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HOUSE: | Bills Introduced | Abstract | Topical Index | Committee Schedule | Calendar | Local Calendar | Special Calendar | Journal | Menu |

House Journal


Day 01 (01-12-2011)
Day 02 (01-13-2011)
Day 03 (01-14-2011)
Day 06 (01-17 2011)
Day 07 (01-18 2011)
Day 08 (01-19-2011)
Day 09 (01-20-2011)
Day 10 (01-21-2011)
Day 13 (01-24-2011)
Day 14 (01-25-2011)
Day 15 (01-26-2011)
Day 16 (01-27-2011)
Day 17 (01-28-2011)
Day 20 (01-31-2011)
Day 21 (02-01-2011)
Day 22 (02-02-2011)
Day 23 (02-03-2011)
Day 24 (02-04-2011)
Day 27 (02-07-2011)
Day 28 (02-08-2011)
Day 29 (02-09-2011)
Day 30 (02-10-2011)
Day 31 (02-11-2011)
Day 34 (02-14-2011)
Day 35 (02-15-2011)
Day 36 (02-16-2011)
Day 37 (02-17-2011)
Day 38 (02-18-2011)
Day 41 (02-21-2011)
Day 42 (02-22-2011)
Day 43 (02-23-2011)
Day 44 (02-24-2011)
Day 45 (02-25-2011)
Day 48 (02-28-2011)
Day 49 (03-01-2011)
Day 50 (03-02-2011)
Day 51 (03-03-2011)
Day 52 (03-04-2011)
Day 55 (03-07-2011)
Day 56 (03-08-2011)
Day 57 (03-09-2011)
Day 58 (03-10-2011)
Day 59 (03-11-2011)
Day 60 (03-12-2011)
Day 61 (03-13-2011)
Day 62 (03-14-2011)
Day 63 (03-15-2011)
Day 64 (03-16-2011)
Day 65 (03-17-2011)
hdj2011-03-12-60





__________*__________




Saturday, March 12, 2011

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 11, 2011, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Conference Committee Report

Delegate Campbell, from the Committee of Conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 2879, Providing a one-time, nonbase building, supplemental salary increase for all eligible state employees,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the Senate amendment to Com. Sub. for H. B. 2879 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 §18A-4-5c and §18A-4-5d of the Code of West Virginia, 1931, as amended, be repealed; that §6-7-2a of said code be amended and reenacted; that §15-2-5 of said code be amended and reenacted; that §18A-4-2, §18A-4-5 and §18A-4-8a of said code be amended and reenacted; that §20-7-1c of said code be amended and reenacted; that §50-1-3 of said code be amended and reenacted; that §51-1-10a of said code be amended and reenacted; that §51-2-13 of said code be amended and reenacted; and that §51-2A-6 of said code be amended and reenacted, all to read as follows:
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.

ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2a. Terms of certain appointive state officers; appointment; qualifications; powers and salaries of such officers.

(a) Each of the following appointive state officers named in this subsection shall be appointed by the Governor, by and with the advice and consent of the Senate. Each of the appointive state officers serves at the will and pleasure of the Governor for the term for which the Governor was elected and until the respective state officers' successors have been appointed and qualified. Each of the appointive state officers are subject to the existing qualifications for holding each respective office and each has and is hereby granted all of the powers and authority and shall perform all of the functions and services heretofore vested in and performed by virtue of existing law respecting each office.
Prior to July 1, 2006, each such named appointive state officer shall continue to receive the annual salaries they were receiving as of the effective date of the enactment of this section in 2006 and thereafter, notwithstanding any other provision of this code to the contrary, the annual salary of each named appointive state officer shall be as follows:
Commissioner, Division of Highways, $92,500; Commissioner, Division of Corrections, $80,000; Director, Division of Natural Resources, $75,000; Superintendent, State Police, $85,000; Commissioner, Division of Banking, $75,000; Commissioner, Division of Culture and History, $65,000; Commissioner, Alcohol Beverage Control Commission, $75,000; Commissioner, Division of Motor Vehicles, $75,000; Chairman, Health Care Authority, $80,000; members, Health Care Authority, $75,000; Director, Human Rights Commission, $55,000; Commissioner, Division of Labor, $70,000; Director, Division of Veterans' Affairs, $65,000; Chairperson, Board of Parole, $55,000; members, Board of Parole, $50,000; members, Employment Security Review Board, $17,000; and Commissioner, Bureau of Employment Programs, $75,000. Secretaries of the departments shall be paid an annual salary as follows: Health and Human Resources, $95,000; Transportation, $95,000: Provided, That if the same person is serving as both the Secretary of Transportation and the Commissioner of Highways, he or she shall be paid $120,000; Revenue, $95,000; Military Affairs and Public Safety, $95,000; Administration, $95,000; Education and the Arts, $95,000; Commerce, $95,000; and Environmental Protection, $95,000: Provided, however, That any increase in the salary of any current appointive state officer named in this subsection pursuant to the reenactment of this subsection during the regular session of the Legislature in 2006 that exceeds $5,000 shall be paid to such officer or his or her successor beginning on July 1, 2006, in annual increments of $5,000 per fiscal year, up to the maximum salary provided in this subsection: Provided further, That if the same person is serving as both the Secretary of Transportation and the Commissioner of Highways, then the annual increments of $5,000 per fiscal year do not apply.
(b) Each of the state officers named in this subsection shall continue to be appointed in the manner prescribed in this code and, prior to July 1, 2006, each of the state officers named in this subsection shall continue to receive the annual salaries he or she was receiving as of the effective date of the enactment of this section in 2006 and shall thereafter, notwithstanding any other provision of this code to the contrary, be paid an annual salary as follows:
Director, Board of Risk and Insurance Management, $80,000; Director, Division of Rehabilitation Services, $70,000; Director, Division of Personnel, $70,000; Executive Director, Educational Broadcasting Authority, $75,000; Secretary, Library Commission, $72,000; Director, Geological and Economic Survey, $75,000; Executive Director, Prosecuting Attorneys Institute, $70,000; Executive Director, Public Defender Services, $70,000; Commissioner, Bureau of Senior Services, $75,000; Director, State Rail Authority, $65,000; Executive Director, Women's Commission, $55,000; Director, Hospital Finance Authority, $35,000; member, Racing Commission, $12,000; Chairman, Public Service Commission, $85,000; members, Public Service Commission, $85,000; Director, Division of Forestry, $75,000; Director, Division of Juvenile Services, $80,000; and Executive Director, Regional Jail and Correctional Facility Authority, $80,000: Provided, That any increase in the salary of any current appointive state officer named in this subsection pursuant to the reenactment of this subsection during the regular session of the Legislature in 2006 that exceeds $5,000 shall be paid to such officer or his or her successor beginning on July 1, 2006, in annual increments of $5,000 per fiscal year, up to the maximum salary provided in this subsection.
(c) Each of the following appointive state officers named in this subsection shall be appointed by the Governor, by and with the advice and consent of the Senate. Each of the appointive state officers serves at the will and pleasure of the Governor for the term for which the Governor was elected and until the respective state officers' successors have been appointed and qualified. Each of the appointive state officers are subject to the existing qualifications for holding each respective office and each has and is hereby granted all of the powers and authority and shall perform all of the functions and services heretofore vested in and performed by virtue of existing law respecting each office.
Prior to July 1, 2006, each such named appointive state officer shall continue to receive the annual salaries they were receiving as of the effective date of the enactment of this section in 2006 and thereafter, notwithstanding any other provision of this code to the contrary, the annual salary of each named appointive state officer shall be as follows:
Commissioner, State Tax Division, $92,500; Commissioner, Insurance Commission, $92,500; Director, Lottery Commission, $92,500; Director, Division of Homeland Security and Emergency Management, $65,000; and Adjutant General, $125,000.
(d) No increase in the salary of any appointive state officer pursuant to this section shall be paid until and unless the appointive state officer has first filed with the State Auditor and the Legislative Auditor a sworn statement, on a form to be prescribed by the Attorney General, certifying that his or her spending unit is in compliance with any general law providing for a salary increase for his or her employees. The Attorney General shall prepare and distribute the form to the affected spending units.
CHAPTER 15. PUBLIC SAFETY.

ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-5. Career progression system; salaries; exclusion from wages and hour law, with supplemental payment; bond; leave time for members called to duty in guard or reserves.

(a) The superintendent shall establish within the West Virginia State Police a system to provide for: The promotion of members to the supervisory ranks of sergeant, first sergeant, second lieutenant and first lieutenant; the classification of nonsupervisory members within the field operations force to the ranks of trooper, senior trooper, trooper first class or corporal; the classification of members assigned to the forensic laboratory as criminalist I-VIII; and the temporary reclassification of members assigned to administrative duties as administrative support specialist I-VIII.
(b) The superintendent may propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code for the purpose of ensuring consistency, predictability and independent review of any system developed under the provisions of this section.
(c) The superintendent shall provide to each member a written manual governing any system established under the provisions of this section and specific procedures shall be identified for the evaluation and testing of members for promotion or reclassification and the subsequent placement of any members on a promotional eligibility or reclassification recommendation list.
(d)
Beginning on July 1, 2008, through June 30, 2011, members shall receive annual salaries as follows:
ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Cadet During Training$ 2,752 Mo. $ 33,024
Cadet Trooper After Training3,357.33 Mo. 40,288
Trooper Second Year41,296
Trooper Third Year41,679
Senior Trooper42,078
Trooper First Class42,684
Corporal43,290
Sergeant 47,591
First Sergeant49,742
Second Lieutenant51,892
First Lieutenant54,043
Captain56,194
Major58,344
Lieutenant Colonel60,495
ANNUAL SALARY SCHEDULE (BASE PAY)

ADMINISTRATION SUPPORT

SPECIALIST CLASSIFICATION

I$ 41,679
II 42,078
III42,684
IV 43,290
V47,591
VI 49,742
VII51,892
VIII 54,043
ANNUAL SALARY SCHEDULE (BASE PAY)

CRIMINALIST CLASSIFICATION

I$ 41,679
II 42,078
III42,684
IV 43,290
V47,591
VI 49,742
VII51,892
VIII 54,043
Beginning on July 1, 2011, and continuing thereafter, members shall receive annual salaries as follows:
ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Cadet During Training$ 2,833 Mo. $ 33,994
Cadet Trooper After Training$ 3,438 Mo. $ 41,258
Trooper Second Year42,266
Trooper Third Year42,649
Senior Trooper43,048
Trooper First Class43,654
Corporal44,260
Sergeant48,561
First Sergeant50,712
Second Lieutenant52,862
First Lieutenant55,013
Captain57,164
Major59,314
Lieutenant Colonel61,465
ANNUAL SALARY SCHEDULE (BASE PAY)

ADMINISTRATION SUPPORT

SPECIALIST CLASSIFICATION

I42,266
II 43,048
III43,654
IV 44,260
V48,561
VI 50,712
VII52,862
VIII 55,013
ANNUAL SALARY SCHEDULE (BASE PAY)

CRIMINALIST CLASSIFICATION

I42,266
II43,048
III43,654
IV 44,260
V48,561
VI 50,712
VII52,862
VIII 55,013
Each member of the West Virginia State Police whose salary is fixed and specified in this annual salary schedule is entitled to the length of service increases set forth in subsection (e) of this section and supplemental pay as provided in subsection (g) of this section.
(e) Each member of the West Virginia State Police whose salary is fixed and specified pursuant to this section shall receive, and is entitled to, an increase in salary over that set forth in subsection (d) of this section for grade in rank, based on length of service, including that service served before and after the effective date of this section with the West Virginia State Police as follows: At the end of two years of service with the West Virginia State Police, the member shall receive a salary increase of $400 to be effective during his or her next year of service and a like increase at yearly intervals thereafter, with the increases to be cumulative.
(f) In applying the salary schedules set forth in this section where salary increases are provided for length of service, members of the West Virginia State Police in service at the time the schedules become effective shall be given credit for prior service and shall be paid the salaries the same length of service entitles them to receive under the provisions of this section.
(g) The Legislature finds and declares that because of the unique duties of members of the West Virginia State Police, it is not appropriate to apply the provisions of state wage and hour laws to them. Accordingly, members of the West Virginia State Police are excluded from the provisions of state wage and hour law. This express exclusion shall not be construed as any indication that the members were or were not covered by the wage and hour law prior to this exclusion.
In lieu of any overtime pay they might otherwise have received under the wage and hour law, and in addition to their salaries and increases for length of service, members who have completed basic training and who are exempt from federal Fair Labor Standards Act guidelines may receive supplemental pay as provided in this section.
The authority of the superintendent to propose a legislative rule or amendment thereto for promulgation in accordance with article three, chapter twenty-nine-a of this code to establish the number of hours per month which constitute the standard work month for the members of the West Virginia State Police is hereby continued. The rule shall further establish, on a graduated hourly basis, the criteria for receipt of a portion or all of supplemental payment when hours are worked in excess of the standard work month. The superintendent shall certify monthly to the West Virginia State Police's payroll officer the names of those members who have worked in excess of the standard work month and the amount of their entitlement to supplemental payment. The supplemental payment may not exceed $236 monthly. The superintendent and civilian employees of the West Virginia State Police are not eligible for any supplemental payments.
(h) Each member of the West Virginia State Police, except the superintendent and civilian employees, shall execute, before entering upon the discharge of his or her duties, a bond with security in the sum of $5,000 payable to the State of West Virginia, conditioned upon the faithful performance of his or her duties, and the bond shall be approved as to form by the Attorney General and as to sufficiency by the Governor.
(i) In consideration for compensation paid by the West Virginia State Police to its members during those members' participation in the West Virginia State Police Cadet Training Program pursuant to section eight, article twenty-nine, chapter thirty of this code, the West Virginia State Police may require of its members by written agreement entered into with each of them in advance of such participation in the program that, if a member should voluntarily discontinue employment any time within one year immediately following completion of the training program, he or she shall be obligated to pay to the West Virginia State Police a pro rata portion of such compensation equal to that part of such year which the member has chosen not to remain in the employ of the West Virginia State Police.
(j) Any member of the West Virginia State Police who is called to perform active duty training or inactive duty training in the National Guard or any reserve component of the armed forces of the United States annually shall be granted, upon request, leave time not to exceed thirty calendar days for the purpose of performing the active duty training or inactive duty training and the time granted may not be deducted from any leave accumulated as a member of the West Virginia State Police.
CHAPTER 18A. SCHOOL PERSONNEL.

ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-2. State minimum salaries for teachers.
(a) Effective July 1, 2007, through June 30, 2008, each teacher shall receive the amount prescribed in the 2007-08 State Minimum Salary Schedule as set forth in this section, specific additional amounts prescribed in this section or article and any county supplement in effect in a county pursuant to section five-a of this article during the contract year.
Effective July 1, 2008, through June 30, 2011, each teacher shall receive the amount prescribed in the 2008-09 State Minimum Salary Schedule as set forth in this section, specific additional amounts prescribed in this section or article and any county supplement in effect in a county pursuant to section five-a of this article during the contract year.
Beginning July 1, 2011, and continuing thereafter, each teacher shall receive the amount prescribed in the 2011-12 State Minimum Salary Schedule as set forth in this section, specific additional amounts prescribed in this section or article and any county supplement in effect in a county pursuant to section five-a of this article during the contract year.
2008-09 STATE MINIMUM SALARY SCHEDULE
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11)
Years
Exp.
4th
Class
3rd
Class
2nd
Class
  A.B.
+15
  M.A.
+15
M.A.
+30
M.A.
+45
Doctorate
        A.B.
  M.A.
       
0 25,651 26,311 26,575 27,827 28,588 30,355 31,116 31,877 32,638 33,673
1 25,979 26,639 26,903 28,345 29,106 30,874 31,635 32,395 33,156 34,191
2 26,308 26,967 27,231 28,864 29,625 31,392 32,153 32,914 33,675 34,710
3 26,636 27,295 27,559 29,383 30,143 31,911 32,672 33,432 34,193 35,228
4 27,208 27,867 28,131 30,145 30,906 32,674 33,435 34,195 34,956 35,991
5 27,536 28,195 28,459 30,664 31,425 33,192 33,953 34,714 35,475 36,510
6 27,864 28,523 28,787 31,182 31,943 33,711 34,472 35,232 35,993 37,028
7 28,192 28,852 29,115 31,701 32,462 34,229 34,990 35,751 36,512 37,547
8 28,520 29,180 29,444 32,219 32,980 34,748 35,509 36,269 37,030 38,065
9 28,848 29,508 29,772 32,738 33,499 35,266 36,027 36,788 37,549 38,584
10 29,177 29,836 30,100 33,258 34,018 35,786 36,547 37,308 38,068 39,103
11 29,505 30,164 30,428 33,776 34,537 36,305 37,065 37,826 38,587 39,622
12 29,833 30,492 30,756 34,295 35,055 36,823 37,584 38,345 39,105 40,140
13 30,161 30,820 31,084 34,813 35,574 37,342 38,102 38,863 39,624 40,659
14 30,489 31,148 31,412 35,332 36,092 37,860 38,621 39,382 40,142 41,177
15 30,817 31,476 31,740 35,850 36,611 38,379 39,139 39,900 40,661 41,696
16 31,145 31,804 32,068 36,369 37,129 38,897 39,658 40,419 41,179 42,214
17 31,473 32,133 32,396 36,887 37,648 39,416 40,177 40,937 41,698 42,733
18 31,801 32,461 32,725 37,406 38,167 39,934 40,695 41,456 42,217 43,252
19 32,129 32,789 33,053 37,924 38,685 40,453 41,214 41,974 42,735 43,770
20 32,457 33,117 33,381 38,443 39,204 40,971 41,732 42,493 43,254 44,289
21 32,786 33,445 33,709 38,961 39,722 41,490 42,251 43,011 43,772 44,807
22 33,114 33,773 34,037 39,480 40,241 42,008 42,769 43,530 44,291 45,326
23 33,442 34,101 34,365 39,999 40,759 42,527 43,288 44,048 44,809 45,844
24 33,770 34,429 34,693 40,517 41,278 43,046 43,806 44,567 45,328 46,363
25 34,098 34,757 35,021 41,036 41,796 43,564 44,325 45,086 45,846 46,881
26 34,426 35,085 35,349 41,554 42,315 44,083 44,843 45,604 46,365 47,400
27 34,754 35,413 35,677 42,073 42,833 44,601 45,362 46,123 46,883 47,918
28 35,082 35,742 36,005 42,591 43,352 45,120 45,880 46,641 47,402 48,437
29 35,410 36,070 36,334 43,110 43,870 45,638 46,399 47,160 47,920 48,955
30 35,738 36,398 36,662 43,628 44,389 46,157 46,917 47,678 48,439 49,474
31 36,067 36,726 36,990 44,147 44,908 46,675 47,436 48,197 48,957 49,992
32 36,395 37,054 37,318 44,665 45,426 47,194 47,955 48,715 49,476 50,511
33 36,723 37,382 37,646 45,184 45,945 47,712 48,473 49,234 49,995 51,030
34 37,051 37,710 37,974 45,702 46,463 48,231 48,992 49,752 50,513 51,548
35 37,379 38,038 38,302 46,221 46,982 48,749 49,510 50,271 51,032 52,067
2011-12 STATE MINIMUM SALARY SCHEDULE
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11)

Years 4th 3rd 2nd   A.B. M.A. M.A. M.A. Doc-
Exp. Class Class Class A.B. +15 M.A. +15 +30 +45 torate
0 26,917 27,606 27,872 29,315 30,076 31,843 32,604 33,365 34,126 35,161
1 27,245 27,934 28,200 29,833 30,594 32,362 33,123 33,883 34,644 35,679
2 27,574 28,262 28,528 30,352 31,113 32,880 33,641 34,402 35,163 36,198
3 27,902 28,590 28,856 30,871 31,631 33,399 34,160 34,920 35,681 36,716
4 28,474 29,162 29,428 31,633 32,394 34,162 34,923 35,683 36,444 37,479
5 28,802 29,490 29,756 32,152 32,913 34,680 35,441 36,202 36,963 37,998
6 29,130 29,818 30,084 32,670 33,431 35,199 35,960 36,720 37,481 38,516
7 29,458 30,147 30,412 33,189 33,950 35,717 36,478 37,239 38,000 39,035
8 29,786 30,475 30,741 33,707 34,468 36,236 36,997 37,757 38,518 39,553
9 30,114 30,803 31,069 34,226 34,987 36,754 37,515 38,276 39,037 40,072
10 30,443 31,131 31,397 34,746 35,506 37,274 38,035 38,796 39,556 40,591
11 30,771 31,459 31,725 35,264 36,025 37,793 38,553 39,314 40,075 41,110
12 31,099 31,787 32,053 35,783 36,543 38,311 39,072 39,833 40,593 41,628
13 31,427 32,115 32,381 36,301 37,062 38,830 39,590 40,351 41,112 42,147
14 31,755 32,443 32,709 36,820 37,580 39,348 40,109 40,870 41,630 42,665
15 32,083 32,771 33,037 37,338 38,099 39,867 40,627 41,388 42,149 43,184
16 32,411 33,099 33,365 37,857 38,617 40,385 41,146 41,907 42,667 43,702
17 32,739 33,428 33,693 38,375 39,136 40,904 41,665 42,425 43,186 44,221
18 33,067 33,756 34,022 38,894 39,655 41,422 42,183 42,944 43,705 44,740
19 33,395 34,084 34,350 39,412 40,173 41,941 42,702 43,462 44,223 45,258
20 33,723 34,412 34,678 39,931 40,692 42,459 43,220 43,981 44,742 45,777
21 34,052 34,740 35,006 40,449 41,210 42,978 43,739 44,499 45,260 46,295
22 34,380 35,068 35,334 40,968 41,729 43,496 44,257 45,018 45,779 46,814
23 34,708 35,396 35,662 41,487 42,247 44,015 44,776 45,536 46,297 47,332
24 35,036 35,724 35,990 42,005 42,766 44,534 45,294 46,055 46,816 47,851
25 35,364 36,052 36,318 42,524 43,284 45,052 45,813 46,574 47,334 48,369
26 35,692 36,380 36,646 43,042 43,803 45,571 46,331 47,092 47,853 48,888
27 36,020 36,708 36,974 43,561 44,321 46,089 46,850 47,611 48,371 49,406
28 36,348 37,037 37,302 44,079 44,840 46,608 47,368 48,129 48,890 49,925
29 36,676 37,365 37,631 44,598 45,358 47,126 47,887 48,648 49,408 50,443
30 37,004 37,693 37,959 45,116 45,877 47,645 48,405 49,166 49,927 50,962
31 37,333 38,021 38,287 45,635 46,396 48,163 48,924 49,685 50,445 51,480
32 37,661 38,349 38,615 46,153 46,914 48,682 49,443 50,203 50,964 51,999
33 37,989 38,677 38,943 46,672 47,433 49,200 49,961 50,722 51,483 52,518
34 38,317 39,005 39,271 47,190 47,951 49,719 50,480 51,240 52,001 53,036
35 38,645 39,333 39,599 47,709 48,470 50,237 50,998 51,759 52,520 53,555
(b) Six hundred dollars shall be paid annually to each classroom teacher who has at least twenty years of teaching experience. The payments: (i) Shall be in addition to any amounts prescribed in the applicable state minimum salary schedule; (ii) shall be paid in equal monthly installments; and (iii) shall be considered a part of the state minimum salaries for teachers.
§18A-4-5. Salary equity among the counties; state salary supplement.

