursuant to the provisions of section three of
this article, or the minor's continued hospitalization is authorized as an involuntary hospitalization
pursuant to the provisions of article five of this chapter: Provided, That, if the ninety-six hour time
period would result in the minor being discharged and released on a Saturday, a Sunday or a holiday
on which the court is closed, the period of time in which the patient shall be released by the facility
shall be extended until the next day which is not a Saturday, Sunday or legal holiday on which the court is lawfully closed.
(e) Nothing in this section may be construed to obligate the State of West Virginia for costs
of voluntary hospitalizations permitted by the provisions of this section.
(f) Any provider must release an unemancipated minor's drug addiction and treatment
records to a parent or legal guardian without the unemancipated minor's written consent.
§27-4-3. Right to release on application.
A voluntary patient who requests his
or her release or whose release is requested in writing
by his
or her parents, parent, guardian, spouse or adult next of kin shall be released forthwith except
that:
(a) If the patient was admitted on his
or her own application, and request for release is made
by a person other than the patient, release shall be conditioned upon the agreement of the patient
thereto;
(b) If the patient is under
twelve eighteen years of age, his
or her release prior to becoming
twelve eighteen years of age may be conditioned upon the consent of the person or persons who
applied for his
or her admission; or
(c) If, within ninety-six hours of the receipt of the request, the chief medical officer of the
mental health facility in which the patient is hospitalized files with the clerk of the circuit court or
mental hygiene commissioner of the county where the facility is situated an application for
involuntary hospitalization as provided in section four, article five of this chapter, release may be
postponed for twenty days pending a finding in accordance with the legal proceedings prescribed
therein.
Legal proceedings for involuntary hospitalization shall not be commenced with respect to a
voluntary patient unless release of the patient has been requested by him
or her or the individual or
individuals who applied for his
or her admission."
The Judiciary Committee amendment, as amended, was then adopted.
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 378),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 122) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
S. B. 122 - "A Bill to amend and reenact §27-4-1 and §27-4-3 of the Code of West Virginia,
1931, as amended, all relating to the voluntary hospitalization at mental health facilities; relating to
the voluntary admission of minors into a mental health facility for mental illness, intellectual
disability or addiction; removing the requirement that the minor's consent be secured before they are
voluntarily admitted to a mental health facility if the minor is twelve years of age or older; requiring
the consent or an emancipated minor before he or she is voluntarily committed; providing that the
release of any minor from a voluntary hospitalization may be conditioned on the approval of the
person or persons who applied for their admission; clarifying that the state is not obligated to pay
for voluntary hospitalization; and requiring a provider to release an unemancipated minor's drug
addiction and treatment records to a parent or legal guardian without the unemancipated minor's
written consent."
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. 232, Transferring certain requirements for redeeming delinquent land
sales from county clerks to State Auditor; 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. 379),
and there were--yeas 92, nays 5, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Armstead, Lane, McGeehan, Sobonya and Walters.
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 232) 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. 232 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto two new sections, designated §11A-3-5a and §11A-3-5b; and to amend and reenact
§11A-3-6, §11A-3-8, §11A-3-9, §11A-3-11, §11A-3-14, §11A-3-15, §11A-3-16, §11A-3-18, §11A-
3-19, §11A-3-20, §11A-3-21, §11A-3-22, §11A-3-23, §11A-3-24, §11A-3-25, §11A-3-26, §11A-3-
27, §11A-3-28, §11A-3-29, §11A-3-30, §11A-3-31 and §11A-3-32 of said code, all relating to
delinquent land sales by the sheriff generally; authorizing the auditor to perform certain duties related
to delinquent land sales by the sheriff instead of being performed by the clerk of the county
commission; permitting county commissions to order that the county clerk will continue to perform
the duties related to delinquent land sales by the sheriff; requiring the mailing of a notice to redeem
to the physical mailing address for the subject property; prohibiting certain assistants from
purchasing tax liens; requiring certification of real estate by the sheriff to the auditor where the
highest bidder bids at least the amount of taxes, interest and charges for which a tax lien is offered
for sale; requiring notice to the purchaser of the requirement to secure a deed; increasing maximum
reimbursable amount for certain legal services; requiring that a person redeeming be given a copy
of the written opinion or report used for the preparation of the list of those to be served with notice;
authorizing the county clerk to accept and write a receipt for payment made to redeem delinquent
lands on behalf of the auditor; requiring that certain reimbursements to purchasers must be for legal
services actually performed; enlarging the time within which a quitclaim deed must be delivered;
authorizing the auditor to appoint designees; and establishing and increasing fees for services
provided."
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. 462, Limiting State Police applicants' age; 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. 380),
and there were--yeas 95, nays 2, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Andes and Porter.
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 462) 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. 511, Relating to tagging and checking beaver pelts; 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. 381),
and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Ireland.
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 511) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Conference Committee Report Availability
At 3:50 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on
H. B. 4177.
Third Reading
(-Continued-)
S. B. 512, Increasing game trap markings; 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. 382),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 512) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 519, Extending Social Security benefits to Municipal Police Officers and Firefighters
Retirement System members; 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. 383),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 519) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 574, Declaring December 7 special memorial day; 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. 384), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 574) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 624, Relating to Secretary of State annual reports' filing deadlines; 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. 385),
and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Louisos.
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 624) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 627, Increasing civil and criminal penalties for littering; 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. 386),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 627) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 633, Depositing public funds into certain federally insured accounts; 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. 387),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 633) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 352, Creating WV Community Empowerment Transportation Act; on
third reading, having been postponed in earlier proceedings, was reported by the Clerk with
amendments pending.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page twelve, section forty-nine, line forty-eight, by striking out the
remainder of the subdivision and inserting in lieu thereof the following:
"When such changes require construction, reconstruction or repair, such work shall be done
at state expense as any other construction, reconstruction or repair."
And,
On page twenty-seven, section four, line one hundred thirty-three, by striking out all of
subsection (i) in its entirety and inserting in lieu thereof the following:
"(i) All documents maintained pursuant to this article shall be subject to the requirements of
chapter twenty-nine-b of this code."
On motion of Delegates Cowles, Duke, Blair and J. Miller, the bill was amended on page nine, section forty-seven, following the word "commissioner", by deleting the word "shall" and
inserting in lieu thereof the word "may".
On page nine, section forty seven, following the word "a", by deleting the word "minimum"
and inserting in lieu thereof the word "maximum".
On page nine, section forty nine, line fifty five, following the word "years" and a period, by
inserting the following:
"
Provided, however, That no bond shall be required for any residential development
consisting of one hundred homes or less" and a period.
Delegate Duke moved to amend the bill on page twenty-nine, section five, article twenty
eight, line forty-four, following the word "a", by striking out the word "majority" and inserting in
lieu thereof "sixty percent or more".
And,
On page twenty-nine, line forty-seven, following the word "a", by striking out the word
"majority" and inserting in lieu thereof "forty percent or more".
On the adoption of 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. 388), and there were--yeas
33, nays 61, absent and not voting 6, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, Cowles,
Crosier, Duke, Ellem, Evans, Hamilton, Ireland, Lane, Louisos, McGeehan, C. Miller, J. Miller,
Moye, Overington, Porter, Romine, Rowan, Schadler, Schoen, Shott, Sobonya, Spencer and Sumner.
Absent And Not Voting: Argento, Cann, Paxton, M. Poling, Ross and Stowers.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment was not adopted.
Delegate Border requested to be excused from voting on the passage of Com. Sub. for S. B.
352 under the provisions of House Rule 49.
The Speaker replied that Delegate 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 Gentleman from voting.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 389),
and there were--yeas 77, nays 20, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Ashley, Border, Canterbury, Cowles, Duke, Ireland, Lane, Louisos,
C. Miller, J. Miller, Overington, Porter, Romine, Schoen, Shott, Sobonya, Sumner and Walters.
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 352) 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. 352 - "A Bill to amend and reenact §13-1-2 of the Code of West
Virginia, 1931, as amended; to amend and reenact §17-4-47 and §17-4-49 of said code; and to amend
said code by adding thereto a new article, designated §17-28-1, §17-28-2, §17-28-3, §17-28-4,
§17-28-5, §17-28-6, §17-28-7, §17-28-8, §17-28-9, §17-28-10, §17-28-11 and §17-28-12, all relating
generally to the creation of the West Virginia Community Empowerment Transportation Act;
authorizing county commissions to issue general obligation bonds for acquiring, maintaining,
improving public roads and transportation facilities; giving counties authority to impose, administer,
collect and enforce payment of voter-approved user fees to pay for or finance cost of transportation
projects within their counties; defining certain terms; giving county commissions authority to issue
special revenue bonds to finance transportation projects and including authority to issue refunding
bonds; giving authority to take other actions to finance and complete transportation projects;
authorizing the Commissioner of Highways to establish procedures relating to review of
transportation projects; making legislative findings; stating legislative purpose; requiring certain governmental entities seeking state funds for transportation projects to submit a transportation
project plan to Commissioner of Highways; setting forth transportation project plan requirements;
setting forth conditions for approval by the Commissioner of Highways; providing notice,
advertisement and election requirements for user fees; providing for a comprehensive agreement for
a transportation facility between the sponsoring governmental entity and the Division of Highways;
establishing the requirements for qualifying a transportation facility as a public improvement;
authorizing information sharing; requiring a bond covering the division for improvements to
highway facilities required as a result of development; providing that transportation projects are
awarded by competitive bidding and subject to prevailing wages; authorizing municipal utilities and
public service districts to include into rates costs borne by the utility in contributing moneys or
dedicate revenue to transportation project costs; and regulating access from properties to and from
state roads."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 41, Relating to community enhancement districts; having been postponed in earlier
proceedings with an amendment pending and the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"That §8A-5-12 of the Code of West Virginia, 1931, as amended, be amended and reenacted;
that §16-13E-2 and §16-13E-4 of said code be amended and reenacted; and that said code be
amended by adding thereto a new section, designated §16-13E-10a, all to read as follows:
CHAPTER 8A. LAND USE PLANNING.
ARTICLE 5. SUBDIVISION OR LAND DEVELOPMENT PLAN AND PLAT.
§8A-5-12. Vested property right.
(a) A vested property right is a right to undertake and complete the land development. The right is established when the land development plan and plat is approved by the planning
commission and is only applicable under the terms and conditions of the approved land development
plan and plat.
(b) Failure to abide by the terms and conditions of the approved land development plan and
plat will result in forfeiture of the right.
(c)
Subject to section ten-a, article thirteen-e, chapter sixteen of this code, the vesting period
for an approved land development plan and plat which creates the vested property right is five years
from the approval of the land development plan and plat by the planning commission.
(d) Without limiting the time when rights might otherwise vest, a landowner's rights vest in
a land use or development plan and cannot be affected by a subsequent amendment to a zoning
ordinance or action by the planning commission when the landowner:
(1) Obtains or is the beneficiary of a significant affirmative governmental act which remains
in effect allowing development of a specific project;
(2) Relies in good faith on the significant affirmative governmental act; and
(3) Incurs extensive obligations or substantial expenses in diligent pursuit of the specific
project in reliance on the significant affirmative governmental act.
(e) A vested right is a property right, which cannot be taken without compensation. A court
may award damages against the local government in favor of the landowner for monetary losses
incurred by the landowner and court costs and attorneys' fees resulting from the local government's
bad faith refusal to recognize that the landowner has obtained vested rights.
(f) Any subdivision or land development plan or plat, whether recorded or not yet recorded,
valid under West Virginia law and outstanding as of January 1, 2010, shall remain valid until July
1, 2012, or such later date provided for by the terms of the planning commission or county
commission's local ordinance or for a longer period as agreed to by the planning commission or
county commission. Any other plan or permit associated with the subdivision or land development
plan or plat shall also be extended for the same time period: Provided, That the land development plan or plat has received at least preliminary approval by the planning commission or county
commission by March 1, 2010.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13E. COMMUNITY ENHANCEMENT ACT.
§16-13E-2. Definitions.
For purposes of this article:
(a) 'Assessment bonds' means special obligation bonds or notes issued by a community
enhancement district which are payable from the proceeds of assessments.
(b) 'Assessment' means the fee, including interest, paid by the owner of real property located
within a community enhancement district to pay for the cost of a project or projects constructed upon
or benefitting or protecting such property and administrative expenses related thereto, which fee is
in addition to all taxes and other fees levied on the property.
(c) 'Board' means a Community Enhancement Board created pursuant to this article.
(d) 'Code' means the Code of West Virginia, 1931, as amended.
(e) (d) 'Community enhancement district' or 'district' means a community enhancement
district created pursuant to this article.
(f) (e) 'Cost' means the cost of:
(1) Construction, reconstruction, renovation and acquisition of all lands, structures, real or
personal property, rights, rights-of-way, franchises, easements and interests acquired or to be
acquired by the district;
(2) All machinery and equipment, including machinery and equipment needed to expand or
enhance county or city services to the district;
(3) Financing charges and interest prior to and during construction and, if deemed advisable
by the district or governing body, for a limited period after completion of the construction;
(4) Interest and reserves for principal and interest, including costs of municipal bond
insurance and any other type of financial guaranty;
(5) Costs of issuance in connection with the issuance of assessment bonds;
(6) The design of extensions, enlargements, additions and improvements to the facilities of
any district;
(7) Architectural, engineering, financial and legal services;
(8) Plans, specifications, studies, surveys and estimates of costs and revenues;
(9) Administrative expenses necessary or incident to determining to proceed with any project;
and
(10) Other expenses as may be necessary or incident to the construction, acquisition and
financing of a project.
(g) 'County commission' means the governing body of a county as defined in section one,
article one, chapter seven of this code.
(f) 'Development concept' means the following items, to the extent set forth or specified in
the subject subdivision or land development plan and plat:
(1) The maximum aggregate number of lots or parcels into which the subject land is to be
subdivided.
(2) The size and boundaries of the individual lots or parcels into which the subject land is to
be subdivided.
(3) The density of the land development.
(4) Designation of use of the individual lots or parcels.
(5) The location of roads, streets, parking lots, sidewalks and other paved areas.
(6) The location of ingress and egress for the land development.
(7) Setback lines and distances and buildable areas.
(8) The finished layout and grade of the land.
(g) 'Development concept vesting period' means the period commencing upon approval of
the subject land development plan and plat by the planning commission and terminating on the
maturity date of the subject assessment bonds or tax increment financing obligation. The development concept vesting period pertains only to the vested property right in a development
concept that is established upon approval by the planning commission of a land development plan
and plat in which a development concept is set forth or specified.
(h) 'Five-year vesting period' means the five-year vesting period for an approved land
development plan and plat provided under subsection (c), section twelve, article five, chapter eight-a
of this code.
(h) (i) 'Governing body' means, in the case of a county, the county commission and in the
case of a municipality, the mayor and council together, the council or the board of directors as
charged with the responsibility of enacting ordinances and determining the public policy of such
municipality.
(i) (j) 'Governmental agency' means the state government or any agency, department,
division or unit thereof; counties; municipalities; any watershed enhancement districts, soil
conservation districts, sanitary districts, public service districts, drainage districts, school districts,
urban renewal authorities or regional governmental authorities established pursuant to this code.
(j) 'Municipality' means a municipality as defined in section two, article one, chapter eight
of this code.
(k) 'Person' means an individual, firm, partnership, corporation, voluntary association or any
other type of entity.
(l) 'Project' means the design, construction, reconstruction, establishment, acquisition,
improvement, renovation, extension, enlargement, equipping, maintenance, repair (including
replacements) and start-up operation of water source of supply, treatment, transmission and
distribution facilities, sewage treatment, collection and transmission facilities, stormwater systems,
police stations, fire stations, libraries, museums, schools, other public buildings, hospitals, piers,
docks, terminals, drainage systems, culverts, streets, roads, bridges (including approaches,
causeways, viaducts, underpasses and connecting roadways), motor vehicle parking facilities
(including parking lots, buildings, ramps, curb-line parking, meters and other facilities deemed necessary, appropriate, useful, convenient or incidental to the regulation, control and parking of
motor vehicles), public transportation, public recreation centers, public recreation parks, swimming
pools, tennis courts, golf courses, equine facilities, motor vehicle competition and recreational
facilities, flood protection or relief projects, or the grading, regrading, paving, repaving, surfacing,
resurfacing, curbing, recurbing, widening, lighting or otherwise improving any street, avenue, road,
highway, alley or way, or the building or renewing of sidewalks and flood protection; and the terms
shall mean and include any project as a whole, and all integral parts thereof, including all necessary,
appropriate, useful, convenient or incidental appurtenances and equipment in connection with any
one or more of the above.
§16-13E-4. Petition for creation or expansion of community enhancement district; petition
requirements.
(a) The owners of at least sixty-one percent of the real property, determined by acreage,
located within the boundaries of the area described in the petition, by metes and bounds or otherwise
in a manner sufficient to describe the area, may petition a governing body to create or expand a
community enhancement district.
(b) The petition for the creation or expansion of a community enhancement district shall
include, where applicable, the following:
(1) The proposed name and proposed boundaries of such district and a list of the names and
addresses of all owners of real property within the proposed district;
(2) A detailed project description;
(3) A map showing the proposed project, including all proposed improvements;
(4) A list of estimated project costs and the preliminary plans and specifications for such
improvements, if available;
(5) A list of nonproject costs and how they will be financed;
(6) A consultant study outlining the projected assessments, setting forth the methodology for
determining the assessments and the methodology for allocating portions of an initial assessment against a parcel expected to be subdivided in the future to the various lots into which the parcel will
be subdivided and demonstrating that such assessments will adequately cover any debt service on
bonds issued to finance the project and ongoing administrative costs;
(7) A development schedule;
(8) A list of recommended members for the board;
(9) If the project includes water, wastewater or sewer improvements, written evidence from
the utility or utilities that will provide service to the district, if any, that said utility or utilities:
(A) Currently has adequate capacity to provide service without significant upgrades or
modifications to its treatment, storage or source of supply facilities,
except facilities which the
community enhancement district will provide as described in the petition;
(B) Will review and approve all plans and specifications for the improvements to determine
that the improvements conform to the utility's reasonable requirements and, if the improvement
consists of water transmission or distribution facilities, that the improvements provide for adequate
fire protection for the district; and
(C) If built in conformance with said plans and specifications, will accept the improvements
following their completion, unless such projects are to be owned by the district;
(10) If the project includes improvements other than as set forth in subdivision (9) of this
subsection that will be transferred to another governmental agency, written evidence that such
agency will accept such transfer, unless such projects are to be owned by the district;
(11) The benefits that can be expected from the creation of the district and the project; and
(12) A certification from each owner of real property within the proposed district who joins
in the petition that he or she is granting an assessment against his or her property in such an amount
as to pay for the costs of the project and granting a lien for said amount upon said property
enforceable in accordance with
the provisions of this article.
(c) After reviewing the petition presented pursuant to this section, the governing body may
by order or ordinance determine the necessity and economic feasibility of creating a community enhancement district and developing, constructing, acquiring, improving or extending a project
therein. If the governing body determines that the creation of a community enhancement district and
construction of the project is necessary and economically feasible, it shall set a date for the public
meeting required under section five of this article and shall cause the petition to be filed with the
clerk of the county commission or the clerk or recorder of the municipality, as the case may be, and
be made available for inspection by interested persons before the meeting.
(d) Notwithstanding any other
contrary provision of this article,
to the contrary nothing in this
article shall modify:
(1) The jurisdiction of the Public Service Commission to determine the convenience and
necessity of the construction of utility facilities, to resolve disputes between utilities relating to
which utility should provide service to a district or otherwise to regulate the orderly development
of utility infrastructure in the state; or
(2) The authority of the Infrastructure and Jobs Development Council as to the funding of
utility facilities to the extent that loans, loan guarantees, grants or other funding assistance from a
state infrastructure agency are involved.
§16-13E-10a. Extension of vesting period for land development plans and plats; approval of
phases.
(a) The five-year vesting period is extended to the development concept vesting period with
respect to the development concept if: (i) The land development will be wholly contained within
a community enhancement district; and (ii) either:
(A) Such community enhancement district has been created and is in existence, and such
facts have been communicated to the planning commission, at the time the planning commission
approves the subject land development plan and plat (whether such plan and plat is denominated
final, preliminary, phased preliminary, concept or otherwise); or
(B) Such community enhancement district is created after the initial approval of the subject
land development plan and plat and the planning commission subsequently ratifies the approval of such plan and plat with the knowledge of the existence of the community enhancement district; and
(iii) assessment bonds or tax increment financing obligations payable from or secured by, in whole,
or in part, assessments against real property located within the district are issued within the five-year
vesting period.
(b) Nothing herein shall be deemed to extend or otherwise modify the five-year vesting
period with respect to items other than those included in the development concept.
(c) When a land development will be wholly contained within a community enhancement
district, a land development plan and plat that otherwise pertains to and seeks approval of only a
portion or phase of the land development may also contain the development concept for a greater
portion, multiple phases or the entirety of the land development if the plan and plat expressly so
provides. Approval of a land development plan and plat by the planning commission constitutes
approval of, and the establishment of a vested property right in, the entire development concept
contained in the land development plan and plat.
(d) This section shall apply to all community enhancement districts, regardless of whether
created prior or subsequent to enactment of this section."
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 390),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 41) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was
reported by the Clerk and adopted, amending the title to read as follows:
S. B. 41 - " A Bill to amend and reenact §8A-5-12 of the Code of West Virginia, 1931, as
amended; to amend and reenact §16-13E-2 and §16-13E-4 of said code; and to amend said code by adding thereto a new section, designated §16-13E-10a, all relating to generally to subdivision or land
development plans or plats; extending the vesting period for certain subdivision or land development
plans and plats; providing definitions relating to the development of community enhancement
districts; and excepting from a utility's submission relating to petitions for the creation of a district
the capacity of the district to provide its own utility services."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment
of the House of Delegates and requested the House to recede from its amendment to
Com. Sub. for S. B. 218, Providing for early parole eligibility for certain inmates.
On motion of Delegate Boggs, the House of Delegates refused to recede from its amendment
and requested the Senate to agree to the appointment of a Committee of Conference of 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 Frazier, Wooton and Ellem.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
At 4:30 p.m., on motion of Delegate Boggs, the House of Delegates recessed until 8:00 p.m.,
and reconvened at that time.
* * * * * * *
Evening Session
* * * * * * *
Conference Committee Report
Delegate Kominar, from the Committee of Conference on matters of disagreement between
the two houses, as to
H. B. 4177, Dedicating five percent of coal severance tax to the county of origin,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendment of the Senate to H. B. 4177, having met, after full and free conference, have agreed to
recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the Senate,
striking out everything after the enacting clause and inserting new language, and agree to the same
as follows:
That §11-13A-5a of the Code of West Virginia, 1931, as amended, be amended and reenacted
to read as follows:
ARTICLE 13A. SEVERANCE AND BUSINESS PRIVILEGE TAX ACT.
§11-13A-5a.
Dedication of five percent of severance tax for benefit of counties of origin; phase
in period; expenditures of funds; dedication of ten percent of oil and gas severance tax
for benefit of counties and municipalities; distribution of major portion of such
dedicated tax to oil and gas producing counties; distribution of minor portion of such
dedicated tax to all counties and municipalities; reports; rules; special funds in the
office of State Treasurer; methods and formulae for distribution of such dedicated tax;
expenditure of funds by counties and municipalities for public purposes; and requiring
special county and municipal budgets and reports thereon.
(a)(1) Effective July 1, 2010, one percent of the tax attributable to the severance of coal
imposed by section three of this article is dedicated for the use and benefit of counties from which
those taxes were generated and shall be distributed to each county as provided in this subsection.
Effective July 1, 2011, two percent of the tax attributable to the severance of coal imposed by section three of this article is dedicated for the use and benefit of counties from which those taxes were
generated and shall be distributed to each county as provided in this subsection. Effective July 1,
2012, three percent of the tax attributable to the severance of coal imposed by section three of this
article is dedicated for the use and benefit of counties from which those taxes were generated and
shall be distributed to each county as provided in this subsection. Effective July 1, 2013, four
percent of the tax attributable to the severance of coal imposed by section three of this article is
dedicated for the use and benefit of counties from which those taxes were generated and shall be
distributed to each county as provided in this subsection. Effective July 1, 2014, and each year
thereafter, five percent of the tax attributable to the severance of coal imposed by section three of
this article is dedicated for the use and benefit of counties from which those taxes were generated
and shall be distributed to each county as provided in this subsection.
(2) For purposes of this subsection, the tax attributable to the severance of coal imposed by
section three of this article does not include the thirty-five one hundredths of one percent additional
severance tax on coal imposed by the state for the benefit of counties and municipalities as provided
in section six of this article.
(3) The percentage authorized in this subsection shall be deposited into a special fund known
as the "County Severance Revenue Fund" which is hereby established in the state treasury, and from
that fund shall be distributed by the state Treasurer in the manner specified in this subsection to the
various counties of this state in which the coal upon which the tax imposed by section three of this
article is imposed was located at the time it was removed from the ground. The moneys shall be
distributed to the county commissions and used only for:
(A) Projects through economic development authorities and redevelopment authorities;
(B) Infrastructure;
(C) Job creation;
(D) Road repair;
(E) Public health systems; and
(F) As pledge to the payment of bond indebtedness for projects related to paragraphs (A)
through (E) of this subdivision.
(4)(A) No distribution made to a county under this subsection may be deposited into the
county's general revenue fund. The county commission of each county receiving a distribution under
this subsection shall establish a special account to be known as the "(name of county) 5% Special
Coal Severance Account" into which all distributions made under this subsection shall be deposited
and thereafter expended by the county commission as provided by this subsection.
(B) On or before October 1, 2011, and October 1 of each year thereafter, the county
commission of each county receiving a distribution of funds under this subsection shall report to the
Legislature on the use made of those funds during the next preceding fiscal year.
(a) (b) Effective July 1, 1996, five percent of the tax attributable to the severance of oil and
gas imposed by section three-a of this article is
hereby dedicated for the use and benefit of counties
and municipalities within this state and shall be distributed to the counties and municipalities as
provided in this section. Effective
the July 1, 1997, and thereafter, ten percent of the tax attributable
to the severance of oil and gas imposed by section three-a of this article is
hereby dedicated for the
use and benefit of counties and municipalities within this state and shall be distributed to the
counties and municipalities as provided in this section.
(b) (c) Seventy-five percent of this dedicated tax shall be distributed by the state Treasurer
in the manner specified in this section to the various counties of this state in which the oil and gas
upon which this additional tax is imposed was located at the time it was removed from the ground.
Those counties are referred to in this section as the "oil and gas producing counties". The remaining
twenty-five percent of the net proceeds of this additional tax on oil and gas shall be distributed
among all the counties and municipalities of this state in the manner specified in this section.
(c) (d) The Tax Commissioner is hereby granted plenary power and authority to promulgate
reasonable rules requiring the furnishing by oil and gas producers of
such additional information as
may be necessary to compute the allocation required under the provisions of subsection
(f) (g) of this section. The Tax Commissioner is also
hereby granted plenary power and authority to promulgate
such other reasonable rules as may be necessary to implement the provisions of this section.
(d) (e) In order to provide a procedure for the distribution of seventy-five percent of the
dedicated tax on oil and gas to the oil and gas producing counties, the special fund known as the oil
and gas county revenue fund established in the State Treasurer's office by chapter two hundred forty-
two, Acts of the Legislature, regular session, 1995, as amended and reenacted in the subsequent Act
of the Legislature, is
hereby continued. In order to provide a procedure for the distribution of the
remaining twenty-five percent of the dedicated tax on oil and gas to all counties and municipalities
of the state, without regard to oil and gas having been produced in those counties or municipalities,
the special fund known as the "All Counties and Municipalities Revenue Fund" established in
the
State Treasurer's office by chapter two hundred forty-two, Acts of the Legislature, regular session,
1995, as amended and reenacted in the subsequent Act of the Legislature, is
hereby redesignated as
the "All Counties and Municipalities Oil and Gas Revenue Fund" and is hereby continued.
Seventy-five percent of the dedicated tax on oil and gas shall be deposited in the "Oil and
Gas County Revenue Fund" and twenty-five percent of the dedicated tax on oil and gas shall be
deposited in the "All Counties and Municipalities Oil and Gas Revenue Fund", from time to time,
as the proceeds are received by the Tax Commissioner. The moneys in the funds shall be distributed
to the respective counties and municipalities entitled to the moneys in the manner set forth in
subsection
(e) (f) of this section.
(e) (f) The moneys in the "Oil and Gas County Revenue Fund" and the moneys in the "All
Counties and Municipalities Oil and Gas Revenue Fund" shall be allocated among and distributed
annually to the counties and municipalities entitled to the moneys by the state Treasurer in the
manner specified in this section. On or before each distribution date, the state Treasurer shall
determine the total amount of moneys in each fund which will be available for distribution to the
respective counties and municipalities entitled to the moneys on that distribution date. The amount
to which an oil and gas producing county is entitled from the "Oil and Gas County Revenue Fund" shall be determined in accordance with subsection
(f) (g) of this section, and the amount to which
every county and municipality shall be entitled from the "All Counties and Municipalities Oil and
Gas Revenue Fund" shall be determined in accordance with subsection
(g) (h) of this section. After
determining, as set forth in subsections
(f) and (g) (g) and (h) of this section, the amount each county
and municipality is entitled to receive from the respective fund or funds, a warrant of the State
Auditor for the sum due to the county or municipality shall issue and a check drawn thereon making
payment of the sum shall thereafter be distributed to the county or municipality.
(f) (g) The amount to which an oil and gas producing county is entitled from the oil and gas
county revenue fund shall be determined by:
(1) In the case of moneys derived from tax on the severance of gas:
(A) Dividing the total amount of moneys in the fund derived from tax on the severance of
gas then available for distribution by the total volume of cubic feet of gas extracted in this state
during the preceding year; and
(B) Multiplying the quotient thus obtained by the number of cubic feet of gas taken from the
ground in the county during the preceding year; and
(2) In the case of moneys derived from tax on the severance of oil:
(A) Dividing the total amount of moneys in the fund derived from tax on the severance of
oil then available for distribution by the total number of barrels of oil extracted in this state during
the preceding year; and
(B) Multiplying the quotient thus obtained by the number of barrels of oil taken from the
ground in the county during the preceding year.
(g) (h) The amount to which each county and municipality is entitled from the "All Counties
and Municipalities Oil and Gas Revenue Fund" shall be determined in accordance with the
provisions of this subsection. For purposes of this subsection "population" means the population
as determined by the most recent decennial census taken under the authority of the United States:
(1) The Treasurer shall first apportion the total amount of moneys available in the all counties and municipalities oil and gas revenue fund by multiplying the total amount in the fund by the
percentage which the population of each county bears to the total population of the state. The
amount thus apportioned for each county is the county's "base share".
(2) Each county's base share shall then be subdivided into two portions. One portion is
determined by multiplying the base share by that percentage which the total population of all
unincorporated areas within the county bears to the total population of the county, and the other
portion is determined by multiplying the base share by that percentage which the total population of
all municipalities within the county bears to the total population of the county. The former portion
shall be paid to the county and the latter portion shall be the "municipalities' portion" of the county's
base share. The percentage of the latter portion to which each municipality in the county is entitled
shall be determined by multiplying the total of the latter portion by the percentage which the
population of each municipality within the county bears to the total population of all municipalities
within the county.
(h) (i) Moneys distributed to any county or municipality under the provisions of this section,
from either or both special funds, shall be deposited in the county or municipal general fund and may
be expended by the county commission or governing body of the municipality for such purposes as
the county commission or governing body shall determine to be in the best interest of its respective
county or municipality:
Provided, That in counties with population in excess of two hundred
thousand, at least seventy-five percent of the funds received from the Oil and Gas County Revenue
Fund shall be apportioned to and expended within the oil and gas producing area or areas of the
county, the oil and gas producing areas of each county to be determined generally by the State Tax
Commissioner:
Provided, however, That the moneys distributed to any county or municipality under
the provisions of this section shall not be budgeted for personal services in an amount to exceed one-
fourth of the total amount of the moneys.
(i) (j) On or before March 28, 1997, and each March 28
thereafter, each county commission
or governing body of a municipality receiving any such moneys shall submit to the Tax Commissioner on forms provided by the Tax Commissioner a special budget, detailing how the
moneys are to be spent during the subsequent fiscal year. The budget shall be followed in expending
the moneys unless a subsequent budget is approved by the State Tax Commissioner. All unexpended
balances remaining in the county or municipality general fund at the close of a fiscal year shall
remain in the General Fund and may be expended by the county or municipality without restriction.
(j) (k) On or before December 15, 1996, and each December 15 thereafter, the Tax
Commissioner shall deliver to the Clerk of the Senate and the Clerk of the House of Delegates a
consolidated report of the budgets, created by subsection
(i) (j) of this section, for all county
commissions and municipalities as of July 15 of the current year.
(k) (l) The State Tax Commissioner shall retain for the benefit of the state from the dedicated
tax attributable to the severance of oil and gas the amount of $35,000 annually as a fee for the
administration of the additional tax by the Tax Commissioner.
And,
That both houses recede from their positions as to the title of the bill and agree to the same
as follows:
H. B. 4177 - A BILL to amend and reenact §11-13A-5a of the Code of West Virginia, 1931,
as amended, relating to dedicating five percent of coal severance tax to the county of origin as phased
in over a five year period and providing permissible uses for the moneys.
Respectfully submitted,
K. Steven Kominar,
John Pat Fanning,
Jeff Eldridge,
Randy White,
Ron Walters,
Karen L. Facemyer,
Conferees on the partConferees on the part
of the House of Delegates. of the Senate
.
On motion of Delegate Kominar, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 391), and there were--yeas
92, nays 1, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Sobonya.
Absent And Not Voting: Argento, Cann, Ennis, Lawrence, Phillips, M. Poling and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (H. B. 4177) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect July 1, 2010, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4031, Providing flexibility in the West Virginia public school support
plan for funding regional education service agencies.
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 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-8a. Foundation allowance for regional education service agencies.
(a) For the fiscal year beginning on July 1, two thousand six, and for each fiscal year
thereafter, Subject to subsections (b) and (c) of this section, for each fiscal year, the foundation
allowance for regional education service agencies shall be equal to sixty-three one-hundredths
percent of the sum of the following:
(1) The allocation for professional educators as determined in section four of this article; plus
(2) The allocation for professional student support personnel as determined in section eight of this article.
(b) but The foundation allowance for regional education service agencies may not be more
than four million two hundred thousand dollars.
(c) When the state's fiscal conditions necessitate a reduction in appropriation for state
agencies including the Department of Education, the amount of this foundation allowance
determined pursuant to subsections (a) and (b) of this section may be reduced by the same percentage
as the appropriation to the Department of Education is reduced. For fiscal years after any reductions
in the foundation allowance pursuant to this subsection occur, the amount of the foundation
allowance shall be restored to the amounts determined pursuant to subsections (a) and (b) of this
section.
(d) The allowance shall be distributed to the regional education service agencies in
accordance with rules adopted by the state board.
(e) The allowance for regional education service agencies shall be excluded from the
computation of total basic state aid as provided in section twelve of this article."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4031 - "A Bill to amend and reenact §18-9A-8a of the Code of West
Virginia, 1931, as amended, relating to the foundation allowance for regional education service
agencies; including the allocation for professional student support personnel in the calculation of the
allowance; and allowing reduction in allowance when the state's fiscal conditions necessitate a
reduction in appropriation for state agencies including the Department of Education."
On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate
amendment 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
five from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 4513, Establishing requirements for Marcellus gas well operations use
of water resources.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Green, Stollings, D. Facemire, Williams and Deem.
On motion of Delegate Boggs, the House of Delegates agreed to the appointment of a
Committee of Conference of five 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 Manchin, Caputo, Hutchins Wells and Schadler.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Conference Committee Report Availability
At 8:18 p.m., the Clerk announced availability in his office of the report of the Committee
of Conference on
H. B. 4593.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment
of the House of Delegates and requested the House to recede from its amendment to
Com. Sub. for S. B. 567, Creating Nonprofit Adventure and Recreational Responsibility Act.
On motion of Delegate Boggs, the House of Delegates refused to recede from its amendment
and requested the Senate to agree to the appointment of a Committee of Conference of 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 Shook, Frazier and Ellem.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Delegates Lawrence and Phillips announced that they were absent when the vote was taken
on Roll No. 391, and that had they been present, they would have voted "Yea" thereon.
Conference Committee Report Availability
At 8:27 p.m., the Clerk announced availability in his office of the report of the Committee
of Conference on
Com. Sub. for S. B. 480.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendments of the House of
Delegates and the passage, as amended, of
S. B. 41, Relating to community enhancement districts,
S. B. 122, Increasing mental health treatment refusal age of consent,
S. B. 169, Relating to Economic Development Authority loans' criteria,
Com. Sub. for S. B. 232, Transferring certain requirements for redeeming delinquent land
sales from county clerks to State Auditor,
Com. Sub. for S. B. 238, Relating to mineral rights' benefits,
Com. Sub. for S. B. 290, Providing fiduciary commissioner oversight.
Com. Sub. for S. B. 352, Creating WV Community Empowerment Transportation Act,
Com. Sub. for S. B. 394, Authorizing DMV use certain program to identify uninsured
vehicles,
Com. Sub. for S. B. 396, Updating commercial driver's license requirements,
Com. Sub. for S. B. 397, Creating single dwelling residential housing index and multiplier,
Com. Sub. for S. B. 401, Relating to ad valorem property taxes,
Com. Sub. for S. B. 407, Authorizing Department of Revenue promulgate legislative rules,
Com. Sub. for S. B. 435, Relating to speed-detecting device use law,
S. B. 453, Providing State Register subscribers electronic format option,
Com. Sub. for S. B. 465, Relating to utility service disconnection,
Com. Sub. for S. B. 483, Authorizing HMOs offer point of service option,
Com. Sub. for S. B. 518, Relating to osteopathic physician assistants,
Com. Sub. for S. B. 557, Clarifying legislative vacancy procedures,
S. B. 610, Extending statutory exemption to certain out-of-school time programs,
S. B. 664, Relating to duties of protected person's guardian,
And,
S. B. 698, Relating to mini-trucks' registration and certificate of title requirements.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the title amendment of the House of
Delegates and the passage, as amended, of
Com. Sub. for S. B. 229, Authorizing School Building Authority issue certain outstanding
bonds.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendments of the House of
Delegates and the passage, as amended, to take effect from passage, of
Com. Sub. for S. B. 286, Authorizing DHHR promulgate legislative rules,
Com. Sub. for S. B. for S. B. 291, Authorizing Department of Transportation promulgate
legislative rules,
S. B. 612, Authorizing Governor certify certain capital improvement projects' lists,
And,
Com. Sub. for S. B. 669, Allowing municipalities to operate teen courts.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the title amendments of the House of
Delegates and the passage, as amended, of
S. B. 350, Recategorizing recycled energy as renewable energy resource,
Com. Sub. for S. B. 449, Relating to PEIA preexisting conditions limitations,
And,
Com. Sub. for S. B. 649, Establishing motor vehicle search criteria.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendments of the House of
Delegates and the passage, as amended, to take effect July 1, 2010, of
Com. Sub. for S. B. 427, Renaming and reorganizing Parkways, Economic Development
and Tourism Authority.
And,
Com. Sub. for S. B. 70, Relating to municipalities and counties issuing bonds.
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, to take effect from passage, of
Com. Sub. for S. B. 577, Clarifying definition of "raffle".
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 392), and there were--yeas 96, nays
1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Argento, Cann and Ross.
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. 577) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had agreed to the appointment of a
conference committee of three from each house on the disagreeing votes of the two houses, as to
Com. Sub. for S. B. 567, Creating Nonprofit Adventure and Recreational Responsibility Act.
The message further announced the appointment of the following conferees on the part of
the Senate:
Senators Laird, Palumbo and Barnes.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment,
to take
effect from passage,
a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4108, 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 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 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS
TO PROMULGATE LEGISLATIVE RULES.
§64-9-1. State Board of Examiners for Licensed Practical Nurses.
The legislative rule filed in the state register on the July 9, 2009, authorized under the
authority of section five, article seven-a, chapter thirty, of this code, modified by the State Board of Examiners for Licensed Practical Nurses to meet the objections of the legislative rule-making review
committee and refiled in the state register on October 19, 2009, relating to the State Board of
Examiners for Licensed Practical Nurses (policies and procedures for development and maintenance
of educational programs in practical nursing, 10 CSR 1), is authorized.
§64-9-2. Board of Examiners in Counseling.
(a) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section six, article thirty-one, chapter thirty, of this code, modified by the Board of
Examiners in Counseling to meet the objections of the legislative rule-making review committee and
refiled in the state register on November 25, 2009, relating to the Board of Examiners in Counseling
(licensed professional counselor fees, 27 CSR 2), is authorized.
(b) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section six, article thirty-one, chapter thirty, of this code, modified by the Board of
Examiners in Counseling to meet the objections of the legislative rule-making review committee and
refiled in the state register on October 19, 2009, relating to the Board of Examiners in Counseling
(licensed professional counselor license renewal and continuing professional education requirements,
27 CSR 3), is authorized with the following amendment:
On page one, subsection 1.2., by striking out "§30-31-5(b)(18)" and inserting in lieu thereof
"§30-31-6".
(c) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section six, article thirty-one, chapter thirty, of this code, modified by the Board of
Examiners in Counseling to meet the objections of the legislative rule-making review committee and
refiled in the state register on November 25, 2009, relating to the Board of Examiners in Counseling
(marriage and family therapists licensing, 27 CSR 8), is authorized.
(d) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section six, article thirty-one, chapter thirty, of this code, modified by the Board of
Examiners in Counseling to meet the objections of the legislative rule-making review committee and refiled in the state register on November 25, 2009, relating to the Board of Examiners in Counseling
(marriage and family therapists fees, 27 CSR 9), is authorized.
(e) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section six, article thirty-one, chapter thirty, of this code, modified by the Board of
Examiners in Counseling to meet the objections of the legislative rule-making review committee and
refiled in the state register on October 19, 2009, relating to the Board of Examiners in Counseling
(marriage and family license renewal and continuing professional education, 27 CSR 10), is
authorized with the following amendments:
On page one, subsection 1.2., by striking out "§30-31-5(b)" and inserting in lieu thereof
"§30-31-6".
On page one section 2.1, by striking the words "of Marriage and Family Therapist and code
of ethics." and inserting in lieu thereof the following words, "for Marriage and Family Therapy Code
of Ethics.";
On page two section 2.7 by striking the words, "you attend" and inserting in lieu thereof the
word, "attended";
On page three section 4.1, striking the word "Therapist" and inserting in lieu of the word,
"Therapy";
On page four section 4.9 striking the word "therapist" and inserting in lieu of the following
word, "therapy";
On page four section 4.10 striking the words, "of Marriage and Family Therapist" and
inserting in lieu thereof the following words, "for Marriage and Family Therapy";
On page six, subparagraph (I) by striking the apostrophe;
On page seven, subparagraph (D) by striking the apostrophe;
On page eight paragraph 6 by striking the words, "of Marriage and Family Therapist" and
inserting in lieu thereof the following words, "for Marriage and Family Therapy";
On page nine, subparagraph (C) by striking out the words, "of Marriage and Family Therapist" and inserting in lieu of the following words, "for Marriage and Family Therapy".
§64-9-3. Board of Medicine.
The legislative rule filed in the state register on July 30, 2009, authorized under the authority
of section seven, article three, chapter thirty, of this code, relating to the Board of Medicine (fees for
services rendered by the Board of Medicine including assistance to the Board-designated physician
health program for physicians, podiatrists and physician assistants, 11 CSR 4), is authorized.
§64-9-4. Conservation Agency.
The legislative rule filed in the state register on July 29, 2009, authorized under the authority
of section six, article twenty-one-a, chapter nineteen, of this code, modified by the Conservation
Agency to meet the objections of the legislative rule-making review committee and refiled in the
state register on October 23, 2009, relating to the Conservation Agency (operation of the West
Virginia State Conservation Committee and conservation districts, 63 CSR 1), is authorized.
§64-9-5. Commissioner of Agriculture.
(a) The legislative rule filed in the state register on July 28, 2009, authorized under the
authority of section two, article nine, chapter nineteen, of this code, modified by the Commissioner
of Agriculture to meet the objections of the legislative rule-making review committee and refiled in
the state register on September 22, 2009, relating to the Commissioner of Agriculture (animal
disease control, 61 CSR 1), is authorized.
(b) The legislative rule filed in the state register on July 21, 2009, authorized under the
authority of section four, article sixteen-a, chapter nineteen, of this code, modified by the
Commissioner of Agriculture to meet the objections of the legislative rule-making review committee
and refiled in the state register on September 4, 2009, relating to the Commissioner of Agriculture
(integrated pest management programs in schools and child care centers and facilities, 61 CSR 12J),
is authorized.
(c) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section one, article twenty-nine, chapter nineteen, of this code, modified by the Commissioner of Agriculture to meet the objections of the legislative rule-making review committee
and refiled in the state register on September 23, 2009, relating to the Commissioner of Agriculture
(West Virginia shellfish, 61 CSR 23B), is authorized with the following amendments:
On page four, by striking out subdivision 4.1.i. in its entirety and inserting in lieu thereof a
new subdivision 4.1.i. to read as follows:
"Refer violations to a court of competent jurisdiction for the violation of this rule as allowed
under West Virginia laws. Nothing in this rule shall be construed as requiring the commissioner to
report for prosecution or institute an embargo, detainment or quarantine for the violation of this rule
when he or she believes that the public interest may best be served by a written notice of the
violation."
On page six, after subdivision 7.1.j. by adding a new subsection, designated 7.2 to read as
follows:
"7.2. Any person who violates the provisions of this rule shall have his or her Shellfish
Certificate suspended until the facility is in compliance with the provisions of this rule.";
On pages six and seven, by striking §61-23A-8 in its entirety;
And, by renumbering the remaining section.
(d) The legislative rule filed in the state register on July 15, 2009, authorized under the
authority of section six, article twenty-nine, chapter nineteen, of this code, modified by the
Commissioner of Agriculture to meet the objections of the legislative rule-making review committee
and refiled in the state register on January 14, 2010, relating to the Commissioner of Agriculture
(best management practices for land application of waste products from aquaculture facilities, 61
CSR 27), is authorized.
§64-9-6. Board of Barbers and Cosmetologists.
(a) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section six, article twenty-seven, chapter thirty, of this code, modified by the Board of
Barbers and Cosmetologists to meet the objections of the legislative rule-making review committee and refiled in the state register on December 14, 2009, relating to the Board of Barbers and
Cosmetologists (qualifications, training, examination and licensure of instructors in barbering and
beauty culture, 3 CSR 2), is authorized with the following amendments:
On page one, after the caption "SERIES 2", by striking out the word "Licensure" and
inserting in lieu thereof the word "Certification";
On page one, subsection 1.1, by striking out the word "licensure" and inserting in lieu thereof
the word "certification";
On page one, in the "§3-2-2" caption, by striking out the word "Licensure" and inserting in
lieu thereof the word "Certification".
On page one, subsection 2.1, by striking out said subsection 2.1 in its entirety and inserting
in lieu thereof a new subsection 2.1 to read as follows:
2.1. An individual seeking certification must:;
On page one, subdivision 2.1.3, by striking out the word "offered" and inserting in lieu
thereof the word "approved".
On page two, subdivision 2.1.9, by striking out said subdivision 2.1.9 in its entirety and
inserting in lieu thereof a new subdivision 2.1.9 to read as follows:
"2.1.9. Submit a letter from a school owner or manager certifying that the applicant has
completed 375 hours of instructor training and attesting to the applicant's professional capabilities."
On page two, subdivision 2.1.11, at the beginning of said subdivision, by striking out the
word "Must";
On page two, subdivision 2.1.12, at the beginning of said subdivision, by striking out the
word "Must";
On page two, subdivision 2.1.13, by striking out the word "license" and inserting in lieu
thereof the word "certification";
On page two, subsection 3.1, by striking out the word "licensure" and inserting in lieu thereof
the word "certification";
On page two, subdivision 3.1.1, by striking out the word "Licensure" and inserting in lieu
thereof the word "Certification";
On page two, subdivision 3.1.6, by striking out said subdivision 3.1.6 in its entirety and
inserting in lieu thereof a new subdivision 3.1.6 to read as follows:
"3.1.6. Submit a letter from a school owner or manager certifying that the applicant has
completed 375 hours of instructor training and attesting to the applicant's professional capabilities
and employment and instructing experience."
On page three, subdivision 3.1.8, at the beginning of said subdivision, by striking out the
word "Must";
On page three, subdivision 3.1.9, at the beginning of said subdivision, by striking out the
word "Must";
On page three, subdivision 3.1.10, by striking out the word "license" and inserting in lieu
thereof the word "certification";
On page three, subsection 3.2, by striking out subsection 3.2 in its entirety and inserting in
lieu thereof a new subsection 3.2 to read as follows:
3.2. An instructor certification must be renewed annually or biennially on or before January
1.;
On page three, subsection 3.3, by striking out the word "registered" and inserting in lieu
thereof the word "certified";
On page three, subsection 3.3, by striking out the word "license" and inserting in lieu thereof
the word "certificate";
On page three, in the "§3-2-4" caption, by striking out the word "Licensure" and inserting
in lieu thereof the word "Certification";
On page three, subsection 4.1, by striking out the word "licensure" and inserting in lieu
thereof the word "certification";
On page three, subsection 4.1, in the last sentence, by striking out the underlined word "student";
On page four, in the "§3-2-5" caption, by striking out the word "Licensure" and inserting in
lieu thereof the word "Certification";
On page four, subsection 5.2, by striking out the last sentence that reads: "This rule section
applies to only 1800 hour barber graduates.";
On page five, in the "§3-2-6" caption, by striking out the word "Licensure" and inserting in
lieu thereof the word "Certification";
On page five, by striking out subsection 6.1 in its entirety and renumbering the remaining
subsections;
On page five, subsection 6.2, by striking out the word "license" and inserting in lieu thereof
the words "a certificate";
On page six, by striking out subsection 7.1 in its entirety and inserting in lieu thereof a new
subsection 7.1 to read as follows:
7.1. An applicant from another state seeking certification as an instructor or master instructor
is eligible for certification by reciprocity if the applicant has acquired training in another state equal
to the requirements established in this rule for the respective certificate requested: Provided, that the
state in which said applicant is certified extends the same privilege to certified instructors from this
State.;
On page six, in the "§3-2-8" caption, by striking out the word "License" and inserting in lieu
thereof the word "Certificate";
On page six, subsection 8.1, by striking out the word "license" and inserting in lieu thereof
the word "certificate";
On page six, subsection 8.2, by striking out the word 'whose' and inserting in lieu thereof
the words "who is";
On page six, subsection 8.2, by striking out the word "licensed" and inserting in lieu thereof
the word "certified";
And,
On page six, subsection 9.1, by striking out the words "contested case".
(b) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section six, article twenty-seven, chapter thirty, of this code, modified by the Board of
Barbers and Cosmetologists to meet the objections of the legislative rule-making review committee
and refiled in the state register on December 14, 2009, relating to the Board of Barbers and
Cosmetologists (licensing schools of barbering and beauty culture, 3 CSR 3), is authorized with the
following amendments:
On page one, subdivision 2.1.d, by striking said subdivision 2.1.d in its entirety and inserting
in lieu thereof a new subdivision 2.1.d to read as follows:
"The applicant has employed or contracted with at least 2 licensed master instructors, and
such additional licensed instructors as necessary to meet the instructor-to-student ratio requirements
of 3 CSR 4 (Title 3, Legislative Rule of the Board of Barbers and Cosmetologists, Series 4,
Operational Standards for Schools of Barbering and Beauty Culture).";
On page two, subdivision 3.1.5, by striking out subdivision 3.1.5 in its entirety and inserting
in lieu thereof a new subdivision 3.1.5 to read as follows:
3.1.5. A copy of a proposed floor plan of the school, which arrangement shall have at least
two (2) classrooms for each profession taught and a room for clinical and demonstration work.
On page three, subdivision 3.1.13, by striking said subdivision 3.1.13 in its entirety and
inserting in lieu thereof a new subdivision 3.1.13 to read as follows:
"A statement by the applicant that the school is handicapped accessible.";
On page four, subsection 3.6, by striking said subsection 3.6 in its entirety and inserting in
lieu thereof a new subsection 3.6 to read as follows:
"Applicants who acquire or relocate an existing school must meet the requirements set forth
in this section.";
On page four, subsection 4.4, after the words "The Board" by striking the word "shall" and inserting in lieu thereof the word 'may', and after the words "general grounds" by inserting the word
"suspend,"; and
On page four, subdivision 4.4.3, by striking said subdivision 4.4.3 in its entirety and inserting
in lieu thereof a new subdivision 4.4.3 to read as follows:
"A licensee, owner, administrator, manager, director or other key interested party is convicted
of a felony or misdemeanor relating to the school or its operation.".
(c) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section six, article twenty-seven, chapter thirty, of this code, modified by the Board of
Barbers and Cosmetologists to meet the objections of the legislative rule-making review committee
and refiled in the state register on December 14, 2009, relating to the Board of Barbers and
Cosmetologists (operation of barber, beauty shops and schools of barbering and beauty culture, 3
CSR 5), is authorized with the following amendments:
On page one, subsection 1.1, by striking out the subsection and inserting in lieu thereof
"Scope - This legislative rule governs the sanitary requirements for salons and schools licensed by
the Board of Barbers and Cosmetologists.";
On page one, subsection 2.1, after the word "All", by striking out the words "barber, beauty,
nail and aesthetic shops/salons or schools of barbering and beauty culture" and inserting in lieu
thereof the words "salons or schools";
On page one, subsection 2.2, after the word "All", by striking out the words "shop's or
school's" and inserting in lieu thereof the words "salons' and schools'";
On page one, subsection 2.2, after the word "such", by striking out the word "shop" and
inserting in lieu thereof the word "salon";
On page one, subsection 2.2, after the word "such", by striking out the word "shops" and
inserting in lieu thereof the word "salons";
On page one, subsection 2.3, after the word "Each", by striking out the words "barber,
cosmetologist, aesthetician, nail technician/manicurist,";
On page two, subsection 2.6, by striking out the word "in" and inserting in lieu thereof the
word "is";
On page two, subsection 2.8, after the word "All", by striking out the words "barber, beauty,
nail and aesthetic shops/";
On page two, subsection 2.9, after the word "for", by striking out the words "barber, beauty,
nail and aesthetic shops/";
On page two, subsection 2.9, after the word "in", by striking out the words "barber or beauty
shops" and inserting in lieu thereof the word "salons";
On page two, subsection 2.9, by striking out the word "Shops" and inserting in lieu thereof
the word "salons";
On page three, subsection 2.15, after the word "each", by striking out the word "shop" and
inserting in lieu thereof the word "salon";
On page three, subsection 2.15, after the word "the", by striking out the word "shop" and
inserting in lieu thereof the word "salon";
On page three, subsection 2.16, after the word "Each", by striking out the words "barber,
aesthetician, nail technician/manicurist, or cosmetologist" and inserting in lieu thereof the word
"licensee";
On page three, subsection 2.16, after the word "student", by striking out the words "barber,
aesthetician, nail technician/manicurist, or cosmetologist";
On page three, subsection 2.16, after the word "such", by striking out the words "barber,
aesthetician, nail technician/manicurist, or cosmetologist" and inserting in lieu thereof the word
"licensee";
On page three, subsection 2.17, after the word "Every", by striking out the words "barber,
aesthetician, nail technician/manicurist, or cosmetologist" and inserting in lieu thereof the word
"licensee";
On page three, subsection 2.19, by striking out the words "marks and where possible" and inserting in lieu thereof the words "and, where possible";
On page three, subsection 2.20, by striking out subsection 2.20 in its entirety and inserting
in lieu thereof a new subsection 2.20 to read as follows:
2.20. Any member of the Board, or it's inspectors may enter or inspect any barber, beauty,
nail and aesthetic shops/salons or school of barbering or beauty culture during business hours to
check any part of the premises in order to ascertain wether or not any part of these rules are being
violated, and to take any other action necessary to properly enforce the law;
On page four, subsection 2.21, after the word "every", by striking out the words "barber,
beauty, nail and aesthetic shops/salons" and inserting in lieu thereof the word "salon";
On page four, subsection 2.24, after the word "All", by striking out the words "barber,
beauty, nail and aesthetic shops/salons and beauty shops or" and inserting in lieu thereof the words
"salons and";
On page four, subsection 2.24, after the word "the", by striking out the word "shop" and
inserting in lieu thereof the words "salon or school";
On page four, subsection 2.25, by striking out the word "have" and inserting in lieu thereof
the word "operate";
On page four, subsection 2.25, after the word "the", by striking out the word "shop" and
inserting in lieu thereof the word "salon";
On page four, subsection 2.26, after the word "All", by striking out the words "barber,
beauty, nail and aesthetic shops/salons and shop" and inserting in lieu thereof the word "salon";
On page four, subsection 2.27, after the word "All", by striking out the words "barber,
beauty, nail and aesthetic shops/salons and beauty shops" and inserting in lieu thereof the word
"salons";
On page four, subsection 2.27, by striking out the words "water marks or stains,";
On page four, subsection 3.1, after the word "all", by striking out the words "barber, beauty,
nail and aesthetic shops/salons, barber or beauty" and inserting in lieu thereof the words "salons and";
On page four, subsection 3.1, after the word "all", by striking out the words "licensed
barbers, cosmetologists, aestheticians, nail technicians/manicurists" and inserting in lieu thereof the
word "licensees";
And,
On page four, subsection 4.1, after the word "a" by striking out the words "contested case".
(d) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section six, article twenty-seven, chapter thirty, of this code, relating to the Board of
Barbers and Cosmetologists (schedule of fees, 3 CSR 6), is authorized with the following
amendments:
On page one, subsection 1.1, after the word "Cosmetologists" by striking out the remainder
of the sentence;
And,
On page one, subsection 1.2, by striking out "§30-27-1" and inserting in lieu thereof "§30-27-
6".
(e) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section six, article twenty-seven, chapter thirty, of this code, modified by the Board of
Barbers and Cosmetologists to meet the objections of the legislative rule-making review committee
and refiled in the state register on December 14, 2009, relating to the Board of Barbers and
Cosmetologists (schedule of fines, 3 CSR 7), is authorized with the following amendment:
On page one, section 2, after the words "any person licensed" by striking out the words
"and/or licensed facility" and inserting in lieu thereof the following words "or holding a salon
license";
On page ten, subsection 2.63, by striking out the word "Failure" and inserting in lieu thereof
the word "Failing";
On page eleven, subsection 2.64, by striking out the word "Failure" and inserting in lieu thereof the word "Failing";
On page eleven, subsection 2.65, by striking out the words "Failure for a shop or shop owner"
and inserting in lieu thereof the word "Failing";
On page eleven, subsection 2.66, by striking out the words "Failure for a shop or shop
manger" and inserting in lieu thereof the word "Failing";
On page eleven, by striking out subsection 2.68 in its entirety and by renumbering the
remaining subsections;
And,
On page twelve, by striking out subsections 2.71 and 2.72 in their entirety.
(f) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section six, article twenty-seven, chapter thirty, of this code, modified by the Board of
Barbers and Cosmetologists to meet the objections of the legislative rule-making review committee
and refiled in the state register on December 14, 2009, relating to the Board of Barbers and
Cosmetologists (continuing education, 3 CSR 11), is authorized with the following amendments:
On page one, subsection 1.1, by striking out the words "barbering, cosmetology,
manicuring/nail technology, and aesthetics" and inserting in lieu thereof the words "beauty culture
in West Virginia";
On page one, subsection 1.2, by striking out "§30-.27-6-9" and inserting in lieu thereof "§30-
27-6".
On page one, after the section heading "§3-11-2 Definitions" by striking out everything after
the said section heading and inserting in lieu thereof the following, all to read as follows:
"2.1. 'Approved academic course' means a formal course of study offered by an accredited
postsecondary educational institution as it relates to the barbering, cosmetology, manicuring/nail
technology, and aesthetics.
2.2. 'Approved provider' means a local, state or national agency, organization or association
recognized by the Board.
2.3. 'Audit' means the selection of licensees for verification of satisfactory completion of
continuing education during a specified time period, or the selection of approved providers for
verification of adherence to continuing education approved provider requirements during a specified
time period.
2.4. 'Beauty Culture' means the act or practice of aesthetics, barbering, barbering crossover,
barber permanent waving, cosmetology, cosmetology crossover and nail care.;
2.5. 'Contact person' means a person submitting a Request for Approval Form.
2.6. 'Continuing education' means planned, organized learning activities engaged in
following initial licensure and designed to maintain, improve, or expand beauty knowledge and skills
or to develop new knowledge and skills related to beauty culture practice, education, or theory
development.
2.7. 'Continuing education activity' means a learning activity that is planned, organized and
administered to enhance the professional knowledge and skills underlying the professional
performance that the licensee uses to provide services the public. To qualify as continuing education,
the activity must provide sufficient depth and scope of a subject area.
2.8. 'Continuing education credit' means credit earned for completing a continuing education
activity, expressed in units as provided in section 3.1 of this rule.
2.9. 'Continuing Education Provider License' means a licensed provider of continuing
education.
2.10. 'Documentation' means proof of participation in a continuing education activity.
2.11. 'Formal offering' means an extension course, independent study, or other course which
is offered, for college credit, by a recognized educational institution.
2.12. 'Informal offering' means a workshop, seminar, institute, conference, lecture, or short
term course, which is offered for credit in continuing education units.
2.13. 'Objectives' means an expression in measurable and observable terms of what the
participant will learn as a result of the educational activity.
2.14. 'Sponsor' means an organization, including professional societies, academic
institutions, individuals, corporations, or governmental agencies, which plans, organizes, supports,
endorses, subsidizes and/or administers educational activities, and is responsible for the content,
quality and integrity of the educational activity.
§3-11-3. Continuing Education.
3.1. Each applicant for renewal or reinstatement of a license shall verify that he or she has
satisfactorily completed four (4) credits of continuing education during the prescribed year reporting
period.
3.1.a. Units of measurement for continuing education credits are calculated as follows:
30 to 49 minutes = 0.5 CE credits
50 to 74 minutes = 1 CE credits
75 to 99 minutes = 1.5 CE credits
100 minutes = 2 CE credits
Activities lasting less than 30 minutes are not eligible for credit.
3.1.b. Writing an article which is published in a magazine directly related to the profession
will qualify for 4 credits of continuing education within the continuing education reporting period.
A copy of the article must be maintained by the licensee for a period of 3 years following the
continuing education activity.
3.2. Credits may not be granted for identical continuing education activities submitted during
any single year reporting period. Credits may not be accumulated for use in a future single year
reporting period.
3.3. Documentation of continuing education credits must be submitted with applications for
license renewal.
§3-11-4. Exceptions to Continuing Education Requirements.
4.1. Reciprocity applicants and newly licensed applicants are exempt from the continuing
education requirements until the first renewal period after initial West Virginia licensure.
4.2. A licensee who resides outside of West Virginia and who holds a current license to
practice in a state other than West Virginia shall satisfy the continuing education requirements for
West Virginia in order to renew his or her license in this state.
4.3. The Board may grant a waiver to a licensee who has a physical or mental disability or
illness or who is providing direct care to a member of his or her immediate family during all or a
portion of the reporting period. A waiver provides for an extension of time or exception from some
or all of the continuing education requirements. Any licensee may request an application for a
waiver from the Board. The Board may approve or deny an application for waiver after review of
the application. The Board may not grant a waiver of continuing education requirements for more
than one (1) year reporting period.
§3-11-5. Failure to Meet Requirements or Exceptions to Requirements.
5.1. The Board may place the licensee on inactive status without penalty and may waive the
continuing education requirements, providing that the licensee notifies the Board in writing of his
or her desire to have the Board place his or her license on inactive status before the last day of the
reporting period.
5.2. The Board may suspend the license of any person who fails to notify the Board, in
writing, prior to the last day of the reporting period that he or she wishes to place his or her license
on the inactive status.
§3-11-6. Reinstatement of a License on Inactive Status or Issuance of a Probational Temporary
License.
6.1. A person wishing to reinstate a license from inactive status or from suspended status
shall:
6.1.a. Make application for reinstatement of the license from inactive status or suspended
status;
6.1.b. Meet the continuing education requirements as set forth in this rule; and
6.1.c. Pay the fee for reinstatement suspended license as specified in the Board's rule, Schedule of fees for services rendered.
§3-11-7. Audit of Licensee.
7.1 The Board may select any licensee who holds a current license to audit for compliance
with continuing education requirements no fewer than 60 days prior to the expiration of the license.
7.2. To comply with the audit request from the Board, a licensee shall submit legible copies
of certificates of attendance at continuing education activities.
7.3. The licensee shall submit the required documents within thirty (30) days of the date he
or she receives notification of the audit. The Board may grant an extension of time for submission
of the documents, on an individual basis in cases of hardship, if the licensee makes a written request
for an extension of time and provides justification for such the request.