(a) For the purposes of this section, salary equity among the counties means that the salary potential of school employees employed by the various districts throughout the state does not differ by greater than ten percent between those offering the highest salaries and those offering the lowest salaries. In the case of professional educators, the difference shall be calculated utilizing the average of the professional educator salary schedules, degree classifications B.A. through doctorate and the years of experience provided for in the most recent state minimum salary schedule for teachers, in effect in the five counties offering the highest salary schedules compared to the lowest salary schedule in effect among the fifty-five counties. In the case of school service personnel, the difference shall be calculated utilizing the average of the school service personnel salary schedules, pay grades 'A' through 'H' and the years of experience provided for in the most recent state minimum pay scale pay grade for service personnel, in effect in the five counties offering the highest salary schedules compared to the lowest salary schedule in effect among the fifty-five counties. Effective July 1, 2013, for both professional educators and school service personnel, the differences shall be calculated as otherwise required by this subsection except that the ten counties offering the highest salary schedules shall be compared to the lowest salary schedule in effect among the fifty-five counties.
(b) To assist the state in meeting its objective of salary equity among the counties, as defined in subsection (a) of this section, on and after July 1, 1984, subject to available state appropriations and the conditions set forth herein, each teacher and school service personnel shall receive a supplemental amount in addition to the amount from the state minimum salary schedules provided for in this article.
(c) State funds for this purpose shall be paid within the West Virginia public school support plan in accordance with article nine-a, chapter eighteen of this code. The amount allocated for salary equity shall be apportioned between teachers and school service personnel in direct proportion to that amount necessary to support the professional salaries and service personnel salaries statewide under sections four, five and eight, article nine-a, chapter eighteen of this code.
(d) Pursuant to this section, each teacher and school service personnel shall receive the amount indicated on the applicable State Equity Supplement Schedule or Pay Scale for 2010-11, maintained by the West Virginia Department of Education, reduced by any amount provided by the county as a salary supplement for teachers and school service personnel on January 1, 1984: Provided, That effective July 1, 2011, the amounts indicated on the State Equity Supplement Pay Scale for service personnel is increased by $37 across-the-board.
(e) The amount received pursuant to this section shall not be decreased as a result of any county supplement increase instituted after January 1, 1984: Provided, That any amount received pursuant to this section may be reduced proportionately based upon the amount of funds appropriated for this purpose. No county may reduce any salary supplement that was in effect on January 1, 1984, except as permitted by sections five-a and five-b of this article.
(f) During its 2011 interim meetings, the Legislative Oversight Commission on Education Accountability shall conduct a study on whether a recommendation should be made to the Legislature for establishing the State Equity Supplement Schedule and the State Equity Supplement Pay Scale in statute.
§18A-4-8a. Service personnel minimum monthly salaries.
(a) The minimum monthly pay for each service employee shall be as follows:
(1) Effective July 1, 2010, through June 30, 2011, the minimum monthly pay for each service employee whose employment is for a period of more than three and one-half hours a day shall be at least the amounts indicated in the 2010-2011 State Minimum Pay Scale Pay Grade and the minimum monthly pay for each service employee whose employment is for a period of three and one-half hours or less a day shall be at least one-half the amount indicated in the 2010-2011 State Minimum Pay Scale Pay Grade set forth in this subdivision.
Beginning July 1, 2011, and continuing thereafter, the minimum monthly pay for each service employee whose employment is for a period of more than three and one-half hours a day shall be at least the amounts indicated in the 2011-2012 State Minimum Pay Scale Pay Grade and the minimum monthly pay for each service employee whose employment is for a period of three and one-half hours or less a day shall be at least one-half the amount indicated in the 2011-2012 State Minimum Pay Scale Pay Grade set forth in this section subdivision.

2010-2011 STATE MINIMUM PAY SCALE PAY GRADE
Years            
Exp. Pay Grade
  A B C D E F G H
0 1,577 1,598 1,639 1,691 1,743 1,805 1,836 1,908
1 1,609 1,630 1,671 1,723 1,775 1,837 1,868 1,940
2 1,641 1,662 1,703 1,755 1,807 1,869 1,900 1,972
3 1,673 1,694 1,735 1,787 1,839 1,901 1,932 2,004
4 1,705 1,726 1,767 1,819 1,871 1,933 1,964 2,037
5 1,737 1,758 1,799 1,851 1,903 1,965 1,996 2,069
6 1,769 1,790 1,832 1,883 1,935 1,997 2,028 2,101
7 1,802 1,822 1,864 1,915 1,967 2,029 2,060 2,133
8 1,834 1,854 1,896 1,947 1,999 2,061 2,092 2,165
9 1,866 1,886 1,928 1,980 2,031 2,093 2,124 2,197
10 1,898 1,919 1,960 2,012 2,063 2,126 2,157 2,229
11 1,930 1,951 1,992 2,044 2,095 2,158 2,189 2,261
12 1,962 1,983 2,024 2,076 2,128 2,190 2,221 2,293
13 1,994 2,015 2,056 2,108 2,160 2,222 2,253 2,325
14 2,026 2,047 2,088 2,140 2,192 2,254 2,285 2,357
15 2,058 2,079 2,120 2,172 2,224 2,286 2,317 2,389
16 2,090 2,111 2,152 2,204 2,256 2,318 2,349 2,422
17 2,122 2,143 2,185 2,236 2,288 2,350 2,381 2,454
18 2,154 2,175 2,217 2,268 2,320 2,382 2,413 2,486
19 2,187 2,207 2,249 2,300 2,352 2,414 2,445 2,518
20 2,219 2,239 2,281 2,333 2,384 2,446 2,477 2,550
21 2,251 2,271 2,313 2,365 2,416 2,478 2,509 2,582
22 2,283 2,304 2,345 2,397 2,448 2,511 2,542 2,614
23 2,315 2,336 2,377 2,429 2,481 2,543 2,574 2,646
24 2,347 2,368 2,409 2,461 2,513 2,575 2,606 2,678
25 2,379 2,400 2,441 2,493 2,545 2,607 2,638 2,710
26 2,411 2,432 2,473 2,525 2,577 2,639 2,670 2,742
27 2,443 2,464 2,505 2,557 2,609 2,671 2,702 2,774
28 2,475 2,496 2,537 2,589 2,641 2,703 2,734 2,807
29 2,507 2,528 2,570 2,621 2,673 2,735 2,766 2,839
30 2,540 2,560 2,602 2,653 2,705 2,767 2,798 2,871
31 2,572 2,592 2,634 2,685 2,737 2,799 2,830 2,903
32 2,604 2,624 2,666 2,718 2,769 2,831 2,862 2,935
33 2,636 2,656 2,698 2,750 2,801 2,863 2,895 2,967
34 2,668 2,689 2,730 2,782 2,833 2,896 2,927 2,999
35 2,700 2,721 2,762 2,814 2,866 2,928 2,959 3,031
36 2,732 2,753 2,794 2,846 2,898 2,960 2,991 3,063
37 2,764 2,785 2,826 2,878 2,930 2,992 3,023 3,095
38 2,796 2,817 2,858 2,910 2,962 3,024 3,055 3,127
39 2,828 2,849 2,890 2,942 2,994 3,056 3,087 3,159
40 2,860 2,881 2,922 2,974 3,026 3,088 3,119 3,192
2011-2012 STATE MINIMUM PAY SCALE PAY GRADE
Years                
Exp.
Pay Grade
  A B C D E F G H
0 1,627 1,648 1,689 1,741 1,793 1,855 1,886 1,958
1 1,659 1,680 1,721 1,773 1,825 1,887 1,918 1,990
2 1,691 1,712 1,753 1,805 1,857 1,919 1,950 2,022
3 1,723 1,744 1,785 1,837 1,889 1,951 1,982 2,054
4 1,755 1,776 1,817 1,869 1,921 1,983 2,014 2,087
5 1,787 1,808 1,849 1,901 1,953 2,015 2,046 2,119
6 1,819 1,840 1,882 1,933 1,985 2,047 2,078 2,151
7 1,852 1,872 1,914 1,965 2,017 2,079 2,110 2,183
8 1,884 1,904 1,946 1,997 2,049 2,111 2,142 2,215
9 1,916 1,936 1,978 2,030 2,081 2,143 2,174 2,247
10 1,948 1,969 2,010 2,062 2,113 2,176 2,207 2,279
11 1,980 2,001 2,042 2,094 2,145 2,208 2,239 2,311
12 2,012 2,033 2,074 2,126 2,178 2,240 2,271 2,343
13 2,044 2,065 2,106 2,158 2,210 2,272 2,303 2,375
14 2,076 2,097 2,138 2,190 2,242 2,304 2,335 2,407
15 2,108 2,129 2,170 2,222 2,274 2,336 2,367 2,439
16 2,140 2,161 2,202 2,254 2,306 2,368 2,399 2,472
17 2,172 2,193 2,235 2,286 2,338 2,400 2,431 2,504
18 2,204 2,225 2,267 2,318 2,370 2,432 2,463 2,536
19 2,237 2,257 2,299 2,350 2,402 2,464 2,495 2,568
20 2,269 2,289 2,331 2,383 2,434 2,496 2,527 2,601
21 2,301 2,321 2,363 2,415 2,466 2,528 2,559 2,634
22 2,333 2,354 2,395 2,447 2,498 2,561 2,593 2,666
23 2,365 2,386 2,427 2,479 2,531 2,594 2,625 2,699
24 2,397 2,418 2,459 2,511 2,563 2,627 2,658 2,732
25 2,429 2,450 2,491 2,543 2,596 2,659 2,691 2,764
26 2,461 2,482 2,523 2,576 2,629 2,692 2,723 2,797
27 2,493 2,514 2,555 2,608 2,661 2,724 2,756 2,829
28 2,525 2,546 2,588 2,641 2,694 2,757 2,789 2,863
29 2,557 2,579 2,621 2,673 2,726 2,790 2,821 2,896
30 2,591 2,611 2,654 2,706 2,759 2,822 2,854 2,928
31 2,623 2,644 2,687 2,739 2,792 2,855 2,887 2,961
32 2,656 2,676 2,719 2,772 2,824 2,888 2,919 2,994
33 2,689 2,709 2,752 2,805 2,857 2,920 2,953 3,026
34 2,721 2,743 2,785 2,838 2,890 2,954 2,986 3,059
35 2,754 2,775 2,817 2,870 2,923 2,987 3,018 3,092
36 2,787 2,808 2,850 2,903 2,956 3,019 3,051 3,124
37 2,819 2,841 2,883 2,936 2,989 3,052 3,083 3,157
38 2,852 2,873 2,915 2,968 3,021 3,084 3,116 3,190
39 2,885 2,906 2,948 3,001 3,054 3,117 3,149 3,222
40 2,917 2,939 2,980 3,033 3,087 3,150 3,181 3,256

(2) Each service employee shall receive the amount prescribed in the Minimum Pay Scale in accordance with the provisions of this subsection according to their class title and pay grade as set forth in this subdivision:
CLASS TITLE
PAY GRADE

Accountant ID
Accountant IIE
Accountant IIIF
Accounts Payable SupervisorG
Aide IA
Aide IIB
Aide IIIC
Aide IVD
Audiovisual TechnicianC
AuditorG
Autism MentorF
Braille or Sign Language SpecialistE
Bus OperatorD
BuyerF
CabinetmakerG
Cafeteria ManagerD
Carpenter IE
Carpenter IIF
Chief MechanicG
Clerk IB
Clerk IIC
Computer OperatorE
Cook IA
Cook IIB
Cook IIIC
Crew LeaderF
Custodian IA
Custodian IIB
Custodian IIIC
Custodian IVD
Director or Coordinator of ServicesH
DraftsmanD
Electrician IF
Electrician IIG
Electronic Technician IF
Electronic Technician IIG
Executive SecretaryG
Food Services SupervisorG
ForemanG
General MaintenanceC
GlazierD
Graphic ArtistD
GroundsmanB
HandymanB
Heating and Air Conditioning Mechanic IE
Heating and Air Conditioning Mechanic IIG
Heavy Equipment OperatorE
Inventory SupervisorD
Key Punch OperatorB
Licensed Practical NurseF
LocksmithG
Lubrication ManC
MachinistF
Mail ClerkD
Maintenance ClerkC
MasonG
MechanicF
Mechanic AssistantE
Office Equipment Repairman IF
Office Equipment Repairman IIG
PainterE
ParaprofessionalF
Payroll SupervisorG
Plumber IE
Plumber IIG
Printing OperatorB
Printing SupervisorD
ProgrammerH
Roofing/Sheet Metal MechanicF
Sanitation Plant OperatorG
School Bus SupervisorE
Secretary ID
Secretary IIE
Secretary IIIF
Supervisor of MaintenanceH
Supervisor of TransportationH
Switchboard Operator-ReceptionistD
Truck DriverD
Warehouse ClerkC
WatchmanB
WelderF
WVEIS Data Entry and Administrative ClerkB
(b) An additional $12 per month shall be added to the minimum monthly pay of each service employee who holds a high school diploma or its equivalent.
(c) An additional $11 per month also shall be added to the minimum monthly pay of each service employee for each of the following:
(1) A service employee who holds twelve college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(2) A service employee who holds twenty-four college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(3) A service employee who holds thirty-six college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(4) A service employee who holds forty-eight college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(5) A service employee who holds sixty college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(6) A service employee who holds seventy-two college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(7) A service employee who holds eighty-four college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(8) A service employee who holds ninety-six college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(9) A service employee who holds one hundred eight college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(10) A service employee who holds one hundred twenty college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(d) An additional $40 per month also shall be added to the minimum monthly pay of each service employee for each of the following:
(1) A service employee who holds an associate's degree;
(2) A service employee who holds a bachelor's degree;
(3) A service employee who holds a master's degree;
(4) A service employee who holds a doctorate degree.
(e) An additional $11 per month shall be added to the minimum monthly pay of each service employee for each of the following:
(1) A service employee who holds a bachelor's degree plus fifteen college hours;
(2) A service employee who holds a master's degree plus fifteen college hours;
(3) A service employee who holds a master's degree plus thirty college hours;
(4) A service employee who holds a master's degree plus forty-five college hours; and
(5) A service employee who holds a master's degree plus sixty college hours.
(f) When any part of a school service employee's daily shift of work is performed between the hours of six o'clock p.m. and five o'clock a.m. the following day, the employee shall be paid no less than an additional $10 per month and one half of the pay shall be paid with local funds.
(g) Any service employee required to work on any legal school holiday shall be paid at a rate one and one-half times the employee's usual hourly rate.
(h) Any full-time service personnel required to work in excess of their normal working day during any week which contains a school holiday for which they are paid shall be paid for the additional hours or fraction of the additional hours at a rate of one and one-half times their usual hourly rate and paid entirely from county board funds.
(i) No service employee may have his or her daily work schedule changed during the school year without the employee's written consent and the employee's required daily work hours may not be changed to prevent the payment of time and one-half wages or the employment of another employee.
(j) The minimum hourly rate of pay for extra duty assignments as defined in section eight-b of this article shall be no less than one seventh of the employee's daily total salary for each hour the employee is involved in performing the assignment and paid entirely from local funds: Provided, That an alternative minimum hourly rate of pay for performing extra duty assignments within a particular category of employment may be used if the alternate hourly rate of pay is approved both by the county board and by the affirmative vote of a two-thirds majority of the regular full-time employees within that classification category of employment within that county: Provided, however, That the vote shall be by secret ballot if requested by a service personnel employee within that classification category within that county. The salary for any fraction of an hour the employee is involved in performing the assignment shall be prorated accordingly. When performing extra duty assignments, employees who are regularly employed on a one-half day salary basis shall receive the same hourly extra duty assignment pay computed as though the employee were employed on a full-day salary basis.
(k) The minimum pay for any service personnel employees engaged in the removal of asbestos material or related duties required for asbestos removal shall be their regular total daily rate of pay and no less than an additional $3 per hour or no less than $5 per hour for service personnel supervising asbestos removal responsibilities for each hour these employees are involved in asbestos related duties. Related duties required for asbestos removal include, but are not limited to, travel, preparation of the work site, removal of asbestos decontamination of the work site, placing and removal of equipment and removal of structures from the site. If any member of an asbestos crew is engaged in asbestos related duties outside of the employee's regular employment county, the daily rate of pay shall be no less than the minimum amount as established in the employee's regular employment county for asbestos removal and an additional $30 per each day the employee is engaged in asbestos removal and related duties. The additional pay for asbestos removal and related duties shall be payable entirely from county funds. Before service personnel employees may be used in the removal of asbestos material or related duties, they shall have completed a federal Environmental Protection Act approved training program and be licensed. The employer shall provide all necessary protective equipment and maintain all records required by the Environmental Protection Act.
(l) For the purpose of qualifying for additional pay as provided in section eight, article five of this chapter, an aide shall be considered to be exercising the authority of a supervisory aide and control over pupils if the aide is required to supervise, control, direct, monitor, escort or render service to a child or children when not under the direct supervision of certified professional personnel within the classroom, library, hallway, lunchroom, gymnasium, school building, school grounds or wherever supervision is required. For purposes of this section, 'under the direct supervision of certified professional personnel' means that certified professional personnel is present, with and accompanying the aide.
CHAPTER 20. NATURAL RESOURCES.

ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.

§20-7-1c. Natural resources police officer, ranks, salary schedule, base pay, exceptions.

(a) Notwithstanding any provision of this code to the contrary, the ranks within the law-enforcement section of the Division of Natural Resources are colonel, lieutenant colonel, major, captain, lieutenant, sergeant, corporal, natural resources police officer first class, senior natural resources police officer, natural resources police officer and natural resources police officer-in-training. Each officer while in uniform shall wear the insignia of rank as provided by the chief natural resources police officer.
(b) Beginning on July 1, 2002, through June 30, 2011, natural resources police officers shall be paid the minimum annual salaries based on the following schedule:
ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Natural Resources Police Officer In Training (first year until end of probation)$26,337
Natural Resources Police Officer (second year)$29,768
Natural Resources Police Officer (third year)$30,140
Senior Natural Resources Police Officer (fourth and fifth year)$30,440
Senior Natural Resources Police Officer First Class (after fifth year)$32,528
Senior Natural Resources Police Officer (after tenth year)$33,104
Senior Natural Resources Police Officer (after fifteenth year)$33,528
Corporal (after sixteenth year)$36,704
Sergeant$40,880
First Sergeant$42,968
Lieutenant$47,144
Captain$49,232
Major$51,320
Lieutenant Colonel$53,408
Colonel
Beginning July 1, 2011, and continuing thereafter, natural resources police officers shall be paid the minimum annual salaries based on the following schedule:
ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Natural Resources Police Officer In Training (first
year until end of probation)$31,222
Natural Resources Police Officer (second year)$34,881
Natural Resources Police Officer (third year)$35,277
Senior Natural Resources Police Officer (fourth and fifth year)$35,601
Senior Natural Resources Police Officer First Class(after fifth year)$37,797
Senior Natural Resources Police Officer (after tenth year)$38,397
Senior Natural Resources Police Officer (after fifteenth year)$38,833
Corporal (after sixteenth year)$42,105
Sergeant$46,401
First Sergeant$48,549
Lieutenant$52,857
Captain$55,005
Major$57,153
Lieutenant Colonel$59,301
Colonel
Natural resources police officers in service at the time the amendment to this section becomes effective shall be given credit for prior service and shall be paid salaries the same length of service entitles them to receive under the provisions of this section.
(c) This section does not apply to special or emergency natural resources police officers appointed under the authority of section one of this article.
(d) Nothing in this section prohibits other pay increases as provided under section two, article five, chapter five of this code: Provided, That any across-the-board pay increase granted by the Legislature or the Governor will be added to, and reflected in, the minimum salaries set forth in this section; and that any merit increases granted to an officer over and above the annual salary schedule listed in subsection (b) of this section are retained by an officer when he or she advances from one rank to another: Provided, however, That any natural resources police officer who receives an increase in compensation pursuant to the amendment and reenactment of this section in 2011 shall not receive any across-the-board pay increase granted by the Legislature or the Governor in 2011.
CHAPTER 50. MAGISTRATE COURTS.

ARTICLE 1. COURTS AND OFFICERS.
§50-1-3. Salaries of magistrates.

(a) The Legislature finds and declares that:
(1) The West Virginia Supreme Court of Appeals has held that a salary system for magistrates which is based upon the population that each magistrate serves does not violate the equal protection clause of the Constitution of the United States;
(2) The West Virginia Supreme Court of Appeals has held that a salary system for magistrates which is based upon the population that each magistrate serves does not violate section thirty-nine, article VI of the Constitution of West Virginia;
(3) The utilization of a two-tiered salary schedule for magistrates is an equitable and rational manner by which magistrates should be compensated for work performed;
(4) Organizing the two tiers of the salary schedule into one tier for magistrates serving less than eight thousand four hundred in population and the second tier for magistrates serving eight thousand four hundred or more in population is rational and equitable given current statistical information relating to population and caseload; and
(5) That all magistrates who fall under the same tier should be compensated equally.
(b) The salary of each magistrate shall be paid by the state. Magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of thirty thousand six hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of thirty-seven thousand dollars: Provided, That on and after the first day of July, two thousand three, magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of thirty-three thousand six hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of forty thousand dollars: Provided, however, That on and after the first day of July, two thousand five, magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of forty-three thousand six hundred twenty-five dollars and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of fifty thousand dollars. Provided further, That on and after the first day of July, 2011, magistrates who serve fewer than eight thousand four hundred in population shall be paid annual salaries of $51,125 and magistrates who serve eight thousand four hundred or more in population shall be paid annual salaries of $57,500.
(c) For the purpose of determining the population served by each magistrate, the number of magistrates authorized for each county shall be divided into the population of each county. For the purpose of this article, the population of each county is the population as determined by the last preceding decennial census taken under the authority of the United States government.
CHAPTER 51. COURTS AND THEIR OFFICERS.

ARTICLE 1. SUPREME COURT OF APPEALS.
§51-1-10a. Salary of justices.

The salary of each of the justices of the Supreme Court of Appeals shall be $95,000 per year: Provided, That beginning July, 1, 2005, the salary of each of the justices of the Supreme Court shall be $121,000: Provided, however, That beginning July 1, 2011, the annual salary of a justice of the Supreme Court shall be $136,000.
ARTICLE 2. CIRCUIT COURTS; CIRCUIT JUDGES.
§51-2-13. Salaries of judges of circuit courts.

The salaries of the judges of the various circuit courts shall be paid solely out of the State Treasury. No county, county commission, board of commissioners or other political subdivision shall supplement or add to such salaries.
The annual salary of all circuit judges shall be $90,000 per year: Provided, That beginning July 1,2005, the annual salary of all circuit judges shall be $116,000 per year: Provided, however, That beginning July 1, 2011, the annual salary of a circuit court judge shall be $126,000.
ARTICLE 2A. FAMILY COURTS.
§51-2A-6. Compensation and expenses of family court judges and their staffs.

(a) A family court judge is entitled to receive as compensation for his or her services an annual salary of $62,500: Provided, That beginning July 1, 2005, a family court judge is entitled to receive as compensation for his or her services an annual salary of $82,500: Provided, however, That beginning July 1, 2011, the annual salary of a family court judge shall be $94,500.
(b) The secretary-clerk of the family court judge is appointed by the family court judge and serves at his or her will and pleasure. The secretary-clerk of the family court judge is entitled to receive an annual salary of $27,036: Provided, That on and after July 1, 2006, the annual salary of the secretary-clerk shall be established by the administrative director of the Supreme Court of Appeals, but may not exceed $35,000. In addition, any person employed as a secretary-clerk to a family court judge on the effective date of the enactment of this section during the sixth extraordinary session of the Legislature in the year 2001 who is receiving an additional $500 per year up to ten years of a certain period of prior employment under the provisions of the prior enactment of section eight of this article during the second extraordinary session of the Legislature in the year 1999 shall continue to receive such additional amount. Further, the secretary-clerk will receive such percentage or proportional salary increases as may be provided by general law for other public employees and is entitled to receive the annual incremental salary increase as provided in article five, chapter five of this code.
(c) The family court judge may employ not more than one family case coordinator who serves at his or her will and pleasure. The annual salary of the family case coordinator of the family court judge shall be established by the Administrative Director of the Supreme Court of Appeals but may not exceed $36,000: Provided, That on and after July 1, 2006, the annual salary of the family case coordinator of the family court judge may not exceed $46,060. The family case coordinator will receive such percentage or proportional salary increases as may be provided by general law for other public employees and is entitled to receive the annual incremental salary increase as provided in article five, chapter five of this code.
(d) The sheriff or his or her designated deputy shall serve as a bailiff for a family court judge. The sheriff of each county shall serve or designate persons to serve so as to assure that a bailiff is available when a family court judge determines the same is necessary for the orderly and efficient conduct of the business of the family court.
(e) Disbursement of salaries for family court judges and members of their staffs are made by or pursuant to the order of the Director of the Administrative Office of the Supreme Court of Appeals.
(f) Family court judges and members of their staffs are allowed their actual and necessary expenses incurred in the performance of their duties. The expenses and compensation will be determined and paid by the Director of the Administrative Office of the Supreme Court of Appeals under such guidelines as he or she may prescribe, as approved by the Supreme Court of Appeals.
(g) Notwithstanding any other provision of law, family court judges are not eligible to participate in the retirement system for judges under the provisions of article nine of this chapter.


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. 2879 - "A Bill to repeal §18A-4-5c and §18A-4-5d of the Code of West Virginia, 1931, as amended; to amend and reenact §6-7-2a of said code; to amend and reenact §15-2-5 of said code; to amend and reenact §18A-4-2, §18A-4-5 and §18A-4-8a of said code; to amend and reenact §20-7-1c of said code; to amend and reenact §50-1-3 of said code; to amend and reenact §51- 1-10a of said code; to amend and reenact §51-2-13 of said code; and to amend and reenact §51-2A-6 of said code, all relating generally to increasing compensation for certain public officials and public employees."
Respectfully submitted,

Thomas W. Campbell, Chair
Robert H. Plymale, Chair

Mary M. Poling,
Erik Wells,

Barbara Evans Fleischauer,
Douglas E. Facemire,

Bill Anderson,
Larry J. Edgell,

(Did not Sign)
(Did Not Sign)


John N. Ellem,
Donna J. Boley,

Conferees on the part
Conferees on the part

of the House of Delegates.
of the Senate.

Delegate T. Campbell moved that the report of the Committee of Conference be adopted.
On this motion, the yeas and nays were taken (Roll No. 348), and there were --yeas 64, nays 34, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the report of the Committee of Conference was adopted.
Delegates Anderson, Duke, Ennis, Ferro, Frazier, Iaquinta, Lawrence, Moye, Overington, Paxton, Pethtel, Phillips, Rowan, Smith, Snuffer, Stowers, Sumner, Varner, Wells and White requested to be excused from voting on the passage of Com. Sub. for H. B. 2879 under the provisions of House Rule 49.
The Speaker replied that the Delegates were members 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 them from voting.
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. 349), and there were--yeas 74, nays 24, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Border, Carmichael, Cowles, Duke, Ellington, Evans, Gearheart, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Rowan, Savilla, Sigler, Sobonya, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2879) passed.
Delegate T. Campbell moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 350), and there were--yeas 77, nays 21, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Cowles, Duke, Ellington, Evans, Gearheart, Householder, Howell, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Savilla, Sigler, Sobonya, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
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. 2879) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Barker, from the Committee of Conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 2464, Adding additional requirements to the Ethics 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 Senate to Engrossed Committee Substitute for House Bill No. 2464 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 Senate amendment to section six, subsection (h) of the Senate amendment and agree to the following:
On page four, section six, line twenty-four, and on page five, section six, lines one through eleven, by striking out subsection (h) and inserting in lieu thereof the following language:
(h) The ethics commission shall, in addition to making all financial disclosure statements available for inspection upon request:
(1) Publish on the internet all financial disclosure statements filed by members of the legislature and candidates for legislative office, elected members of the executive department and candidates for the offices that constitute the executive department, and members of the Supreme Court of Appeals and candidates for the Supreme Court of Appeals, commencing with those reports filed on or after January 1, 2012; and
(2) Publish on the internet all financial disclosure statements filed by any other person required to file such financial disclosure statements, as the commission determines resources are available to permit the ethics commission to make such publication on the internet. The Commission shall redact financial disclosure statements published on the internet to exclude from publication personal information such as signatures, home addresses and mobile and home telephone numbers.
And,
That both Houses recede from their respective positions as to the Senate amendment to section two, subsection (e) of the Senate amendment and agree to the following:
On page fourteen, section two, lines nine through twenty-two, by striking out subsection (e) and inserting in lieu thereof the following language:
(1) Members of the Legislature;
(2) Members of the Executive Department as referenced in article VII, section one of the Constitution of West Virginia;
(3) Will and pleasure professional employees of the Legislature under the direct supervision of a member of the Legislature;
(4) Will and pleasure professional employees of members of the Executive Department under the direct supervision of the Executive Department officer and who regularly, personally and substantially participates in a decision-making or advisory capacity regarding agency or department policy;
(5) Members of the Supreme Court of Appeals;
(6) Any department secretary of an executive branch department created by the provisions of section two, article one, chapter five-f of this code; and,
(7) Heads of any state departments or agencies.
And the House agrees to the remainder of the Senate amendment.
Respectfully submitted,
Larry W. Barker, 
Corey Palumbo,

Meshea L. Poore,
Mark Wills,

Patrick Lane,
David Nohe,

Conferees on the part
Conferees on the part

of the House of Delegates. of the Senate.
On motion of Delegate Barker, 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. 351), 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: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2464) passed.
Delegate Boggs moved that the bill take effect July 1, 2011.
On this question, the yeas and nays were taken (Roll No. 352), 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: Andes and Crosier.
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. 2464) takes effect July 1, 2011.
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. 2362, Increasing penalties for financial exploitation of an elderly person or incapacitated adult.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
The Committee on the Judiciary moved to amend the bill, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29b. Financial exploitation of an elderly person, protected person or incapacitated adult; penalties; definitions.

(a) Financial exploitation occurs when a person intentionally misappropriates or misuses the funds or assets of an elderly person, protected person or incapacitated adult. Any person who violates this section is guilty of larceny and shall be ordered to pay restitution.
(b) In determining the value of the money, goods, property or services referred to in subsection (a) of the section, it shall be permissible to cumulate amounts or values where such money, goods, property or services were fraudulently obtained as part of a common scheme or plan.
(c) Financial institutions and their employees, as defined by section one, article two-a, chapter thirty-one-a of this code and as permitted by section four, subsection thirteen of that article, others engaged in financially related activities as defined by section one, article eight-c, chapter thirty-one-a of this code, caregivers, relatives and other concerned persons are permitted to report suspected cases of financial exploitation to state or federal law enforcement authorities, the county prosecuting attorney and to the Department of Health and Human Resources, Adult Protective Services Division or Medicaid Fraud Division, as appropriate. Public officers and employees are required to report suspected cases of financial exploitation to the appropriate entities as stated above. The requisite agencies shall investigate or cause the investigation of the allegations.
(d) When financial exploitation is suspected and to the extent permitted by federal law, financial institutions and their employees or other business entities required by federal law or regulation to file suspicious activity reports and currency transaction reports shall also be permitted to disclose suspicious activity reports or currency transaction reports to the prosecuting attorney of any county in which the transactions underlying the suspicious activity reports or currency transaction reports occurred.
(e) Any person or entity is immune from civil liability for reporting suspected cases of financial exploitation pursuant to this section.
(f) For the purposes of this section:
(1) 'Incapacitated adult' means a person as defined by section twenty-nine of this article;
(2) 'Elderly person' means a person who is sixty-five years or older; and
(3) 'Protected person' means any person who is defined as a 'protected person' in subsection thirteen, section four, article one, chapter forty-four-a of this code and who is subject to the protections of chapter forty-four-a or forty-four-c of this code."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2362 - "A Bill to amend and reenact §61-2-29b of the Code of West Virginia, 1931, as amended, relating to crimes against the elderly, protected persons or incapacitated persons; financial exploitation of the elderly, protected persons and incapacitated adults for misappropriating or misusing assets; permitting the prosecutor to cumulate amounts or values when charging; permitting banking institutions and others to report suspected financial exploitation to law- enforcement authorities and other entities; permitting financial institutions to disclose suspicious activity reports or currency transaction reports to the prosecuting attorney; providing civil immunity for reporting; ordering restitution; and establishing the criminal penalty of larceny."
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 passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 2663, Relating to public service commissioners presiding at hearings. On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §11-13-3f of the Code of West Virginia, 1931, as amended be amended and reenacted; that §11-13F-1 be amended and reenacted; that §11-24-11 be amended and reenacted; that §24-1-3 and §24-1-4 be amended and reenacted; that §24-2A-2 be amended and reenacted; that §24-3-2 be amended and reenacted; and that said code be amended by adding thereto a new section, designated §24-2A-5, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 13. BUSINESS AND OCCUPATION TAX.
§11-13-3f. Tax credit for reducing electric and natural gas utility rates for low-income residential customers; regulations.

(a) There shall be allowed as a credit against the tax imposed by this article, the cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at reduced rates to qualified low-income residential customers which has not been reimbursed by any other means.
(b) The tax commissioner may prescribe such regulations as may be necessary to carry out the purposes of this section, of article thirteen-f of this chapter and of section eleven, article twenty-four of this chapter.
ARTICLE 13F. BUSINESS AND OCCUPATION TAX CREDIT FOR REDUCING ELECTRIC, NATURAL GAS AND WATER UTILITY RATES FOR LOW-INCOME RESIDENTIAL CUSTOMERS.

§11-13F-1. Legislative Purpose.

In order to reimburse public utilities for the revenue deficiencies which that they incur in providing special reduced electric and natural gas utility rates to low-income residential customers in accordance with the provisions of article two-a of chapter twenty-four, there is hereby provided a business and occupation tax credit for reducing electric and natural gas, and water utility rates for low-income residential customers.
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-11. Credit for reducing electric, natural gas and water utility rates for low-income residential customers.

(a) General. -- A credit shall be allowed against the primary tax liability of an eligible taxpayer under this article for the cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at special reduced rates to qualified low-income residential customers which has not been reimbursed by any other means.
(b) Definitions. -- For purposes of this section, the term:
(1) 'Eligible taxpayer' means a utility which has provided electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, to qualified low-income residential customers at special reduced rates.
(2) 'Cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at special reduced rates' means the amount certified by the public service commission under the provisions of section three, article two-a, chapter twenty- four of this code, as the revenue deficiency incurred by a public utility in providing special reduced rates for electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, as required by section one, article two-a, chapter twenty-four of this code.
(3) 'Special reduced rates' means the rates ordered by the public service commission under the authority of sections one, and five article two-a, chapter twenty-four of this code.
(4) 'Qualified low-income residential customers' means those utility customers eligible to receive electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, under special reduced rates.
(c) Amount of credit.--The amount of the credit available to any eligible taxpayer shall be equal to its cost of providing electric or natural gas service, or both, at special reduced rates to qualified residential customers, less any reimbursement of said cost which the taxpayer has received through any other means.
(d) When credit may be taken. -- An eligible taxpayer may claim a credit allowed under this section on its annual return for the taxable year in which it receives certification of the amount of its revenue deficiency from the public service commission.
Notwithstanding the provisions of section sixteen of this article to the contrary, no credit may be claimed on any declaration of estimated tax filed for such taxable year prior to the first day of July of such taxable year. Such credit may be claimed on a declaration or amended declaration filed on or after that date but only if the amount certified will not be recovered by application of the business and occupation tax credit allowed by section three-f, article thirteen of this chapter. In such event, only that amount not recovered by that credit may be considered or taken as a credit when estimating the tax due under this article. In no event may the eligible taxpayer recover more than one hundred percent of its revenue deficiency as certified by the public service commission.
(e) Application of credit. -- The credit allowable by this section for a taxable year is not subject to the fifty percent limitation specified in section nine of this article.
Notwithstanding the provisions of section four, article thirteen-f of this chapter, any unused credit may be carried over and applied against business and occupation taxes in the manner specified in section five, article thirteen-f of this chapter.
(f) Copy of certification order. -- A copy of a certification order from the public service commission shall be attached to any annual return under this article on which a credit allowed by this section is taken.
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-11. Credit for reducing electric natural gas and water utility rates for low-income residential customers.

(a) General. -- A credit shall be allowed against the primary tax liability of an eligible taxpayer under this article for the cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at special reduced rates to qualified low- income residential customers which has not been reimbursed by any other means.
(b) Definitions. -- For purposes of this section, the term:
(1) 'Eligible taxpayer' means a utility which has provided electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, to qualified low-income residential customers at special reduced rates.
(2) 'Cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at special reduced rates' means the amount certified by the public service commission under the provisions of section three, article two-a, chapter twenty- four of this Code, as the revenue deficiency incurred by a public utility in providing special reduced rates for electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, as required by section one, article two-a, chapter twenty-four of this code.
(3) 'Special reduced rates' means the rates ordered by the public service commission under the authority of section one, article two-a, chapter twenty-four of this code.
(4) 'Qualified low-income residential customers' means those utility customers eligible to receive electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, under special reduced rates.
(c) Amount of credit. -- The amount of the credit available to any eligible taxpayer shall be equal to its cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at special reduced rates to qualified residential customers, less any reimbursement of said cost which the taxpayer has received through any other means.
(d) When credit may be taken. -- An eligible taxpayer may claim a credit allowed under this section on its annual return for the taxable year in which it receives certification of the amount of its revenue deficiency from the public service commission. Notwithstanding the provisions of section sixteen of this article to the contrary, no credit may be claimed on any declaration of estimated tax filed for such taxable year prior to the first day of July of such taxable year. Such credit may be claimed on a declaration or amended declaration filed on or after that date but only if the amount certified will not be recovered by application of the business and occupation tax credit allowed by section three-f, article thirteen of this chapter. In such event, only that amount not recovered by that credit may be considered or taken as a credit when estimating the tax due under this article. In no event may the eligible taxpayer recover more than one hundred percent of its revenue deficiency as certified by the public service commission.
(e) Application of credit. -- The credit allowable by this section for a taxable year is not subject to the fifty percent limitation specified in section nine of this article. Notwithstanding the provisions of section four, article thirteen-f of this chapter, any unused credit may be carried over and applied against business and occupation taxes in the manner specified in section five, article thirteen-f of this chapter.
(f) Copy of certification order. -- A copy of a certification order from the public service commission shall be attached to any annual return under this article on which a credit allowed by this section is taken.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 1. GENERAL PROVISIONS.
§24-1-3. Commission continued; membership; chairman; compensation; quorum.

(a) The Public Service Commission of West Virginia is continued and directed as provided by this chapter, chapter twenty-four-a, chapter twenty-four-b and chapter twenty-four-d of this code. After having conducted a performance audit through its joint committee on government operations, pursuant to section nine, article ten, chapter four of this code, the Legislature hereby finds and declares that the Public Service Commission should be continued and reestablished. Accordingly, notwithstanding the provisions of section five, article ten, chapter four of this code, the Public Service Commission shall continue to exist until July 1, two thousand three. The Public Service Commission may sue and be sued by that name.
(b) The Public Service Commission shall consist of three members who shall be appointed by the Governor, with the advice and consent of the Senate. The commissioners shall be citizens and residents of this state and at least one of them shall be duly licensed to practice law in West Virginia, with not less than ten years' actual work experience in the legal profession as a member of a State Bar.
(c) No more than two of the commissioners shall be members of the same political party.
(d) Each commissioner shall, before entering upon the duties of his or her office, take and subscribe to the oath provided by section five, article IV of the Constitution of this state. The oath shall be filed in the office of the Secretary of State.
(e) The Governor shall designate one of the commissioners to serve as chairman at the Governor's will and pleasure. The chairman shall be the chief administrative officer of the commission. The Governor may remove any commissioner only for incompetency, neglect of duty, gross immorality, malfeasance in office or violation of subsection (c) subsections (g) and (h) of this section.
(b) (f) The unexpired terms of members of the Public Service Commission at the time this subsection becomes effective are continued. Upon expiration of the terms, appointments are for terms of six years, except that an appointment to fill a vacancy is for the unexpired term only. The commissioners whose terms are terminated by the provisions of this subsection are eligible for reappointment.
(c) (g) No person while in the employ of, or holding any official relation to, any public utility subject to the provisions of this chapter or holding any stocks or bonds of a public utility subject to the provisions of this chapter or who is pecuniarily interested in a public utility subject to the provisions of this chapter may serve as a member of the commission or as an employee of the commission.
(h) Nor may any commissioner be a candidate for or hold public office or be a member of any political committee while acting as a commissioner; nor may any commissioner or employee of the commission receive any pass, free transportation or other thing of value, either directly or indirectly, from any public utility or motor carrier subject to the provisions of this chapter. In case any of the commissioners becomes a candidate for any public office or a member of any political committee, the Governor shall remove him or her from office and shall appoint a new commissioner to fill the vacancy created.
(d) (i) The salaries of members of the Public Service Commission and the manner in which they are paid established by the prior enactment of this section are continued. Effective July 1, 2001, The annual salary of each commissioner provided in section two-a, article seven, chapter six of this code shall be paid in monthly installments from the special funds in the percentages that follow:
(1) From the Public Service Commission Fund collected under the provisions of section six, article three of this chapter, eighty percent;
(2) From the Public Service Commission Motor Carrier Fund collected under the provisions of section six, article six, chapter twenty-four-a of this code, seventeen percent; and
(3) From the Public Service Commission Gas Pipeline Safety Fund collected under the provisions of section three, article five, chapter twenty-four-b of this code, three percent.
(j) In addition to the salary provided for all commissioners in section two-a, article seven, chapter six of this code, the chairman of the commission shall receive $5,000 per annum to be paid in monthly installments from the Public Service Commission Fund collected under the provisions of section six, article three of this chapter.
(k) On a matter requiring a public hearing on a public utility by the commissioners of the Public Service Commission, at least one commissioner must be present before that hearing may be conducted.
§24-1-4. Appointment, duties and compensation of secretary and other employees; hearings generally; public comment; outside employment by certain employees prohibited.

The commission shall appoint a secretary and such other employees as may be necessary to carry out the provisions of this chapter and shall fix their respective salaries or compensations. It shall be the duty of the secretary to keep a full and true record of all proceedings, acts, orders and judgments of the commission, to issue all necessary process, returns and notices, to keep all books, maps, documents and papers ordered filed by the commission, and all orders made by the commission or approved and confirmed by it and ordered to be filed; and he shall be responsible to the commission for the safe custody and preservation of all such documents in his office. He may administer oaths in all parts of the state, so far as the exercise of such power is properly incidental to the performance of his duty or that of the commission.
The commission may designate such of its employees as it deems necessary to hold hearings, held or required by this chapter, and to take evidence at such hearings, which employees are hereby empowered to subpoena witnesses, administer oaths, take testimony, require the production of documentary evidence and exercise such other powers and perform such other duties as may be delegated to them and required by the commission, in any proceeding or examination instituted or conducted by the commission under this chapter, at any designated place of hearing within the state. The Commission shall provide a web site to accept comments from West Virginia residents regarding any matter under the auspices of the Commission or before the Commission. The Commission staff shall report to the full commission all comments and suggestions received through the web site.
Any commissioner or person employed by the commission other than on a part-time basis shall devote full time to the performance of his duties as such commissioner or employee during the regular working hours as set by the commission.
ARTICLE 2A. REDUCED RATES FOR LOW-INCOME RESIDENTIAL CUSTOMERS OF ELECTRICITY AND GAS.

§24-2A-2. Recovery of revenue deficiencies.
In order to provide the special reduced rates mandated by sections one and five of this article and still maintain the integrity of the earnings of the utilities offering service under these rates, the commission shall each year, beginning in the year one thousand nine hundred eighty-four, determine, upon application by any affected utility, that utility's revenue deficiency resulting from the special reduced rates. Upon determining any utility's revenue deficiency, the commission shall issue an order certifying the amount of that deficiency. Certified revenue deficiencies shall be recovered by the affected utilities as follows:
(1) A utility's certified revenue deficiency, if any, resulting from the special reduced rates shall be allowed as a tax credit against the liability of the utility pursuant to the provisions of article thirteen-f of chapter eleven of this code.
(2) After allowance of a tax credit pursuant to the provisions of article thirteen-f of chapter eleven, a utility's remaining revenue deficiency, if any, resulting from the special reduced rates, shall be allowed as a tax credit against the liability of the utility pursuant to the provisions of section eleven, article twenty-four of chapter eleven.
§24-2A-5. Special rates for certain water utility customers.
(a) The commission may authorize a privately owned water utility to voluntarily implement a rate design featuring reduced rates and charges for service for residential utility customers receiving:
(1) Social Security Supplemental Security Income (SSI);
(2) Temporary Assistance for Needy Families (TANF);
(3) Temporary Assistance for Needy Families-Unemployed Parent Program (TANF-UP);or
(4) assistance from the Supplemental Nutrition Assistance Program (SNAP) if they are sixty years of age or older.
(b) The special reduced rate offered by each water utility to its eligible customers shall be a percentage less, which shall be approved by the commission, than the rate that would be applicable to such customers if they were not receiving any of the four forms of assistance that confer eligibility for the special reduced rates approved by the commission: Provided, That such rate reduction shall not exceed twenty percent of the rate that would be otherwise applicable.
(c) Before any individual may qualify to receive the special reduced rates, the following requirements must be met:
(1) The special reduced rates may apply only to current customers or to those persons who subsequently become customers in their own right. If an SSI, TANF-UP or SNAP recipient is living in a household that is served under the name of a person who is not an SSI, TANF, TANF-UP or SNAP recipient, that service may not be changed or have been changed subsequent to July 1 , 2011, to the name of the SSI, TANF, TANF-UP or SNAP recipient in order to qualify for service under the special reduced rates.
(2) The burden of proving eligibility for the special reduced rates shall be on the customer requesting such rates. The Department of Health and Human Resources shall establish by rules procedures:
(A) To inform persons receiving any of the four forms of assistance that confer eligibility for the special reduced rates about the availability of the special reduced rates;
(B) To assist applicants for the special reduced rates in proving their eligibility therefor; and
(C) To assist water utilities offering the special reduced rates in determining on a continuing basis the eligibility therefor of persons receiving or applying for such rates.
The commission shall establish rules and procedures for the application for and provision of service under the special reduced rates and for the determination and certification of revenue deficiencies resulting from the special reduced rates.
(3) In order to provide each eligible residential utility customer the special reduced rates, each utility providing the special reduced rates shall credit against amounts otherwise owed by each customer an amount equal to the difference between the total amount that each customer was actually billed during the previous month and the total amount that each customer would have been entitled to be billed under the special reduced rates. Each credit shall be fully reflected on the first bill issued to each customer after approval of each customer's application for the special reduced rates, except in cases where the interval between the approval and the issuance of the next bill is so short that it is administratively impracticable to do so, in which case, such credits shall be fully reflected on the second bill issued to each customer after approval of that customer's application. If the interval between the approval and the issuance of the next bill is fifteen days or more, it may not be deemed administratively impracticable to reflect the credit on the customer's first bill.
ARTICLE 3. DUTIES AND PRIVILEGES OF PUBLIC UTILITIES SUBJECT TO REGULATIONS OF COMMISSION.