7.4. Licensees shall keep certificates of attendance at continuing education activities, letters
verifying special approval for informal offerings from non-approved providers, transcripts of
courses, and documentation of compliance with exceptions for a three (3) year period following the
continuing education activities.
7.5. The Board shall complete the audit within 30 days of receipt of required documentation
and shall notify the licensee of the satisfactory completion of the audit.
7.6. If a person fails to submit the audit information requested by the Board, the Board may
not renew the license Board before the information is received and the audit is completed.
7.7. Licensees shall notify the Board of any changes of mailing address, and are not absolved
from the audit requirements.
§3-11-8. Minimum Standards for Approved Provider.
8.1. All providers of continuing education shall complete an application, and pay the required
fees, and obtain a Continuing Education Provider License, before offering to provide continuing
education.
8.2. The Board shall maintain a current list of approved providers which is available to the
public upon request.
8.3. The Board shall notify providers who fail to meet the minimum acceptable provider
standards, in writing, of specific deficiencies and offer a reasonable period of time to correct
deficiencies.
8.4. The Board may remove an approved provider who fails to meet the approved provider
standards from the list of approved providers.
8.5. The providers shall provide a certificate to the licensee indicating the following
information:
8.5.a. Name of licensee who attended the continuing education class;
8.5.b. The date attended;
8.5.c. The value of continuing education credits; and
8.5.d. Contact information for the continuing education provider.
8.6. The providers shall provide a list to the State Board in a Microsoft Excel format in paper
and disc form within 30 days of the continuing education class. The list shall include:
8.6.a. Names of licensees;
8.6.b. License numbers of licensee;
8.6.c. Location of class;
8.6.d. The date held; and
8.6.e. Title of continuing education class or activity.
8.7. The application for a continuing education provider license shall provide detailed
descriptions of the subject areas, sponsors, speakers, instructors, training courses, events,
demonstrations or shows for which the applicant seeks approval.
§3-11-9. Continuing Education Subjects/Events.
9.1. Continued education offerings shall consist of one or more of the following subject areas
or events:
9.1.a. Product information or training;
9.1.b. Events, speakers, or shows by third party administrators held at beauty schools/conventions;
9.1.c. Tax, business, or computer training or courses;
9.1.d. Styling or application demonstrations;
9.1.e. Sanitation courses;
9.1.f. HIV/AIDS awareness and other communicable disease awareness courses;
9.1.g. Training or courses on West Virginia state laws governing the practices licensed by
the board; and
9.1.h. Continuing education activities sponsored by the National Cosmetology Association
(NCA), National Interstate Council of State Boards of Cosmetology (NIC), National Cosmetology
Seminar, Aesthetic International Association, National Association of Barbering and Hairstyling,
National Association of Barber Boards of American approved courses, seminars, and demonstrations
or any other national association approved by the Board.
§3-11-10. Activities Not Acceptable for Continuing Education Credit.
10.1. The following activities are not acceptable for continuing education credit:
10.1.a. Job related practice;
10.1.b. Development and presentation of programs as part of the licensee's on-going job
responsibilities;
10.1.c. Orientation to and update of policies and procedures specific to the licensee's
employing facility;
10.1.d. Activities which are part of a licensee's usual job responsibility; and/or
10.1.e. In-house training from a regular employee, manager or owner of the facility.".
§64-9-7. Board of Examiners for Speech-Language Pathology and Audiology.
The legislative rule filed in the state register on the seventeenth day of June, two thousand
nine, authorized under the authority of section ten, article thirty-two, chapter thirty, of this code,
modified by the Board of Examiners for Speech-Language Pathology and Audiology to meet the
objections of the legislative rule-making review committee and refiled in the state register on July 23, 2009, relating to the Board of Examiners for Speech-Language Pathology and Audiology
(licensure of speech-pathology and audiology, 29 CSR 1), is authorized with the following
amendment:
On page six, subsection 12.2, by striking out the second sentence of the subsection "These
continuing education hours may only be credited if they are acquired during the 2-year licensure
period, unless the licensee falls under 12.1.a.' and inserting in lieu thereof a new second sentence
'Licensees who exceed the minimum continuing education requirement may carry a maximum of
6 hours forward to the next reporting period only.".
§64-9-8. Real Estate Appraiser Licensing and Certification Board.
(a) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section nine, article thirty-eight, chapter thirty, of this code, modified by the Real Estate
Appraiser Licensing and Certification Board to meet the objections of the legislative rule-making
review committee and refiled in the state register on September 22, 2009, relating to the Real Estate
Appraiser Licensing and Certification Board (requirements for licensure and certification, 190 CSR
2), is authorized.
(b)The legislative rule filed in the state register on March 23, 2009, authorized under the
authority of section nine, article thirty-eight, chapter thirty, of this code, relating to the Real Estate
Appraiser Licensing and Certification Board (renewal of licensure or certification, 190 CSR 3), is
authorized.
§64-9-9. Board of Osteopathy.
(a) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section four, article fourteen, chapter thirty, of this code, modified by the Board of
Osteopathy to meet the objections of the legislative rule-making review committee and refiled in the
state register on October 3, 2009, relating to the Board of Osteopathy (licensing procedures for
osteopathic physicians, 24 CSR 1), is authorized.
(b) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section nine-a, article fourteen, chapter thirty, of this code, modified by the Board of
Osteopathy to meet the objections of the legislative rule-making review committee and refiled in the
state register on November 24, 2009, relating to the Board of Osteopathy (formation and approval
of professional limited liability companies, 24 CSR 4), is authorized.
(c) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of section four, article fourteen, chapter thirty, of this code, modified by the Board of
Osteopathy to meet the objections of the legislative rule-making review committee and refiled in the
state register on October 23, 2009, relating to the Board of Osteopathy (fees for services rendered
by the Board, 24 CSR 5), is authorized.
§64-9-10. Secretary of State.
(a) The legislative rule filed in the state register on the July 31, 2009, authorized under the
authority of two-a, article three, chapter three, of this code, modified by the Secretary of State to
meet the objections of the legislative rule-making review committee and refiled in the state register
on November 19, 2009, relating to the Secretary of State (early voting in person satellite precincts,
153 CSR 13), is authorized with the following amendment:
On page five, section 7.3, after the word, "workers" by inserting a comma and the following
words, "of differing political affiliation,".
(b) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of three, article three-a, chapter three, of this code, modified by the Secretary of State to
meet the objections of the legislative rule-making review committee and refiled in the state register
on November 5, 2009, relating to the Secretary of State (Vote-by-mail Pilot Project Phase 1: Class
IV Early Voting by Mail, 153 CSR 38), is authorized.
(c) The legislative rule filed in the state register on July 31, 2009, authorized under the
authority of three, article three-a, chapter three, of this code, modified by the Secretary of State to
meet the objections of the legislative rule-making review committee and refiled in the state register
on November 5, 2009, relating to the Secretary of State (Vote-by-mail Pilot Project Phase 2: Voting by Mail, 153 CSR 39), is authorized with the following amendments:
On page two, by inserting a new subdivision designated, 3.1.e. to read as follows:
"3.1.e. A municipality shall submit the required information to the Office of the Secretary
of State by November 11, 2010.";
On page two, subparagraph 3.1.d.6, by striking the word, "pubic" and inserting the word,
"public";
On page three, subdivision 3.2.a, by striking the words, "an ordinance" and inserting the
words, "a resolution".
§64-9-11. Board of Occupational Therapy.
(a) The legislative rule filed in the state register on July 7, 2009, authorized under the
authority of section seven, article twenty-eight, chapter thirty, of this code, modified by the Board
of Occupational Therapy to meet the objections of the legislative rule-making review committee and
refiled in the state register on November 24, 2009, relating to the Board of Occupational Therapy
(administrative rules of the Board of Occupational Therapy and licensure of occupational therapists
and occupational therapy assistants, 13 CSR 1), is authorized with the following amendments:
On page five, subsection 9.1., after the colon, by inserting a new subdivision to read as
follows:
9.1.a. Is of good moral character;;
And, by renumbering the remaining subdivisions;
On page twelve, after the words, 'are dependent upon the', by inserting a colon;
On page twelve, by striking subdivisions 12.5.b and 12.5.c their entirety and inserting in lieu
thereof new subdivisions 12.5.b and 12.5.c to read as follows:
12.5.b. A licensed supervising occupational therapist or occupational therapy assistant must
maintain direct continuous supervision over aides;
12.5.c. A licensed supervising occupational therapist must maintain direct continuous
supervision over occupational therapy students. As the occupational therapy student demonstrates competency in performance, supervision can progress to direct close supervision at the discretion
of the supervising occupational therapist;;
And,
On page twelve, by inserting two new subdivisions designated 12.5.d and 12.5.e to read as
follows:
12.5.d. A licensed supervising occupational therapist or occupational therapy assistant must
maintain direct continuous supervision over occupational therapy assistant students. As the
occupational therapy assistant student demonstrates competency in performance, supervision can
progress to direct close supervision at the discretion of the supervising occupational therapist /
occupational therapy assistant;
12.5.e. Direct supervision is demonstrated through co-signatures on all paperwork or
electronic notes pertaining to the practice of occupational therapy for the person requiring direct
supervision. All paperwork or electronic notes pertaining to the practice of occupational therapy
must be signed and dated, electronically or otherwise, by the supervising licensed occupational
therapist.
(b) The legislative rule filed in the state register on July 7, 2009, authorized under the
authority of section seven, article twenty-eight, chapter thirty, of this code, modified by the Board
of Occupational Therapy to meet the objections of the legislative rule-making review committee and
refiled in the state register on November 24, 2009, relating to the Board of Occupational Therapy
(fees for services rendered by the Board, 13 CSR 3), is authorized with the following amendment:
On page one, subsection 1.2., by striking out "§30-28-6" and inserting "§30-28-7".
(c) The legislative rule filed in the state register on July 7, 2009, authorized under the
authority of section seven, article twenty-eight, chapter thirty, of this code, modified by the Board
of Occupational Therapy to meet the objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of November 24, 2009, relating to the Board of
Occupational Therapy (continuing education and competence, 13 CSR 4), is authorized with the following amendment:
On page one, subsection 1.2., by striking out "§30-28-6" and inserting in lieu thereof "§30-
28-7".
(d) The legislative rule filed in the state register on July 7, 2009, authorized under the
authority of section seven, article twenty-eight, chapter thirty, of this code, modified by the Board
of Occupational Therapy to meet the objections of the legislative rule-making review committee and
refiled in the state register on November 24, 2009, relating to the Board of Occupational Therapy
(competency standards for advance practice by occupational therapists and occupational therapy
assistants, 13 CSR 5), is authorized with the following amendments:
On page one, subsection 1.2, by striking out "§30-28-6" and inserting in lieu thereof "§30-28-
7";
On page two, by striking subdivisions 4.5.a, 4.5.b, 4.5.c, and 4.5.d in their entirety and
inserting in lieu thereof new subdivisions 4.5.a, 4.5.b, and 4.5.c to read as follows:
4.5.a. Accredited educational programs;
4.5.b. Specific certification as endorsed by the American Occupational Therapy Association
or its successor, or as approved by the WVBOT;
4.5.c. Successful completion of an appropriate continuing education course which includes
theory, indications, contra-indications and applications;
And,
On page two, by inserting a new subdivision 4.6.a to read as follows:
4.6.a. The Board shall conduct random audits of occupational therapy assistants to
substantiate competency in physical agent modalities.
(e) The legislative rule filed in the state register on July 7, 2009, authorized under the
authority of section seven, article twenty-eight, chapter thirty, of this code, modified by the Board
of Occupational Therapy to meet the objections of the legislative rule-making review committee and
refiled in the state register on November 24, 2009, relating to the Board of Occupational Therapy (ethical standards of practice, 13 CSR 6), is authorized with the following amendment:
On page one, subsection 1.2., by striking out "§30-28-6" and inserting in lieu thereof "§30-
28-7".
§64-9-12. Board of Psychologists.
The legislative rule filed in the state register on July 27, 2009, authorized under the authority
of section six, article twenty-one, chapter thirty, of this code, modified by the Board of Psychologists
to meet the objections of the legislative rule-making review committee and refiled in the state
register on January 14, 2010, relating to the Board of Psychologists (qualifications for licensure as
a psychologist or a school psychologist, 17 CSR 3), is authorized with the following amendment:
On page three, section 5.1, after the words "W. Va. Code §30-21-2.", by adding the following:
"For the purposes of this rule, the supervised professionally oriented teaching, supervising
and research activities of applicants who are full-time, university clinical faculty members may apply
towards the required hours of supervised work experience."
§64-9-13. Governor's Office of Health Enhancement and Lifestyle Planning.
The legislative rule filed in the state register on October 30,2009, authorized under the
authority of section eight, article twenty-nine-H, chapter sixteen, of this code, relating to the
Governor's Office of Health Enhancement and Lifestyle Planning (prescription drug advertising
expense reporting, 210 CSR 1), is authorized."
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
78, nays 19, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Blair, Cowles, Duke, Evans, Hamilton, Ireland, Lane,
McGeehan, C. Miller, J. Miller, Overington, Porter, Schoen, Sobonya, Sumner and Walters.
Absent And Not Voting: Argento, Cann and Ross.
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. 4108) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 394), and there were--yeas 85, nays
12, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Cowles, Duke, Hamilton, Ireland, McGeehan, C. Miller, J. Miller,
Schoen, Sobonya and Sumner.
Absent And Not Voting: Argento, Cann and Ross.
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. 4108) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
Com. Sub. for H. B. 4130, Creating the West Virginia Supreme Court of Appeals Public
Campaign Financing 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 1A. STATE ELECTION COMMISSION AND SECRETARY OF STATE.
§3-1A-1. Election commission continued; composition; chairperson; per diem; traveling
expense.
The 'State Election Commission', heretofore created, is hereby continued and on and after
the effective date of this section shall be is composed of the Secretary of State, and four persons
appointed by the Governor, by and with the advice and consent of the Senate. The commission shall from this membership elect a chairman for a term of two years. Each member of the commission
shall be reimbursed for all reasonable and necessary expenses actually incurred paid the per diem
and expense reimbursement established for the Legislature in section seven, article two-a, chapter
four of this code in the performance of his or her duties as a member of the commission.
§3-1A-4. Office and meetings of commission.
(a) The office and place of meeting of the commission shall be is the office of the Secretary
of State in the State Capitol. The commission may also conduct meetings via video, telephone or
Internet conferencing.
(b) The commission shall hold such meetings as may be called by the chairman, the Governor
or the Secretary of State.
§3-1A-5. Powers and duties of commission; legislative rules.
(a) The commission shall have has the power and duty to approve or disapprove applications
for approval of any voting machine as provided in section seven, article four of this chapter.
(b) The commission also shall serve as a body advisory to the Secretary of State, and, as such,
shall have the following powers and duties:
(1) To recommend policies and practices pertaining to the registration of voters and the
conduct of elections generally;
(2) To review the work of the office of Secretary of State pertaining to the duties of that
office with respect to elections, and for this purpose to have access at reasonable times to pertinent
records, books, papers and documents;
(3) To consider and study the election practices of other jurisdictions, with a view to
determining the techniques used in eliminating fraud in elections and in simplifying election
procedures;
(4) To advise or make recommendations to the Governor relative to election practices and
policy in the state; and
(5) To advise the Secretary of State on carrying out the duties to which he or she is assigned pursuant to the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program,
established in article twelve of this chapter;
(6) To carry out the duties assigned to the commission by the West Virginia Supreme Court
of Appeals Public Campaign Financing Pilot Program, established in article twelve of this chapter;
and
(5) (7) To keep minutes of the transactions of each meeting of the commission, which shall
be public records and filed with the Secretary of State.
(c) It shall be is the commission's further duty to prepare and distribute in its name, within
available appropriations and upon the recommendation of the Secretary of State, nonpartisan
educational material to inform voters of the importance of voting, to encourage voters to vote, to
inform voters of election laws and procedures, and to inform voters of the effect of any public
question, Constitutional amendment or bond issue that is to be voted upon by all the voters of the
state and that has been authorized to be placed upon the ballot by the Legislature, and manuals to
assist county commissions, ballot commissioners, circuit and county clerks and other election
officials in the proper performance of their duties in the conduct of elections.
(d) The commission shall promulgate such propose for promulgation emergency and
legislative rules, in accordance with the provisions of article three, chapter twenty-nine-a of this
code, as may be necessary to standardize and make effective the administration of the provisions of
article eight of this chapter, and may promulgate such propose for promulgation
other rules, in
accordance with the provisions of article three, chapter twenty-nine-a of this code, relating to the
conduct and administration of elections as the commission may determine determines to be
advisable. All rules required or permitted to be promulgated by the commission by the provisions
of this section shall be submitted on or before the first day of August, one thousand nine hundred
ninety-five, to the Legislature for review by the legislative rule-making review committee and
approval by the Legislature.
(e) Meetings of the commission conducted for the purpose of confirming the initial eligibility of individual candidates to receive public campaign financing under the West Virginia Supreme
Court of Appeals Public Campaign Financing Fund; the authorization of supplemental distributions
from the fund; and the candidate's ability to receive supplemental distributions pursuant to the
provisions of chapter twelve of this article are expressly exempted from the public notice and public
meeting requirements of article nine-a, chapter six of this code.
ARTICLE 12. WEST VIRGINIA SUPREME COURT OF APPEALS PUBLIC CAMPAIGN
FINANCING PILOT PROGRAM.
§3-12-1. Short title.
This article is known as the 'West Virginia Supreme Court of Appeals Public Campaign
Financing Pilot Program.' The pilot program begins with the exploratory period for the 2012
primary election and continues through the 2012 general election.
§3-12-2. Legislative findings and declarations.
The Legislature finds and declares the following:
(1) Current campaign finance laws permit candidates to spend unlimited amounts of money
raised from private sources;
(2) Current campaign finance laws permit certain independent parties to raise and spend
unlimited amounts of money to influence the outcome of elections;
(3) Over the last decade, fund raising and campaign expenditures in elections for a seat on
the Supreme Court of Appeals have dramatically increased in West Virginia;
(4) In 2000, candidates running for a seat on the Supreme Court of Appeals raised a total of
$1.4 million;
(5) In 2004, candidates running for a seat on the Supreme Court of Appeals raised a total of
$2.8 million;
(6) In 2008, candidates running for a seat on the Supreme Court of Appeals raised a total of
$3.3 million;
(7) As spending by candidates and independent parties increases, so does the perception that contributors and interested third parties hold too much influence over the judicial process;
(8) The detrimental effects of spending large amounts by candidates and independent parties
are especially problematic in judicial elections because impartiality is uniquely important to the
integrity and credibility of courts;
(9) An alternative public campaign financing option for candidates running for a seat on the
Supreme Court of Appeals will ensure the fairness of democratic elections in this state, protect the
Constitutional rights of voters and candidates from the detrimental effects of increasingly large
amounts of money being raised and spent to influence the outcome of elections, protect the
impartiality and integrity of the judiciary, and strengthen public confidence in the judiciary; and
(10) Funding the 'West Virginia Supreme Court of Appeals Public Campaign Financing Pilot
Program' from a wide range of revenue sources furthers important state interests in protecting the
integrity of judicial elections and serves to protect the public interest.
§3-12-3. Definitions.
As used in this article, the following terms and phrases have the following meanings:
(1) 'Candidate's committee' means a political committee established with the approval of or
in cooperation with a candidate or a prospective candidate to explore the possibilities of seeking a
particular office or to support or aid his or her nomination or election to an office in an election
cycle. If a candidate directs or influences the activities of more than one active committee in a
current campaign, those committees shall be considered one committee for the purpose of
contribution limits.
(2) 'Certified candidate' means an individual seeking election to the West Virginia Supreme
Court of Appeals who has been certified in accordance with section ten of this article as having met
all of the requirements for receiving public campaign financing from the fund.
(3) 'Contribution' means a gift subscription, assessment, payment for services, dues, advance,
donation, pledge, contract, agreement, forbearance or promise of money or other tangible thing of
value, whether conditional or legally enforceable, or a transfer of money or other tangible thing of value to a person, made for the purpose of influencing the nomination, election or defeat of a
candidate. An offer or tender of a contribution is not a contribution if expressly and unconditionally
rejected or returned. A contribution does not include volunteer personal services provided without
compensation: Provided, That a nonmonetary contribution is to be considered at fair market value
for reporting requirements and contribution limitations.
(4) 'Exploratory contribution' means a contribution of no more than $1,000 made by an
individual adult, including a participating candidate and members of his or her immediate family,
during the exploratory period. Exploratory contributions may not exceed $20,000 in the aggregate.
(5) 'Exploratory period' means the period during which a participating candidate may raise
and spend exploratory contributions to examine his or her chances of election and to qualify for
public campaign financing under this article. The exploratory period begins on January 1 the year
before the primary in which the candidate may run for Justice of the Supreme Court of Appeals and
ends on the last Saturday in January of the election year.
(6) 'Financial agent' means any individual acting for and by himself or herself, or any two
or more individuals acting together or cooperating in a financial way to aid or take part in the
nomination or election of any candidate for public office, or to aid or promote the success or defeat
of any political party at any election.
(7) 'Fund' means the Supreme Court of Appeals Public Campaign Financing Fund created
by section five of this article.
(8) 'General election campaign period' means the period beginning the day after the primary
election and ending on the day of the general election.
(9) 'Independent expenditure' means an expenditure by a person:
(A) Expressly advocating the election or defeat of a clearly identified candidate; and
(B) That is not made in concert or cooperation with or at the request or suggestion of such
candidate, his or her agents, the candidate's authorized political committee or a political party
committee or its agents.
Supporting or opposing the election of a clearly identified candidate includes supporting or
opposing the candidates of a political party. An expenditure which does not meet the criteria for an
independent expenditure is considered a contribution.
(10) 'Immediate family' or 'immediate family members' means the spouse, parents, step-
parents, siblings and children of the participating candidate.
(11) 'Nonparticipating candidate' means a candidate who is:
(A) Seeking election to the Supreme Court of Appeals;
(B) Is neither certified nor attempting to be certified to receive public campaign financing
from the fund; and
(C) Has an opponent who is a participating or certified candidate.
(12) 'Participating candidate' means a candidate who is seeking election to the Supreme
Court of Appeals and is attempting to be certified in accordance with section ten of this article to
receive public campaign financing from the fund.
(13) 'Person' means an individual, partnership, committee, association and any other
organization or group of individuals.
(14) 'Primary election campaign period' means the period beginning on the first day of the
primary election filing period, as determined under section seven, article five of this chapter, and
ending on the day of the subsequent primary election.
(15) 'Qualifying contribution' means a contribution received from a West Virginia registered
voter of not less than $1 nor more than $100 in the form of cash, check or money order, made
payable to a participating candidate or the candidate's committee, or in the form of an electronic
payment or debit or credit card payment, received during the qualifying period.
(16) 'Qualifying period' means the period during which participating candidates may raise
and spend qualifying contributions in order to qualify to receive public campaign financing.
(A) For candidates seeking nomination on the primary election ballot, the qualifying period
begins on September 1 preceding the election year and ends on the last Saturday in January of the election year.
(B) For candidates, other than those nominated during the primary election, seeking to be
placed on the general election ballot, the qualifying period begins on June 1 of the election year and
ends on October 1 of the election year.
§3-12-4. Alternative public campaign financing option.
This article establishes an alternative public campaign financing option available to
candidates for election to the office of Justice of the West Virginia Supreme Court of Appeals for
the 2012 primary and general elections. Candidates electing the alternative public campaign
financing option shall comply with all other applicable election and campaign laws and rules.
§3-12-5. Supreme Court of Appeals Public Campaign Financing Fund.
There is established in within the State Treasury a special revenue fund to be known as the
'Supreme Court of Appeals Public Campaign Financing Fund' for the dual purpose of providing
public financing for the election campaigns of certified candidates under the provisions of this article
and of paying the administrative and enforcement costs of the Secretary of State and State Election
Commission related to this article. All moneys collected under the provisions of this article shall
be deposited in the fund, which shall be administered by the State Election Commission. Funds may
also be accepted from any gift, grant, bequest, endowment fund or donation which may be received
by the State Election Commission from any person, firm, foundation or corporation. Any balance,
including accrued interest or other earnings in the fund at the end of any fiscal year do not revert to
the General Revenue Fund, but shall remain in the fund. Expenditures may be made from the fund
only for the purposes set forth in this article and in accordance with the provisions of article three,
chapter twelve of this code and upon fulfillment of the provisions of article two, chapter eleven-b
of this code.
§3-12-6. Sources of revenue for the fund.
Revenue from the following sources shall be deposited in the fund:
(1) All exploratory and qualifying contributions in excess of the established maximums;
(2) Money returned by participating or certified candidates who fail to comply with the
provisions of this article;
(3) Unspent or unobligated moneys allotted to certified candidates and remaining unspent
or unobligated on the date of the general election for which the money was distributed;
(4) If a certified candidate loses, all remaining unspent or unobligated moneys after the
primary election;
(5) Civil penalties levied by the State Election Commission against candidates for violations
of this article;
(6) Civil penalties levied by the Secretary of State pursuant to section seven, article eight of
this chapter;
(7) Voluntary donations made directly to the fund;
(8) Interest income;
(9) On or before July 1, 2010, and for two successive years thereafter, the State Auditor shall
authorize the transfer of the amount of $1 million from the Purchasing Card Administration Fund
established in section ten-d, article three, chapter twelve of this code to the fund created by this
article; and
(10) Money appropriated to the fund.
§3-12-7. Declaration of intent.
A candidate desiring to receive campaign financing from the fund shall first file a declaration
of intent before the end of the qualifying period and prior to collecting any qualifying contributions.
The declaration shall be on a form prescribed by the State Election Commission and shall contain
a statement that the candidate is qualified to be placed on the ballot, and, if elected, to hold the office
sought and has complied with and will continue to comply with all requirements of this article,
including contribution and expenditure restrictions. Contributions made prior to the filing of the
declaration of intent are not qualifying contributions. Any contributions received by a candidate
during any precandidacy period which preceded the exploratory period which remain unexpended at the time of the declaration of intent shall be considered exploratory funds and subject to the limits
and provisions of section eight of this article.
§3-12-8. Exploratory period; contributions; expenditures.
(a) A participating candidate or his or her committee may not accept, spend or obligate
exploratory contributions exceeding $20,000 in the aggregate, during the exploratory period. At the
time the participating candidate formally declares his or her intent to qualify for public campaign
financing, in accordance with section five of this article, any unexpended or undedicated
contributions received during any precandidacy period which preceded the exploratory period shall
be deemed to be exploratory contributions for that candidate. The maximum individual exploratory
contribution which may be accepted from any person including immediate family members is
$1,000. A participating candidate may loan, contribute or obligate up to $1,000 of his or her own
money for exploratory purposes. Any exploratory contributions received by the participating
candidate in excess of $20,000 in the aggregate shall be sent to the Election Commission for deposit
in the fund.
(b) Each exploratory contribution shall be acknowledged by a written receipt. Receipts for
exploratory contributions of $250 or more during an election cycle shall include the contributor's
name, residence and mailing address, business affiliation and occupation. Receipts for exploratory
contributions of less than $250 shall include the contributor's name and the amount of the
contribution, and otherwise comport with the disclosure and reporting requirements of section five-a,
article eight of this chapter.
(c) An exploratory contribution from one person may not be made in the name of another
person.
(d) At the beginning of each month a participating or certified candidate or his or her
financial agent shall report all exploratory contributions, expenditures and obligations along with all
receipts for contributions received during the prior month to the Secretary of State. Such reports
shall be filed electronically: Provided, That a committee may apply for an exemption in case of hardship pursuant to subsection (c) of section five-b, article eight of this chapter. If the candidate
decides not to run for office all unspent or unobligated exploratory contributions shall be sent to the
State Election Commission for deposit in the fund. If the candidate decides to run for office as a
nonparticipating candidate the unspent or unobligated exploratory contributions shall be used in
accordance with articles eight and twelve of this chapter.
§3-12-9. Qualifying contributions.
(a) A participating candidate or his or her candidate's committee may not accept more than
one qualifying contribution from a single individual. A qualifying contribution may not be less than
$1 nor more than $100. To be considered as a proper qualifying contribution, the qualifying
contribution must be made by a registered West Virginia voter. A participating candidate shall
collect qualifying contributions which in the aggregate are not less than $35,000 nor more than
$50,000. Qualifying contributions in excess of $50,000 shall be sent to the State Election
Commission for deposit in the fund.
(b) Each qualifying contribution shall be acknowledged by a written receipt that includes:
(1) The printed name of the participating candidate on whose behalf the contribution is made
and the signature of the person who collected the contribution for the candidate or his or her
candidate's committee;
(2) For qualifying contributions of $25 or more, the contributor's signature, printed name,
street address, zip code, telephone number, occupation and name of employer; and for qualifying
contributions of less than $25, the contributor's signature, printed name, street address and zip code;
(3) A statement above the contributor's signature that:
(A) The contributor understands the purpose of the contribution is to assist the participating
candidate in obtaining public campaign financing;
(B) The contribution was made without coercion;
(C) The contributor has not been reimbursed, received or promised anything of value for
making the contribution; and
(4) One copy of the receipt shall be given to the contributor, one copy shall be retained by
the candidate and one copy shall be sent by the candidate to the Secretary of State. A contribution
which is not acknowledged by a written receipt in the form required by this subsection is not a
qualifying contribution.
(c) During the qualifying period, a participating candidate or his or her candidate's committee
must obtain at least five hundred qualifying contributions from registered West Virginia voters. A
minimum of ten percent of the total number of qualifying contributions received by the candidate
must be from each of the state's congressional districts.
(d) A participating candidate and each member of the candidate's immediate family who is
a registered voter in this state may each make one qualifying contribution. A participating candidate
may not use any other personal funds to satisfy the qualifying contributions requirements.
(e) A participating candidate may not reimburse, give or promise anything of value in
exchange for a qualifying contribution.
(f) At the beginning of each month, a participating or certified candidate or his or her
financial agent or committee shall report all qualifying contributions, expenditures and obligations
along with all receipts for contributions received during the prior month to the Secretary of State.
Such reports shall be filed electronically: Provided, That a committee may apply for an exemption
in case of hardship pursuant to subsection (c) of section five-b, article eight of this chapter. If the
candidate decides not to run for office, all unspent or unobligated qualifying contributions shall be
sent to the State Election Commission for deposit in the fund. If the candidate decides to run for
office as a nonparticipating candidate, the unspent or unobligated qualifying contributions shall be
used in accordance with articles eight and twelve of this chapter.
(g) All qualifying contributions collected and all expenditures by a participating candidate
or his or her committee shall be reported to the Secretary of State no later than two business days
after the close of the qualifying period.
§3-12-10. Certification of candidates.
(a) To be certified, a participating candidate shall apply to the State Election Commission for
public campaign financing from the fund and file a sworn statement that he or she has complied and
will comply with all requirements of this article throughout the applicable campaign.
(b) Upon receipt of a notice from the Secretary of State that a participating candidate has
received the required number and amount of qualifying contributions, the State Election Commission
shall determine whether the candidate or candidate's committee:
(1) Has signed and filed a declaration of intent as required by section seven of this article;
(2) Has obtained the required number and amount of qualifying contributions as required by
section nine of this article;
(3) Has complied with the contribution restrictions of this article;
(4) Is eligible, as provided in section nine, article five of this chapter, to appear on the
primary or general election ballot; and
(5) Has met all other requirements of this article.
(c) The State Election Commission shall process applications in the order they are received
and shall verify a participating candidate's compliance with the requirements of subsection (b) of
this section by using the verification and sampling techniques approved by the State Election
Commission.
(d) The State Election Commission shall determine whether to certify a participating
candidate as eligible to receive public campaign financing no later than three business days after the
candidate or the candidate's committee makes his or her final report of qualifying contributions or,
if a challenge is filed under subsection (g) of this section, no later than six business days after the
candidate or the candidate's committee makes his or her final report of qualifying contributions. A
certified candidate shall comply with the provisions of this article through the general election
campaign period.
(e) No later than two business days after the State Election Commission certifies that a
participating candidate is eligible to receive public campaign financing under the provisions of this section, the State Election Commission, acting in concert with the State Auditor's office and the
State Treasurer's office, shall cause a check to be issued to the candidate's campaign depository
account an amount equal to the initial public campaign financing benefit for which the candidate
qualifies under section eleven of this article, minus the candidate's qualifying contributions, and
shall notify all other candidates for the same office of its determination.
(f) If the candidate desires to receive public financing benefits by electronic transfer, the
candidate shall include in his or her application sufficient information and authorization for the State
Treasurer to transfer payments to his or her campaign depository account.
(g) Any person may challenge the validity of any contribution listed by a participating
candidate by filing a written challenge with the State Election Commission setting forth any reason
why the contribution should not be accepted as a qualifying contribution. If a contribution is
challenged under this subsection, the State Election Commission shall decide the validity of the
challenge no later than the end of the next business day after the day that the challenge is filed, unless
the State Election Commission determines that the candidate whose contribution is challenged has
both a sufficient qualifying number and amount of qualifying contributions to be certified as a
candidate under this section without considering the challenge. Within five business days of a
challenge, the candidate or candidate's committee who listed any contribution that is the subject of
a challenge may file a report with the State Election Commission of an additional contribution
collected pursuant to section nine of this article for consideration as a qualifying contribution.
(h) A candidate's certification and receipt of public campaign financing may be revoked by
the State Election Commission, if the candidate violates any of the provisions of this article. A
certified candidate who violates the provisions of this article shall repay all moneys received from
the fund to the State Election Commission.
(i) The determination of any issue before the State Election Commission is the final
administrative determination. Any meetings conducted by the State Elections Commission to certify
a candidate's initial eligibility to receive funds under this article, or their eligibility to receive supplemental funds or rescue funds under section eleven of this article shall not be subject the public
notice and open meeting requirements of article nine-a, chapter six of this Code, but the Commission
shall concurrently provide public notice of any decision and determination it makes which impacts
the candidate's eligibility to receive initial funds or supplemental funds pursuant to the provisions
of this article. Any person adversely affected by a decision of the State Election Commission under
the provisions of this article may appeal that decision to the circuit court of Kanawha County.
(j) A candidate may withdraw from being a certified candidate and become a nonparticipating
candidate at any time with the approval of the State Election Commission. Any candidate seeking
to withdraw shall file a written request with the State Election Commission, which shall consider
requests on a case-by-case basis. No certified candidate may withdraw until he or she has repaid all
moneys received from the fund: Provided, That the State Election Commission may, in exceptional
circumstances, waive the repayment requirement. The State Election Commission may assess a
penalty not to exceed $10,000 against any candidate who withdraws without approval.
§3-12-11. Schedule and amount of Supreme Court of Appeals Public Campaign Financing
Fund payments; additional funds.
(a) The State Election Commission, acting in concert with the State Auditor's office and the
State Treasurer's office, shall have a check issued within two business days after the date on which
the candidate is certified, to make payments from the fund for the 2012 primary election campaign
period available to a certified candidate.
(1) In a contested primary election, a certified candidate shall receive $200,000 in initial
campaign financing from the fund, minus the certified candidate's qualifying contributions.
(2) In an uncontested primary election, a certified candidate shall receive $50,000 from the
public campaign financing fund, minus the certified candidate's qualifying contributions.
(b) Within two business days after the primary election results are certified by the Secretary
of State, the State Election Commission, acting in concert with the State Auditor's office and the
State Treasurer's office, shall cause a check to be issued to make initial payments from the fund for the 2012 general election campaign period available to a certified candidate.
(1) In a contested general election, a certified candidate may receive from the fund an amount
not to exceed $350,000.
(2) In an uncontested general election, a certified candidate shall receive $35,000 from the
public campaign financing fund.
(c) The State Election Commission shall authorize the distribution of initial campaign
financing moneys to certified candidates in equal amounts. The commission shall propose a
legislative rule on distribution of funds.
(d) The State Election Commission may not authorize or direct the distribution of moneys
to certified candidates in excess of the total amount of money deposited in the fund pursuant to
section six of this article. If the commission determines that the money in the fund is insufficient
to totally fund all certified candidates, the commission shall authorize the distribution of the
remaining money proportionally, according to each candidate's eligibility for funding. Each
candidate may raise additional money in the same manner as a nonparticipating candidate for the
same office up to the unfunded amount of the candidate's eligible funding.
(e) If the commission determines from any reports filed pursuant to this chapter or by other
reliable and verifiable information obtained through investigation that a nonparticipating candidate's
campaign expenditures or obligations, in the aggregate, have exceeded by twenty percent the initial
funding available under this section any certified candidate running for the same office, the
commission shall authorize the release of additional funds in the amount of the reported excess to
any opposing certified candidate for the same office.
(f) If the State Election Commission determines from any reports filed pursuant to this
chapter or by other reliable and verifiable information obtained through investigation that
independent expenditures on behalf of a nonparticipating candidate, either alone or in combination
with the nonparticipating candidate's campaign expenditures or obligations, have exceeded by
twenty percent the initial funding available under this section to any certified candidate running for the same office, the commission shall authorize the release of additional funds in the amount of the
reported excess to any certified candidate who is an opponent for the same office.
(g) If the commission determines from any reports filed pursuant to this chapter or by other
reliable and verifiable information obtained through investigation that independent expenditures on
behalf of a certified candidate, in combination with the certified candidate's campaign expenditures
or obligations, exceed by twenty percent the initial funding available under this section to any
certified candidate running for the same office, the State Election Commission shall authorize the
release of additional funds in the amount of the reported excess to any other certified candidate who
is an opponent for the same office.
(h) Additional funds released under this section to a certified candidate may not exceed
$400,000 in a primary election and $700,000 in a general election.
(i) In the event the commission determines that additional funds beyond the initial
distribution are to be released to a participating candidate pursuant to the provisions of the section,
the commission, acting in concert with the State Auditor's office and the State Treasurer's office,
shall cause a check for any such funds to be issued to the candidate's campaign depository within
two business days.
§3-12-12. Restrictions on contributions and expenditures.
(a) A certified candidate or his or her committee may not accept loans or contributions from
any private source, including the personal funds of the candidate and the candidate's immediate
family, during the primary or general election campaign periods except as permitted by this article.
(b) After filing the declaration of intent and during the qualifying period, a participating
candidate may not spend or obligate more than he or she has collected in exploratory and qualifying
contributions. After the qualifying period and through the general election campaign period, a
certified candidate may spend or obligate any unspent exploratory or qualifying contributions and
the moneys he or she receives from the fund under the provisions of section eleven of this article.
(c) A participating or certified candidate may expend exploratory and qualifying contributions and funds received from the fund only for lawful election expenses as provided in
section nine, article eight of this chapter. Moneys distributed to a certified candidate from the fund
may be expended only during the primary and general election campaign period for which funds
were dispersed. Money from the fund may not be used:
(1) In violation of the law;
(2) To repay any personal, family or business loans, expenditures or debts; or
(3) To help any other candidate.
(d) A certified candidate or his or her committee shall return to the fund any unspent and
unobligated exploratory contributions, qualifying contributions or moneys received from the fund
within forty-eight hours after:
(1) The date on which the candidate ceases to be certified; or
(2) The date on which the individual loses the primary election or otherwise ceases to be a
candidate.
(e) Funds remaining unspent or unobligated after the close of the primary election campaign
period may be retained by the candidate for use during the general election campaign period but shall
be deducted from the amount the candidate is eligible to receive under subsection (b), section eleven
of this article.
(f) A certified candidate or his or her committee shall return to the fund any unspent or
unobligated public campaign financing funds no later than five business days after the general
election.
(g) A contribution from one person may not be made in the name of another person.
(h) A participating or certified candidate or his or her committee receiving qualifying
contributions or exploratory contributions from a person not listed on the receipt required by sections
eight and nine of this article is liable to the State Election Commission for the entire amount of that
contribution and any applicable penalties.
(i) A certified candidate accepting any benefits under the provisions of this article shall continue to comply with all of its provisions throughout the primary election campaign period and
general election campaign period.
(j) A participating or certified candidate or his or her financial agent shall provide the
Secretary of State with all requested campaign records, including all records of exploratory and
qualifying contributions received and campaign expenditures and obligations, and shall fully
cooperate with any audit of campaign finances requested or authorized by the State Election
Commission.
§3-12-13. Reporting requirements.
(a) Participating candidates, certified candidates and nonparticipating candidates shall comply
with the provisions of this section in addition to any other reporting required by the provisions of this
chapter.
(b) During the exploratory and qualifying periods, a participating candidate or his or her
financial agent shall submit, on the first of each month, a report of all exploratory and qualifying
contributions along with their receipts and an accounting of all expenditures and obligations received
during the immediately preceding month. The reports shall be on forms or in a format prescribed
by the Secretary of State. Such reports shall be filed electronically: Provided, That a committee may
apply for an exemption, in case of hardship, pursuant to subsection (c) of section five-b, article eight
of this chapter.
(c) No later than two business days after the close of the qualifying period, a participating
candidate or his or her financial agent shall report to the Secretary of State on appropriate forms a
summary of:
(1) All exploratory contributions received and funds expended or obligated during the
exploratory period together with copies of any receipts not previously submitted for exploratory
contributions; and
(2) All qualifying contributions received and funds expended or obligated during the
qualifying period together with copies of any receipts not previously submitted for qualifying contributions.
(d) A certified candidate or his or her financial agent shall file periodic financial statements
in accordance with section five, article eight of this chapter, detailing all funds received, expended
or obligated during the specified periods. The reports shall be on forms approved by the Secretary
of State.
(e) In addition to any other reporting required by this chapter, a nonparticipating candidate
or his or her financial agent shall report to the Secretary of State on approved forms an itemized
summary of his or her campaign expenditures or obligations, according to the following provisions
and guidelines:
(1) On the first Saturday in March or within six days thereafter, listing the nonparticipating
candidate's expenditures and obligations prior to March 1, if the nonparticipating candidate's
campaign expenditures or obligations, in the aggregate, exceed the initial funding available under
section eleven of this article to any certified candidate for the same office.
(2) On the first Saturday in April, listing any expenditures or obligations, in the aggregate,
that exceed the initial funding available under section eleven of this article to any certified candidate
running for the same office and which have taken place subsequent to those reported on the financial
statement required to be filed by a candidate for public office pursuant to subdivision (1), subsection
(b), section five, article eight of this chapter. Thereafter, any additional expenditures or obligations,
in the aggregate, that exceed the initial funding available under section eleven of this article to any
certified candidate running for the same office made prior to the fifteenth day before the primary
election shall be reported to the Secretary of State within forty-eight hours.
(3) On the first Saturday in July or within six days thereafter, listing the nonparticipating
candidate's expenditures and obligations prior to July 1 subsequent to the primary election, if the
nonparticipating candidate's expenditures or obligations, in the aggregate, exceed the initial funding
available under section eleven of this article to any certified candidate running for the same office.
(4) On the first Saturday in October, listing any expenditures or obligations, in the aggregate, that exceed the initial funding available under section eleven of this article to any certified candidate
running for the same office and which have taken place subsequent to those reported on the financial
statement required to be filed by a candidate for public office pursuant to subdivision (4), subsection
(b), section five, article eight of this chapter. Thereafter, any additional expenditures or obligations,
in the aggregate, that exceed the initial funding available under section eleven of this article to any
certified candidate running for the same office made prior to the fifteenth day before the general
election shall be reported to the State Election Commission within forty-eight hours.
(5) During the last fifteen days before the primary or general elections in 2012, the
nonparticipating candidate or his or her financial agent shall report to the State Election Commission
within twenty-four hours thereof every additional expenditure or obligation, in the aggregate, that
exceeds the initial funding available under section eleven of this article to any certified candidate
running for the same office.
(f) Any person, organization or entity making independent expenditures advocating the
election or defeat of a certified candidate or the nomination or election of any candidate who is
opposed by a certified candidate in excess of $1,000, in the aggregate, shall report these expenditures
to the State Election Commission on approved forms within forty-eight hours of the expenditure.
(g) During the last fifteen days before the primary or general election in 2012, any person,
organization or entity making independent expenditures advocating the election or defeat of any
candidate, including the election or defeat of a certified candidate or the nomination or election of
any candidate who is opposed by a certified candidate, shall continue to file reports as required
pursuant to subsection (b), section two, article eight of this chapter.
§3-12-14. Duties of the State Election Commission; Secretary of State.
(a) In addition to its other duties, the State Election Commission shall carry out the duties
of this article and complete the following as applicable:
(1) Prescribe forms for reports, statements, notices and other documents required by this
article;
(2) Make an annual report to the Legislature accounting for moneys in the fund, describing
the State Election Commission's activities and listing any recommendations for changes of law,
administration or funding amounts;
(3) Propose emergency and legislative rules for legislative approval, in accordance with the
provisions of article three, chapter twenty-nine-a of this code, as may be necessary for the proper
administration of the provisions of this article;
(4) Enforce the provisions of this article to ensure that moneys from the fund are placed in
candidate campaign accounts and spent as specified in this article;
(5) Monitor reports filed pursuant to this article and the financial records of candidates to
ensure that qualified candidates receive matching funds promptly and to ensure that moneys required
by this article to be paid to the fund are deposited in the fund;
(6) Cause an audit of the fund to be conducted by independent certified public accountants
ninety days after a general election. The State Election Commission shall cooperate with the audit,
provide all necessary documentation and financial records to the auditor and maintain a record of
all information supplied by the audit;
(7) In consultation with the State Treasurer and the State Auditor, develop a rapid, reliable
method of conveying funds to certified candidates. In all cases, the commission shall distribute
funds to certified candidates in a manner that is expeditious, ensures accountability and safeguards
the integrity of the fund; and
(8) Regularly monitor the receipts, disbursements, obligations and balance in the fund to
determine whether the fund will have sufficient moneys to meet its obligations and sufficient moneys
available for disbursement during the general election campaign period.
(b) In addition to his or her other duties, the Secretary of State shall carry out the duties of
this article and complete the following as applicable:
(1) Prescribe forms for reports, statements, notices and other documents required by this
article;
(2) Prepare and publish information about this article and provide it to potential candidates
and citizens of this state;
(3) Prepare and publish instructions setting forth methods of bookkeeping and preservation
of records to facilitate compliance with this article and to explain the duties of candidates and others
participating in elections under the provisions of this article;
(4) Propose emergency and legislative rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code as may be necessary for the proper
administration of the provisions of this article;
(5) Enforce the provisions of this article to ensure that moneys from the fund are placed in
candidate campaign accounts and spent as specified in this article;
(6) Monitor reports filed pursuant to this article and the financial records of candidates to
ensure that qualified candidates receive matching funds promptly and to ensure that moneys required
by this article to be paid to the fund are deposited in the fund;
(7) Ensure public access to the campaign finance reports required pursuant to this article, and
whenever possible, use electronic means for the reporting, storing and display of the information;
and
(8) Prepare a voters' guide for the general public listing the names of each candidate seeking
election to the Supreme Court of Appeals. Both certified and nonparticipating candidates shall be
invited by the State Election Commission to submit a statement, not to exceed five hundred words
in length, for inclusion in the guide. The guide shall identify the candidates that are certified
candidates and the candidates that are nonparticipating candidates. Copies of the guide shall be
posted on the website of the Secretary of State, as soon as may be practical.
(c) To fulfill their responsibilities under this article, the State Election Commission and the
Secretary of State may subpoena witnesses, compel their attendance and testimony, administer oaths
and affirmations, take evidence and require, by subpoena, the production of any books, papers,
records or other items material to the performance of their duties or the exercise of their powers.
(d) The State Election Commission may also propose and adopt procedural rules to carry out
the purposes and provisions of this article and to govern procedures of the State Election
Commission as it relates to the requirements of this article.
§3-12-15. Criminal penalties.
(a) A participating or certified candidate who, either personally or through his or her
committee, knowingly accepts contributions or benefits in excess of those allowed under this article,
spends or obligates funds in excess of the public campaign financing funding to which he or she is
entitled or uses the benefits or funding for a purpose other than those permitted under this article is
guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than
$500, or confined in jail for up to thirty days or both.
(b) A participating or certified candidate who, either personally or through his or her
committee or financial agent, provides false information to, or conceals or withholds information
from, the State Election Commission or the Secretary of State is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $1,000 nor more than $10,000, or confined in jail for
up to one year or both.
§3-12-16. Civil penalties.
(a) If a participating or certified candidate or his or her committee or financial agent
unintentionally accepts contributions from a private source in violation of the provisions of this
article or spends or obligates to spend more than the amount of public financing money he or she is
eligible to receive from the fund pursuant to section eleven of this article, the State Election
Commission may order the candidate to pay to the State Election Commission an amount equal to
the amount of the contribution, expenditure or obligation.
(b) If a participating or certified candidate or his or her committee or financial agent
intentionally accepts contributions from a private source in violation of this article or spends or
obligates more than the amount of public campaign financing he or she is eligible to receive from
the fund, the State Election Commission shall order the candidate to pay to the State Election Commission an amount equal to ten times the amount of the contribution, expenditure or obligation.
The candidate shall pay the civil penalty authorized under this subsection within seven days of
receipt of written notice from the State Election Commission of the imposition of the penalty.
(c) If a participating or certified candidate fails to pay any moneys required to be paid to the
State Election Commission or returned to the fund under this article, the State Election Commission
may order the candidate to pay an amount equal to three times the amount that should have been paid
to the State Election Commission or returned to the fund.
(d) In addition to any other penalties imposed by law, the State Election Commission may
impose a civil penalty for a violation by or on behalf of any candidate of any reporting requirement
imposed by this article in the amount of $100 a day. The penalty shall be doubled if the amount not
reported for a specific election exceeds ten percent of the initial amount of public financing available
to a certified candidate in a primary or general election pursuant to section eleven of this article.
(e) All penalties collected by the State Election Commission pursuant to this section shall
be deposited into the fund. The candidate and the candidate's campaign account are jointly and
severally responsible for the payment of any penalty imposed pursuant to this section.
§3-12-17. Expiration of article.
The provisions of this article shall have no force or effect on or after July 1, 2013. Any
moneys remaining in the fund on July 1, 2013, shall be transferred to the General Revenue Fund."
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
78, nays 18, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Blair, Border, Canterbury, Cowles, Evans, Hamilton,
Ireland, McGeehan, J. Miller, Overington, Porter, Romine, Rowan, Schadler and Shaver.
Absent And Not Voting: Argento, Cann, Manchin and Ross.
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. 4130) 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. 4143, Relating to emergency medical services.
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 following the enacting section and inserting in lieu
thereof the following:
"ARTICLE 4C. EMERGENCY MEDICAL SERVICES ACT.
§16-4C-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(a) 'Ambulance' means any privately or publicly-owned vehicle or aircraft which is designed,
constructed or modified; equipped or maintained; and operated for the transportation of patients,
including, but not limited to, emergency medical services vehicles; rotary and fixed wing air
ambulances; gsa kkk-A-1822 federal standard type I, type II and type III vehicles; and specialized
multipatient medical transport vehicles operated by an emergency medical services agency;
(b) 'Commissioner' means the Commissioner of the Bureau of for Public Health;
(c) 'Council' means the Emergency Medical Service Advisory Council created pursuant to
section five of this article;
(d) 'Director' means the Director of the Office of Emergency Medical Service in the Bureau
for Public Health.
(d) (e) 'Emergency Medical Services' means all services which are set forth in Public Law
93-154 'The Emergency Medical Services Systems Act of 1973' and those included in and made a part of the emergency medical services plan of the Department of Health and Human Resources
inclusive of, but not limited to, responding to the medical needs of an individual to prevent the loss
of life or aggravation of illness or injury;
(e) (f) 'Emergency medical service agency' means any agency licensed under section six-a
of this article to provide emergency medical services;
(f) 'Emergency medical service attendant' means a person certified by the commissioner
pursuant to the provisions of section eight of this article to render the services authorized pursuant
to the provisions of section fourteen of this article;
(g) 'Emergency medical service personnel' means any person certified by the commissioner
to provide emergency medical services authorized in section eight of this article and includes, but
is not limited to, emergency medical service attendant, emergency medical technician-basic and
emergency medical technician-paramedic as set forth by legislative rule;
(h) 'Emergency medical service provider' means any authority, person, corporation,
partnership or other entity, public or private, which owns or operates a licensed emergency medical
services agency providing emergency medical service in this state;
(i) 'Emergency medical technician-basic' means a person certified by the commissioner
pursuant to the provisions of section eight of this article to render the services authorized pursuant
to the provisions of section fourteen of this article;
(j) 'Emergency medical technician-paramedic' means a person certified by the commissioner
pursuant to the provisions of section eight of this article to render services as authorized pursuant
to the provisions of section fourteen of this article;
(k) (i) 'Governing body' has the meanings ascribed to it as applied to a municipality in
subdivision (1), subsection (b), section two, article one, chapter eight of this code;
(l) (j) 'Line officer' means the emergency medical service personnel, present at the scene of
an accident, injury or illness, who has taken the responsibility for patient care;
(m) (k) 'Medical command' means the issuing of orders by a physician from a medical facility to emergency medical service personnel for the purpose of providing appropriate patient care;
(n) (l) 'Municipality' has the meaning ascribed to it in subdivision (1), subsection (a), section
two, article one, chapter eight of this code;
(o) (m) 'Patient' means any person who is a recipient of the services provided by emergency
medical services;
(p) (n) 'Service reciprocity' means the provision of emergency medical services to citizens
of this state by emergency medical service personnel certified to render those services by a
neighboring state;
(q) (o) 'Small emergency medical service provider' means any emergency medical service
provider which is made up of less than twenty emergency medical service personnel; and
(r) (p) 'Specialized multipatient medical transport' means a type of ambulance transport
provided for patients with medical needs greater than those of the average population, which may
require the presence of a trained emergency medical technician during the transport of the patient:
Provided, That the requirement of 'greater medical need' may not prohibit the transportation of a
patient whose need is preventive in nature.
§16-4C-6. Powers and duties of commissioner.
The commissioner shall have has the following powers and duties:
(a) In accordance with chapter twenty-nine-a of this code, to propose rules regarding the age,
training, retraining, testing, certification and recertification, and fees for the certification and
recertification, of emergency medical service personnel. However, the commissioner may not
propose any rule required by this article until it has been submitted for review to the emergency
medical services advisory council and this council has had at least thirty days to review such
proposed rule. The council may take no action unless a quorum is present; To propose rules for
legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this
code: Provided, That the rules have been submitted at least thirty days in advance for review by the
Emergency Medical Services Advisory Council, who may act only in the presence of a quorum. The rules may include:
(1) Standards and requirements for certification and recertification of emergency medical
service personnel, including, but not limited to:
(A) Age, training, testing and continuing education;
(B) Procedures for certification and recertification, and for denying, suspending, revoking,
reinstating and limiting a certification or recertification;
(C) Levels of certification and the scopes of practice for each level;
(D) Standards of conduct; and,
(E) Causes for disciplinary action and sanctions which may be imposed.
(2) Standards and requirements for licensure and licensure renewals of emergency medical
service agencies, including:
(A) Operational standards, levels of service, personnel qualifications and training,
communications, public access, records management, reporting requirements, medical direction,
quality assurance and review, and other requirements necessary for safe and efficient operation;
(B) Inspection standards and establishment of improvement periods to ensure maintenance
of the standards;
(C) Fee schedules for licensure, renewal of licensure and other necessary costs;
(D) Procedures for denying, suspending, revoking, reinstating or limiting an agency licensure;
(E) Causes for disciplinary action against agencies; and
(F) Administrative penalties, fines and other disciplinary sanctions which may be imposed
on agencies;
(3) Standards and requirements for emergency medical service vehicles, including
classifications and specifications;
(4) Standards and requirements for training institutions, including approval or accreditation
of sponsors of continuing education, course curricula and personnel;
(5) Standards and requirements for a State Medical Direction System, including qualifications for a State Emergency Medical Services Medical Director and Regional Medical Directors, the
establishment of a State Medical Policy and Care Committee and the designation of Regional
Medical Command Centers;
(6) Provision of services by emergency medical services personnel in hospital emergency
rooms; and
(7) Any other rules necessary to carry out the provisions of this article.
(b) To apply for, receive and expend advances, grants, contributions and other forms of
assistance from the state or federal government or from any private or public agencies or foundations
to carry out the provisions of this article;.
(c) To design, develop and annually review a Statewide Emergency Medical Services
Implementation Plan. The plan shall recommend aid and assistance and all other acts necessary to
carry out the purposes of this article:
(1) To encourage local participation by area, county and community officials and regional
emergency medical services boards of directors; and
(2) To develop a system for monitoring and evaluating emergency medical services programs
throughout the state;.
(d) To provide professional and technical assistance and to make information available to
Regional Emergency Medical Services Boards of Directors and other potential applicants or program
sponsors of emergency medical services for purposes of developing and maintaining a statewide
system of services;.
(e) To assist local government agencies, Regional Emergency Medical Services Boards of
Directors and other public or private entities in obtaining federal, state or other available funds and
services;.
(f) To cooperate and work with federal, state and local governmental agencies, private
organizations and other entities as may be necessary to carry out the purposes of this article;.
(g) To acquire in the name of the state by grant, purchase, gift, devise or any other methods appropriate real and personal property as may be reasonable and necessary to carry out the purposes
of this article;.
(h) To make grants and allocations of funds and property so acquired or which may have been
appropriated to the agency to other agencies of state and local government as may be appropriate to
carry out the purposes of this article;.
(i) To expend and distribute by grant or bailment funds and property to all state and local
agencies for the purpose of performing the duties and responsibilities of the agency all funds which
it may have so acquired or which may have been appropriated by the Legislature of this state;.
(j) To develop a program to inform the public concerning emergency medical services;.
(k) To review and disseminate information regarding federal grant assistance relating to
emergency medical services;.
(l) To prepare and submit to the Governor and Legislature recommendations for legislation
in the area of emergency medical services;.
(m) To review, make recommendations for and assist in all projects and programs that
provide for emergency medical services whether or not the projects or programs are funded through
the Office of Emergency Medical Services. A review and approval shall be required for all
emergency medical services projects, programs or services for which application is made to receive
state or federal funds for their operation after the effective date of this act; and
(n) To take all necessary and appropriate action to encourage and foster the cooperation of
all emergency medical service providers and facilities within this state.
(o) Nothing in this article may be construed to allow the commissioner to dissolve, invalidate
or eliminate any existing emergency medical service program or ambulance providers in service at
the time of adoption of the amendment to this article in the regular session of the Legislature in the
year 1984, or to deny them fair access to federal and state funding, medical facilities and training
programs.
§16-4C-6a. Emergency medical services agency licensure.
(a) Any person who proposes to establish or maintain an emergency medical services agency
shall file an application with the commissioner The application is to include which includes the
identity of the applicant, any parent or affiliated entity, the proposed level of service and the number
of emergency medical service response vehicles of the agency or proposed agency. The
commissioner may require that additional information be included on each application.
(b) Upon receipt and review of the application the commissioner shall issue a license if he
or she finds that the applicant meets the requirements and quality standards, to be established by the
commissioner, for an emergency medical services agency license, and if the applicant has certified
under penalty of perjury that he or she is current with all lawful obligations owed the State of West
Virginia, excluding obligations owed in the current quarter, including, but not limited to, payment
of taxes and workers' compensation premiums: Provided, That the certification set forth in this
paragraph shall be paragraph is required for the original application and subsequent renewal thereof
renewals.
Upon review and consultation with the advisory council the commissioner may, pursuant to
the provisions of article three, chapter twenty-nine-a of this code, establish reasonable fee schedules
for application and licensure.
§16-4C-8. Standards for emergency medical service personnel.
(a) Every ambulance operated by an emergency medical service agency shall carry at least
two personnel. At least one person shall be certified in cardiopulmonary resuscitation or first aid and
the person in the patient compartment shall be certified as an emergency medical technician-basic
at a minimum except that in the case of a specialized multipatient medical transport, only one staff
person is required and that person shall be certified, at a minimum, at the level of an emergency
medical technician-basic. The requirements of this subsection will remain in effect until revised by
the legislative rule to be promulgated pursuant to subsection (b) of this section.
(b) As a minimum the training for each class of emergency medical service personnel shall
include:
(1) Emergency medical service attendant: Shall have earned and possess valid certificates
from the department or by authorities recognized and approved by the commissioner;
(2) Emergency medical technician-basic: Shall have successfully completed the course for
certification as an emergency medical technician-basic as established by the commissioner or
authorities recognized and approved by the commissioner; and
(3) Emergency medical technician-paramedic: Shall have successfully completed the course
for certification as an emergency medical technician-paramedic established by the commissioner or
authorities recognized and approved by the commissioner.
(b) On or before May 28, 2010, the commissioner shall submit a proposed legislative rule to
the Emergency Medical Services Advisory Council for review, and on or before June 30, 2010, shall
file the proposed legislative rule with the office of the Secretary of State, in accordance with the
provisions of chapter twenty-nine-a, article three of this code, to establish certification standards for
emergency medical vehicle operators and to revise the requirements for emergency medical service
personnel.
(c) Subsection (b) of this section may not be considered to limit the power of the
commissioner to prescribe training, certification and recertification standards.
(c) As of the effective date of the legislative rule to be promulgated pursuant to subsection
(b) of this section, emergency medical service personnel who operate ambulances shall meet the
requirements set forth in the legislative rule.
(d) Any person desiring emergency medical service personnel certification shall apply to the
commissioner using forms and procedures prescribed by the commissioner. Upon receipt of the
application, the commissioner shall determine whether the applicant meets the certification
requirements and may examine the applicant, if necessary to make that determination.
(e) The applicant shall submit to a national criminal background check, the requirement of
which is declared to be not against public policy.
(1) The applicant shall meet all requirements necessary to accomplish the national criminal background check, including submitting fingerprints, and authorizing the West Virginia Office of
Emergency Medical Services, the West Virginia State Police and the Federal Bureau of Investigation
to use all records submitted and produced for the purpose of screening the applicant for certification.
(2) The results of the national criminal background check may not be released to or by a
private entity.
(3) The applicant shall submit a fee of $75 for initial certification and a fee of $50 for
recertification. The fees set forth in this subsection remain in effect until modified by legislative
rule.
(f) If the Commissioner determines that the applicant meets all of the requirements, he or she
shall issue an appropriate emergency medical service personnel certificate which shall be valid for
a period as determined by the Commissioner.
(f) An application for an original, renewal or temporary emergency medical service personnel
certificate or emergency medical services agency license, shall be acted upon by the commissioner
and the certificate or license delivered or mailed, or a copy of any order of the commissioner denying
any such application delivered or mailed to the applicant, within fifteen days after the date upon
which the complete application including test scores and background checks, if applicable, was
received by the commissioner.
(g) State and county continuing education and recertification programs for all levels of
emergency medical service providers shall be available to emergency medical service providers at
a convenient site within one hundred miles of the provider's primary place of operation at sites
determined by the regional emergency medical services offices. The continuing education program
shall be provided at a cost specified in a fee schedule to be promulgated by legislative rule in
accordance with article three, chapter twenty-nine-a of this code by the Secretary of the Department
of Health and Human Resources to all nonprofit emergency medical service personnel.
(g) Any person may report to the commissioner or the Director of the Office of Emergency
Medical Services information he or she may have that appears to show that a person certified by the commissioner may have violated the provisions of this article or legislative rules promulgated
pursuant to this article. A person who is certified by the commissioner, who knows of or observes
another person certified by the commissioner violating the provisions of this article or legislative
rules promulgated pursuant to this article, has a duty to report the violation to the commissioner or
director. Any person who reports or provides information in good faith is immune from civil
liability.
(h) The commissioner may issue a temporary emergency medical service personnel certificate
to an applicant, with or without examination of the applicant, when he or she finds that issuance to
be in the public interest. Unless suspended or revoked, a temporary certificate shall be valid initially
for a period not exceeding one hundred twenty days and may not be renewed unless the
commissioner finds the renewal to be in the public interest. The expiration date of a temporary
certificate shall be extended until the holder is afforded at least one opportunity to take an emergency
medical service personnel training course within the general area where he or she serves as an
emergency medical service personnel, but the expiration date may not be extended for any longer
period of time or for any other reason.
§16-4C-9. Complaints; investigations; due process procedure; grounds for disciplinary action.
(a) The commissioner may at any time upon his or her own motion, and shall, upon the
verified written complaint of any person, cause an investigation to be conducted to determine
whether there are any grounds exist for the suspension or revocation of a certificate, temporary
certificate or license issued disciplinary action under the provisions of this article or legislative rules
promulgated pursuant to this article.
(b) An investigator or other person who, under the direction of the commissioner or the
director, gathers or reports information in good faith to the commissioner or the director, is immune
from civil liability.
(c) After reviewing any information obtained through an investigation, the commissioner or
director shall determine if probable cause exists that the licensee or certificate holder has violated any provision of this article or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee or certificate holder has
violated any provision of this article or rules promulgated pursuant to this article, the commissioner
or director shall provide a copy of the complaint to the licensee or certificate holder.
(e) The commissioner or the director may enter into a consent decree or hold a hearing for
the suspension or revocation of the license or certification or the imposition of sanctions against the
licensee or certificate holder.
(f) The commissioner or the director issue subpoenas and subpoenas duces tecum to obtain
testimony and documents to aid in the investigation of allegations against any person or agency
regulated by the article.
(g) The commissioner or the director may sign a consent decree or other legal document
related to the complaint.
(b) (h) The commissioner shall suspend or revoke any certificate, temporary certificate or
license when he or she finds the holder thereof has:
(1) Obtained a certificate, temporary certificate or license by means of fraud or deceit; or
(2) Been grossly incompetent, and/or grossly negligent as defined by the commissioner in
accordance with rules or by prevailing standards of emergency medical services care; or
(3) Failed or refused to comply with the provisions of this article or any reasonable legislative
rule promulgated by the commissioner hereunder or any order or final decision of the commissioner;
or
(4) Engaged in any act during the course of duty which has endangered or is likely to
endanger the health, welfare or safety of the public.
(i) The commissioner or the director may, after notice and opportunity for hearing, deny or
refuse to renew, suspend or revoke the license or certification of, impose probationary conditions
upon or take disciplinary action against, any licensee or certificate holder for any violation of this
article or any rule promulgated pursuant to this article, once a violation has been proven by a preponderance of the evidence.
(j) Disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative penalties and fines;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or holder of a certificate to report to the commissioner or director
for periodic interviews for a specified period of time;
(7) Other disciplinary action considered by the commissioner or director to be necessary to
protect the public, including advising other parties whose legitimate interests may be at risk; or
(8) Other sanctions as set forth by legislative rule promulgated pursuant to this article.
(c) (k) The commissioner shall suspend or revoke any certificate or, temporary certificate or
license if he or she finds the existence of any grounds which would justify the denial of an
application for the certificate, temporary permit or license certificate or license if application were
then being made for it.
§16-4C-10. Procedures for hearing; right of appeal; judicial review.
An application for an original, renewal or temporary emergency medical service personnel
certificate or emergency medical services agency license, shall be acted upon by the commissioner
and the certificate delivered or mailed, or a copy of any order of the commissioner denying any such
application delivered or mailed to the applicant, within fifteen days after the date upon which the
application including test scores, if applicable, was received by the commissioner.
Whenever the commissioner refuses to issue an emergency medical service personnel
certificate or a temporary emergency medical service personnel certificate or emergency medical
services agency license, or suspends or revokes an emergency medical service personnel certificate,
or a temporary emergency medical service personnel certificate, he or she shall make and enter an order to that effect, which shall specify the reasons for the denial, suspension or revocation, and shall
cause a copy of the order to be served in person or by certified mail, return receipt requested, on the
applicant or certificate or license holder, as the case may be.
Whenever a certificate or license is suspended or revoked, the commissioner shall in the
order of suspension or revocation direct the holder thereof to return his or her certificate to the
commissioner. It shall be the duty of the certificate or license holder to comply with any such order
following expiration of the period provided for an appeal to the commissioner.
Any applicant or certificate or license holder, adversely affected by an order made and
entered by the commissioner may appeal to the commissioner for an order vacating or modifying the
order or for such order as the commissioner should have entered. The person so appealing shall be
known as the appellant. An appeal shall be perfected by filing a notice of appeal with the
commissioner within ten days after the date upon which the appellant received the copy of the order.
The notice of appeal shall be in a form and contain the information prescribed by the commissioner,
but in all cases shall contain a description of any order appealed from and the grounds for the appeal.
The filing of the notice of appeal shall operate to stay or suspend execution of any order which is the
subject matter of the appeal. All of the pertinent provisions of article five, chapter twenty-nine-a of
this code apply to and govern the hearing on appeal and the administrative procedures in connection
with and following the hearing, with like effect as if the provisions of said article were set forth in
extenso herein.
The commissioner shall set a hearing date which shall be not less than ten days after he or
she received the notice of appeal unless there is a postponement or continuance. The commissioner
may postpone or continue any hearing on his or her own motion, or for good cause shown upon the
application of the appellant. The appellant shall be given notice of the hearing in person or by
certified mail, return receipt requested. Any such hearing shall be held in Charleston, Kanawha
County, West Virginia, unless another place is specified by the commissioner.
After the hearing and consideration of all of the testimony, evidence and record in the case, the commissioner shall make and enter an order affirming, modifying or vacating his or her initial
order or shall make and enter any new order. The order shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code, and
a copy of the order and accompanying findings and conclusions shall be served upon the appellant,
in person or by certified mail, return receipt requested.
(a) Hearings are governed by the provisions of article five, chapter twenty-nine a of this code.
(b) The commissioner or director may conduct the hearing or elect to have an Administrative
Law Judge conduct the hearing.
(c) If the hearing is conducted by an Administrative Law Judge, the Administrative Law
Judge shall prepare a proposed written order at the conclusion of a hearing containing findings of
fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the
commissioner or director so directs. The commissioner may accept, reject or modify the decision
of the Administrative Law Judge.
(d) The commissioner or director has the authority to administer oaths, examine any person
under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the commissioner or director determines the licensee or holder of a
certificate has violated any provision of this article or the legislative rules promulgated pursuant to
this article, a formal written decision shall be prepared which contains findings of fact, conclusions
of law and a specific description of the disciplinary actions imposed.
(f) The order of the Commissioner or director is final unless vacated or modified upon
judicial review. thereof
(g) Any appellant licensee or certificate holder adversely affected by a final order made and
entered by the commissioner or director is entitled to judicial review. thereof All of the pertinent
provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern
the review with like effect as if the provisions of said the section were set forth in extenso herein.
(h) The judgment of the circuit court shall be is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
§16-4C-12. Violations; criminal penalties.
(a) When, as a result of an investigation under this article or otherwise, the commissioner or
director has reason to believe that a licensee or certificate holder has committed a criminal offense,
the commissioner or director may bring the information to the attention of an appropriate law-
enforcement official.
(b) Any person who violates any condition of licensure law or rule or operates an ambulance
with an insufficient number of emergency medical service personnel aboard when not lawfully
permitted to do so, or who represents himself or herself as a certified emergency medical service
personnel knowing the representation to be untrue, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $100 nor more than $1,000: Provided, That after July 1, 2010,
the fine shall not be more than $5,000.
§16-4C-16. Limitation of liability; mandatory errors and omissions insurance.
(1) (a) Every person, corporation, ambulance service, emergency medical service provider,
emergency ambulance authority, emergency ambulance service or other person which employs
emergency medical service personnel with or without wages for ambulance service or provides
ambulance service in any manner, shall obtain a policy of insurance insuring the person or entity and
every employee, agent or servant thereof, against loss from the liability imposed by law for damages
arising from any error or omission in the provision of emergency medical services as enumerated by
this article, in an amount no less than $1,000,000 per incident. Provided, That each emergency
medical services agency having less than this amount on the first day of January, one thousand nine
hundred ninety-six, shall obtain the policy of insurance required in this section in the amount of one
million dollars on or before the first day of March, one thousand nine hundred ninety-seven. New
applicants shall obtain the insurance required in this section in the amount of one million dollars
(2) (b) No emergency medical service personnel or emergency medical service provider may be is liable for civil damages or injuries in excess of the amounts for which the person or entity is
actually insured, unless the damages or injuries are intentionally or maliciously inflicted.
(3) (c) Every person or entity required by this section to obtain a policy of insurance as
contemplated by this section shall furnish proof of the existence of the policy to the commissioner
on or before January 1 of each calendar year. proof of the existence of the policy of insurance
required by this section
(4) (d) In the event that Any person or entity who fails to secure a policy of insurance before
the person or entity undertakes the provision of providing emergency medical services or emergency
medical service agency, whichever occurs last, and keeps the policy of insurance in force thereafter,
that person or entity is not entitled to the limited immunity liability created by subsection (2) (b) of
this section: Provided, That any physician, who gives instructions to emergency medical service
personnel without being compensated, therefor or who treats any patient transported in an ambulance
or treats any patient prior to the transport, without being compensated, therefor is entitled to the
limited immunity liability provided in subsection (2) (b) of this section."
On motion of 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
94, nays 2, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Andes and McGeehan.
Absent And Not Voting: Argento, Cann, Manchin and Ross.
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. 4143) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 397), and there were--yeas 94, nays
2, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Andes and McGeehan.
Absent And Not Voting: Argento, Border, Cann and Ross.
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. 4143) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
Com. Sub. for H. B. 4144, Relating to the board of veterinary medicine.
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 10. VETERINARIANS.
§30-10-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice veterinary medicine, veterinary
technology or animal euthanasia in this state without a license, registration or certificate issued under
the provisions of this article, or advertise or use any title or description tending to convey the
impression that they are a veterinarian, veterinary technician or animal euthanasia technician unless
such person has been duly licensed, registered or certified under the provisions of this article.
(b) A business entity may not render any service or engage in any activity which, if rendered
or engaged in by an individual, would constitute the practice of veterinary medicine, veterinary
technology or animal euthanasia, except through a licensee, registrant or certificate holder.
§30-10-2. Applicable law.
The practice of veterinary medicine, veterinary technology and animal euthanasia, and the
Board of Veterinary Medicine are subject to the provisions of article one of this chapter, the provisions of this article and the board's rules.
§30-10-3. Definitions.
As used in this article, the following words and terms have the following meanings:
(a) 'Animal' means any animal other than human, and the term includes fowl, birds,
amphibians, fish, and reptiles, wild or domestic, living or dead.
(b) 'Animal Control Facility' means a municipal or county operated humane society or
animal shelter incorporated and organized under the laws of this state, or a humane society or an
animal shelter classified as 501(c)(3) by the Internal Revenue Service, with at least one certified
animal euthanasia technician.
(c) 'Applicant' means a person making application for a license, certificate, registration or
permit, under the provisions of this article.
(d) 'Board' means the West Virginia Board of Veterinary Medicine.
(e) 'Business entity' means any firm, partnership, association, company, corporation, limited
partnership, limited liability company or other entity performing veterinary medicine, veterinary
technology or animal euthanasia.
(f) 'Certificate' means an animal euthanasia technician certificate issued under the provisions
of this article.
(g) 'Certificate holder' means a person holding a certificate issued under the provisions of
this article.
(h) 'Certified animal euthanasia technician' means a person who is certified by the board to
euthanize animals in accordance with the provisions of this article.
(i) 'General Supervision' means the supervising veterinarian is in the building where the
animal is being treated, has given instructions for treatment and is quickly and easily available.
(j) 'Indirect supervision' means the performance of procedures on the orders of a supervising
veterinarian.
(k) 'License' means a veterinary medicine license issued under the provisions of this article.
(l) 'Licensee' means a person holding a license issued under the provisions of this article.
(m) 'Permit' means a temporary permit to practice veterinary medicine issued by the board.
(n) 'Permittee' means a person holding a permit issued under the provisions of this article.
(o) 'Practice of veterinary medicine' means to diagnose, treat, correct, change, relieve or
prevent any disease, deformity, defect, injury, or other physical or mental condition, of any animal,
or to prescribe for or to administer to any animal any drug, medicine, biologic, apparatus,
application, anesthetic or other therapeutic or diagnostic substance or technique, or to render advice
or any recommendation with respect to any of the foregoing.
(p) 'Practice of veterinary technology' means the science and art of providing all aspects of
professional medical care, services and treatment for animals with the exceptions of diagnosis,
prognosis, surgery, prescription and application of any treatments, drugs, medications or appliances,
where a valid veterinarian- client-patient relationship exists.
(q) 'Registered veterinary technician' means a person who is duly registered to practice
veterinary technology under the provisions of this article.
(r) 'Registrant' means a person holding a registration issued under the provisions of this
article.
(s) 'Registration' means a veterinary technician registration issued under the provisions of
this article.
(t) 'Supervising veterinarian' means a veterinarian, licensed under this article, who assumes
responsibility for the professional care given to an animal by a person authorized by this article to
work under his or her general or indirect supervision.
(u) 'Veterinarian' means a person who is licensed to practice veterinary medicine under the
provisions of this article.
(v) 'Veterinary assistant' means a person who has not met the requirements for becoming a
registered veterinary technician. The duties and tasks of a veterinary assistant are instructed from
and directly supervised by a licensed veterinarian, who is accountable for the veterinary assistant's actions. The supervising veterinarian is responsible for determining the ability and competence of
the veterinary assistant to perform the directed task or procedure.
(w) 'Veterinarian-client-patient relationship' means a relationship between a veterinarian,
a client and a patient, and exists when:
(1) A veterinarian assumes responsibility for medical judgments regarding the health of an
animal and the client who is the owner or other caretaker of the animal agrees to follow the
veterinarian's instructions; or
(2) A veterinarian, through personal examination of an animal or a representative sample of
a herd or flock, obtains sufficient information to make at least a general or preliminary diagnosis of
the medical condition of the animal, herd or flock, which diagnosis is expanded through medically
appropriate visits to the premises where the animal, herd or flock is kept.
§30-10-4. Board of Veterinary Medicine.
(a) The West Virginia Board of Veterinary Medicine is continued. The members of the board
in office on July 1, 2010, shall, unless sooner removed, continue to serve until their respective terms
expire and until their successors have been appointed and qualified.
(b) Prior to July 1, 2010, the Governor, by and with the advice and consent of the Senate,
shall appoint:
(1) A registered veterinary technician for a term of five years; and
(2) A licensed veterinarian for a term of four years.
(c) Commencing July 1, 2010, the board shall consist of the following nine members,
appointed by the Governor by and with the advice and consent of the Senate:
(1) Six members licensed to practice veterinary medicine in this state;
(2) One member registered to practice veterinary technology in this state; and
(3) Two citizen members, who are not licensed, registered, certified or permitted under the
provisions of this article, and who do not perform any services related to the practice of the
professions regulated under the provisions of this article.
(d) After the initial appointment term, the appointment term is five years. A member may
not serve more than two consecutive terms. A member who has served two consecutive full terms
may not be reappointed for at least one year after completion of his or her second full term. A
member may continue to serve until his or her successor has been appointed and qualified.
(e) Each licensed or registered member of the board, at the time of his or her appointment,
must have held a license or registration in this state for a period of not less than three years
immediately preceding the appointment.
(f) Each member of the board must be a resident of this state during the appointment term.
(g) A vacancy on the board shall be filled by appointment by the Governor for the unexpired
term of the member whose office is vacant.
(h) The Governor may remove any member from the board for neglect of duty, incompetency
or official misconduct.
(i)A licensed or registered member of the board immediately and automatically forfeits
membership to the board if his or her license or registration to practice is suspended or revoked.
(j) A member of the board immediately and automatically forfeits membership to the board
if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of
this state.
(k) The board shall elect annually one of its members as chairperson and one member as
secretary-treasurer who shall serve at the will and pleasure of the board.
(l) Each member of the board is entitled to receive compensation and expense reimbursement
in accordance with article one of this chapter.
(m) A majority of the members of the board constitutes a quorum.
(n) A veterinary technician member may not be employed by a veterinarian on the board.
(o) The board shall hold at least one annual meeting. Other meetings shall be held at the call
of the chairperson or upon the written request of three members, at the time and place as designated
in the call or request.
(p) Prior to commencing his or her duties as a member of the board, each member shall take
and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-10-5. Powers and duties of the board.
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, including:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for a license, permit, certificate and registration;
(3) Establish procedures for submitting, approving and rejecting applications for a license,
permit, certificate and registration;
(4) Determine the qualifications of any applicant for a license, permit, certificate and
registration;
(5) Establish the fees charged under the provisions of this article;
(6) Issue, renew, deny, suspend, revoke or reinstate a license, permit, certificate and
registration;
(7) Prepare, conduct, administer and grade written, oral or written and oral examinations for
a license, certificate and registration;
(8) Determine the passing grade for the examinations;
(9) Contract with third parties to administer the examinations required under the provisions
of this article;
(10) 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;
(11) Maintain an office, and hire, discharge, establish the job requirements and fix the
compensation of employees and contract with persons necessary to enforce the provisions of this
article;
(12) Investigate alleged violations of the provisions of this article, legislative rules, orders
and final decisions of the board;
(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, by legislative rule, the continuing education requirements for licensees,
permitees, certificate holders and registrants;
(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;
(20) Sue and be sued in its official name as an agency of this state;
(21) Confer with the Attorney General or his or her assistant in connection with legal matters
and questions; and
(22) Take all other actions necessary and proper to effectuate the purposes of this article.
§30-10-6. Rule-making authority.
(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 a license, permit, certificate and registration;
(2) Educational and experience requirements;
(3) Procedures for examinations and reexaminations;
(4) Requirements for third parties to prepare, administer or prepare and administer
examinations and reexaminations;
(5) The passing grade on the examination;
(6) Standards for approval of courses;
(7) Establish a certified animal euthanasia technician's program;
(8) Procedures for the issuance and renewal of a license, permit, certificate and registration;
(9) A fee schedule;
(10) Continuing education requirements;
(11) Set standards for ethical conduct;
(12) Establish procedures and requirements for facility inspections;
(13) Clarify the veterinarian-client-patient relationship;
(14) The procedures for denying, suspending, revoking, reinstating or limiting the practice
of a licensee, permittee, certificate holder or registrant;
(15) Requirements for a revoked license, permit, certificate and registration; and
(16) Any other rules necessary to effectuate the provisions of this article.
(b) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are
amended, modified, repealed or replaced.
§30-10-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except fines, received by the board shall be deposited in a
separate special revenue fund in the State Treasury designated the 'Board of Veterinary Medicine
Fund', which fund is continued. The fund is used by the board for the administration of this article.
Except as may be provided in article one of this chapter, the board shall retain the amounts in the
special revenue account from year to year. Any compensation or expense incurred under this article
is not a charge against the General Revenue Fund.
(b) The board shall deposit any amounts received as administrative fines imposed pursuant
to this article into the General Revenue Fund of the State Treasury.
§30-10-8. Requirements for Veterinary License.
(a) To be eligible for a license to practice veterinary medicine under the provisions of this
article, the applicant must:
(1) Be of good moral character;
(2) (A) Be a graduate of an accredited school approved by the board; or
(B) Be a graduate of a foreign veterinary school and hold a certificate of competence issued
by a foreign veterinary graduate educational organization as approved by the board;
(3) Have passed the examinations required by the board;
(4) Be at least eighteen years of age;
(5) Be a citizen of the United States or be eligible for employment in the United States;
(6) Not have been convicted of a crime involving moral turpitude;
(7) Not have been convicted of a felony under the laws of any jurisdiction within five years
preceding the date of application for licensure which conviction remains unreversed; and
(8) Not have been convicted of a misdemeanor or a felony under the laws of any jurisdiction
at any time if the offense for which the applicant was convicted related to the practice of veterinary
medicine or animal abuse or neglect.
(b) A person seeking a license under the provisions of this article shall submit an application
on a form prescribed by the board and pay all applicable fees.
(c) An applicant from another jurisdiction shall comply with all the requirements of this
article.
(d) A license to practice veterinary medicine issued by the board prior to July 1, 2010, shall
for all purposes be considered a license issued under this article and may be renewed under this
article.
(e) An application for a license to practice veterinary medicine submitted to the board prior
to July 1, 2010, shall be considered in conformity with the licensing provisions of this article and the
rules promulgated thereunder in effect at the time of the submission of the application.
§30-10-9. Scope of Practice for a Licensed Veterinarian.
A person licensed to practice veterinary medicine may do the following:
(a) Prescribe or administer any drug, medicine, treatment, method or practice for an animal.
(b) Perform any operation or manipulation on or apply any apparatus or appliance to an animal.
(c) Give instruction or demonstration for the cure, amelioration, correction or reduction or
modification of an animal condition, disease, deformity, defect, wound or injury.
(d) Diagnose or prognosticate an animal condition, disease, deformity, defect, wound or
injury for hire, fee, reward or compensation that is directly or indirectly promised, offered, expected,
received or accepted.
(e) Prescribe or administer any legally authorized drug, medicine, treatment, method or
practice, perform any operation or manipulation, or apply any apparatus or appliance for the cure,
amelioration, correction or modification of an animal condition, disease, deformity, defect, wound
or injury for hire, fee, compensation or reward that is directly or indirectly promised, offered,
expected, received or accepted.
§30-10-10. Requirements for a registered veterinary technician.
(a) To be eligible for a registration to practice veterinary technology under the provisions of
this article, the applicant must:
(1) Be of good moral character;
(2) Have a degree in veterinary technology from an accredited school, approved by the board;
(3) Have passed the examinations required by the board;
(4) Be at least eighteen years of age;
(5) Be a citizen of the United States or be eligible for employment in the United States;
(6) Not have been convicted of a crime involving moral turpitude;
(7) Not have been convicted of a felony under the laws of any jurisdiction within five years
preceding the date of application for registration which conviction remains unreversed; and
(8) Not have been convicted of a misdemeanor or a felony under the laws of any jurisdiction
at any time if the offense for which the applicant was convicted related to the practice of veterinary
technology or animal abuse or neglect.
(b) A person seeking registration under the provisions of this
article shall submit an application on a form prescribed by the board and pay all applicable fees.
(c) A person registered to practice veterinary technology issued by the board prior to July 1,
2010, shall for all purposes be considered registered under this article and may renew pursuant to
the provisions of this article.
§30-10-11. Scope of practice for registered veterinary technician.
(a) A registered veterinary technician may do the following under general supervision:
(1) Administer anesthesia, including induction, intravenous sedation, and maintenance and
recovery from anesthesia;
(2) Perform dental prophylaxis;
(3) Establish open airways;
(4) Administer resuscitative oxygen procedures;
(5) Administer resuscitative drugs, in the event of cardiac arrest;
(6) Administer immunizations that are not required by law to be administered by a licensed
veterinarian;
(7) Prepare or supervise the preparation of patients for surgery;
(8) Assist the veterinarian in immunologic, diagnostic, medical, chemotherapeutic and
surgical procedures; and
(9) Perform external suturing.
(b) A registered veterinary technician may do the following under either general or indirect
supervision:
(1) Perform diagnostic imaging;
(2) Perform intravenous catheterization;
(3) Administer and apply medications and treatments by oral intramuscular, intravenous and
subcutaneous routes;
(4) Apply bandages;
(5) Perform cardiac and respiratory monitoring;
(6) Perform appropriate procedures to control bleeding;
(7) Apply temporary splints or immobilizing bandages;
(8) Perform ear flushing;
(9) Collect specimens; and
(10) Perform laboratory procedures.
(c) A veterinary technician may, without supervision, use emergency treatment procedures
when an animal has been placed in a life threatening condition and immediate treatment is necessary
to sustain the animal's life. The registered veterinary technician shall immediately take steps to
secure the general supervision of a veterinarian.
§30-10-12. Requirements to be a certified animal euthanasia technician.
(a) To be eligible to be a certified animal euthanasia technician a person must:
(1) Apply at least thirty days prior to the date the next written examinations are scheduled,
using a form prescribed by the board;
(2) Have a high school diploma or GED,
(3) Pay application and examination fees;
(4) Complete the certified animal euthanasia technician's program established by the board;
(5) Pass the written and practical skills examinations;
(6) Pass the prescribed background check; and
(7) Complete all the other requirements established by the board.
(b) A certified animal euthanasia technician may practice animal euthanasia at a legally
operated animal control facility.
(c) A person certified as an animal euthanasia technician by the board prior to July 1, 2010,
shall for all purposes be considered certified under this article and may renew pursuant to the
provisions of this article.
§30-10-13. Requirements for certified animal euthanasia technicians program.
(a) The board shall create a certified animal euthanasia technician's program. The board shall design this program to teach applicants for certification record keeping and the legal, safety and
practical information needed to become a certified animal euthanasia technician.
(b) (1) The board shall administer written examinations to an applicant for certification. The
written examinations shall test the applicant's knowledge of the following:
(A) Animal restraint;
(B) Drug enforcement agency regulations;
(C) Record keeping requirements for controlled substances;
(D) Handling, inventory, security and proper storage of euthanasia drugs, solutions and
syringes;
(E) The certification process;
(F) Legal requirements;
(G) Stress management;
(H) Approved animal euthanasia drug usage;
(I) Jurisprudence; and
(J) Other subject areas specified by the board in a legislative rule.
(2) The applicant shall pass the written examinations with a minimum correct score, as
determined by the board, in order to be eligible to take the practical skills examination provided in
subsection (c) of this section.
(c) In addition to the written examinations provided under subsection (b) of this section, the
board shall administer a practical skills examination to an applicant who has successfully passed the
written examinations. The board shall conduct the practical skills examination in a manner that tests
an applicant's ability to properly restrain an animal, measure a correct dosage of euthanasia solution,
locate an injection site and perform an injection. In order to pass the practical skills examination,
an applicant shall exhibit to the board that he or she can locate an injection site and perform an
injection and also perform euthanasia correctly and humanely.
(d) An applicant who successfully passes the written examinations and the practical skills examination required by this section shall sign a form authorizing the board to make inquiries
through the United States Department of Justice, or any other legal jurisdiction or entity, for the
purpose of determining the character and reputation of the applicant and other matters relating to the
certification of the applicant.
§30-10-14. Scope of practice for an animal euthanasia technician.
(a) A certified animal euthanasia technician may euthanize animals assigned to the care of
an animal control facility.
(b) A certified animal euthanasia technician shall practice euthanasia within the limitations
imposed by this article and rules promulgated by the board under this article.
(c) A certified animal euthanasia technician may not practice or offer to practice his or her
profession outside the direct authority of the animal control facility which employs him or her or
otherwise contracts for his or her services.
(d) A certified animal euthanasia technician is not qualified and may not indicate that he or
she is qualified to act in any capacity relative to animals beyond his or her specified and regulated
authority to euthanize animals at the instruction of the animal control facility by which he or she is
employed.
(e) Annually, before January 15, a certified animal euthanasia technician shall report to the
board the number of animals euthanized at his or her facility during the previous calendar year.
§30-10-15. Renewal requirements.
(a) All persons regulated by the article shall annually or biennially before January 1, renew
his or her license, registration or certification by completing a form prescribed by the board, paying
all applicable fees and submitting any other information required by the board.
(b) At least thirty days prior to January 1, the board shall mail to every person regulated by
the article an application for renewal.
(c) The board shall charge a fee for each renewal and a late fee for any renewal not properly
completed and received with the appropriate fee by the due date.
(d) The board shall require as a condition of renewal that each licensee, registrant and
certificate holder complete continuing education.
(e) The board may deny an application for renewal for any reason which would justify the
denial of an original application.
(f) The board may authorize the waiving of the renewal fee of a licensed veterinarian or
registered veterinarian technician during the period when he or she is on active duty with any branch
of the armed services or the public health service of the United States or a declared emergency.
(g) After July 1, 2010, a previously certified animal euthanasia technician may renew his or
her certification without having obtained a high school degree or GED.
§30-10-16. Temporary permits for a veterinarian.
(a) Upon completion of an application and payment of the applicable fees, the board may
issue a temporary permit to a person to practice veterinary medicine in this state who has completed
the educational requirements set out in this article, is waiting to take the state examination, and is
working under a supervising veterinarian.
(b) The temporary permit is valid for a period not to exceed the next scheduled examination
date first held following the issuance of the temporary permit and expires the day after the board
gives written notice to the permitee of the results.
(c) A temporary permit may be revoked by a majority vote of the board without a hearing.
§30-10-17. Exemptions from article.
The following persons are exempt from licensing under the provisions of this article:
(a) An employee of the federal government performing his or her official duties, as defined
by the employing agency;
(b) A student of a veterinary school working under the direct supervision of a licensed
veterinarian;
(c) A person advising with respect to or performing acts which the board has prescribed by
legislative rule as accepted livestock management practices;
(d) The owner of an animal, the owner's employees, or persons assisting the owner without
any fee or compensation, caring for and treating the animal, except where the ownership of the
animal was transferred for the purpose of circumventing the provisions of this article;
(e) A member of the faculty of a veterinary school performing his or her regular duties and
functions, including lecturing, giving instructions or demonstrations, at a veterinary school or in
connection with a board approved continuing education course or seminar;
(f) A person selling or applying a pesticide, insecticide or herbicide;
(g) A person engaging in bona fide scientific research which reasonably requires
experimentation involving animals;
(h) A person engaging in bona fide scientific research in consultation with a licensed
veterinarian in this state;
(i) A person treating or relieving a living animal in the case of an emergency for no fee or
other compensation;
(j) A person who disposes of the carcass of a dead animal; and
(k) Veterinary assistants acting under the general supervision of a licensed veterinarian.
§30-10-18. Display of license, permit, registration and certificate.
(a) The board shall prescribe the form for a license, permit, registration and certificate and
may issue a duplicate upon payment of a fee.
(b) Any person regulated by this article shall conspicuously display his or her license, permit,
registration or certification at his or her principal business location.
§30-10-19. Complaints; investigations; due process procedure; grounds for disciplinary action.
(a) The board may upon its own motion 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.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the
complaint to the licensee, permittee, registrant or certificate holder.
(c) After reviewing any information obtained through an investigation, the board shall
determine if probable cause exists that the licensee, permittee, registrant or certificate holder has
violated any provision of this article.
(d) Upon a finding that probable cause exists that the licensee, permittee, registrant or
certificate holder has violated this article, the board may enter into a consent decree or hold a hearing
for the suspension or revocation of the license, permit, registration or certificate or the imposition
of sanctions against the licensee, permittee, registrant or certificate holder. The 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 this 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, refuse to renew, suspend
or revoke the license, permit, registration or certificate of, impose probationary conditions upon or
take disciplinary action against, any licensee, permittee, registrant or certificate holder for any of the
following reasons:
(1) Obtaining a license, permit, registration or certificate 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;
(4) Intentional violation of this article or lawful order;
(5) Having had a license or other authorization to practice revoked or suspended, other
disciplinary action taken, or an application for licensure or other authorization refused, revoked or
suspended by the proper authorities of another jurisdiction, irrespective of intervening appeals and
stays; or
(6) Engaging in any act 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, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 a day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee, permittee, registrant or certificate holder to report to the board for
periodic interviews for a specified period of time; or
(7) Other corrective action considered by the board to be necessary to protect the public,
including advising other parties whose legitimate interests may be at risk.
§30-10-20. 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, the administrative law judge
shall prepare a proposed written order containing findings of fact and conclusions of law at the
conclusion of a hearing. 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, permittee, registrant or certificate
holder has violated this article, a formal written decision shall be prepared which contains findings
of fact, conclusions of law and a specific description of the disciplinary actions imposed.
§30-10-21. Judicial review; appeal to Supreme Court of Appeals.
Any licensee, permittee, registrant or certificate holder 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.
§30-10-22. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason
to believe that a person has knowingly violated 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) Any 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.
§30-10-23. 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. 398), and there were--yeas
94, nays 3, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes, McGeehan and J. Miller.
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4144) 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. 4186, Relating to the practice of nursing home administration.
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 §30-25-1, §30-25-2, §30-25-3, §30-25-4, §30-25-5, §30-25-6, §30-25-7, §30-25-8,
§30-25-9, §30-25-10 and §30-25-11 of the Code of West Virginia, as amended, be amended and
reenacted; and that said code be amended by adding thereto seven new sections, designated
§30-25-12, §30-25-13, §30-25-14, §30-25-15, §30-25-16, §30-25-17 and §30-25-18, all to read as
follows:
ARTICLE 25. NURSING HOME ADMINISTRATORS.
§30-25-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice nursing home administration
in this state without a license or permit issued under the provisions of this article, or advertise or use
any title or description tending to convey the impression that they are a nursing home administrator
unless the person has been duly licensed or permitted under the provisions of this article.
(b) A business entity may not render any service or engage in any activity which, if rendered
or engaged in by an individual, would constitute the practice of nursing home administration, except
through a licensee or permittee.
§30-25-2. Applicable law.
The practice licensed under the provisions of this article and the West Virginia Nursing
Home Administrators Licensing Board is subject to article one of this chapter, the provisions of this
article, and any rules promulgated hereunder.
§30-25-3. Definitions.
As used in this article:
(1) 'Applicant' means any person making application for an original or renewal license or
a temporary or emergency permit under the provisions of this article.
(2) 'Board' means the West Virginia Nursing Home Administrators Licensing Board created
by this article.
(3) 'License' means a license to practice nursing home administration under the provisions
of this article.
(4) 'Licensee' means a nursing home administrator licensed under this article.
(5) 'Nursing home' means a nursing home as that term is defined in subdivision (c), section
two, article five-c, chapter sixteen of this code.
(6) 'Nursing home administrator' means a person who performs or is responsible for
planning, organizing, directing and controlling a nursing home, whether or not such the person has
an ownership interest in the nursing home or shares the functions.
(7) 'Permit' means a temporary permit or emergency permit issued under the provisions of
this article.
(8) 'Permittee' means any person holding a permit issued pursuant to the provisions of this
article.
(9) 'Practice of nursing home administration' means any service requiring nursing home
administration education, training, or experience and applying such to planning, organizing, staffing,
directing, and controlling of the total management of a nursing home.
§30-25-4. West Virginia Nursing Home Administrators Licensing Board.
(a) The West Virginia Nursing Home Administrators Licensing Board terminates on June
30, 2010. The terms of the members of the board serving on June 1, 2010, terminate on June 30,
2010.
(b) Prior to July 1, 2010, the Governor shall appoint, by and with advice and consent of the Senate:
(1) Two persons who are licensed nursing home administrators, each for a term of five years;
(2) One person who is licensed as a nursing home administrator for a term of four years;
(3) One person who is licensed as a nursing home administrator for a term of three years;
(4) One person who is licensed as a nursing home administrator for a term of two years; and
(5) Two citizen members, who are not licensed under the provisions of this article and who
do not perform any services related to the practice of the profession regulated under the provisions
of this article, one for a term of four years, and one for a term of three years.
(c) After the initial appointment, the term shall be for five years. All appointments to the
board shall be made by the Governor by and with the advice and consent of the Senate.
(d) Commencing July 1, 2010, the board is created and shall consist of the following seven
voting members and one ex-officio nonvoting member:
(1) Five members who are licensed nursing home administrators;
(2) Two citizen members, who are not licensed under the provisions of this article and who
do not perform any services related to the practice of the professions regulated under the provisions
of this article, for a term of three years; and
(3) The Commissioner of the Bureau for Public Health or his or her designee is an ex-officio
nonvoting member.
(e) Each licensed member of the board, at the time of his or her appointment, must have held
a license in this state for a period of not less than five years immediately preceding the appointment.
(f) Each member of the board must be a resident of this state during the appointment term.
(g) A member may not serve more than two consecutive full terms. A member may continue
to serve until a successor has been appointed and has qualified.
(h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired
term of the member whose office is vacant and the appointment shall be made within sixty days of
the vacancy.
(i) The Governor may remove any member from the board for neglect of duty, incompetency
or official misconduct.
(j) A member of the board immediately and automatically forfeits membership to the board
if his or her license to practice is suspended or revoked, he or she is convicted of a felony under the
laws of any jurisdiction, or he or she becomes a nonresident of this state.
(k) The board shall elect annually one of its members as a chairperson and one of its
members as a secretary who serve 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 constitutes a quorum.
(n) The board shall hold at least two meetings each year. Other meetings may be held at the
call of the chairperson or upon the written request of two members, at the time and place as
designated in the call or request.
(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.
§30-25-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this article, by rule, in article one of
this chapter and elsewhere in law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for licenses and permits;
(3) Establish procedures for submitting, approving and rejecting applications for licenses and
permits;
(4) Determine the qualifications of any applicant for licenses and permits;
(5) Prepare, conduct, administer and grade examinations for licenses;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third party administers, including the
number of persons taking the examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix the compensation of the executive
director;
(9) Maintain an office, and hire, discharge, establish the job requirements and fix the
compensation of employees, investigators and contracted employees necessary to enforce the
provisions of this article;
(10) Investigate alleged violations of the provisions of this article, legislative rules, orders
and final decisions of the board;
(11) Conduct disciplinary hearings of persons regulated by the board;
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of the provisions of this article;
(14) Maintain an accurate registry of names and addresses of all persons regulated by the
board;
(15) Keep accurate and complete records of its proceedings, and certify the same as may be
necessary and appropriate;
(16) Establish the continuing education requirements for licensees;
(17) Issue, renew, combine, deny, restrict, suspend, restrict, revoke or reinstate licenses and
permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a
of this code to implement the provisions of this article; and
(20) Take all other actions necessary and proper to effectuate the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer examinations required under the provisions of
this article;
(2) Sue and be sued in its official name as an agency of this state; and
(3) Confer with the Attorney General or his or her assistant in connection with legal matters
and questions.
§30-25-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in accordance with the provisions
of article three, chapter twenty-nine-a of this code, to implement the provisions of this article,
including:
(1) Standards and requirements for licenses and permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer examinations and
reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses and permits;
(8) Procedures to address substandard quality of care notices from the West Virginia Office
of Health Facility Licensure;
(9) A fee schedule;
(10) Procedure to publish a notice of a disciplinary hearing against a licensee;
(11) Continuing education requirements for licensees;
(12) The procedures for denying, suspending, restricting, revoking, reinstating or limiting the
practice of licensees and permittees;
(13) Adoption of a standard for ethics;
(14) Requirements for inactive or revoked licenses or permits; 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, 2010, shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted
to mean provisions of this article.
§30-25-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be
deposited in a separate special revenue fund in the State Treasury designated the 'West Virginia
Nursing Home Administrators Licensing Board Fund', which is continued. The fund is used by the
board for the administration of this article. Except as may be provided in article one of this chapter,
the board retains the amount in the special revenue account from year to year. No compensation or
expense incurred under this article is a charge against the General Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this article, shall be deposited into
the General Revenue Fund of the State Treasury.
§30-25-8. Qualifications for license; exceptions; application; fees.
(a) To be eligible for a license to engage in the practice of nursing home administration, the
applicant must:
(1) Submit an application to the board;
(2) Be of good moral character;
(3) Obtain a baccalaureate degree;
(4) Pass a state and national examination as approved by the board;
(5) Complete the required experience as prescribed by the board;
(6) Successfully complete a criminal background check, through the West Virginia State
Police and the National Criminal Investigative Center;
(7) Successfully complete a Health Integrity Protection Data Bank check;
(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 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;
(9) Not have been convicted of a felony in any jurisdiction within ten years preceding the date
of application for license which conviction remains unreversed;
(10) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense
for which he or she was convicted related to the practice of nursing home administration, which
conviction remains unreversed; and
(11) Has fulfilled any other requirement specified by the board.
(b) A license issued by the board prior to July 1, 2010, shall for all purposes be considered
a license issued under this article: Provided, That a person holding a license issued prior to July 1,
2010, must renew the license pursuant to the provisions of this article.
§30-28-9. License to practice nursing home administration from another jurisdiction.
The board may issue a license to practice to an applicant of good moral character who holds
a valid license or other authorization to practice nursing home administration from another state, if
the applicant:
(1) Holds a license or other authorization to practice in another state which was granted after
the completion of educational requirements substantially equivalent to those required in this state
and passed examinations that are substantially equivalent to the examinations required in this state;
(2) Does not have charges pending against his or her license or other authorization to
practice, and has never had a license or other authorization to practice revoked;
(3) Has not previously failed an examination for licensure in this state;
(4) Has paid the applicable fee;
(5) Is a citizen of the United States or is eligible for employment in the United States; and
(6) Has fulfilled any other requirement specified by the board.
§30-25-10. Temporary and Emergency Permits.
(a) The board may issue a temporary permit for a period of ninety days, to an applicant
seeking licensure pursuant to section nine of this article who has accepted employment in West
Virginia, but who must wait for the board to meet to act on his or her application. The temporary permit may be renewed at the discretion of the board.
(b) The board may issue an emergency permit to a person who is designated as an acting
nursing home administrator, if a licensed nursing home administrator dies or is unable to continue
due to an unexpected cause. The board may issue the emergency permit to the owner, governing
body or other appropriate authority in charge of the nursing home, if it finds the appointment will
not endanger the safety of the occupants of the nursing home. A emergency permit is valid for a
period determined by the board not to exceed six months and shall not be renewed.
(c) The board shall charge a fee for the temporary permit and emergency permit.
§30-25-11. Renewal requirements.
(a) All persons regulated by the article shall annually before June 30, renew his or her license
by completing a form prescribed by the board and submitting any other information required by the
board.
(b) The board shall charge a fee for each renewal of a license or permit and shall charge a late
fee for any renewal not properly completed and received with the appropriate fee by the board before
June 30.
(c) The board shall require as a condition for the 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.
§30-25-12. Inactive license requirements.
(a) A licensee who does not want to continue in active practice shall notify the board in
writing and be granted inactive status.
(b) A person granted inactive status is exempt from fee requirements and continuing
education requirements, and cannot practice in this state.
(c) When an inactive licensee wants to return to active practice, he or she must complete all
the continuing education requirements for every licensure year the licensee was on inactive status and pay all the applicable fees as determined by the board.
§30-25-13. Display of license.
(a) The board shall prescribe the form for a license and permit, and may issue a duplicate
upon payment of a fee.
(b) Any person regulated by the article shall conspicuously display his or her license or
permit at his or her principal business location.
§30-25-14. Complaints; investigations; due process procedure; grounds for disciplinary action.
(a) The board may upon its own motion based on credible information, and shall upon the
written complaint of any person, cause an investigation to be made to determine whether grounds
exist for disciplinary action under this article or the legislative rules promulgated pursuant to this
article.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the
complaint to the licensee or permittee.
(c) After reviewing any information obtained through an investigation, the board shall
determine if probable cause exists that the licensee or permittee has violated subsection (g) of this
section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee or permittee has violated
subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into
a consent decree or hold a hearing for the suspension or revocation of the license or permit or the
imposition of sanctions against the licensee or permittee. Any hearing shall be held in accordance
with the provisions of this article.
(e) Any member of the board or the executive 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 or permit of, impose probationary conditions upon or take disciplinary action
against, any licensee or permittee for any of the following reasons once a violation has been proven
by a preponderance of the evidence:
(1) Obtaining a license or permit by fraud, misrepresentation or concealment of material
facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by
legislative rule of the board;
(4) Intentional violation of a lawful order or legislative rule of the board;
(5) Having had a license or other authorization revoked or suspended, other disciplinary
action taken, or an application for licensure or other authorization revoked or suspended by the
proper authorities of another jurisdiction;
(6) Aiding or abetting unlicensed practice; or
(7) Engaging in an act while acting in a professional capacity which has endangered or is
likely to endanger the health, welfare or safety of the public.
(h) For the purposes of subsection (g) of this section, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or permittee to report to the board for periodic interviews for a
specified period of time; or
(7) Other corrective action considered by the board to be necessary to protect the public,
including advising other parties whose legitimate interests may be at risk.
§30-25-15. 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, or permittee 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.
§30-25-16. Judicial review.
Any licensee or permittee adversely affected by a decision of the board entered after a hearing
may obtain judicial review of the decision in accordance with section four, article five, chapter
twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance
with article six, chapter twenty-nine-a of this code.
§30-25-17. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason
to believe that a licensee has committed a criminal offense under this article, the board may bring
its information to the attention of an appropriate law-enforcement official.
(b) A person violating section one of this article is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $100 not more than $1,000 or confined in jail not
more than six months, or both fined and confined.
§30-25-18. 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."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4186 - "A Bill to amend and reenact §30-25-1, §30-25-2, §30-25-3,
§30-25-4, §30-25-5, §30-25-6, §30-25-7, §30-25-8, §30-25-9, §30-25-10 and §30-25-11 of the Code
of West Virginia, as amended, be amended and reenacted; and that said code be amended by adding
thereto seven new sections, designated §30-25-12, §30-25-13, §30-25-14, §30-25-15, §30-25-16,
§30-25-17 and §30-25-18 all relating to the practice of nursing home administration; continuing the
West Virginia Nursing Home Administrators Licensing Board; prohibiting the practice of nursing
home administration without a license; providing other applicable sections; providing definitions;
providing for board composition; setting forth the powers and duties of the board; clarifying
rulemaking authority; continuing a special revenue account; establishing license requirements;
providing for licensure for persons licensed in another state; establishing renewal requirements;
providing permit requirements; requiring display of license; setting forth grounds for disciplinary
actions; allowing for specific disciplinary actions; providing procedures for investigation of
complaints; providing for judicial review and appeals of decisions; setting forth hearing and notice
requirements; providing for civil causes of action; providing criminal penalties and providing that
a single act is evidence of practice."
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. 399), and there were--yeas
91, nays 6, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Ireland, McGeehan, J. Miller and Walters.
Absent And Not Voting: Argento, Cann and Ross.
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. 4186) 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. 4201, Creating the Livestock Care Standards Board.
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 1C. CARE OF LIVESTOCK.
§19-1C-1. Legislative findings.
(a) The Legislature finds that the following are important to protect the health and welfare
of the citizens of West Virginia:
(1) Establishing standards governing the care and well-being of livestock in this state;
(2) Maintaining food safety;
(3) Encouraging locally grown and raised food; and
(4) Protecting West Virginia farms and families.
(b) Therefore, to protect the public interest, the Legislature finds that it is necessary to create
a Livestock Care Standards Board.
§19-1C-2. Definitions.
For the purposes of this article:
(1) 'Board' means the Livestock Care Standards Board.
(2) 'Livestock' has the same definition as set out in subsection (d), section two, article ten-b of this chapter.
§19-1C-3. Livestock Care Standards Board.
(a) On July 1, 2010, there is hereby created the Livestock Care Standards Board.
(b) Prior to July 1, 2010, the Governor shall appoint, by and with the advice and consent of
the Senate, the following eleven members:
(1) One member who is a veterinarian licensed in this state engaging in large animal practice,
for a term of two years;
(2) The dean of the agriculture department of a college or university located in this state, for
a term of three years;
(3) One member representing a county humane society that is organized under state law, for
a term of four years;
(4) One member who is knowledgeable about food safety in this state, for a term of five
years;
(5) Two members of the public representing West Virginia consumers, one for a term of two
years and one for a term of four years;
(6) Two members representing state agricultural organizations that represent farmers, one of
whom must be a member of the largest organization in the state representing farmers for a term of
three years, and the other must be a member of a statewide livestock organization, for a term of five
years; and
(7) Three members representing family farms engaged in animal production, at least two of
whom are family farmers, for the following terms: one for three years, one for four years and one for
five years.
(c) After the initial appointment terms, the appointment term is five years. Appointed
members may be reappointed for additional terms.
(d) Commencing July 1, 2010, the board consists of the following thirteen members:
(1) The Commissioner of the Department of Agriculture or his or her designee, ex officio non-voting, who is the chairperson of the board;
(2) The Director of the Animal Health Division, ex officio non-voting;
(3) One member who is a veterinarian licensed in this state engaging in large animal practice;
(4) The dean of the agriculture department of a college or university located in this state;
(5) One member representing a county humane society that is organized under state law;
(6) One member who is knowledgeable about food safety in this state;
(7) Two members of the public representing West Virginia consumers;
(8) Two members representing state agricultural organizations that represent farmers, one of
whom must be a member of the largest organization in the state representing farmers, and the other
must be a member of a statewide livestock organization; and
(9) Three members representing family farms engaged in animal production, at least two of
whom are family farmers.
(e) All members must be residents of this state during their terms. No more than seven
members of the board may be of the same political party and no more than five may be from the
same congressional district at any given time.
(f) All appointed members serve until their successor has been appointed and qualified.
Vacancies shall be filled in the same manner as the original appointment for the remainder of the
unexpired term.
§19-1C-4. Powers and duties of the board.
(a) The board has the following powers and duties to:
(1) Establish standards governing the care and well-being of livestock in this state;
(2) Maintain food safety;
(3) Encourage locally grown and raised food; and
(4) Protect West Virginia farms and families.
(b) The board is also authorized to establish standards by legislative rule, pursuant to the
provisions of article three, chapter twenty-nine-a of this code, governing the care and well-being of livestock in this state, including:
(1) The agricultural best management practices for the care and well-being of livestock and
poultry in this state;
(2) Biosecurity, disease prevention, animal morbidity and mortality data;
(3) Food safety practices; and
(4) The protection of local, affordable food supplies for consumers.
(c) The Department of Agriculture shall administer and enforce the standards established by
the board that are approved by the Legislature.
§19-1C-5. Compensation of board members.
(a) The ex officio members of the board may not receive compensation for serving on the
board.
(b) The appointed members of the board shall receive compensation for each day or portion
of a day engaged in the discharge of official duties, which compensation may not exceed the amount
paid to members of the Legislature for their interim duties as recommended by the Citizens
Legislative Compensation Commission and authorized by law.
(c) Each member of the board shall be reimbursed actual and necessary expenses incurred
for each day or portion of a day engaged in the discharge of official duties in a manner consistent
with the guidelines of the Travel Management Office of the Department of Administration.
§19-1C-6. Meetings of the board.
The board shall meet at least annually, and the chairperson may call additional meetings of
the board upon the written request of three members."
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. 400), and there were--yeas
96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes.
Absent And Not Voting: Argento, Cann and Ross.
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. 4201) 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 title amendment, a bill
of the House of Delegates, as follows:
Com. Sub. for H. B. 4260, Relating to insurance adjusters.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate title amendment was reported by the Clerk:
On page one, by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4260 - "A Bill to repeal §33-12B-2 and §33-12B-13 of the Code of
West Virginia, 1931, as amended; to amend and reenact §33-12B-1, §33-12B-3, §33-12B-5,
§33-12B-9, §33-12B-10 and §33-12B-11 of said code; to amend said code by adding thereto a new
section, designated §33-12B-10a, all relating to insurance adjusters; providing definitions; permitting
an adjuster to designate a home state; establishing a new crop adjuster license and its qualifications;
revising the requirements for nonresident adjusters; revising licensing renewal requirements;
requiring notification by adjusters of legal actions taken against them; granting the Insurance
Commissioner the authority to examine the business practices of persons holding or applying for
adjuster licenses; clarifying the hearing process to be used concerning adverse administrative actions;
providing for placing an adjuster on probation for violation of the provisions of the chapter or rules;
providing for suspension or revocation of license for failure to pay administrative penalty; increasing
maximum administrative penalty for violations; and providing for judicial review."
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. 401), and there were--yeas
96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento, Cann and Ross.
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. 4260) 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. 4273, Relating to professional employer organizations.
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 46A. PROFESSIONAL EMPLOYER ORGANIZATIONS.
§33-46A-4a. Operation of a PEO without a license; enforcement; penalties; fraud unit may
investigate.
(a) Any person who operates a PEO without a license issued in accordance with this article
is subject to the all of the injunctive, criminal, civil and administrative relief and criminal penalties
as provided in article forty-four of this chapter for the unauthorized transaction of insurance.
(b) In addition to the other investigative authority granted to the commissioner in this chapter,
the insurance fraud unit created pursuant to the provisions of section eight, article forty-one of this
chapter may investigate suspected violations of this article."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4273 - "A Bill to amend the Code of West Virginia, 1931, as amended
by adding thereto a new section, designated §33-46A-4a, all relating to professional employer
organizations; providing that a professional employer organization operating without a license is
subject to the same enforcement provisions and criminal penalties as unauthorized insurers; and
authorizing insurance fraud unit to conduct investigations."
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. 4281, Replacing references to 'mental retardation' with 'intellectual
disability'.
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 §27-1A-12 of the Code of West Virginia, 1931, as amended, be repealed; that §27-2-1a
and §27-2-1b of said code be repealed; that §9-4C-1 and §9-4C-5 of said code be amended and
reenacted; that §9-5-11c of said code be amended and reenacted; that §11-27-10 and §11-27-11 of
said code be amended and reenacted; that §16-1-4 of said code be amended and reenacted; that
§16-2D-2 and §16-2D-5 of said code be amended and reenacted; that §16-5F-2 of said code be
emended and reenacted; that §16-5O-2 of said code be amended and reenacted; that §16-22-1 and
§16-22-2 of said code be amended and reenacted; that §16-29A-3 of said code be amended and
reenacted; that §16-30-7 and §16-30-24 of said code be amended and reenacted; that §27-1-3,
§27-1-6, §27-1-7 and §27-1-9 of said code be amended and reenacted; that §27-1A-1, §27-1A-4 and
§27-1A-6 of said code be amended and reenacted; that §27-2-1 of said code be amended and
reenacted; that §27-2A-1 of said code be amended and reenacted; that §27-5-9 of said code be
amended and reenacted; that §27-9-1 of said code be amended and reenacted; that §27-12-1 of said code be amended and reenacted; that §29-15-1, §29-15-5 and §29-15-6 of said code be amended and
reenacted; that §44A-1-1 and §44A-1-2 of said code be amended and reenacted; and that §49-4A-6
be amended and reenacted, all to read as follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 4C. HEALTH CARE PROVIDER MEDICAID ENHANCEMENT ACT.
§9-4C-1. Definitions.
The following words when used in this article have the meanings ascribed to them in this
section, except in those instances where the context clearly indicates a different meaning:
(a) 'Ambulance service provider' means a person rendering ambulance services within this
state and receiving reimbursement, directly as an individual provider or indirectly as an employee
or agent of a medical clinic, partnership or other business entity.
(b) 'General health care provider' means an audiologist, a behavioral health center, a
chiropractor, a community care center, an independent laboratory, an independent X ray service, an
occupational therapist, an optician, an optometrist, a physical therapist, a podiatrist, a private duty
nurse, a psychologist, a rehabilitative specialist, a respiratory therapist and a speech therapist
rendering services within this state and receiving reimbursement, directly as an individual provider
or indirectly as an employee or agent of a medical clinic, partnership or other business entity.
(c) 'Inpatient hospital services provider' means a provider of inpatient hospital services for
purposes of Section 1903(w) of the Social Security Act.
(d) 'Intermediate care facility for
the mentally retarded individuals with an intellectual
disability services provider' means a provider of intermediate care facility services for
the mentally
retarded individuals with an intellectual disability for purposes of Section 1903(w) of the Social
Security Act.
(e) 'Nursing facility services provider' means a provider of nursing facility services for
purposes of Section 1903(w) of the Social Security Act.
(f) 'Outpatient hospital service provider' means a hospital providing preventative, diagnostic, therapeutic, rehabilitative or palliative services that are furnished to outpatients.
(g) 'Secretary' means the Secretary of the Department of Health and Human Resources.
(h) 'Single state agency' means the single state agency for Medicaid in this state.
§9-4C-5. Facility providers' medicaid enhancement board.
(a) The outpatient hospital medicaid enhancement board created by this section shall cease
to exist on the effective date of this article.
(b) There is hereby continued the facility providers' medicaid enhancement board to consist
of seven members. In order to carry out the purpose of this article, the board shall represent
ambulatory surgical centers, inpatient hospital service providers, outpatient hospital service
providers, nursing facility service providers and intermediate care facility for
the mentally retarded
individuals with an intellectual disability service providers.
(c) The board shall consist of one representative from each of the aforementioned classes of
health care providers, one lay person and the secretary, or his or her designee, who shall serve as an
ex officio, nonvoting member. The governor shall make all appointments within thirty days after
the effective date of this article.
(d) After initial appointment of the board, any appointment to fill a vacancy shall be for the
unexpired term only, shall be made in the same manner as the initial appointment, and the terms of
all members shall expire on the first day of July, one thousand nine hundred ninety-six.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-11c. Right of the Department of Health and Human Resources to recover medical
assistance.
(a) Upon the death of a person who was fifty-five years of age or older at the time the person
received welfare assistance consisting of nursing facility services, home and community-based
services, and related hospital and prescription drug services, the Department of Health and Human
Resources, in addition to any other available remedy, may file a claim or lien against the estate of
the recipient for the total amount of medical assistance provided by Medicaid for nursing facility services, home and community-based services, and related hospital and prescription drug services
provided for the benefit of the recipient. Claims so filed shall be classified as and included in the
class of debts due the state.
(b) The department may recover pursuant to subsection (a) only after the death of the
individual's surviving spouse, if any and only after such time as the individual has no surviving
children under the age of twenty-one, or when the individual has no surviving children who meet the
Social Security Act's definition of blindness or permanent and total disability.
(c) The state shall have the right to place a lien upon the property of individuals who are
inpatients in a nursing facility, intermediate care facility for
the mentally retarded individuals with
an intellectual disability, or other medical institution who, after notice and an opportunity for a
hearing, the state has deemed to be permanently institutionalized. This lien shall be in an amount
equal to Medicaid expenditures for services provided by a nursing facility, intermediate care facility
for
the mentally retarded individuals with an intellectual disability or other medical institution, and
shall be rendered against the proceeds of the sale of property except for a minimal amount reserved
for the individual's personal needs. Any such lien
shall dissolve dissolves upon that individual's
discharge from the medical institution. The secretary has authority to compromise or otherwise
reduce the amount of this lien in cases where enforcement would create a hardship.
(d) No lien may be imposed on such individual's home when the home is the lawful
residence of: (1) The spouse of the individual; (2) The individual's child who is under the age of
twenty-one; (3) The individual's child meets the Social Security Act's definition of blindness or
permanent and total disability; or (4) The individual's sibling has an equity interest in the home and
was residing in the home for a period of at least one year immediately before the date of the
individual's admission to a medical institution.
(e) The filing of a claim, pursuant to this section,
shall neither
reduce nor diminish reduces
or diminishes the general claims of the Department of Health and Human Resources, except that
such the department
shall may not receive double recovery for the same expenditure. The death of the recipient
shall neither
extinguish nor diminish extinguishes or diminishes any right of
such the
department to recover. Nothing in this section affects or prevents a proceeding to enforce a lien
pursuant to this section or a proceeding to set aside a fraudulent conveyance.
(f) Any claim or lien imposed pursuant to this section is effective for the full amount of
medical assistance provided by Medicaid for nursing facility services, home and community-based
services, and related hospital and prescription drug services.
Said The lien attaches and is perfected
automatically as of the beginning date of medical assistance, the date when a recipient first receives
treatment for which the Department of Health and Human Resources may be obligated to provide
medical assistance. A claim may be waived by
such the department, if
such the department
determines, pursuant to applicable federal law and rules and regulations, that the claim will cause
substantial hardship to the surviving dependents of the deceased.
(g) Upon the effective date of this section, the Attorney General, on behalf of the State of
West Virginia, shall commence an action in a court of competent jurisdiction to test the validity,
constitutionality, and the ability of the Congress of the United States to mandate the implementation
of this section. This subsection does not limit the right of others, including recipients, to intervene
in any litigation, nor does it limit the discretion of the Attorney General or appropriate counsel to
seek affected persons to act as parties to the litigation, either individually or as a class.
ARTICLE 6. SOCIAL SERVICES FOR ADULTS.
§9-6-1. Definitions.
The following words and terms, when used in this article, shall have the same meaning
hereinafter ascribed to them unless the context clearly indicates a different meaning:
(1) 'Adult protective services agency' means any public or nonprofit private agency,
corporation, board or organization furnishing protective services to adults;
(2) 'Abuse' means the infliction or threat to inflict physical pain or injury on or the
imprisonment of any incapacitated adult or facility resident;
(3) 'Neglect' means: (A) The failure to provide the necessities of life to an incapacitated adult or facility resident with intent to coerce or physically harm the incapacitated adult or resident;
and (B) the unlawful expenditure or willful dissipation of the funds or other assets owned or paid
to or for the benefit of an incapacitated adult or resident;
(4) 'Incapacitated adult' means any person who by reason of physical, mental or other
infirmity is unable to independently carry on the daily activities of life necessary to sustaining life
and reasonable health;
(5) 'Emergency' or 'emergency situation' means a situation or set of circumstances which
presents a substantial and immediate risk of death or serious injury to an incapacitated adult;
(6) 'Legal representative' means a person lawfully invested with the power and charged with
the duty of taking care of another person or with managing the property and rights of another person,
including, but not limited to, a guardian, conservator, medical power of attorney representative,
trustee or other duly appointed person;
(7) 'Nursing home' or 'facility' means any institution, residence, intermediate care facility
for
the mentally retarded individuals with an intellectual disability, care home or any other adult
residential facility, or any part or unit thereof, that is subject to the provisions of articles five-c,
five-d, five-e or five-h, chapter sixteen of this code;
(8) 'Regional long-term care ombudsman' means any paid staff of a designated regional
long-term care ombudsman program who has obtained appropriate certification from the Bureau for
Senior Services and meets the qualifications set forth in section seven, article five-l, chapter sixteen
of this code;
(9) 'Facility resident' means an individual living in a nursing home or other facility, as that
term is defined in subdivision (7) of this section;
(10) 'Responsible family member' means a member of a resident's family who has
undertaken primary responsibility for the care of the resident and who has established a working
relationship with the nursing home or other facility in which the resident resides. For purposes of
this article, a responsible family member may include someone other than the resident's legal representative;
(11) 'State long-term care ombudsman' means an individual who meets the qualifications
of section five, article five-l, chapter sixteen of this code and who is employed by the State Bureau
for Senior Services to implement the state long-term care ombudsman program;
(12) 'Secretary' means the Secretary of the Department of Health and Human Resources.
CHAPTER 11. TAXATION.
ARTICLE 27. HEALTH CARE PROVIDER TAXES.
§11-27-10. Imposition of tax on providers of intermediate care facility services for individuals
with an intellectual disability.
(a)
Imposition of tax. -- For the privilege of engaging or continuing within this state in the
business of providing intermediate care facility services for
the mentally retarded individuals with
an intellectual disability, there is
hereby levied and shall be collected from every person rendering
such service an annual broad-based health care related tax.
(b)
Rate and measure of tax. -- The tax imposed in subsection (a) of this section
shall be is
five and one-half percent of the gross receipts derived by the taxpayer from furnishing intermediate
care facility services in this state to
the mentally retarded individuals with an intellectual disability.
(c)
Definitions. --
(1) 'Gross receipts' means the amount received or receivable, whether in cash or in kind,
from patients, third-party payors and others for intermediate care facility services furnished by the
provider, including retroactive adjustments under reimbursement agreements with third-party payors,
without any deduction for any expenses of any kind:
Provided, That accrual basis providers
shall
be are allowed to reduce gross receipts by their contractual allowances, to the extent
such
those allowances are included therein, and by bad debts, to the extent the amount of
such those bad
debts was previously included in gross receipts upon which the tax imposed by this section was paid.
(2) 'Contractual allowances' means the difference between revenue (gross receipts) at
established rates and amounts realizable from third-party payors under contractual agreements.
(3) 'Intermediate care facility services for
the mentally retarded individuals with an
intellectual disability' means those services that are intermediate care facility services for
the
mentally retarded individuals with an intellectual disability for purposes of Section 1903(w) of the
Social Security Act.
(d)
Effective date. -- The tax imposed by this section
shall apply applies to gross receipts
received or receivable by providers after May 31, 1993.
§11-27-11. Imposition of tax on providers of nursing facility services, other than services of
intermediate care facilities for individuals with an intellectual disability.
(a)
Imposition of tax. -- For the privilege of engaging or continuing within this state in the
business of providing nursing facility services, other than those services of intermediate care
facilities for
the mentally retarded individuals with an intellectual disability, there is
hereby levied
and shall be collected from every person rendering such service an annual broad-based health care
related tax:
Provided, That hospitals which provide nursing facility services may adjust nursing
facility rates to the extent necessary to compensate for the tax without first obtaining approval from
the health care authority:
Provided, however, That the rate adjustment is limited to a single
adjustment during the initial year of the imposition of the tax which adjustment
shall be is exempt
from prospective review by the health care authority and further which is limited to an amount not
to exceed the amount of the tax which is levied against the hospital for the provision of nursing
facility services pursuant to this section. The health care authority shall retroactively review the rate
increases implemented by the hospitals under this section during the regular rate review process. A
hospital which fails to meet the criteria established by this section for a rate increase exempt from
prospective review
shall be is subject to the penalties imposed under article twenty-nine-b, chapter
sixteen of the code.
(b)
Rate and measure of tax. -- The tax imposed in subsection (a) of this section
shall be is
five and one-half percent of the gross receipts derived by the taxpayer from furnishing nursing
facility services in this state, other than services of intermediate care facilities for
the mentally retarded individuals with an intellectual disability. This rate shall be increased to five and
ninety-five one hundredths percent of the gross receipts received or receivable by providers of
nursing facility services after June 30, 2004 and shall again be decreased to five and one-half percent
of the gross receipts received or receivable by providers of nursing services after October 31, 2007.
(c)
Definitions. --
(1) 'Gross receipts' means the amount received or receivable, whether in cash or in kind,
from patients, third-party payors and others for nursing facility services furnished by the provider,
including retroactive adjustments under reimbursement agreements with third-party payors, without
any deduction for any expenses of any kind:
Provided, That accrual basis providers
shall be are
allowed to reduce gross receipts by their bad debts, to the extent the amount of
such those bad debts
was previously included in gross receipts upon which the tax imposed by this section was paid.
(2) 'Nursing facility services' means those services that are nursing facility services for
purposes of Section 1903(w) of the Social Security Act.
(d)
Effective date. -- The tax imposed by this section
shall apply applies to gross receipts
received or receivable by providers after May 31, 1993.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-4. Proposal of rules by the secretary.