§24-3-2. Discrimination prohibited.
No public utility subject to the provisions of this chapter shall, directly or indirectly, by any special rate, rebate, drawback or other device or method, charge, demand, collect or receive from any person, firm or corporation, a greater or less compensation, for any service rendered or to be rendered, than it charges, demands, collects, or receives from any other person, firm or corporation for doing a like and contemporaneous service under the same or substantially similar circumstances and conditions.
It shall be unlawful for any public utility subject to the provisions of this chapter to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality, or any particular character of traffic or service, in any respect whatsoever, or to subject any particular person, firm, corporation, company or locality, or any particular character of traffic or service, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
Nothing in this section shall be construed to prevent the commission from:

(a) Authorizing or requiring any rate design consistent with the purposes and policies set forth in article two-a of this chapter; or
(b) Authorizing a private water utility to voluntarily implement a rate design featuring reduced rates and charges for service to qualifying low-income residential customers."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2663 - "A Bill to amend and reenact §11-13-3f of the Code of West Virginia, 1931, as amended be amended and reenacted; to amend and reenact §11-13F-1 of said code; to amend and reenact §11-24-11 of said code; to amend and reenact §24-1-3 and §24-1-4 of said code; to amend and reenact §24-2A-2 of said code; to amend said code by adding thereto a new section, designated §24-2A-5; and to amend and reenact §24-3-2, all relating to duties of the Public Service Commission; requiring at least one commissioner be present at any public hearing on a public utility; requiring the commission establish a website and toll-free telephone number for reception of public comments; adding cost of providing private water utility services to qualified low-income residents to matters that the commission must certify and deleting obsolete language."
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 passed, without amendment, a bill of the House of Delegates as follows:
H. B. 2918, Relating to permanent business registrations.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2969, Requiring the disclosure of the number of stamps by brand name that have been purchased from a nonparticipating tobacco product manufacturer.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2981, Clarifying payment for trade certifications and allowing use of tuition assistance for West Virginia National Guard members enrolled in a doctor of medicine or osteopathic medicine program.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 3000, Making it lawful to hunt coyotes with a green colored light.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3004, Relating to the Greater Huntington Park and Recreation District.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 3119, Increasing the expenditure limit on public service district construction and purchase contracts.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 3137, Providing for additional circumstances giving rise to "state 'on' indicators" for purposes of extended unemployment compensation.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 186, Relating to issuing subpoena to aid in criminal investigations involving certain crimes against minors.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 213, Relating to crimes using computers, telephones and electronic devices.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
S. B. 328, Relating to issuance, disqualification, suspension and revocation of driver's licenses.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 495, Relating generally to use of electronic voting systems.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 544, Relating to municipal policemen's and firemen's pension and relief funds.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 592, Requiring schools have crisis response plans.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
S. B. 612, Exempting certain schools and school districts from certain statutory provisions.
Resolutions Introduced

Delegate Manypenny offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 162 - "Requesting the Joint Committee on Government and Finance to study the feasibility of an energy efficiency resource standard for West Virginia, including the potential benefits of energy efficiency in mitigating fuel price volatility and the need for new electricity generation, and to produce recommendations on feasible targets for energy savings, how such a program would be administered, and potential funding mechanisms."
Whereas, Appalachian Power Company received a $125 million rate increase in 2009, a $96 million rate increase in 2010, and is filing for a $1l9 million rate increase in 2011; and
Whereas, Appalachian Power Company's rate increases have been primarily due to rising fuel and purchased power costs; and
Whereas, A 2009 study by the Appalachian Regional Commission found that ambitious energy efficiency policies could reduce energy consumption in the region l2% by 2020 and 28% by 2030, and that these policies would create more than 15,000 net new jobs per year within five years and an average of 60,000 net new jobs created per year from 2020 - 2030; and
Whereas, As of 2008, West Virginia had the second lowest electricity rates in the nation, but residents in eighteen other states spent less than West Virginians per capita on their electricity bills, implying significant potential for West Virginians to save money through residential energy efficiency measures; and
Whereas, Energy efficiency is a low-cost strategy for meeting power demand, less expensive than building new conventional or renewable energy power plants; and
Whereas, American Electric Power and First Energy, the largest electric utilities in West Virginia, are required to offer energy efficiency programs in other states where they operate, but not in West Virginia; and
Whereas, The lack of economic diversity in many areas of our State could be relieved by increased jobs in weatherization and energy efficiency in those same distressed counties; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance study the feasibility of an energy efficiency resource standard for West Virginia, including the potential benefits of energy efficiency in mitigating fuel price volatility and the need for new electricity generation, and to produce recommendations on feasible targets for energy savings, how such a program would be administered, and potential funding mechanisms; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the Legislature, on the first day of the regular session, 2012, on its findings, conclusions and recommendations, together with drafts of 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.
Delegates Fleischauer, Barker, Brown, Caputo, Doyle, Ferro, Guthrie, Hatfield, Hunt, Iaquinta, Lawrence, Mahan, Marshall, Moore, Pasdon, Poore, Rowan, Staggers and Wells offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 163 - "Requesting the Joint Committee on Government and Finance to study the issues related to a lack of an adopted building code in 47 out of 55 counties in West Virginia."
Whereas, The West Virginia State Building Code establishes "the standards considered necessary by the State Fire Commission for the safeguarding of life and property and to ensure compliance with the minimum standards of safe construction of all structures erected or renovated throughout this state"; and
Whereas, Local jurisdictions must adopt the State Building Code before they can enforce building standards; and
Whereas, As of January 2011, 47 of 55 counties had not adopted the state building code; and
Whereas, Without an adopted building code throughout the state, residents' safety can be at risk due to poor construction and use of below-grade materials; and
Whereas, The Federal Fair Housing Act and the West Virginia Fair Housing Act specify design and construction accessibility requirements; and
Whereas, No enforcement mechanism exists for state and federal laws governing accessibility requirements of new multifamily construction; and
Whereas, West Virginia has a higher percent of the population with disabilities than any other state in the nation (24.4%); and
Whereas, Although the majority of West Virginians live in single family homes, growing communities and communities with local colleges and universities, including Morgantown, Clarksburg and Huntington, are experiencing rapid construction of apartments and condominiums that are subject to Fair Housing Act's design and construction requirements; and
Whereas, Without building code enforcement, Fair Housing design and construction requirements are only investigated when an individual files a housing discrimination complaint with the West Virginia Human Rights Commission (WVHRC) or HUD; and
Whereas, New multifamily construction across the state is visibly out of compliance; and
Whereas, Adoption of the state building code by local jurisdictions provides an enforcement mechanism for the Fair Housing requirements; and
Whereas, Enforcement of Fair Housing design and construction will provide more housing choice for the more than 410,000 West Virginians with a disability, including 18,700 veterans with a service-related disability; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on the Judiciary is hereby requested to study the issues related to a lack of an adopted building code in 47 out of 55 counties in West Virginia; and, be it
Further Resolved, That the study shall include an analysis of the state fire code, including how it was adopted and how it is enforced statewide, and also including any deficiencies in the program and how they could be rectified in a similar adoption of building code; and, be it
Further Resolved, That the study include a comprehensive overview of the safety benefits of adopting the state building code for residents including single family home owners, renters, and anyone hiring a contractor; and, be it
Further Resolved, That the study include interviews with county commissioners to understand their possible opposition to adopting the state building code and to address these issues; and, be it
Further Resolved, That the study include an analysis of visible violations of Fair Housing design and construction requirements in selected communities; and, be it
Further Resolved, That the study include recommendations on how to adopt a statewide building code and how to enforce it including a budget analysis; and, be it
Further Resolved, That the study include recommendations for how code enforcement officers will be trained in Fair Housing design and construction requirements; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2012, 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 the Judiciary.
Delegates Fleischauer, Manypenny, Brown, Poore, Guthrie, Hatfield, T. Campbell, Morgan, M. Poling, Kominar, Hunt, Perdue, Manchin, Stephens, Lane, Carmichael, Michael, Mahan, Caputo, Fragale, Stowers, Skaff and Marshall offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 164 - "Requesting that the Joint Committee on Government and Finance authorize a study of the feasibility of increasing transparency and accountability requirements for job creation and retention subsidies awarded through development assistance programs utilized by the various agencies in the State of West Virginia."
Whereas, The Legislature has provided numerous tax incentives, grants and economic development programs for the creation and retention of jobs in this State; and
Whereas, Despite repeated requests from legislative committees, the Executive Branch under several different administrations has failed to provide comprehensive data on the total amount of state revenue which has been afforded to private businesses for job creation and retention or the total number of jobs actually created or retained; and
Whereas, The Maine Legislature conducted a 2010 study assessing the transparency and accountability of economic and community development assistance in their state and all fifty states and concluded that only a few states, particularly Washington State, had an effective data collection program for evaluating job creation subsidies; and
Whereas, The Maine study also concluded that the total amount of state economic development subsidies in their state exceeded the entire budget for the State of Maine; and
Whereas, In a recent study by the nonprofit group Good Jobs First, West Virginia received a score of only twelve out of one hundred for its online economic development disclosure practices; and
Whereas, A November 2010 Performance Evaluation Review Division ("PERD") report, that tracked job creation efforts in West Virginia and other states, concluded that West Virginia tied with twenty-five other states for last place in terms of transparency of state economic development subsidy incentives; and
Whereas, The November 2010 PERD report further concluded that those states with statutory mandates were most effective in obtaining development outcome data; and
Whereas, The November 2010 PERD report further concluded that the Legislature "should consider having statutory requirements specifying that . . . targeted and actual outcomes be reported by the grantor of economic development funds"; and
Whereas, To facilitate consistent information and comparative evaluations, the Legislature should study the feasibility of requiring that applications for development assistance, development assistance agreements and enforcement mechanisms be standardized across all state agencies; and
Whereas, The Legislature should evaluate whether clawback and other enforcement provisions have ever been used and whether they have been effective in deterring misuse of state funds; and
Whereas, The Legislature should study whether annual reporting on job creation and job retention efforts by state agencies to the Department of Revenue should be standardized so that the Legislature can more effectively evaluate the return on investment of incentives provided; and
Whereas, The Legislature should further study whether the Department of Revenue should be required to submit an annual unified economic budget to the Legislature so that the Legislature can more effectively evaluate the total amount of economic development incentives provided and whether such incentives have been effective; and
Whereas, The Legislature should consider whether to mandate that agency reports on economic development assistance be posted on the Internet so that the citizens of West Virginia may more effectively evaluate the return on the taxpayers' investment in job creation and retention; 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 of the current development assistance programs utilized by the various agencies in the State of West Virginia; and, be it
Further Resolved, That the Development Office, Department of Commerce, Department of Revenue and the Department of Administration cooperate with the Joint Committee on Government and Finance related to this study; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the Regular Session of the Legislature, 2012, 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.
Delegate Kump offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 42 - "Expressing the will of the House of Delegates in supporting equitable treatment of West Virginia's public employees and establishment of prudent public policies."
Whereas, There has been much discussion and debate, both pro and con, about the current public policy in the State of Wisconsin regarding its budgetary woes and public employees; and
Whereas, West Virginia's duties and responsibilities are, first and foremost to resolve our own administrative and public policy concerns; therefore, be it
Resolved by the House of Delegates:
That the West Virginia House of Delegates supports the enactment of prudent public policy regarding our own financial obligations and equitable treatment of our public employees; and, be it
Further Resolved, That the West Virginia House of Delegates continue to acknowledge, despite these hard economic times, the great value and worth of municipal employees, public school employees, university employees and state employees; and, be it
Further Resolved, That the West Virginia House of Delegates also acknowledges our responsibilities to all of our citizens to prudently establish and manage public expenditures; and, be it
Further Resolved, That the aforementioned obligations need not be mutually exclusive; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to all members of the West Virginia Legislature.
*Mr. Speaker, Mr. Thompson, and Delegates Mahan, Anderson, Andes, Armstead, Ashley, Azinger, Barill, Barker, Boggs, Border, Brown, Butcher, D. Campbell, T. Campbell, Cann, Canterbury, Caputo, Carmichael, Cowles, Craig, Crosier, Doyle, Duke, Ellem, Ellington, Ennis, Evans, Ferns, Ferro, Fleischauer, Fragale, Frazier, Gearheart, Givens, Guthrie, Hall, Hamilton, Hartman, Hatfield, Householder, Howell, Hunt, Iaquinta, Ireland, Jones, Kominar, Kump, Lane, Lawrence, Longstreth, Manchin, Manypenny, Marshall, Martin, Michael, Miley, C. Miller, J. Miller, Moore, Morgan, Moye, Nelson, O'Neal, Overington, Pasdon, Paxton, Perdue, Perry, Pethtel, L. Phillips, R. Phillips, Pino, D. Poling, M. Poling, Poore, Reynolds, Rodighiero, Romine, Rowan, Savilla, Shaver, Sigler, Skaff, Smith, Snuffer, Sobonya, Staggers, Stephens, Storch, Stowers, Sumner, Swartzmiller, Talbott, Varner, Walker, Walters, Wells, White and Williams offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 43 - " Commemorating the passing of Jackie Withrow, a woman, wife and states woman of enormous compassion and courage who dedicated her life in service to the most vulnerable of West Virginians."
Whereas, Jackie Withrow was born on March 28, 1918, in Mabscott, Raleigh County, West Virginia, with the birth name of Beatrice Von Brickner Neubert but who, early in life, was donned "Jackie Boy" due to her tomboy antics and attitude; and
Whereas, Jackie Withrow, a life long Raleigh County resident, died on November 11, 2010, at the age of ninety-two in Crab Orchard, West Virginia; and
Whereas, In 1960, Jackie Withrow ran for a seat in the West Virginia House of Delegates, the only woman among twenty-four candidates, a "rose among thorns" she stated throughout her campaign, winning the election as one of the top four vote-getters and being reelected eight more times; and
Whereas, Jackie Withrow, while serving in the House of Delegates, championed the medical needs of those in need of long- term care, especially the mentally ill, and was the first female to be named the Chairperson of the House, Health and Welfare Committee, being widely recognized by her colleagues as the resident expert on health care and mental health care; and
Whereas, Jackie Withrow's unfailing work on behalf of the health of West Virginians led her to membership on the Board of Directors of Appalachian Regional Hospitals, the Committee on Prenatal Health, the West Virginia State Plan for Comprehensive Mental Health Services, the National Association for Mental Health and a host of other organizations; and
Whereas, Jackie Withrow's accomplishments of which she was most proud while serving the state as a delegate in the House of Delegates included legislation which transformed the state's mental health care facilities; legislation requiring PKU testing of newborns which serves to prevent the development of neurological abnormalities, including mental retardation; and, for being co- sponsor on the first bill in West Virginia to provide compensation to coal miners suffering from black lung disease; and
Whereas, During her tenure in the West Virginia Legislature, Jackie Withrow earned the respect and admiration of her peers and became the first woman legislator to serve on the powerful Finance Committee; and
Whereas, Jackie Withrow earned the distinction of being the second longest-serving woman legislator in the history of West Virginia, choosing not to seek reelection in 1978 in order to spend time with her husband, W.W. "Bill" Withrow, to whom she was married for fifty-six years and for whom she was a loving and devoted wife; and
Whereas, Following her eighteen years in the House of Delegates, a body politic for which she was known to say "is no longer a man's world", Jackie Withrow's service to vulnerable West Virginians continued as she remained active on numerous boards and as a volunteer at the VA Hospital until physically unable to continue; and
Whereas, Jackie Withrow was a tireless representative voice for our most fragile citizens and truly an advocate of mercy, justice and love; and
Whereas, The passing of Jackie Withrow must not go unnoticed; therefore, be it
Resolved by the House of Delegates:
That regret is hereby expressed by the members at the passing of Jackie Withrow, a woman who devoted her life to improving conditions of and for humankind's most fragile and vulnerable; a woman of great compassion and love; a woman whose life and actions have given quality of life to untold numbers; a woman without whom countless, vulnerable West Virginians would have undoubtedly suffered; a woman ahead of her times who touched the lives of all with whom she interacted; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to Jackie Withrow's nephew and wife, Charles and Zona Neubert; to her great nephews Shane Neubert, Bryan Coulter, Kenneth Cozart, Jimmy Cozart, Rusty Cozart, Jason Cozart; and, to long-time friend, William Wooton.
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the resolution (H. R. 43) to a committee was dispensed with, and it was taken up for immediate consideration.
On the adoption of the resolution, the yeas and nays were demanded which demand was sustained.
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: Andes, Cann and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. R. 43) adopted.
Delegates Anderson, Azinger, Border, Ellem and D. Poling offered the following resolution, which was read by the Clerk as follows
H. R. 44 - "Urging the United States Navy to continue the Parkersburg High School NJROTC Program."
Whereas, The Parkersburg High School NJROTC Program was founded in 1986, and has been instrumental in obtaining more than $2,000,000.00 in scholarships and military academy appointments; and
Whereas, During the past five years, the Parkersburg High School NJROTC Program has averaged between 500 and 600 hours of community service per year, assisting a variety charitable organizations; and
Whereas, During the past five years, the Parkersburg High School NJROTC Program has averaged 1,150 hours of school support including Gate Guard and stadium clean up after football games, Awards Night traffic control, 9-11 Ceremonies traffic control and escort duty, as well as providing a singer for the national anthem at sporting events; and
Whereas, The Parkersburg High School NJROTC Program supports the community by providing color guards, passing of the flag ceremonies and participation in parades; and
Whereas, West Virginia is one of the leading states in the nation for recruitment for all military services, especially the Navy; and
Whereas, The Parkersburg High School NJROTC Program has a valued and proud history that has provided their community and this nation with positive leadership in all walks of life; and
Whereas, Closing the Parkersburg High School NJROTC Program would be devastating to the leadership development program for our cadets and detrimental to the education and advancement of our youth; therefore, be it
Resolved by the House of Delegates:
That the House of Delegates hereby urges the United States Navy to continue the Parkersburg High School NJROTC Program; and, be it
Further Resolved, That the House of Delegates recognizes the importance of the Parkersburg High School NJROTC Program and extends its full support in helping it continue its service to the community, state and country; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a copy of this resolution to the Parkersburg High School NJROTC and Ray Mabus, Secretary of the United States Navy.
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the resolution (H. R. 44) to a committee was dispensed with, and it was taken up for immediate consideration and adopted.
Special Calendar

Third Reading

S. B. 35, Increasing nonfamily adoption tax credit; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 354), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 35) 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. 192, Protecting consumers from price gouging and unfair pricing practices; on third reading, coming up in regular order, was, on motion of Delegate Boggs, placed at the foot of bills on third reading.
Com. Sub. for S. B. 245, Relating to protection of Chesapeake Bay Watershed; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 355), and there were--yeas 86, nays 12, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Gearheart, Lane, C. Miller, Nelson, Savilla, Sigler, Snuffer, Sobonya, Storch and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 245) 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. 245 - "A Bill to amend and reenact §22C-1-27 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §29-22- 18d; to amend and reenact §31-15A-9 of said code; and to amend said code by adding thereto a new section, designated §31-15A-17b, all relating to protection of the watersheds of the Chesapeake Bay and the Greenbrier River; increasing the bonding authority of the Water Development Authority for limited purposes; directing an annual amount of excess lottery revenue to newly created debt service fund to pay costs of and debt service on bonds; providing for the issuance of bonds when watershed compliance projects have been approved; establishing deadline for certain publicly owned wastewater facilities to submit ten-year projected capital funding plan to the West Virginia Infrastructure and Jobs Development Council for review and approval; providing eligibility for funding; requiring Water Development Authority to report to Joint Committee on Government and Finance; establishing distribution guidelines for grants to eligible projects; making eligible projects with funding approved before a certain date eligible for grant funding to the extent permitted by law and bond covenants; and limiting eligibility of grant funding."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 285, Extending time frame practitioners must write prescriptions on official tamper-resistant paper; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 356), 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: Andes and Crosier.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 285) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 330, Relating to higher education personnel generally; on third reading, coming up in regular order, with restricted right to amend, was reported by the Clerk.
An amendment to the bill, recommended by the Committee on Finance, was reported by the Clerk.
Whereupon,
Delegate M. Poling asked and obtained unanimous consent that the amendment be withdrawn.
Delegate M. Poling then asked and obtained unanimous consent to offer an amendment on this reading.
The Clerk then reported the amendment offered by Delegates M. Poling and White, as follows:
On page four, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §18-13-1 of the Code of West Virginia, 1931, as amended, be repealed; that §18-23-4a of said code be repealed; that §18B-8-3a of said code be repealed; that §18B-9-2a, §18B-9-5, §18B-9-7, §18B-9-8, §18B-9-9, §18B-9-10 and §18B-9-12 of said code be repealed; that §12-1-12d of said code be amended and reenacted; that §18B-1-2 and §18B-1-6 of said code be amended and reenacted; that §18B-1B-4 and §18B-1B-5 of said code be amended and reenacted; that §18B-2A-3, §18B-2A-4 and §18B-2A-8 of said code be amended and reenacted; that §18B-2B-3 of said code be amended and reenacted; that §18B-3-1, §18B-3-3 and §18B-3-4 of said code be amended and reenacted; that §18B- 4-1 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-4-2a; that §18B-5-9 of said code be amended and reenacted; that §18B-7-1, §18B-7-2, §18B-7-3, §18B-7-4, §18B-7-5, §18B-7-6, §18B-7-7, §18B-7-8, §18B-7-9, §18B-7-10, §18B-7-11 and §18B-7-12 of said code be amended and reenacted; that said code be amended by adding thereto four new sections, designated §18B-7-13, §18B-7-14, §18B-7-15 and §18B-7-16; that §18B-8-1, §18B-8-3, §18B-8-4, §18B-8-5 and §18B-8-6 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-8-2; that §18B-9-1, §18B-9- 2, §18B-9-3 and §18B-9-4 of said code be amended and reenacted; that said code be amended by adding thereto a new article, designated §18B-9A-1, §18B-9A-2, §18B-9A-3, §18B-9A-4, §18B-9A- 5, §18B-9A-6, §18B-9A-7 and §18B-9A-8; and that §18B-10-1 of said code be amended and reenacted, all to read as follows:
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.

ARTICLE 1. STATE DEPOSITORIES.

§12-1-12d. Investments by Marshall University and West Virginia University.
(a) Notwithstanding any provision of this article to the contrary, the governing boards of Marshall University and West Virginia University each may invest certain funds with its respective nonprofit foundation that has been established to receive contributions exclusively for that university and which exists on January 1, 2005. Any such investment is subject to the limitations of this section.
(b) A governing board, through its chief financial officer may enter into agreements, approved as to form by the State Treasurer, for the investment by its foundation of certain funds subject to their administration. Any interest or earnings on the moneys invested is retained by the investing university.
(c) Moneys of a university that may be invested with its foundation pursuant to this section are those subject to the administrative control of the university that are collected under an act of the Legislature for specific purposes and do not include any funds made available to the university from the state General Revenue Fund or the funds established in sections eighteen or eighteen-a, article twenty-two, chapter twenty-nine of this code. Moneys permitted to be invested under this section may be aggregated in an investment fund for investment purposes.
(d) Of the moneys authorized for investment by this section, Marshall University and West Virginia University each, respectively, may have invested with its foundation at any time not more than the greater of:
(1) $18 million for Marshall University and $25 million for West Virginia University; or
(2) Sixty-five percent of its unrestricted net assets as presented in the statement of net assets for the fiscal year end audited financial reports.
(3) Notwithstanding subdivisions (1) and (2) of this subsection, with the approval of the Higher Education Policy Commission, Marshall University may increase the amount invested to $30 million and West Virginia University may increase the amount invested to $40 million.
(e) Investments by foundations that are authorized under this section shall be made in accordance with and subject to the provisions of the Uniform Prudent Investor Act codified as article six-c, chapter forty-four of this code. As part of its fiduciary responsibilities, each governing board shall establish investment policies in accordance with the Uniform Prudent Investor Act for those moneys invested with its foundation. The governing board shall review, establish and modify, if necessary, the investment objectives as incorporated in its investment policies so as to provide for the financial security of the moneys invested with its foundation. The governing boards shall give consideration to the following:
(1) Preservation of capital;
(2) Diversification;

(3) Risk tolerance;

(4) Rate of return;

(5) Stability;

(6) Turnover;

(7) Liquidity; and

(8) Reasonable cost of fees.

(f) A governing board shall report annually by December 31 to the Governor and to the Joint Committee on Government and Finance on the performance of investments managed by its foundation pursuant to this section.
(g) The authority of a governing board to invest moneys with its foundation pursuant to this section expires on July 1, 2011.
(h) (g) The amendments to this section in the second extraordinary session of the Legislature in 2010 shall apply retroactively so that the authority granted by this section shall be construed as if that authority did not expire on July 1, 2010.
CHAPTER 18B. HIGHER EDUCATION.

ARTICLE 1. GOVERNANCE.

§18B-1-2. Definitions.