The secretary may propose rules in accordance with the provisions of article three, chapter
twenty-nine-a of this code that are necessary and proper to effectuate the purposes of this chapter.
The secretary may appoint or designate advisory councils of professionals in the areas of hospitals,
nursing homes, barbers and beauticians, postmortem examinations, mental health and
mental
retardation intellectual disability centers and any other areas necessary to advise the secretary on
rules.
The rules may include, but are not limited to, the regulation of:
(a) Land usage endangering the public health:
Provided, That no rules may be promulgated or enforced restricting the subdivision or development of any parcel of land within which the
individual tracts, lots or parcels exceed two acres each in total surface area and which individual
tracts, lots or parcels have an average frontage of not less than one hundred fifty feet even though
the total surface area of the tract, lot or parcel equals or exceeds two acres in total surface area, and
which tracts are sold, leased or utilized only as single-family dwelling units. Notwithstanding the
provisions of this subsection, nothing in this section may be construed to abate the authority of the
department to: (1) Restrict the subdivision or development of a tract for any more intense or higher
density occupancy than a single-family dwelling unit; (2) propose or enforce rules applicable to
single-family dwelling units for single-family dwelling unit sanitary sewerage disposal systems; or
(3) restrict any subdivision or development which might endanger the public health, the sanitary
condition of streams or sources of water supply;
(b) The sanitary condition of all institutions and schools, whether public or private, public
conveyances, dairies, slaughterhouses, workshops, factories, labor camps, all other places open to
the general public and inviting public patronage or public assembly, or tendering to the public any
item for human consumption and places where trades or industries are conducted;
(c) Occupational and industrial health hazards, the sanitary conditions of streams, sources
of water supply, sewerage facilities and plumbing systems and the qualifications of personnel
connected with any of those facilities, without regard to whether the supplies or systems are publicly
or privately owned; and the design of all water systems, plumbing systems, sewerage systems,
sewage treatment plants, excreta disposal methods and swimming pools in this state, whether
publicly or privately owned;
(d) Safe drinking water, including:
(1) The maximum contaminant levels to which all public water systems must conform in
order to prevent adverse effects on the health of individuals and, if appropriate, treatment techniques
that reduce the contaminant or contaminants to a level which will not adversely affect the health of
the consumer. The rule shall contain provisions to protect and prevent contamination of wellheads and well fields used by public water supplies so that contaminants do not reach a level that would
adversely affect the health of the consumer;
(2) The minimum requirements for: Sampling and testing; system operation; public
notification by a public water system on being granted a variance or exemption or upon failure to
comply with specific requirements of this section and rules promulgated under this section; record
keeping; laboratory certification; as well as procedures and conditions for granting variances and
exemptions to public water systems from state public water systems rules; and
(3) The requirements covering the production and distribution of bottled drinking water and
may establish requirements governing the taste, odor, appearance and other consumer acceptability
parameters of drinking water;
(e) Food and drug standards, including cleanliness, proscription of additives, proscription of
sale and other requirements in accordance with article seven of this chapter as are necessary to
protect the health of the citizens of this state;
(f) The training and examination requirements for emergency medical service attendants and
emergency medical care technician-paramedics; the designation of the health care facilities, health
care services and the industries and occupations in the state that must have emergency medical
service attendants and emergency medical care technician-paramedics employed and the availability,
communications and equipment requirements with respect to emergency medical service attendants
and to emergency medical care technician-paramedics:
Provided, That any regulation of emergency
medical service attendants and emergency medical care technician-paramedics may not exceed the
provisions of article four-c of this chapter;
(g) The health and sanitary conditions of establishments commonly referred to as bed and
breakfast inns. For purposes of this article, 'bed and breakfast inn' means an establishment
providing sleeping accommodations and, at a minimum, a breakfast for a fee:
Provided, That the
secretary may not require an owner of a bed and breakfast providing sleeping accommodations of
six or fewer rooms to install a restaurant-style or commercial food service facility:
Provided, however, That the secretary may not require an owner of a bed and breakfast providing sleeping
accommodations of more than six rooms to install a restaurant-type or commercial food service
facility if the entire bed and breakfast inn or those rooms numbering above six are used on an
aggregate of two weeks or less per year;
(h) Fees for services provided by the Bureau for Public Health including, but not limited to,
laboratory service fees, environmental health service fees, health facility fees and permit fees;
(i) The collection of data on health status, the health system and the costs of health care;
(j) Opioid treatment programs duly licensed and operating under the requirements of chapter
twenty-seven of this code. The health care authority shall develop new certificate of need standards,
pursuant to the provisions of article two-d of this chapter, that are specific for opioid treatment
program facilities. No applications for a certificate of need for opioid treatment programs shall be
approved by the health care authority as of the effective date of the 2007 amendments to this
subsection. The secretary shall promulgate revised emergency rules to govern licensed programs:
Provided, That there is a moratorium on the licensure of new opioid treatment programs that do not
have a certificate of need as of the effective date of the 2007 amendments to this subsection, which
shall continue until the Legislature determines that there is a necessity for additional opioid treatment
facilities in West Virginia. The secretary shall file revised emergency rules with the Secretary of
State to regulate opioid programs in compliance with subsections (1) through (9), inclusive, of this
section:
Provided, however, That any opioid treatment program facility that has received a certificate
of need pursuant to article two-d, of this chapter by the health care authority shall be permitted to
proceed to license and operate the facility. All existing opioid treatment programs shall be in
compliance within one hundred eighty days of the effective date of the revised emergency rules as
required herein. The revised emergency rules shall provide at a minimum:
(1) That the initial assessment prior to admission for entry into the opioid treatment program
shall include an initial drug test to determine whether an individual is either opioid addicted or
presently receiving methadone for an opioid addiction from another opioid treatment program. The patient may be admitted to the program if there is a positive test for either opioids or methadone or
there are objective symptoms of withdrawal, or both, and all other criteria set forth in the rule for
admission into an opioid treatment program are met:
Provided, That admission to the program may
be allowed to the following groups with a high risk of relapse without the necessity of a positive test
or the presence of objective symptoms: Pregnant women with a history of opioid abuse, prisoners
or parolees recently released from correctional facilities, former clinic patients who have successfully
completed treatment but who believe themselves to be at risk of imminent relapse and HIV patients
with a history of intravenous drug use.
(2) That within seven days of the admission of a patient, the opioid treatment program shall
complete an initial assessment and an initial plan of care. Subsequently, the opioid treatment
program shall develop a treatment plan of care by the thirtieth day after admission and attach to the
patient's chart no later than five days after such plan is developed. The treatment plan is to reflect
that detoxification is an option for treatment and supported by the program.
(3) That each opioid treatment program shall report and provide statistics to the Department
of Health and Human Resources at least semiannually which includes the total number of patients;
the number of patients who have been continually receiving methadone treatment in excess of two
years, including the total number of months of treatment for each such patient; the state residency
of each patient; the number of patients discharged from the program, including the total months in
the treatment program prior to discharge and whether the discharge was for:
(A) Termination or disqualification;
(B) Completion of a program of detoxification;
(C) Voluntary withdrawal prior to completion of all requirements of detoxification as
determined by the opioid treatment program; or
(D) An unexplained reason.
(4) That random drug testing of patients be conducted during the course of treatment. For
purposes of these rules, random drug testing shall mean that each patient of an opioid treatment program facility has a statistically equal chance of being selected for testing at random and at
unscheduled times. Any refusal to participate in a random drug test shall be considered a positive
test:
Provided, That nothing contained in this section or the legislative rules promulgated in
conformity herewith will preclude any opioid treatment program from administering such additional
drug tests as determined necessary by the opioid treatment program.
(5) That all random drug tests conducted by an opioid treatment program shall, at a
minimum, test for the following:
(A) Opiates, including oxycodone at common levels of dosing;
(B) Methadone and any other medication used by the program as an intervention;
(C) Benzodiazepine including diazepam, lorazepan, clonazepam and alprazolam;
(D) Cocaine;
(E) Methamphetamine or amphetamine; and
(F) Other drugs determined by community standards, regional variation or clinical indication.
A positive test is a test that results in the presence of any drug or substance listed in this
schedule and any other drug or substance prohibited by the opioid treatment program;
(6) That a positive drug test result after the first six months in an opioid treatment program
shall result in the following:
(A) Upon the first positive drug test result, the opioid treatment program shall:
(1) Provide mandatory and documented weekly counseling to the patient, which shall include
weekly meetings with a counselor who is licensed, certified or enrolled in the process of obtaining
licensure or certification in compliance with the rules and on staff at the opioid treatment program;
(2) Immediately revoke the take home methadone privilege for a minimum of thirty days; and
(B) Upon a second positive drug test result within six months of a previous positive drug test
result, the opioid treatment program shall:
(1) Provide mandatory and documented weekly counseling, which shall include weekly
meetings with a counselor who is licensed, certified or enrolled in the process of obtaining licensure or certification in compliance with the rules and on staff at the opioid treatment program;
(2) Immediately revoke the take-home methadone privilege for a minimum of sixty days; and
(3) Provide mandatory documented treatment team meetings with the patient.
(C) Upon a third positive drug test result within a period of six months the opioid treatment
program shall:
(1) Provide mandatory and documented weekly counseling, which shall include weekly
meetings with a counselor who is licensed, certified or enrolled in the process of obtaining licensure
or certification in compliance with the rules and on staff at the opioid treatment program;
(2) Immediately revoke the take-home methadone privilege for a minimum of one hundred
twenty days; and
(3) Provide mandatory and documented treatment team meetings with the patient which will
include, at a minimum: The need for continuing treatment; a discussion of other treatment
alternatives; and the execution of a contract with the patient advising the patient of discharge for
continued positive drug tests.
(D) Upon a fourth positive drug test within a six-month period, the patient shall be
immediately discharged from the opioid treatment program or, at the option of the patient, shall
immediately be provided the opportunity to participate in a twenty-one day detoxification plan,
followed by immediate discharge from the opioid treatment program.
(7) That the opioid treatment program must report and provide statistics to the Department
of Health and Human Resources demonstrating compliance with the random drug test rules including
confirmation that:
(A) The random drug tests were truly random in regard to both the patients tested and to the
times random drug tests were administered by lottery or some other objective standard so as not to
prejudice or protect any particular patient.
(B) The total number and the number of positive results; and
(C) The number of expulsions from the program.
(8) That all opioid treatment facilities be open for business seven days per week:
Provided,
That the opioid treatment center may be closed for eight holidays and two training days per year.
(9) That the Office of Health Facility Licensure and Certification develop policies and
procedures in conjunction with the Board of Pharmacy that will allow access to the Prescription
Drug Registry maintained by the Board of Pharmacy before administration of methadone or other
treatment in an opioid treatment program, after any positive drug test, and at each ninety-day
treatment review to ensure the patient is not seeking prescription medication from multiple sources.
(k) The secretary shall propose a rule for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a
or of this code for the distribution of state aid to
local health departments and basic public health services funds.
(1) The rule shall include the following provisions:
(A) Base allocation amount for each county;
(B) Establishment and administration of an emergency fund of no more than two percent of
the total annual funds of which unused amounts are to be distributed back to local boards of health
at the end of each fiscal year;
(C) A calculation of funds utilized for state support of local health departments;
(D) Distribution of remaining funds on a per capita weighted population approach which
factors coefficients for poverty, health status, population density and health department interventions
for each county and a coefficient which encourages counties to merge in the provision of public
health services;
(E) A hold-harmless provision to provide that each local health department receives no less
in state support for a period of three years beginning in the 2009 budget year.
(2) The Legislature finds that an emergency exists and, therefore, the secretary shall file an
emergency rule to implement the provisions of this section pursuant to the provisions of section
fifteen, article three, chapter twenty-nine-a of this code. The emergency rule is subject to the prior
approval of the Legislative Oversight Commission on Health and Human Resources Accountability prior to filing with the Secretary of State.
(l) Other health-related matters which the department is authorized to supervise and for which
the rule-making authority has not been otherwise assigned.
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-2. Definitions.
Definitions of words and terms defined in articles five-f and twenty-nine-b of this chapter
are incorporated in this section unless this section has different definitions.
As used in this article, unless otherwise indicated by the context:
(a) 'Affected person' means:
(1) The applicant;
(2) An agency or organization representing consumers;
(3) Any individual residing within the geographic area served or to be served by the
applicant;
(4) Any individual who regularly uses the health care facilities within that geographic area;
(5) The health care facilities which provide services similar to the services of the facility
under review and which will be significantly affected by the proposed project;
(6) The health care facilities which,
prior to before receipt by the state agency of the proposal
being reviewed, have formally indicated an intention to provide similar services in the future;
(7) Third-party payors who reimburse health care facilities similar to those proposed for
services;
(8) Any agency that establishes rates for health care facilities similar to those proposed; or
(9) Organizations representing health care providers.
(b) 'Ambulatory health care facility' means a free-standing facility that provides health care
to noninstitutionalized and nonhomebound persons on an outpatient basis. For purposes of this
definition, a free-standing facility is not located on the campus of an existing health care facility.
This definition does not include any facility engaged solely in the provision of lithotripsy services or the private office practice of any one or more health professionals licensed to practice in this state
pursuant to the provisions of chapter thirty of this code:
Provided, That this exemption from review
shall may not be construed to include practices where major medical equipment otherwise subject
to review under the provisions of this article is acquired, offered or developed
: Provided, however,
That this exemption from review
shall may not be construed to include certain health services
otherwise subject to review under the provisions of subdivision (1), subsection (a), section four of
this article.
(c) 'Ambulatory surgical facility' means a free-standing facility that provides surgical
treatment to patients not requiring hospitalization. For purposes of this definition, a free-standing
facility is not physically attached to a health care facility. This definition does not include the private
office practice of any one or more health professionals licensed to practice surgery in this state
pursuant to the provisions of chapter thirty of this code:
Provided, That this exemption from review
shall may not be construed to include practices where major medical equipment otherwise subject
to review under the provisions of this article is acquired, offered or developed:
Provided, however,
That this exemption from review
shall may not be construed to include health services otherwise
subject to review under the provisions of subdivision (1), subsection (a), section four of this article.
(d) 'Applicant' means: (1) The governing body or the person proposing a new institutional
health service who is, or will be, the health care facility licensee wherein the new institutional health
service is proposed to be located; and (2) in the case of a proposed new institutional health service
not to be located in a licensed health care facility, the governing body or the person proposing to
provide the new institutional health service. Incorporators or promoters who will not constitute the
governing body or persons responsible for the new institutional health service may not be an
applicant.
(e) 'Bed capacity' means the number of beds licensed to a health care facility or the number
of adult and pediatric beds permanently staffed and maintained for immediate use by inpatients in
patient rooms or wards in an unlicensed facility.
(f) 'Campus' means the adjacent grounds and buildings, or grounds and buildings not
separated by more than a public right-of-way, of a health care facility.
(g) 'Capital expenditure' means:
(1) An expenditure made by or on behalf of a health care facility, which:
(A) (I) Under generally accepted accounting principles is not properly chargeable as an
expense of operation and maintenance; or (ii) is made to obtain either by lease or comparable
arrangement any facility or part thereof or any equipment for a facility or part; and
(B) (I) Exceeds the expenditure minimum; or (ii) is a substantial change to the bed capacity
of the facility with respect to which the expenditure is made; or (iii) is a substantial change to the
services of such facility;
(2) The donation of equipment or facilities to a health care facility, which if acquired directly
by that facility would be subject to review;
(3) The transfer of equipment or facilities for less than fair market value if the transfer of the
equipment or facilities at fair market value would be subject to review; or
(4) A series of expenditures, if the sum total exceeds the expenditure minimum and if
determined by the state agency to be a single capital expenditure subject to review. In making this
determination, the state agency shall consider: Whether the expenditures are for components of a
system which is required to accomplish a single purpose; whether the expenditures are to be made
over a two-year period and are directed towards the accomplishment of a single goal within the
health care facility's long-range plan; or whether the expenditures are to be made within a two-year
period within a single department such that they will constitute a significant modernization of the
department.
(h) 'Expenditure minimum' means $2,700,000 for the calendar year 2009. The state agency
shall adjust the expenditure minimum annually and publish an update of the amount on or before
December 31 of each year. The expenditure minimum adjustment shall be based on the DRI
inflation index published in the
Global Insight DRI/WEFA Health Care Cost Review, or its successor or appropriate replacement index. This amount shall include the cost of any studies, surveys,
designs, plans, working drawings, specifications and other activities, including staff effort and
consulting and other services essential to the acquisition, improvement, expansion or replacement
of any plant or equipment.
(I) 'Health', used as a term, includes physical and mental health.
(j) 'Health care facility' means a publicly or privately owned facility, agency or entity that
offers or provides health care services, whether a for-profit or nonprofit entity and whether or not
licensed, or required to be licensed, in whole or in part, and includes, but is not limited to, hospitals;
skilled nursing facilities; kidney disease treatment centers, including free-standing hemodialysis
units; intermediate care facilities; ambulatory health care facilities; ambulatory surgical facilities;
home health agencies; hospice agencies; rehabilitation facilities; health maintenance organizations;
and community mental health and
mental retardation intellectual disability facilities. For purposes
of this definition, 'community mental health and
mental retardation intellectual disability facility'
means a private facility which provides such comprehensive services and continuity of care as
emergency, outpatient, partial hospitalization, inpatient or consultation and education for individuals
with mental illness,
mental retardation intellectual disability or drug or alcohol addiction.
(k) 'Health care provider' means a person, partnership, corporation, facility, hospital or
institution licensed or certified or authorized by law to provide professional health care service in
this state to an individual during that individual's medical, remedial or behavioral health care,
treatment or confinement.
(l) 'Health maintenance organization' means a public or private organization which:
(1) Is required to have a certificate of authority to operate in this state pursuant to section
three, article twenty-five-a, chapter thirty-three of this code; or
(2) (A) Provides or otherwise makes available to enrolled participants health care services,
including substantially the following basic health care services: Usual physician services,
hospitalization, laboratory, X ray, emergency and preventive services and out-of-area coverage;
(B) Is compensated except for copayments for the provision of the basic health care services
listed in paragraph (A) of this subdivision to enrolled participants on a predetermined periodic rate
basis without regard to the date the health care services are provided and which is fixed without
regard to the frequency, extent or kind of health service actually provided; and
(C) Provides physicians' services: (i) Directly through physicians who are either employees
or partners of the organization; or (ii) through arrangements with individual physicians or one or
more groups of physicians organized on a group practice or individual practice basis.
(m) 'Health services' means clinically related preventive, diagnostic, treatment or
rehabilitative services, including alcohol, drug abuse and mental health services.
(n) 'Home health agency' means an organization primarily engaged in providing professional
nursing services either directly or through contract arrangements and at least one of the following
services: Home health aide services, other therapeutic services, physical therapy, speech therapy,
occupational therapy, nutritional services or medical social services to persons in their place of
residence on a part-time or intermittent basis.
(o) 'Hospice agency' means a private or public agency or organization licensed in West
Virginia for the administration or provision of hospice care services to terminally ill persons in the
persons' temporary or permanent residences by using an interdisciplinary team, including, at a
minimum, persons qualified to perform nursing services; social work services; the general practice
of medicine or osteopathy; and pastoral or spiritual counseling.
(p) 'Hospital' means a facility licensed as such pursuant to the provisions of article five-b of
this chapter, and any acute care facility operated by the state government, that primarily provides
inpatient diagnostic, treatment or rehabilitative services to injured, disabled or sick persons under
the supervision of physicians and includes psychiatric and tuberculosis hospitals.
(q) 'Intermediate care facility' means an institution that provides health-related services to
individuals with mental or physical conditions that require services above the level of room and
board, but do not require the degree of services provided in a hospital or skilled-nursing facility.
(r) 'Long-range plan' means a document formally adopted by the legally constituted
governing body of an existing health care facility or by a person proposing a new institutional health
service which contains the information required by the state agency in rules adopted pursuant to
section eight of this article.
(s) 'Major medical equipment' means a single unit of medical equipment or a single system
of components with related functions which is used for the provision of medical and other health
services and costs in excess of $2,700,000 in the calendar year 2009. The state agency shall adjust
the dollar amount specified in this subsection annually and publish an update of the amount on or
before December 31 of each year. The adjustment of the dollar amount shall be based on the DRI
inflation index published in the
Global Insight DRI/WEFA Health Care Cost Review or its successor
or appropriate replacement index. This term does not include medical equipment acquired by or on
behalf of a clinical laboratory to provide clinical laboratory services if the clinical laboratory is
independent of a physician's office and a hospital and it has been determined under Title XVIII of
the Social Security Act to meet the requirements of paragraphs ten and eleven, Section 1861(s) of
such act, Title 42 U.S.C. §1395x. In determining whether medical equipment is major medical
equipment, the cost of studies, surveys, designs, plans, working drawings, specifications and other
activities essential to the acquisition of such equipment shall be included. If the equipment is
acquired for less than fair market value, the term 'cost' includes the fair market value.
(t) 'Medically underserved population' means the population of an area designated by the
state agency as having a shortage of personal health services. The state agency may consider unusual
local conditions that are a barrier to accessibility or availability of health services. The designation
shall be in rules adopted by the state agency pursuant to section eight of this article, and the
population so designated may include the state's medically underserved population designated by the
federal Secretary of Health and Human Services under Section 330(b)(3) of the Public Health
Service Act, as amended, Title 42 U.S.C. §254.
(u) 'New institutional health service' means any service as described in section three of this article.
(v) 'Nonhealth-related project' means a capital expenditure for the benefit of patients,
visitors, staff or employees of a health care facility and not directly related to preventive, diagnostic,
treatment or rehabilitative services offered by the health care facility. This includes, but is not
limited to, chapels, gift shops, news stands, computer and information technology systems,
educational, conference and meeting facilities, but excluding medical school facilities, student
housing, dining areas, administration and volunteer offices, modernization of structural components,
boiler repair or replacement, vehicle maintenance and storage facilities, parking facilities,
mechanical systems for heating, ventilation systems, air conditioning systems and loading docks.
(w) 'Offer', when used in connection with health services, means that the health care facility
or health maintenance organization holds itself out as capable of providing, or as having the means
to provide, specified health services.
(x) 'Person' means an individual, trust, estate, partnership, committee, corporation,
association and other organizations such as joint-stock companies and insurance companies, a state
or a political subdivision or instrumentality thereof or any legal entity recognized by the state.
(y) 'Physician' means a doctor of medicine or osteopathy legally authorized to practice by
the state.
(z) 'Proposed new institutional health service' means any service as described in section three
of this article.
(aa) 'Psychiatric hospital' means an institution that primarily provides to inpatients, by or
under the supervision of a physician, specialized services for the diagnosis, treatment and
rehabilitation of mentally ill and emotionally disturbed persons.
(bb) 'Rehabilitation facility' means an inpatient facility operated for the primary purpose of
assisting in the rehabilitation of disabled persons through an integrated program of medical and other
services which are provided under competent professional supervision.
(cc) 'Review agency' means an agency of the state, designated by the Governor as the agency for the review of state agency decisions.
(dd) 'Skilled nursing facility' means an institution, or a distinct part of an institution, that
primarily provides inpatient skilled nursing care and related services, or rehabilitation services, to
injured, disabled or sick persons.
(ee) 'State agency' means the Health Care Authority created, established and continued
pursuant to article twenty-nine-b of this chapter.
(ff) 'State health plan' means the document approved by the Governor after preparation by
the former statewide health coordinating council or that document as approved by the Governor after
amendment by the former health care planning council or the state agency.
(gg) 'Substantial change to the bed capacity' of a health care facility means any change,
associated with a capital expenditure, that increases or decreases the bed capacity or relocates beds
from one physical facility or site to another, but does not include a change by which a health care
facility reassigns existing beds as swing beds between acute care and long-term care categories
:
Provided, That a decrease in bed capacity in response to federal rural health initiatives is excluded
from this definition.
(hh) 'Substantial change to the health services' of a health care facility means: (1) The
addition of a health service offered by or on behalf of the health care facility which was not offered
by or on behalf of the facility within the twelve-month period before the month in which the service
is first offered; or (2) the termination of a health service offered by or on behalf of the facility:
Provided, That 'substantial change to the health services' does not include the providing of
ambulance service, wellness centers or programs, adult day care or respite care by acute care
facilities.
(ii) 'To develop', when used in connection with health services, means to undertake those
activities which upon their completion will result in the offer of a new institutional health service
or the incurring of a financial obligation in relation to the offering of such a service.
§16-2D-5. Powers and duties of state agency.
(a) The state agency shall administer the certificate of need program as provided by this
article.
(b) The state agency is responsible for coordinating and developing the health planning
research efforts of the state and for amending and modifying the state health plan which includes the
certificate of need standards. The state agency shall review the state health plan, including the
certificate of need standards and make any necessary amendments and modifications. The state
agency shall also review the cost effectiveness of the certificate of need program. The state agency
may form task forces to assist it in addressing these issues. The task forces shall be composed of
representatives of consumers, business, providers, payers and state agencies.
(c) The state agency may seek advice and assistance of other persons, organizations and other
state agencies in the performance of the state agency's responsibilities under this article.
(d) For health services for which competition appropriately allocates supply consistent with
the state health plan, the state agency shall, in the performance of its functions under this article, give
priority, where appropriate to advance the purposes of quality assurance, cost effectiveness and
access, to actions which would strengthen the effect of competition on the supply of the services.
(e) For health services for which competition does not or will not appropriately allocate
supply consistent with the state health plan, the state agency shall, in the exercise of its functions
under this article, take actions, where appropriate to advance the purposes of quality assurance, cost
effectiveness and access and the other purposes of this article, to allocate the supply of the services.
(f) Notwithstanding the provisions of section seven of this article, the state agency may
charge a fee for the filing of any application, the filing of any notice in lieu of an application, the
filing of any exemption determination request or the filing of any request for a declaratory ruling.
The fees charged may vary according to the type of matter involved, the type of health service or
facility involved or the amount of capital expenditure involved:
Provided, That any fee charged
pursuant to this subsection may not exceed a dollar amount to be established by procedural rule. The
state agency shall evaluate and amend any procedural rule promulgated prior to the amendments to this subsection made during the 2009 regular session of the Legislature. The fees charged shall be
deposited into a special fund known as the Certificate of Need Program Fund to be expended for the
purposes of this article.
(g) A hospital, nursing home or other health care facility may not add any intermediate care
or skilled nursing beds to its current licensed bed complement. This prohibition also applies to the
conversion of acute care or other types of beds to intermediate care or skilled nursing beds:
Provided, That hospitals eligible under the provisions of section four-a of this article and subsection
(I) of this section may convert acute care beds to skilled nursing beds in accordance with the
provisions of these sections, upon approval by the state agency. Furthermore, a certificate of need
may not be granted for the construction or addition of any intermediate care or skilled nursing beds
except in the case of facilities designed to replace existing beds in unsafe existing facilities. A health
care facility in receipt of a certificate of need for the construction or addition of intermediate care
or skilled nursing beds which was approved prior to the effective date of this section shall incur an
obligation for a capital expenditure within twelve months of the date of issuance of the certificate
of need. Extensions may not be granted beyond the twelve-month period. The state agency shall
establish a task force or utilize an existing task force to study the need for additional nursing facility
beds in this state. The study shall include a review of the current moratorium on the development
of nursing facility beds; the exemption for the conversion of acute care beds to skilled nursing
facility beds; the development of a methodology to assess the need for additional nursing facility
beds; and certification of new beds both by Medicare and Medicaid. The task force shall be
composed of representatives of consumers, business, providers, payers and government agencies.
(h) No additional intermediate care facility for
the mentally retarded individuals with an
intellectual disability(ICF/
MR ID) beds
shall may be granted a certificate of need, except that
prohibition does not apply to ICF/MR beds approved under the Kanawha County Circuit Court order
of August 3, 1989, civil action number MISC-81-585 issued in the case of E. H. v. Matin, 168 W.
Va. 248, 284 S.E. 2d 232 (1981).
(I) Notwithstanding the provisions of subsection (g) of this section and further
notwithstanding the provisions of subsection (b), section three of this article, an existing acute care
hospital may apply to the Health Care Authority for a certificate of need to convert acute care beds
to skilled nursing beds:
Provided, That the proposed skilled nursing beds are Medicare-certified
only
: Provided, however, That any hospital which converts acute care beds to Medicare-certified
only skilled nursing beds shall not bill for any Medicaid reimbursement for any converted beds. In
converting beds, the hospital shall convert a minimum of one acute care bed into one Medicare-
certified only skilled nursing bed. The Health Care Authority may require a hospital to convert up
to and including three acute care beds for each Medicare-certified only skilled nursing bed:
Provided
further, That a hospital designated or provisionally designated by the state agency as a rural primary
care hospital may convert up to thirty beds to a distinct-part nursing facility, including skilled nursing
beds and intermediate care beds, on a one-for-one basis if the rural primary care hospital is located
in a county without a certified freestanding nursing facility and the hospital may bill for Medicaid
reimbursement for the converted beds:
And provided further, That if the hospital rejects the
designation as a rural primary care hospital, then the hospital may not bill for Medicaid
reimbursement. The Health Care Authority shall adopt rules to implement this subsection which
require that:
(1) All acute care beds converted shall be permanently deleted from the hospital's acute care
bed complement and the hospital may not thereafter add, by conversion or otherwise, acute care beds
to its bed complement without satisfying the requirements of subsection (b), section three of this
article for which purposes an addition, whether by conversion or otherwise, shall be considered a
substantial change to the bed capacity of the hospital notwithstanding the definition of that term
found in subsection (ff), section two of this article.
(2) The hospital shall meet all federal and state licensing certification and operational
requirements applicable to nursing homes including a requirement that all skilled care beds created
under this subsection shall be located in distinct-part, long-term care units.
(3) The hospital shall demonstrate a need for the project.
(4) The hospital shall use existing space for the Medicare-certified only skilled nursing beds.
Under no circumstances shall the hospital construct, lease or acquire additional space for purposes
of this section.
(5) The hospital shall notify the acute care patient, prior to discharge, of facilities with skilled
nursing beds which are located in or near the patient's county of residence. Nothing in this
subsection negatively affects the rights of inspection and certification which are otherwise required
by federal law or regulations or by this code or duly adopted rules of an authorized state entity.
(j) (1) Notwithstanding the provisions of subsection (g) of this section, a retirement life care
center with no skilled nursing beds may apply to the Health Care Authority for a certificate of need
for up to sixty skilled nursing beds provided the proposed skilled beds are Medicare-certified only.
On a statewide basis, a maximum of one hundred eighty skilled beds which are Medicare-certified
only may be developed pursuant to this subsection. The state health plan is not applicable to projects
submitted under this subsection. The Health Care Authority shall adopt rules to implement this
subsection which shall include a requirement that:
(A) The one hundred eighty beds are to be distributed on a statewide basis;
(B) There be a minimum of twenty beds and a maximum of sixty beds in each approved unit;
(C) The unit developed by the retirement life care center meets all federal and state licensing
certification and operational requirements applicable to nursing homes;
(D) The retirement center demonstrates a need for the project;
(E) The retirement center offers personal care, home health services and other lower levels
of care to its residents; and
(F) The retirement center demonstrates both short- and long-term financial feasibility.
(2) Nothing in this subsection negatively affects the rights of inspection and certification
which are otherwise required by federal law or regulations or by this code or duly adopted rules of
an authorized state entity.
(k) The state agency may order a moratorium upon the offering or development of a new
institutional health service when criteria and guidelines for evaluating the need for the new
institutional health service have not yet been adopted or are obsolete. The state agency may also
order a moratorium on the offering or development of a health service, notwithstanding the
provisions of subdivision (5), subsection (b), section three of this article, when it determines that the
proliferation of the service may cause an adverse impact on the cost of health care or the health status
of the public. A moratorium shall be declared by a written order which shall detail the circumstances
requiring the moratorium. Upon the adoption of criteria for evaluating the need for the health service
affected by the moratorium, or one hundred eighty days from the declaration of a moratorium,
whichever is less, the moratorium shall be declared to be over and applications for certificates of
need are processed pursuant to section six of this article.
(l) (1) The state agency shall coordinate the collection of information needed to allow the
state agency to develop recommended modifications to certificate of need standards as required in
this article. When the state agency proposes amendments or modifications to the certificate of need
standards, it shall file with the Secretary of State, for publication in the State Register, a notice of
proposed action, including the text of all proposed amendments and modifications, and a date, time
and place for receipt of general public comment. To comply with the public comment requirement
of this section, the state agency may hold a public hearing or schedule a public comment period for
the receipt of written statements or documents.
(2) When amending and modifying the certificate of need standards, the state agency shall
identify relevant criteria contained in section six of this article or rules adopted pursuant to section
eight of this article and apply those relevant criteria to the proposed new institutional health service
in a manner that promotes the public policy goals and legislative findings contained in section one
of this article. In doing so, the state agency may consult with or rely upon learned treatises in health
planning, recommendations and practices of other health planning agencies and organizations,
recommendations from consumers, recommendations from health care providers, recommendations from third-party payors, materials reflecting the standard of care, the state agency's own developed
expertise in health planning, data accumulated by the state agency or other local, state or federal
agency or organization and any other source deemed relevant to the certificate of need standards
proposed for amendment or modification.
(3) All proposed amendments and modifications to the certificate of need standards, with a
record of the public hearing or written statements and documents received pursuant to a public
comment period, shall be presented to the Governor. Within thirty days of receiving the proposed
amendments or modifications, the Governor shall either approve or disapprove all or part of the
amendments and modifications and, for any portion of amendments or modifications not approved,
shall specify the reason or reasons for nonapproval. Any portions of the amendments or
modifications not approved by the Governor may be revised and resubmitted.
(4) The certificate of need standards adopted pursuant to this section which are applicable
to the provisions of this article are not subject to article three, chapter twenty-nine-a of this code.
The state agency shall follow the provisions set forth in this subsection for giving notice to the public
of its actions, holding hearings or receiving comments on the certificate of need standards. The
certificate of need standards in effect on November 29, 2005, and all prior versions promulgated and
adopted in accordance with the provisions of this section are and have been in full force and effect
from each of their respective dates of approval by the Governor.
(m) The state agency may exempt from or expedite rate review, certificate of need and annual
assessment requirements and issue grants and loans to financially vulnerable health care facilities
located in underserved areas that the state agency and the Office of Community and Rural Health
Services determine are collaborating with other providers in the service area to provide cost effective
health care services.
ARTICLE 5F. HEALTH CARE FINANCIAL DISCLOSURE.
§16-5F-2. Definitions.
As used in this article:
(1) 'Annual report' means an annual financial report for the covered facility's or related
organization's fiscal year prepared by an accountant or the covered facility's or related organization's
Auditor.
(2) 'Board' means the West Virginia Health Care
cost review Authority.
(3) 'Covered facility' means any hospital, skilled nursing facility, kidney disease treatment
center, including a free-standing hemodialysis unit; intermediate care facility; ambulatory health care
facility; ambulatory surgical facility; home health agency; hospice agency; rehabilitation facility;
health maintenance organization; or community mental health or
mental retardation intellectual
disability facility, whether under public or private ownership or as a profit or nonprofit organization
and whether or not licensed or required to be licensed, in whole or in part, by the state:
Provided,
That nonprofit, community-based primary care centers providing primary care services without
regard to ability to pay which provide the board with a year-end audited financial statement prepared
in accordance with generally accepted auditing standards and with governmental auditing standards
issued by the Comptroller General of the United States shall be deemed to have complied with the
disclosure requirements of this section.
(4) 'Related organization' means an organization, whether publicly owned, nonprofit,
tax-exempt or for profit, related to a covered facility through common membership, governing
bodies, trustees, officers, stock ownership, family members, partners or limited partners, including,
but not limited to, subsidiaries, foundations, related corporations and joint ventures. For the
purposes of this subdivision 'family members' shall mean brothers and sisters whether by the whole
or half blood, spouse, ancestors and lineal descendants.
(5) 'Rates' means all rates, fees or charges imposed by any covered facility for health care
services.
(6) 'Records' includes accounts, books, charts, contracts, documents, files, maps, papers,
profiles, reports, annual and otherwise, schedules and any other fiscal data, however recorded or
stored.
ARTICLE 5O. MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL.
§16-5O-2. Definitions.
As used in this article, unless a different meaning appears from the context, the following
definitions apply:
(a) 'Administration of medication' means:
(1) Assisting a person in the ingestion, application or inhalation of medications, including
prescription drugs, or in the use of universal precautions or rectal or vaginal insertion of medication,
according to the legibly written or printed directions of the attending physician or authorized
practitioner, or as written on the prescription label; and
(2) Making a written record of such assistance with regard to each medication administered,
including the time, route and amount taken
: Provided, That for purposes of this article,
'administration' does not include judgment, evaluation, assessments, injections of medication,
monitoring of medication or self-administration of medications, including prescription drugs and
self-injection of medication by the resident.
(b) 'Authorizing agency' means the department's Office of Health Facility Licensure and
Certification.
(c) 'Department' means the Department of Health and Human Resources.
(d) 'Facility' means an
ICF/MR,
ICF/ID a personal care home, residential board and care
home, behavioral health group home, private residence in which health care services are provided
under the supervision of a registered nurse or an adult family care home that is licensed by or
approved by the department.
(e) 'Facility staff member' means an individual employed by a facility but does not include
a health care professional acting within the scope of a professional license or certificate.
(f) 'Health care professional' means a medical doctor or doctor of osteopathy, a podiatrist,
registered nurse, practical nurse, registered nurse practitioner, physician's assistant, dentist,
optometrist or respiratory care professional licensed under chapter thirty of this code.
(g)
ICF/MR 'ICF-ID' means an intermediate care facility for
the mentally retarded
individuals with an intellectual disability which is certified by the department.
(h) 'Medication' means a drug, as defined in section one hundred one, article one, chapter
sixty-a of this code, which has been prescribed by a duly authorized health care professional to be
ingested through the mouth, applied to the outer skin, eye or ear, or applied through nose drops,
vaginal or rectal suppositories.
(i) 'Registered professional nurse' means a person who holds a valid license pursuant to
article seven, chapter thirty of this code.
(j) 'Resident' means a resident of a facility.
(k) 'Secretary' means the Secretary of the Department of Health and Human Resources or
his or her designee.
(l) 'Self-administration of medication' means the act of a resident, who is independently
capable of reading and understanding the labels of drugs ordered by a physician, in opening and
accessing prepackaged drug containers, accurately identifying and taking the correct dosage of the
drugs as ordered by the physician, at the correct time and under the correct circumstances.
(m) 'Supervision of self-administration of medication' means a personal service which
includes reminding residents to take medications, opening medication containers for residents,
reading the medication label to residents, observing residents while they take medication, checking
the self administered dosage against the label on the container and reassuring residents that they have
obtained and are taking the dosage as prescribed.
ARTICLE 22. DETECTION AND CONTROL OF PHENYLKETONURIA,
GALACTOSEMIA, HYPOTHYROIDISM, AND CERTAIN
OTHER DISEASES IN NEWBORN CHILDREN.
§16-22-1. Findings.
The Legislature finds that phenylketonuria, galactosemia, hypothyroidism, and certain other
diseases are usually associated with
mental retardation intellectual disability or other severe health hazards. Laboratory tests are readily available to aid in the detection of these diseases and hazards
to the health of those suffering
thereof from these diseases may be lessened or prevented by early
detection and treatment. Damage from these diseases, if untreated in the early months of life, is
usually rapid and not appreciably affected by treatment.
§16-22-2. Program to combat intellectual disability or other severe health hazards; rules;
facilities for making tests.
The State Bureau of Public Health is
hereby authorized to establish and carry out a program
designed to combat
mental retardation intellectual disability or other severe health hazards in our
state's population due to phenylketonuria, galactosemia, hypothyroidism, and certain other diseases
specified by the state Public Health Commissioner, and may adopt reasonable rules and regulations
necessary to carry out such a program. The Bureau of Public Health shall establish and maintain
facilities at its state hygienic laboratory for testing specimens for the detection of phenylketonuria,
galactosemia, hypothyroidism, and certain other diseases specified by the state Public Health
Commissioner. Tests shall be made by such laboratory of specimens upon request by physicians,
hospital medical personnel and other individuals attending newborn infants. The state Bureau of
Public Health is authorized to establish additional laboratories throughout the state to perform tests
for the detection of phenylketonuria, galactosemia, hypothyroidism, and certain other diseases
specified by the state Public Health Commissioner.
ARTICLE 29A. WEST VIRGINIA HOSPITAL FINANCE AUTHORITY ACT.
§16-29A-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) 'Authority' means the West Virginia Hospital Finance Authority created by section four
of this article, the duties, powers, responsibilities and functions of which are specified in this article;
(2) 'Board' means the West Virginia Hospital Finance Board created by section four of this
article, which shall manage and control the authority;
(3) 'Bond' means a revenue bond issued by the authority to effect the purposes of this article;
(4) 'Construction' means and includes new construction, reconstruction, enlargement,
improvement and providing furnishings or equipment;
(5) 'Direct provider of health care' means a person or organization whose primary current
activity is the provision of health care to individuals and includes a licensed or certified physician,
osteopath, dentist, nurse, podiatrist or physician's assistant or an organization comprised of these
health professionals or employing these health professionals;
(6) 'Hospital' means a corporation, association, institution or establishment for the care of
those who require medical treatment, which may be a public or private corporation or association,
or state-owned or operated establishment and specifically includes nursing homes which are licensed
under chapter sixteen of this code or those facilities certified under the Social Security Act as
intermediate care facilities for
the mentally retarded individuals with an intellectual disability;
(7) 'Hospital facilities' means any real or personal property suitable and intended for, or
incidental or ancillary to, use by a hospital and includes: Outpatient clinics; laboratories; laundries;
nurses', doctors' or interns' residences; administration buildings; facilities for research directly
involved with hospital care; maintenance, storage or utility facilities; parking lots and garages; and
all necessary, useful or related equipment, furnishings and appurtenances and all lands necessary or
convenient as a site for the foregoing and specifically includes any capital improvements to any of
the foregoing. 'Hospital facilities' specifically includes office facilities not less than eighty percent
of which are intended for lease to direct providers of health care and which are geographically or
functionally related to one or more other hospital facilities, if the authority determines that the
financing of the office facilities is necessary to accomplish the purposes of this article;
(8) 'Hospital loan' means a loan made by the authority to a hospital and specifically includes
financings by the authority for hospital facilities pursuant to lease-purchase agreements, installment
sale or other similar agreements;
(9) 'Note' means a short-term promise to pay a specified amount of money, payable and
secured as provided pursuant to this article and issued by the authority to effect the purposes of this article;
(10) 'Project costs' means the total of the reasonable or necessary costs incurred for carrying
out the works and undertakings for the acquisition or construction of hospital facilities under this
article. 'Project costs' includes, but is not limited to, all of the following costs: The costs of
acquisition or construction of the hospital facilities; studies and surveys; plans, specifications,
architectural and engineering services; legal, organization, marketing or other special services;
financing, acquisition, demolition, construction, equipping and site development of new and
rehabilitated buildings; rehabilitation, reconstruction, repair or remodeling of existing buildings;
interest and carrying charges during construction and before full earnings are achieved and operating
expenses before full earnings are achieved or a period of one year following the completion of
construction, whichever occurs first; and a reasonable reserve for payment of principal of and interest
on bonds or notes of the authority. 'Project costs' shall also include reimbursement of a hospital for
the foregoing costs expended by a hospital from its own funds or from money borrowed by the
hospital for such purposes before issuance and delivery of bonds or notes by the authority for the
purpose of providing funds to pay the project costs. 'Project costs' also specifically includes the
refinancing of any existing debt of a hospital necessary in order to permit the hospital to borrow from
the authority and give adequate security for the hospital loan. The determination of the authority
with respect to the necessity of refinancing and adequate security for a hospital loan is conclusive;
(11) 'Revenue' means any money or thing of value collected by, or paid to, the authority as
principal of or interest, charges or other fees on hospital loans or any other collections on hospital
loans made by the authority to hospitals to finance, in whole or in part, the acquisition or
construction of any hospital facilities or other money or property which is received and may be
expended for or pledged as revenues pursuant to this article;
(12) 'Veterans skilled nursing facility' means a skilled nursing care facility constructed and
operated to serve the needs of veterans of the Armed Forces of the United States who are citizens
of this state.
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-7. Determination of incapacity.
(a) For the purposes of this article, a person may not be presumed to be incapacitated merely
by reason of advanced age or disability. With respect to a person who has a diagnosis of mental
illness or
mental retardation intellectual disability, such a diagnosis is not a presumption that the
person is incapacitated. A determination that a person is incapacitated shall be made by the
attending physician, a qualified physician, a qualified psychologist or an advanced nurse practitioner
who has personally examined the person.
(b) The determination of incapacity shall be recorded contemporaneously in the person's
medical record by the attending physician, a qualified physician, advanced nurse practitioner or a
qualified psychologist. The recording shall state the basis for the determination of incapacity,
including the cause, nature and expected duration of the person's incapacity, if these are known.
(c) If the person is conscious, the attending physician shall inform the person that he or she
has been determined to be incapacitated and that a medical power of attorney representative or
surrogate decision maker may be making decisions regarding life-prolonging intervention or mental
health treatment for the person.
§16-30-24. Need for a second opinion regarding incapacity for persons with psychiatric
mental illness, intellectual disability or addiction.
For persons with psychiatric mental illness,
mental retardation intellectual disability or
addiction who have been determined by their attending physician or a qualified physician to be
incapacitated, a second opinion by a qualified physician or qualified psychologist that the person is
incapacitated is required before the attending physician is authorized to select a surrogate. The
requirement for a second opinion
shall does not apply in those instances in which the medical
treatment to be rendered is not for the person's psychiatric mental illness.
CHAPTER 27. MENTALLY ILL PERSONS.
ARTICLE 1. WORDS AND PHRASES DEFINED.
§27-1-3. Intellectual disability.
'
Mental retardation Intellectual disability' means significantly subaverage intellectual
functioning which manifests itself in a person during his
or her developmental period and which is
characterized by his
or her inadequacy in adaptive behavior.
Notwithstanding any provision to the
contrary, if any service provision or reimbursement is affected by the changes in terminology
adopted in the 2010 Regular Session of the Legislature, the terms 'intellectual disability' or
'individuals with an intellectual disability' shall assume their previous terminology. It is not the
intent of the Legislature to expand the class of individuals affected by this terminology change.
§27-1-6. State hospital.
'State hospital' means any hospital, center or institution, or part
thereof of any hospital,
center or institution, established, maintained and operated by the Department of Health, or by the
Department of Health in conjunction with a political subdivision of the state, to provide inpatient
or outpatient care and treatment for the mentally ill,
mentally retarded intellectually disabled or
addicted. The terms 'hospital' and 'state hospital' exclude correctional and regional jail facilities.
§27-1-7. Administrator and clinical director.
(a) The administrator of a state-operated treatment facility
shall be is its chief executive
officer and
shall have has the authority to manage and administer the financial, business and
personnel affairs of such facility. All other persons employed at the state-operated treatment facility
shall be are under the jurisdiction and authority of the administrator of the treatment facility who
need not be a physician.
(b) The clinical director
shall have has the responsibility for decisions involving clinical and
medical treatment of patients in a state-operated mental health facility. The clinical director must
be a physician duly licensed to practice medicine in this state who has completed training in an
accredited program of post-graduate education in psychiatry.
(c) In any facility designated by the Secretary of the Department of Health and Human
Resources as a facility for
the mentally retarded individuals with an intellectual disability in which programs and services are designed primarily to provide education, training and rehabilitation rather
than medical or psychiatric treatment, the duties and responsibilities, other than those directly related
to medical treatment services, assigned to the clinical director by this section or elsewhere in this
chapter,
shall be are assigned to and become the responsibility of the administrator of
such
that facility, or of a person with expertise in the field of
mental retardation intellectual disability, who
need not be a physician, designated by the administrator.
§27-1-9. Mental health facility.
'Mental health facility' means any inpatient, residential or outpatient facility for the care and
treatment of the mentally ill,
mentally retarded intellectually disabled or addicted which is operated,
or licensed to operate, by the Department of Health
and Human Resources and includes state
hospitals as defined in section six of this article. The term also includes veterans administration
hospitals, but does not include any regional jail, juvenile or adult correctional facility, or juvenile
detention facility.
ARTICLE 1A. DEPARTMENT OF HEALTH.
§27-1A-1. Statement of policy.
The purpose of this article is to improve the administration of the state hospitals, raise the
standards of treatment of the mentally ill and
mentally retarded intellectually disabled in the state
hospitals, encourage the further development of outpatient and diagnostic clinics, establish better
research and training programs, and promote the development of mental health.
§27-1A-4. Powers and duties of the commissioner secretary.
The commissioner shall be the executive head of the department, and as such shall have In
addition to the powers and duties set forth in any other provision of this code, the Secretary of the
Department of Health and Human Resources has the following powers and duties:
(a) To develop and maintain a state plan which sets forth needs of the state in the areas of
mental health and
mental retardation intellectual disability; goals and objectives for meeting those
needs; plan of operation for achieving the stated goals and objectives, including organizational structure; and statement of requirements in personnel funds and authority for achieving the goals and
objectives.
(b) To appoint deputies and assistants to supervise the departmental programs, including
hospital and residential services, and such other assistants and employees as may be necessary for
the efficient operation of the department and all its programs.
(c) To promulgate rules
and regulations clearly specifying the respective duties and
responsibilities of program directors and fiscal administrators, making a clear distinction between
the respective functions of these officials.
(d) To delegate to any of his
or her appointees, assistants or
employees all powers and duties
vested in the commissioner, including the power to execute contracts and agreements in the name
of the department as provided in this article, but the commissioner shall be responsible for the acts
of such appointees, assistants and employees.
(e) To supervise and coordinate the operation of the state hospitals named in article two of
this chapter and any other state hospitals, centers or institutions hereafter created for the care and
treatment of the mentally ill or
mentally retarded intellectually disabled, or both.
(f) To transfer a patient from any state hospital to any other state hospital or clinic under his
or her control and, by agreement with the state
Commissioner of public institutions Division of
Corrections, transfer a patient from a state hospital to an institution, other than correctional, under
the supervision of the state
Commissioner of public institutions Division of Corrections.
(g) To make periodic reports to the Governor and to the Legislature on the condition of the
state hospitals, centers and institutions or on other matters within his
or her authority, which shall
include recommendations for improvement of any mental health facility and any other matters
affecting the mental health of the people of the state.
The
Commissioner of mental health shall have Secretary of the Department of Health and
Human Resources has all of the authority vested in the divisions of the
former Department
of Mental
Health, as hereinafter provided.
The
Commissioner Secretary of the Department of Health and Human Resources is hereby
authorized and empowered to accept and use for the benefit of a state hospital, center or institution,
or for any other mental health purpose specified in this chapter, any gift or devise of any property
or thing which lawfully may be given. If such a gift or devise is for a specific purpose or for a
particular state hospital, center or institution, it shall be used as specified. Any gift or devise of any
property or thing which lawfully may be given and whatever profit may arise from its use or
investment shall be deposited in a special revenue fund with the State Treasurer, and shall be used
only as specified by the donor or donors.
Whenever it shall become necessary, the department of mental health may condemn any
interest, right or privilege, land or improvement, which in its opinion may be necessary, in the
manner provided by law, for the acquisition by this state of property for public purposes.
§27-1A-6. Division of professional services; powers and duties of supervisor; liaison with other
state agencies.
There
shall be is a Division of Professional Services is hereby established in the Department
of Mental Health. The supervisor of this division shall assist the director in the operation of the
programs or services of the department and shall be a qualified psychiatrist.
The supervisor of this division
shall have has the following powers and duties:
(1) To develop professional standards, provide supervision of state hospitals, analyze hospital
programs and inspect individual hospitals.
(2) To assist in recruiting professional staff.
(3) To take primary responsibility for the education and training of professional and
subprofessional personnel.
(4) To carry on or stimulate research activities related to medical and psychiatric facilities
of the department, and render specialized assistance to hospital superintendents.
(5) To establish liaison with appropriate state agencies and with private groups interested in
mental health,
such as including the state
Department of Bureau for Public Health,
the board of Probation and Parole Division of Corrections, the Department of Education, the Board of Governors
of West Virginia University, and the West Virginia Association for Mental Health, Incorporated.
(6) To license, supervise and inspect any hospital, center or institution, or part
thereof of any
hospital, center or institution, maintained and operated by any political subdivision or by any person,
persons, association or corporation to provide inpatient care and treatment for the mentally ill, or
mentally retarded individuals with an intellectual disability, or both.
(7) To perform any other duties assigned to the division by the
director of the department
Secretary of the Department of Health and Human Resources.
ARTICLE 2. MENTAL HEALTH FACILITIES.
§27-2-1. State hospitals and other facilities; transfer of control and property from
Department of Mental Health to Department of Health and Human Resources;
civil service coverage.
The state hospitals heretofore established at Weston,
Spencer Huntington
Barboursville and
Lakin,
Guthrie, Roney's Point, St. Marys and Lewisburg shall be are continued and known
respectively as the
Weston Hospital, Spencer Hospital Huntington Hospital Barboursville Hospital
William R. Sharpe, Jr. Hospital, Mildred-Mitchell Bateman Hospital and Lakin Hospital.
Guthrie
Center, Roney's Point Center, Colin Anderson Center and the Greenbrier School for Retarded
Children. Said These state hospitals and centers
shall be are managed, directed and controlled by
the Department of Health
and Human Resources. Any person employed by the Department of
Mental Health who on the effective date of this article is a classified civil service employee shall,
within the limits contained in section two, article six of chapter twenty-nine of this code, remain in
the civil service system as a covered employee. The
Director of the Department of Health Secretary
of the Department of Health and Human Resources is
hereby authorized to bring
said the state
hospitals into structural compliance with appropriate fire and health standards. All references in this
code or elsewhere in law to the 'West Virginia Training School' shall be taken and construed to
mean and refer to the 'Colin Anderson Center.'
The control of the property, records, and financial and other affairs of state mental hospitals
and other state mental health facilities is
hereby transferred from the Department of Mental Health
to the Department of Health
and Human Resources. As the chief executive officer, the Director of
Health secretary shall, in respect to the control and management of
such the state hospitals and other
state mental health facilities, perform the same duties and functions as were heretofore exercised or
performed by the
Department of Mental Health Director of Health. The title to all property of
such
the state hospitals and other state facilities is
hereby transferred to and vested in the Department of
Health
and Human Resources.
Notwithstanding any other provisions of this code to the contrary, whenever in this code there
is a reference to the Department of Mental Health, it shall be construed to mean and
shall be is a
reference to the
Director of the Department of Health Secretary of the Department of Health and
Human Resources.
ARTICLE 2A. MENTAL HEALTH - INTELLECTUAL DISABILITY CENTERS.
§27-2A-1. Comprehensive community mental health-intellectual disability centers;
establishment, operation and location; access to treatment.
(a) The
Director of Health Department of Health and Human Resources is authorized and
directed to establish, maintain and operate comprehensive community mental health centers and
comprehensive
mental retardation intellectual disability facilities, at
such locations within the state
as may be that are determined by the
director secretary in accordance with the state's comprehensive
mental health plan and the state's comprehensive
mental retardation intellectual disability plan.
Such facilities may be integrated with a general health care or other facility or remain separate as the
board of Health Secretary of the Department of Health and Human Resources may by rules prescribe:
Provided, That nothing contained herein
shall may be construed to allow the
Department of Health
and Human Resources to assume the operation of comprehensive regional mental health centers or
comprehensive
mental retardation intellectual disability facilities which have been heretofore
established according to law and which, as of the effective date of this article, are being operated by local nonprofit organizations.
(b) Any new mental health centers and comprehensive mental retardation facilities herein
provided
for may be operated and controlled by the Department of Health
and Human Resources or
operated, maintained and controlled by local nonprofit organizations and licensed according to rules
and regulations promulgated by the
board of Health Secretary of the Department of Health and
Human Resources. All comprehensive regional mental health and
mental retardation intellectual
disability facilities licensed in the state shall:
(1) Have a written plan for the provision of diagnostic, treatment, supportive and aftercare
services, and written policies and procedures for implementing these services;
(2) Have sufficient employees appropriately qualified to provide these services;
(3) Maintain accurate medical and other records for all patients receiving services;
(4) Render outpatient services in the aftercare of any patient discharged from an inpatient
hospital, consistent with the needs of the individual. No person who can be treated as an outpatient
at a community mental health center
shall may be admitted involuntarily into a state hospital.
(5) Have a chief administrative officer directly responsible to a legally constituted board of
directors of a comprehensive mental health or
mental retardation intellectual disability facility
operated by a local nonprofit organization, or to the
Director of the Department of Health Secretary
of the Department of Health and Human Resources if the comprehensive mental health or
mental
retardation intellectual disability center or facility is operated by the Department of Health
and
Human Resources; and
(6) Have a written plan for the referral of patients for evaluation and treatment for services
not provided.
The state's share of costs of operating
such the facilities may be provided from funds
appropriated for this purpose within the budget of the Department of Health
and Human Resources.
The
director secretary of that department shall administer these funds among all comprehensive
mental health and
mental retardation intellectual disability facilities
as may be that are required to best provide comprehensive community mental health care and services to the citizens of the state.
After July 1, but not later than August 1 of each year, the chief administrative officer of each
comprehensive regional mental health center and
mental retardation intellectual disability facility
shall submit a report to the
Director Secretary of the Department of Health
and Human Resources
and to the Legislative Auditor containing a listing of:
(1) All funds received by the center or facility;
(2) All funds expended by the center or facility;
(3) All funds obligated by the center or facility;
(4) All services provided by the center or facility;
(5) The number of persons served by the center or facility; and
(6) Other information as the
Board of Health shall by regulation prescribe Secretary of the
Department of Health and Human Resources prescribes by regulation.
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-9. Rights of patients.
(a) No person may be deprived of any civil right solely by reason of his or her receipt of
services for mental illness,
mental retardation intellectual disability or addiction, nor does the receipt
of the services modify or vary any civil right of the person, including, but not limited to, civil service
status and appointment, the right to register for and to vote at elections, the right to acquire and to
dispose of property, the right to execute instruments or rights relating to the granting, forfeiture or
denial of a license, permit, privilege or benefit pursuant to any law, but a person who has been
adjudged incompetent pursuant to article eleven of this chapter and who has not been restored to
legal competency may be deprived of such rights. Involuntary commitment pursuant to this article
does not of itself relieve the patient of legal capacity.
(b) Each patient of a mental health facility receiving services from the facility shall receive
care and treatment that is suited to his or her needs and administered in a skillful, safe and humane
manner with full respect for his or her dignity and personal integrity.
(c) Every patient has the following rights regardless of adjudication of incompetency:
(1) Treatment by trained personnel;
(2) Careful and periodic psychiatric reevaluation no less frequently than once every three
months;
(3) Periodic physical examination by a physician no less frequently than once every six
months; and
(4) Treatment based on appropriate examination and diagnosis by a staff member operating
within the scope of his or her professional license.
(d) The chief medical officer shall cause to be developed within the clinical record of each
patient a written treatment plan based on initial medical and psychiatric examination not later than
seven days after he or she is admitted for treatment. The treatment plan shall be updated
periodically, consistent with reevaluation of the patient. Failure to accord the patient the requisite
periodic examinations or treatment plan and reevaluations entitles the patient to release.
(e) A clinical record shall be maintained at a mental health facility for each patient treated
by the facility. The record shall contain information on all matters relating to the admission, legal
status, care and treatment of the patient and shall include all pertinent documents relating to the
patient. Specifically, the record shall contain results of periodic examinations, individualized
treatment programs, evaluations and reevaluations, orders for treatment, orders for application for
mechanical restraint and accident reports, all signed by the personnel involved.
(f) Every patient, upon his or her admission to a hospital and at any other reasonable time,
shall be given a copy of the rights afforded by this section.
(g) The Secretary of the Department of Health and Human Resources shall propose rules for
legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this
code to protect the personal rights of patients not inconsistent with this section.
ARTICLE 9. LICENSING OF HOSPITALS.
§27-9-1. License from director of health; regulations.
No hospital, center or institution, or part
thereof of any hospital, center or institution, to
provide inpatient, outpatient or other service designed to contribute to the care and treatment of the
mentally ill or
mentally retarded intellectually disabled, or prevention of such disorders,
shall may
be established, maintained or operated by any political subdivision or by any person, persons,
association or corporation unless a license therefor
shall be is first obtained from the
Director of
Health Secretary of the Department of Health and Human Resources. The application for such
license shall be accompanied by a plan of the premises to be occupied, and such other data and facts
as the
director commissioner may require.
He The secretary may make such terms and regulations
in regard to the conduct of
such any licensed hospital, center or institution, or part
thereof of any
licensed hospital, center or institution, as he
may think or she thinks proper and necessary.
He The
secretary, or any person authorized by
him, shall have the secretary has authority to investigate and
inspect
such any licensed hospital, center or institution, or part
thereof of any licensed hospital,
center or institution; and the
Director of Health secretary may revoke the license of any
such hospital,
center or institution, or part
thereof of any hospital, center or institution, for good cause after
reasonable notice to the superintendent or other person in charge
thereof of the hospital, center or
institution.
ARTICLE 12. OFFENSES.
§27-12-1. Malicious making of medical certificate or complaint as to mental condition.
Any physician who
shall sign signs a certificate respecting the mental condition of any person
without having made the examination as provided
for by this chapter, or
shall make makes any
statement in any such certificate maliciously for the purpose of having such person declared mentally
ill,
mentally retarded intellectually disabled or an inebriate, and any person who
shall maliciously
make makes application to any circuit court or mental hygiene commission for the purpose of having
another person declared mentally ill,
mentally retarded intellectually disabled, or an inebriate,
shall
be is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not exceeding $500, or
imprisoned not exceeding one year, or both fined and imprisoned at the discretion of the court.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 15. STATE COMMISSION ON INTELLECTUAL DISABILITY.
§29-15-1. Creation and composition.
There is
hereby created the State Commission on
mental retardation Intellectual Disability
hereinafter referred to as the commission.
The commission shall consist of seven members, who,
ex officio, shall be the state Superintendent of Schools, the Director of Health, the Director of Mental
Health, the Commissioner of Public Institutions, the Commissioner of Welfare the Director of the
West Virginia Division of Vocational Rehabilitation and the Commissioner of the West Virginia
Department of Employment Security.
Pursuant to subsection (f), section one, article two, chapter five-f of this code, the
commission created by this section is now incorporated into and administered as part of the
Department of Health and Human Resources. All references to the commission in this article shall
be construed to mean the Department of Health and Human Resources.
§29-15-5. Purposes.
The
commission Department of Health and Human Resources shall take action to carry out
the following purposes:
(a) Plan for and take other steps leading to comprehensive state and community action to
combat
mental retardation intellectual disability.
(b) Determine what action is needed to combat
mental retardation intellectual disability in
the state and the resources available for this purpose.
(c) Develop public awareness of the
mental retardation intellectual disability problem and
of the need for combating it.
(d) Coordinate state and local activities relating to the various aspects of
mental retardation
intellectual disability and its prevention, treatment, or amelioration.
(e) Consult with and advise the Governor and Legislature on all aspects of
mental retardation
intellectual disability.
(f) Consult with and advise state agencies, boards or departments with
mental retardation
intellectual disability responsibilities relative to the effective discharge of such responsibilities.
§29-15-6. State agency for federal intellectual disability program.
The
commission Department of Health and Human Resources is
hereby designated and
established as the sole state agency for receiving appropriations under and carrying out the purposes
of section five of Public Law 88-156, eighty-eighth Congress approved October 24, 1963, and any
law amending, revising, supplementing or superseding section five of said Public Law 88-156.
The
commission shall constitute department constitutes the designated state agency for
handling all programs of the federal government relating to
mental retardation intellectual disability
requiring action within the state which are not the specific responsibility of another state agency
under the provisions of federal law, rules or regulations, or which have not been specifically
entrusted to another state agency by the Legislature.
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND
CONSERVATORSHIP ACT.
ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.
§44A-1-1. Short title and legislative findings.
This chapter
shall be is known and may be cited as the 'West Virginia Guardianship and
Conservatorship Act.'
The Legislature finds that section six, article eight of the Constitution of the State of West
Virginia gives it the discretionary authority to pass legislation which '...provides that all matters of
probate, the appointment and qualification of personal representatives, guardians, committees and
curators, and the settlements of their accounts...' be under the exclusive jurisdiction of circuit courts.
The Legislature further finds and declares that the use of the word 'all' does not require an
interpretation that the Legislature must place every aspect of such matters with circuit courts, but,
that because of the discretionary authority given, the Legislature may transfer, from time to time,
only those matters which it believes would be better served under the jurisdiction of circuit courts.
The Legislature
hereby further finds and declares that legal proceedings requiring a tribunal
to determine whether persons should be appointed to manage the personal or financial affairs of
individuals deemed mentally incompetent,
mentally retarded intellectually disabled, mentally
handicapped or missing involve considerations of constitutionally protected rights which can best
be resolved within the circuit courts of this state.
§44A-1-2. Determinations and appointments under prior law.
(a) Any person determined to be 'mentally incompetent',
'mentally retarded' an
'intellectually disabled' or 'mentally handicapped' and for such reason deemed to be in need of a
guardian or committee pursuant to any order entered and in effect
prior to before the effective date
of this chapter is deemed to be a 'protected person' within the meaning of this chapter,
from and
after its effective date, unless any such determination be revoked or otherwise modified.
(b) Any person heretofore appointed to serve as a committee for an incompetent person and
any person appointed to serve as a guardian for
a mentally retarded an individual with an intellectual
disability or for a mentally handicapped person, is, as of the effective date of this chapter, deemed
to be: (1) A guardian, within the meaning of this chapter, if the order appointing such person
provides that the person so appointed has responsibility only for the personal affairs of a mentally
incompetent
mentally retarded,
intellectually disabled or mentally handicapped person; (2) a
conservator, within the meaning of this chapter, if the order appointing such person provides that the
person so appointed had responsibility only for managing the estate and financial affairs of a
mentally incompetent
mentally retarded intellectually disabled or mentally handicapped person; or
(3) a guardian and a conservator, within the meaning of this chapter, if the order appointing such
person does not set forth limitations of responsibility for both the personal affairs and the financial
affairs of
a mentally incompetent
mentally retarded intellectually disabled, or mentally handicapped
person.
(c)
From and After the effective date of this chapter, the circuit courts
shall have exclusive
jurisdiction of all matters involving determinations of mental incompetency,
mental retardation intellectual disability or mental handicap, including the jurisdiction of any proceedings pending as
of
such that effective date. All orders entered
prior to before the effective date of this chapter in
such
those cases shall remain in full force and effect until terminated, revoked or modified as provided
herein.
(d) All persons heretofore appointed to serve as a committee or as a guardian
shall retain their
authority, powers and duties in
such that capacity, except to the extent that their authority, powers
and duties as
such guardian or conservator under the provisions of this chapter are more specifically
enumerated, in which event
such the committee or guardian
shall have has the authority, powers and
duties so enumerated.
Wherever in the Constitution, the Code of West Virginia, acts of the Legislature or elsewhere
in law a reference is made to a committee for an incompetent person, such reference shall be read,
construed and understood to mean guardian and/or conservator as defined in this chapter.
(e) The provisions of this chapter providing for the presentation of reports by guardians and
the presentation of accountings by conservators
shall may not be retroactively applied, and applicable
law in effect
prior to before the effective date of this chapter
shall control controls as to any reports
or accountings to be made or filed for any period
prior to before the effective date of this chapter.
(f) As used in this section, 'prior law' refers to article eleven, chapter twenty-seven of this
code, relating to the appointment of committees for mentally incompetent persons, and to article
ten-a, chapter forty-four, relating to the appointment of guardians for
mentally retarded individuals
with an intellectual disability and mentally handicapped persons, as
such those articles were in effect
prior to before the effective date of this chapter.
CHAPTER 49. CHILD WELFARE.
ARTICLE 4A. WEST VIRGINIA FAMILY SUPPORT PROGRAM.
§49-4A-6. Regional and state family support councils.
(a) Each regional family support agency shall establish a regional family support council
comprised of at least seven members, of whom at least a majority shall be persons with developmental disabilities or their parents or primary caregivers. Each regional family support
council shall meet at least quarterly to advise the regional family support agency on matters related
to local implementation of the family support program and to communicate information and
recommendations regarding the family support program to the state Family Support Council.
(b) The Secretary of the Department of Health and Human Resources shall appoint a state
Family Support Council comprised of at least twenty-two members, of whom at least a majority shall
be persons with developmental disabilities or their parents or primary caregivers. A representative
elected by each regional council shall serve on the state council. The state council shall also include
a representative from each of the following agencies: The state Developmental Disabilities Planning
Council, the state Protection and Advocacy Agency, the University Affiliated Center for
Developmental Disabilities, the Office of Special Education, the Association of Community Mental
Health/
mental retardation Intellectual Disability Programs and the Early Intervention Interagency
Coordinating Council.
(c) The state council shall meet at least quarterly. The state council will participate in the
development of program policies and procedures, annual contracts and perform such other duties as
are necessary for statewide implementation of the family support program.
(d) Members of the state and regional councils who are a member of the family or the
primary caregiver of a developmentally disabled person shall be reimbursed for travel and lodging
expenses incurred in attending official meetings of their councils. Child care expenses related to the
developmentally disabled person shall also be reimbursed. Members of regional councils who are
eligible for expense reimbursement shall be reimbursed by their respective regional family support
agencies."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4281 - "A Bill to repeal §27-1A-12 of the Code of West Virginia, 1931,
as amended; to repeal §27-2-1a and §27-2-1b of said code; to amend and reenact §9-4C-1 and §9-
4C-5 of said code; to amend and reenact §9-5-11c of said code; to amend and reenact §11-27-10 and §11-27-11 of said code; to amend and reenact §16-1-4 of said code; to amend and reenact §16-2D-2
and §16-2D-5 of said code; to amend and reenact §16-5F-2 of said code; to amend and reenact
§16-5O-2 of said code; to amend and reenact §16-22-1 and §16-22-2 of said code; to amend and
reenact §16-29A-3 of said code; to amend and reenact §16-30-7 and §16-30-24 of said code; to
amend and reenact §27-1-3, §27-1-6, §27-1-7 and §27-1-9; to amend and reenact §27-1A-1,
§27-1A-4 and §27-1A-6 of said code; to amend and reenact §27-2-1 of said code; to amend and
reenact §27-2A-1 of said code; to amend and reenact §27-5-9 of said code; to amend and reenact
§27-9-1 of said code; to amend and reenact §27-12-1 of said code; to amend and reenact §29-15-1,
§29-15-5 and §29-15-6 of said code; to amend and reenact §44A-1-1 and §44A-1-2 of said code; and
to amend and reenact §49-4A-6 of said code, all relating to updating code references relating to
intellectually disabled persons; replacing the term 'mentally retarded' with 'intellectually disabled'
or 'individuals with an intellectual disability'; renaming an intermediate care facility for the mentally
retarded (ICF-MR) to an intermediate care facility for individuals with an intellectual disability
(ICF-ID); altering definitions of terms; providing that previous terminology will control in certain
situations; clarifying the powers and duties of the Secretary of the Department of Health and Human
Resources; and deleting obsolete references."
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. 403), and there were--yeas
96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Boggs, Cann and Ross.
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. 4281) 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. 4486, Relating to tax tickets and other required notifications concerning
property taxes.
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 §11A-3-52 and 11A-3-55 of the Code of West Virginia, 1931, as amended, be
amended and reenacted to read as follows:
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE
AND UNAPPROPRIATED LANDS.
§11A-3-52. What purchaser must do before he can secure a deed.
(a) Within forty-five days following the approval of the sale by the auditor pursuant to section
fifty-one of this article, the purchaser, his heirs or assigns, in order to secure a deed for the real estate
purchased, shall:
(1) Prepare a list of those to be served with notice to redeem and request the deputy
commissioner to prepare and serve the notice as provided in sections fifty-four and fifty-five of this
article;
and
(2) When the real property subject to the tax lien was classified as Class II property, provide
the deputy commissioner with the actual mailing address of the property that is subject to the tax lien
or liens purchased; and,
(2)(3) Deposit, or offer to deposit, with the deputy commissioner a sum sufficient to cover
the costs of preparing and serving the notice.
(b) For failure to meet these requirements If the purchaser fails to fulfill the requirements set
forth in paragraph (a) of this section, the purchaser shall lose all the benefits of his or her purchase.
(c) After the requirements of paragraph (a) of this section have been satisfied, the deputy
commissioner may then sell the property in the same manner as he sells lands which have been
offered for sale at public auction but which remain unsold after such auction, as provided in section
forty-eight of this article.
(b)(d) If the person requesting preparation and service of the notice is an assignee of the
purchaser, he shall, at the time of the request, file with the deputy commissioner a written assignment
to him of the purchaser's rights, executed, acknowledged and certified in the manner required to
make a valid deed.
§11A-3-55. Service of notice.
As soon as the deputy commissioner has prepared the notice provided for in section fifty-four
of this article, he shall cause it to be served upon all persons named on the list generated by the
purchaser pursuant to the provisions of section fifty-two of this article. Such notice shall be mailed
and, if necessary, published at least thirty days prior to the first day a deed may be issued following
the deputy commissioner's sale.
The notice shall be served upon all such persons residing or found in the state in the manner
provided for serving process commencing a civil action or by certified mail, return receipt requested.
The notice shall be served on or before the thirtieth day following the request for such notice.
If any person entitled to notice is a nonresident of this state, whose address is known to the
purchaser, he shall be served at such address by certified mail, return receipt requested.
If the address of any person entitled to notice, whether a resident or nonresident of this state,
is unknown to the purchaser and cannot be discovered by due diligence on the part of the purchaser,
the notice shall be served by publication as a Class III-0 legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, and the publication area for such
publication shall be the county in which such real estate is located. If service by publication is
necessary, publication shall be commenced when personal service is required as set forth above, and
a copy of the notice shall at the same time be sent by certified mail, return receipt requested, to the last known address of the person to be served. The return of service of such notice, and the affidavit
of publication, if any, shall be in the manner provided for process generally and shall be filed and
preserved by the auditor in his office, together with any return receipts for notices sent by certified
mail.
In addition to the other notice requirements set forth in this section, if the real property
subject to the tax lien was classified as Class II property at the time of the assessment, at the same
time the deputy commissioner issues the required notices by certified mail, the deputy commissioner
shall forward a copy of the notice sent to the delinquent taxpayer by first class mail, addressed to
'Occupant', to the physical mailing address for the subject property. The physical mailing address
for the subject property shall be supplied by the purchaser of the property, pursuant to the provisions
of section fifty-two of this article."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4486 - "A Bill to amend and reenact §11A-3-52 and §11A-3-55 of the
Code of West Virginia, 1931, as amended, all relating to the procedures, notice and redemption
requirements which apply when Class II real property is auctioned or sold for failure to pay taxes;
requiring the purchaser of real property at a tax lien sale or auction to provide the actual mailing
address for the Class II property as a part of the post-sale or post-auction information provided to the
deputy commissioner; and requiring that a copy of the notice of the right to redeem the property be
sent to the actual mailing address of the Class II property, in the name of 'Occupant'."
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. 404), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Cann and Ross.
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. 4486) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
H. B. 4521, Creating a sales tax holiday for purchases of guns and ammunition.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate title amendment was reported by the Clerk:
H. B. 4521 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §11-15-9n, relating to creating a sales tax holiday for purchases
of guns during the first weekend in October."
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. 405), and there were--yeas
93, nays 4, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Brown, Doyle, Guthrie and Wells.
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4521) 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. 4525, Changing the composition, powers and responsibilities of the
board of Coal Mine Health and Safety.
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 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING;
ADMINISTRATION; ENFORCEMENT.
§22A-1-21. Penalties.
(a)(1) Any operator of a coal mine in which a violation occurs of any health or safety rule or
who violates any other provisions of this chapter shall be assessed a civil penalty by the director
under subdivision (3) of this subsection, which shall be not more than $3,000, for each violation,
unless the director determines that it is appropriate to impose a special assessment for said violation,
pursuant to the provisions of subdivision (2), subsection (b) of this section. Each violation
constitutes a separate offense. In determining the amount of the penalty, the director shall consider
the operator's history of previous violations, whether the operator was negligent, the appropriateness
of the penalty to the size of the business of the operator charged, the gravity of the violation and the
demonstrated good faith of the operator charged in attempting to achieve rapid compliance after
notification of a violation.
Not later than June 1, 2002, the director shall promulgate as a rule the
procedure for assessing such civil penalties. This rule will be in effect upon filing, without regard
to the provisions of chapter twenty-nine-a of this code.
(2)
Any Revisions
to rules relating to the assessment of civil penalties shall be proposed
for
promulgation as legislative rules in accordance with the provisions of article three, chapter twenty-
nine-a of this code.
(3) Any miner who knowingly violates any health or safety provision of this chapter or health
or safety rule promulgated pursuant to this chapter is subject to a civil penalty assessed by the
director under subdivision (4) of this subsection which shall not be more than $250 for each
occurrence of the violation.
(4) A civil penalty under subdivision (1) or (2) of subsection (a) of this section or subdivision
(1) or (2) of subsection (b) of this section shall be assessed by the director only after the person
charged with a violation under this chapter or rule promulgated pursuant to this chapter has been
given an opportunity for a public hearing and the director has determined, by a decision
incorporating the director's findings of fact in the decision, that a violation did occur and the amount
of the penalty which is warranted and incorporating, when appropriate, an order in the decision
requiring that the penalty be paid. Any hearing under this section shall be of record.
(5) If the person against whom a civil penalty is assessed fails to pay the penalty within the
time prescribed in the order, the director may file a petition for enforcement of the order in any
appropriate circuit court. The petition shall designate the person against whom the order is sought
to be enforced as the respondent. A copy of the petition shall immediately be sent by certified mail,
return receipt requested, to the respondent and to the representative of the miners at the affected mine
or the operator, as the case may be. The director shall certify and file in the court the record upon
which the order sought to be enforced was issued. The court has jurisdiction to enter a judgment
enforcing, modifying and enforcing as modified, or setting aside, in whole or in part, the order and
decision of the director or it may remand the proceedings to the director for any further action it may
direct. The court shall consider and determine de novo all relevant issues, except issues of fact
which were or could have been litigated in review proceedings before a circuit court under section
twenty of this article and, upon the request of the respondent, those issues of fact which are in
dispute shall be submitted to a jury. On the basis of the jury's findings the court shall determine the
amount of the penalty to be imposed. Subject to the direction and control of the Attorney General,
attorneys appointed for the director may appear for and represent the director in any action to enforce
an order assessing civil penalties under this subdivision.
(b) (1) Any operator who knowingly violates a health or safety provision of this chapter or
health or safety rule promulgated pursuant to this chapter, or knowingly violates or fails or refuses
to comply with any order issued under section fifteen of this article, or any order incorporated in a final decision issued under this article, except an order incorporated in a decision under subsection
(a) of this section or subsection (b), section twenty-two of this article, shall be assessed a civil
penalty by the director under subdivision (5), subsection (a) of this section of not more than $5,000
and for a second or subsequent violation assessed a civil penalty of not more than $10,000, unless
the director determines that it is appropriate to impose a special assessment for said violation,
pursuant to the provisions of subdivision (2) of this subsection.
(2) In lieu of imposing a civil penalty pursuant to the provisions of subsection (a) of this
section or subdivision (1) of this subsection, the director may impose a special assessment if an
operator violates a health or safety provision of this chapter or health or safety rule promulgated
pursuant to this chapter and the violation is of serious nature and involves one or more of the
following by the operator:
(A) Violations involving fatalities and serious injuries;
(B) Failure or refusal to comply with any order issued under section fifteen of this article;
(C) Operation of a mine in the face of a closure order;
(D) Violations involving an imminent danger;
(E) Violations involving an extraordinarily high degree of negligence or gravity or other
unique aggravating circumstances; or
(F) A discrimination violation under section twenty-two of this article.
In situations in which the director determines that there are factors present which would make
it appropriate to impose a special assessment, the director shall assess a civil penalty of at least
$5,000 and of not more than $10,000.
(c) Whenever a corporate operator knowingly violates a health or safety provision of this
chapter or health or safety rules promulgated pursuant to this chapter, or knowingly violates or fails
or refuses to comply with any order issued under this law or any order incorporated in a final
decision issued under this law, except an order incorporated in a decision issued under subsection
(a) of this section or subsection (b), section twenty-two of this article, any director, officer or agent of the corporation who knowingly authorized, ordered or carried out the violation, failure or refusal
is subject to the same civil penalties that may be imposed upon a person under subsections (a) and
(b) of this section.
(d) Whoever knowingly makes any false statement, representation or certification in any
application, record, report, plan or other document filed or required to be maintained pursuant to this
law or any order or decision issued under this law is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than $5,000 or imprisoned in the
county jail not more than six
months, or both fined and imprisoned. The conviction of any person under this subsection shall
result in the revocation of any certifications held by the person under this chapter which certified or
authorized the person to direct other persons in coal mining by operation of law and bars that person
from being issued any license under this chapter, except a miner's certification, for a period of not
less than one year or for a longer period as may be determined by the director.
(e) Whoever willfully distributes, sells, offers for sale, introduces or delivers in commerce
any equipment for use in a coal mine, including, but not limited to, components and accessories of
the equipment, who willfully misrepresents the equipment as complying with the provisions of this
law, or with any specification or rule of the director applicable to the equipment, and which does not
comply with the law, specification or rule, is guilty of a misdemeanor and, upon conviction thereof,
is subject to the same fine and imprisonment that may be imposed upon a person under subsection
(d) of this section.
(f) There is
created continued in the Treasury of the State of West Virginia a
Special Health, Safety and Training Fund. All civil penalty assessments collected under this section
shall be collected by the director and deposited with the Treasurer of the State of West Virginia to
the credit of the Special Health, Safety and Training Fund. The fund shall be used by the director
who is authorized to expend the moneys in the fund for the administration of this chapter.
ARTICLE 2A. USE OF DIESEL-POWERED EQUIPMENT IN UNDERGROUND COAL
MINES.
PART 3. WEST VIRGINIA DIESEL EQUIPMENT COMMISSION.
§22A-2A-301. Creation of The West Virginia Diesel Equipment Commission.
The West Virginia Diesel Equipment Commission, consisting of six members, is
hereby
created in the Office of Miners' Health, Safety and Training of the bureau of commerce continued,
and commencing July 1, 2010, is a separate independent commission within the Department of
Commerce.
§22A-2A-304. Nomination and appointment of members.
(a) Prior to the appointment of a person to the commission, the Governor shall request the
nomination of a candidate for the appointment. If the position is to be filled by a person who can
reasonably be expected to represent the viewpoint or interests of underground coal operators in this
state, the Governor shall request the nomination from the major trade association representing
underground coal operators in this state. If the position is to be filled by a person who can
reasonably be expected to represent the viewpoint or interests of working miners in this state, the
Governor shall request the nomination from the highest ranking officer of the major employee
organization representing coal miners in this state.
The Director of the Office of Miner's Health,
Safety and Training or his or her designee and the Health Safety Administrator shall serve as a
nonvoting ex officio member.
(b) The Governor shall appoint a member to serve for the term for which the person was
nominated, and until his or her successor has been nominated and appointed:
Provided, That if a
successor is not appointed within one hundred twenty days after the expiration of a member's term,
a vacancy is deemed to exist. The Governor may reject a nomination and decline to appoint a
nominee only if the person does not have the qualifications, integrity and responsibility necessary
to enable the person to perform his or her duties as a member of the commission.
(c) Appointments to fill vacancies on the commission shall be for the unexpired term of the
member to be replaced.
§22A-2A-310. Duties of commission following promulgation of initial rules.
(a) After the promulgation of the initial rules, the commission shall have as its primary duties
the implementation of this article and the evaluation and adoption of state of the art technology and
methods, reflected in engines and engine components, emission control equipment and procedures,
that when applied to diesel-powered underground mining machinery shall reasonably reduce or
eliminate diesel exhaust emissions and enhance protections of the health and safety of miners. The
technology and methods adopted by the commission shall have been demonstrated to be reliable. In
making a decision to adopt new technology and methods, the commission shall consider the highest
achievable measures of protection for miners' health and safety through available technology,
engineering controls and performance requirements and shall further consider the cost, availability,
adaptability and suitability of any available technology, engineering controls and performance
requirements as they relate to the use of diesel equipment in underground coal mines. Any state of
the art technology or methods adopted by the commission shall not reduce or compromise the level
of health and safety protection of miners.
(b) Upon application of a coal mine operator, the commission shall consider site-specific
requests for the use of diesel equipment in underground coal mines and for the use of alternative
diesel-related health and safety technologies and methods. The commission's action on applications
submitted under this subsection shall be on a mine-by-mine basis. Upon receipt of a site-specific
application, the commission shall conduct an investigation, which investigation shall include
consultation with the mine operator and the authorized representatives of the miners at the mine.
Authorized representatives of the miners shall include a Mine Health and Safety Committee elected
by miners at the mine, a person or persons employed by an employee organization representing
miners at the mine or a person or persons authorized as the representative or representatives of
miners of the mine in accordance with MSHA regulations at 30 C.F.R. Pt. 40 (relating to
representative of miners). Where there is no authorized representative of the miners, the commission
shall consult with a reasonable number of miners at the mine. Upon completion of the investigation,
the commission may approve the application for the site-specific request:
Provided, That an application for a site-specific request under this subsection may be approved only upon a majority
vote of all six members of the commission. All six members must be present when a vote is taken.
(1) Within one hundred eighty days of receipt of an application for use of alternative
technologies or methods, the commission shall complete its investigation. The time period may be
extended with the consent of the applicant.
(2) The commission shall have thirty days in which to render a final decision approving or
rejecting the application.
(3) The commission members shall not approve an application made under this section if,
at the conclusion of the investigation, the commission members have made a determination that the
use of the alternative technology or method will reduce or compromise the level of health and safety
protection of miners.
(4) The written approval of an application for the use of alternative technologies or methods
shall include the results of the commission's investigation and describe the specific conditions of
use for the alternative technology or method.
(5) The written decision to reject an application for the use of alternative technologies or
methods shall include the results of the commission's investigation and shall outline in detail the
basis for the rejection.
(c) The commission shall establish conditions for the use of diesel-powered equipment in
shaft and slope construction operations at coal mines.
(d) In performing its functions, the commission shall have access to the services of the Board
of Coal Mine Health and Safety. The board shall
make clerical available provide administrative
support and assistance
pursuant to section six, article six of this chapter, to enable the commission
to carry out its duties.
(e) Any action taken by the commission to either approve or reject the use of an alternative
technology or method, or establish conditions under subsection (c) of this section, shall be final and
binding and not subject to further review except where a decision by the commission may be deemed to be an abuse of discretion or contrary to law. If any party affected by a decision of the commission
believes that the decision is an abuse of discretion or contrary to law, that party may file a petition
for review with the circuit court of Kanawha County in accordance with the provisions of the
administrative procedures act relating to judicial review of governmental determinations. The court,
in finding that any decision made by the commission is an abuse of discretion or contrary to law,
shall vacate and, if appropriate, remand the case.
(f) The powers and duties of the commission shall be limited to the matters regarding the use
of diesel-powered equipment in underground coal mines.
(g) Appropriations for the funding of the commission and to effectuate the purposes of this
article shall be made to a budget account hereby established for that purpose in the General Revenue
Fund.
Expenditures from this fund are provided for in section six, article six of this chapter.
(h) The commission may issue a clarifying resolution about the initial rules and other matters
consistent with the powers and duties of the commission under this article. A unanimous vote is
required for any clarifying resolution by the commission.
ARTICLE 6. Board of Coal Mine Health and Safety.
§22A-6-3. Board continued; membership; method of nomination and appointment; meetings;
vacancies; quorum.
(a) The Board of Coal Mine Health and Safety
heretofore established, is continued,
as
provided by this article. and commencing July 1, 2010, is a separate independent board within the
Department of Commerce. The board consists of
seven six voting members
and one ex officio,
nonvoting member who are residents of this state, and who are appointed
as follows: hereinafter
specified in this section:
(1) The Governor shall appoint, by and with the advice and consent of the Senate, three
members to represent the viewpoint of those operators in this state. When such members are to be
appointed, the Governor shall request from the major trade association representing operators in this
state a list of three nominees for each such position on the board. All such nominees shall be persons with special experience and competence in health and safety. There shall be submitted with such
list a summary of the qualifications of each nominee. If the full lists of nominees are submitted in
accordance with the provisions of this subdivision, the Governor shall make the appointments from
the persons so nominated. For purposes of this subdivision, the major trade association representing
operators in this state is that association which represents operators accounting for over one half of
the coal produced in mines in this state in the year prior to the year in which the appointment is to
be made.
(2) The Governor shall appoint, by and with the advice and consent of the Senate, three
members who can reasonably be expected to represent the viewpoint of the working miners of this
state. When members are to be appointed, the Governor shall request from the major employee
organization representing coal miners within this state a list of three nominees for each position on
the board. The highest ranking official within the major employee organization representing coal
miners within this state shall submit a list of three nominees for each such position on the board.
The nominees shall have a background in health and safety. The Governor shall make the
appointments from the requested list of nominees.
(3) All appointments made by the Governor under the provisions of subdivisions (1) and (2)
of this subsection shall be with the advice and consent of the Senate;
and,
(4) The seventh member of the board is the director of the office of miners' health, safety and
training, or his or her designee, who serves as chair of the board as an ex officio nonvoting member,
except that the director may vote if there is a tie vote when the board is acting pursuant to subsection
(e), section four of this article or subdivision (3), subsection (f), section seven of this article. The
Director shall furnish to the board such secretarial, clerical, technical, research and other services
as are necessary to the conduct of the business of the board, not otherwise furnished by the board;
and,
(5) (4) The Director of the Office of Miner's Health, Safety and Training or his or her
designee shall serve as an ex officio, nonvoting member.
(b) Members serving on the board on
the effective date of this article July 1, 2010, may
continue to serve until the expiration of their terms.
Thereafter, members shall be nominated and
appointed in the manner provided for in this section and shall serve for a The term
of is three years.
Members are eligible for reappointment.
(c)
On or after January 1, 2002, The Governor shall appoint, subject to the approval of a
majority of the members of the board appointed under subdivisions (1) and (2), subsection (a) of this
section, a Health and Safety Administrator in accordance with the provisions of section six of this
article, who shall certify all official records of the board. The Health and Safety Administrator shall
be a full-time officer of the Board of Coal Mine Health and Safety with the duties provided for in
section six of this article. The Health and Safety Administrator shall have such education and
experience as the Governor deems necessary to properly investigate areas of concern to the board
in the development of rules governing mine health and safety. The Governor shall appoint as Health
and Safety Administrator a person who has an independent and impartial viewpoint on issues
involving mine safety. The Health and Safety Administrator shall be a person who has not been
during the two years immediately preceding appointment, and is not during his or her term, an
officer, trustee, director, substantial shareholder, contractor, consultant or employee of any coal
operator, or an employee or officer of an employee organization or a spouse of any such person. The
Health and Safety Administrator shall have the expertise to draft proposed rules and shall prepare
such rules as are required by this code and on such other areas as will improve coal mine health and
safety.
(d) The board shall meet at least once during each calendar month, or more often as may be
necessary, and at other times upon the call of the chair, or upon the request of any three members of
the board. Under the direction of the board, the Health and Safety Administrator shall prepare an
agenda for each board meeting giving priority to the promulgation of rules as may be required from
time to time by this code, and as may be required to improve coal mine health and safety. The
Health and Safety Administrator shall provide each member of the board with notice of the meeting and the agenda as far in advance of the meeting as practical, but in any event, at least five days prior
thereto. No meeting of the board shall be conducted unless said notice and agenda are given to the
board members at least five days in advance, as provided herein, except in cases of emergency, as
declared by the
chair director, in which event members shall be notified of the board meeting and
the agenda:
in a manner to be determined by the chair: Provided, That upon agreement of a majority
of the quorum present, any scheduled meeting may be ordered recessed to another day certain
without further notice of additional agenda.
When proposed rules are to be finally adopted by the board, copies of such proposed rules
shall be delivered to members not less than five days before the meeting at which such action is to
be taken. If not so delivered, any final adoption or rejection of rules shall be considered on the
second day of a meeting of the board held on two consecutive days, except that by the concurrence
of at least four members of the board, the board may suspend this rule of procedure and proceed
immediately to the consideration of final adoption or rejection of rules. When a member fails to
appear at three consecutive meetings of the board or at one half of the meetings held during a one-
year period, the Health and Safety Administrator shall notify the member and the Governor of such
fact. Such member shall be removed by the Governor unless good cause for absences is shown.
(e) Whenever a vacancy on the board occurs, nominations and appointments shall be made
in the manner prescribed in this section:
Provided, That in the case of an appointment to fill a
vacancy, nominations of three persons for each such vacancy shall be requested by and submitted
to the Governor within thirty days after the vacancy occurs by the major trade association or major
employee organization, if any, which nominated the person whose seat on the board is vacant. The
vacancy shall be filled by the Governor within thirty days of his or her receipt of the list of
nominations.
(f) A quorum of the board is
five four members which shall include
the director of the office
of miners' health, safety and training, or his or her designee, at least two members representing the
viewpoint of operators and at least two members representing the viewpoint of the working miners, and the board may act officially by a majority of those members who are present, except that no vote
of the board may be taken unless all
seven six voting members are present.
§22A-6-4. Board powers and duties.
(a) The board shall adopt as standard rules the 'coal mine health and safety provisions of this
chapter'. Such standard rules and any other rules shall be adopted by the board without regard to the
provisions of chapter twenty-nine-a of this code. The Board of Coal Mine Health and Safety shall
devote its time toward promulgating rules in those areas specifically directed by this chapter and
those necessary to prevent fatal accidents and injuries.
(b) The board shall review such standard rules and, when deemed appropriate to improve or
enhance coal mine health and safety, revise the same or develop and promulgate new rules dealing
with coal mine health and safety.
(c) The board shall develop, promulgate and revise, as may be appropriate, rules as are
necessary and proper to effectuate the purposes of article two of this chapter and to prevent the
circumvention and evasion thereof, all without regard to the provisions of chapter twenty-nine-a of
this code:
(1) Upon consideration of the latest available scientific data in the field, the technical
feasibility of standards, and experience gained under this and other safety statutes, such rules may
expand protections afforded by this chapter notwithstanding specific language therein, and such rules
may deal with subject areas not covered by this chapter to the end of affording the maximum
possible protection to the health and safety of miners.
(2) No rules promulgated by the board shall reduce or compromise the level of safety or
protection afforded miners below the level of safety or protection afforded by this chapter.
(3) Any miner or representative of any miner, or any coal operator has the power to petition
the circuit court of Kanawha County for a determination as to whether any rule promulgated or
revised reduces the protection afforded miners below that provided by this chapter, or is otherwise
contrary to law:
Provided, That any rule properly promulgated by the board pursuant to the terms and conditions of this chapter creates a rebuttable presumption that said rule does not reduce the
protection afforded miners below that provided by this chapter.
(4) The director shall cause proposed rules and a notice thereof to be posted as provided in
section eighteen, article one of this chapter. The director shall deliver a copy of such proposed rules
and accompanying notice to each operator affected. A copy of such proposed rules shall be provided
to any individual by the director's request. The notice of proposed rules shall contain a summary
in plain language explaining the effect of the proposed rules.
(5) The board shall afford interested persons a period of not less than thirty days after
releasing proposed rules to submit written data or comments. The board may, upon the expiration
of such period and after consideration of all relevant matters presented, promulgate such rules with
such modifications as it may deem appropriate.
(6) On or before the last day of any period fixed for the submission of written data or
comments under subdivision (5) of this section, any interested person may file with the board written
objections to a proposed rule, stating the grounds therefor and requesting a public hearing on such
objections. As soon as practicable after the period for filing such objections has expired, the board
shall release a notice specifying the proposed rules to which objections have been filed and a hearing
requested.
(7) Promptly after any such notice is released by the board under subdivision (6) of this
section, the board shall issue notice of, and hold a public hearing for the purpose of receiving
relevant evidence. Within sixty days after completion of the hearings, the board shall make findings
of fact which shall be public, and may promulgate such rules with such modifications as it deems
appropriate. In the event the board determines that a proposed rule should not be promulgated or
should be modified, it shall within a reasonable time publish the reasons for its determination.
(8) All rules promulgated by the board shall be published in the state register and continue
in effect until modified or superseded in accordance with the provisions of this chapter.
(d) To carry out its duties and responsibilities, the board is authorized to employ such personnel, including legal counsel, experts and consultants, as it deems necessary. In addition, the
board, within the appropriations provided for by the Legislature, may conduct or contract for
research and studies and is entitled to the use of the services, facilities and personnel of any agency,
institution, school, college or university of this state.
(e) The director shall within sixty days of a coal mining fatality or fatalities provide the board
with all available reports regarding such fatality or fatalities.
The board shall review all
such reports
and any recommended rules submitted by the director,
receive any additional information, and may, on its own initiative, ascertain the cause or causes of
such coal mining fatality or fatalities. Within
one hundred twenty ninety days of
the receipt of the
Federal Mine Safety and Health Administration's fatal accident report and the director's report and
recommended rules, the board shall review and consider the presentation of said report and rules and,
such review of each such fatality the board shall promulgate such of said report or rules as are
necessary to prevent the recurrence of such fatality, if a majority of
the quorum present of
all voting
board members determines that
no additional rules can assist in the prevention of the specific type
of fatality
, the board shall either accept and promulgate the director's recommended rules, amend
the director's recommended rules or draft new rules, as are necessary to prevent the recurrence of
such fatality. If the board chooses to amend the director's recommended rules or draft its own rules,
a vote is required within one hundred twenty days as to whether to promulgate the amended rule or
the rule drafted by the board: Provided, That the board may, by majority vote, find that exceptional
circumstances exist and the deadline cannot be met: Provided, however, That under no circumstances
shall such deadline be extended by more than a total of ninety days. A majority vote of the board
is required to promulgate any such rule.
Likewise, The board shall annually, not later than July 1, review the major causes of coal
mining injuries during the previous calendar year, reviewing the causes in detail, and shall
promulgate such rules as may be necessary to prevent the recurrence of such injuries.
Further, the board shall, on or before January 10, of each year, submit a report to the Governor, President of the Senate and Speaker of the House, which report shall include, but is not
limited to:
(1) The number of fatalities during the previous calendar year, the apparent reason for each
fatality as determined by the office of miners' health, safety and training and the action, if any, taken
by the board to prevent such fatality;
(2) Any rules promulgated by the board during the last year;
(3) What rules the board intends to promulgate during the current calendar year;
(4) Any problem the board is having in its effort to promulgate rules to enhance health and
safety in the mining industry;
(5) Recommendations, if any, for the enactment, repeal or amendment of any statute which
would cause the enhancement of health and safety in the mining industry;
(6) Any other information the board deems appropriate;
(7) In addition to the report by the board, as herein contained, each individual member of said
board has right to submit a separate report, setting forth any views contrary to the report of the board,
and the separate report, if any, shall be appended to the report of the board and be considered a part
thereof.
§22A-6-6. Health and Safety Administrator; qualifications; duties; employees; compensation.
(a) The Governor shall appoint the Health and Safety Administrator of the board for a term
of employment of one year. The Health and Safety Administrator shall be entitled to have his or her
contract of employment renewed on an annual basis except where such renewal is denied for cause:
Provided, That the Governor has the power at any time to remove the Health and Safety
Administrator for misfeasance, malfeasance or nonfeasance:
Provided, however, That the board has
the power to remove the Health and Safety Administrator without cause upon the concurrence of five
members of the board.
(b) The Health and Safety Administrator shall work at the direction of the board,
independently of the director of the office of miners' health, safety and training and has such authority and shall perform such duties as may be required or necessary to effectuate this article.
(c) In addition to the Health and Safety Administrator, there shall be such other
research
employees hired by the Health and Safety Administrator as the board determines to be necessary.
The health and safety administrator shall provide supervision and direction to the other
research
employees of the board in the performance of their duties.
(d) The employees of the board shall be compensated at rates determined by the board. The
salary of the Health and Safety Administrator shall be fixed by the Governor:
Provided, That the
salary of the Health and Safety Administrator shall not be reduced during his or her annual term of
employment or upon the renewal of his or her contract for an additional term. Such salary shall be
fixed for any renewed term at least ninety days before the commencement thereof.
(e)
(1) Appropriations for the salaries of the Health and Safety Administrator and any other
employees of the board and for necessary office and operating expenses shall be made to a budget
account
hereby established for those purposes in the General Revenue Fund. Such account shall be
separate from any accounts or appropriations for the Office of Miners' Health, Safety and Training.
(2) Expenditures from the funds established in section three hundred ten, article two-A;
section seven, article six; section four, article seven; section three, article eleven of this chapter shall
be by the Health and Safety Administrator for administrative and operating expenses, such operating
expenses include mine health and safety, research, education and training programs as determined
by the entities.
(f) The Health and Safety Administrator shall review all coal mining fatalities and major
causes of injuries as mandated by section four of this article. An analysis of such fatalities and major
causes of injuries shall be prepared for consideration by the board within ninety days of the
occurrence of the accident.
(g) At the direction of the board, the administrator shall also conduct an annual study of
occupational health issues relating to employment in and around coal mines of this state and submit
a report to the board with findings and proposals to address the issues raised in such study. The administrator is responsible for preparing the annual reports required by subsection (e), section four
of this article and section nine of this article.
(h) The administrator shall provide administrative assistance to the West Virginia Diesel
Commission, The State Coal Mine Safety and Technical Review Committee, Board of Coal Mine
Health and Safety, Board of Miner Training, Education and Certification, and the Mine Safety
Technology Task Force, and serve as the legislative liaison for budgetary issues. The Administrator
shall serve as an ex officio, nonvoting member on the West Virginia Diesel Commission, The State
Coal Mine Safety and Technical Review Committee, Board of Miner Training, Education and
Certification, and the Mine Safety Technology Task Force.
(i) The administrator shall submit to each board or commission for its approval, the proposed
budget of the board or commission before submitting it to the Secretary of Revenue.
§22A-6-7. Coal Mine Safety and Technical Review Committee; membership; method of
nomination and appointment; meetings; quorum; powers and duties of the
committee; powers and duties of the Board of Coal Mine Health and Safety.
(a)
There is hereby continued The State Coal Mine Safety and Technical Review Committee
is continued, and commencing July 1, 2010, is a separate independent committee within the
Department of Commerce. The purposes of this committee are to:
(1) Assist the Board of Coal Mine Health and Safety in the development of technical data
relating to mine safety issues, including related mining technology;
(2) Provide suggestions and technical data to the board and propose rules with general mining
industry application;
(3) Accept and consider petitions submitted by individual mine operators or miners seeking
site-specific rule making pertaining to individual mines and make recommendations to the board
concerning such rule making; and
(4) Provide a forum for the resolution of technical issues encountered by the board,
safety
education and coal advocacy programs.
(b) The committee shall consist of two members who shall be residents of this state, and who
shall be appointed as hereinafter specified in this section:
(1) The Governor shall appoint one member to represent the viewpoint of the coal operators
in this state from a list containing one or more nominees submitted by the major trade association
representing coal operators in this state within thirty days of submission of such nominee or
nominees.
(2) The Governor shall appoint one member to represent the viewpoint of the working miners
of this state from a list containing one or more nominees submitted by the highest ranking official
within the major employee organization representing coal mines within this state within thirty days
of submission of the nominee or the nominees.
(3) The members appointed in accordance with the provisions of subdivisions (1) and (2) of
this subsection shall be initially appointed to serve a term of three years. The members serving on
the effective date of this article may continue to serve until their terms expire.
(4) The members appointed in accordance with the provisions of subdivisions (1) and (2) of
this subsection may be, but are not required to be, members of the Board of Coal Mine Health and
Safety, and shall be compensated on a per diem basis in the same amount as provided in section ten
of this article, plus all reasonable expenses.
(c)The committee shall meet at least once during each calendar month, or more often as may
be necessary.
(d) A quorum of the committee shall require both members, and the committee may only act
officially by a quorum.
(e) The committee may review any matter relative to mine safety and mining technology, and
may pursue development and resolution of issues related thereto. The committee may make
recommendations to the board for the promulgation of rules with general mining industry
application. Upon receipt of a unanimous recommendation for rule making from the committee and
only thereon, the board may adopt or reject such rule, without modification except as approved by the committee:
Provided, That any adopted rule shall not reduce or compromise the level of safety
or protection below the level of safety or protection afforded by applicable statutes and rules. When
so promulgated, such rules shall be effective, notwithstanding the provisions of applicable statutes.
(f) (1) Upon application of a coal mine operator, or on its own motion, the committee has the
authority to accept requests for site-specific rule making on a mine-by-mine basis, and make
unanimous recommendations to the board for site-specific rules thereon. The committee has
authority to approve a request if it concludes that the request does not reduce or compromise the
level of safety or protection afforded miners below the level of safety or protection afforded by any
applicable statutes or rules. Upon receipt of a request for site-specific rule making, the committee
may conduct an investigation of the conditions in the specific mine in question, which investigation
shall include consultation with the mine operator and authorized representatives of the miners. Such
authorized representatives of the miners shall include any person designated by the employees at the
mine, persons employed by an employee organization representing one or more miners at the mine,
or a person designated as a representative by one or more persons at the mine.
(2) If the committee determines to recommend a request made pursuant to subdivision (1)
of this subsection, the committee shall provide the results of its investigation to the Board of Coal
Mine Health and Safety along with recommendations for the development of the site-specific rules
applicable to the individual mine, which recommendations may include a written proposal containing
draft rules.
(3) Within thirty days of receipt of the committee's recommendation, the board shall adopt
or reject, without modification, except as approved by the committee, the committee's
recommendation to promulgate site-specific rules applicable to an individual mine adopting such
site-specific rules only if it determines that the application of the requested rule to such mine will
not reduce or compromise the level of safety or protection afforded miners below that level of safety
or protection afforded by any applicable statutes. When so promulgated, such rules shall be effective
notwithstanding the provisions of applicable statutes.
(g) The board shall consider all rules proposed by the Coal Mine Safety and Technical
Review Committee and adopt or reject, without modification, except as approved by the committee,
such rules, dispensing with the preliminary procedures set forth in subdivisions (1) through (7),
subsection (a), section five; and, in addition, with respect to site-specific rules also dispensing with
the procedures set forth in subdivisions (4) through (8), subsection (c), section four of this article.
(h) In performing its functions, the committee has access to the services of the coal mine
Health and Safety Administrator appointed under section six of this article. The director shall make
clerical support and assistance available in order that the committee can carry out its duties. Upon
the request of both members of the committee, the Health and Safety Administrator shall draft
proposed rules and reports or make investigations.
(i) The powers and duties provided for in this section for the committee are not intended to
replace or precondition the authority of the Board of Coal Mine Health and Safety to act in
accordance with sections one through six and eight through ten of this article.
(j) Appropriations for the funding of the committee and to effectuate this section shall be
made to a budget account hereby established for that purpose in the General Revenue Fund. Such
account shall be separate from any accounts or appropriations for the office of miners' health, safety
and training.
ARTICLE 7. BOARD OF MINER TRAINING, EDUCATION AND CERTIFICATION.
§22A-7-4. Board of Miner Training, Education and Certification continued; membership;
method of appointment; terms.
(a)
There is hereby continued a The Board of Miner Training, Education and Certification
which is continued, and commencing July 1, 2010, is a separate independent board within the
Department of Commerce. The board consists of
seven six voting members
and two ex officio,
nonvoting members, who are selected in the following manner:
(1) One member shall be appointed by the Governor to represent the viewpoint of surface
mine operators in this state. When such member is to be appointed, the Governor shall request from the major association representing surface coal operators in this state a list of three nominees to the
board. The Governor shall select from said nominees one person to serve on the board. For
purposes of this subsection, the major association representing the surface coal operators in this state
is that association, if any, which represents surface mine operators accounting for over one half of
the coal produced in surface mines in this state in the year prior to that year in which the appointment
is made.
(2) Two members shall be appointed by the Governor to represent the interests of the
underground operators of this state. When said members are to be appointed, the Governor shall
request from the major association representing the underground coal operators in this state a list of
six nominees to the board. The Governor shall select from said nominees two persons to serve on
the board. For purposes of this subsection, the major association representing the underground
operators in this state is that association, if any, which represents underground operators accounting
for over one half of the coal produced in underground mines in this state in the year prior to that year
in which the appointments are made.
(3) Three members shall be appointed by the Governor who can reasonably be expected to
represent the interests of the working miners in this state. If the major employee organization
representing coal miners in this state is divided into administrative districts, the employee
organization of each district shall, upon request by the Governor, submit a list of three nominees for
membership on the board. If such major employee organization is not so divided into administrative
districts, such employee organization shall, upon request by the Governor, submit a list of twelve
nominees for membership on the board. The Governor shall make such appointments from the
persons so nominated:
Provided, That in the event nominations are made by administrative districts,
not more than one member shall be appointed from the nominees of any one district unless there are
less than three such districts in this state.
(4)
The seventh member of the board, who serves as chair, shall be the director of the office
of miners' health, safety and training The Director of the Office of Miner's Health, Safety and Training or his or her designee, and the Health and Safety Administrator of the Board of Coal Mine
Health and Safety shall serve as ex officio, nonvoting members.
(5) All appointments made by the Governor under this section shall be with the advice and
consent of the Senate:
Provided, That persons so appointed while the Senate of this state is not in
session are permitted to serve up to one year in an acting capacity, or until the next session of the
Legislature, whichever is less.
(b) The board shall be appointed by the Governor. Members serving on the effective date
of this article may continue on the board until their terms expire. Appointed members serve for a
term of three years. The board shall meet at the call of the chair, at the call of the director, or upon
the request of any two members of the board:
Provided, That no meeting of the board for any
purpose shall be conducted unless the board members are notified at least five days in advance of
a proposed meeting. In cases of an emergency, members may be notified of a board meeting by the
most appropriate means of communication available.
(c) Whenever a vacancy on the board occurs, appointments shall be made in the manner
prescribed in this section:
Provided, That in the case of an appointment to fill a vacancy
nominations shall be submitted to the Governor within thirty days after the vacancy occurs. The
vacancy shall be filled by the Governor within thirty days of receipt of the list of nominations.
(d) Each appointed member of the board shall be paid the same compensation, and each
member of the board shall be paid the expense reimbursement, as is paid to members of the
Legislature for their interim duties as recommended by the citizens legislative compensation
commission and authorized by law for each day or portion thereof engaged in the discharge of
official duties. Any such amounts shall be paid out of the State Treasury upon a requisition upon
the State Auditor, properly certified by such members of the board.
(e) A quorum of the board is four members,
with two representing the viewpoint of the
operators and two representing the viewpoint of the labor organization. The board may act officially
by a majority of those members who are present.
No vote of the board may be taken unless all six voting members are present.
(f)
The chair of the board shall be a nonvoting member. In performing its functions, the
board shall have access to the services of the Board of Coal Mine Health and Safety. The Board of
Coal Mine Health and Safety shall provide administrative support and assistance, pursuant to section
six, article six of this chapter, to enable the board to carry out its duties. Provided, That in cases of
a tie, the chair shall cast the deciding vote on the issue or issues under consideration
(g)
The director of the office of miners' health, safety and training shall select a member of
the office's staff to serve as the secretary to the board and the secretary shall be present or send an
authorized representative to all meetings of the board.
Appropriations to the board to effectuate the purposes of this article shall be made to a budget
account established for that purpose.
§22A-7-6. Duties of the director and office.
The director shall
be empowered to promulgate propose rules for legislative approval,
pursuant to chapter twenty-nine-a of this code,
such reasonable rules as that are necessary to establish
a program to implement the provisions of this article. Such program shall include, but not be limited
to, implementation of a program of instruction in each of the miner occupational specialties and the
conduct of examinations to test each applicant's knowledge and understanding of the training and
instruction which he or she is required to have prior to the receipt of a certificate.
The director is authorized and directed to utilize state mine inspectors, mine safety
instructors, the state mine foreman examiner, private and public institutions of education and such
other persons as may be available in implementing the program of instruction and examinations.
The director may, at any time, make such recommendations
or supply such information to
the board as he or she may deem appropriate.
The director shall supply any information upon request of the board as long as the
information is not in violation of any other laws.
The director is authorized and directed to utilize such state and federal moneys and personnel as may be available to the office for educational and training purposes in the implementation of the
provisions of this article.
ARTICLE 11. MINE SAFETY TECHNOLOGY.
§22A-11-2. Mine Safety Technology Task Force continued; membership; method of
nomination and appointment.
(a) The Mine Safety Technology Task Force
created and existing under the authority of the
director pursuant to the provisions of section six, article one of this chapter is continued,
as provided
by this article and commencing July 1, 2010, is a separate independent task force within the
Department of Commerce.
(b) The task force shall consist of
nine seven voting members
and two ex officio, nonvoting
members who are appointed as specified in this section:
(1) The Governor shall appoint, by and with the advice and consent of the Senate, three
members to represent the viewpoint of operators in this state. When these members are to be
appointed, the Governor shall request from the major trade association representing operators in this
state a list of three nominees for each position on the task force. All nominees shall be persons with
special experience and competence in coal mine health and safety. There shall be submitted with
the list, a summary of the qualifications of each nominee. For purposes of this subdivision, the
major trade association representing operators in this state is that association which represents
operators accounting for over one half of the coal produced in mines in this state in the year prior
to the year in which the appointment is to be made.
(2) The Governor shall appoint, by and with the advice and consent of the Senate, three
members who can reasonably be expected to represent the viewpoint of the working miners of this
state. When members are to be appointed, the Governor shall request from the major employee
organization representing coal miners within this state a list of three nominees for each position on
the task force. The highest ranking official within the major employee organization representing coal
miners within this state shall submit a list of three nominees for each position on the board. The nominees shall have a background in coal mine health and safety.
(3) The Governor shall appoint, by and with the advice and consent of the Senate, one
certified mine safety professional from the College of Engineering and Mineral Resources at West
Virginia University;
(4)
The Governor shall appoint, by and with the advice and consent of the Senate, one
attorney with experience in issues relating to coal mine health and safety; and The Health and Safety
Administrator, pursuant to section six, article six of this chapter, shall serve as a member of the task
force as an ex officio, nonvoting member; and
(5)
The ninth member of the task force is the director, or his or her designee, who shall serve
as chair of the task force. The director shall furnish to the task force any secretarial, clerical,
technical, research and other services that are necessary to the conduct of the business of the task
force. The Director of the Office of Miner's Health, Safety and Training or his or her designee, shall
serve as a ex officio, nonvoting member.
(c) Each appointed member of the task force shall serve at the will and pleasure of the
Governor.
(d) Whenever a vacancy on the task force occurs, nominations and appointments shall be
made in the manner prescribed in this section:
Provided, That in the case of an appointment to fill
a vacancy, nominations of three persons for each vacancy shall be requested by and submitted to the
Governor within thirty days after the vacancy occurs by the major trade association or major
employee organization, if any, which nominated the person whose seat on the task force is vacant.
(e) Each member of the task force shall be paid the expense reimbursement, as is paid to
members of the Legislature for their interim duties as recommended by the Citizens Legislative
Compensation Commission and authorized by law for each day or portion thereof engaged in the
discharge of official duties. In the event the expenses are paid by a third party, the member shall not
be reimbursed by the state. The reimbursement shall be paid out of the State Treasury upon a
requisition upon the State Auditor, properly certified by the Office of Miners' Health, Safety and Training. An employer shall not prohibit a member of the task force from exercising leave of
absence from his or her place of employment in order to attend a meeting of the task force or a
meeting of a subcommittee of the task force, or to prepare for a meeting of the task force, any
contract of employment to the contrary notwithstanding.
§22A-11-3. Task force powers and duties.
(a) The task force shall provide technical and other assistance to the office related to the
implementation of the new technological requirements set forth in the provisions of section fifty-five,
article two, of this chapter, as amended and reenacted during the regular session of the Legislature
in the year 2006, and requirements for other mine safety technologies.
(b) The task force, working in conjunction with the director, shall continue to study issues
regarding the commercial availability, the functional and operational capability and the
implementation, compliance and enforcement of the following protective equipment:
(1) Self-contained self-rescue devices, as provided in subsection (f), section fifty-five, article
two of this chapter;
(2) Wireless emergency communication devices, as provided in subsection (g), section fifty-
five, article two of this chapter;
(3) Wireless emergency tracking devices, as provided in subsection (h), section fifty-five,
article two of this chapter; and
(4) Any other protective equipment required by this chapter or rules promulgated in
accordance with the law that the director determines would benefit from the expertise of the task
force.
(c) The task force shall on a continuous basis study, monitor and evaluate:
(1) The potential for enhancing coal mine health and safety through the application of
existing technologies and techniques;
(2) Opportunities for improving the integration of technologies and procedures to increase
the performance and survivability of coal mine health and safety systems;
(3) Emerging technological advances in coal mine health and safety; and
(4) Market forces impacting the development of new technologies, including issues regarding
the costs of research and development, regulatory certification and incentives designed to stimulate
the marketplace.
(d) On or before July 1 of each year, the task force shall submit a report to the Governor and
the Board of Coal Mine Health and Safety that shall include, but not be limited to:
(1) A comprehensive overview of issues regarding the implementation of the new
technological requirements set forth in the provisions of section fifty-five, article two of this chapter,
or rules promulgated in accordance with the law;
(2) A summary of any emerging technological advances that would improve coal mine health
and safety;
(3) Recommendations, if any, for the enactment, repeal or amendment of any statute which
would enhance technological advancement in coal mine health and safety; and
(4) Any other information the task force considers appropriate.
(e) In performing its duties, the task force shall, where possible, consult with, among others,
mine engineering and mine safety experts, radiocommunication and telemetry experts and relevant
state and federal regulatory personnel.
(f) Appropriations to the task force commission and to effectuate the purposes of this article
shall be made to one or more budget accounts established for that purpose."
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. 406), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Cann and Ross.
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. 4525) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Conference Committee Report Availability
At 8:48 p.m., the Clerk announced availability in his office of the reports of the Committee
of Conference on
Com. Sub. for S. B. 218, S. B. 230 and S. B. 273.
And,
At 8:51 p.m., the Clerk announced availability in his office of the report of the Committee
of Conference on
Com. Sub. for S. B. 567.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates, as follows:
H. B. 4531, Mandating that shackling of pregnant women who are incarcerated is not allowed
except in extraordinary circumstances.
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:
CHAPTER 25. DIVISION OF CORRECTIONS.
ARTICLE 1. ORGANIZATION, INSTITUTIONS AND CORRECTIONS MANAGEMENT.
§25-1-16. Transfer of inmates of state institutions or facilities.
The State Commissioner of Corrections
Public Institutions shall have authority to cause the
transfer of any
patient or inmate from any
correctional state institution or facility to any other state
or federal institution or facility which is better
fitted equipped for the care or treatment of such
patient or inmate, or for other good cause or reason.
Whenever
an inmate committed to the custody of corrections a convict in a state prison becomes mentally ill
and his or her needs cannot be properly met within the correctional facility, the
warden commissioner shall proceed in accordance with section thirty-one, article five, chapter
twenty-eight of this code.
Whenever
an inmate committed to the custody of corrections a convict in a state prison needs
medical attention, other than mental
health care, not available at said prison, the warden or
administrator superintendent of said
prison correctional facility shall immediately notify the
Commissioner of
Corrections Public Institutions, who, after proper investigation, shall cause the
transfer of said
convict inmate to a
facility hospital within the State of West Virginia properly
equipped to render the medical attention necessary. Such
a convict, inmate, while receiving
treatment in said hospital, shall be under
an appropriate level of supervision guard at all times and
shall forthwith be returned to
his or her correctional facility prison upon
release from said facility
his recovery.
In providing or arranging for the necessary medical and other care and treatment of a
pregnant inmate, the warden or administrator of the correctional facility shall take reasonable
measures to assure that pregnant inmates will not be restrained after reaching the second trimester
of pregnancy until the end of the pregnancy: Provided, That if the inmate, based upon her
classification, discipline history, or other factors deemed relevant by the warden or administrator
poses a threat of escape, or to the safety of herself, the public, staff or the fetus, the inmate may be
restrained in a manner reasonably necessary: Provided, however, That prior to directing the
application of restraints and where there is no threat to the safety of the inmate, the public, staff or
the fetus, the warden, administrator or designee shall consult with an appropriate health care
professional to assure that the manner of restraint will not pose an unreasonable risk of harm to the
inmate or the fetus.
CHAPTER 31. CORPORATIONS.
ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY.
§31-20-30a. Mechanical restraints during pregnancy.
In providing or arranging for the necessary medical and other care and treatment of inmates
committed to the Regional Jail Authority's custody, the authority shall assure that pregnant inmates
will not be restrained after reaching the second trimester of pregnancy until the end of the pregnancy:
Provided, That if the inmate, based upon her classification, discipline history, or other factors
deemed relevant by the authority poses a threat of escape, or to the safety of herself, the public, staff
or the fetus, the inmate may be restrained in a manner reasonably necessary.
Provided, however,
That prior to directing the application of restraints and where there is no threat to the safety of the
inmate, the public, staff or the fetus, the director or designee shall consult with an appropriate health
care professional to assure that the manner of restraint will not pose an unreasonable risk of harm
to the inmate or the fetus.
CHAPTER 49. CHILD WELFARE.
ARTICLE 5E. DIVISION OF JUVENILE SERVICES.
§49-5E-6. Medical and other treatment of juveniles in custody of the division; coordination
of care and claims processing and administration by the department;
authorization of certain cooperative agreements.
(a) Notwithstanding any other provision of law to the contrary, the director, or his or her
designee, is hereby authorized to consent to the medical or other treatment of any juvenile in the
legal or physical custody of the director or the division.
(b) In providing or arranging for the necessary medical and other care and treatment of
juveniles committed to the division's custody, the director shall utilize service providers who provide
the same or similar services to juveniles under existing contracts with the Department of Health and
Human Resources. In order to obtain the most advantageous reimbursement rates, to capitalize on
an economy of scale and to avoid duplicative systems and procedures, the department shall
administer and process all claims for medical or other treatment of juveniles committed to the
division's custody.
(c) In providing or arranging for the necessary medical and other care and treatment of
juveniles committed to the division's custody, the director shall assure that pregnant inmates will
not be restrained after reaching the second trimester of pregnancy until the end of the pregnancy:
Provided, That if the inmate, based upon her classification, discipline history or other factors deemed
relevant by the director poses a threat of escape, or to the safety of herself, the public, staff, or the
unborn child, the inmate may be restrained in a manner reasonably necessary: Provided, however,
That prior to directing the application of restraints and where there is no threat to the safety of the
inmate, the public, staff or the fetus, the director or designee shall consult with an appropriate health
care professional to assure that the manner of restraint will not pose an unreasonable risk of harm
to the inmate or the fetus.
(c) (d) For purposes of implementing the mandates of this section, the director is hereby
authorized and directed to enter into any necessary agreements with the Department of Health and
Human Resources. Any such agreement shall specify, at a minimum, for the direct and incidental
costs associated with such care and treatment to be paid by the Division of Juvenile Services."
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. 407), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Cann and Ross.
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. 4531) 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. 4604, Increasing the criminal penalties for persons who obstruct, flee
from or make false statements to law-enforcement officers.
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 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-17. Obstructing officer; fleeing from officer; making false statements to officer;
penalties; definitions.
(a) Any person who by threats, menaces, acts or otherwise, forcibly or illegally hinders or
obstructs, or attempts to hinder or obstruct, any law-enforcement officer, probation officer or parole
officer acting in his or her official capacity is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $50 nor more than $500 or confined in
the county or regional jail not
more than one year, or both
fined and confined.
(b) Any person who intentionally disarms or attempts to disarm any law-enforcement officer,
probation officer or parole officer, acting in his or her official capacity, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in
the a state correctional facility not less than one nor
more than five years.
(c) Any person who, with intent to impede or obstruct a law-enforcement officer in the
conduct of an investigation of a felony offense, knowingly and willfully makes a materially false
statement, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25
and not more than $200, or confined in
the county or regional jail for five days, or both
fined or
confined. Provided, That However, the provisions of this section
shall do not apply to statements
made by a spouse, parent, stepparent, grandparent, sibling, half-sibling, child, stepchild or
grandchild, whether related by blood or marriage, of the person under investigation. Statements made
by the person under investigation may not be used as the basis for prosecution under this subsection. For the purposes of this subsection, 'law-enforcement officer'
shall does not include
a watchman,
a member of the West Virginia State Police or college security personnel
who is not a certified law-
enforcement officer.
(d) Any person who intentionally flees or attempts to flee by any means other than the use
of a vehicle from any law-enforcement officer, probation officer or parole officer acting in his or her
official capacity who is attempting to make a lawful arrest of the person, and who knows or
reasonably believes that the officer is attempting to arrest him or her, is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in
the
county or regional jail not more than one year, or both.
(e) Any person who intentionally flees or attempts to flee in a vehicle from any law-
enforcement officer, probation officer or parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the person to stop, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000
and shall be
confined imprisoned in
the county or regional jail a state correctional facility not more
than less than one year
nor more than five years, or both.
(f) Any person who intentionally flees or attempts to flee in a vehicle from any law-
enforcement officer, probation officer or parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the person to stop, and who operates the
vehicle in a manner showing a reckless indifference to the safety of others, is guilty of a felony and,
upon conviction thereof, shall be fined not less than $1,000 nor more than $2,000, and shall be
imprisoned in a state correctional facility not less than one nor more than five years.
(g) Any person who intentionally flees or attempts to flee in a vehicle from any law-
enforcement officer, probation officer or parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the person to stop, and who causes damage
to the real or personal property of any person during or resulting from his or her flight, is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $3,000 and shall be confined in the county or regional jail for not less than six months nor more than
one year.
(h) Any person who intentionally flees or attempts to flee in a vehicle from any law-
enforcement officer, probation officer or parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the person to stop, and who causes bodily
injury to any person during or resulting from his or her flight, is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional facility not less than
one three nor
more than
five ten years.
(i) Any person who intentionally flees or attempts to flee in a vehicle from any law-
enforcement officer, probation officer or parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the person to stop, and who causes death
to any person during or resulting from his or her flight, is guilty of a felony and, upon conviction
thereof, shall be punished by a definite term of imprisonment in a state correctional facility which
is not less than
three five nor more than fifteen years. A person imprisoned pursuant to the
provisions of this subsection is not eligible for parole prior to having served a minimum of three
years of his or her sentence or the minimum period required by the provisions of section thirteen,
article twelve, chapter sixty-two of this code, whichever is greater.
(j) Any person who intentionally flees or attempts to flee in a vehicle from any law-
enforcement officer, probation officer or parole officer acting in his or her official capacity, after the
officer has given a clear visual or audible signal directing the person to stop, and who is under the
influence of alcohol, controlled substances or drugs at the time, is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional facility not less than
one three nor
more than
five ten years.
(k) For purposes of this section, the term 'vehicle' includes any motor vehicle, motorcycle,
motorboat, all-terrain vehicle or snowmobile, as those terms are defined in section one, article one,
chapter seventeen-a of this code, whether or not it is being operated on a public highway at the time and whether or not it is licensed by the state.
(l) For purposes of this section, the terms 'flee', 'fleeing' and 'flight' do not include any
person's reasonable attempt to travel to a safe place, allowing the pursuing law-enforcement officer
to maintain appropriate surveillance, for the purpose of complying with the officer's direction to
stop.
(m) The revisions to subsections (e), (f), (g) and (h) of this article enacted during the Regular
Session of the 2010 Regular Legislative Session shall be known as the 'Jerry Alan Jones Act'."
And by amending the title of the bill to read as follows:
The Committee on the Judiciary moved to amend the bill by striking out the title and
substituting therefor a new title, to read as follows:
Com. Sub. for H. B. 4604 - "A Bill to amend and reenact §61-5-17 of the Code of West
Virginia, 1931, as amended, relating to increasing the criminal penalties for crimes against law
enforcement, probation and parole officers; establishing crime for disarming or attempting to disarm
probation and parole officers; establishing new crime for reckless fleeing from law enforcement
officers and parole and probation officers; increasing penalties for fleeing or attempting to flee in
a vehicle; increasing penalties for fleeing or attempting to flee in a vehicle causing property damage;
increasing penalties for fleeing or attempting to flee in a vehicle causing injury; increasing penalties
for fleeing or attempting to flee in a vehicle causing death; and designating this act as the 'Jerry Alan
Jones Act'."
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. 408), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Cann and Ross.
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. 4604) passed.
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. 4582, Creating reciprocity for West Virginia small, women and
minority-owned businesses who receive such preferences in other states.
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 §5A-3-14, §5A-3-21, §5A-3-22, §5A-3-23, §5A-3-24, §5A-3-25, §5A-3-26, §5A-3-
37a, §5A-3-38, §5A-3-39, §5A-3-40, §5A-3-41, §5A-3-42, §5A-3-54, §5A-3-55 and §5A-3-55a of
the Code of West Virginia, 1931, as amended, be repealed; that §5A-3-1, §5A-3-2, §5A-3-3, §5A-3-
4, §5A-3-12, §5A-3-18, §5A-3-36 and §5A-3-37 of said code be amended and reenacted; and that
said code be amended by adding thereto a new section, designated §5A-3-59, all to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-1. Division created; purpose; director; applicability of article; continuation.
(a) The Purchasing Division
of within the Department of Administration is continued for the
purpose of establishing centralized offices to provide purchasing, and travel services to the various
state agencies.
(b) No person may be appointed The director of the Purchasing Division
shall unless that
person is, at the time of appointment:
(1) Be a graduate of an accredited college or university; and
(2) has Have spent a minimum of ten of the fifteen years immediately preceding his or her
appointment employed in an executive capacity in purchasing for any unit of government or for any
business, commercial or industrial enterprise.