The following words when used in this chapter and chapter eighteen-c of this code have the meanings ascribed to them unless the context clearly indicates a different meaning:
(1) 'Administratively linked community and technical college' means a state institution of higher education delivering community and technical college education and programs which has maintained a contractual agreement to receive essential services from another accredited state institution of higher education prior to July 1, 2008;
(2) 'Advanced technology center' means a facility established under the direction of an independent community and technical college or the council for the purpose of implementing and delivering education and training programs for high-skill, high-performance Twenty-first Century workplaces;
(3) 'Board of visitors' means the advisory board previously appointed for the West Virginia Graduate College and the advisory board previously appointed for West Virginia University Institute of Technology, which provide guidance to the Marshall University Graduate College and West Virginia University Institute of Technology, respectively;
(4) 'Broker' or 'brokering' means serving as an agent on behalf of students, employers, communities or responsibility areas to obtain education services not offered at that institution. These services include courses, degree programs or other services contracted through an agreement with a provider of education services either in-state or out-of-state;
(5) 'Chancellor' means the Chancellor for Higher Education where the context refers to a function of the Higher Education Policy Commission. 'Chancellor' means the Chancellor for Community and Technical College Education where the context refers to a function of the West Virginia Council for Community and Technical College Education;
(6) 'Chancellor for Community and Technical College Education' means the chief executive officer of the West Virginia Council for Community and Technical College Education employed pursuant to section three, article two-b of this chapter;
(7) 'Chancellor for Higher Education' means the chief executive officer of the Higher Education Policy Commission employed pursuant to section five, article one-b of this chapter;
(8) 'Collaboration' means entering into an agreement with one or more providers of education services in order to enhance the scope, quality or efficiency of education services;
(9) 'Community and technical college', in the singular or plural, means the free-standing community and technical colleges and other state institutions of higher education which deliver community and technical college education. This definition includes Blue Ridge Community and Technical College, Bridgemont Community and Technical College, Eastern West Virginia Community and Technical College, Kanawha Valley Community and Technical College, Mountwest Community and Technical College, New River Community and Technical College, Pierpont Community and Technical College, Southern West Virginia Community and Technical College, West Virginia Northern Community and Technical College and West Virginia University at Parkersburg;
(10) 'Community and technical college education' means the programs, faculty, administration and funding associated with the delivery of community and technical college education programs;
(11) 'Community and technical college education program' means any college-level course or program beyond the high school level provided through a public institution of higher education resulting in or which may result in a two-year associate degree award including an associate of arts, an associate of science and an associate of applied science; certificate programs and skill sets; developmental education; continuing education; collegiate credit and noncredit workforce development programs; and transfer and baccalaureate parallel programs. All programs are under the jurisdiction of the council. Any reference to 'post-secondary vocational education programs' means community and technical college education programs as defined in this subsection;
(12) 'Council' means the West Virginia Council for Community and Technical College Education created by article two-b of this chapter;
(13) 'Dual credit course' or 'dual enrollment course' means a credit-bearing college-level course offered in a high school by a state institution of higher education for high school students in which the students are concurrently enrolled and receiving credit at the secondary level.
(14) 'Essential conditions' means those conditions which shall be met by community and technical colleges as provided in section three, article three-c of this chapter;
(15) 'Free-standing community and technical colleges' means Southern West Virginia Community and Technical College, West Virginia Northern Community and Technical College, and Eastern West Virginia Community and Technical College, which may not be operated as branches or off-campus locations of any other state institution of higher education;
(16) 'Governing boards' or 'boards' means the institutional boards of governors created by section one, article two-a of this chapter;
(17) 'Higher Education Policy Commission', 'Policy Commission' or 'Commission' means the commission created by section one, article one-b of this chapter;
(18) 'Independent community and technical college' means a state institution of higher education under the jurisdiction of the Council which is independently accredited, is governed by its own independent governing board, and may not be operated as a branch or off-campus location of any other state institution of higher education. This definition includes Blue Ridge Community and Technical College, Bridgemont Community and Technical College, Eastern West Virginia Community and Technical College, Kanawha Valley Community and Technical College, Mountwest Community and Technical College, New River Community and Technical College, Pierpont Community and Technical College, Southern West Virginia Community and Technical College, West Virginia Northern Community and Technical College, and West Virginia University at Parkersburg;
(19) 'Institutional compact' means the compact between the commission or council and a state institution of higher education under its jurisdiction, as described in section seven, article one-d of this chapter;
(20) 'Institutional operating budget' or 'operating budget' means for any fiscal year an institution's total unrestricted education and general funding from all sources, including, but not limited to, tuition and fees and legislative appropriation, and any adjustments to that funding as approved by the commission or council based on comparisons with peer institutions or to reflect consistent components of peer operating budgets;
(21) 'Peer institutions', 'peer group' or 'peers' means public institutions of higher education used for comparison purposes and selected by the commission pursuant to section three, article one-a of this chapter;
(22) 'Rule' or 'rules' means a regulation, standard, policy or interpretation of general application and future effect;
(23) 'Sponsoring institution' means a state institution of higher education that maintained an administrative link to a community and technical college providing essential services prior to July 1, 2008. This definition includes institutions whose governing boards had under their jurisdiction a community and technical college, regional campus or a division delivering community and technical college education and programs;
(24) 'State college' means Bluefield State College, Concord University, Fairmont State University, Glenville State College, Shepherd University, West Liberty University or West Virginia State University;
(25) 'State institution of higher education' means any university, college or community and technical college under the jurisdiction of a governing board as that term is defined in this section;
(26) 'Statewide network of independently accredited community and technical colleges' or 'community and technical college network' means the state institutions of higher education under the jurisdiction of the West Virginia Council for Community and Technical College Education which are independently accredited, each governed by its own independent governing board, and each having a core mission of providing affordable access to and delivering high quality community and technical education in every region of the state;
(27) 'Vice Chancellor for Administration' means the person employed in accordance with section two, article four of this chapter. Any reference in this chapter or chapter eighteen-c of this code to 'Senior Administrator' means Vice Chancellor for Administration;
(28) 'Vice Chancellor for Human Resources' means the person employed by the commission and the council jointly pursuant to section two-a, article four of this chapter. The person employed as senior director of human resources by the commission on January 1, 2011, becomes the Vice Chancellor for Human Resources on the effective date of this section; and
(29) 'West Virginia Consortium for Undergraduate Research and Engineering' or 'West Virginia CURE' means the collaborative planning group established by article one-c of this chapter.
§18B-1-6. Rulemaking.

(a) The commission is hereby empowered to promulgate, adopt, amend or repeal rules, in accordance with the provisions of article three-a, chapter twenty-nine-a of this code, subject to the provisions of section three of this article.
(b) The council is hereby empowered to promulgate, adopt, amend or repeal rules in accordance with the provisions of article three-a, chapter twenty-nine-a of this code, and subject to the provisions of section three of this article. This grant of rule-making power extends only to those areas over which the council has been granted specific authority and jurisdiction by law.
(c) As it relates to the authority granted to governing boards of state institutions of higher education to promulgate, adopt, amend or repeal any rule under the provisions of this code:
(1) 'Rule' means any regulation, guideline, directive, standard, statement of policy or interpretation of general application which has institution-wide effect or which affects the rights, privileges or interests of employees, students or citizens. Any regulation, guideline, directive, standard, statement of policy or interpretation of general application that meets this definition is a rule for the purposes of this section.
(2) Regulations, guidelines or policies established for individual units, divisions, departments or schools of the institution, which deal solely with the internal management or responsibilities of a single unit, division, department or school or with academic curricular policies that do not constitute a mission change for the institution, are excluded from this subsection, except for the requirements relating to posting.
(3) The commission and council each shall promulgate a rule to guide the development and approval of rules made by their respective governing boards, including the governing boards of Marshall University and West Virginia University. The rules promulgated by the commission and council shall include, but are not limited to, the following provisions which shall be included in the rule on rules adopted by each governing board of a state institution of higher education:
(A) A procedure to ensure that public notice is given and that the right of interested parties to have a fair and adequate opportunity to respond is protected, including providing for a thirty-day public comment period prior to final adoption of a rule;
(B) Designation of a single location where all proposed and approved rules, guidelines and other policy statements are posted and can be accessed by the public; and
(C) A procedure to maximize Internet access to all proposed and approved rules, guidelines and other policy statements to the extent technically and financially feasible; and
(D) A procedure for the governing board to follow in submitting its rules for review and approval to the commission and/or council, as appropriate, except the following conditions apply for the governing boards of Marshall University and West Virginia University:
(i) The governing boards shall submit rules for review and comment to the commission.
(ii) The commission shall return to the governing board its comments and suggestions within thirty days of receiving the rule.
(iii) If a governing board receives comments or suggestions on a rule from the commission, it shall record these as part of the minute record. The rule is not effective and may not be implemented until the governing board holds a meeting and places on the meeting agenda the comments it has received from the commission.
(d) Nothing in this section requires that any rule reclassified or transferred by the commission or the council under this section be promulgated again under the procedures set out in article three-a, chapter twenty-nine-a of this code unless the rule is amended or modified.
(e) The commission and council each shall file with the Legislative Oversight Commission on Education Accountability any rule it proposes to promulgate, adopt, amend or repeal under the authority of this article.
(f) The governing boards of Marshall University and West Virginia University, respectively, shall promulgate and adopt any rule which they are required to adopt by this chapter or chapter eighteen-c of this code no later than the first day of July 1, two thousand five July 1, 2011 unless a later date is specified. On and after this date:
(1) Any rule of either a governing board which meets the definition set out in subsection (c) of this section and which has not been promulgated and adopted by formal vote of the appropriate governing board is void and may not be enforced;
(2) Any authority granted by this code which inherently requires the governing board to promulgate and adopt a rule is void until the governing board complies with the provisions of this section.
(g) Within thirty days of the adoption of a rule, including repeal or amendment of an existing rule, the and before the change is implemented, a governing boards of Marshall University and West Virginia University, respectively, board shall furnish to the commission or the council, as appropriate, a copy of each rule which it has been formally adopted to the commission or the council, respectively, for review and approval, except the governing boards of Marshall University and West Virginia University are subject to subsection (c) of this section.
(h) Not later than Annually, by October 1, 2005, and annually thereafter, each governing board of a state institution of higher education shall file with the commission or the council, as appropriate, a list of all institutional rules that were in effect for that institution on July 1 of that year, including the most recent date on which each rule was considered and adopted, amended or repealed by the governing board. For all rules adopted, amended or repealed after the effective date of this section, the list shall include a statement by the chair of the governing board certifying that the governing board has complied with the provisions of this section when each listed rule was promulgated and adopted.
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.
§18B-1B-4. Powers and duties of Higher Education Policy Commission.
(a) The primary responsibility of the commission is to develop, establish and implement policy that will achieve the goals, and objectives and priorities found in section one-a, article one and article one-d of this chapter. The commission shall exercise its authority and carry out its responsibilities in a manner that is consistent and not in conflict with the powers and duties assigned by law to the West Virginia Council for Community and Technical College Education and the powers and duties assigned to the governing boards. of Marshall University and West Virginia University, respectively. To that end, the commission has the following powers and duties relating to the institutions governing boards under its jurisdiction:
(1) Develop, oversee and advance the public policy agenda pursuant to section one, article one-a article one-d of this chapter to address major challenges facing the state, including, but not limited to, the following:
(A) The goals, and objectives and priorities found established in section one-a, article one of this chapter and including specifically those goals, and objectives and priorities pertaining to the compacts created pursuant to section two seven, article one-a one-d of this chapter; and to develop and implement
(B) Development and implementation of the master plan described in section nine of this five, article one-d of this chapter for the purpose of accomplishing the mandates of this section;
(2) Develop, oversee and advance the promulgation and implementation jointly with the council of a financing policy rule for state institutions of higher education in West Virginia under its jurisdiction. The policy rule shall meet the following criteria:
(A) Provide for an adequate level of education educational and general funding for institutions pursuant to section five, article one-a of this chapter;
(B) Serve to maintain institutional assets, including, but not limited to, human and physical resources and eliminating deferred maintenance; and
(C) Invest and provide incentives for achieving the priority goals in the public policy agenda, including, but not limited to, those found in section one-a, article one and article one-d of this chapter; and
(D) Incorporate the plan for strategic funding to strengthen capacity for support of community and technical college education established by the West Virginia Council for Community and Technical College Education pursuant to the provisions of section six, article two-b of this chapter;
(3) In collaboration with the council, create a policy leadership structure capable of the following actions:
(A) Developing, building public consensus around and sustaining attention to a long-range public policy agenda. In developing the agenda, the commission and council shall seek input from the Legislature and the Governor and specifically from the state Board of Education and local school districts in order to create the necessary linkages to assure smooth, effective and seamless movement of students through the public education and post-secondary education systems and to ensure that the needs of public school courses and programs can be fulfilled by the graduates produced and the programs offered;
(B) Ensuring that the governing boards carry out their duty effectively to govern the individual institutions of higher education; and
(C) Holding the higher education institutions governing boards and the higher education systems as a whole accountable for accomplishing their missions and implementing the provisions of the their compacts;
(4) Develop and adopt each institutional compact for the governing boards under its jurisdiction;
(5) Review and adopt the annual updates of the institutional compacts;
(6) Serve as the accountability point to state policymakers:
(A) The Governor for implementation of the public policy agenda; and
(B) The Legislature by maintaining a close working relationship with the legislative leadership and the Legislative Oversight Commission on Education Accountability;
(7) Jointly with the council, promulgate legislative rules pursuant to article three-a, chapter twenty-nine-a of this code to fulfill the purposes of section five, article one-a of this chapter;
(8) Establish and implement a peer group for each institution as described in section three, article one-a of this chapter;
(9) Establish and implement the benchmarks and performance indicators necessary to measure institutional achievement towards progress in achieving state policy priorities and institutional missions pursuant to section two, article one-a seven, article one-d of this chapter;
(10) Annually Report to the Legislature and to the Legislative Oversight Commission on Education Accountability annually during the January interim meetings meeting period on a date and at a time and location to be determined by the President of the Senate and the Speaker of the House of Delegates. The report shall address at least the following:
(A) The performance of its system of higher education during the previous fiscal year, including, but not limited to, progress in meeting goals stated in the compacts and progress of the institutions and the higher education system as a whole in meeting the goals, and objectives and priorities set forth in section one-a, article one and article one-d of this chapter and in the commission's master plan and institutional compacts;
(B) An analysis of enrollment data collected pursuant to section one, article ten of this chapter and recommendations for any changes necessary to assure access to high-quality, high-demand education programs for West Virginia residents;
(C) (B) The commission's priorities established for new operating and capital investment investments needs pursuant to subdivision (11) of this subsection and the justification for such the priority;
(D) (C) Recommendations of the commission for statutory changes needed necessary or expedient to further the achieve state goals, and objectives and priorities; set forth in section one-a, article one of this chapter;
(11) Establish a formal process for identifying needs for capital investments investment needs and for determining priorities for these investments for consideration by the Governor and the Legislature as part of the appropriation request process pursuant to article nineteen of this chapter. It is the responsibility of the commission to assure a fair distribution of funds for capital projects between the commission and the council. To that end the commission shall take the following steps:
(A) Receive the list of priorities developed by the council for capital investment for the institutions under the council's jurisdiction pursuant to subsection (b), section six, article two-b of this chapter;
(B) Place the ranked list of projects on the agenda for action within sixty days of the date on which the list was received;
(C) Select a minimum of three projects from the list submitted by the council to be included on the ranked list established by the commission. At least one of the three projects selected must come from the top two priorities established by the council;
(12) Maintain guidelines for institutions to follow concerning extensive capital project management except the governing boards of Marshall University and West Virginia University are not subject to the provisions of this subdivision as it relates to the state institutions of higher education known as Marshall University and West Virginia University. The guidelines shall provide a process for developing capital projects, including, but not limited to, the notification by an institution to the commission of any proposed capital project which has the potential to exceed one million dollars in cost. Such a project may not be pursued by an institution without the approval of the commission. An institution may not participate directly or indirectly with any public or private entity in any capital project which has the potential to exceed one million dollars in cost;
(12) Develop standards and evaluate governing board requests for capital project financing in accordance with article nineteen of this chapter;
(13) Ensure that governing boards manage capital projects and facilities needs effectively, including review and approval or disapproval of capital projects, in accordance with article nineteen of this chapter.
(13) (14) Acquire legal services as are considered necessary, including representation of the commission, its institutions, governing boards, employees and officers before any court or administrative body, notwithstanding any other provision of this code to the contrary. The counsel may be employed either on a salaried basis or on a reasonable fee basis. In addition, the commission may, but is not required to, call upon the Attorney General for legal assistance and representation as provided by law;
(14) (15) Employ a Chancellor for Higher Education pursuant to section five of this article;
(15) (16) Employ other staff as necessary and appropriate to carry out the duties and responsibilities of the commission and the council, in accordance with the provisions of article four of this chapter;
(16) (17) Provide suitable offices in Kanawha County for the chancellor, vice chancellors and other staff;
(17) (18) Advise and consent in the appointment of the presidents of the institutions of higher education under its jurisdiction pursuant to section six of this article. The role of the commission in approving an institutional president is to assure through personal interview that the person selected understands and is committed to achieving the goals, and objectives and priorities as set forth in the institutional compact, and in section one-a, article one and article one-d of this chapter;
(18) (19) Approve the total compensation package from all sources for presidents of institutions under its jurisdiction, as proposed by the governing boards. The governing boards must obtain approval from the commission of the total compensation package both when institutional presidents are employed initially and afterward when any change is made in the amount of the total compensation package;
(19) (20) Establish and implement the policy of the state to assure that parents and students have sufficient information at the earliest possible age on which to base academic decisions about what is required for students to be successful in college, other post-secondary education and careers related, as far as possible, to results from current assessment tools in use in West Virginia;
(20) (21) Approve and implement a uniform standard jointly with the council to determine which students shall be placed in remedial or developmental courses. The standard shall be aligned with college admission tests and assessment tools used in West Virginia and shall be applied uniformly by the governing boards throughout the public higher education system. The chancellors shall develop a clear, concise explanation of the standard which they shall communicate to the state Board of Education and the state superintendent of Schools;
(21) Review and approve or disapprove capital projects as described in subdivision (11) of this subsection;
(22) Jointly with the council, develop and implement an oversight plan to manage systemwide technology such as the including, but not limited to, the following:
(A) Expanding distance learning and technology networks to enhance teaching and learning, promote access to quality educational offerings with minimum duplication of effort; and
(B) Increasing the delivery of instruction to nontraditional students, to provide services to business and industry and increase the management capabilities of the higher education system.
(C) Notwithstanding any other provision of law or this code to the contrary, the council, commission and state institutions of higher education governing boards are not subject to the jurisdiction of the Chief Technology Officer for any purpose;
(23) Establish and implement policies and procedures to ensure that students a student may transfer and apply toward the requirements for a bachelor's degree the maximum number of credits earned at any regionally accredited in-state or out-of-state community and technical college with as few requirements to repeat courses or to incur additional costs as is are consistent with sound academic policy;
(24) Establish and implement policies and procedures to ensure that students a student may transfer and apply toward the requirements for a degree the maximum number of credits earned at any regionally accredited in-state or out-of-state higher education institution with as few requirements to repeat courses or to incur additional costs as is are consistent with sound academic policy;
(25) Establish and implement policies and procedures to ensure that students a student may transfer and apply toward the requirements for a master's degree the maximum number of credits earned at any regionally accredited in-state or out-of-state higher education institution with as few requirements to repeat courses or to incur additional costs as is are consistent with sound academic policy;
(26) Establish and implement policies and programs, in cooperation with the council and the institutions of higher education governing boards, through which students a student who have has gained knowledge and skills through employment, participation in education and training at vocational schools or other education institutions, or Internet-based education programs, may demonstrate by competency-based assessment that they have he or she has the necessary knowledge and skills to be granted academic credit or advanced placement standing toward the requirements of an associate associate's degree or a bachelor's degree at a state institution of higher education;
(27) Seek out and attend regional, national and international meetings and forums on education and workforce development-related topics as, in the commission's discretion, is are critical for the performance of their duties as members, for the purpose of keeping abreast of education trends and policies to aid it in developing the policies for this state to meet the established education goals, and objectives and priorities pursuant to section one-a, article one and article one-d of this chapter;
(28) Develop, establish Promulgate and implement a rule for higher education governing boards and institutions to follow when considering capital projects pursuant to article nineteen of this chapter; The guidelines shall assure that the governing boards and institutions do not approve or promote capital projects involving private sector businesses which would have the effect of reducing property taxes on existing properties or avoiding, in whole or in part, the full amount of taxes which would be due on newly-developed or future properties;
(29) Consider and submit to the appropriate agencies of the executive and legislative branches of state government a budget an appropriation request that reflects recommended appropriations from for the commission and the institutions governing boards under its jurisdiction. The commission shall submit as part of its budget proposal appropriation request the separate recommended appropriations appropriation request it received from the council, both for the council and for the institutions governing boards under the council's jurisdiction. The commission annually shall submit the proposed institutional allocations based on each institution's progress toward meeting the goals of its institutional compact;
(30) The commission has the authority to may assess institutions under its jurisdiction, including the state institutions of higher education known as Marshall University and West Virginia University, for the payment of expenses of the commission or for the funding of statewide higher education services, obligations or initiatives related to the goals set forth for the provision of public higher education in the state;
(31) Promulgate rules allocating reimbursement of appropriations, if made available by the Legislature, to institutions of higher education governing boards for qualifying noncapital expenditures incurred in the provision of providing services to students with physical, learning or severe sensory disabilities;
(32) Make appointments to boards and commissions where this code requires appointments from the State College System Board of Directors or the University of West Virginia System Board of Trustees which were abolished effective June 30, 2000, except in those cases where the required appointment has a specific and direct connection to the provision of community and technical college education, the appointment shall be made by the council. Notwithstanding any provisions of this code to the contrary, the commission or the council may appoint one of its own members or any other citizen of the state as its designee. The commission and council shall appoint the total number of persons in the aggregate required to be appointed by these previous governing boards;
(33) Pursuant to the provisions of article three-a, chapter twenty-nine-a of this code and section six, article one of this chapter, promulgate rules as necessary or expedient to fulfill the purposes of this chapter. The commission and the council shall promulgate a uniform joint legislative rule for the purpose purposes of standardizing, as much as possible, the administration of personnel matters among the state institutions of higher education and implementing the provisions of articles seven, eight, nine and nine-a of this chapter;
(34) Determine when a joint rule among the governing boards of the institutions under its jurisdiction is necessary or required by law and, in those instances, in consultation with the governing boards of all the institutions under its jurisdiction, promulgate the joint rule;
(35) In consultation with the governing boards of Marshall University and West Virginia University, Promulgate and implement a policy rule jointly with the council whereby course credit earned at a community and technical college transfers for program credit at any other state institution of higher education and is not limited to fulfilling a general education requirement;
(36) By October 1, 2011, promulgate a joint rule with the council pursuant to section one, article ten of this chapter, establishing tuition and fee policy for all institutions of higher education governing boards under the jurisdiction of the commission, other than including state institutions of higher education known as Marshall University and West Virginia University. which are subject to the provisions of section one, article ten of this chapter. The rule shall include, but is not limited to, the following:
(A) Comparisons with peer institutions;
(B) Differences among institutional missions;
(C) Strategies for promoting student access;
(D) Consideration of charges to out-of-state students; and
(E) Such other policies as the commission and council consider appropriate;
(37) Implement general disease awareness initiatives to educate parents and students, particularly dormitory residents, about meningococcal meningitis; the potentially life-threatening dangers of contracting the infection; behaviors and activities that can increase risks; measures that can be taken to prevent contact or infection; and potential benefits of vaccination. The commission shall encourage institutions governing boards that provide medical care to students to provide access to the vaccine for those who wish to receive it; and
(38) Notwithstanding any other provision of this code to the contrary sell, lease, convey or otherwise dispose of all or part of any real property which it may own that it owns, either by contract or at public auction, and to retain the proceeds of any such sale or lease: Provided, ThatProvided, That: in accordance with article nineteen of this chapter.
(A) The commission may not sell, lease, convey or otherwise dispose of any real property without first:
(i) Providing notice to the public in the county in which the real property is located by a Class II legal advertisement pursuant to section two, article three, chapter fifty-nine of this code;
(ii) Holding a public hearing on the issue in the county in which the real property is located; and
(iii) Providing notice to the Joint Committee on Government and Finance; and
(B) Any proceeds from the sale, lease, conveyance or other disposal of real property that is used jointly by institutions or for statewide programs under the jurisdiction of the commission or the council shall be transferred to the General Revenue Fund of the state.
(b) In addition to the powers and duties listed in subsection (a) of this section, the commission has the following general powers and duties related to its role in developing, articulating and overseeing the implementation of the public policy agenda:
(1) Planning and policy leadership, including a distinct and visible role in setting the state's policy agenda and in serving as an agent of change;
(2) Policy analysis and research focused on issues affecting the system as a whole or a geographical region thereof;
(3) Development and implementation of institutional mission definitions, including use of incentive funds to influence institutional behavior in ways that are consistent with public priorities;
(4) Academic program review and approval for institutions governing boards under its jurisdiction. including The review and approval includes use of institutional missions as a template to judge the appropriateness of both new and existing programs and the authority to implement needed changes.
(A) The commission's authority to review and approve academic programs for either the state institution of higher education known as Marshall University or West Virginia University is limited to programs that are proposed to be offered at a new location not presently served by that institution;
(B) The commission shall approve or disapprove proposed academic degree programs in those instances where approval is required as soon as practicable, but in any case not later than six months from the date the governing board makes an official request. The commission may not withhold approval unreasonably.
(5) Distribution of funds appropriated to the commission, including incentive and performance-based funding funds;
(6) Administration of state and federal student aid programs under the supervision of the vice chancellor for administration, including promulgation of any rules necessary to administer those programs;
(7) Serving as the agent to receive and disburse public funds when a governmental entity requires designation of a statewide higher education agency for this purpose;
(8) Development, establishment and implementation of Developing, establishing and implementing information, assessment, and accountability and personnel systems, including maintenance of maintaining statewide data systems that facilitate long-term planning and accurate measurement of strategic outcomes and performance indicators;
(9) Jointly with the council, developing, establishing promulgating and implementing policies rules for licensing and oversight for both public and private degree-granting and nondegree-granting institutions that provide post-secondary education courses or programs in the state. ; pursuant to the findings and policy recommendations required by section eleven of this article; The council has authority and responsibility for approval of all post-secondary courses or programs providing community and technical college education as defined in section two, article one of this chapter.
(10) Development, implementation and oversight of Developing, implementing and overseeing statewide and region-wide regional projects and initiatives related to providing post- secondary education at the baccalaureate level and above such as those using funds from federal categorical programs or those using incentive and performance-based funding funds from any source; and
(11) Quality assurance that intersects with all other duties of the commission particularly in the areas of research, data collection and analysis, personnel administration, planning, policy analysis, program review and approval, budgeting and information and accountability systems; and
(12) Developing budgets and allocating resources for governing boards under its jurisdiction:
(a) For all governing boards under its jurisdiction, except the governing boards of Marshall University and West Virginia University, the commission shall review institutional operating budgets, review and approve capital budgets, and distribute incentive and performance-based funds;
(b) For the governing boards of Marshall University and West Virginia University, the commission shall distribute incentive and performance-based funds and may review and comment upon the institutional operating budgets and capital budgets. The commission's comments, if any, shall be made part of the governing board's minute record.
(c) In addition to the powers and duties provided in subsections (a) and (b) of this section and any other powers and duties as may be assigned to it by law, the commission has such other powers and duties as may be necessary or expedient to accomplish the purposes of this article.
(d) The commission is authorized to may withdraw specific powers of any a governing board of an institution under its jurisdiction for a period not to exceed two years, if the commission makes a determination determines that any of the following conditions exist:
(1) The governing board has failed for two consecutive years to develop or implement an institutional compact as required in article one one-d of this chapter;
(2) The commission has received information, substantiated by independent audit, of significant mismanagement or failure to carry out the powers and duties of the board of Governors governing board according to state law; or
(3) Other circumstances which, in the view of the commission, severely limit the capacity of the board of Governors governing board to exercise its powers or carry out its duties and responsibilities.
The commission may not withdraw specific powers for a period of withdrawal of specific powers may not exceed exceeding two years. During which time the commission is authorized to the withdrawal period, the commission shall take all steps necessary to reestablish the conditions for restoration of sound, stable and responsible institutional governance.
§18B-1B-5. Employment of Chancellor for Higher Education; office; powers and duties generally; employment of Vice Chancellors and other staff.