(c) The provisions of this article apply to all of the spending units of state government, except as otherwise provided by this article or by law.
(b) (d) The provisions of this article do not apply to the
judicial branch, the legislative branch,
unless otherwise provided or the Legislature or either house requests the director to render specific
services under the provisions of the chapter nor to purchases of stock made by the Alcohol Beverage
Control Commissioner,
nor and to purchases of textbooks for the State Board of Education.
§5A-3-2. Books and records of director.
The director shall keep
in his offices accurate books, accounts and records of all transactions
of his
or her division, and such books, accounts and records shall be public records, and shall at all
proper times be available for inspection by any taxpayer of the state.
§5A-3-3. Powers and duties of director of purchasing.
The director, under the direction and supervision of the secretary, shall be the executive
officer of the Purchasing Division and shall have the power and duty to:
(1) Direct the activities and employees of the Purchasing Division;
(2) Ensure that the purchase of or contract for commodities shall be based, whenever
possible, on competitive bid;
(3) Purchasing or contract for, in the name of the state, the commodities and printing required
by the spending units of the state government;
(4) Apply and enforce standard specifications established in accordance with section five of
this article as hereinafter provided;
(5) Transfer to or between spending units or sell commodities that are surplus, obsolete or
unused as hereinafter provided;
(6) Have charge of central storerooms for the supply of spending units,
as the director deems
advisable;
(7) Establish and maintain a laboratory for the testing of commodities and make use of
existing facilities in state institutions for that purpose as hereinafter provided,
as the director deems
advisable;
(8) Suspend the right and privilege of a vendor to bid on state purchases when the director
has evidence that such vendor has violated any of the provisions of the purchasing law or the rules
and regulations of the director;
(9) Examine the provisions and terms of every contract entered into for and on behalf of the
State of West Virginia that impose any obligation upon the state to pay any sums of money for
commodities or services and approve each such contract as to such provisions and terms; and the
duty of examination and approval herein set forth does not supersede the responsibility and duty of
the Attorney General to approve such contracts as to form
: Provided, That the provisions of this
subdivision do not apply in any respect whatever to construction or repair contracts entered into by
the Division of Highways of the Department of Transportation
: Provided, however, That the
provisions of this subdivision do not apply in any respect whatever to contracts entered into by the
University of West Virginia Board of Trustees or by the Board of Directors of the State College
System, except to the extent that such boards request the facilities and services of the director under
the provisions of this subdivision; and
(10) Assure that the specifications and commodity descriptions in all 'requests for quotations'
are prepared so as to permit all potential suppliers-vendors who can meet the requirements of the
state an opportunity to bid and to assure that the specifications and descriptions do not favor a
particular brand or vendor. If the director determines that any such specifications or descriptions as
written favor a particular brand or vendor or if it is decided, either before or after the bids are opened,
that a commodity having different specifications or quality or in different quantity can be bought,
the director may rewrite the 'requests for quotations' and the matter shall be rebid.
§5A-3-4. Rules of director.
(a) The director shall propose rules for legislative approval in accordance with the provisions
of article three, chapter twenty-nine-a of this code to:
(1) Authorize a spending unit to purchase specified commodities directly and prescribe the
manner in which such purchases shall be made;
(2) Authorize, in writing, a spending unit to purchase commodities in the open market for
immediate delivery in emergencies,
define such defines emergencies and prescribe the manner in
which such purchases shall be made and reported to the director;
and for the purposes mentioned in
subdivision (1) and this subdivision (2), the head of any spending unit, or the financial governing
board of any institution, may, with the approval of the director, make requisitions upon the Auditor
for a sum to be known as an advance allowance account, in no case to exceed five percent of the total
of the appropriations for any such spending unit, and the Auditor shall draw his or her warrant upon
the Treasurer for such accounts; and all such advance allowance accounts shall be accounted for by
the head of the spending unit or institution once every thirty days or more frequently if required by
the State Auditor or director
(3) Prescribe the manner in which commodities shall be purchased, delivered, stored and
distributed;
(4) Prescribe the time for making requisitions and estimates of commodities, the future period
which they are to cover, the form in which they shall be submitted and the manner of their
authentication;
(5) Prescribe the manner of inspecting all deliveries of commodities, and making chemical
and physical tests of samples submitted with bids and samples of deliveries to determine compliance
with specifications;
(6) Prescribe the amount
and type of deposit or bond to be submitted with a bid or contract
and the amount of deposit or bond to be given for the faithful performance of a contract;
(7) Prescribe a system whereby the director shall be required, upon the payment by a vendor
of an annual fee established by the director, to give notice to such vendor of all bid solicitations for
commodities of the type with respect to which such vendor specified notice was to be given, but no
such fee shall exceed the cost of giving the notice to such vendor, nor shall such fee exceed the sum
of $125 per fiscal year nor shall such fee be charged to persons seeking only reimbursement from
a spending unit;
(8) Prescribe that each state contract entered into by the Purchasing Division shall contain
provisions for liquidated damages, remedies or provisions for the determination of the amount or
amounts which the vendor shall owe as damages, in the event of default under such contract by such
vendor,
as determined by the director;
(9) Prescribe contract management procedures for all state contracts except government
construction contracts including, but not limited to, those set forth in article twenty-two, chapter five
of this code;
(10) Prescribe procedures by which oversight is provided to actively monitor spending unit
purchases, including, but not limited to, all technology and software commodities and contractual
services exceeding $1 million, approval of change orders and final acceptance by the spending units;
(11) Prescribe that each state contract entered into by the Purchasing Division contain
provisions for the cancellation of the contract upon thirty days' notice to the vendor;
(12) Prescribe procedures for selling surplus commodities to the highest bidder by means of
an Internet auction site;
and
(13) Provide
for such other matters as may be necessary to give effect to the foregoing rules
and the provisions of this article;
and
(14) Prescribe procedures for encumbering purchase orders to ensure that the proper account
may be encumbered before sending purchase orders to vendors.
(b) The director shall propose rules for legislative approval in accordance with the provisions
of article three, chapter twenty-nine-a of this code to prescribe qualifications to be met by any person
who
on and after the effective date of this section is to be employed in the Purchasing Division as
a state buyer. The rules must provide that a person may not be employed as a state buyer unless he
or she at the time of employment either is:
(1) A graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any unit of government or for any
business, commercial or industrial enterprise.
Persons serving as state buyers are subject to the provisions of article six, chapter twenty-nine
of this code.
§5A-3-12. Prequalification disclosure and payment of annual fee by vendors required; form
and contents; register of vendors; false certificates; penalties.
(a) The director may not accept any bid received from any vendor unless the vendor has paid
the annual fee specified in section four of this article and has filed with the director
an affidavit a
certificate of the vendor or the
affidavit certificate of a member of the vendor's firm or, if the vendor
is a corporation, the
affidavit certificate of an officer, director or managing agent of the corporation,
disclosing the following information:
(1) If the vendor is an individual, his or her name and city and state of residence and business
address, and, if he or she has associates or partners sharing in his business, their names and city and
state of residence and business addresses;
(2) If the vendor is a firm, the name and city and state of residence and business address of
each member, partner or associate of the firm;
(3) If the vendor is a corporation created under the laws of this state or authorized to do
business in this state, the name and business address of the corporation; the names and city and state
of residence and business addresses of the president, vice president, secretary, treasurer and general
manager, if any, of the corporation; and the names and city and state of residence and business
addresses of each stockholder of the corporation owning or holding at least ten percent of the capital
stock thereof;
(4) A statement of whether the vendor is acting as agent for some other individual, firm or
corporation, and if so, a statement of the principal authorizing the representation shall be attached
to the
affidavit certificate or whether the vendor is doing business as another entity;
(5) The vendor's latest Dun & Bradstreet
number and rating, if there is any rating as to the
vendor;
and
(6) A list of one or more banking institutions,
if such institution is available, to serve as references for the vendor;
and
(7) The vendor's tax identification number.
(b) Whenever a change occurs in the information submitted as required, the change shall be
reported immediately in the same manner as required in the original disclosure
affidavit certificate.
(c) The
affidavit certificate and information received by the director shall be
kept in a register
of vendors which shall be made a public record.
and open to public inspection during regular
business hours in the director's office and made readily available to the public
(d) The director may waive the above requirements in the case of any corporation listed on
any nationally recognized stock exchange and in the case of any vendor who or which is the sole
source for the commodity in question.
(e) Any person who
makes an affidavit falsely submits a false certificate or who knowingly
files or causes to be filed with the director,
an affidavit a certificate containing a false statement of
a material fact or omitting any material fact, is guilty of a misdemeanor and, upon conviction, shall
be fined not more than $1,000, and, in the discretion of the court, confined in jail not more than one
year. An individual convicted of a misdemeanor under this subsection may never hold an office of
honor, trust or profit in this state, or serve as a juror.
§5A-3-18
. Substituting for commodity bearing particular trade name or brand.
If a spending unit requests the purchase of a commodity bearing a particular trade name or
brand,
and if the commodity is covered by standard specifications adopted as provided by section
five of this article the director may substitute a commodity bearing a different trade name or brand,
if the substituted commodity reasonably conforms to the adopted standard specifications and can be
obtained at an equal or lower price.
§5A-3-36. Inventory of removable property.
The director
shall have has the power and duty to
(1) make and keep current an inventory of
all removable property belonging to the state. Such inventory shall be kept on file in the office of
the director as a public record. The inventory shall disclose the name and address of the vendor, the date of purchase, the price paid for the property therein described and the disposition thereof.
(2) Provide for the maintenance and repair of all office furniture, machinery and equipment
belonging to the state, either by employing personnel and facilities under his director or by contract
with state agencies or private parties.;
§5A-3-37. Preference for resident vendors; preference for vendors employing state residents;
preference for veteran residents; exceptions.
(a)
Other provisions of this article notwithstanding, effective July 1, 1990, through June 30,
1994, in any instance involving the purchase of construction services for the construction, repair or
improvement of any buildings or portions thereof, where the total aggregate cost thereof, whether
one or a series of contracts are awarded in completing the project, is estimated by the director to
exceed the sum of $50,000 and where the director or any state department is required under the
provisions of this article to make the purchase, construction, repair or improvement upon
competitive bids, the successful bid shall be determined as provided in this section. Effective
beginning July 1, 1992, in any instance that a purchase of commodities or printing by the director
or by a state department is required under the provisions of this article to be made upon competitive
bids, the successful bid shall be determined as provided in this section. The Secretary of the
Department of Revenue shall promulgate any rules necessary to: (i) Determine that vendors have
met the residence requirements described in this section; (ii) establish the procedure for vendors to
certify the residency requirements at the time of submitting their bids; (iii) establish a procedure to
audit bids which make a claim for preference permitted by this section and to reject noncomplying
bids; and (iv) otherwise accomplish the objectives of this section. In prescribing the rules, the
secretary shall use a strict construction of the residence requirements set forth in this section. For
purposes of this section, a successful bid shall be determined and accepted as follows:
(1) From an individual resident vendor who has resided in West Virginia continuously for
the four years immediately preceding the date on which the bid is submitted or from a partnership,
association, corporation resident vendor, or from a corporation nonresident vendor which has an affiliate or subsidiary which employs a minimum of one hundred state residents and which has
maintained its headquarters or principal place of business within West Virginia continuously for four
years immediately preceding the date on which the bid is submitted, if the vendor's bid does not
exceed the lowest qualified bid from a nonresident vendor by more than two and one-half percent
of the latter bid, and if the vendor has made written claim for the preference at the time the bid was
submitted:
Provided, That for purposes of this subdivision, any partnership, association or
corporation resident vendor of this state, which does not meet the requirements of this subdivision
solely because of the continuous four-year residence requirement, shall be considered to meet the
requirement if at least eighty percent of the ownership interest of the resident vendor is held by
another individual, partnership, association or corporation resident vendor who otherwise meets the
requirements of this subdivision, including the continuous four-year residency requirement:
Provided, however, That the Secretary of the Department of Revenue shall promulgate rules relating
to attribution of ownership among several resident vendors for purposes of determining the eighty
percent ownership requirement; or
(2) From a resident vendor, if, for purposes of producing or distributing the commodities or
completing the project which is the subject of the vendor's bid and continuously over the entire term
of the project, on average at least seventy-five percent of the vendor's employees are residents of
West Virginia who have resided in the state continuously for the two immediately preceding years,
and the vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more
than two and one-half percent of the latter bid, and if the vendor has certified the residency
requirements of this subdivision and made written claim for the preference, at the time the bid was
submitted; or
(3) From a nonresident vendor, which employs a minimum of one hundred state residents or
a nonresident vendor which has an affiliate or subsidiary which maintains its headquarters or
principle principal place of business within West Virginia and which employs a minimum of one
hundred state residents, if, for purposes of producing or distributing the commodities or completing the project which is the subject of the vendor's bid and continuously over the entire term of the
project, on average at least seventy-five percent of the vendor's employees or the vendor's affiliate's
or subsidiary's employees are residents of West Virginia who have resided in the state continuously
for the two immediately preceding years and the vendor's bid does not exceed the lowest qualified
bid from a nonresident vendor by more than two and one-half percent of the latter bid, and if the
vendor has certified the residency requirements of this subdivision and made written claim for the
preference, at the time the bid was submitted; or
(4) From a vendor who meets either the requirements of both subdivisions (1) and (2) of this
subsection or subdivisions (1) and (3) of this subsection, if the bid does not exceed the lowest
qualified bid from a nonresident vendor by more than five percent of the latter bid, and if the vendor
has certified the residency requirements above and made written claim for the preference at the time
the bid was submitted; or
(5) From an individual resident vendor who is a veteran of the United States Armed Forces,
the Reserves or the National Guard and has resided in West Virginia continuously for the four years
immediately preceding the date on which the bid is submitted, if the vendor's bid does not exceed
the lowest qualified bid from a nonresident vendor by more than three and one-half percent of the
latter bid, and if the vendor has made written claim for the preference at the time the bid was
submitted; or
(6) From a resident vendor who is a veteran of the United States Armed Forces, the Reserves
or the National Guard, if, for purposes of producing or distributing the commodities or completing
the project which is the subject of the vendor's bid and continuously over the entire term of the
project, on average at least seventy-five percent of the vendor's employees are residents of West
Virginia who have resided in the state continuously for the two immediately preceding years and the
vendor's bid does not exceed the lowest qualified bid from a nonresident vendor by more than three
and one-half percent of the latter bid, and if the vendor has certified the residency requirements of
this subdivision and made written claim for the preference, at the time the bid was submitted;
or
(7) Notwithstanding any provisions of subdivisions (1), (2), (3), (4), (5) or (6) of this
subsection to the contrary, if any nonresident vendor that is bidding on the purchase of commodities
or printing by the director or by a state department is also certified as a small, women or minority-
owned business pursuant to section fifty-nine of this article, the nonresident vendor shall be provided
the same preference made available to any resident vendor under the provisions of this subsection.
(b) If the Secretary of the Department of Revenue determines under any audit procedure that
a vendor who received a preference under this section fails to continue to meet the requirements for
the preference at any time during the term of the project for which the preference was received the
secretary may: (1) Reject the vendor's bid; or (2) assess a penalty against the vendor of not more
than five percent of the vendor's bid on the project.
(c) Political subdivisions of the state including county boards of education may grant the
same preferences to any vendor of this state who has made a written claim for the preference at the
time a bid is submitted, but for the purposes of this subsection, in determining the lowest bid, any
political subdivision shall exclude from the bid the amount of business occupation taxes which must
be paid by a resident vendor to any municipality within the county comprising or located within the
political subdivision as a result of being awarded the contract which is the object of the bid; in the
case of a bid received by a municipality, the municipality shall exclude only the business and
occupation taxes as will be paid to the municipality:
Provided, That prior to soliciting any
competitive bids, any political subdivision may, by majority vote of all its members in a public
meeting where all the votes are recorded, elect not to exclude from the bid the amount of business
and occupation taxes as provided in this subsection.
(d) If any of the requirements or provisions set forth in this section jeopardize the receipt of
federal funds, then the requirement or provisions are void and of no force and effect for that specific
project.
(e) If any provision or clause of this section or application thereof to any person or
circumstance is held invalid, the invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the
provisions of this section are severable.
(f) This section may be cited as the 'Jobs for West Virginians Act of 1990.'
§5A-3-59. Small, women and minority-owned businesses.
(a) As used in this section:
(1) 'Minority individual' means an individual who is a citizen of the United States or a
noncitizen who is in full compliance with United States immigration law and who satisfies one or
more of the following definitions:
(A) 'African American' means a person having origins in any of the original peoples of
Africa and who is regarded as such by the community of which this person claims to be a part.
(B) 'Asian American' means a person having origins in any of the original peoples of the Far
East, Southeast Asia, the Indian subcontinent or the Pacific Islands, including, but not limited to,
Japan, China, Vietnam, Samoa, Laos, Cambodia, Taiwan, Northern Mariana, the Philippines, a U.S.
territory of the Pacific, India, Pakistan, Bangladesh, or Sri Lanka and who is regarded as such by the
community of which this person claims to be a part.
(C) 'Hispanic American' means a person having origins in any of the Spanish-speaking
peoples of Mexico, South or Central America, or the Caribbean Islands or other Spanish or
Portuguese cultures and who is regarded as such by the community of which this person claims to
be a part.
(D) 'Native American' means a person having origins in any of the original peoples of North
America and who is regarded as such by the community of which this person claims to be a part or
who is recognized by a tribal organization.
(2) 'Minority-owned business' means a business concern that is at least fifty-one percent
owned by one or more minority individuals or in the case of a corporation, partnership, or limited
liability company or other entity, at least fifty-one percent of the equity ownership interest in the
corporation, partnership, or limited liability company or other entity is owned by one or more minority individuals and both the management and daily business operations are controlled by one
or more minority individuals.
(3) 'Small business' means a business, independently owned or operated by one or more
persons who are citizens of the United States or noncitizens who are in full compliance with United
States immigration law, which, together with affiliates, has two hundred fifty or fewer employees,
or average annual gross receipts of $10 million or less averaged over the previous three years.
(4) 'State agency' means any authority, board, department, instrumentality, institution,
agency, or other unit of state government. 'State agency' does not include any county, city or town.
(5) 'Women-owned business' means a business concern that is at least fifty-one percent
owned by one or more women who are citizens of the United States or noncitizens who are in full
compliance with United States immigration law, or in the case of a corporation, partnership or
limited liability company or other entity, at least fifty-one percent of the equity ownership interest
is owned by one or more women who are citizens of the United States or noncitizens who are in full
compliance with United States immigration law, and both the management and daily business
operations are controlled by one or more women who are citizens of the United States or noncitizens
who are in full compliance with United States immigration law.
(b) State agencies shall submit annual progress reports on small, women and minority-owned
business procurement to the Department of Administration in a form specified by the Department
of Administration.
(c) The Department of Administration shall propose rules, for legislative approval pursuant
to article three, chapter twenty-nine-a, to implement certification programs for small, women and
minority-owned businesses. These certification programs shall deny certification to vendors from
states that deny like certifications to West Virginia-based small, women or minority-owned
businesses or that provide a preference for small, women or minority-owned businesses based in that
state that is not available to West Virginia-based businesses. The rules shall:
(1) Establish minimum requirements for certification of small, women and minority-owned businesses;
(2) Provide a process for evaluating existing local, state, private sector and federal
certification programs that meet the minimum requirements; and
(3) Mandate certification, without any additional paperwork or fee, of any prospective state
vendor that has obtained certification under any certification program that is determined to meet the
minimum requirements established in the regulations."
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. 409), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Cann and Ross.
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. 4582) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 410), and there were--yeas 96, nays
none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Boggs, Cann and Ross.
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. 4582) 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 refused to concur in the amendment
of the House of Delegates and requested the House to recede from its amendment.
S. B. 372, Updating language in WV Medical Practice Act.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
On motion of Delegate Boggs, the House of Delegates refused to recede from its amendment.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 411),
and there were--yeas 89, nays 8, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Armstead, Lane, McGeehan, J. Miller, Porter, Sobonya, Sumner and Walters.
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 372) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4647, Relating to the regulation and control of elections.
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 §3-9-14 of the Code of West Virginia, 1931, as amended, be repealed; that §3-8-1,
§3-8-1a, §3-8-2, §3-8-8 and §3-8-12 of said code be amended and reenacted, all to read as follows:
ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.
§3-8-1. Provisions to regulate and control elections.
(a) The Legislature finds that:
(1) West Virginia's population is 1,808,344, ranking 37th among the fifty states.
(2) State Senate districts have a population of approximately one hundred six thousand three
hundred seventy-three, and the average Delegate district has a population of approximately thirty-one thousand, one hundred seventy-eight. The size of these districts is substantially smaller than the
United States Senatorial and Congressional Districts.
(3) When the relatively small size of the State's legislative and other voting districts is
combined with the economics and typical uses of various forms of electioneering communication,
history shows that non-broadcast media is and will continue to be a widely used means of making
campaign related communications to target relevant audiences. Consequently, non-broadcast
communications are prevalent during elections.
(4) Disclosure provisions are appropriate legislative weapons against the reality or
appearance of improper influence stemming from the dependence of candidates on large campaign
contributions, and the ceilings imposed accordingly serve the basic governmental interest in
safeguarding the integrity of the electoral process without directly impinging upon the rights of
individual citizens and candidates to engage in political debate and discussion.
(5) Disclosure of expenditures serve a substantial governmental interest in informing the
electorate and preventing the corruption of the political process.
(6) Disclosure by persons and entities that make expenditures for communications that
expressly advocate the election or defeat of clearly identified candidates, or perform its functional
equivalent, is a reasonable and minimally restrictive method of furthering First Amendment values
by public exposure of the state election system.
(7) Failing to regulate non-broadcast media messages would permit those desiring to
influence elections to avoid the principles and policies that are embodied in existing state law.
(8) The regulation of the various types of non-broadcast media
embodied within the
amendments enacted during the second extraordinary session of two thousand eight, in addition to
broadcast media, is tailored to meet the circumstances found in the State of West Virginia.
(9) Non-broadcast media such as
mass mailing, telephone banks and billboards newspapers,
magazines or other periodicals have proven to be effective means of election communication in West
Virginia. Broadcast, satellite and non-broadcast media have all been used to influence election outcomes.
(10)
Mass mailing and telephone Certain non-broadcast communications,
such as newspaper
inserts, can be more effective campaign methods than broadcast media because such
communications can be targeted to registered voters or historical voters in the particular district. In
contrast, broadcasted messages reach all of the general public, including person ineligible to vote in
the district.
(11)
Mass mailings or telephone Non-broadcast media communications in the final days of
a campaign can be particularly damaging to the public's confidence in the election process because
they reduce or make impossible an effective response.
(12) Identifying those funding
mass mailing or telephone non-broadcast media campaigns
in the final days of a campaign may at least permit voters to evaluate the credibility of the message.
(13) In West Virginia, contributions up to the amounts specified in this article allow
contributors to express their opinions, level of support and their affiliations.
(14) In West Virginia, campaign expenditures by entities and persons who are not candidates
have been increasing. Public confidence is eroded when substantial amounts of such money, the
source of which is hidden or disguised, is expended. This is particularly true during the final days
of a campaign.
(15) In West Virginia, contributions to political organizations
, (defined in Section 527(e)(1)
of the Internal Revenue Code of 1986
), substantially larger than the amounts permitted to be received
by a candidate's political committee have been recorded and are considered by the legislature to be
large contributions.
(16) Independent expenditures intended to influence candidates' campaigns in the state are
increasingly utilizing non-broadcast media to support or defeat candidates.
(17) Identification of persons or entities funding political advertisements assists in
enforcement of the contribution and expenditure limitations established by this article and simply
informs voters of the actual identities of persons or entities advocating the election or defeat of candidates.
(18) Identification of persons or entities funding political advertisements allows voters to
evaluate the credibility of the message contained in the advertisement.
(19) Disclosure of the identity of persons or entities funding political communications
regarding candidates bolsters the right of listeners to be fully informed.
(b) Political campaign contributions, receipts and expenditures of money, advertising,
influence and control of employees, and other economic, political and social control factors incident
to primary, special and general elections shall be regulated and controlled by the provisions of this
article and other applicable provisions of this chapter.
§3-8-1a. Definitions.
As used in this article, the following terms have the following definitions:
(1) 'Ballot issue' means a constitutional amendment, special levy, bond issue, local option
referendum, municipal charter or revision, an increase or decrease of corporate limits or any other
question that is placed before the voters for a binding decision.
(2) 'Billboard' means a commercially available outdoor advertisement, sign or similar display
regularly available for lease or rental to advertise a person, place or product.
(3) (2) 'Broadcast, cable or satellite communication' means a communication that is publicly
distributed by a television station, radio station, cable television system or satellite system.
(4) (3) 'Candidate' means an individual who:
(A) Has filed a certificate of announcement under section seven, article five of this chapter
or a municipal charter;
(B) Has filed a declaration of candidacy under section twenty-three, article five of this
chapter;
(C) Has been named to fill a vacancy on a ballot; or
(D) Has declared a write-in candidacy or otherwise publicly declared his or her intention to
seek nomination or election for any state, district, county or municipal office or party office to be filled at any primary, general or special election.
(5) (4) 'Candidate's committee' means a political committee established with the approval
of or in cooperation with a candidate or a prospective candidate to explore the possibilities of
seeking a particular office or to support or aid his or her nomination or election to an office in an
election cycle. If a candidate directs or influences the activities of more than one active committee
in a current campaign, those committees shall be considered one committee for the purpose of
contribution limits.
(6) (5) 'Clearly identified' means that the name, nickname, photograph, drawing or other
depiction of the candidate appears or the identity of the candidate is otherwise apparent through an
unambiguous reference, such as 'the Governor', 'your Senator' or 'the incumbent' or through an
unambiguous reference to his or her status as a candidate, such as 'the Democratic candidate for
Governor' or 'the Republican candidate for Supreme Court of Appeals'.
(7) (6) 'Contribution' means a gift, subscription,
loan, assessment, payment for services,
dues, advance, donation, pledge, contract, agreement, forbearance or promise of money or other
tangible thing of value, whether conditional or legally enforceable, or a transfer of money or other
tangible thing of value to a person, made for the purpose of influencing the nomination, election or
defeat of a candidate. An offer or tender of a contribution is not a contribution if expressly and
unconditionally rejected or returned. A contribution does not include volunteer personal services
provided without compensation:
Provided, That a nonmonetary contribution is to be considered at
fair market value for reporting requirements and contribution limitations.
(8) (7) 'Corporate political action committee' means a political action committee that is a
separate segregated fund of a corporation that may only accept contributions from its restricted group
as outlined by the rules of the State Election Commission.
(9) (8) 'Direct costs of purchasing, producing or disseminating electioneering
communications' means:
(A) Costs charged by a vendor, including, but not limited to, studio rental time, compensation of staff and employees, costs of video or audio recording media and talent, material and printing
costs and postage; or
(B) The cost of air time on broadcast, cable or satellite radio and television stations, the costs
of disseminating printed materials,
establishing a telephone bank, studio time, use of facilities and
the charges for a broker to purchase air time.
(10) (9) 'Disclosure date' means either of the following:
(A) The first date during any calendar year on which any electioneering communication is
disseminated after the person paying for the communication has spent a total of $5,000 or more for
the direct costs of purchasing, producing or disseminating electioneering communications; or
(B) Any other date during that calendar year after any previous disclosure date on which the
person has made additional expenditures totaling $5,000 or more for the direct costs of purchasing,
producing or disseminating electioneering communications.
(11) (10) 'Election' means any primary, general or special election conducted under the
provisions of this code or under the charter of any municipality at which the voters nominate or elect
candidates for public office. For purposes of this article, each primary, general, special or local
election constitutes a separate election. This definition is not intended to modify or abrogate the
definition of the term 'nomination' as used in this article.
(12) (11) (A) 'Electioneering communication' means any paid communication made by
broadcast, cable or satellite signal,
mass mailing, telephone bank, billboard advertising or published
in any newspaper, magazine or other periodical that:
(i) Refers to a clearly identified candidate for Governor, Secretary of State, Attorney General,
Treasurer, Auditor, Commissioner of Agriculture, Supreme Court of Appeals or the Legislature;
(ii) Is publicly disseminated within:
(I) Thirty days before a primary election at which the nomination for office sought by the
candidate is to be determined; or
(II) Sixty days before a general or special election at which the office sought by the candidate is to be filled; and
(iii) Is targeted to the relevant electorate:
Provided, That for purposes of the general election
of 2008 the amendments to this article
shall be are effective October 1, 2008.
(B) 'Electioneering communication' does not include:
(i) A news story, commentary or editorial disseminated through the facilities of any
broadcast, cable or satellite television or radio station, newspaper, magazine or other periodical
publication not owned or controlled by a political party, political committee or candidate:
Provided,
That a news story disseminated through a medium owned or controlled by a political party, political
committee or candidate is nevertheless exempt if the news is:
(I) A bona fide news account communicated in a publication of general circulation or through
a licensed broadcasting facility; and
(II) Is part of a general pattern of campaign-related news that gives reasonably equal coverage
to all opposing candidates in the circulation, viewing or listening area;
(ii) Activity by a candidate committee, party executive committee or caucus committee, or
a political action committee that is required to be reported to the State Election Commission or the
Secretary of State as an expenditure pursuant to section five of this article or the rules of the State
Election Commission or the Secretary of State promulgated pursuant to such provision:
Provided,
That independent expenditures by a party executive committee or caucus committee or a political
action committee required to be reported pursuant to subsection (b), section two of this article are
not exempt from the reporting requirements of this section;
(iii) A candidate debate or forum conducted pursuant to rules adopted by the State Election
Commission or the Secretary of State or a communication promoting that debate or forum made by
or on behalf of its sponsor;
(iv) A communication paid for by any organization operating under Section 501(c)(3) of the
Internal Revenue Code of 1986;
(v) A communication made while the Legislature is in session which, incidental to promoting or opposing a specific piece of legislation pending before the Legislature, urges the audience to
communicate with a member or members of the Legislature concerning that piece of legislation;
(vi) A statement or depiction by a membership organization, in existence prior to the date on
which the individual named or depicted became a candidate, made in a newsletter or other
communication distributed only to bona fide members of that organization;
(vii) A communication made solely for the purpose of attracting public attention to a product
or service offered for sale by a candidate or by a business owned or operated by a candidate which
does not mention an election, the office sought by the candidate or his or her status as a candidate;
or
(viii) A communication, such as a voter's guide, which refers to all of the candidates for one
or more offices, which contains no appearance of endorsement for or opposition to the nomination
or election of any candidate and which is intended as nonpartisan public education focused on issues
and voting history.
(13) (12) 'Expressly advocating' means any communication that:
(A) Uses phrases such as 'vote for the Governor', 're-elect your Senator', 'support the
Democratic nominee for Supreme Court', 'cast your ballot for the Republican challenger for House
of Delegates', 'Smith for House,' 'Bob Smith in "04"', 'vote Pro-Life or 'vote Pro-Choice'
accompanied by a listing of clearly identified candidates described as Pro-Life or Pro-Choice, 'vote
against Old Hickory', 'defeat' accompanied by a picture of one or more candidates, 'reject the
incumbent
'
,; or
(B) communications Communications of campaign slogans or individual words, that
in
context can have no other reasonable meaning than to urge the election or defeat of one or more
clearly identified candidates, such as posters, bumper stickers, advertisements, etc.
, which say
'Smith's the One', 'Jones "06"', 'Baker'
, etc; or
(B) When considered in its entirety, the communication can only be interpreted by a
reasonable person as advocating the election or defeat of one or more clearly identified candidates because:
(i) The electoral portion of the communication is unmistakable, unambiguous, and suggestive
of only one meaning; and
(ii) Reasonable minds could not differ as to whether it encourages actions to elect or defeat
one or more clearly identified candidates
(C) Is susceptible of no reasonable interpretation other than as an appeal to vote for or against
a specific candidate.
(14) (13) 'Financial agent' means any individual acting for and by himself or herself, or any
two or more individuals acting together or cooperating in a financial way to aid or take part in the
nomination or election of any candidate for public office, or to aid or promote the success or defeat
of any political party at any election.
(15) (14) 'Fund-raising event' means an event such as a dinner, reception, testimonial,
cocktail party, auction or similar affair through which contributions are solicited or received by such
means as the purchase of a ticket, payment of an attendance fee or by the purchase of goods or
services.
(16) (15) 'Independent expenditure' means an expenditure by a person:
(A) Expressly advocating the election or defeat of a clearly identified candidate; and
(B) That is not made in concert or cooperation with or at the request or suggestion of such
candidate, his or her agents, the candidate's authorized political committee or a political party
committee or its agents.
Supporting or opposing the election of a clearly identified candidate includes supporting or
opposing the candidates of a political party. An expenditure which does not meet the criteria for an
independent expenditure is considered a contribution.
(17) 'Mass mailing' means a mailing by United States mail, facsimile or electronic mail of
more than five hundred pieces of mail matter of an identical or substantially similar nature within
any thirty-day period. For purposes of this subdivision, substantially similar includes communications that contain substantially the same template or language, but vary in nonmaterial
respects such as communications customized by the recipient's name, occupation or geographic
location.
(18) (16) 'Membership organization' means a group that grants bona fide rights and
privileges, such as the right to vote, to elect officers or directors and the ability to hold office, to its
members and which uses a majority of its membership dues for purposes other than political
purposes. 'Membership organization' does not include organizations that grant membership upon
receiving a contribution.
(19) (17) 'Name' means the full first name, middle name or initial, if any, and full legal last
name of an individual and the full name of any association, corporation, committee or other
organization of individuals, making the identity of any person who makes a contribution apparent
by unambiguous reference.
(20) (18) 'Person' means an individual,
corporation, partnership, committee, association and
any other organization or group of individuals.
(21) (19) 'Political action committee' means a committee organized by one or more persons
for the purpose of supporting or opposing the nomination or election of one or more candidates. The
following are types of political action committees:
(A) A corporate political action committee, as that term is defined by subdivision (8) of this
section;
(B) A membership organization, as that term is defined by subdivision(18) of this section;
(C) An unaffiliated political action committee, as that term is defined by subdivision (29) of
this section.
(22) (20) 'Political committee' means any candidate committee, political action committee
or political party committee.
(23) (20) 'Political party' means a political party as that term is defined by section eight,
article one of this chapter or any committee established, financed, maintained or controlled by the party, including any subsidiary, branch or local unit thereof and including national or regional
affiliates of the party.
(24) (22) 'Political party committee' means a committee established by a political party or
political party caucus for the purposes of engaging in the influencing of the election, nomination or
defeat of a candidate in any election.
(25) (23) 'Political purposes' means supporting or opposing the nomination, election or
defeat of one or more candidates or the passage or defeat of a ballot issue, supporting the retirement
of the debt of a candidate or political committee or the administration or activities of an established
political party or an organization which has declared itself a political party and determining the
advisability of becoming a candidate under the precandidacy financing provisions of this chapter.
(26) (24) 'Targeted to the relevant electorate' means a communication which refers to a
clearly identified candidate for statewide office or the Legislature and which can be received by
ten
thousand one hundred forty thousand or more individuals in the state in the case of a candidacy for
statewide office,
eight thousand two hundred twenty or more individuals in the district in the case
of a candidacy for the State Senate and
five hundred two thousand four hundred ten or more
individuals in the district in the case of a candidacy for the
Legislature House of Delegates.
(27) 'Telephone bank' means telephone calls that are targeted to the relevant electorate, other
than telephone calls made by volunteer workers, regardless of whether paid professionals designed
the telephone bank system, developed calling instructions or trained volunteers.
(28) (25) 'Two-year election cycle' means the twenty-four month period that begins the day
after a general election and ends on the day of the subsequent general election.
(29) (26) 'Unaffiliated political action committee' means a political action committee that
is not affiliated with a corporation or a membership organization.
§3-8-2. Accounts for receipts and expenditures in elections; requirements for reporting
independent expenditures.
(a) Except for: (1) Candidates for party committeeman and committeewoman; and (2) federal committees required to file under the provisions of 2 U.S.C.§434, all candidates for
nomination or election and all persons supporting, aiding or opposing the nomination, election or
defeat of any candidate shall keep for a period of six months records of receipts and expenditures
which are made for political purposes. All of the receipts and expenditures are subject to regulation
by the provisions of this article. Verified financial statements of the records and expenditures shall
be made and filed as public records by all candidates and by their financial agents, representatives
or any person acting for and on behalf of any candidate and by the treasurers of all political party
committees.
(b)
(1) In addition to any other reporting required by the provisions of this chapter,
any person
making an independent expenditure in the amount of one thousand dollars or more for any statewide,
legislative or multicounty judicial candidate or in the amount of five hundred dollars or more for any
county office, single-county judicial candidate, committee supporting or opposing a candidate on the
ballot in more than one county, or any municipal candidate on a municipal election ballot, on or after
the fifteenth day but more than twelve hours before the day of any election shall report the
expenditure,
any person who makes independent expenditures in an aggregate amount or value in
excess of $1,000 during a calendar year shall file a disclosure statement, on a form prescribed by the
Secretary of State,
that contains all of the following information:
(A) The name of (i) the person making the expenditure; (ii) the name of any person sharing
or exercising direction or control over the activities of the person making the expenditure; and (iii)
the name of the custodian of the books and accounts of the person making the expenditure;
(B) If the person making the expenditure is not an individual, the principal place of business
of the partnership, corporation, committee, association, organization or group which made the
expenditure;
(C) The amount of each expenditure of more than $1,000 made during the period covered
by the statement and the name of the person to whom the expenditure was made;
(D) The elections to which the independent expenditure pertain, the names, if known, of the candidates referred to or to be referred to therein, whether the expenditure is intended to support or
oppose the identified candidates and the amount of the total expenditure reported pursuant to
paragraph (C) of this subdivision spent to support or oppose each of the identified candidates;
(E) The name and address of any person who contributed a total of more than $250 between
the first day of the preceding calendar year, and the disclosure date, and whose contributions were
made for the purpose of furthering the expenditure.
(F) With regard to the contributors required to be listed pursuant to paragraph (E) of this
subdivision, the statement shall also include:
(i) The month, day and year that the contributions of any single contributor exceeded $250;
(ii) If the contributor is a political action committee, the name and address the political action
committee registered with the Secretary of State, county clerk or municipal clerk;
(iii) If the contributor is an individual, the name and address of the individual, his or her
occupation, the name and address of the individual's current employer, if any, or, if the individual
is self-employed, the name and address of the individual's business, if any;
(iv) A description of the contribution, if other than money; and
(v) The value in dollars and cents of the contribution.
(G)(1) A certification that such independent expenditure was not made in cooperation,
consultation, or concert, with, or at the request or suggestion of, any candidate or any authorized
committee or agent of such candidate.
(2) Any person who makes a contribution for the purpose of funding an independent
expenditure under this subsection shall, at the time the contribution is made, provide his or her name,
address, occupation, his or her current employer, if any, or, if the individual is self-employed, the
name of his or her business, if any, to the recipient of the contribution.
(3) The Secretary of State shall expeditiously prepare indices setting forth, on a
candidate-by-candidate basis, all independent expenditures separately, made by, or on behalf of, or
for, or against each candidate, as reported under this subsection, and for periodically publishing such indices on a timely pre-election basis.
(c) (1) A person, including a political committee, who makes or contracts to make
independent expenditures aggregating $1,000 or more for any statewide, legislative or multi-county
judicial candidate or $500 or more for any county office, single-county judicial candidate, committee
supporting or opposing a candidate on the ballot in more than one county, or any municipal candidate
on a municipal election ballot, after the fifteenth day, but more than twelve hours, before the date
of an election, shall file a report on a form prescribed by the Secretary of State, describing the
expenditures within twenty-four hours:
after the expenditure is made or debt is incurred for a
communication, to the Secretary of State by hand-delivery, facsimile or other means to assure receipt
by the Secretary of State within the twenty-four hour period Provided, That a person making
expenditures in the amount of $1,000 or more for any statewide or legislative candidate on or after
the fifteenth day but more than twelve hours before the day of any election shall report such
expenditures in accordance with section two-b of this article and shall not file an additional report
as provided herein.
(2) Any person who files a report under subdivision (1) of this subsection, shall file an
additional report within twenty-four hours after each time the person makes or contracts to make
independent expenditures aggregating an additional $500 with respect to the same election, for any
county office, single-county judicial candidate, committee supporting or opposing a candidate on the
ballot in more than one county, or any municipal candidate on a municipal election ballot, as that to
which the initial report relates.
(d) (1) A person, including a political committee, who makes or contracts to make
independent expenditures aggregating $10,000 or more at any time up to and including the fifteenth
day before the date of an election shall file a report on a form prescribed by the Secretary of State,
describing the expenditures within forty-eight hours.
(2) A person who files a report under subdivision (1) of this subsection, the person shall file
an additional report within forty-eight hours after each time the person makes or contracts to make independent expenditures aggregating an additional $10,000 with respect to the same election as that
to which the initial report relates.
(c) (e) Any communication paid for by an independent expenditure must include a clear and
conspicuous public notice
which identifies the name of the person who paid for the expenditure and
states that the communication is not authorized by the candidate or his or her committee that:
(1) Clearly states that the communication is not authorized by the candidate or the candidate's
committee; and
(2) Clearly identifies the person making the expenditure: Provided, That if the
communication appears on or is disseminated by broadcast, cable or satellite transmission, the
statement required by this subsection must be both spoken clearly and appear in clearly readable
writing at the end of the communication.
(d) (f) Any person who has spent a total of $5,000 or more for the direct costs of purchasing,
producing or disseminating electioneering communications during any calendar year shall maintain
all financial records and receipts related to such expenditure for a period of six months following the
filing of a disclosure pursuant to subsection (a) of this section and, upon request, shall make such
records and receipts available to the Secretary of State or county clerk for the purpose of an audit as
provided in section seven of this article.
(e) (g) Any person who willfully fails to comply with this section is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than $500, or confined in jail for not more than
one year, or both fined and confined.
(h) (1) Any person who is required to file a statement under this section may file the
statement by facsimile device or electronic mail, in accordance with such rules as the Secretary of
State may promulgate.
(2) The Secretary of State shall make any document filed electronically pursuant to this
subsection accessible to the public on the internet not later than twenty-four hours after the document
is received by the secretary.
(3) In promulgating a rule under this subsection, the secretary shall provide methods, other
than requiring a signature on the document being filed, for verifying the documents covered by the
rule. Any document verified under any of the methods shall be treated for all purposes, including
penalties for perjury, in the same manner as a document verified by signature.
(i) This section does not apply to candidates for federal office.
(j) The Secretary of State may promulgate emergency and legislative rules, in accordance
with the provisions of chapter twenty-nine-a of this code, to establish guidelines for the
administration of this section.
§3-8-8. Corporation contributions forbidden; exceptions; penalties; promulgation of rules;
additional powers of State Election Commission.
(a)
Notwithstanding any provision of section two-b of this article, No An officer, agent or
person acting on behalf of any corporation, whether incorporated under the laws of this or any other
state or of a foreign country, may
not pay, give, lend or authorize to be paid,
given or lent any money
or other thing of value belonging to the corporation
for the purpose of expressly advocating the
election or defeat of a clearly identified candidate for state, district, county or municipal office, to
any candidate
financial agent, political committee or other person or candidate's campaign for
nomination or election to any statewide office or any other elective office in the state or any of its
subdivisions.
(b) No A person may
not solicit or receive any payment, contribution or other thing from any
corporation or from any officer, agent or other person acting on behalf of the corporation
to any
candidate or candidate's campaign for nomination or election to any statewide office or any other
elective office in the state or any of its subdivisions.
(b) (c)(1) The provisions of this section do not prohibit a corporation from
(A) Directly communicating with its stockholders and executive or administrative personnel
and their families on any subject: Provided, That the communication is not by newspapers of general
circulation, radio, television or billboard advertising likely to reach the general public;
(B) Conducting nonpartisan registration and get-out-the-vote campaigns aimed at its
stockholders and executive or administrative personnel and their families;
(C) soliciting, through any officer, agent or person acting on behalf of the corporation,
contributions to a separate segregated fund to be used for political purposes. Any separate
segregated fund is considered a political action committee for the purpose of this article and is
subject to all reporting requirements applicable to political action committees;
and
(D) Corporations may make disbursements for political purposes, as such are defined by the
provisions of subdivision (25), subsection (a), section one-a of this article, that do not expressly
advocate for the election or defeat of a clearly identified candidate. A disbursement for political
purposes is permissible if it:
(i) Does not reference an election, candidacy, political party, opposing candidate or voting
by the general public;
(ii) Does not take a position on any candidate's or officeholder's character, qualifications,
or fitness for office; and
(iii) Focuses on a legislative, executive, or judicial matter or issue which either:
(I) Urges a candidate to take a particular position or action with respect to the matter or issue;
or
(II) Urges the public to adopt a particular position and to contact the candidate with respect
to the matter or issue; or
(iv) Proposes a commercial transaction, such as purchase of a book, video, or other product
or service, or attendance (for a fee) at a film exhibition or other event.
(2) It is unlawful for:
(A) A
corporation or separate segregated fund to make a primary or other election
contribution or expenditure by using money or anything of value secured: (i) By physical force, job
discrimination or financial reprisal; (ii) by the threat of force, job discrimination or financial reprisal;
or (iii) as a condition of employment;
or (iv) in any commercial transaction;
(B) Any person soliciting a stockholder or executive or administrative personnel and
members of their families for a contribution to a
corporation or separate segregated fund to fail to
inform the person solicited of the political purposes of the separate segregated fund at the time of
the solicitation;
(C) Any person soliciting any other person for a contribution to a
corporation or separate
segregated fund to fail to inform the person solicited at the time of the solicitation of his or her right
to refuse to contribute without any reprisal;
(D) A
corporation or a separate segregated fund established by a corporation: (i) To solicit
contributions to the fund from any person other than the corporation's stockholders and their families
and its executive or administrative personnel and their families; or (ii) to contribute any corporate
funds;
(E) A
corporation or a separate segregated fund established by a corporation to receive
contributions to the fund from any person other than the corporation's stockholders and their
immediate families and its executive or administrative personnel and their immediate families;
(F) A corporation to engage in job discrimination or to discriminate in job promotion or
transfer because of an employee's failure to make a contribution to
the corporation or a separate
segregated fund;
(G) A separate segregated fund to make any contribution, directly or indirectly, in excess of
$1,000 in connection with or on behalf of any campaign for nomination or election to any elective
office in the state or any of its subdivisions, or in connection with or on behalf of any committee or
other organization or person engaged in furthering, advancing, supporting or aiding the nomination
or election of any candidate for any such office;
(H) A corporation to pay, give or lend or to authorize payment, giving or lending of any
moneys or other things of value belonging to the corporation to a separate segregated fund for
any
the purpose
of making a contribution to a candidate or a candidate's committee. This provision does
not prohibit a separate segregated fund from using the property, real or personal, facilities and equipment of a corporation solely to establish, administer and solicit contributions to the fund,
subject to the rules of the State Election Commission as provided in subsection (d) of this section:
Provided, That any such corporation shall also permit any group of its employees represented by a
bona fide political action committee to use the real property of the corporation solely to establish,
administer and solicit contributions to the fund of the political action committee, subject to the rules
of the State Election Commission promulgated in accordance with said subsection.
No corporation
may use its property, real or personal, facilities, equipment, materials or services for the purpose of
expressly advocating the election or defeat of a clearly identified candidate for state, district, county
or municipal office.
(3) For the purposes of this section, the term 'executive or administrative personnel' means
individuals employed by a corporation who are paid on a salary rather than hourly basis and who
have policy-making, managerial, professional or supervisory responsibilities.
(c) (d) Any person or corporation violating any provision of this section is guilty of a
misdemeanor and,
on upon conviction
thereof, shall be fined not more than $10,000.
No A
corporation may
not reimburse any person the amount of any fine imposed pursuant to this section.
(d) (e) To ensure uniform administration and application of the provisions of this section and
of those of the Federal Election Campaign Act Amendments of 1976 relating to corporate
contributions, the State Election Commission 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 section consistent, insofar as practicable, with the rules and regulations
promulgated by the Federal Election Commission to carry out similar or identical provisions of 2
U.S.C. §441b.
(e) (f) In addition to the powers and duties set forth in article one-a of this chapter, the State
Election Commission has the following powers and duties:
(1) To investigate, upon complaint or on its own initiative, any alleged violations or
irregularities of this article.
(2) To administer oaths and affirmations, issue subpoenas for the attendance of witnesses,
issue subpoenas duces tecum to compel the production of books, papers, records and all other
evidence necessary to any investigation.
(3) To involve the aid of any circuit court in the execution of its subpoena power.
(4) To report any alleged violations of this article to the appropriate prosecuting attorney
having jurisdiction, which prosecuting attorney shall present to the grand jury such alleged
violations, together with all evidence relating thereto, no later than the next term of court after
receiving the report.
(f) (g) The Attorney General shall, when requested, provide legal and investigative assistance
to the State Election Commission.
(g) (h) Any investigation, either upon complaint or initiative, shall be conducted in an
executive session of the State Election Commission and shall remain undisclosed except upon an
indictment by a grand jury.
(h) (i) Any person who discloses the fact of any complaint, investigation or report or any part
thereof, or any proceedings thereon, is guilty of a misdemeanor and, upon conviction
thereof, shall
be fined not less than $1,000, nor more than $5,000, and shall be
imprisoned confined in jail not less
than six months nor more than one year.
(i) (j) The amendments to this section enacted during the second extraordinary session of
2008 are intended to conform to the existing proscription to constitutionally permissible limits and
not to create a new offense or offenses.
(j) (k) The effective date of the amendments to this section enacted during the second
extraordinary legislative session of 2008
shall be is October 1, 2008.
§3-8-12. Additional acts forbidden; circulation of written matter; newspaper advertising;
solicitation of contributions; intimidation and coercion of employees; promise
of employment or other benefits; limitations on contributions; public
contractors; penalty.
(a)
No A person may
not publish, issue or circulate, or cause to be published, issued or
circulated, any anonymous letter, circular, placard, radio or television advertisement or other
publication supporting or aiding the election or defeat of a clearly identified candidate.
(b)
No An owner, publisher, editor or employee of a newspaper or other periodical may
not
insert, either in its advertising or reading columns, any matter, paid for or to be paid for, which tends
to influence the voting at any election, unless directly designating it as a paid advertisement and
stating the name of the person authorizing its publication and the candidate in whose behalf it is
published.
(c)
No A person may
not, in any room or building occupied for the discharge of official duties
by any officer or employee of the state or a political subdivision of the state, solicit orally or by
written communication delivered within the room or building, or in any other manner, any
contribution of money or other thing of value for any party or political purpose, from any postmaster
or any other officer or employee of the federal government, or officer or employee of the State, or
a political subdivision of the State.
No An officer, agent, clerk or employee of the federal
government, or of this state, or any political subdivision of the state, who may have charge or control
of any building, office or room, occupied for any official purpose, may
not knowingly permit any
person to enter any building, office or room, occupied for any official purpose for the purpose of
soliciting or receiving any political assessments from, or delivering or giving written solicitations
for, or any notice of, any political assessments to, any officer or employee of the state, or a political
subdivision of the state.
(d) Except as provided in section eight of this article,
no a person entering into any contract
with the state or its subdivisions, or any department or agency of the state, either for rendition of
personal services or furnishing any material, supplies or equipment or selling any land or building
to the state, or its subdivisions, or any department or agency of the state, if payment for the
performance of the contract or payment for the material, supplies, equipment, land or building is to
be made, in whole or in part, from public funds may
not, during the period of negotiation for or performance under the contract or furnishing of materials, supplies, equipment, land or buildings,
directly or indirectly, make any contribution to any political party, committee or candidate for public
office or to any person for political purposes or use; nor may any person or firm solicit any
contributions for any purpose during any period.
(e)
No A person may
not, directly or indirectly, promise any employment, position, work,
compensation or other benefit provided for, or made possible, in whole or in part, by act of the
Legislature, to any person as consideration, favor or reward for any political activity for the support
of or opposition to any candidate, or any political party in any election.
(f)
Except as provided in section eight of this article, no a person may
not, directly or
indirectly, make any contribution in excess of the value of $1,000 in connection with any campaign
for nomination or election to or on behalf of any statewide office, in connection with any other
campaign for nomination or election to or on behalf of any other elective office in the state or any
of its subdivisions, or in connection with or on behalf of any person engaged in furthering,
advancing, supporting or aiding the nomination or election of any candidate for any of the offices.
(g)
No A political organization (as defined in Section 527(e)(1) of the Internal Revenue Code
of 1986) may
not solicit or accept contributions until it has notified the Secretary of State of its
existence and of the purposes for which it was formed. During the two-year election cycle, a
political organization (as defined in Section 527 (e) (1) of the Internal Revenue Code of 1986) may
not accept contributions totaling more than $1,000 from any one person prior to the primary election
and contributions totaling more than $1,000 from any one person after the primary and before the
general election.
(h) It
shall be is unlawful for any person to create, establish or organize more than one
political organization (as defined in Section 527(e)(1) of the Internal Revenue Code of 1986) with
the intent to avoid or evade the contribution limitations contained in subsection (g) of this section.
(i) Notwithstanding the provisions of subsection (f) of this section to the contrary,
no a
person may
not, directly or indirectly, make contributions to a state party executive committee or state party legislative caucus committee which, in the aggregate, exceed the value of $1,000 in any
calendar year.
(j) The limitations on contributions contained in this section do not apply to transfers between
and among a state party executive committee or a state party's legislative caucus political committee
from national committees of the same political party:
Provided, That transfers permitted by this
subsection may not exceed $50,000 in the aggregate in any calendar year to any state party executive
committee or state party legislative caucus political committee:
Provided, however, That the moneys
transferred may only be used for voter registration and get-out-the-vote activities of the state
committees.
(k)
No A person may
not solicit any contribution, other than contributions to a campaign for
or against a county or local government ballot issue, from any nonelective salaried employee of the
state government or of any of its subdivisions:
Provided, That in no event
shall may any person acting
in a supervisory role solicit a person who is a subordinate employee for any contribution.
No A person
may
not coerce or intimidate any nonelective salaried employee into making a contribution.
No a
person may
not coerce or intimidate any nonsalaried employee of the state government or any of its
subdivisions into engaging in any form of political activity. The provisions of this subsection may not
be construed to prevent any employee from making a contribution or from engaging in political activity
voluntarily without coercion, intimidation or solicitation.
(l)
No A person may
not solicit a contribution from any other person without informing the
other person at the time of the solicitation of the amount of any commission, remuneration or other
compensation that the solicitor or any other person will receive or expect to receive as a direct result
of the contribution being successfully collected. Nothing in this subsection may be construed to apply
to solicitations of contributions made by any person serving as an unpaid volunteer.
(m)
No A person may
not place any letter, circular, flyer, advertisement, election paraphernalia,
solicitation material or other printed or published item tending to influence voting at any election in
a roadside receptacle unless it is: (1) Approved for placement into a roadside receptacle by the business or entity owning the receptacle; and (2) contains a written acknowledgment of the approval.
This subdivision does not apply to any printed material contained in a newspaper or periodical
published or distributed by the owner of the receptacle. The term 'roadside receptacle' means any
container placed by a newspaper or periodical business or entity to facilitate home or personal delivery
of a designated newspaper or periodical to its customers.
(n) Any person violating any provision of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than $1,000, or confined in
a regional or county jail for not
more than one year, or,
in the discretion of the court, be subject to both
fine and confinement fined and
confined.
(o) The provisions of subsection (k) of this section, permitting contributions to a campaign for
or against a county or local government ballot issue shall become operable on and after January 1,
2005.
(p) The limitations on contributions established by subsection (g) of this section do not apply
to contributions made for the purpose of supporting or opposing a ballot issue, including a
constitutional amendment."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4647 - "A Bill to repeal §3-9-14 of the Code of West Virginia 1931, as
amended; and to amend and reenact §3-8-1, §3-8-1a, §3-8-2, §3-8-8 and §3-8-12 of said code, all
relating to the regulation and control of elections; providing certain legislative findings; amending and
deleting certain definitions; expanding reporting requirements for independent expenditures; providing
for electronic filing of reports of independent expenditures; authorizing the Secretary of State to
promulgate rules relating to reports of independent expenditures; retaining prohibition on corporate
contribution; and repealing the ban on corporate independent expenditures."
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. 412), and there were--yeas 73, nays 24, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Blair, Border, Carmichael, Cowles, Duke, Evans,
Ireland, Lane, McGeehan, C. Miller, J. Miller, Overington, Porter, Romine, Schadler, Schoen, Shott,
Sobonya, Sumner and Walters.
Absent And Not Voting: Argento, Cann and Ross.
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. 4647) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
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 introducing a resolution.
Resolutions
Mr. Speaker, Mr. Thompson, and Delegates Fleischauer, Miley, White, M. Poling, Morgan,
Marshall, Beach,
Shook, Susman, Varner, Fragale, Hamilton, Moore, Frazier, Barker, Guthrie, Paxton, Boggs, Brown,
Manchin and Perdue offered the following resolution, which was read by the Clerk as follows:
H. C. R. 134 - "Requesting the Joint Committee on Government and Finance study the issues
relating to evaluation of job creation and retention incentives, penalties and reporting requirements."
Whereas, West Virginian citizens have a strong work ethic and a tradition of high levels of
performance in trades and professions; and
Whereas, A historic lack of good paying jobs with benefits in many communities has resulted
in many West Virginians migrating out-of-state for employment; and
Whereas, West Virginians are incredibly loyal to our state and many of those who moved out-
of-state ultimately returned to retire in the state; and
Whereas, West Virginia parents have been saddened by the exodus of their children to obtain
out-of-state employment; and
Whereas, The loss of any of our state's talent is a loss to the state of investments made in
public and higher education, and a personal loss to families and communities; and
Whereas, Any effort that the state can launch to retain the young people of our state by the
creation and retention of good paying jobs with benefits is an investment in the state's future; and
Whereas, The federal government authorized a stimulus program, the "American Recovery
and Reinvestment Act" designed to revive the national and state economies; and
Whereas, To date, there remains a large amounts of federal stimulus money available for job
creation and retention projects that the State of West Virginia has either not applied for or met the
conditions to receive; and
Whereas, The federal government required information relating to the number of jobs created
from stimulus funding, along with the salary and benefits for each job, be reported to the public and
published on the Internet; and
Whereas, A new decade is a perfect time to evaluate our state's job promotion and retention
efforts to ensure that all federal grant money is being applied for, to ascertain whether state
investments in job promotion are producing the results that are intended and to require transparency
and accountability for state investments in job promotion and retention; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to conduct a
comprehensive evaluation of all current job promotion, creation and retention programs. This report
shall include an evaluation of all state statutes, and a study of similar statutes in other states, that
promote the creation or retention of jobs, train workers, provide incentives for employment and
training, or give loans, grants, tax breaks or other types of incentives for these purposes or provide
penalties for failure to comply with statutory conditions regarding the acceptance of state job
promotion funds, and be it
Further Resolved, That this evaluation shall include a budgetary analysis comparing the amount
being spent on the foregoing objectives, broken down by category, to the results actually being produced. This evaluation should include any recommendations for changes that result from this
statutory and budgetary review, for example, if the financial analysis results in a conclusion that the
investments are not producing the desired results, recommendations should be made for increasing,
decreasing or eliminating programs; and, be it
Further Resolved, That the evaluation shall include predictions about where future job growth
is likely to occur, including, but not limited to, the fields of health care, energy efficiency and green
jobs. The training, education requirements that will be needed to fill these new positions should also
be addressed; and, be it
Further Resolved, That relevant departments and divisions of the Executive Branch, including,
but not limited to, the Development Office, the Tax Department, Workforce Development, and the
Higher Education Policy Commission, be contacted to cooperate and collaborate in the collection of
data and analysis for the evaluation; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested
to study the issues relating to reporting on any remaining stimulus funds including, the relevant
deadlines which may be applicable and the reasons why the funding has not been sought; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested
to study the issues relating to creation of new transparency and accountability requirements for job
promotion programs, including publication on the Internet, and how the code may be amended to
require consistent and/or more extensive reporting and publication of job creation data that would be
applicable to all state programs which promote the creation of jobs, train workers, provide incentives
for employment and training, or give loans, grants, tax breaks or other types of incentives for these
purposes; and, be it
Further Resolved, That this evaluation include an examination of the use of and effectiveness
of penalties for failure to comply with incentive laws, including, but not limited to, a review of all of
the different types of penalties which exist and how often, if ever, they have been used; and, be it
Further Resolved, That the Joint Committee on Government and Finance consider such studies be conducted by experts as the Joint Committee may engage, including the West Virginia Law
Institute, and/or any of the institutions of higher education located in this state; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Legislature, by the first day of the regular session, 2011, its preliminary findings, conclusions and
recommendations together with drafts of any legislation to effectuate its recommendations; and, by the
first day of the regular session, 2012, its final 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, to prepare a report and
draft 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. 134) 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.
Mr. Speaker, Mr. Thompson, and Delegate Lane offered the following resolution, which was
read by the Clerk, as follows:
H. C. R. 135 - "Requesting the Joint Committee on Government and Finance authorize a study
on the Homestead Exemption for seniors and people with disabilities."
Whereas, The current Homestead Exemption of $20,000 has not been increased since 1982
when the average home value in West Virginia was $40,000; and
Whereas, The Homestead Exemption in 1982 was equal to fifty percent of the average home
value in West Virginia; and
Whereas, The present average home value in West Virginia is $110,000; and
Whereas, The Homestead Exemption is only equal to eighteen percent of the average home
value in West Virginia; and
Whereas, 256,000 seniors and people with disabilities who claim the homestead exemption
live within 200% of the federal poverty level; and
Whereas
, An increase in the Homestead Exemption and corresponding reduction in the tax
liability for seniors and people with disabilities will provide them with additional funds to meet their
daily needs; and
Whereas, The Legislature is committed to assisting seniors and people with disabilities;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a study
on the Homestead Exemption for seniors and people with disabilities; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the Regular
Session of the Legislature, 2011, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the Legislative 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.
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the
resolution (H. C. R. 135) to a committee was dispensed with, and it was taken up for immediate
consideration and adopted.
Delegates Canterbury, Louisos, Blair, Border, Evans, J. Miller, Overington, Shott and Walters
offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 32 - "Calling for the termination of scientists who acted to conceal data, suppress
dissenting views and stifle science regarding anthropocentric global warming."
Whereas, Some scientists such as Michael Mann of Pennsylvania State University, Professor
Phil Jones of the Climatic Research Unit at the University of East Anglia, and others have proposed
that human-caused carbon emissions are causing planetary global warming and a variety of environmental disasters around the world; and
Whereas, Policy-makers from all levels of government around the world have taken these dire
warnings seriously enough to propose sweeping public policy changes that will prove to be both
expensive and generally disruptive of life in both developed and developing nations; and
Whereas, Every man, woman and child on the planet will bear the cost of these sweeping
changes should they be implemented; and
Whereas, It is in the general public interest that any public policy decision of such sweeping
significance should be based only on sound science; and
Whereas, Sound science is only possible in an intellectual environment in which scholars are
permitted to propose and argue about ideas including ideas that challenge the "orthodox" or "accepted"
view of the moment, subject only to the constraint that their ideas should be empirically testable; and
Whereas, E-mails released after a hacking incident directed at servers at the University of East
Anglia in November of 2009 revealed that many proponents of the theory that human-caused carbon
emissions are a significant factor in global warming have acted in a manner that is entirely inconsistent
with the development of an open and fair public debate about the theory; and
Whereas, Their actions have included specific steps to suppress both actual climate data and
scientific articles critical of their theory; and
Whereas, These allegations of actions unbefitting of honest scholars are substantiated by their
own electronic correspondence; and
Whereas, Substantiating comments within their correspondence include statements such as
this one from Dr. Michael Mann regarding a paper published in the scientific journal "Climate
Research" that criticized Dr. Mann's theories about global warming: "I think we have to stop
considering Climate Research as a legitimate peer-reviewed journal. Perhaps we should encourage
our colleagues in the climate research community to no longer submit to, or cite papers in, this
journal"; and
Whereas, Such an action to excommunicate can be interpreted as an attempt to intimidate the editors of the named publication into accepting for publication only papers that agree with Dr. Mann's
and Professor Jones' preferred hypothesis of manmade global warming; and
Whereas, Several members of the editorial board of that journal resigned in the wake of the
controversy surrounding the publication of that paper; and
Whereas, Similar comments made by Professor Phil Jones included this one found in an
e-mail dated July 8, 2008: "The other paper by MM is just garbage... I can't see either of these papers
being in the next IPCC report. Kevin and I will keep them out somehow - even if we have to
redefine what the peer-review literature is!"; and
Whereas, Both of these statements and the associated actions suggest a pattern of subverting
an open public debate about the theory that human-caused carbon emissions cause global warming;
and
Whereas, Over a period of several years scientists and scholars who disputed Dr. Mann's and
Professor Jones' theory that human-caused carbon emissions cause global warming were frustrated
in their attempts to gain access to the primary data these two men and others allegedly used to
construct their theory; and
Whereas, With regard to the suppression of actual empirical data regarding global warming,
Phil Jones wrote to Michael Mann on February 2, 2005: "Don't leave stuff lying around on
ftp FTP
sites - you never know who is trawling them. The two MMs have been after the CRU station data for
years. If they ever hear there is a Freedom of Information Act now in the UK, I think I'll delete the
file rather than send to anyone. Does your similar act in the US force you to respond to enquiries
within 20 days?-our does! The UK works on precedents, so the first request will test it. We also
have a data protection act, which I will hide behind"; and
Whereas, In another message pertaining to Freedom of Information Act requests for the
empirical data that was supposedly used by Dr. Mann and Professor Jones, Phil Jones wrote to Michael
Mann, with the subject line "IPCC & FOI": "Can you delete any e-mails you may have had with Keith
re AR4? Keith will do likewise. Can you also e-mail Gene and get him to do the same? I don't have his new e-mail address"; and
Whereas, Such actions to suppress actual empirical data generated at public expense are not
merely professionally unethical and stifling to scientific debate but also blatantly illegal in both the
United States and Great Britain; and
Whereas, The United Kingdom's Information Commissioner's Office (ICO), which oversees
the Freedom of Information process in Great Britain, stated of acts such as this, that "Destroying
requested information outside of an organizations normal policies is unlawful and may be a criminal
offence if done to prevent disclosure"; and
Whereas, The British Deputy Information Commissioner, Graham Smith, issued a statement
on January 27, 2010, that, "The e-mails which are now public reveal that Mr Holland's requests under
the Freedom of Information Act were not dealt with as they should have been under the legislation.
Section 77 of the Freedom of Information Act makes it an offence for public authorities to act so as
to prevent intentionally the disclosure of requested information"; and
Whereas, It is now altogether clear from comments found within their own electronic
correspondence that scientists who have long advocated the view that human activity is a prime cause
of global climate change have in fact acted to hide their data from public scrutiny and from the scrutiny
of fellow scholars who intend to dispute their views; and
Whereas, It is also clear from comments found within their electronic correspondence that
these scientists made efforts not only to interfere with the sincere and honest efforts of researchers who
challenged their views, but also to deny the publication of papers which were critical of their preferred
hypothesis regarding anthropocentric global warming; and
Whereas, Actions such as these are not only incompatible with the spirit of scientific inquiry,
but also through their influence on public policy potentially disruptive and economically burdensome
for every man, woman, and child on earth; and
Whereas, Such irresponsible and unethical actions on the part of those who should exemplify
the highest standards of honest scholarship should not go unpunished; therefore, be it
Resolved by the House of Delegates:
That the Clerk of the House of Delegates compose and send letters and copies of this resolution
to both Pennsylvania State University and The University of East Anglia requesting that both Dr. Mann
and Professor Phil Jones be immediately relieved of their current positions and all other possible
employment with their respective Universities; and, be it
Further Resolved, That the Clerk of the House of Delegates in the letters request both
Universities to record that these men were dismissed not for their views but for the unethical and
possibly unlawful actions they took to interfere with the honest efforts of other scholars who were
critical of their views and to stifle science, in as much as such actions should be regarded as not only
unbefitting of honest scholarship, but also seriously irresponsible with respect to their potential effects
on public policy; and be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this
resolution to members of the West Virginia congressional delegation and both Pennsylvania State
University and The University of East Anglia requesting that both Dr. Mann and Professor Phil Jones
be immediately relieved of their current positions and all other possible employment with their
respective Universities.
Conference Committee Report
Delegate Michael, from the committee of conference on matters of disagreement between the
two houses, as to
Com. Sub. for H. B. 4166, Expanding the age for firefighters over thirty-five years of age for
persons already employed by another paid fire department,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendment of the Senate to Com. Sub. for H. B. 4166, having met, after full and free conference, have
agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the Senate, striking out everything after the enacting section and inserting new language, and agree to the same
as follows:
"ARTICLE 15. FIRE FIGHTING; FIRE COMPANIES AND DEPARTMENTS; CIVIL
SERVICE FOR PAID FIRE DEPARTMENTS.
§8-15-17. Form of application; age and residency requirements; exceptions.
(a) The Firemen's Civil Service Commission in each municipality shall require individuals
applying for admission to any competitive examination provided for under the civil service provisions
of this article or under the rules of the commission to file in its office, within a reasonable time prior
to the proposed examination, a formal application in which the applicant shall state under oath or
affirmation:
(1) His or her full name, residence and post-office address;
(2) His or her United States citizenship, age and the place and date of his or her birth;
(3) His or her state of health, and his or her physical capacity for the public service;
(4) His or her business and employments and residences for at least three previous years; and
(5) Any other information as may reasonably be required, touching upon the applicant's
qualifications and fitness for the public service.
(b) Blank forms for the applications shall be furnished by the commission, without charge, to
all individuals requesting the same.
(c) The commission may require, in connection with the application, certificates of citizens,
physicians and others, having pertinent knowledge concerning the applicant, as the good of the service
may require.
(d) Except as provided in subsections (e) and (f) of this section, no application for original
appointment shall be received if the individual applying is less than eighteen years of age or more than
thirty-five years of age at the date of his or her application
,
(e): Provided, That In the event any applicant formerly served upon the paid fire department
of the municipality to which he or she makes application, for a period of more than one year, and resigned from the department at a time when there were no charges of misconduct or other misfeasance
pending against the applicant, within a period of two years next preceding the date of his or her
application, and at the time of his or her application resides within the corporate limits of the
municipality in which the paid fire department to which he or she seeks appointment by reinstatement
is located, then the individual shall be eligible for appointment by reinstatement in the discretion of
the Firemen's Civil Service Commission, even though the applicant shall be over the age of thirty-five
years, and the applicant, providing his or her former term of service so justifies, may be appointed by
reinstatement to the paid fire department without a competitive examination, but the applicant shall
undergo a medical examination; and if the individual shall be so appointed by reinstatement to the paid
fire department, he or she shall be the lowest in rank in the department next above the probationers of
the department
and may not be entitled to seniority considerations.
(f) If an individual is presently employed by one paid fire department and is over the age of
thirty-five, he or she may make an application to another paid fire department if:
(1) The paid fire department to which he or she is applying is serving a municipality that has
elected to participate in the West Virginia Municipal Police Officers and Firefighters Retirement
System created in article twenty-two-a, chapter eight of this code: Provided, That any individual
applying pursuant to this subdivision is to be classified as a new employee for retirement purposes and
no prior employment service can be transferred to the West Virginia Municipal Police Officers and
Firefighters Retirement System; or
(2)The paid fire department to which he or she is applying is serving a municipality that has
elected to participate in the West Virginia Public Employees Retirement System created in article ten,
chapter five of this code: Provided, That any individual applying pursuant to this subdivision is to be
classified as a new employee for retirement purposes and no prior employment service can be
transferred to the West Virginia Public Employees Retirement System, except for individuals and their
prior employment service already credited to them in the West Virginia Public Employees Retirement
System pursuant to article ten, chapter five of this code.
(g) Individuals who are authorized to apply to a paid fire department pursuant to subsection (f)
of this section shall be in the lowest rank of the department and may not be entitled to seniority
considerations.
(h) Any applicant for original appointment must have been a resident for one year, during some
period of time prior to the date of his or her application, of the municipality in which he or she seeks
to become a member of the paid fire department:
Provided, That if the commission determines it
necessary it may consider for original appointment applicants who are not residents of the municipality
but who have been residents of the county in which the municipality or any portion of the territory
thereof is located for a period of at least one year."
And,
That both houses recede from their positions as to the title of the bill and agree to the same as
follows:
Com. Sub. for H. B. 4166 - "A Bill to amend and reenact §8-15-17 of the Code of West
Virginia, 1931, as amended, relating to paid firefighters who seek subsequent employment with other
paid fire departments; authorizing applicants over the age of thirty-five who seek subsequent
employment with a paid fire department to apply under certain circumstances; and limiting subsequent
hiring or reinstatement effects on seniority considerations."
Respectfully submitted,
Harold Michael,
Evan H. Jenkins,
Bill Hamilton,Dan Foster,
Doug Skaff, Jr.
Mike Hall,
Conferees on the part Conferees on the part
of the House of Delegates. of the Senate
.
On motion of Delegate Michael, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 413), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Cann and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 4166) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
At 9:14 p.m., on motion of Delegate Boggs, the House of Delegates recessed until 10:30 p.m.,
and reconvened at that time.
Conference Committee Report
Delegate M. Poling, from the committee of conference on matters of disagreement between the
two houses, as to
H. B. 4593, Relating to high school graduation improvement,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendments of the Senate to House Bill No. 4593 having met, after full and free conference, have
agreed to recommend and do recommend to their respective houses, as follows:
That both Houses recede from their respective positions on the Senate amendment on page
eight, subsection (g) and agree to the same as follows:
"(g) A child
shall be is exempt from the compulsory school attendance requirement set forth
in
subsection (a) of this section section one-a of this article if the child is granted a work permit
pursuant to the subsection.
After due investigation the county superintendent may
after due
investigation grant work permits to youths under
sixteen years of age the termination age designated
in section one-a of this article, subject to state and federal labor laws and regulations.
Provided, That
A work permit may not be granted on behalf of any youth who has not completed the eighth grade of
school."
And,
That both Houses recede from their respective positions with respect to §18-8-1a, and agree
to the same as follows:
"§18-8-1a. Commencement and termination of compulsory school attendance; public school
entrance requirements; exceptions.
(a) Notwithstanding the provisions of section one of this article, compulsory school attendance
shall begin begins with the school year in which the sixth birthday is reached prior to September 1 of
such year or upon enrolling in a publicly supported kindergarten program and,
continue subject to
subdivision (3) of this subsection, continues to the sixteenth birthday or for as long as the student
shall
continue continues to be enrolled in a school system after the sixteenth birthday.
Provided, That
(1) A child may be removed from such kindergarten program when the principal, teacher and
parent or guardian concur that the best interest of the child would not be served by requiring further
attendance.
Provided, however That the principal shall make the final determination with regard to
compulsory school attendance in a publicly supported kindergarten program.
Provided further, That
(2) The compulsory school attendance provision of this article shall be enforced against a
person eighteen years of age or older for as long as the person continues to be enrolled in a school
system, and
shall may not be enforced against the parent, guardian, or custodian of
such the person.
(3) Beginning with the 2011-2012 high school freshman cohort class of students, and
notwithstanding the provisions of section one of this article, compulsory school attendance begins with
the school year in which the sixth birthday is reached prior to September 1 of such year or upon
enrolling in a publicly supported kindergarten program and continues to the seventeenth birthday or
for as long as the student continues to be enrolled in a school system after the seventeenth birthday.
(4) Beginning with the December 2010 interim meeting period, and semiannually thereafter,
the state superintendent shall report to the Legislative Oversight Commission on Education
Accountability on the impact of the increased age requirement of subdivision (3) of this subsection,
and the progress of the state board and the county boards in implementing the requirements of section
six of this article.
(b) Attendance at a state-approved or Montessori kindergarten, as provided in section eighteen,
article five of this chapter,
shall be is deemed school attendance for purposes of this section. Prior to
entrance into the first grade in accordance with section five, article two of this chapter, each child must
have either:
(1) Successfully completed such publicly or privately supported, state-approved kindergarten
program or Montessori kindergarten program; or
(2) Successfully completed an entrance test of basic readiness skills approved by the county
in which the school is located.
Provided, That such The test
may be administered in lieu of
kindergarten attendance only under extraordinary circumstances to be determined by the
county board.
(c) Notwithstanding the provisions of this section and of section five, article two of this chapter
and section eighteen, article five of this chapter, a county board may provide for advanced entrance
or placement under policies adopted by said board for any child who has demonstrated sufficient
mental and physical competency for such entrance or placement.
Nothing herein shall prevent
(d) This section does not prevent a student from another state from enrolling
in the same grade
in a public school in West Virginia
in such grade as the student was enrolled at the school from which
the student transferred.";
That the House agree to the Senate amendment as to §18-8-4;
That the House agree to the Senate amendment as to §18-8-6;
That the House agree to the Senate amendment which struck §18-9A-3a;
That the House agree to the Senate amendment as to §18-9A-21;
That the House agree to all other Senate amendments to the bill;
And,
That both houses recede from their respective positions as to the enacting section, and agree
to the same, as follows:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated §18-8-6; that §18-8-1, §18-8-1a and §18-8-4 of said code be amended and reenacted; that §18-9A-21 of said code be amended and reenacted; and that §62-15-4 of said code be
amended and reenacted, all to read as follows:
And,
That the Senate and House agree to a new title as follows:
Com. Sub. for H. B. 4593 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §18-8-6; to amend and reenact §18-8-1, §18-8-1a and §18-
8-4 of said code; to amend and reenact §18-9A-21 of said code; and to amend and reenact §62-15-4
of said code, all relating to improving student participation, success and high school graduation rates;
increasing the minimum age for ending compulsory school attendance; reducing the number of days
of unexcused absences at which proceedings to enforce attendance begin; establishing the 'High
School Graduation Improvement Act'; establishing legislative findings and intent; requiring county
board of education plan for improving student retention and increasing graduation rate; requiring state
board of education to develop, expand and assist certain programs; requiring certain state
superintendent reports to Legislative Oversight Commission on Education Accountability; increasing
funding for alternative education programs; and authorizing establishment of additional juvenile drug
courts."
Respectfully submitted.
Mary M. Poling,
Roman W. Prezioso,
Brady R. Paxton,
Larry J. Edgell,
Josh Stowers,
Randy White,
David G. Perry,
Donna J. Boley,
Walter E. Duke,
Jesse O. Guills
Conferees on the part Conferees on the part
of the House of Delegates. of the Senate.
On motion of Delegate Michael, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken
(Roll No. 414), and there were--yeas
90, nays 2, absent and not voting 8, with the nays and absent and not voting being as follows:
Nays: Evans and J. Miller.
Absent And Not Voting: Argento, Cann, Manchin, McGeehan, Ross, Shook, Skaff and
Stowers.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 4593) passed.
Delegate Boggs moved that the bill take effect July 1, 2010.
On this question, the yeas and nays were taken
(Roll No. 415), and there were--yeas 91, nays
2, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Evans and J. Miller.
Absent And Not Voting: Argento, Cann, Manchin, McGeehan, Ross, Shook and Skaff.
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. 4593) takes effect July 1, 2010.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Delegate Stowers announced that he was absent when the votes were taken on Roll No. 414,
and that had he been present, he would have voted "Yea" thereon.
Petitions
Delegates Fleischauer, Marshall, Beach and Shook presented a petition on behalf of their
constituents, urging the State of West Virginia to strictly uphold the Federal Clean Water Act; which
was referred to the Committee on the Judiciary.
Delegate Shook asked and obtained unanimous consent that the remarks of Delegate
Fleischauer regarding the Federal Clean Water Act be printed in the Appendix to the Journal.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with
amendment, and the passage, as amended, of
Com. Sub. for S. B. 186, Creating DOT administrative law judge office.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment to the House of Delegates amendment was reported by the
Clerk:
On page eleven, section two-b, by striking out subsection (a) in its entirety and inserting in lieu
thereof a new subsection (a), to read as follows:
"(a) Except as provided in subsections (g) of this section, whenever any person who has not
previously been convicted of any offense under this article or under any statute of the United States
or of any state relating to driving under the influence alcohol, any controlled substance or any other
drug:
(1) Notifies the court within thirty days of his or her arrest of his or her intention to participate
in a deferral pursuant to this section; and
(2) Pleads guilty to or is found guilty of driving under the influence of alcohol under subsection
(d), section two of this article, the court, without entering a judgment of guilt and with the consent of
the accused, shall defer further proceedings and, notwithstanding any provisions of this code to the
contrary, place him or her on probation, which conditions shall include, that he or she successfully
completes the Motor Vehicle Alcohol Test and Lock Program as provided in section three-a, article
five-a of this chapter. Participation therein shall be for a period of at least one hundred and sixty five
days after he or she has served the fifteen days of license suspension imposed pursuant to section two,
article five-a 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.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 416), and
there were--yeas 89, nays 7, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Border, Lane, Sobonya, Sumner and Walters.
Absent And Not Voting: Argento, Cann, McGeehan and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 186) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment
of the House of Delegates and requested the House to recede from its amendment to
Com. Sub. for S. B. 236, Creating Aquaculture Development Act.
On motion of Delegate Boggs, the House of Delegates receded from its amendment.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 417), and
there were--yeas 94, nays 2, absent and not voting 4, with the nays and absent and not voting being as
follows:
Nays: Fleischauer and Moore.
Absent And Not Voting: Argento, Cann, McGeehan and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 236) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S .B. 519, Extending Social Security benefits to Municipal Police Officers and Firefighters
Retirement System members; still being in possession of the Clerk, the bill was taken up for further
consideration.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 418), and there were--yeas 94, nays 2, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Fleischauer and Moore.
Absent And Not Voting: Argento, Cann, McGeehan and Ross.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 519) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the
House of Delegates, as follows:
Com. Sub. for H. B. 4188, Anti-Criminal Street Gang 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 §30-29-3 and §30-29-10 of the Code of West Virginia, 1931, as amended, be amended
and reenacted, and that said code be further amended by adding thereto a new article, designated article
§61-13-1, §61-13-2, §61-13-3, §61-13-4, §61-13-5 and §61-13-6, all to read as follows:
§30-29-3. Duties of the Governor's committee and the subcommittee.
Upon recommendation of the subcommittee, the Governor's committee shall, by or pursuant
to rules proposed for legislative approval in accordance with article three, chapter twenty-nine-a of this
code or regulation:
(a) Provide funding for the establishment and support of law-enforcement training academies
in the state;
(b) Establish standards governing the establishment and operation of the law-enforcement
training academies, including regional locations throughout the state, in order to provide access to each law-enforcement agency in the state in accordance with available funds;
(c) Establish minimum law-enforcement instructor qualifications;
(d) Certify qualified law-enforcement instructors;
(e) Maintain a list of approved law-enforcement instructors;
(f) Promulgate standards governing the qualification of law-enforcement officers and the entry-
level law-enforcement training curricula. These standards shall require satisfactory completion of a
minimum of four hundred classroom hours, shall provide for credit to be given for relevant classroom
hours earned pursuant to training other than training at an established law-enforcement training
academy if earned within five years immediately preceding the date of application for certification, and
shall provide that the required classroom hours can be accumulated on the basis of a part-time curricula
spanning no more than twelve months, or a full-time curricula;
(g) Establish standards governing in-service law-enforcement officer training curricula and in-
service supervisory level training curricula;
(h) Certify organized criminal enterprise investigation techniques with a qualified anti-racial
profiling training course or module;
(i) Establish standards governing mandatory training to effectively investigate organized
criminal enterprises as defined in article thirteen, chapter sixty-one of this code, while preventing racial
profiling, as defined in section ten of this article, for entry level training curricula and for law-
enforcement officers who have not received such training as certified by the Governor's committee
as required in this section;
(j) Establish, no later than July 1, 2011, procedures for implementation of a course in
investigation of organized criminal enterprises which includes an anti-racial training module to be
available on the internet or otherwise to all law-enforcement officers. The procedures shall include the
frequency with which a law-enforcement officer shall receive training in investigation of organized
criminal enterprises and anti-racial profiling, and a time frame for which all law-enforcement officers
must receive such training: Provided, That all law-enforcement officers in this state shall receive such training no later than July 1, 2012. In order to implement and carry out the intent of this section, the
Governor's committee may promulgate emergency rules pursuant to section fifteen, article three,
chapter twenty-nine-a of this code;
(I) (k) Certify law-enforcement officers, as provided in section five of this article;
(j) (l) Seek supplemental funding for law-enforcement training academies from sources other
than the fees collected pursuant to section four of this article;
(k) (m) Any responsibilities and duties as the Legislature may, from time to time, see fit to
direct to the committee; and
(l) (n) Submit, on or before September 30 of each year, to the Governor, and upon request to
individual members of the Legislature, a report on its activities during the previous year and an
accounting of funds paid into and disbursed from the special revenue account establish pursuant to
section four of this article.
§30-29-10. Prohibition of racial profiling.
(a) The Legislature finds that the use by a law-enforcement officer of race, ethnicity, or national
origin in deciding which persons should be subject to traffic stops, stops and frisks, questioning,
searches, and seizures is a problematic law-enforcement tactic. The reality or public perception of
racial profiling alienates people from police, hinders community policing efforts, and causes law-
enforcement officers and law-enforcement agencies to lose credibility and trust among the people law-
enforcement is sworn to protect and serve. Therefore, the West Virginia Legislature declares that
racial profiling is contrary to public policy and should not be used as a law-enforcement investigative
tactic.
(b) For purposes of this section:
(1) The term 'law-enforcement officer' means any duly authorized member of a law-
enforcement agency who is authorized to maintain public peace and order, prevent and detect crime,
make arrests and enforce the laws of the state or any county or municipality thereof.
(2) The term 'municipality' means any incorporated town or city whose boundaries lie within the geographic boundaries of the state.
(3) The term 'racial profiling' means the practice of a law-enforcement officer relying, to any
degree, on race, ethnicity, or national origin in selecting which individuals to subject to routine
investigatory activities, or in deciding upon the scope and substance of law-enforcement activity
following the initial routine investigatory activity. Racial profiling does not include reliance on race,
ethnicity, or national origin in combination with other identifying factors when the law-enforcement
officer is seeking to apprehend a specific suspect whose race, ethnicity, or national origin is part of the
description of the suspect.
(4) The term 'state and local law-enforcement agencies' means any duly authorized state,
county or municipal organization employing one or more persons whose responsibility is the
enforcement of laws of the state or any county or municipality thereof.
(c) No law-enforcement officer shall engage in racial profiling.
(d) All state and local law-enforcement agencies shall establish and maintain policies and
procedures designed to eliminate racial profiling. Policies and procedures shall include the following:
(1) A prohibition on racial profiling;
(2) Independent procedures for receiving, investigating, and responding to complaints alleging
racial profiling by law-enforcement officers;
(3) Procedures to discipline law-enforcement officers who engage in racial profiling;
(4) Procedures to insure the inclusion of training in the investigation of organized criminal
enterprises and anti-racial profiling training in new officer training and to law-enforcement officers
who have not received such training as certified by the Governor's committee; and
(4) (5) Any other policies and procedures deemed necessary by state and local law-enforcement
agencies to eliminate racial profiling.
ARTICLE 13. ANTI-ORGANIZED CRIMINAL ENTERPRISE ACT.
§61-13-1. Findings.
(a) The Legislature hereby finds that there is evidence of an increasing incidence of larger scale organized criminal activity in various parts of this State and that new statutes are necessary to protect
the lives and property of the overwhelming majority of West Virginians who are law-abiding citizens.
The evidence presented to the Legislature reflects that persons engaged in larger scale ongoing
criminal enterprises are of all ages, multiple racial and ethnic origin and all pose a rising threat.
(b) The Legislature further finds that there is a tendency among certain of these enterprises to
actively recruit, sometimes coercively, people into joining such organizations as well as organized
efforts to intimidate witnesses who may be in a position to offer testimony regarding the organized
criminal enterprises and that such behavior cannot be tolerated.
(c) The Legislature further finds that lawful use of public nuisance and forfeiture laws can
substantially aid in a reduction of larger scale organized criminal enterprises.
(d) The Legislature further finds that criminal statutes tailored to the particular problems
represented by such organized criminal enterprises combined with community education and existing
alternative sentencing laws can aid in reducing this new threat.
§61-13-2. Definitions.
As used in this article:
'Organized criminal enterprise' means a combination of five or more persons engaging over
a period of not less than six months in one or more of the qualifying offenses set forth in this section.
'Qualifying offense' means a violation of the felony provisions of section eleven, article forty-
one, chapter thirty-three of this code; the felony provisions of chapter 60A of this code; the felony
provisions of article two of this chapter; the provisions of sections one, two, three, four, five, eleven,
twelve, thirteen, fourteen, eighteen, nineteen, twenty-four, twenty-four-a, twenty-four-b and twenty-
four-d, article three of this chapter; the felony provisions of sections article three-c of this chapter; the
felony provisions of article three-e of this chapter; the felony provisions of article four of this chapter;
the provisions of section eight, article eight of this chapter; the felony provisions of article eight-a of
this chapter and the felony provisions of article eight-c of this chapter.
§61-13-3. Offenses.
(a) Any person who knowingly and willfully becomes a member of an organized criminal
enterprise and who knowingly promotes, furthers or assists in the commission of any qualifying
offense himself or herself or in combination with another member of an organized criminal enterprise
shall be guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not
more than ten years or fined not more than $25,000, or both. The offense set forth in this subsection
is separate and distinct from that of any qualifying offense and may be punished separately.
(b) Any person who knowingly solicits, invites, recruits, encourages or causes another to
become a member of an organized criminal enterprise or to assist members of an organized criminal
enterprise to aid or assist in the commission of a qualifying offense by one or more members of an
organized criminal enterprise shall be guilty of a felony and, upon conviction, be confined in a state
correctional facility for not more than five years or fined not more than $10,000, or both.
(c) Any person who shall, by threats, menaces, or otherwise, intimidate, or attempt to
intimidate, a witness for the state in any prosecution under the provisions of this article, for the purpose
of preventing the attendance of such witness at the trial of such case or to change testimony, or shall
in any way or manner prevent, or attempt to prevent, the attendance of any such witness at such trial,
shall be guilty of a felony, and, upon conviction, shall be confined not more than ten years.
§61-13-4. Premises used by organized criminal enterprises; nuisances; actions for injunction,
abatement and damages; other remedies for unlawful use; exceptions.
(a) Every private building or place used by members of an organized criminal enterprise for
the commission of qualifying offenses is a nuisance and may be the subject of an injunction or cause
of action for damages or for abatement of the nuisance as provided for an article nine of this chapter.
(b) Any person may file a petition for injunctive relief with the appropriate court seeking
eviction from or closure of any premises used for the operation of an organized criminal enterprise.
Upon proof by the plaintiff that the premises are being used by members of an organized criminal
enterprise for the commission of a qualifying offense or offenses, the court may order the owner of
record or the lessee of the premises to remove or evict the persons from the premises and order the premises sealed, prohibit further use of the premises, or enter such order as may be necessary to
prohibit the premises from being used for the commission of a pattern of criminal gang activity and
to abate the nuisance.
§61-13-5. Forfeiture.
(a) The following are declared to be contraband and no
person shall have a property interest in them:
(1) All property which is directly or indirectly used or intended for use in any manner to
facilitate a violation of this article; and
(2) Any property constituting or derived from gross profits or other proceeds obtained from a
violation of this article.
(b) In any action under this section, the court may
enter such restraining orders or take other appropriate action, including acceptance of performance
bonds, in connection with any interest that is subject to forfeiture.
(c) Forfeiture actions under this section shall use the procedures set forth in article seven,
chapter sixty-A of this code.
§61-13-6. Exempted activities; limitations on scope.
Nothing in this section shall be construed to prevent lawful assembly and petition for the lawful
redress of grievances, including, but not limited to: any labor or employment relations issue;
demonstration at the seat of federal, state, county, or municipal government; or activities protected by
the West Virginia Constitution or the United States Constitution or any statute of this state or the
United States."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4188 - "A Bill to amend and reenact §30-29-3 and §30-29-10 of the Code
of West Virginia, 1931, as amended, and to further amend said code by adding thereto a new article,
designated §61-13-1, §61-13-2, §61-3-3, §61-3-4, §61-3-5 and §61-3-6, all relating to requiring an
organized criminal organization investigation component with accompanying anti-racial profiling education and training for law enforcement; creating anti-organized criminal enterprise act; authorizing
rulemaking, including emergency rules; creating timetable for developing procedures and rules;
creating offenses of being a member of an organized criminal enterprise; criminalizing witness
intimidation in organized criminal enterprise prosecutions; establish qualifying offenses; creating the
offense of soliciting or inviting membership in an organized criminal enterprise; making premises used
by organized criminal enterprises subject to public nuisance laws; allowing for forfeiture of property
used for or obtained through organized criminal enterprises; establishing exempted activities; offenses;
and penalties."
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. 419), and there were--yeas
95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Poore.
Absent And Not Voting: Argento, Cann, McGeehan and Ross.
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. 4188) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the
House of Delegates, as follows:
H. B. 4277, Authorizing the Secretary of the Department of Environmental Protection to issue
National Pollutant Discharge Elimination System permits.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On pages two through thirteen, by striking out all of sections one and seven.
On page one, by amending the enacting section, to read as follows:
"That §22-11-3 and §22-11-8 of the Code of West Virginia, 1931, as amended, be amended
and reenacted, all to read as follows" and a colon.
And by amending the title of the bill to read as follows:
H. B. 4277 - "A Bill to amend and reenact §22-11-3 and §22-11-8 of the Code of West
Virginia, 1931, as amended, all relating to authorizing the Secretary of the Department of
Environmental Protection to issue National Pollutant Discharge Elimination System permits; defining
terms; and correcting antiquated language."
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. 420), and there were--yeas
95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Cann, McGeehan, Poore and Ross.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4277) 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, to take effect
from passage, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4527, Limiting the liability of apiary owners and operators.
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 13. INSPECTION AND PROTECTION OF AGRICULTURE.
§19-13-4. Registration of bees; identification of apiaries; limitation on liability.
(a) All persons keeping bees in this state shall apply for a certificate of registration for bee
keeping from the commissioner, within ten days of the date that bees are acquired, by notifying the
commissioner, in writing, of the number and location of colonies they own or rent, or which they keep
for someone else, whether the bees are located on their own property or someone else's property. All
apiary certificates of registration expire on December 31, of each year and must be renewed annually.
(b) All persons owning or operating an apiary which is not located on their own property must
post the name and address of the owner or operator in a conspicuous place in the apiary.
(c) A person who:
(1) Owns and operates an apiary;
(2) Is registered with the Commissioner; and
(3) Operates the apiary in a reasonable manner and in conformance with the West Virginia
Department of Agriculture's written best management practices provided by rule, is not liable for any
personal injury or property damage that occurs in connection with the keeping and maintaining of bees,
bee equipment, queen breeding equipment, apiaries and appliances. The limitation of liability
established by this section does not apply to intentional tortious conduct or acts or omissions
constituting gross negligence.
The limitation on liability in this subsection shall not take effect until legislative rules
promulgated by the Commissioner of Agriculture are authorized by the Legislature. However, the
Commissioner of Agriculture shall have the authority to promulgate emergency rules under this
subsection.
(d) In order to effectuate the purposes of subsection (c), the Commissioner shall propose for
promulgation, legislative rules in accordance with article three, chapter twenty-nine-a of this code:
Provided, That the initial promulgation may be by emergency rule. The rule shall include best
management standards for the operation of apiaries. The limitation on liability contained in subsection
(c) shall not take effect until legislative rules are promulgated in accordance with article three, chapter twenty-nine-a of this code."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4527 - "A Bill to amend and reenact §19-13-4 of the Code of West
Virginia, 1931, as amended, relating to limiting the liability of apiary owners and operators; requiring
the Department of Agriculture to promulgate best practices rules; and authorizing emergency
rulemaking power."
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. 421), and there were--yeas
93, nays 1, absent and not voting 6, with the nays and absent and not voting being as follows:
Nays: Cowles.
Absent And Not Voting: Argento, Beach, Cann, McGeehan, Ross and Shott.
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. 4527) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 422), and there were--yeas 95, nays
none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Beach, Cann, McGeehan and Ross.
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. 4527) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
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
Delegate Doyle, having voted on the prevailing side, moved to reconsider the passage of
Com. Sub. for H. B. 4188, Anti-Criminal Street Gang Act.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 423), and
there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as
follows:
Nays: Butcher.
Absent And Not Voting: Argento, Cann, McGeehan and Ross.
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. 4188) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Conference Committee Reports
Delegate Brown, from the Committee of Conference on matters of disagreement between the
two houses, as to
Com Sub. for S. B. 273, Authorizing DEP promulgate legislative rules.
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendments of the Senate to Engrossed Committee Substitute for Senate Bill No. 273 having met,
after full and free conference, have agreed to recommend and do recommend to their respective
houses, as follows:
That both houses recede from their respective positions as to the amendment of the House
inserting new subsection (q) of section one, and inserting in lieu thereof, the following language:
"(q) The legislative rule filed in the state register on the twenty-first day of April, two thousand
nine, authorized under the authority of section two, article six, chapter twenty-two, of this code,
modified by the Department of Environmental Protection to meet the objections of the legislative rule-
making review committee and refiled in the state register on the fifteenth day of January, two thousand
ten, relating to the Department of Environmental Protection (oil and gas wells and other wells, 35 CSR 4), is authorized with the following amendment:
On page twenty-five, subdivision 16.4.d., by striking out the words "authorized by the Office,
based on soil analysis from the operator, to be suitable to prevent seepage or leakage" and inserting
in lieu thereof the words "deemed to be suitable to prevent seepage or leakage based on soil analysis
from the operator and standards developed and certified by a registered professional engineer and
approved by the Office. Before deeming pits suitable to prevent seepage or leakage without a
synthetic liner, the chief shall notify the surface owner that the surface owner is entitled to receive
notice of the application for the well work permit and that the operator has requested that the pit be
deemed suitable to prevent seepage or leakage without a synthetic liner. If the surface owner objects,
the chief shall hold a hearing pursuant to article five, chapter twenty-nine-A of the Code of West
Virginia before determining that the pit is suitable to prevent seepage or leakage."
Respectfully submitted,
Joseph Minard,
Bonnie Brown,
Bob Williams,
Barbara Fleischauer,
Clark S. Barnes,
Kelly Sobonya,
Conferees on the part of Conferees on the part of
the House of Senate. the House of Delegates.
On motion of Delegate Brown, the report of the Committee of Conference was adopted.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 424), and
there were--yeas 86, nays 10, absent and not voting 4, with the nays and absent and not voting being
as follows:
Nays: Andes, Armstead, Ashley, Border, Carmichael, Lane, J. Miller, Sumner, Susman and
Walters.
Absent And Not Voting: Argento, Cann, McGeehan and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 273) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 425), and there were--yeas 93, nays
3, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Andes, J. Miller and Susman.
Absent And Not Voting: Argento, Cann, McGeehan and Ross.
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. 273) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Delegate Frazier, from the Committee of Conference on matters of disagreement between the
two houses, as to
Com. Sub. for S. B. 218, Providing for early parole eligibility for certain inmates.
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendment of the House to Engrossed Com. Sub. for Senate Bill No. 218 having met, after full and
free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the strike and insert amendment
of the House of Delegates and that the Senate and House agree to a strike and insert amendment as
follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-13. Powers and duties of board; eligibility for parole; procedure for granting parole.
(a) The board of parole, whenever it is of the opinion that the best interests of the state and of
the inmate will be served, and subject to the limitations hereinafter provided, shall release any inmate
on parole for terms and upon conditions as are provided by this article.
(b) Any inmate of a state correctional center is eligible for parole if he or she:
(1) (A) Has served the minimum term of his or her indeterminate sentence or has served one
fourth of his or her definite term sentence, as the case may be,
or
(B) He or she:
(i) Has applied for and been accepted by the Commissioner of Corrections into an accelerated
parole program;
(ii) Does not have a prior criminal conviction for a felony crime of violence against the person,
a felony offense involving the use of a firearm, or a felony offense where the victim was a minor child;
(iii) Has no record of institutional disciplinary rule violations for a period of 120 days prior to
parole consideration unless the requirement is waived by the commissioner;
(iv) Is not serving a sentence for a crime of violence against the person, or more than one
felony for a controlled substance offense for which the inmate is serving a consecutive sentence, a
felony offense involving the use of a firearm, or a felony offence where the victim was a minor child;
and,
(v) Has successfully completed a rehabilitation treatment program created with the assistance
of a standardized risk and needs assessment;
(I) as used in this paragraph "felony crime of violence against the person" means felony
offenses set forth in articles two, three-e, eight-b or eight-d of chapter sixty-one of this code;
and
(II) as used in this paragraph "felony offense where the victim was a minor child" means any
felony crime of violence against the person and any felony violation set forth in article eight, eight-a,
eight-c or eight-d of chapter sixty-one of this code.
(C) Notwithstanding any provision of this code to the contrary, except that in no case is any
person who committed, or attempted to commit a felony with the use, presentment or brandishing of
a firearm,
is not eligible for parole prior to serving a minimum of three years of his or her sentence or
the maximum sentence imposed by the court, whichever is less:
Provided, That any person who
committed, or attempted to commit, any violation of section twelve, article two, chapter sixty-one of this code, with the use, presentment or brandishing of a firearm, is not eligible for parole prior to
serving a minimum of five years of his or her sentence or one third of his or her definite term sentence,
whichever is greater. Nothing in this section applies to an accessory before the fact or a principal in
the second degree who has been convicted as if he or she were a principal in the first degree if, in the
commission of or in the attempted commission of the felony, only the principal in the first degree used,
presented or brandished a firearm.
No A person is
not ineligible for parole under the provisions of this
subdivision because of the commission or attempted commission of a felony with the use, presentment
or brandishing of a firearm unless
such that fact is clearly stated and included in the indictment or
presentment by which the person was charged and was either: (I) Found by the court at the time of
trial upon a plea of guilty or nolo contendere; or (ii) found by the jury, upon submitting to the jury a
special interrogatory for such purpose if the matter was tried before a jury; or (iii) found by the court,
if the matter was tried by the court without a jury.
For the purpose of this section, the term "firearm" means any instrument which will, or is
designed to, or may readily be converted to, expel a projectile by the action of an explosive,
gunpowder or any other similar means.
(B)(D) The amendments to this subsection adopted in the year 1981:
(i) Apply to all applicable offenses occurring on or after August 1 of that year;
(ii) Apply with respect to the contents of any indictment or presentment returned on or after
August 1 of that year irrespective of when the offense occurred;
(iii) Apply with respect to the submission of a special interrogatory to the jury and the finding
to be made thereon in any case submitted to the jury on or after August 1 of that year or to the requisite
findings of the court upon a plea of guilty or in any case tried without a jury:
Provided, That the state
gives notice in writing of its intent to seek such finding by the jury or court, as the case may be, which
notice shall state with particularity the grounds upon which the finding will be sought as fully as such
grounds are otherwise required to be stated in an indictment, unless the grounds therefor are alleged
in the indictment or presentment upon which the matter is being tried; and
(iv) Does not apply with respect to cases not affected by the amendments and in such cases the
prior provisions of this section apply and are construed without reference to the amendments.
Insofar as the amendments relate to mandatory sentences restricting the eligibility for parole,
all matters requiring a mandatory sentence shall be proved beyond a reasonable doubt in all cases tried
by the jury or the court.
(2) Is not in punitive segregation or administrative segregation as a result of disciplinary action;
(3) Has maintained a record of good conduct in prison for a period of at least three months
immediately preceding the date of his or her release on parole;
(4)
Has submitted to the board a written parole release plan setting forth proposed plans for his
or her place of residence, employment and, if appropriate, his or her plans regarding education and
post-release counseling and treatment, the parole release plan having been approved by the
Commissioner of Corrections or his or her authorized representative; and Has prepared and submitted
to the board a written parole release plan setting forth proposed plans for his or her place of residence,
employment and, if appropriate, his or her plans regarding education and post-release counseling and
treatment. The Commissioner of Corrections or his or her designee shall review the plan to be
reviewed and investigated and provide recommendations to the board as to the suitability of the plan:
Provided, That in cases in which there is a mandatory thirty day notification period required prior to
the release of the inmate, pursuant to section twenty-three of this article, the board may conduct an
initial interview and deny parole without requiring the development of a plan. In the event the board
does not believe parole should be denied, it may defer a final decision pending completion of an
investigation and receipt of recommendations. Upon receipt of the plan together with the investigation
and recommendation, the board, through a panel, shall make a final decision regarding the granting
or denial of parole; and
(5) Has satisfied the board that if released on parole he or she will not constitute a danger to
the community.
(c) Except in the case of a person serving a life sentence, no person who has been previously twice convicted of a felony may be released on parole until he or she has served the minimum term
provided by law for the crime for which he or she was convicted.
No A person sentenced for life may
not be paroled until he or she has served ten years, and
no a person sentenced for life who has been
previously twice convicted of a felony may
not be paroled until he or she has served fifteen years:
Provided, That
no a person convicted of first degree murder for an offense committed on or after June
10, 1994, is
not eligible for parole until he or she has served fifteen years.
(d) In the case of a person sentenced to any state correctional center, it is the duty of the board,
as soon as a person becomes eligible, to consider the advisability of his or her release on parole.
(e) If, upon consideration, parole is denied, the board shall promptly notify the inmate of the
denial. The board shall, at the time of denial, notify the person of the month and year he or she may
apply for reconsideration and review. The board shall at least once a year reconsider and review the
case of every inmate who was denied parole and is still eligible
; Provided, That the board may
reconsider and review parole eligibility any time within three years following the denial of parole of
a person serving a life sentence.
(f) Any person serving a sentence on a felony conviction who becomes eligible for parole
consideration prior to being transferred to a state correctional center may make written application for
parole. The terms and conditions for parole consideration established by this article apply to such
inmates.
(g) The board shall, with the approval of the Governor, adopt rules governing the procedure
in the granting of parole. No provision of this article and none of the rules adopted hereunder are
intended or may be construed to contravene, limit or otherwise interfere with or affect the authority
of the Governor to grant pardons and reprieves, commute sentences, remit fines or otherwise exercise
his or her constitutional powers of executive clemency.
(h) The Division of Corrections shall promulgate policies and procedures for developing a
rehabilitation treatment plan created with the assistance of a standardized risk and needs assessment.
The policies and procedures shall include, but not be limited to, policy and procedures for screening and selecting inmates for rehabilitation treatment and development and use of standardized risk and
needs assessment tools. An inmate shall not be paroled solely due to having successfully completed
a rehabilitation treatment plan but completion of all the requirements of a rehabilitation parole plan
along with compliance with the requirements of subsection (b) of this section shall create a rebuttable
presumption that parole is appropriate. The presumption created by this subsection may be rebutted
by a parole board finding that at the time parole release is sought the inmate still constitutes a
reasonable risk to the safety or property of other persons if released. Nothing in subsection (b) of this
section or in this subsection may be construed to create a right to parole.
(i) Notwithstanding the provisions of subsection (b) of this section, the parole board may, in
its discretion, grant or deny parole to an inmate against whom a detainer is lodged by a jurisdiction
other than West Virginia for service of a sentence of incarceration, upon a written request for parole
from the inmate. A denial of parole under this subsection shall preclude consideration for a period of
one year or until the provisions of subsection (b) of this section are applicable.
(j) Where an inmate is otherwise eligible for parole pursuant to subsection (b) of this section
but the parole board determines that the inmate should participate in an additional program or complete
an assigned task or tasks prior to actual release on parole, the board may grant parole contingently,
effective upon successful completion of the program or assigned task or tasks, without the need for
a further hearing. The Commissioner of Corrections shall provide notice to the parole board of the
imminent release of a contingently paroled inmate to effectuate appropriate supervision.
(h) (k) The Division of Corrections is charged with the duty of supervising all probationers and
parolees whose supervision may have been undertaken by this state by reason of any interstate compact
entered into pursuant to the uniform act for out-of-state parolee supervision.
(I) (l)(1) When considering an inmate of a state correctional center for release on parole, the
parole board panel considering the parole is to have before it an authentic copy of or report on the
inmate's current criminal record as provided through the West Virginia State Police, the United States
Department of Justice or other reliable criminal information sources and written reports of the warden or superintendent of the state correctional center to which
such the inmate is sentenced:
(i)(A) On the inmate's conduct record while in custody, including a detailed statement showing
any and all infractions of disciplinary rules by the inmate and the nature and extent of discipline
administered therefor;
(ii)(B) On improvement or other changes noted in the inmate's mental and moral condition
while in custody, including a statement expressive of the inmate's current attitude toward society in
general, toward the judge who sentenced him or her, toward the prosecuting attorney who prosecuted
him or her, toward the policeman or other officer who arrested the inmate and toward the crime for
which he or she is under sentence and his or her previous criminal record;
(iii)(C) On the inmate's industrial record while in custody which shall include: The nature of
his or her work, occupation or education, the average number of hours per day he or she has been
employed or in class while in custody and a recommendation as to the nature and kinds of employment
which he or she is best fitted to perform and in which the inmate is most likely to succeed when he or
she leaves prison;
(iv)(D) On physical, mental and psychiatric examinations of the inmate conducted, insofar as
practicable, within the two months next preceding parole consideration by the board.
(2) The board panel considering the parole may waive the requirement of any report when not
available or not applicable as to any inmate considered for parole but, in every such case, shall enter
in the record thereof its reason for the waiver:
Provided, That in the case of an inmate who is
incarcerated because the inmate has been found guilty of, or has pleaded guilty to a felony under the
provisions of section twelve, article eight, chapter sixty-one of this code or under the provisions of
article eight-b or eight-c of said chapter, the board panel may not waive the report required by this
subsection and the report is to include a study and diagnosis including an on-going treatment plan
requiring active participation in sexual abuse counseling at an approved mental health facility or
through some other approved program:
Provided, however, That nothing disclosed by the person
during the study or diagnosis may be made available to any law-enforcement agency, or other party without that person's consent, or admissible in any court of this state, unless the information disclosed
indicates the intention or plans of the parolee to do harm to any person, animal, institution or to
property. Progress reports of outpatient treatment are to be made at least every six months to the
parole officer supervising the person. In addition, in such cases, the parole board shall inform the
prosecuting attorney of the county in which the person was convicted of the parole hearing and shall
request that the prosecuting attorney inform the parole board of the circumstances surrounding a
conviction or plea of guilty, plea bargaining and other background information that might be useful
in its deliberations.
(j) (m) Before releasing any inmate on parole, the board of parole shall arrange for the inmate
to appear in person before a parole board panel and the panel may examine and interrogate him or her
on any matters pertaining to his or her parole, including reports before the board made pursuant to the
provisions hereof:
Provided, That an inmate may appear by video teleconference if the members of
the panel conducting the examination are able to contemporaneously see the inmate and hear all of his
or her remarks and if the inmate is able to contemporaneously see each of the members of the panel
conducting the examination and hear all of the members' remarks. The panel shall reach its own
written conclusions as to the desirability of releasing the inmate on parole and the majority of the panel
considering the release shall concur in the decision. The warden or superintendent shall furnish all
necessary assistance and cooperate to the fullest extent with the parole board. All information, records
and reports received by the board are to be kept on permanent file.
(k) (n) The board and its designated agents are at all times to have access to inmates imprisoned
in any state correctional center or in any
city, county or regional jail in this state and
shall have the
power to may obtain any information or aid necessary to the performance of its duties from other
departments and agencies of the state or from any political subdivision thereof.
(l) (o) The board shall, if so requested by the Governor, investigate and consider all
applications for pardon, reprieve or commutation and shall make recommendation thereon to the
Governor.
(m) (p) Prior to making a recommendation for pardon, reprieve or commutation and prior to
releasing any inmate on parole, the board shall notify the sentencing judge and prosecuting attorney
at least ten days before the recommendation or parole.
(n) (q) Any person released on parole shall participate as a condition of parole in the litter
control program of the county to the extent directed by the board, unless the board specifically finds
that this alternative service would be inappropriate.
(r) Except for the amendments to this section contained in subdivision (4), subsection (b) and
subsection (i) of this section the amendments to this section enacted during the 2010 regular session
of the legislature shall become effective on January 1, 2011.
Respectfully submitted,
Corey Palumbo,
John R. Frazier,
Bob Williams,
William R. Wooton,
Mike Hall,
John N. Ellem,
Conferees on the part Conferees on the part
of the Senate. of the House of Delegates.
On motion of Delegate Frazier, the report of the Committee of Conference was adopted.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 426), and
there were--yeas 82, nays 13, absent and not voting 5, with the nays and absent and not voting being
as follows:
Nays: Andes, Armstead, Ashley, Blair, Border, Cowles, Lane, C. Miller, J. Miller, Overington,
Sobonya, Sumner and Walters.
Absent And Not Voting: Argento, Cann, Doyle, McGeehan and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 218) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
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. 107, Requesting a study on the benefits of supporting the development of renewable
energy resources,
H. C. R. 124, Requesting a study of funding sources for county clerks to acquire resources to
implement Uniform Electronic Transactions Act and other similar acts,
H. C. R. 128, Requesting a study on the value of including Family and Consumer Sciences and
Technology Education courses in the middle school curriculum,
H. C. R. 129, Requesting a study on methods to ensure an accurate and stable determination
of local share,
H. C. R. 130, Requesting a study on flexibility for local schools and school systems to acquire
and employ technology to improve student performance and progress,
H. C. R. 131, Requesting a study on the impact of the ski resort industry on West Virginia's
economy,
S. C. R. 33, Requesting DOH name bridge over Peters Creek, Nicholas County, "Homer J.
Summers Memorial Bridge",
S. C. R. 42, Requesting DOH name bridge in Mingo County "Bobby Lee Jarrell Memorial
Bridge",
S. C. R. 43, Requesting DOH name bridge in Lincoln County "Private Brunty Willis Memorial
Bridge",
S. C. R. 44, Requesting DOH name bridge in Logan County "G. R. 'Bob' Johnson Memorial
Bridge",
S. C. R. 49, Requesting DOH name bridge in Mercer County "Isabella Freeman Memorial
Bridge",
And,
H. R. 31, Recognizing James Fitzpatrick, dedicated public servant and distinguished West
Virginian,
And reports the same back with the recommendation that they each be adopted.
At the request of Delegate Boggs, and by unanimous consent, the resolutions (
H. C. R. 107,
H. C. R. 124,
H. C. R. 128,
H. C. R. 129,
H. C. R. 130,
H. C. R. 131,
S. C. R. 33,
S. C. R. 42,
S. C.
R. 43,
S. C. R. 44,
S. C. R. 49 and
H. R. 31 ) were each 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 on those requiring the same.
Delegate Andes requested to be recorded as having voted "Nay" on
H. C. R. 107.
Your Committee on Rules has had under consideration:
H. C. R. 71, "PFC Roger Lee Byus Memorial Bridge, Killed in Action, Vietnam 1969",
H. C. R. 114, Requesting a study on the feasibility of dividing the Department of Health and
Human Resources into more than one distinct agency,
H. C. R. 116, Requesting a study on maternal oral health,
H. C. R. 117, Requesting a study on the establishment of a commission to make
recommendations to the Legislature on the scope of practice of health care professions,
H. C. R. 118, Requesting a study on the feasibility of having the Mary Babb Randolph Cancer
Center become a National Cancer Institute Designated Cancer Center,
H. C. R. 120, Requesting a study on reimbursement for medical services by preferred provider
organizations,
H. C. R. 121, Requesting a study on establishing a pharmaceutical disposal pilot program,
S. C. R. 31, Allowing Director of Office of Miners' Health, Safety and Training discretion
when imposing certain penalties,
S. C. R. 41, Relating to community enhancement districts,
And,
S. C. R. 61, Relating to certain land sale contracts.
And reports the same back with the recommendation that they each be adopted.
At the request of Delegate Boggs, and by unanimous consent, the resolutions (
H. C. R. 71,
H.
C. R. 114,
H. C. R. 116,
H. C. R. 117,
H. C. R. 118,
H. C. R. 120,
H. C. R. 121, S. C. R. 31, S. C.
R. 41 and S. C. R. 61) were each 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 on those requiring the same.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment
of the House of Delegates and requested the House to recede from its amendment to
Com. Sub. for S. B. 213, Budget Bill.
On motion of Delegate Boggs, the House of Delegates refused to recede from its amendment
and requested the Senate to agree to the appointment of a Committee of Conference of six from each
house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates White, Campbell, M. Poling, Kominar, Perdue and Anderson.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of Conference
on, and the passage, as amended by said report, and requested the concurrence of the House of
Delegates in the passage, of
Com. Sub. for S. B. 230, Relating to Board of Optometry.
Conference Committee Report
Delegate Perdue, from the Committee of Conference on matters of disagreement between the
two houses, as to
Com. Sub. for S. B. 230, Relating to Board of Optometry.
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendment of the House to Engrossed Com. Sub. for Senate Bill No. 230 having met, after full and
free conference, that both houses recede from their respective positions as to the strike and insert
amendment of the House of Delegates and that the Senate and House agree to a strike and insert
amendment as follows:
That sections §30-8-2a, §30-8-2b, §30-8-3a, §30-8-3b, and §30-8-5a of the Code of West
Virginia, 1931, as amended, be repealed; that §30-8-1, §30-8-2, §30-8-3, §30-8-4, §30-8-5, §30-8-6,
§30-8-7, §30-8-8, §30-8-9, §30-8-10 and §30-8-11 of said code be amended and reenacted; and that
said code be amended by adding thereto eleven new sections, designated §30-8-12, §30-8-13, §30-8-
14, §30-8-15, §30-8-16, §30-8-17, §30-8-18, §30-8-19, §30-8-20, §30-8-21 and §30-8-22, all to read
as follows:
ARTICLE 8. OPTOMETRISTS.
§30-8-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice optometry in this state without
a license or permit issued under the provisions of this article, or advertise or use any title or description
tending to convey the impression that they are an optometrist unless the person has been duly licensed
or permitted under the provisions of this article.
(b) A business entity may not render any service or engage in any activity which, if rendered
or engaged in by an individual, would constitute the practice of optometry, except through a licensee
or permittee.
(c) A licensee may not practice optometry as an employee of any commercial or mercantile establishment.
(d) A licensee may not practice optometry on premises not separate from premises whereon
eyeglasses, lenses, eyeglass frames or any other merchandise or products are sold by any other person.
For the purposes of this section, any room or suite of rooms in which optometry is practiced shall be
considered separate premises if it has a separate and direct entrance from a street or public hallway or
corridor within a building, which corridor is partitioned off by partitions from floor to ceiling.
(e) A person who is not licensed under this article as an optometrist may not characterize
himself or herself as an "optometrist" or "doctor of optometry" nor may a person use the designation
"OD".
§30-8-2. Applicable law.
The practice of optometry and the Board of Optometry are subject to the provisions of article
one of this chapter, the provisions of this article and the board's rules.
§30-8-3. Definitions.
As used in this article:
(a) "Appendages" means the eyelids, the eyebrows, the conjunctiva and the lacrimal apparatus.
(b) "Applicant" means any person making application for a license, certificate or temporary
permit under the provisions of this article.
(c) "Board" means the West Virginia Board of Optometry.
(d) "Business entity" means any firm, partnership, association, company, corporation, limited
partnership, limited liability company or other entity owned by licensees that practices optometry.
(e) "Certificate" means a prescription certificate issued under section fifteen of this article.
(f) "Certificate holder" means a person authorized to prescribe certain drugs under section
fifteen of this article.
(g) "Examination, diagnosis and treatment" means a method compatible with accredited
optometric education and professional competence pursuant to this article.
(h) "License" means a license to practice optometry.
(i) "Licensee" means an optometrist licensed under the provisions of this article.
(j) "Ophthalmologist" means a physician specializing in ophthalmology licenced in West
Virginia to practice medicine and surgery under article thereof this chapter or osteopathy under article
fourteen of this chapter.
(k) "Permittee" means a person holding a temporary permit.
(l) "Practice of optometry" means the examining, diagnosing and treating of any visual defect
or abnormal condition of the human eye or its appendages within the scope established in this article
or associated rules.
(m) "Temporary permit" or "permit" means a permit issued to a person who has graduated from
an approved school, has taken the examination prescribed by the board, and is awaiting the results of
the examination.
§30-8-4. Board of Optometry.
(a) The West Virginia Board of Optometry is continued. The members of the board in office
on July 1, 2010, shall, unless sooner removed, continue to serve until their respective terms expire and
until their successors have been appointed and qualified.
(b) The board shall consist of the following members appointed by the Governor, by and with
the advice and consent of the Senate:
(1) Five licensed optometrists; and
(2) Two citizen members, who are not licensed under the provisions of this article and who do
not perform any services related to the practice of the profession regulated under the provisions of this
article.
(c) Each licensed member of the board, at the time of his or her appointment, must have held
a professional license in this state for a period of not less than three years immediately preceding the
appointment.
(d) Each member of the board must be a resident of this state during the appointment term.
(e) The term shall be three years. A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified.
(f) A vacancy on the board shall be filled by appointment by the Governor for the unexpired
term of the member whose office is vacant and the appointment shall be made within sixty days of the
vacancy.
(g) The Governor may remove any member from the board for neglect of duty, incompetency
or official misconduct.
(h) A member of the board immediately and automatically forfeits membership to the board
if his or her license to practice is suspended or revoked, is convicted of a felony under the laws of any
jurisdiction, or becomes a nonresident of this state.
(i) The board shall elect annually a president and a secretary-treasurer from its members who
serve at the will of the board.
(j) Each member of the board is entitled to compensation and expense reimbursement in
accordance with article one of this chapter.
(k) A majority of the members of the board constitutes a quorum.
(l) The board shall hold at least two meetings a year. Other meetings may be held at the call
of the president or upon the written request of two members at the time and place as designated in the
call or request.
(m) Prior to commencing his or her duties as a member of the board, each member shall take
and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-8-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this article, by rule, in article one of this
chapter and elsewhere in law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for licenses, certificates and permits;
(3) Establish procedures for submitting, approving and rejecting applications for licenses, certificates and permits;
(4) Determine the qualifications of any applicant for licenses, certificates and permits;
(5) Prepare, conduct, administer and grade examinations for licenses;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations by the board or a third party administer, including the
number of persons taking the examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix the compensation of the executive
secretary;
(9) Maintain an office and hire, discharge, establish the job requirements and fix the
compensation of employees, investigators and contracted employees necessary to enforce the
provisions of this article;
(10) Investigate alleged violations of the provisions of this article, legislative rules, orders and
final decisions of the board;
(11) Conduct disciplinary hearings of persons regulated by the board;
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of the provisions of this article;
(14) Maintain an accurate registry of names and addresses of all licensees regulated by the
board;
(15) Keep accurate and complete records of its proceedings, and certify the same as may be
necessary and appropriate;
(16) Establish the continuing education requirements for licensees;
(17) Issue, renew, combine, deny, suspend, revoke or reinstate licenses, certificates and
permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of
this code to implement the provisions of this article; and
(20) Take all other actions necessary and proper to effectuate the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer the examinations required under the provisions of
this article;
(2) Sue and be sued in its official name as an agency of this state; and
(3) Confer with the Attorney General or his or her assistant in connection with legal matters
and questions.
§30-8-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in accordance with the provisions
of article three, chapter twenty-nine-a of this code, to implement the provisions of this article,
including:
(1) Standards and requirements for licenses, certificates and permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer examinations and
reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses, certificates and permits;
(8) A fee schedule;
(9) A prescription drug formulary classifying those categories of oral drugs rational to the
diagnosis and treatment of visual defects or abnormal conditions of the human eye and its appendages,
which may be prescribed by licensees from Schedules III, IV and V of the Uniform Controlled
Substances Act. The drug formulary may also include oral antibiotics, oral nonsteroidal anti-
inflammatory drugs and oral carbonic anhydrase inhibitors;
(10) Requirements for prescribing and dispensing contact lenses that contain and deliver pharmaceutical agents that have been approved by the Food and Drug Administration as a drug;
(11) Continuing education requirements for licensees;
(12) The procedures for denying, suspending, revoking, reinstating or limiting the practice of
licensees, certificate holders and permittees;
(13) Requirements for inactive or revoked licenses, certificates or permits;
(14) Requirements for an expanded scope of practice for those procedures that are taught at
50% of all accredited optometry schools; 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, 2010, shall remain in effect until they are
amended or repealed, and references to provisions of former enactments of this article are interpreted
to mean provisions of this article.
(c) The board shall promulgate procedural and interpretive rules in accordance with section
eight, article three, chapter twenty-nine-a of this code.
§30-8-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be
deposited in a separate special revenue fund in the State Treasury designated the "West Virginia Board
of Optometry Fund", which is continued. The fund is used by the board for the administration of this
article. Except as may be provided in article one of this chapter, the board retains the amount in the
special revenue account from year to year. No compensation or expense incurred under this article is
a charge against the General Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this article, shall be deposited into the
General Revenue Fund of the State Treasury.
§30-8-8. License to practice optometry.
(a) To be eligible for a license to engage in the practice of optometry, the applicant must:
(1) Be at least twenty-one years of age;
(2) Be of good moral character;
(3) Graduate from a school approved by the Accreditation Council on Optometric Education
or successor organization;
(4) Pass an examination prescribed by the board;
(5) Complete an interview with the board;
(6) Not be addicted to the use of alcohol, drugs or other controlled substances;
(7) Not have been convicted of a felony in any jurisdiction within ten years preceding the date
of application for license, which conviction has not been reversed; and
(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for
which he or she was convicted related to the practice of optometry, which conviction has not been
reversed.
(b) A registration to practice issued by the board prior to July 1, 2010, shall for all purposes
be considered a license issued under this article:
Provided, That a person holding a registration issued
prior to July 1, 2010, must renew pursuant to the provisions of this article.
§30-8-9. Scope of Practice.
(a) An licensee may:
(1) Examine, diagnosis and treat diseases and conditions of the human eye and its appendage
within the scope established in this article or associated rules;
(2) Administer or prescribe any drug for topical application to the anterior segment of the
human eye for use in the examination, diagnosis or treatment of diseases and conditions of the human
eye and its appendages:
Provided, That the licensee has first obtained a certificate;
(3)(A) Administer or prescribe any drug from the drug formulary, as established by the board
pursuant to section six of this article, for use in the examination, diagnosis or treatment of diseases and
conditions of the human eye and its appendages:
Provided, That the licensee has first obtained a
certificate;
(B) New drugs and new drug indications may be added to the drug formulary by approval of
the board;
(4) Administer epinephrine by injection to treat emergency cases of anaphylaxis or anaphylactic
shock;
(5) Prescribe and dispense contact lenses that contain and deliver pharmaceutical agents and
that have been approved by the Food and Drug Administration as a drug;
(6) Prescribe, fit, apply, replace, duplicate or alter lenses, prisms, contact lenses, orthoptics,
vision training, vision rehabilitation;
(7) Perform the following procedures:
(A) Remove a foreign body from the ocular surface and adnexa utilizing a non-intrusive
method;
(B) Remove a foreign body, external eye, conjunctival, superficial, using topical anesthesia;
(C) Remove embedded foreign bodies or concretions from conjunctiva, using topical
anesthesia, not involving sclera;
(D) Remove corneal foreign body not through to the second layer of the cornea using topical
anesthesia;
(E) Epilation of lashes by forceps;
(F) Closure of punctum by plug; and
(G) Dilation of the lacrimal puncta with or without irrigation;
(8) Furnish or provide any prosthetic device to correct or relieve any defects or abnormal
conditions of the human eye and its appendages;
(9) Order laboratory tests rational to the examination, diagnosis, and treatment of a disease or
condition of the human eye and its appendages;
(10) Use a diagnostic laser; and
(11) A licensee is also permitted to perform those procedures authorized by the board prior to
January 1, 2010.
(b) A licensee may not:
(1) Perform surgery except as provided in this article or by legislative rule;
(2) Use a therapeutic laser;
(3) Use Schedule II controlled substances;
(4) Treat systemic disease; or
(5) Present to the public that he or she is a specialist in surgery of the eye.
§30-8-10. Exceptions from licensure.
The following persons are exempt from licensure under this article:
(1) Persons licensed to practice medicine and surgery under article three of this chapter or
osteopathy under article fourteen of this chapter; and
(2) Persons and business entities who sell or manufacture ocular devices in a permanently
established place of business, who neither practice nor attempt to practice optometry.
§30-8-11. Issuance of license; renewal of license; renewal fee.
(a) A licensee shall annually or biennially on or before July 1, renew his or her license by
completing a form prescribed by the board, paying the renewal fee and submitting any other
information required by the board.
(b) The board shall charge a fee for renewal of a license, and a late fee for any renewal not paid
by the due date.
(c) The board shall require as a condition of renewal of a license that each licensee complete
continuing education.
(d) The board may deny an application for renewal for any reason which would justify the
denial of an original application for a license.
§30-8-12. Temporary permits.
(a) Upon proper application and the payment of a fee, the board may issue, without
examination, a temporary permit to engage in the practice of optometry in this state.
(b) If the permittee receives a passing score on the examination, a temporary permit expires
thirty days after the permittee receives the results of the examination.
(c)If the permittee receives a failing score on the examination, the temporary permit expires immediately.
(d) An applicant under this subsection may only be issued one temporary permit. Upon the
expiration of a temporary permit, a person may not practice as an optometrist until he or she is fully
licensed under the provisions of this article. In no event may a permittee practice on a temporary
permit beyond a period of ninety consecutive days.
(e) A temporary permittee under this section shall work under the supervision of a licensee,
with the scope of such supervision to be defined by the board by legislative rule.