(a) The commission, created pursuant to by section one of this article, shall employ a Chancellor for Higher Education who is the Chief Executive Officer of the Commission and who serves at its will and pleasure.
(b) The commission shall set the qualifications for the position of Chancellor and, when a vacancy occurs, shall conduct a thorough nationwide search for qualified candidates. A qualified candidate is one who meets at least the following criteria:
(1) Possesses an excellent academic and administrative background;
(2) Demonstrates strong communication skills;
(3) Has significant experience and an established national reputation as a professional in the field of higher education;
(4) Is free of institutional or regional biases; and
(5) Holds or retains no other administrative position within a system of higher education while employed as chancellor.
(c) The commission shall conduct written performance evaluations of the chancellor annually and may offer the chancellor a contract not to exceed three years. At the end of each contract period, the commission shall review the evaluations and make a determination by vote of its members on continuing employment and compensation level.
(d) When filling a vacancy in the position of chancellor, the commission shall enter into an initial employment contract for one year with the candidate selected. At the end of the initial contract period, and each contract period thereafter, the commission shall review the evaluations and make a determination by vote of its members on continuing employment and compensation level for the chancellor.
(e) The commission sets the chancellor's salary. The salary may not exceed by more than twenty percent the average annual salary of chief executive officers of state systems of higher education in the states that comprise the membership of the Southern Regional Education Board.
(f) The commission may employ a Vice Chancellor for Health Sciences who serves at the will and pleasure of the commission. The Vice Chancellor for Health Sciences shall coordinate the West Virginia University School of Medicine, the Marshall University School of Medicine and the West Virginia School of Osteopathic Medicine and also shall provide assistance to the governing boards on matters related to medical education and health sciences. The Vice Chancellor for Health Sciences shall perform all duties assigned by the chancellor, the commission and state law. In the case of a vacancy in the office of Vice Chancellor of Health Sciences, the duties assigned to this office by law are the responsibility of the chancellor or a designee.
(g) The commission shall employ a Vice Chancellor for Administration pursuant to section two, article four of this chapter.
(h) The commission shall employ a Vice Chancellor for Human Resources pursuant to section two-a, article four of this chapter. The person serving as senior director of human resources by the commission on January 1, 2011, is Vice Chancellor for Human Resources on the effective date of this section. Additionally, the commission shall employ a qualified generalist in the field of human resources pursuant to section two-a, article four of this chapter. The human resources generalist shall report to the Vice Chancellor for Human Resources.
(h) (i) The commission may employ a Vice Chancellor for State Colleges who serves at the will and pleasure of the commission. It is the duty and responsibility of At a minimum, the Vice Chancellor for State Colleges to shall perform the following duties:
(1) Provide assistance to the commission, the chancellor and the state colleges on matters related to or of interest and concern to these institutions;
(2) Advise, assist and consult regularly with the institutional presidents and institutional boards of Governors governing boards of each state college;
(3) Serve as an advocate and spokesperson for the state colleges to represent them and to make their interests, views and issues known to the chancellor, the commission and governmental agencies;
(4) Perform all duties assigned by the chancellor, the commission and state law.
In addition, the Vice Chancellor for State Colleges has the responsibility and the duty to shall provide staff assistance to the institutional presidents and governing boards to the extent practicable.
(i) (j) On behalf of the commission, the chancellor may enter into agreements with any state agency or political subdivision of the state, any state higher education institution of higher education or any other person or entity to enlist staff assistance to implement the powers and duties assigned by the commission or by state law.
(j) (k) The chancellor is responsible for the daily operations of the commission and has the following responsibilities relating to the commission and the institutions governing boards under its jurisdiction:
(1) To carry out policy and program directives of the commission;
(2) To develop and submit annual reports on the implementation plan to achieve the goals and objectives set forth in section one-a, article one and article one-d of this chapter, and in the institutional compacts;
(3) To prepare and submit to the commission for its approval the proposed budget of the commission including the offices of the chancellor and the vice chancellors;
(4) To assist the governing boards in developing rules, subject to the provisions of section six, article one of this chapter. Nothing in this chapter requires the rules of the governing boards to be filed pursuant to the rule-making procedures provided in article three-a, chapter twenty-nine-a of this code. The commission and the council, either separately or jointly as appropriate, are responsible for ensuring that any policy which is required to be uniform across the institutions is applied in a uniform manner;
(5) To perform all other duties and responsibilities assigned by the commission or by state law.
(k) (l) The chancellor shall be reimbursed for all actual and necessary expenses incurred in the performance of all assigned duties and responsibilities.
(l) (m) The chancellor, with the commission, advises the Legislature on matters of higher education in West Virginia. The chancellor shall work closely with the Legislative Oversight Commission on Education Accountability and with the elected leadership of the state to ensure that they are fully informed about higher education issues and that the commission fully understands the goals, objectives and priorities for higher education that the Legislature has established by law.
(m) (n) The chancellor may design and develop for consideration by the commission new statewide or regional region-wide initiatives in accordance with the goals set forth in section one-a, article one and article one-d of this chapter, and the public policy agenda articulated by the commission. In those instances where the initiatives to be proposed have a direct and specific impact or connection to community and technical college education as well as to baccalaureate and graduate education, the Chancellor for Higher Education and the Chancellor for Community and Technical College Education shall design and develop the initiatives jointly for consideration by the commission and the council.
(n) (o) To further the goals of cooperation and coordination between the commission and the state Board of Education, the chancellor serves as an ex officio, nonvoting member of the state board. The chancellor shall work closely with members of the state Board of Education and with the State Superintendent of Schools to assure that the following goals are met:
(1) Development and implementation of a seamless kindergarten-through-college system of education; and
(2) Appropriate coordination of missions and programs.
To further the goals of cooperation and coordination between the Commission and the state Board of Education, the chancellor serves as an ex officio, nonvoting member of the state Board of Education.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-3. Supervision of governing boards; promulgation of rules.

(a) The governing boards are subject to the supervision of the commission or the council, as appropriate, except for in those instances where specific statutory exceptions are granted by law to the governing boards of Marshall University and West Virginia University. as it relates to the state institutions of higher education known as Marshall University and West Virginia University
(b) The governing boards of all state institutions of higher education are subject to the provisions of law that relate to the administration of personnel matters including, specifically, articles seven, eight, nine and nine-a of this chapter and to rules promulgated and adopted in accordance with these provisions.
(c) The Chancellor for Higher Education and the Chancellor for Community and Technical College Education, under the supervision of their respective boards, are responsible for the coordination of policies, and purposes and rules of the governing boards and shall provide for and facilitate sufficient interaction among the governing boards and between the governing boards and the state Board of Education to meet the goals and objectives provided in the compacts and in section one-a, article one and article one-d of this chapter.
(b) (d) The governing boards and the state Board of Education shall provide any and all information requested by the commission or and the council, whether the request is made separately or jointly, in an appropriate format and in a timely manner.
§§18B-2A-4. Powers and duties of governing boards generally.
Each governing board separately has the following powers and duties:
(a) Determine, control, supervise and manage the financial, business and education policies and affairs of the state institution of higher education under its jurisdiction;
(b) Develop a master plan for the institution under its jurisdiction.
(1) The ultimate responsibility for developing and updating each master plan at the institutional level institution resides with the board of governors governing board, but the ultimate responsibility for approving the final version of each institutional master plan, including periodic updates, resides with the commission or council, as appropriate.
(2) Each institutional master plan shall include, but is not be limited to, the following:
(A) A detailed demonstration of how the institutional master plan will be used to meet the goals, and objectives and priorities of the institutional compact;
(B) A well-developed set of goals, objectives and priorities outlining missions, degree offerings, resource requirements, physical plant needs, personnel needs, enrollment levels and other planning determinates and projections necessary in a plan to assure that the needs of the institution's area of responsibility for a quality system of higher education are addressed;
(C) Documentation showing how the governing board involved the commission or council, as appropriate, institutional constituency groups, clientele of the institution and the general public in the development of all segments of the institutional master plan.
(3) The plan shall be established for periods of not fewer than three nor more than five years and shall be revised periodically as necessary, including adding or deleting degree programs as the governing board in its discretion determines is necessary; bachelor's, master's and doctoral degree programs for all governing boards as approved by the commission or council, respectively, except for the governing boards of Marshall University and West Virginia University only, the commission may review, but may not approve or disapprove, additions or deletions of degree programs.
(c) Develop a ten-year campus development plan in accordance with article nineteen of this chapter;
(d) Prescribe for the institution, under its jurisdiction, in accordance with its master plan and compact, specific functions and responsibilities to achieve the goals, objectives and priorities established in articles one and one-d of this chapter to meet the higher education needs of its area of responsibility and to avoid unnecessary duplication;
(e) Direct the preparation of an appropriation request for the institution under its jurisdiction, which relates directly to missions, goals and projections as found in the institutional master plan and the institutional compact;
(f) Consider, revise and submit for review and approval to the commission or council, as appropriate, an appropriation request on behalf of the institution under its jurisdiction;
(g) Review, at least every five years, all academic programs offered at the institution under its jurisdiction. The review shall address the viability, adequacy and necessity of the programs in relation to established state goals, objectives and priorities, the institutional master plan, the institutional compact and the education and workforce needs of its responsibility district. As a part of the review, each governing board shall require the institution under its jurisdiction to conduct periodic studies of its graduates and their employers to determine placement patterns and the effectiveness of the education experience. Where appropriate, these studies should coincide with the studies required of many academic disciplines by their accrediting bodies;
(h) Ensure that the sequence and availability of academic programs and courses offered by the institution under its jurisdiction is such that students have the maximum opportunity to complete programs in the time frame normally associated with program completion. Each governing board is responsible to see that the needs of nontraditional college-age students are appropriately addressed and, to the extent it is possible for the individual governing board to control, to assure core course work completed at the institution is transferable to any other state institution of higher education for credit with the grade earned;
(i) Subject to article one-b of this chapter, approve the teacher education programs offered in the institution under its control. In order to permit graduates of teacher education programs to receive a degree from a nationally accredited program and in order to prevent expensive duplication of program accreditation, the commission may select and use one nationally recognized teacher education program accreditation standard as the appropriate standard for program evaluation;
(j) Involve faculty, students and classified employees in institutional-level institution-level planning and decision making when those groups are affected;
(k) Subject to the provisions of federal law and pursuant to articles seven, eight, and nine and nine-a of this chapter and to rules adopted by the commission and the council, administer a system for the management of personnel matters, including, but not limited to, personnel classification, compensation and discipline for employees at the institution under its jurisdiction;
(l) Administer a system for hearing employee grievances and appeals. Notwithstanding any other provision of this code to the contrary, the procedure established in article two, chapter six-c of this code is the exclusive mechanism for hearing prospective employee grievances and appeals;
(m) Solicit and use or expend voluntary support, including financial contributions and support services, for the institution under its jurisdiction;
(n) Appoint a president for the institution under its jurisdiction subject to section six, article one-b of this chapter;
(o) Conduct written performance evaluations of the president pursuant to section six, article one-b of this chapter;
(p) Employ all faculty and staff at the institution under its jurisdiction. The employees operate under the supervision of the president, but are employees of the governing board;
(q) Submit to the commission or council, as appropriate, any data or reports requested by the commission or council, as appropriate, within the time frame set by the commission or council;
(r) Enter into contracts or consortium agreements with the public schools, private schools or private industry to provide technical, vocational, college preparatory, remedial and customized training courses at locations either on campuses of the state institutions of higher education or at off- campus locations in the institution's responsibility district. To accomplish this goal, the boards may share resources among the various groups in the community;
(s) Provide and transfer funding funds and property to certain corporations pursuant to section ten, article twelve of this chapter;
(t) Delegate, with prescribed standards and limitations, the part of its power and control over the business affairs of the institution to the president in any case where it considers the delegation necessary and prudent in order to enable the institution to function in a proper and expeditious manner and to meet the requirements of its master plan and compact. If a governing board elects to delegate any of its power and control under this subsection, it shall enter the delegation in the minutes of the meeting when the decision was made and shall notify the commission or council, as appropriate. Any delegation of power and control may be rescinded by the appropriate governing board, the commission or council, as appropriate, at any time, in whole or in part, except that the commission may not revoke delegations of authority made by the governing boards board of Marshall University or West Virginia University; as they relate to the state institutions of higher education known as Marshall University and West Virginia University;
(u) Unless changed by the commission or the council, as appropriate, continue to abide by existing rules setting forth standards for acceptance of accepting advanced placement credit for the institution under its jurisdiction. Individual departments at a state institution of higher education, may, upon with approval of the institutional faculty senate, may require higher scores on the advanced placement test than scores designated by the governing board when the credit is to be used toward meeting a requirement of the core curriculum for a major in that department;
(v) Consult, cooperate and work coordinate with the State Treasurer and the State Auditor to update as necessary and maintain an efficient and cost-effective system for the financial management and expenditure of appropriated and nonappropriated revenue at the institution under its jurisdiction. that ensures The system shall ensure that properly submitted requests for payment be are paid on or before the due date but, in any event, within fifteen days of receipt in the State Auditor's office;
(w) In consultation with the appropriate chancellor and the Secretary of the Department of Administration, develop, update as necessary and maintain a plan to administer a consistent method of conducting personnel transactions, including, but not limited to, hiring, dismissal, promotions, changes in salary or compensation and transfers at the institution under its jurisdiction. Each personnel transaction shall be accompanied by the appropriate standardized system or forms, as appropriate, which shall be submitted to the respective governing board and the Department of Finance and Administration:
(1) Not later than July 1, 2012, the Department of Administration shall make available to each governing board the option of using a standardized electronic system for these personnel transactions.
(2) The Secretary of the Department of Administration may suspend a governing board's participation in the standardized electronic system if he or she certifies to the Governor that the governing board has failed repeatedly and substantially to comply with the department's policies for administering the electronic system;
(x) Notwithstanding any other provision of this code to the contrary, transfer funds from any account specifically appropriated for its use to any corresponding line item in a general revenue account at any agency or institution under its jurisdiction as long as the transferred funds are used for the purposes appropriated;
(y) Transfer funds from appropriated special revenue accounts for capital improvements under its jurisdiction to special revenue accounts at agencies or institutions under its jurisdiction as long as the transferred funds are used for the purposes appropriated in accordance with article nineteen of this chapter;
(z) Notwithstanding any other provision of this code to the contrary, acquire legal services that are necessary, including representation of the governing board, its institution, employees and officers before any court or administrative body. The counsel may be employed either on a salaried basis or on a reasonable fee basis. In addition, the governing board may, but is not required to, call upon the Attorney General for legal assistance and representation as provided by law; and
(aa) Contract and pay for disability insurance for a class or classes of employees at a state institution of higher education under its jurisdiction.
§18B-2A-8. Additional powers and duties of governing boards.

(a) The governing board of a state institution of higher education is granted the additional powers and assigned the associated duties and authorities pursuant to this section previously granted and assigned to the state institutions of higher education known as the governing boards of Marshall University and West Virginia University, subject to the following: if
(1) The institutional operating budgets of all institutions to which this section applies have achieved a level of funding comparable with, but not less than ninety percent of, their respective peers, as established pursuant to section three, article one-a of this chapter;(2) the commission or council, as appropriate, approves granting the powers and assigning the duties and authorities to that institution governing board. and
(3) The powers, duties and authorities may not be granted to any institution prior to the first day of July, two thousand twelve.
(b) The powers and duties and authorities that may be granted and assigned pursuant to this section are those provided in the following:
(1) Section four-a, article six, chapter five of this code;
(2) Section two, article one, chapter five-g of this code;
(3) Section twelve-b, article one, chapter twelve of this code;
(4) (1) Sections five, six and seven, and eight, article three, chapter twelve of this code;
(5) Sections three and six, article one of this chapter;
(6) Section two, article one-a of this chapter;
(7) Section four, article one-b of this chapter;
(8) Sections three and four of this article;
(9) (2) Sections Section two and three, article three of this chapter;
(10) (3) Sections five, five-a, six and seven, article four of this chapter;
(11) (4) Sections three, four, Section seven and nine, article five of this chapter; and
(12) (5) Sections one and Section six-a, article ten of this chapter.
(c) This section does not apply to any community and technical college.
(c) Additional powers and duties related to purchasing -- The powers and duties granted and assigned to the governing boards of Marshall University and West Virginia University by section four, article five of this chapter are extended to the governing boards of all other state institutions of higher education under the following conditions:
(1) The commission and council shall conduct a study to determine the capacity of each governing board under their respective jurisdictions to implement the additional powers and carry out the additional assigned duties related to purchasing;
(2) Based upon the findings of the study, the commission and council shall approve the governing boards under their respective jurisdictions that they determine have the capacity to exercise the powers and carry out the assigned duties pursuant to section four, article five of this chapter; and
(3) The commission and council shall report their findings together with a list of the governing boards they each have approved to the Legislative Oversight Commission on Education Accountability by December 1, 2011.
(d) The commission and council have the power and the duty to monitor participation and provide technical assistance, as requested or required, to governing boards under their respective jurisdictions and to limit or rescind exercise of the powers, in whole or in part, granted by this section to a governing board if, in the sole determination of the commission or council, as appropriate, that action is warranted.
ARTICLE 2B. WEST VIRGINIA COUNCIL FOR COMMUNITY AND TECHNICAL COLLEGE EDUCATION.

§18B-2B-3. West Virginia Council for Community and Technical College Education; supervision of chancellor; chief executive officer.

(a) There is continued the West Virginia Council for Community and Technical College Education. The council has all the powers and duties assigned by law to the joint commission for vocational--technical-occupational education prior to the effective date of this section July 1, 2001, and such all other powers and duties as may be assigned by law.
(b) The council shall employ a chancellor for community and technical college education. The chancellor serves as chief executive officer of the council at the will and pleasure of the council. The chancellor shall be compensated at a level set by the council not to exceed eighty percent of the annual salary of the chancellor for higher education average annual salary of chief executive officers of the state systems of community and technical colleges in the states that comprise the membership of the Southern Regional Education Board.
(1) The vice chancellor for community and technical college education and workforce development, as the current chief executive officer of the council, shall continue in such capacity upon the effective date of this section, and shall be the chancellor for community and technical college education.
(A) The council shall conduct a written performance evaluation of the chancellor one year after the effective date of this section. The council shall report the results of the evaluation to the Legislative Oversight commission on education accountability during the legislative interim meeting period following the evaluation.
(B) After reviewing the evaluation, the council shall make a determination by vote of its members on continuing employment and compensation level for the chancellor.
(C) After the initial contract period, (c) The council shall conduct written performance evaluations of the chancellor annually and may offer the chancellor a contract of longer term, but not to exceed three years. At the end of each contract period, the council shall review the evaluations and make a determination by vote of its members on continuing employment and level of compensation.
(D) (d) When a vacancy occurs in the position of chancellor, the council shall enter into an initial employment contract for one year with the candidate selected to fill the vacancy. At the end of the initial period, and each contract period thereafter, the council shall make a determination by vote of its members on continuing employment and compensation level for the chancellor and shall continue thereafter as set forth in paragraph (C) of this subdivision review the evaluations and make a determination by vote of its members on continuing employment and compensation level for the chancellor.
(2) (e) The chancellor individual who was serving as Vice Chancellor for Community and Technical College Education and Workforce Development and who became chancellor effective March 13, 2004, maintains all benefits of employment held, accrued and afforded as the Vice Chancellor for Community and Technical College Education and Workforce Development prior to March 13, 2004, Such These benefits include, but are not limited to, retirement benefits, continued membership in the same retirement system, any insurance coverage and sick and annual leave. For the purposes of leave conversion established in section thirteen, article sixteen, chapter five of this code, the chancellor is not a new employee and the prohibition on conversion does not apply if the chancellor was eligible for leave conversion while serving as vice chancellor. on the day preceding the effective date of this section. On the effective date of this section for the purpose of section thirteen, article sixteen, chapter five of this code, the chancellor:
(A) Maintains all sick and annual leave accrued, and all rights to convert the leave that had been accrued as vice chancellor; and
(B) Continues to maintain his or her status for eligibility under the provisions and application of said section as applied while serving as vice chancellor on the day preceding the effective date of this section.
ARTICLE 3. ADDITIONAL POWERS AND DUTIES OF GOVERNING BOARDS.
§18B-3-1. Legislative findings, purpose; intent; definition.
(a) The Legislature finds that an effective and efficient system of doctoral-level education is vital to providing for the economic well-being of the citizens of West Virginia and for accomplishing established state goals and objectives. As the only research and doctoral-granting public universities in the state, Marshall University and West Virginia University are major assets to the citizens of West Virginia and must be an integral part of any plan to strengthen and expand the economy.
(b) The Legislature further finds that these two institutions must compete in both a national and global environment that is rapidly changing, while they continue to provide high quality education that is both affordable and accessible and remain accountable to the people of West Virginia for the most efficient and effective use of scarce resources.
(c) The Legislature further finds that Marshall University and West Virginia University, under the direction of their respective governing boards, have sufficient staff and internal expertise to may manage operational governance of their institutions in an efficient and accountable manner and can may best fulfill their public missions when their governing boards are given flexibility and autonomy sufficient to meet state goals, objectives and priorities established in this article, and in section one-a, article one and article one-d of this chapter.
(d) Therefore, the purposes of this article include, but are not limited to, the following:
(1) Enhancing the competitive position of Marshall University and West Virginia University in the current environment for research and development;
(2) Providing the governing boards of these institutions with operational flexibility and autonomy in certain areas, including tools to promote economic development in West Virginia;
(3) Encouraging the development of research expertise in areas directly beneficial to the state; and
(4) Focusing the attention and resources of the governing boards on state goals, objectives and priorities to enhance the competitive position of the state and the economic, social and cultural well- being of its citizens; and
(5) Providing additional autonomy and operational flexibility and assigning certain additional responsibilities to governing boards of other state institutions of higher education.
(e) The following terms wherever used or referred to in this chapter have the following meaning, unless a different meaning plainly appears from the context:
(1) 'State institution of higher education known as Marshall University' means the doctoral- granting research institution and does not include Marshall Community and Technical College; and
(2) 'State institution of higher education known as West Virginia University' means the doctoral-granting research institution. and does not include any of the following:
(A) The regional campus known as West Virginia University Institute of Technology;
(B) The administratively linked institution known as the Community and Technical College at West Virginia University Institute of Technology; and
(C) The regional campus known as West Virginia University at Parkersburg.
(f) (e) The governing boards of Marshall University and West Virginia University each have the power and the obligation to perform functions, tasks and duties as prescribed by law and to exercise their authority and carry out their responsibilities in a manner that is consistent with and not in conflict with the powers and duties assigned by law to the West Virginia council for Community and Technical College Education and the Higher Education Policy commission.
(g) (f) While the governing boards of Marshall University and West Virginia University, respectively, may choose to delegate powers and duties to the their respective presidents of the state institutions of higher education known as Marshall University and West Virginia University pursuant to subsection (s), section four, article two-a of this chapter, ultimately, it is they who are accountable to the Legislature, the Governor and the citizens of West Virginia for meeting the established state goals, objectives and priorities set forth in this article, and in section one-a, article one and article one- d of this chapter. Therefore, it is the intent of the Legislature that grants of operational flexibility and autonomy be are made directly to the governing boards and are not grants of operational flexibility and autonomy to the presidents president of these institutions an institution.
§18B-3-3. Relationship of governing boards to the commission and the council.
(a) Relationship between the commission and the governing boards. --
(1) The commission functions as a state-level coordinating board exercising its powers and duties in relation to the governing boards of Marshall University and West Virginia University only as specifically prescribed by law;
(2) The primary responsibility of the commission is to work collaboratively with the governing boards to research, develop and propose policy that will achieve the established goals, and objectives, and priorities set forth in this chapter and chapter eighteen-c of this code; and
(3) The commission has specific responsibilities powers and duties which include, but are not limited to, the following:
(A) Advocating for public higher education at the state level; and
(B) Jointly with the council, implementing the classification and compensation system established by articles seven, eight, nine and nine-a of this chapter; and
(B) (C) Collecting and analyzing data, researching, developing recommendations, and advising the Legislature and the Governor on broad policy initiatives, use of incentive funding, national and regional trends in higher education and issues of resource allocation involving multiple governing boards.
(b) Relationship between the council and the governing boards. -- (1) The council maintains all powers and duties assigned to it by law or policy rule relating to the institution known as Marshall Community and Technical College, the administration known as The Community and Technical College at West Virginia University Institute of Technology and the institution known as West Virginia University at Parkersburg community and technical colleges as defined in section two, article one of this chapter;
(2) The council functions as a coordinating board for the institutions under its jurisdiction which make up the statewide network of independently-accredited community and technical colleges. In addition to recognizing the authority assigned by law to the council and abiding by rules duly promulgated by the council relating to the community and technical colleges, it is the responsibility of the governing boards of Marshall University and West Virginia University to shall exercise their authority and carry out their responsibilities in a manner that is consistent with and complementary to the powers and duties assigned by law or policy rule to the community and technical colleges or to the council;
(c) The governing boards shall work collaboratively with the commission, the council and their staff to provide any and all information requested by the commission or the council in an appropriate format and in a timely manner.
§18B-3-4. Duty of governing boards to address state priorities.
(a) The expertise of faculty and graduate students at the state institutions of higher education known as Marshall University and West Virginia University is important to every citizen of this state. It is the responsibility of the governing boards to channel this expertise into research and analysis that will yield measurable benefits to the citizens of West Virginia. Therefore, in addition to the goals, for post-secondary education objectives and priorities established in section one-a, article one and article one-d of this chapter and goals established elsewhere in this code, it is the responsibility of the governing boards in collaboration to concentrate attention and resources on certain specific state priorities that have a direct, positive impact on the economic, social and cultural well-being of the people of West Virginia. These priorities include, but are not limited to, the following:
(a) Priorities for Marshall University and West Virginia University in collaboration:
(1) Developing Regional Brownfield Assistance Centers pursuant to section seven, article eleven of this chapter;
(2) Performing professional development-related research and coordinating the delivery of professional development to educators in the public schools of the state pursuant to the provisions of article two, chapter eighteen of this code; and
(3) Building subject matter expertise in public school education finance, including mastery of the theories and concepts used in developing formulas to provide state-level financial support to public education. and
(4) Researching and proposing cost-efficient methods to the Legislature for governing boards other than Marshall University and West Virginia University to dispose of obsolete computers and computer-related equipment.
(b) The Legislature may, but is not required to, make additional appropriations for the benefit of the state institutions of higher education known as Marshall University and West Virginia University to assist them in fulfilling the purposes set forth in subsection (a) of this section.
(c) Additional priorities for governing boards:
(c) (d) In addition to the priorities established in subsection (a) of this section, each governing board under the jurisdiction of the commission separately shall focus resources and attention on improving their its graduation rates rate for full-time undergraduate students as a specific institutional priority. The graduation rate is measured as a percentage of the number of undergraduate students who obtain a degree within six years of the date of enrollment as full-time freshmen. The governing boards shall develop and implement plans to reach the following goals:
(1) Marshall University shall attain a graduation rate for full-time undergraduate students of forty percent by the first day of July, two thousand eight, and shall attain a graduation rate for full-time undergraduate students of forty-five percent by July 1, 2010.
(2) West Virginia University shall attain a graduation rate for full-time undergraduate students of sixty percent by the first day of July, two thousand eight, and shall attain a graduation rate for full- time undergraduate students of sixty-three percent by July 1, 2010.
(1) By July 1, 2015, the governing board of each state institution of higher education under the jurisdiction of the commission, including the governing boards of Marshall University and West Virginia University, shall attain a graduation rate for full-time undergraduate students that equals or exceeds the graduation rate of its peers established pursuant to section three, article one-a of this chapter.
(3) (2) The commission shall monitor and report annually by December 1, 2005, and annually thereafter, to the Legislative Oversight Commission on Education Accountability on the progress of the governing boards toward meeting the goals set forth in subdivisions (1) and (2) of this subsection.
ARTICLE 4. GENERAL ADMINISTRATION.
§18B-4-1. Employment of chancellors; designation of staff; offices.
(a) The council and commission each shall employ a chancellor to assist in the performance of their respective duties and responsibilities subject to the following conditions:
(1) Each chancellor serves at the will and pleasure of the hiring body.
(2) Neither chancellor may hold or retain any other administrative position within the system of higher education while employed as chancellor.
(3) Each chancellor is responsible for carrying shall carry out the directives of the body by whom employed and shall work collaborate with that body in developing policy options.
(4) The commission is responsible to the council and the Chancellor for Community and Technical College Education for providing services in areas essential to exercising the powers and duties assigned to the council by law. The commission may not charge the council any fee for the provision of these essential services. The service areas include, but are not limited to, legal services, research, technology, computing, finance and facilities, academic affairs, telecommunications, human resources, student services and any other general areas the council considers to be essential to the exercise of its legal authority. The services are provided under the general supervision of the Vice Chancellor for Administration.
(5) For the purpose of developing or evaluating policy options, the chancellors may request the assistance of the presidents and staff of the institutions employed by the governing boards under their respective jurisdictions.
(b) In addition to the staff positions designated in subdivision (4), subsection (a) of this section, and section five, article one-b of this chapter, the Vice Chancellor for Administration, employed pursuant to section two of this article, serves the offices of the chancellors to discharge jointly the duties and responsibilities of the council and commission.
(c) The Vice Chancellor for Health Sciences shall coordinate the West Virginia University School of Medicine, the Marshall University School of Medicine and the West Virginia School of Osteopathic Medicine.
(d) (c) Suitable offices for the Vice Chancellor of Administration, the Vice Chancellor for Human Resources and other staff shall be provided in Kanawha County.
§18B-4-2a. Employment of vice chancellor for human resources; powers and duties generally; staff; office.

(a) By and with the advice and consent of the council for community and technical college education, the commission shall employ a Vice Chancellor for Human Resources who may not be dismissed without the consent of the council. The person employed as senior director of human resources by the commission on January 1, 2011, becomes the Vice Chancellor for Human Resources on the effective date of this section. Thereafter, any vacancy occurring in this position shall be filled in accordance with this section.
(b) The successful candidate for the position of vice chancellor provides vision, leadership and direction to ensure the human resources system for employees of the commission, council and governing boards is effective, efficient and aligned with industry best practices. The successful candidate possesses the following minimum qualifications:
(1) A master's degree in human resources or a related field; and
(2) Thorough knowledge of and experience administering employment laws and regulations, recruiting and selection techniques, employee relations techniques and methodologies, legal reporting and compliance requirements.
(c) The Vice Chancellor, in consultation with the chancellors, performs functions, tasks and responsibilities necessary to carry out the policy directives of the council and commission and any other duties prescribed by law. The Vice Chancellor oversees and monitors all issues related to the personnel system for higher education employees and provides technical support to organizations as directed or requested on all issues related to the design, development, implementation and administration of the personnel system established by this chapter and by duly promulgated rules.
(d) The Vice Chancellor supervises employees at the commission offices involved in human resources functions, including the professional, administrative, clerical and other employees necessary to carry out assigned powers and duties. In consultation with the Vice Chancellor for Administration and the chancellors, the Vice Chancellor shall delineate staff responsibilities as considered desirable and appropriate.
(e) The Vice Chancellor provides support to the chancellors and organizations on a highly diverse range of issues including assisting them to develop a culture of constant improvement in a rapidly changing, complex market. Duties of the position include, but are not limited to, the following:
(1) Developing and implementing business-related initiatives involving organizational design, labor cost management, executive recruitment and compensation, leadership and management development, human resources data and technology, and compensation and benefits programs;
(2) Chairing the Job Classification Committee and the Compensation Planning and Review Committee established by sections four, and five, article nine-a of this chapter.
(3) Assuming responsibility for coordinating compensation and benefits programs for all employees, including designing these programs, and for supporting each higher education organization in implementing the programs;
(4) Maintaining consistent human resources information systems and selecting and supervising benefits consultants, brokers, trustees and necessary legal assistants;
(5) Maintaining the classification system by providing for regular review of jobs to determine whether the current job description accurately reflects the duties and responsibilities and whether the job is properly classified or needs to be modified or deleted. Every job shall be reviewed at least once within each five-year period;
(6) Ensuring that market comparison studies are conducted for each class of employees and providing a report annually to each organization on the status of relative market equity among the employee classifications.
(7) Carrying out the following duties related to training and development:
(A) Analyzing and determining training needs of organization employees and formulating and developing plans, procedures and programs to meet specific training needs and problems. Successful completion of these tasks requires the vice chancellor to work closely with and communicate regularly with the training and development coordinators employed by each organization;
(B) Developing, constructing, maintaining and revising training manuals and training aids or supervising development of these materials by outside suppliers;
(C) Planning, conducting, and coordinating management inventories, appraisals, placement, counseling and training;
(D) Coordinating participation by all employees in training programs developed internally or provided by outside contractors; and
(E) Administering and analyzing an annual training and development needs survey. The survey may coincide with the completion of the annual performance review process.
(8) Conducting performance reviews of personnel who administer human resources functions at each organization in relation to best practices pursuant to articles seven, eight, nine and nine-a of this chapter and rules of the commission and council. Human resources personnel at each organization shall be evaluated at least once within each three-year period. The Vice Chancellor shall analyze the results of these evaluations and target training and professional development to identified areas of deficiency.
(f) To assist in performing the duties of vice chancellor, the commission, with the consent of the council, shall employ a generalist/manager who is well qualified in the field of human resources. The position reports to the Vice Chancellor for Human resources and shall be filled on a permanent basis by September 1, 2011. The successful candidate is responsible for a wide range of human resources management, reporting and development activities and works collaboratively with governing boards and their employees at all levels.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-9. Higher education fiscal responsibility.
(a) The governing boards of Marshall University and West Virginia University each shall ensure the fiscal integrity of its their operations using best business and management practices.
(1) The practices include at least the following:
(A) Complying with Generally Accepted Accounting Principles of the Governmental Accounting Standards Board (GAMP); and the Generally Accepted Government Auditing Standards of the Government Accountability Office (GAGA);
(B) Operating without material weakness in internal controls as defined by GAMP, GAGA and, where applicable, the Office of Management and Budget (OMB) Circular A-133;
(C) Maintaining annual audited financial statements with an unqualified opinion;
(D) Presenting Preparing annual audited financial statements to the respective governing board as coordinated and directed by the commission and council, respectively, and as the commission requires to complete the higher education fund audit;
(E) Maintaining quarterly financial statements certified by the chief financial officer of the institution; and
(F) Implementing best practices from Sarbanes-Oxley, or adopting the applicable tenets of Sarbanes-Oxley as best practices.
(2) Marshall University, West Virginia University Each governing board and the any affiliated research corporation of each (A) shall comply with the OMB Circular A-133 annual grant award audit requirements and (B) is are exempt from the provisions of section fourteen, article four, chapter twelve of this code.
(3) Within thirty days of the completion of the financial audit report, the governing boards of Marshall University and West Virginia University each shall furnish to the commission or council, respectively, the Legislative Oversight Commission on Education Accountability and the Joint Committee on Government and Finance copies of the annual audited financial statements.
(b) The commission or and council, as appropriate each, shall ensure the fiscal integrity of any electronic process conducted at its offices and at all other institutions using by the governing boards under its respective jurisdiction by applying best business and management practices.
(c) Marshall University, West Virginia University the council and the commission To the maximum extent practicable, each higher education organization shall implement a process whereby, to the maximum extent practicable, provide for its employees of Marshall University, West Virginia University, the Council, Commission and all other state institutions of higher education to receive their wages via electronic transfer or direct deposit.
(d) Notwithstanding the provisions of section ten-a, article three, chapter twelve of this code, and except as otherwise provided in this subsection, the amount of any purchase made with any other provision of this code to the contrary, a purchasing card may be used by the council, the commission or any other a governing board of a state institution of higher education may not exceed five thousand dollars to make any payment authorized by the Auditor, including regular routine payments and travel and emergency payments. Payments are set at an amount to be determined by the Auditor.
(1) Subject to approval of the Auditor, any an emergency payment and any a routine, regularly scheduled payment, including, but not limited to, utility payments, contracts and real property rental fees, may exceed this limit by an amount to be determined by the Auditor.
(2) The council, commission and any a governing board of a state institution of higher education may use a purchasing card for travel expenses directly related to the job duties of the traveling employee. Where approved by the Auditor, such the expenses may exceed $5000 by an amount to be determined by the Auditor. Traveling expenses may include registration fees and airline and other transportation reservations, if approved by the president of the institution. Traveling expenses may not include fuel or food purchases except, the state institutions of higher education known as Marshall University and West Virginia University may include in traveling expenses the purchase purchases of fuel and food.
(3) The commission, council, and governing boards state institutions known as Marshall University and West Virginia University each shall maintain one purchasing card for use only in a situation declared an emergency by the appropriate chancellor or the institution's president. The Council, Commission and all other institutions shall maintain one purchase card for use only in a situation declared an emergency by the president of the institution and approved by the appropriate chancellor. Emergencies may include, but are not limited to, partial or total destruction of a campus facility; loss of a critical component of utility infrastructure; heating, ventilation or air condition failure in an essential academic building; loss of campus road, parking lot or campus entrance; or a local, regional, or national emergency situation that has a direct impact on the campus.
(e) Notwithstanding the provisions of section ten-f, article three, chapter twelve of this code, or any other provision of this code or law to the contrary, the Auditor shall accept any receiving report submitted in a format utilizing electronic media. The Auditor shall conduct any audit or investigation of the council, commission or any institution governing board at its own expense and at no cost to the council, commission or institution governing board.
(f) The council and the commission each shall maintain a rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code. The rule shall provide for institutions governing boards individually or cooperatively to maximize their use of any of the following purchasing practices that are determined to provide a financial advantage:
(1) Bulk purchasing;
(2) Reverse bidding;
(3) Electronic marketplaces; and
(4) Electronic remitting.
(g) Each institution governing board shall may establish a consortium with at least one other institution governing board, in the most cost-efficient manner feasible, to consolidate the following operations and student services:
(1) Payroll operations;
(2) Human resources operations;
(3) Warehousing operations;
(4) Financial transactions;
(5) Student financial aid application, processing and disbursement;
(6) Standard and bulk purchasing; and
(7) Any other operation or service appropriate for consolidation as determined by the council or commission.
(h) An institution A governing board may charge a fee to the governing board of each institution for which it provides a service or performs an operation. The fee rate shall be in the best interest of both the institution being served and the governing board providing institution the service. as approved by the council and commission.
(i) Any community and technical college, college and university A governing board may provide the services authorized by this section for the benefit of any governmental body or public or private institution.
(j) Each institution governing board shall strive to minimize its number of low-enrollment sections of introductory courses. To the maximum extent practicable, institutions governing boards shall use distance learning to consolidate the course sections. Marshall University, West Virginia University, The council and commission shall report the progress of reductions as requested by the Legislative Oversight Commission on Education Accountability.
(k) An institution A governing board shall use its natural resources and alternative fuel resources to the maximum extent feasible. The institution governing board:
(1) May supply the resources for its own use and for use by any the governing board of any other institution;
(2) May supply the resources to the general public at fair market value;
(3) Shall maximize all federal or grant funds available for research regarding alternative energy sources; and
(4) May develop research parks to further the purpose of this section and to expand the economic development opportunities in the state.
(l) Any cost-savings realized or fee procured or retained by an institution a governing board pursuant to implementation of the provisions of this section is retained by the institution governing board.
(m) The provisions of subsection (b) of this section do not apply to the state institutions known as Marshall University and West Virginia University. Each governing board is authorized, but not required, to comply with the provisions of implement subsections (f), (g) and (h) of this section.
(1) The governing boards of Marshall University and West Virginia University, respectively, each shall promulgate a rule on purchasing procedures pursuant to the provisions of section six, article one of this chapter. Neither institution is subject to the rules required by subsection (f) of this section.
(2) If either a governing board elects to implement the provisions of said subsection (g) of this section, the following conditions apply:
(A) (1) The governing board makes the determination regarding any additional operation or service which is appropriate for consolidation without input from the council or commission;
(B) (2) The governing board sets the fee charged to any the governing board of the institution for which it provides a service or performs an operation. The fee rate shall be in the best interest of both the institution being served and the governing board providing institution the service but it and is not subject to approval by the council or commission; and
(C) (3) The governing board may not implement the provisions of this subdivision in a manner which supercedes the requirements established in section twelve, article three-c of this chapter.
(n) The governing boards of Marshall University and West Virginia University, respectively, each shall promulgate a rule on purchasing procedures in accordance with section six, article one of this chapter.
ARTICLE 7. PERSONNEL GENERALLY.
§18B-7-1. Legislative intent and purpose.
(a) The intent of the Legislature in enacting this article and articles eight, nine and nine-a of this chapter is to establish a state-wide, integrated human resources structure capable of, but not limited to, meeting the following objectives:
(1) Providing benefits to the citizens of the State of West Virginia by supporting the public policy agenda as articulated by state policymakers;
(2) Assuring fiscal responsibility by making the best use of scarce resources;
(3) Promoting fairness, accountability, credibility, transparency and a systematic approach to progress (FACTS) in personnel decision-making;
(4) Reducing, or, wherever possible, eliminating arbitrary and capricious decisions affecting employees of higher education organizations as defined in section two, article nine-a of this chapter;
(5) Creating a stable, self-regulating human resources system capable of evolving to meet changing needs;
(6) Providing for institutional flexibility with meaningful accountability;
(7) Adhering to federal and state laws;
(8) Adhering to duly promulgated and adopted rules; and
(9) Implementing best practices throughout the state higher education system.
(b) To accomplish these goals, the Legislature encourages organizations to pursue a human resources strategy which provides monetary and nonmonetary returns to employees in exchange for their time, talents and efforts to meet articulated goals, objectives and priorities of the state, the commission and council, and the organization. The system should maximize the recruitment, motivation and retention of highly qualified employees, ensure satisfaction and engagement of employees with their jobs, ensure job performance and achieve desired results.
§18B-7-2. Definitions.
For the purposes of this article and articles eight, nine and nine-a of this chapter, the following words have the meanings ascribed to them unless the context clearly indicates a different meaning:
(a) 'Benefits' means programs that an employer uses to supplement the cash compensation of employees and includes health and welfare plans, retirement plans, pay for time not worked and other employee perquisites.
(b) 'Compensation' means cash provided by an employer to an employee for services rendered.
(c) 'Compensatory time' and 'compensatory time off' mean hours during which the employee is not working, which are not counted as hours worked during the applicable work week or other work period for purposes of overtime compensation and for which the employee is compensated at the employee's regular rate of pay.
(d) 'Employee classification' or 'employee class' means those employees designated as classified employees; nonclassified employees, including presidents, chief executives and top level administrators and faculty as these terms are defined in this article and articles eight, nine and nine-a of this chapter.
(e) 'Health and welfare benefit plan' means an arrangement which provides any of the following: Medical, dental, visual, psychiatric or long-term health care, life insurance, accidental death or dismemberment benefits, disability benefits or comparable benefits.
(f) 'Relative market equity' means the relative market status of each employee classification at an organization falls within five percent of all other employee classifications within the organization for the preceding three-year period.
(g) 'Relative market status' means the calculated relationship between the average salary of each employee classification and its peer group.
§18B-7-3. Seniority for full-time classified personnel; seniority to be observed in reducing workforce; preferred recall list; renewal of listing; notice of vacancies.
(a) Definitions for terms used in this section have the meanings ascribed to them in section two, article one of this chapter and section two, article nine of this chapter, except that, unless clearly noted otherwise, this section applies only to an employee:
(1) Who is classified and whose employment, if continued, accumulates to a minimum total of one thousand forty hours during a calendar year and extends over at least nine months of a calendar year; or
(2) Who is transferred involuntarily to a position in nonclassified status for which he or she did not apply. Any classified employee involuntarily transferred to a position in nonclassified status may exercise the rights set out in this section only for positions equivalent to or lower than the last job class the employee held.
(b) All decisions by an organization or its agents concerning reductions in workforce of full- time classified employees, whether by temporary furlough or permanent termination, shall be made in accordance with this section.
(1) For layoffs by classification for reason of lack of funds or work, or abolition of position or material changes in duties or organization and for recall of employees laid off, consideration shall be given to an employee's seniority as measured by permanent employment in the service of the state system of higher education.
(2) If the organization desires to lay off a more senior employee, it shall demonstrate that the senior employee cannot perform any other job duties held by less senior employees of that organization in the same job class or any other equivalent or lower job class for which the senior employee is qualified. If an employee refuses to accept a position in a lower job class, the employee retains all rights of recall provided in this section.
(3) If two or more employees accumulate identical seniority, the priority is determined by a random selection system established by the employees and approved by the organization.
(c) Each employee laid off during a furlough or reduction in workforce is placed upon a preferred recall list and is recalled to employment by the organization on the basis of seniority.
(1) An employee's listing with an organization remains active for a period of one calendar year from the date of termination or furlough or from the date of the most recent renewal. If an employee fails to renew the listing with the organization, the employee's name may be removed from the list.
(2) An employee placed upon the preferred recall list shall be recalled to any position opening by the organization within the classifications in which the employee had previously been employed or to any lateral position for which the employee is qualified.
(3) An employee on the preferred recall list does not forfeit the right to recall by the organization if compelling reasons require the employee to refuse an offer of reemployment by the organization.
(d) The organization shall notify all employees maintaining active listings on the preferred recall list of all position openings that periodically exist.
(1) The notice shall be sent by certified mail to the last known address of the employee. It is the duty of each employee listed to notify the organization of any change in address and to keep the listing with the organization current.
(2) A position opening may not be filled by the organization, whether temporary or permanent, until all employees on the preferred recall list have been properly notified of existing vacancies and have been given an opportunity to accept reemployment.
(e) A nonexempt classified employee is one to whom the provisions of the federal Fair Labor Standards Act, as amended, apply. A nonexempt classified employee, who applies and meets the minimum qualifications for a nonexempt job opening at the organization where currently employed, whether the job is a lateral transfer or a promotion, shall be transferred or promoted before a new person is hired.
(1) This subsection does not apply if the hiring is affected by mandates in affirmative action plans or the requirements of Public Law 101-336, the Americans with Disabilities Act.
(2) This subsection applies to any nonexempt classified employee, including one who has not accumulated a minimum total of one thousand forty hours during the calendar year and one whose contract does not extend over at least nine months of a calendar year.
(3) If more than one qualified, nonexempt classified employee applies, the best-qualified nonexempt classified employee is awarded the position. In instances where the classified employees are equally qualified, the nonexempt classified employee with the greatest amount of continuous seniority at that organization is awarded the position.
(f) In addition to any other information required, applications for employment by personnel governed by this section shall include each applicant's social security number.
(g) Regardless of the level of seniority for an employee, for the purposes of this section in the case of a reduction in force:
(1) An employee at an organization under the jurisdiction of the council may not displace an employee of an organization under the jurisdiction of the commission.
(2) An employee at an organization under the jurisdiction of the commission may not displace an employee of an organization under the jurisdiction of the council.
(3) An employee performing a dual service for a formerly administratively linked community and technical college and a former sponsoring institution under the jurisdiction of the commission is an employee of the institution under the jurisdiction of the commission if that institution receives a fee from the community and technical college for the service performed by the employee.
§18B-7-4. Supplemental health and welfare benefit plans.
(a) An organization may contract for supplemental health and welfare benefit plans for any or all of its employees in addition to the benefits the employees otherwise receive.
(b) An organization may make additional periodic deductions from the salary payments due employees in the amount they are required to contribute for any supplemental health and welfare plan.
§18B-7-5. Supplemental and additional retirement plans for employees; payroll deductions; authority to match employee contributions; retroactive curative and technical corrective action.