§30-8-13. License from another jurisdiction; license to practice in this state.
(a) The board may issue a license to practice to an applicant of good moral character who holds
a valid license or other authorization to practice optometry from another jurisdiction, if the applicant
demonstrates that he or she:
(1) Holds a license or other authorization to practice optometry in another state which
requirements are substantially equivalent to those required in this state;
(2) Does not have charges pending against his or her license or other authorization to practice,
and has never had a license or other authorization to practice revoked;
(3) Has not previously failed an examination for professional licensure in this state;
(4) Has paid the applicable fee;
(5) Has passed the examination prescribed by the board; and
(6) Has fulfilled any other requirement specified by the board.
(b) In its discretion, the board may interview and examine an applicant for licensing under this
section. The board may enter into agreements for reciprocal licensing with other jurisdictions having
substantially similar requirements for licensure.
§30-8-14. Prescriptive authority.
(a) A licensee may prescribe: (1) topical pharmaceutical agents, (2) oral pharmaceutical agents
that are included in the drug formulary established by the board pursuant to section six of this article
or new drugs or new drug indications added by a decision of the board, and (3) contact lenses that contain and deliver pharmaceutical agents that have been approved by the Food and Drug
Administration as a drug.
(b) An applicant must:
(1) Submit a completed application;
(2) Pay the appropriate fee;
(3) Show proof of current liability insurance coverage;
(4) Complete the board required training;
(5) Pass an examination; and
(6) Complete any other criteria the board may establish by rule.
§30-8-15. Administration of injectable pharmaceutical agents
(a) A licensee may not administer pharmaceutical agents by injection, other than epinephrine
to treat emergency cases of anaphylaxis or anaphylactic shock, unless the provisions of this section,
along with any legislative rule promulgated pursuant to this section, have been met.
(b) Additional pharmaceutical agents by injection may be included in the rules for legislative
approval in accordance with the provisions of article three, chapter twenty-nine-a of this code. These
rules shall provide, at a minimum, for the following:
(1) Establishment of a course, or provide a list of approved courses, in administration of
pharmaceutical agents by injection;
(2) Definitive treatment guidelines which shall include, but not be limited to, appropriate
observation for an adverse reaction of an individual following the administration of a pharmaceutical
agent by injection;
(3) A requirement that a licensee shall have completed a board approved injectable
administration course and completed an American Red Cross or American Heart Association basic
life-support training, and maintain certification in the same;
(4) Continuing education requirements for this area of practice;
(5) Reporting requirements for licensees administering pharmaceutical agents by injection to report to the primary care physician or other licensed health care provider as identified by the person
receiving the pharmaceutical agent by injection;
(6) Reporting requirements for licensees administering pharmaceutical agents by injection to
report to the appropriate entities;
(7) That a licensee may not delegate the authority to administer pharmaceutical agents by
injection to any other person; and
(8) Any other provisions necessary to implement the provisions of this section.
(c) In no event may a licensee be granted authority under this section to administer a
pharmaceutical agent by injection directly into the globe of the eye.
§30-8-16. Special volunteer license; civil immunity for voluntary services rendered to indigents.
(a) There is established a special volunteer license for optometrists who are retired or are
retiring from the active practice of optometry and wish to donate their expertise for the care and
treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part,
for the delivery of health care services without charge.
(b) The special volunteer license shall be issued by the board to optometrists licensed or
otherwise eligible for licensure under this article without the payment of an application fee, license fee
or renewal fee, and shall be issued for the remainder of the licensing period, and renewed consistent
with the boards other licensing requirements.
(c) The board shall develop application forms for the special volunteer license provided in this
section which shall contain the optometrist's acknowledgment that:
(1) The optometrist's practice under the special volunteer license will be exclusively devoted
to providing optometrical care to needy and indigent persons in West Virginia;
(2) The optometrist will not receive any payment or compensation, either direct or indirect, or
have the expectation of any payment or compensation, for any optometrical services rendered under
the special volunteer license;
(3) The optometrist will supply any supporting documentation that the board may reasonably require; and
(4) The optometrist agrees to continue to participate in continuing education as required by the
board for a special volunteer license.
(d) Any optometrist who renders any optometrical service to indigent and needy patients of
a clinic organized, in whole or in part, for the delivery of health care services without charge, under
a special volunteer license authorized under this section without payment or compensation or the
expectation or promise of payment or compensation is immune from liability for any civil action
arising out of any act or omission resulting from the rendering of the optometrical service at the
clinic unless the act or omission was the result of the optometrist's gross negligence or willful
misconduct. In order for the immunity under this subsection to apply, before the rendering of any
services by the optometrist at the clinic, there must be a written agreement between the optometrist
and the clinic stating that the optometrist will provide voluntary uncompensated optometrical
services under the control of the clinic to patients of the clinic before the rendering of any services
by the optometrist at the clinic:
Provided, That any clinic entering into such written agreement is
required to maintain liability coverage of not less than $1 million per occurrence.
(e) Notwithstanding the provisions of subsection (d) of this section, a clinic organized, in
whole or in part, for the delivery of health care services without charge is not relieved from imputed
liability for the negligent acts of an optometrist rendering voluntary optometrical services at or for
the clinic under a special volunteer license under this section.
(f) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of
all the requirements for licensure in this article except the fee requirements.
(g) Nothing in this section may be construed as requiring the board to issue a special
volunteer license to any optometrist whose license is or has been subject to any disciplinary action
or to any optometrist who has surrendered a license or caused such license to lapse, expire and
become invalid in lieu of having a complaint initiated or other action taken against his or her license,
or who has elected to place a license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a license.
(h) Any policy or contract of liability insurance providing coverage for liability sold, issued
or delivered in this state to any optometrist covered under the provisions of this article shall be read
so as to contain a provision or endorsement whereby the company issuing such policy waives or
agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim
covered by the terms of such policy within the policy limits, the immunity from liability of the
insured by reason of the care and treatment of needy and indigent patients by an optometrist who
holds a special volunteer license.
§30-8-17. Optometric business entities.
(a) Only licensees may own a business entity that practices optometry.
(b) A licensee may be employed by the business entity.
(c) A business entity shall cease to engage in the practice of optometry when it is not wholly
owned by licensees:
Provided, That the personal representative of a deceased shareholder shall have
a period, not to exceed eighteen months from the date of such shareholder's death, to dispose of such
shares.
§30-8-18. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The board may upon its own motion based on credible information, and shall upon the
written complaint of any person cause an investigation to be made to determine whether grounds
exist for disciplinary action under this article or the legislative rules of the board.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the
complaint to the licensee, certificate holder or permittee.
(c) After reviewing any information obtained through an investigation, the board shall
determine if probable cause exists that the licensee or permittee has violated subsection (g) of this
section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee or permittee has violated
subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license, certificate or
permit or the imposition of sanctions against the licensee, certificate holder or permittee. Any
hearing shall be held in accordance with the provisions of this article, and the provisions of articles
five and six, chapter twenty-nine-a of this code.
(e) Any member of the board or the executive secretary of the board may issue subpoenas and
subpoenas duces tecum on behalf of the board to obtain testimony and documents to aid in the
investigation of allegations against any person regulated by the article.
(f) Any member of the board or its executive secretary may sign a consent decree or other
legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend
or revoke the license, certificate or permit of, impose probationary conditions upon or take
disciplinary action against, any licensee, certificate holder or permittee for any of the following
reasons once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a license, certificate or permit by fraud, misrepresentation or concealment of
material facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk;
(4) Intentional violation of a lawful order;
(5) Having had an authorization to practice optometry revoked, suspended, other disciplinary
action taken, by the proper authorities of another jurisdiction;
(6) Having had an application to practice optometry denied by the proper authorities of
another jurisdiction;
(7) Exceeded the scope of practice of optometry;
(8) Aiding or abetting unlicensed practice;
(9) Engaging in an act while acting in a professional capacity which has endangered or is
likely to endanger the health, welfare or safety of the public; or
(10) False and deceptive advertising; this includes, but is not limited to, the following:
(A) Advertising "free examination of eyes," or words of similar import and meaning; or
(B) Advertising frames or mountings for glasses, contact lenses, or other optical devices
which does not accurately describe the same in all its component parts.
(h) For the purposes of subsection (g) of this section disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or certificate holders to report to the board for periodic interviews
for a specified period of time; or
(7) Other corrective action considered by the board to be necessary to protect the public,
including advising other parties whose legitimate interests may be at risk.
§30-8-19. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct
the hearing.
(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing
he or she shall prepare a proposed written order containing findings of fact and conclusions of law.
The proposed order may contain proposed disciplinary actions if the board so directs. The board
may accept, reject or modify the decision of the administrative law judge.
(d) Any member or the executive secretary of the board has the authority to administer oaths,
examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee, certificate holder or permittee has
violated the provisions of this article or the board's legislative rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the
disciplinary actions imposed.
§30-8-20. Judicial review.
Any licensee, certificate holder or permittee adversely affected by a decision of the board
entered after a hearing may obtain judicial review of the decision in accordance with section four,
article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial
review in accordance with article six, chapter twenty-nine-a of this code.
§30-8-21. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason
to believe that a licensee, certificate holder or permittee has committed a criminal offense under this
article, the board may bring its information to the attention of an appropriate law-enforcement
official.
(b) A person violating section one of this article is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $1,000 nor more than $5,000 or confined in jail not
more than six months, or both fined and confined.
§30-8-22. Single act evidence of practice.
In any action brought or in any proceeding initiated under this article, evidence of the
commission of a single act prohibited by this article is sufficient to justify a penalty, injunction,
restraining order or conviction without evidence of a general course of conduct.
And,
That both houses recede from their positions as to the title of the bill and agree to the same
as follows:
Com. Sub. for S. B. 230 - "A Bill to repeal §30-8-2a, §30-8-2b, §30-8-3a, §30-8-3b and §30-
8-5a of the Code of West Virginia, 1931, as amended; to amend and reenact §30-8-1, §30-8-2, §30-
8-3, §30-8-4, §30-8-5, §30-8-6, §30-8-7, §30-8-8, §30-8-9, §30-8-10 and §30-8-11 of said code; and
to amend said code by adding thereto eleven new sections, designated §30-8-12, §30-8-13, §30-8-14, §30-8-15, §30-8-16, §30-8-17, §30-8-18, §30-8-19, §30-8-20, §30-8-21 and §30-8-22, all relating
to the Board of Optometry; prohibiting the practice of optometry without a license or permit;
providing other applicable sections; providing definitions; providing the board composition; setting
forth the powers and duties of the board; clarifying the rule-making authority; clarifying the scope
of practice; establishing expanded authority for injections; continuing a special revenue account;
licensing requirements; exemptions; providing for licensure for persons licensed in another state;
clarifying prescriptive authority; clarifying injection authority; establishing special volunteer license;
optometric business requirements; establishing renewal requirements; providing permit
requirements; setting forth grounds for disciplinary actions; allowing for specific disciplinary
actions; providing procedures for investigation of complaints; providing for judicial review and
appeals of decisions; setting forth hearing and notice requirements; providing for civil causes of
action; providing criminal penalties; and providing that a single act is evidence of practice.
Respectfully submitted,
Edwin J. Bowman,
Don Perdue,
Jeffrey V. Kessler, Thomas W. Campbell,
K. Facemyer Larry Border,
Conferees on the part Conferees on the part
of the Senate. of the House of Delegates.
On motion of Delegate Perdue, the report of the Committee of Conference was adopted.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 427),
and there were--yeas 84, nays 10, absent and not voting 6, with the nays and absent and not voting
being as follows:
Nays: Barker, Beach, Fleischauer, Guthrie, Hatfield, Lane, Marshall, Martin, Rowan and
Shook.
Absent And Not Voting: Argento, Cann, Duke, McGeehan, Romine and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 230) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Delegate Duke announced that he was absent when the vote was taken on Roll No. 427 , and
that had he been present, he would have voted "Yea" thereon.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of
Conference on, and the passage, as amended by said report, and requested the concurrence of the
House of Delegates in the passage, of
Com. Sub. for S. B. 480, Requiring state participation in Yellow Ribbon G. I. Education
Enhancement Program.
Conference Committee Reports
Delegate M. Poling, from the Committee of Conference on matters of disagreement between
the two houses, as to
Com. Sub. for S. B. 480, Relating to public higher education personnel,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendments of the House to Engrossed Committee Substitute for Senate Bill No. 480 having met,
after full and free conference, have agreed to recommend and do recommend to their respective
houses, as follows:
That both Houses recede from their respective positions as to the amendment of the House
of Delegates as follows:
On page one hundred ninety-seven, section four, line twenty-five, by striking out the
paragraph designation "(H)" and inserting in lieu thereof "(I) One classified employee representing
the doctoral degree-granting institutions appointed by the advisory council of classified employees. This individual may not represent the same institution that is represented by the membership position
provided in paragraph (F) of this subdivision;" and relettering the remaining paragraph designations
accordingly;
On page two hundred two, section five, line seventeen, following the subdivision designation
"(4)", by inserting the following "One classified employee representing the doctoral degree-granting
institutions appointed by the advisory council of classified employees. This individual may not
represent the same institution that is represented by the membership position provided in subdivision
(11) of this subsection; (5)";
On page two hundred forty-two, section three, line twenty-three, after the semicolon, by
striking out the word "and";
On page two hundred forty-two, section three, line twenty-five, after the period, by inserting
"(iii) The affiliated governing board shall make all appointments to the board of directors of the
affiliated corporation by majority vote of its members and shall include the individual votes as a part
of the minute record."
On page two hundred forty-two, section three, line twenty-seven, following the period, by
inserting the following sentence: "Individuals who are directly involved in research at the affiliated
institution shall constitute a majority of the potential affiliated membership."
On page two hundred forty-three, section three, line thirty-three, by striking out the words
"corporate directors" and inserting in lieu thereof the words "affiliated governing board"; and agrees
to this amendment as follows: on line thirty-six, after the period, by inserting the following sentence:
"The affiliated governing board shall appoint the executive director by majority vote of its members
and shall include the vote as a part of the minute record."
And,
And the Senate agrees to all other House amendments.
Respectfully submitted,
Robert H. Plymale,
Mary M. Poling,
William R. Laird, IV,Brady Paxton,
Jesse O. Guills,Ray Canterbury,
Conferees on the partConferees on the part
of the House of the Senate. of the House of Delegates.
On motion of Delegate M. Poling, the report of the Committee of Conference was adopted.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 428),
and there were--yeas 89, nays 6, absent and not voting 5, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Carmichael, Lane, Schoen and Walters.
Absent And Not Voting: Argento, Cann, McGeehan, Ross and Susman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 480) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken
(Roll No. 429), and there were--yeas 92, nays
4, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Schoen and Walters.
Absent And Not Voting: Argento, Cann, McGeehan and Ross.
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. 480) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of
Conference on, and the passage, as amended by said report, and requested the concurrence of the House of Delegates in the passage, of
Com. Sub. for S. B. 567, Creating Nonprofit Adventure and Recreational Responsibility Act.
Conference Committee Reports
Delegate Shook, from the Committee of Conference on matters of disagreement between the
two houses, as to
Com. Sub. for S. B. 567, Creating Nonprofit Adventure and Recreational Responsibility
Act,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendment of the House to Engrossed Com. Sub. for Senate Bill No. 567 having met, after full and
free conference, have agreed to recommend and do recommend to their respective houses, as
follows:
That both houses recede from their respective positions as to the strike and insert amendment
of the House of Delegates, striking out everything after the enacting section and inserting new
language, and agree to the same as follows:
ARTICLE 16. NONPROFIT ADVENTURE AND RECREATIONAL ACTIVITY
RESPONSIBILITY ACT.
§20-16-1. Short title.
This article may be cited as the Nonprofit Adventure and Recreational Activity
Responsibility Act.
§20-16-2. Legislative purpose.
The Legislature finds that West Virginia is blessed by geography and natural features that
make it ideal for a host of adventure and recreational activities attractive to nonprofit youth
organizations interested in training and inspiring thousands of young people from other parts of the
United States and throughout the world. The location by these organizations of facilities within the
state will contribute significantly to the economy of West Virginia, and enhance the state's reputation as a place to visit and transact business. Because it is recognized that there are inherent risks in
various adventure and recreational activities which should be understood by participants therein and
which are essentially impossible for the organizations and their providers to eliminate, it is the
purpose of this article to define those areas of responsibility and those affirmative acts for which
these nonprofit organizations and their providers of adventure and recreational activities shall be
liable for loss, damage or injury suffered by participants, and to further define those risks which the
participants expressly assume and for which there can be no recovery.
§20-16-3. Definitions.
In this article, unless a different meaning plainly is required:
(1) "Adventure or recreational activity" means any program or activity sponsored by a
nonprofit youth organization and conducted by the organization or its provider that involves inherent
risks, including, but not limited to:
(A) All-terrain vehicle activities and similar activities, including all activities within the ATV
Responsibility Act in article fifteen of this chapter;
(B) Biking, mountain-biking and similar activities;
(C) Canopy activities, zip-lines and similar activities;
(D) Climbing and repelling and similar activities in improved and natural areas, including
climbing walls;
(E) Equestrian activities and similar activities, including all activities within the Equestrian
Activities Responsibility Act in article four of this chapter;
(F) Firearms training and similar activities;
(G) Hiking, backpacking, camping and similar activities;
(H) Paintball and similar activities;
(I) Rope initiatives, cope and confidence courses, challenge courses, slacklines, challenge
courses and similar activities;
(J) Skating, including ice skating, rollerblading, and similar activities;
(K) Snow activities, including snowshoeing, snow skiing, sledding, snowmobiling, and
similar activities, including all activities within the Skiing Responsibility Act in article three-A of
this chapter;
(L) Spelunking, caving, and similar activities;
(M) Water sports, including swimming, diving, canoeing, kayaking, boating, sailing, scuba
diving, water skiing, and similar activities, including all activities within the Whitewater
Responsibility Act in article three-B of this chapter;
(N) Windsurfing and similar activities.
(2) "Employee" means an officer, agent, employee, servant, or volunteer, whether
compensated or not, whether full time or not, who is authorized to act and is acting within the scope
of his or her employment or duties with the nonprofit youth organization or provider.
(3) "Nonprofit youth organization" means any nonprofit organization, including any
subsidiary, affiliate or other related entity within its corporate or other business structure, that has
been chartered by the United States Congress to train young people to do things for themselves and
others, and that has established an area of at least six thousand contiguous acres within West Virginia
in which to provide adventure or recreational activities for these young people and others.
(4) "Participant" means any person engaging in an adventure or recreational activity.
(5) "Provider" means any individual, sole proprietorship, partnership, association, public or
private corporation, the United States or any federal agency, this state or any political subdivision
of this state, and any other legal entity which engages, with or without compensation, in organizing,
promoting, presenting or providing or assisting in providing an adventure or recreational activity
sponsored by a nonprofit youth organization, including one that allows the nonprofit youth
organization the use of its land for the adventure or recreational activity.
§20-16-4. Duties of a nonprofit youth organization or provider.
Every nonprofit youth organization or provider shall:
(1) Make reasonable and prudent efforts to determine the ability of a participant to safely engage in the adventure or recreational activity;
(2) Make known to any participant any dangerous traits or characteristics or any physical
impairments or conditions related to a particular adventure or recreational activity, of which the
nonprofit youth organization or provider knows or through the exercise of due diligence could know;
(3) Make known to any participant any dangerous condition as to land or facilities under the
lawful possession and control of the nonprofit youth organization or provider, of which the nonprofit
youth organization or provider knows or through the exercise of due diligence could know, by
advising the participant in writing or by conspicuously posting warning signs upon the premises;
(4) Assure that each participant has or is provided all equipment reasonably necessary for all
activities covered by this article and, in providing equipment to a participant, make reasonable and
prudent efforts to inspect such equipment to assure that it is in proper working condition and safe
for use in the adventure or recreational activity;
(5) Prepare and present to each participant or prospective participant, for his or her inspection
and signature, a statement which clearly and concisely explains the liability limitations, restrictions
and responsibilities set forth in this article:
Provided, That said statement shall not contain nor have
the effect of a waiver of a nonprofit youth organization or provider's duties set forth in this section;
(6) Make reasonable efforts to provide supervision of participants while engaged in activities
under this article.
§20-16-5. Duties of participants.
It is recognized that the adventure and recreational activities described in this article are
hazardous to participants, regardless of all feasible safety measures which can be taken.
Each participant in an adventure or recreational activity expressly assumes the risk of and
legal responsibility for any injury, loss or damage to person or property which results from
participation in an activity. Each participant shall have the sole individual responsibility for knowing
the range of his or her own ability to participate in a particular adventure or recreational activity, and
it shall be the duty of each participant to act within the limits of the participant's own ability, to heed all posted warnings, to act in accordance with the instructions of any employee of the non-profit
youth organization or provider, to perform an adventure or recreational activity only in an area or
facility designated by the nonprofit youth organization or provider and to refrain from acting in a
manner which may cause or contribute to the injury of anyone. There is a rebuttable presumption
that any participant under the age of fourteen is incapable of comparative negligence or assumption
of the risk. There is an irrebuttable presumption that any participant under the age of seven is
incapable of comparative negligence or assumption of the risk. Any participant over the age of
fourteen will be subject to the common law presumptions as to their acts and or omissions.
A participant involved in an accident shall not depart from the area or facility where the
adventure or recreational activity took place without leaving personal identification, including name
and address, or without notifying the proper authorities, or without obtaining assistance when that
person knows or reasonably should know that any other person involved in the accident is in need
of medical or other assistance.
§20-16-6. Liability of nonprofit youth organization or provider.
(a) A nonprofit youth organization or provider shall be liable for injury, loss or damage
caused by failure to follow the duties set forth in section four of this article where the violation of
duty is causally related to the injury, loss or damage suffered. A nonprofit youth organization or
provider shall not be liable for any injury, loss or damage caused by the negligence of any person
who is not an agent or employee of the nonprofit youth organization or provider.
(b) A nonprofit youth organization or provider shall be liable for acts or omissions which
constitute gross negligence or willful and wanton conduct which is the proximate cause of injury to
a participant.
(c) A nonprofit youth organization or provider shall be liable for an intentional injury which
he or she inflicts upon a participant.
(d) Every nonprofit youth organization and any provider for such non-profit youth
organization shall carry public liability insurance in limits of no less than $500,000 per person, $1,000,000 per occurrence and $50,000 for property damage with coverage extending to any
employee of the non-profit youth organization or provider in the course of their duties as an
employee or volunteer. The failure to have in effect the insurance required by this section shall
prevent the non-profit youth organization or provider from relying on the provisions of this article
in any civil action brought by a participant.
§20-16-7. Liability of participants.
Any participant shall be liable for injury, loss or damage resulting from violations of the
duties set forth in section five of this article:
Provided, That none of the provisions in this article
shall modify or eliminate any other statutory or common law provisions which specifically relate to
or concern liability of minors or the capacity of minors to legally enter into contracts.
§20-16-8. Applicability of article.
The provisions of this article are in addition to provisions of articles three-A, three-B, four
and fifteen of this chapter, and are to be construed in pari materia.
Respectfully submitted,
William R. Laird IV,
Alex J. Shook,
Corey Palumbo,
John R. Frazier,
Clark S. Barnes,
John N. Ellem,
Conferees on the part Conferees on the part
of the Senate. of the House of Delegates.
On motion of Delegate Shook, the report of the Committee of Conference was adopted.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 430),
and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann, McGeehan and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 567) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for H. B. 4604, Increasing the criminal penalties for persons who obstruct, flee
from or make false statements to law-enforcement officers; still being in possession of the Clerk, was
taken up for further consideration.
On motion of Delegate Boggs, the House of Delegates reconsidered its actions in concurring
in the Senate amendment to Com. Sub. for H. B. 4604.
At the request of Delegate Boggs, and by unanimous consent, the amendment was then
withdrawn.
On motion of Delegate Miley, the House of Delegates concurred in the Senate amendment
with further amendment, on page three, section seventeen, lines five through seven, by striking out
the words "a state correctional facility less than one year nor more than five years, or both" and a
period, and by inserting in lieu thereof, the words "confined in a regional jail nor more than one year,
or both" and a period.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 430),
and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Cann, McGeehan and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 567) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had agreed to the appointment of a
Committee of Conference of six from each house on the disagreeing votes of the two houses as to
Com. Sub. for S. B. 213, Budget Bill.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Helmick, McCabe, Plymale, Prezioso, Bowman and K. Facemyer.
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. 12 - "Requesting the Joint Committee on Government and Finance study issues
related to the regulation of the motor carrier industry and the Commercial Vehicles Information
Systems and Networks (CVISN) Program."
Whereas, The responsibility for delivery of government services and the enforcement laws
pertaining to the motor carrier industry currently reside in several state agencies, including the Public
Service Commission, Division of Highways, Division of Motor Vehicles, State Tax Division and
the State Police; and
Whereas, The unimpeded flow of commerce facilitated by the motor carrier industry is
essential for the safety and well-being of all Americans; and
Whereas, Nearly seventy percent of all freight transported annually in the United States is
transported by trucks; and
Whereas, Freight volume is expected to double by the year 2035; and
Whereas, State infrastructure and resources to deliver the services and monitoring required
by the motor carrier industry to compete in the international arena of the transportation of goods and
services are scarce; and
Whereas, It may be more cost effective and efficient to both the state and the motor carrier
industry to provide these services on a one-stop basis through consolidated facilities and enhanced
e-government; and
Whereas, There is published information available involving the deployment in the various states of a national set of systems known as the Commercial Vehicles Information Systems and
Networks (CVISN) Program, relating to the safety, credentials and weight regulations of motor
carriers as well as fuel tax; 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 the regulation of the motor carrier industry and the Commercial Vehicles Information
Systems and Networks (CVISN) Program; and, be it
Further Resolved, That the Joint Committee on Government and Finance seek input from
the Public Service Commission, Division of Highways, Division of Motor Vehicles, State Tax
Division and the State Police, as well as from the West Virginia Motor Truck Association, as to how
services required by the motor carrier industry may be more efficiently provided; and, be it
Further Resolved, That the Joint Committee on Government and Finance seek input from
the Division of Motor Vehicles and from the other sources referred by that division pertaining to
whether and to what extent this state should adopt and implement the provisions of the Commercial
Vehicles Information Systems and Networks (CVISN) Program; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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. 17 - "Requesting the Joint Committee on Government and Finance to study funding sources for capital improvements for public facilities made necessary by the imposition of nutrient
removal requirements."
Whereas, The protection and promotion of the environmental health and integrity of the
Chesapeake Bay is in the best interests of the State of West Virginia; and
Whereas, West Virginia is one of six states that have agreed to reduce the amount of
nutrients contributed to the Chesapeake Bay by sources located within its jurisdiction; and
Whereas, A holistic program, while assuring the protection of the Chesapeake Bay, must
include: (1) A nutrient trading and off-set program to allow for efficiencies within the watershed
to assure that public moneys are placed to best use; and (2) a capital improvement program to assist
those required to install capital improvements to obtain the reductions in nutrients previously agreed
to by the state; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study funding
sources for capital improvements for public facilities made necessary by the imposition of nutrient
removal requirements; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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 the 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. 28 - "Expressing the will of the Legislature to repeal the Medicare Sustainable Growth Rate that currently governs physician payments and to support measures to permanently fix
the Medicare Physician payment problem."
Whereas, West Virginia has the largest proportion of population on Medicare of any state;
and
Whereas, Recent AARP polls found that nearly ninety percent of people over the age of fifty
are concerned that the current Medicare physician payment formula threatens their access to care;
and
Whereas, Physicians and other health professionals face an unprecedented twenty-one
percent cut in Medicare payment rates March 1, 2010, with additional cuts in future years; and
Whereas, Physicians are central to the delivery of health care and Medicare's payment
system should encourage quality and affordable care; and
Whereas, By repealing the Sustainable Growth Rate formula, the "Medicare Physician
Payment Reform Act" would eliminate all these forecast cuts; and
Whereas, Medicare cuts will further erode seniors' access and choice of physician;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature of West Virginia is opposed to the Medicare Sustainable Growth Act
which jeopardizes seniors' access to care and physicians' confidence in the government's
commitment to a strong and reliable Medicare program; and, be it
Further Resolved, That the Legislature of West Virginia supports legislation to permanently
repeal the Medicare Sustainable Growth Rate that currently governs Medicare physician payments;
and, be it
Further Resolved, That the Legislature of West Virginia support measures to permanently
fix the Medicare Physician payment problem; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to United States Senators Robert C. Byrd and John D. Rockefeller IV and Representatives Nick J. Rahall, Alan B. Mollohan and Shelley M. Capito.
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:
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. 40 - "Requesting the Joint Committee on Government and Finance study issues
related to the operation and maintenance of West Virginia's state road and highway system related
to snow removal and ice control, operations associated with responding to inclement weather events
and emergencies and established quota levels pertaining to personnel, equipment and materials for
road repair and maintenance."
Whereas, The West Virginia Division of Highways has been given statutory authority for
the planning, design, construction, operation and maintenance of West Virginia's state road and
highway system; and
Whereas, The Division of Highways' mission is to protect public safety and preserve its
highway system by maintaining and repairing the system and responding to inclement weather
related events and emergencies so travelers and goods reach their destination safely and efficiently;
and
Whereas, A key component of the maintenance of state highways is the control of snow and
ice; and
Whereas, Snow removal and ice control should be performed in order to facilitate the
movement and safety of public traffic and should be done in accordance with best management
practices; and
Whereas, Division of Highways uses snow plows, motor graders, deicing salt and abrasives
to clear and treat the roadway pavement; and
Whereas, Division of Highways has established quotas and set budgets for equipment and
personnel to deliver operational services related to snow removal and ice control within its county
and expressway maintenance organizations; and
Whereas, The control of snow and ice on West Virginia's roads and highways involves
balancing the needs of the traveling public, traffic and personal safety and the pavement wear and
ride deterioration together with limited moneys and resources available to the Division of Highways;
and
Whereas, The Division of Highways should be continually searching for materials,
resources, equipment, personnel and improved operational practices to lessen the effects of inclement
weather; and
Whereas, A renewed state commitment to funding West Virginia's road and highway
infrastructure is necessary as well as a renewed interest in addressing the enormity of the
transportation infrastructure system crisis created by inadequate federal and state funds, lack of
personnel and equipment together with operational practices that don't employ best management
practices; and
Whereas, Without adequate infrastructure to efficiently and safely move people and goods,
the state's traffic and economic development will cease; 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 the operation and maintenance of West Virginia's state road and highway system related
to snow removal and ice control and operations associated with responding to inclement weather
events and emergencies; and, be it
Further Resolved, That the Joint Committee on Government and Finance review the Division
of Highways' established quota levels pertaining to personnel, equipment and materials for road maintenance and repair including, but not be limited to, snow removal, ice control, repair and
patching of damaged roads, mowing and all other routine road maintenance; and, be it
Further Resolved, That the Joint Committee on Government and Finance study the costs
associated with repairing and paving roads and highways damaged from snow removal and ice
control, especially damage caused by recent winter storms, together with identifying federal and state
funds adequate to immediately repair and patch the damaged roads; and, be it
Further Resolved, That the Joint Committee on Government and Finance review the
priorities given to improving the state's roads and highways together with identifying federal and
state funds to adequately achieve those priorities; and, be it
Further Resolved, That the Joint Committee on Government and Finance seek input from
the Division of Highways, State Police, National Guard, as well as weather service providers, as to
how snow removal and ice control services may be more efficiently provided during inclement
weather events and emergencies; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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. 47 - "Requesting the Joint Committee on the Judiciary to study the option of
expanding the responsibilities of the law-enforcement training subcommittee and renaming it the
law-enforcement professional standards subcommittee for the primary purposes of establishing uniform standards for the decertification of law-enforcement officers pursuant to instances of major
misconduct and to establish a database of law-enforcement officers who were disciplined for certain
behavior or resigned during disciplinary proceedings."
Whereas, There are no uniform standards for the decertification of law enforcement officers
for major misconduct occurring within the scope of their employment as sworn law enforcement
officers; and
Whereas, There is no centralized system for law enforcement organizations to perform
preliminary research on applicants and whether they have been the subject of discipline in their prior
jobs within the state; and
Whereas, The law-enforcement training subcommittee is responsible for developing
procedures related to training of law-enforcement officers in West Virginia, but there is no state body
responsible for law-enforcement professional standards; and
Whereas, There have been multiple instances recently of law-enforcement officers in West
Virginia changing jobs from one law-enforcement entity to another after the law-enforcement officer
either was disciplined or resigned during disciplinary procedures; and
Whereas, The people of West Virginia would benefit from law-enforcement entities
utilizing a centralized database that tracks certain discipline law-enforcement officers have received
and instances of law-enforcement officers resigning during disciplinary procedures; and
Whereas, S. B. 554 was introduced to address these situations during the 2010 Legislative
session, but stakeholders and interested parties believed more time and attention should be given to
crafting a solution; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on the Judiciary is hereby requested to study the possibility of
establishing a database of law-enforcement officers who were disciplined for certain behavior or
resigned during disciplinary proceedings; and, be it
Further Resolved, That the study address what type of behavior and disciplinary actions shall be reported to any established database and how such information shall be reported; and, be it
Further Resolved, That the study address the future use of any established directory by law-
enforcement entities, with special focus on the potential requirement of checking the database before
hiring and law-enforcement officer; and, be it
Further Resolved, That the study shall review the feasibility of expanding the responsibilities
of the law-enforcement training subcommittee and renaming it the law-enforcement professional
standards subcommittee; and, be it
Further Resolved, That the study address providing the authority to decertify law-
enforcement officers and under what situation such action may be taken; and, be it
Further Resolved, That the Joint Committee on the Judiciary report to the regular session of
the Legislature in 2011 on its findings, conclusions and recommendations, together with any
legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That 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 the
Judiciary.
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. 54 - "Requesting the Joint Committee on Government and Finance to study the
establishment of a commission to make recommendations to the Legislature on the scope of practice
of health care professions."
Whereas, Scope of practice issues for health care delivery is a complex and often
contentious process; and,
Whereas, Factors such as fluctuations in the health care workforce and specific health
specialities, geographic and economic disparities in access to health care services, economic incentives for health care professionals and consumer demand influence the decision making
regarding the scope of practice across all health care disciplines; and,
Whereas, Health care is an evolving, dynamic industry and changes in the scope of practice
are inherent in the health care system; and,
Whereas, The regulation of health care professions is designed to protect the public and
enhance consumer access to competent health care; and,
Whereas, Changes to the scope of practice should recognize the established history of the
practice scope within the profession, a recognition of the education and training received by a
particular health care discipline, evidence supporting the need for a change to the scope of practice
and the appropriate regulatory environment; and,
Whereas, It is necessary to seek advice from within the health care industry when making
informed decisions regarding the scope of practice of health care professions due to the complexities
in examining scope of practice issues; and,
Whereas, The Legislature needs solid expert guidance on issues such as education levels,
skills training, adequate evidence supporting a modification and sufficient regulation; therefore, be
it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
establishment of a commission to make recommendations to the Legislature on the scope of practice
of health care professions; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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
the Clerk, as follows:
S. C. R. 56 - "Requesting the Division of Highways name bridge number 28-120-2.43,
located in Mercer County, the 'Phoebe Goodwill Memorial Bridge'. "
Whereas, Phoebe Goodwill and her husband Philip were early pioneers in the coalfields of
southern West Virginia; and
Whereas, Phoebe Goodwill and her husband Philip owned Goodwill Coal & Coke
Company; and
Whereas, Phoebe Goodwill and her husband Philip built a mansion overlooking the
Bluestone River and downtown Bramwell; and
Whereas, Phoebe Goodwill and her husband Philip played an important role in making
Bramwell the booming business capitol of the coalfields; and
Whereas, It is fitting, to honor the memory of Phoebe Goodwill, who represents the strong
women of the pioneer coal mining days, by naming bridge number 28-120-2.43, located in Mercer
County, the "Phoebe Goodwill Memorial Bridge"; therefore, be it
Resolved by the West Virginia Legislature:
That the Legislature hereby requests the Division of Highways name bridge number 28-120-
2.43, located in Mercer County, the "Phoebe Goodwill Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "Phoebe Goodwill Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation.
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the
resolution (S. C. R. 56) 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.
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
the Clerk, as follows:
S. C. R. 57 - "Requesting the Division of Highways name bridge number 28-20/5-0.07,
located in Mercer County, the 'Yon-Peraldo Memorial Bridge'. "
Whereas, Mauro Peraldo and Livio Yon were natives of Piedicavallo, Italy; and
Whereas, Mauro Peraldo and Livio Yon learned the stonemason trade as apprentices during
their childhood; and
Whereas, Mauro Peraldo and Livio Yon settled in Bramwell, West Virginia, when they
arrived from Italy; and
Whereas, Mauro Peraldo and Livio Yon, with a crew of at least 20 stonemasons, built grand
structures, foundations, stone walls, cemetery walls and reservoirs; and
Whereas, Mauro Peraldo and Livio Yon's artistic work remains as a treasured legacy for
the people in the 21
st Century to appreciate; and
Whereas, It is fitting, to honor the memory of Mauro Peraldo and Livio Yon, by naming
bridge number 28-20/50.07, located in Mercer County, the "Yon-Peraldo Memorial Bridge";
therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways name bridge number 28-20/5-
0.07, located in Mercer County, the "Yon-Peraldo Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "Yon-Peraldo Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation.
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the
resolution (S. C. R. 57) 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.
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
the Clerk, as follows:
S. C. R. 58 - "Requesting the Division of Highways name bridge number 28-20/9-0.09,
located in Mercer County, the 'Andrew Scott Memorial Bridge'."
Whereas, Andrew Scott was born in Middleton-in-Teasdale, Durham County, England, in
1857; and
Whereas, Andrew Scott was a stonemason, carpenter and bricklayer by trade when he
traveled to America in his early 20's; and
Whereas, Andrew Scott moved to the booming Pocahontas coalfield and worked for Mill
Creek Coal & Coke Company at Cooper; and
Whereas, Andrew Scott specialized in construction of mine portals and coke ovens, both
beehive and block; and
Whereas, Andrew Scott bought property on a hillside overlooking downtown Bramwell and
built his stone house there, which is still standing today; and
Whereas, It is fitting, to honor the memory of Andrew Scott for his contributions to the area,
by naming bridge number 28-20/9-0.09, located in Mercer County, the "Andrew Scott Memorial
Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways name bridge number 28-20/9-
0.09, located in Mercer County, the "Andrew Scott Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "Andrew Scott Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation.
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the
resolution (S. C. R. 58) 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.
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
the Clerk, as follows:
S. C. R. 59 - "Requesting the Division of Highways name bridge number 28-120-1.37,
located in Mercer County, the 'Maria Cooper Memorial Bridge'."
Whereas, Maria Cooper was born in England and immigrated to the anthracite coalfields
of Pennsylvania during the American Civil War; and
Whereas, From Pennsylvania, Maria Cooper and her husband John moved in a mule-drawn
wagon to the bituminous New River field in Quinnemont; and
Whereas, In 1884, John Cooper's Mill Creek Mine was the first mine opened on the West
Virginia side of the Pocahontas coal field; and
Whereas, Maria Cooper was stood strong beside her husband through all the hardship and
prosperity; and
Whereas, Maria Cooper was active in the community and her generosity, kindness and
benevolence were known throughout the town of Bramwell; and
Whereas, It is fitting, to honor the memory of Maria Cooper, by naming bridge number 28-
120-1.37, located in Mercer County, the "Maria Cooper Memorial Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways name bridge number 28-120-
1.37, located in Mercer County, the "Maria Cooper Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "Maria Cooper Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation.
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the
resolution (S. C. R. 59) 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.
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. 68 - "Requesting the Joint Committee on Government and Finance to study and
examine alternative 'green' road and highway paving processes and construction."
Whereas, There are emerging technologies and techniques with respect to paving and road
construction that could better protect the environment and more economical; and
Whereas, In other states, "green" highways have been of great benefit to environment since
they are built with permeable materials that provide superior watershed-driven stormwater management and the leaching of metals and toxins into streams and rivers can be prevented; and
Whereas, Landfill usage can be favorably reduced as construction involves recycled
materials and by using cutting-edge technologies in design, critical habitats and ecosystems are
protected from the encroachment of highway infrastructure; and
Whereas, The numerous potholes and rough roads that afflict many of West Virginia's roads
due to the harsh winters and the constant freezing and thawing of snow and ice on the roads could
be a thing of the past as researchers at Northwestern University are currently studying how to apply
nanotechnology to concrete, thus making it less porous; and
Whereas, Recently a revolutionary "green" technology was used in western New York,
known to the industry as low emission asphalt, that used sequential mixing process that requires up
to fifty percent less energy to produce and greatly reduces pollution; and
Whereas, These are just two of the example of emerging technologies and construction
processes that could result in savings to both the taxpayers and the environment; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study and
examine alternative "green" road and highway paving processes and construction; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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. 69 - "Requesting the Joint Committee on Government and Finance to study the
number, mileage, conditions and fiscal burden of roads in the State of West Virginia that are not
eligible for federal matching dollars and alternative funding sources for road design, construction
and maintenance."
Whereas, Secondary roads in West Virginia need to be adequately maintained for the safety
of drivers; and
Whereas, The money and resources to maintain and clear these roads come from solely state
and local budgets which is a significant burden on funds; and
Whereas, Additional funding may be identified to fund secondary road repair, construction,
maintenance and operation; and
Whereas, The repair, construction, maintenance and operation of secondary roads is
important for the safety of drivers but also important in attracting business to the State of West
Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
number, mileage, conditions and fiscal burden of roads in the State of West Virginia that are not
eligible for federal matching dollars and alternative funding sources for road design, construction
and maintenance; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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
the Clerk, as follows:
S. C. R. 70 - "Requesting that the Division of Highways name a section of Wyoming County
Route 1, Wyoming County, West Virginia, from mile post 4.62 to mile post 4.84, the 'Gary "Beatle"
Sutherland Road'."
Whereas, Gary L. Sutherland was born on November 11, 1955; and
Whereas, Gary L. Sutherland served as a member of the Peabody Harris Complex Mine
Rescue Team from 1982 through 1986; and
Whereas, Gary L. Sutherland received his Mine Foreman Certificate from the Office of
Miners' Health Safety & Training on April 5, 1983; and
Whereas, Gary L. Sutherland received numerous safety awards; and
Whereas, Gary L. Sutherland devoted his life as an underground track man and crew leader
for Peabody Coal Company, Harris #1, from January of 1976, through November of 2007; and
Whereas, Gary L. Sutherland entered into a new life on December 14, 2007, leaving behind
his wife of 31 years, Patricia A. Sutherland, two daughters, Angela D. Shorter and Felisha N.
Sutherland, and one granddaughter, Brooke M. Shorter; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways name a section of Wyoming
County Route 1, Wyoming County, West Virginia, from mile post 4.62 to mile post 4.84, the "Gary
'Beatle' Sutherland Road"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the road as the "Gary 'Beatle' Sutherland Road"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation and the family of Gary L. Sutherland.
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the
resolution (S. C. R. 70) 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.
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. 74 - "Requesting the Joint Committee on Education to study the need to provide
funding to the athletic departments of West Virginia high schools and middle schools for the specific
purposes of alleviating the financial burden with respect to transportation, officials fees, facility
upgrades and durable equipment items."
Whereas, High school and middle school athletics is an important part of many young West
Virginians physical fitness and the experience of competing in athletics plays an integral role in
many young West Virginians growth as individuals and as a part of a team; and
Whereas, The athletic departments of West Virginia's middle schools and high schools are
under financial stress; and
Whereas, The State Excess Lottery Revenue Fund has available funds; and
Whereas, Many schools do not have sufficient funds to provide team transportation to
athletic events, thereby creating the safety risk of increased vehicles traveling to the events; and
Whereas, Many middle schools and high schools face annual officials costs of $35,000 or
more in order to complete the schools' athletic events; and
Whereas, Many middle schools and high schools need to make costly facility upgrades,
including but not limited to the addition of lights on outdoor fields and the repair of fields; and
Whereas, Many durable equipment items are often more costly than middle schools and
high schools are able to afford; and
Whereas, Providing funding for transportation, officials fees, facility upgrades and certain durable equipment purchase will create additional jobs in many local communities throughout the
state; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Education is hereby requested to study the need for providing
funding from the State Excess Lottery Revenue Fund to the athletic departments of the state's middle
schools and high schools for the specific focus of transportation, officials fees, facility upgrades and
durable equipment items; and, be it
Further Resolved, That the study need not address any funds for salaries, hotels, meals,
nondurable equipment or other athletic department expenses that are not mentioned in the previous
paragraph; and, be it
Further Resolved, That the Joint Committee on Education report to the regular session of the
Legislature in 2011 on its findings, conclusions and recommendations, together with drafts of any
legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That 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
Education.
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. 8 - "Requesting the Joint Committee on Government and Finance study issues
implicated in gubernatorial succession when a vacancy in the office of Governor occurs due to death,
conviction on impeachment, failure to qualify, resignation or other disability."
Whereas, The West Virginia Constitution provides in Article VII, Section 16:
In case of the death, conviction on impeachment, failure to qualify,
resignation, or other disability of the governor, the president of the senate shall act as governor until the vacancy is filled, or the disability removed; and if the president
of the senate, for any of the above named causes, shall become incapable of
performing the duties of governor, the same shall devolve upon the speaker of the
house of delegates; and in all other cases where there is no one to act as governor,
one shall be chosen by joint vote of the legislature. Whenever a vacancy shall occur
in the office of governor before the first three years of the term shall have expired,
a new election for governor shall take place to fill the vacancy; and
Whereas, Situations may arise where additional constitutional or statutory procedures may
be needed or useful in providing a smooth transition in case of a vacancy in the office of Governor;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study issues
implicated in gubernatorial succession when a vacancy in the office of Governor occurs due to death,
conviction on impeachment, failure to qualify, resignation or other disability; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, 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. 73 - "Requesting the Joint Committee on Government and Finance study public
policy initiatives that promote the development and implementation of green building standards, green energy workforce and energy demand-side management in the public and private sectors, as
well as potential tax credits."
Whereas, President Barack Obama initiated a significant catalyst to the green energy
economy through the commitment of billions of federal dollars; and
Whereas, West Virginia is one of the largest energy producers and exporters in the United
States, a state which, in addition to fossil fuel reserves, has a vast amount of renewable energy
resources that, if effectively captured and developed, is capable of creating greater opportunities and
substantial wealth in West Virginia's energy economy, twenty states, including the neighboring
states of Maryland, Pennsylvania and Ohio, have dedicated funds to promote renewable energy
technologies, and West Virginia's economy may benefit from joining other states that are supporting
renewable energy projects by establishing a dedicated, long-term funding source; and
Whereas, The creation of further demand for skilled trained green jobs and products is
important to future economic development in the state; and
Whereas, Educational and training programs within the community college/vocational-
technical system serve as the catalyst for the development of green jobs; and
Whereas, The development of energy demand-side best practices will generate savings for
both public and private sector organizations; and
Whereas, Several public sector entities, such as the School Building Authority and
Courthouse Facilities Improvement Authority, currently possess the capability and programmatic
structure conducive to the development and implementation of energy demand-side best practices;
and
Whereas, The United States Green Building Council has developed standards known as the
Leadership in Energy and Environmental Design standards; and
Whereas, Further review and determination of the most relevant and useful green building
standards is critical to any energy demand-side management policy and program; and
Whereas, The availability of credits against certain state taxes, such as the West Virginia corporation net income tax, the business franchise tax and the West Virginia personal income tax,
for placing in service certain energy efficient buildings, such as those buildings that comply with
designated requirements of the federal Energy Star programs, would encourage the construction or
rehabilitation of energy-efficient buildings in this state; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study public
policy initiatives that promote the development and implementation of green building standards,
green energy workforce and energy demand-side management in the public and private sectors, as
well as potential tax credits; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested
to study the different types and funding methods of renewable energy technology funds operated by
other states and the feasibility and viability of establishing a state dedicated fund to promote
renewable energy technologies in West Virginia, and to consider and evaluate different methods of
funding a renewable energy technology fund in West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, on 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 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, 2011, 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. 75 - "Requesting the Joint Committee on the Judiciary to study the need to limit the
liability of the section of Parks and Recreation of the Division of Natural Resources and state park
foundations, county parks and recreation commissions, boards of park and recreation commissioners
and owners of land used for public parks and recreation purposes under an agreement with any of
the foregoing entities."
Whereas, Public parks provide recreational areas for communities across the State of West
Virginia; and
Whereas, Without these recreational areas, there would be far fewer locations for
recreational activity within the state; and
Whereas, There is a strong need in all communities within the state for recreational areas
within which community members can exercise and enjoy the opportunities that each public park
offers; and
Whereas, During the participation in recreational activities there always exists the
unfortunate possibility of a person sustaining injury, loss or damage; and
Whereas, Such injury, loss or damage may not be caused by an agent or employee of the
public park; and
Whereas, Any legal liability of public parks emanating from injury, loss or damage not
caused by an agent or employee could shift the monetary burden from a private person or
organization to the public park and the public at large; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on the Judiciary is hereby requested to study the need to limit the
liability of the section of Parks and Recreation of the Division of Natural Resources and state park
foundations, county parks and recreation commissions, boards of park and recreation commissioners and owners of land used for public parks and recreation purposes under an agreement with any of
the foregoing entities; and, be it
Further Resolved, That the Joint Committee on the Judiciary report to the regular session of
the Legislature in 2011 on its findings, conclusions and recommendations, together with drafts of
any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That 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 the
Judiciary.
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. 77 - "Requesting the Joint Committee on Government and Finance study the issue
of Vocational Education from Middle School through Adulthood."
Whereas, A highly-skilled and educated workforce is critical to the economic development
efforts of West Virginia; and
Whereas, A skilled and educated workforce is necessary to fill the highly-skilled technical
jobs of the future; and
Whereas, Career and technical education instruction assists students in developing 21
st
Century skills necessary for success in the workforce and post secondary education; and
Whereas, Public school students, as well as adults, need the proper academic and technical
preparation necessary for high-skills, high-wage occupations; and
Whereas, The majority of careers in the global workplace are "middle skill occupations"
requiring students to have both academic and technical skills for success; and,
Whereas, Students need to be more engaged at the middle school level in career and
technical education offerings that spark an interest in remaining in school and pursuing a career goal; and
Whereas, Ninety-percent of the best paying jobs in the future requires education beyond
high school; and
Whereas, Clear, seamless career and technical education pathways for secondary students
transitioning from middle school to high school, high school to community and technical colleges
are in place; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study
vocational education from middle school through adulthood in and for the state; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, on its findings, conclusions and recommendation, 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. 78 - "Requesting the Joint Committee on Government and Finance study the issue
of improving student achievement in public education."
Whereas, the more recent history of federal education policy has consistently been one of
noble intentions and lack of follow through; and
Whereas, Research has shown that federally-mandated standards have been inconsistent,
meaningless, and driven to the lowest common denominator by a punishment-oriented system; and
Whereas, According to current federal law and the process requirements of the No Child Left Behind Act, public schools are expected to produce positive results while the effects of other
social policies on the lives of poor children are reduced or ignored; and
Whereas, The No Child Left Behind Act remains the dominant federal education policy and
a new administration is again emphasizing process over results, ignoring the current problems
inherent in federal policy, and neglecting to account for the diversity of student starting points and
the level of resources available among the states; and
Whereas, Studies show that unique combinations of reform elements can positively address
the achievement needs of poor, minority, and disadvantaged children; and
Whereas, Successful comprehensive state reform efforts have used a mix of reform
elements that best fit the individual state's needs; and
Whereas, Federal lawmakers should not decide which reform elements should be applied
to individual states; therefore be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study actions
to improve student achievement in public education in and for the state; and be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011, on its findings, conclusions and recommendation, 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. 79 - "Requesting the Joint Committee on the Judiciary to study the need for establishing additional civil and criminal forfeiture statutes and the process for and purpose of any
forfeiture proceedings as may be necessary."
Whereas, Concern has arisen as to whether the State of West Virginia has sufficient
authority to institute forfeiture procedures in certain criminal and civil cases; and
Whereas, There are questions as to whether certain persons involved in criminal activity
are able to continue that activity after any punishment was received because the person was not
required to forfeit the tools or fruits of their criminal activity; and
Whereas, Forfeiture statutes must be carefully tailored to ensure that no constitutional rights
are violated, nor innocent person injured; and
Whereas, The State of West Virginia has an interest in protecting unrepresented individuals
from having their property improperly seized or forfeited; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on the Judiciary is hereby requested to study the need for increasing
and enhancing the state's power to seek forfeiture in certain civil and criminal cases; and, be it
Further Resolved, That the study address all constitutional questions involved with forfeiture
statutes; and, be it
Further Resolved, That the Joint Committee on the Judiciary report to the regular session of
the Legislature in 2011 on its findings, conclusions and recommendations, together with drafts of
any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That 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 the
Judiciary.
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. 83 - "Requesting that the Joint Committee on Government and Finance authorize
a study on the revision of the powers and duties of the West Virginia Health Care Authority."
Whereas, The rate review process was enacted by the West Virginia Legislature in 1983 and
became a part of the Health Care Authority at that time; and
Whereas, The rate review process is intended to be a regulatory element designed to assist
the Health Care Authority to control health care costs, improve the quality and efficiency of the
state's health care system, and promote access to care; and
Whereas, Unless specifically exempted, all acute care hospitals in West Virginia must
obtain approval from the Health Care Authority to amend their rates; and
Whereas, Rate review does not exist in many states; and
Whereas, Restructuring the rate review process may be needed; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the rate
review process within the Health Care Authority; and, be it
Further Resolved, That the Joint Committee on Government and Finance consult with the
Health Care Authority, experts in health care financing, payers, the West Virginia Hospital
Association, and other interested parties who may offer insight into the rate review process; and be
it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2011 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. 86 - "Requesting the Joint Committee on Government and Finance study the
recommendations included within the Legislative Performance Review of the West Virginia Division
of Natural Resources Parks and Recreation Section concerning deferred maintenance, profitability,
and recommended facility closures."
Whereas, The Performance Evaluation and Research Division of the West Virginia
Legislative Auditor recently completed a performance review of the Parks and Recreation Section
within the West Virginia Division of Natural Resources; and
Whereas, A substantial portion of this report relates to issues concerning deferred
maintenance within the state park system, the profitability of certain parks and their amenities, and
a number of options that should be considered in addressing these and other concerns; and
Whereas, Included within this report were a number of specific recommendations intended
to improve the profitability of facilities operated by the Parks and Recreation Section within the
Division of Natural Resources, including the possible elimination through cancellation of the lease
for the operation of Hawks Nest Golf Course, among other profitability concerns
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the report recommendations included within the Legislative Performance Review
of the Parks and Recreation Section of the West Virginia Division of Natural Resources conducted
by the Performance Evaluation and Research Division of the Office of the Office of the West
Virginia Auditor; and, be it
Further Resolved, That the special attention also be given to any recommended closures of
any facilities currently maintained and operated by the Division of Natural Resources for the benefit
of the citizens of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2011, 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, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 7, Requesting the Joint Committee on Government and Finance to continue
studying the needs, challenges, and issues facing West Virginia veterans returning from recent
service.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 102, Requesting a study of the issues relating to creating a matching grant pilot
project.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had receded from its amendment to, and
the passage, to take effect July 1, 2010, of
Com. Sub. for H. B. 4031, Providing flexibility in the West Virginia public school support
plan for funding regional education service agencies.
Conference Committee Reports
Delegate Michael, from the Committee of Conference on matters of disagreement between
the two houses, as to
Com. Sub. for H. B. 4166, Expanding the age for firefighters over thirty-five years of age
for persons already employed by another paid fire department,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the
amendment of the Senate to Com. Sub. for H. B. 4166, having met, after full and free conference,
have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the Senate,
striking out everything after the enacting section and inserting new language, and agree to the same
as follows:
"ARTICLE 15. FIRE FIGHTING; FIRE COMPANIES AND DEPARTMENTS; CIVIL
SERVICE FOR PAID FIRE DEPARTMENTS.
§8-15-17. Form of application; age and residency requirements; exceptions.
(a) The Firemen's Civil Service Commission in each municipality shall require individuals
applying for admission to any competitive examination provided for under the civil service
provisions of this article or under the rules of the commission to file in its office, within a reasonable
time prior to the proposed examination, a formal application in which the applicant shall state under
oath or affirmation:
(1) His or her full name, residence and post-office address;
(2) His or her United States citizenship, age and the place and date of his or her birth;
(3) His or her state of health, and his or her physical capacity for the public service;
(4) His or her business and employments and residences for at least three previous years; and
(5) Any other information as may reasonably be required, touching upon the applicant's
qualifications and fitness for the public service.
(b) Blank forms for the applications shall be furnished by the commission, without charge,
to all individuals requesting the same.
(c) The commission may require, in connection with the application, certificates of citizens,
physicians and others, having pertinent knowledge concerning the applicant, as the good of the
service may require.
(d) Except as provided in subsections (e) and (f) of this section, no application for original
appointment shall be received if the individual applying is less than eighteen years of age or more
than thirty-five years of age at the date of his or her application
,
(e): Provided, That In the event any applicant formerly served upon the paid fire department
of the municipality to which he or she makes application, for a period of more than one year, and
resigned from the department at a time when there were no charges of misconduct or other
misfeasance pending against the applicant, within a period of two years next preceding the date of
his or her application, and at the time of his or her application resides within the corporate limits of
the municipality in which the paid fire department to which he or she seeks appointment by
reinstatement is located, then the individual shall be eligible for appointment by reinstatement in the
discretion of the Firemen's Civil Service Commission, even though the applicant shall be over the
age of thirty-five years, and the applicant, providing his or her former term of service so justifies,
may be appointed by reinstatement to the paid fire department without a competitive examination,
but the applicant shall undergo a medical examination; and if the individual shall be so appointed
by reinstatement to the paid fire department, he or she shall be the lowest in rank in the department
next above the probationers of the department
and may not be entitled to seniority considerations.
(f) If an individual is presently employed by one paid fire department and is over the age of
thirty-five, he or she may make an application to another paid fire department if:
(1) The paid fire department to which he or she is applying is serving a municipality that has
elected to participate in the West Virginia Municipal Police Officers and Firefighters Retirement
System created in article twenty-two-a, chapter eight of this code: Provided, That any individual
applying pursuant to this subdivision is to be classified as a new employee for retirement purposes
and no prior employment service can be transferred to the West Virginia Municipal Police Officers
and Firefighters Retirement System; or
(2)The paid fire department to which he or she is applying is serving a municipality that has
elected to participate in the West Virginia Public Employees Retirement System created in article ten, chapter five of this code: Provided, That any individual applying pursuant to this subdivision
is to be classified as a new employee for retirement purposes and no prior employment service can
be transferred to the West Virginia Public Employees Retirement System, except for individuals and
their prior employment service already credited to them in the West Virginia Public Employees
Retirement System pursuant to article ten, chapter five of this code.
(g) Individuals who are authorized to apply to a paid fire department pursuant to subsection
(f) of this section shall be in the lowest rank of the department and may not be entitled to seniority
considerations.
(h) Any applicant for original appointment must have been a resident for one year, during
some period of time prior to the date of his or her application, of the municipality in which he or she
seeks to become a member of the paid fire department:
Provided, That if the commission determines
it necessary it may consider for original appointment applicants who are not residents of the
municipality but who have been residents of the county in which the municipality or any portion of
the territory thereof is located for a period of at least one year."
And,
That both houses recede from their positions as to the title of the bill and agree to the same
as follows:
Com. Sub. for H. B. 4166 - "A Bill to amend and reenact §8-15-17 of the Code of West
Virginia, 1931, as amended, relating to paid firefighters who seek subsequent employment with other
paid fire departments; authorizing applicants over the age of thirty-five who seek subsequent
employment with a paid fire department to apply under certain circumstances; and limiting
subsequent hiring or reinstatement effects on seniority considerations."
Respectfully submitted,
Harold Michael,
Evan H. Jenkins,
Doug Skaff, Jr.,
Dan Foster
Bill Hamilton,
Mike Hall
Conferees on the part Conferees on the part
of the House of Delegates. of the Senate.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had receded from its amendment to, and
the passage, of
Com. Sub. for H. B. 4182, Relating to the emergency medical services retirement system
act.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
affect from passage, a bill of the House of Delegates as follows:
H. B. 4670, Making a supplementary appropriation to the Department of Agriculture, to the
Department of Health and Human Resources, to the Department of Revenue - Racing Commission,
to the Bureau of Senior Services and to the Higher Education Policy Commission.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4108, Authorizing miscellaneous agencies and boards to promulgate
legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, the
following bills of the House of Delegates:
H. B. 4524, Revising the definition of "all-terrain vehicle" and including a definition for
utility terrain vehicle,
H. B. 4036, Establishing the Judicial Vacancy Advisory Commission,
Com. Sub. for H. B. 4164, Creating of a pilot program for the placement of children four
to ten years of age in foster care which shall be known as Jacob's Law,
Com. Sub. for H. B. 4247, Providing counties the discretion to accompany an electronic poll
book with a printed poll book,
H. B. 4354, Relating to conditions and arrests in domestic violence matters,
And,
Com. Sub. for H. B. 4541, Authorizing circuit court judges and magistrates to utilize county
or municipal jails to detain persons charged with a crime up to ninety-six hours, or, to confine
persons convicted of a crime for not more than fourteen days.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect from passage, the following bills of the House of Delegates:
H. B. 4339, Relating to collecting debts through the United States Treasury Offset Program,
And,
H. B. 4668, Making a supplementary appropriation to the Crime Victims Compensation
Fund, the Department of Education and the Arts - Division of Culture and History, and to the
Department of Environmental Protection.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment,
resolutions of the House of Delegates, as follows:
H. C. R. 16 The "Arsenio Albert Alvarez Memorial Bridge",
H. C. R. 20, The "PFC Ezra Craft Memorial Bridge",
H. C. R. 23, The "SFC Terrance N. Gentry Memorial Bridge",
H. C. R. 24, The "PFC Franklin L. Conn Memorial Bridge",
H. C. R. 25, The "PFC Clarence Ellis Memorial Bridge",
H. C. R. 29, The "Sgt. Chester A. Mollett Memorial Highway",
H. C. R. 32, The "LCPL Dale A. Griffin Memorial Bridge",
H. C. R. 36, "The Marion County Veterans Memorial Bridge",
H. C. R. 38, The "Ralph L. Dawson Memorial Bridge",
H. C. R. 46, The "Staff Sergeant Robert Lee Chambers Memorial Bridge",
H. C. R. 50, Requesting the Joint Committee on Government and Finance study the burden
of taxes and fees imposed by the State of West Virginia upon the coal industry,
H. C. R. 64, The "Delmar L. Parrish Bridge",
H. C. R. 65, The "Sloan Brother's Highway",
H. C. R. 72, The "Glenn Holton Memorial Bridge",
H. C. R. 82, The "P.F.C. Daniel F. Tallman Memorial Bridge",
H. C. R. 83, The "Carmel M. Johnson Memorial Bridge",
And,
H. C. R. 111, Urging the United States Environmental Protection Agency to interpret the
West Virginia Water Pollution Act.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendments of the House of
Delegates and the passage, as amended, of
Com. Sub. for S. B. 38, Creating WV Servicemembers Civil Relief Act,
Com. Sub. for S. B. 219, Relating to managing state motor vehicle fleet,
Com. Sub. for S. B. 337, Requiring Racetrack Video Lottery Fund be used for certain
payments,
Com. Sub. for S. B. 362, Prohibiting providing false information to obtain controlled
substances prescription,
Com. Sub. for S. B. 398, Prohibiting landfill disposal of certain electronic devices,
Com. Sub. for S. B. 446, Clarifying deceased public employees' survivors participate in
comprehensive group health insurance plans only,
Com. Sub. for S. B. 457, Repealing certain outdated code sections and eliminating penalties for displaying certain flags,
Com. Sub. for S. B. 490, Relating to domestic violence,
Com. Sub. for S. B. 498, Updating language relating to adult social services,
S. B. 533, Revising statutory language regarding child abuse,
S. B. 583, Updating references to Information Services and Communications Division,
Com. Sub. for S. B. 597, Requiring women seeking abortion opportunity to see fetus
ultrasound image,
And,
S. B. 635, Requiring State Fire Commission approve certain county and municipal fire
ordinances and regulations.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect from passage, the following bills of the House of Delegates:
S. B. 237, Authorizing issuance of revenue bonds for public projects,
S. B. 499, Changing names of certain community and technical colleges,
S. B. 526, Finding and declaring certain claims against state,
And,
S. B. 547, Correcting inconsistency in school board levies' code.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect July 1, 2010, the following bills of the House of Delegates:
Com. Sub. for S. B. 376, Relating to residential mortgage foreclosure data,
And,
Com. Sub. for S. B. 471, Increasing circuit clerks' copying charge.
At 11:59 p.m., the House of Delegates adjourned until 12:10 a.m., Sunday, March 14, 2010.