(a) Any reference in this code to the 'additional retirement plan' relating to state higher education employees, means the 'higher education retirement plan' provided in this section. Any state higher education employee participating in a retirement plan upon the effective date of this section continues to participate in that plan and may not elect to participate in any other state retirement plan. Any retirement plan continues to be governed by the provisions of law applicable on the effective date of this section.
(b) The commission, on behalf of the council, governing boards and itself, shall contract for a retirement plan for their employees, to be known as the 'Higher Education Retirement Plan'. The commission, council and governing boards shall make periodic deductions from the salary payments due employees in the amount they are required to contribute to the Higher Education Retirement Plan, which deductions shall be six percent.
(c) The commission, council and governing boards may contract for supplemental retirement plans for any or all of their employees to supplement the benefits employees otherwise receive. The commission, council and governing boards may make additional periodic deductions from the salary payments due the employees in the amount they are required to contribute for the supplemental retirement plan.
(d) An organization, by way of additional compensation to their employees, shall pay an amount, which, at a minimum, equals the contributions of the employees into the higher education retirement plan from funds appropriated to the commission, council or governing board for personal services.
(e) As part of an overall compensation plan, the commission, council or a governing board, each at its sole discretion, may increase its contributions to any employee retirement plan to an amount that exceeds the contributions of employees.
(f) Each participating employee has a full and immediate vested interest in the retirement and death benefits accrued from all the moneys paid into the Higher Education Retirement Plan or a supplemental retirement plan for his or her benefit. Upon proper requisition of a governing board, the commission or council, the Auditor periodically shall issue a warrant, payable as specified in the requisition, for the total contributions so withheld from the salaries of all participating employees and for the matching funds of the commission, council or governing board.
(g) Any person whose employment commences on or after July 1, 1991, and who is eligible to participate in the Higher Education Retirement Plan, shall participate in that plan and is not eligible to participate in any other state retirement system: Provided, That the foregoing provision does not apply to a person designated as a 21st Century Learner Fellow pursuant to section eleven, article three, chapter eighteen-a of this code. The additional retirement plan contracted for by the governing boards prior to July 1, 1991, remains in effect unless changed by the commission. Nothing in this section considers employees of the council or governing boards as employees of the commission, nor is the commission responsible or liable for retirement benefits contracted by, or on behalf of, the council or governing boards.
§18B-7-6. Continuing education and professional development.
(a) Each higher education organization shall establish and operate an employee continuing education and development program under a joint rule or rules promulgated by the commission and council in accordance with article three-a, chapter twenty-nine-a of this code. Funds allocated or made available for employee continuing education and development may be used to compensate and pay expenses for faculty or classified employees pursuing additional academic study or training to equip themselves better for their duties.
The rules shall encourage continuing education and staff development and shall require that employees be selected on a nonpartisan basis using fair and meaningful criteria which afford all employees opportunities to enhance their skills. These rules also may include reasonable provisions for the continuation or return of any faculty or classified employee receiving the benefits of the education or training, or for reimbursement by the state for expenditures incurred on behalf of the faculty member or classified employee.
(b) Subject to legislative appropriation therefor, the commission and council shall provide additional, regular, training and professional development for employees engaged in human resources-related activities at all organizations. The training and professional development:
(1) Shall be mandatory with appropriate consideration given to limiting travel demands on employees; and
(2) Shall be in addition to and may not supplant the training and professional development regularly provided to any class of employees by each organization prior to the effective date of this section.
§18B-7-7. Employment practices.
(a) Each governing board, with the advice and assistance of the staff council, shall promulgate and adopt a rule regarding the role of part-time classified employees. The rule shall discourage the hiring of part-time employees solely to avoid the payment of benefits or in lieu of full-time employees and shall provide all qualified classified employees who hold nine-month or ten-month contracts with the opportunity to accept part-time or full-time summer employment before new persons are hired for the part-time or full-time employment.
(b) Each governing board, with the advice and assistance of the staff councils and other groups representing classified employees, shall promulgate and adopt a rule in accordance with section six, article one of this chapter that discourages temporary, nonemergency, institutionally-imposed changes in an employee's work schedule; that maintains reasonable continuity in working schedules and conditions for employees; and that requires institutions to consider feasible and innovative ways to use the institution's classified employees most efficiently. These innovations may include, but are not limited to, flexibility in employee scheduling, job-sharing and four-day work weeks.
§18B-7-8. Reporting.
(a) Implementation reports. --
For the fiscal years commencing on July 1, 2011, and July 1, 2012, the commission and council jointly shall report to the Legislative Oversight Commission on Education Accountability once during each six-month period on their progress in designing, developing, implementing and administering the personnel classification and compensation system established by this article and articles eight, nine and nine-a of this chapter. The initial report is due December 1, 2011, and shall include, but is not limited to, the following information:
(1) A summary of findings generated by the human resources review conducted pursuant to section nine of this article;
(2) Documentation of professional staffing changes made in compliance with section two-a, article four of this chapter;
(3) A systematic plan, including a time line, for designing, developing, and implementing the classification and compensation system contained in this article and articles eight, nine and nine-a of this chapter;
(4) An explanation of the research design and time line for completing studies identified in section sixteen of this article;
(5) An assessment of progress made by the governing boards toward achieving full funding of the temporary classified employees' salary schedule pursuant to section three, article nine of this chapter;
(6) Detailed data disaggregated by organization and employee category or classification, comparing funding for salaries of faculty, classified employees and nonclassified employees as a percentage of the average funding for each of these classes or categories of employees among the organization's peers, in regional or national markets, as appropriate, and among similar organizations within the state systems of public higher education;
and
(7) Other data requested by the Legislature or considered appropriate by the commission or council.
(b) Annual personnel reports. --
(1) No later than December 1, 2013, and annually thereafter, the commission and council shall report to the Legislative Oversight Commission on Education Accountability addressing the following issues:
(A) Progress made by organizations toward achieving full funding of the temporary classified employees' salary schedule pursuant to section three, article nine of this chapter; and
(B) Detailed data disaggregated by organization and employee category or classification, comparing funding for salaries of faculty, classified employees and nonclassified employees as a percentage of the average funding for each of these classes or categories of employees among the organization's peers, in the state, region or national markets, as appropriate, and among similar organizations within the state systems of public higher education.
(2) The commission and council shall prepare a human resources report card summarizing the performance of organizations on key human resources measures. The report card shall be presented to the Legislative Oversight Commission on Education Accountability no later than December 1, 2012, and annually thereafter, and shall be made available to the general public. At a minimum, the human resources report card shall contain the following data:
(A) Human resources department metrics by organization:
(i) Number of human resources staff;
(ii) Ratio of human resources staff to total number of full-time equivalent employees;
(iii) Percentage of human resources staff functioning in supervisory roles and percentage in administrative roles;
(iv) Number of positions reporting to the head of human resources;
(v) Areas of human resources functions outsourced to external entities;
(vi) Total expenses per full-time equivalent employee;
(vii) Tuition revenue per full-time equivalent employee.
(B) Human resources expense data:
(i) Ratio of human resources expenses to operating expenses;
(ii) Ratio of human resources expenses to number of full-time equivalent employees; and
(iii) Total human resources expense per organization employee.
(C) Compensation data:
(i) Average amount of annual salary increase per full-time equivalent organization employee;
(ii) Total amount of organization employee salaries as a percent of operating expenses;
(iii) Total amount of organization employee benefit costs as a percent of cash compensation.
(D) System metrics:
(i) Comparisons of faculty salaries at each organization to market averages;
(ii) Comparisons of classified and nonclassified employee salaries at each organization to current market averages;
(E) An account of the total amount, type of training or professional development provided, the number of employees who participated and the overall cost of the training and professional development provided to employees pursuant to section six of this article; and
(F) Other measures the commission or council considers appropriate to assist policymakers in evaluating the degree of success in implementing best human resources practices by higher education organizations.
(c) Job classification system report. --
By July 1, 2014, and at least once within each five-year period thereafter, the commission and council jointly shall review the effectiveness of the system for classifying jobs and submit an in-depth report to the Legislative Oversight Commission on Education Accountability. The report shall include, but is not limited to, findings, recommendations and supporting documentation regarding the following job classification issues:
(A) The effectiveness of the point factor methodology and a determination of whether it should be maintained; and
(B) The status of the job evaluation plan, including the factors used to classify jobs or their relative values, and a determination of whether the plan should be adjusted.
(d) It is the responsibility of the head of human resources for each organization to prepare and submit to the president or chief executive officer all human resources data requested by the commission and council. The president or executive officer of each organization shall submit the requested data at times established by the commission and council.
(e) In meeting reporting requirements established by this article and articles eight, nine and nine-a of this chapter:
(1) The commission and council shall use the most recent data available and, as appropriate, shall benchmark it against national and regional markets or peer data; and
(2) With the exception of the semiannual implementation reports, the annual human resources report card and any other report designated as due no later than a date certain, the commission and council may combine two or more personnel reports if the dates on which they are due to the Legislature fall within a sixty-day period.
§18B-7-9. Human resources reviews.
(a) The commission and council jointly shall conduct an initial human resources review of each organization to be carried out, subject to legislative appropriation, by an external vendor possessing experience and expertise in conducting these reviews. The initial review shall be completed by October 1, 2011, and shall be designed to compare current human resources practices at each organization to best practices, to identify areas of strength or deficiency, to identify functions that should be the responsibility of the human resources department, but are incorrectly assigned or carried out by other offices within each organization, to assist in targeting employee training and development, to determine the degree to which organizations are adhering to state and federal laws related to human resources administration and to provide data necessary to guide policymakers in developing personnel rules and implementing the classification and compensation system.
(b) Following completion of the initial human resources review, the commission and council jointly shall conduct a systematic human resources review of each organization at least once within each five-year period.
(1) The review shall focus on correcting areas of deficiency identified by previous reviews, on compliance with statutory mandates contained in this article and articles eight, nine and nine-a of this chapter and on adherence to personnel rules of the commission and council.
(2) In the absence of special circumstances, the commission and council shall provide organizations with reasonable notice prior to conducting a human resources review and shall identify the subjects to be examined in the review.
§18B-7-10. Compensatory time off in lieu of overtime; written agreement; other conditions.
(a) Notwithstanding any provision of this code to the contrary, in lieu of overtime compensation, employees of higher education organizations may receive compensatory time off at a rate not less than one and one-half hours for each hour of employment. Employees may receive compensatory time only under the following conditions:
(1) The time is awarded pursuant to a written agreement between the employer and the employee arrived at before the work is performed. A written agreement may be modified at the request of the employer or employee, but under no circumstances may changes in the agreement deny an employee compensatory time already acquired;
(2) The time is recorded in the employer's record of hours worked; and
(3) The employee has not accrued compensatory time in excess of the prescribed limits.
(b) An employee may accrue up to four hundred eighty hours of compensatory time if the employee's work is a public safety activity, an emergency response activity or a seasonal activity. An employee engaged in other work may accrue up to two hundred forty hours of compensatory time. An employee who has accrued four hundred eighty or two hundred forty hours of compensatory time, as the case may be, shall be paid overtime compensation for additional hours of work. If compensation is paid to an employee for accrued compensatory time, the compensation shall be paid at the regular rate earned by the employee at the time the employee received the payment.
(c) If employment is terminated, an employee who has accrued compensatory time pursuant to this section, shall be paid for the unused compensatory time at a rate of compensation not less than the higher amount calculated using one of the following formulas:
(1) The average regular rate received by the employee during the first three years of the employee's employment; or
(2) The final regular rate received by the employee.
(d) An employee who has accrued compensatory time as authorized by this section, and who has requested the use of compensatory time, shall be permitted by the employer to use this time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operation of the employing agency. Compensatory time must be used within one year from the time it is accrued.
§18B-7-11. Employees designated as nonclassified; limits; exceptions; reports required.
(a) Notwithstanding any provision of this code to the contrary, by July 1, 2015, the percentage of personnel placed in the category of 'nonclassified' at a higher education organization may not exceed twenty percent of the total number of classified and nonclassified employees of that organization as those terms are defined in section two, article nine-a of this chapter and who are eligible for membership in a state retirement system of the State of West Virginia or other retirement plan authorized by the state. A higher education organization which has more than twenty percent of its employees placed in the nonclassified category as defined by this subsection on July 1, 2011, shall reduce the number of nonclassified employees to no more than twenty-five percent by July 1, 2013, and to no more than twenty percent by July 1, 2015, except as set forth in subsections (b) and (c) of this section.
(b) For the purpose of determining the ratio of nonclassified employees pursuant to this section, the following conditions apply:
(1) Employees of the commission and the chancellor for higher education and employees of the council and the chancellor for community and technical college education are considered as one organization;
(2) Organizations may count as faculty or classified employees, respectively, administrators who retain the right to return to faculty or classified employee positions; and
(3) Athletic coaches are excluded from calculation of the ratio. The commission and the council shall include consideration of this employee category in each review required by section nine of this article and shall monitor organizations' use of this category and include this information in the reports required by subsections (a) and (b), section eight of this article.
(c) An organization may place up to twenty-five percent of the total number of classified and nonclassified employees of that organization as defined by this section in the nonclassified category under the following conditions:
(1) The governing board of an institution votes to approve any percentage or fraction of a percentage number above twenty percent and seeks and receives the approval of the commission or council, as appropriate, before increasing the total above twenty percent.
(2) In the case of personnel employed by the commission and the council, the chancellors jointly shall agree to increase the percentage number or fraction of a number of nonclassified employees beyond twenty percent and shall recommend this action to their respective boards for approval.
(A) The commission and council each shall approve or disapprove the increase and shall include the vote, as well as details of the position and justification for placing the position in the nonclassified category, in its minute record.
(B) The number of nonclassified personnel may not be increased above twenty percent unless the increase is approved by both the commission and the council.
(2) Powers and duties of Commission and Council regarding nonclassified staff ratios. --
(A) It is the duty of the commission and council jointly to establish criteria for the purpose of making decisions on approving or disapproving requests by organizations to exceed the twenty percent limit for personnel placed in the nonclassified category;
(B) The commission and council shall provide technical assistance to organizations under their respective jurisdictions in collecting and interpreting data to ensure that they fulfill the requirements established by this section. Consideration of these issues shall be made part of each review required by section nine of this article and information from the review included in the reports required by subsections (a) and (b), section eight of this article;
(C) The chancellors shall monitor the progress of the organizations in meeting the deadlines established in this section and shall report periodically to the council and commission. The commission and council shall make a preliminary compliance report to the Legislative Oversight Commission on Education Accountability by September 1, 2013, and a final report on organization compliance to that body by September 1, 2015.
(D) Subject to a joint recommendation by the commission and the council and subsequent affirmative action by the Legislature to extend the authority beyond the specified date of termination, the authority of an organization to place more than twenty percent of its personnel in the nonclassified category pursuant to this section expires on July 1, 2016.
(d) The current annual salary of a nonclassified employee may not be reduced if his or her position is redefined as a classified position solely to meet the requirements of this section. If such a nonclassified employee is reclassified, his or her salary does not constitute evidence of inequitable compensation in comparison to other employees in the same paygrade.
§18B-7-12. Additional employment by mutual agreement; agreement to be filed with governing board.

In accordance with duly promulgated rules of the governing board and the commission or council, as appropriate, the president of an organization, or his or her designated representative, and a classified employee at the organization may agree mutually on duties to be performed by the employee in addition to those duties listed in the job description. The written agreement shall describe the additional duties to be performed, the length of time the agreement shall be in force and the additional compensation to be paid. These terms and conditions shall be agreed upon by the president and the classified employee and shall be signed by both parties to the agreement and filed with the appropriate governing board.
§18B-7-13. Probationary employment period; evaluation.
Each full-time classified employee hired by an organization shall serve an initial probationary period of six months. At the end of the probationary period, the employee shall receive a written evaluation of his or her performance. The employee's supervisor shall meet with the employee and explain the contents of the evaluation and whether the employee is being offered regular employment.
§18B-7-14. Higher education employees' catastrophic leave bank and leave transfer.
(a) For the purposes of this section, 'employee' means either of the following:
(1) A classified or nonclassified employee who is employed by a higher education governing board, by the commission or by the council; or
(2) A faculty member, as defined in section one, article eight of this chapter, who is eligible to accrue sick leave.
(b) An employee may donate sick and annual leave to a leave bank established and operated in accordance with subsection (d) of this section or directly to another employee in accordance with subsection (e) of this section. No employee may be compelled to donate sick or annual leave. Any leave donated by an employee pursuant to this section shall be used only for the purpose of catastrophic illness or injury as defined in subsection (c) of this section and shall reduce, to the extent of such donation, the number of days of annual or sick leave to which the employee is entitled.
(c) For the purpose of this section, a catastrophic illness or injury is one that is expected to incapacitate the employee and create a financial hardship because the employee has exhausted all sick and annual leave and other paid time off. Catastrophic illness or injury also includes an incapacitated immediate family member as defined by a governing board, the commission or the council, as appropriate, if this results in the employee being required to take time off from work for an extended period of time to care for the family member and if the employee has exhausted all sick and annual leave and other paid time off.
(d) A leave bank or banks may be established at each state institution of higher education, the commission or the council to which employees may donate either sick or annual leave. The bank or banks may be established jointly by the policy commission and the governing boards or may be established for the commission, the council, and each of the governing boards. Sick or annual leave may be deposited in the leave bank, and shall be reflected as a day-for-day deduction from the sick or annual leave balance of the depositing employee.
Donated leave may be withdrawn by any employee experiencing a catastrophic illness or injury when the following conditions are met:
(1) The president of the institution or the chancellor of the commission or the council, as appropriate, verifies that the employee is unable to work due to the catastrophic illness or injury; and
(2) The president of the institution or a chancellor, as appropriate, approves the withdrawal and provides written notice to the personnel office.
The withdrawal shall be reflected as a day-for-day addition to the leave balance of the withdrawing employee.
(e) Sick or annual leave may be donated to an employee experiencing a catastrophic illness or injury. The leave shall be donated at the request of the employee after appropriate verification that the employee is unable to work due to the catastrophic illness or injury as determined by the president of the institution or the appropriate chancellor. When transfer of sick or annual leave is approved by the president of the institution or the appropriate chancellor, any employee may donate sick or annual leave in one-day increments by providing written notice to the personnel office. Donations shall be reflected as a day-for-day deduction from the sick or annual leave balance of the donating employee. An employee receiving the donated sick or annual leave shall have any time which is donated credited to his or her account in one-day increments and reflected as a day-for-day addition to the leave balance of the receiving employee.
(f) Use of donated credits may not exceed a maximum of twelve continuous calendar months for any one catastrophic illness or injury.
(1) The total amount of sick or annual leave withdrawn or received may not exceed an amount sufficient to ensure the continuance of regular compensation and may not be used to extend insurance coverage pursuant to section thirteen, article sixteen, chapter five of this code.
(2) An employee withdrawing or receiving donations of sick or annual leave pursuant to this section shall use any leave personally accrued on a monthly basis prior to receiving additional donated sick or annual leave.
(g) Donated sick or annual leave deposited in an institutional leave bank or transferred under subsection (d) of this section may be inter-institutional in accordance with the policies of the appropriate governing board. Each institution, the commission or the council is responsible for the administration of the sick or annual leave deposits, withdrawals and transfers of its employees. Rules implementing the provisions of this section may be adopted jointly or separately by the governing boards, the commission or the council in accordance with section six, article one of this chapter and, in the case of the commission and council, in accordance with article three-a, chapter twenty-nine-a of this code.
§18B-7-15. Merit increases.
Higher education organizations may grant merit increases which are in accordance with this article and articles eight, nine and nine-a of this chapter and with duly promulgated rules of the commission and council.
§18B-7-16. Study of employment practices.
(a) The commission and council shall study the following issues relating to employment practices:
(1) Developing a fair and rational policy based upon best human resources practices for covering reductions in force, furloughs and other issues relating to seniority including determining how employees shall be treated whose salaries are derived from funds other than state appropriations;
(2) Determining the advantages and disadvantages of maintaining the internal preferences for hiring, promoting and transferring classified employees;
(3) Collecting and analyzing data and developing recommendations on the advantages and disadvantages of outsourcing certain functions at the organization level. The data shall include, but are not limited to, the following items:
(A) A current database of outsourcing practices followed by each organization including procedures or rules developed to inform policy decisions;
(B) The total number, disaggregated by organization, of positions or services being outsourced or filled by temporary employees;
(C) The amount of actual cost savings, if any, that are realized or may be realized as a direct result of organizations' outsourcing decisions;
(4) Recommending a rational, uniform policy to determine the status of employees whose positions are funded, in whole or in part, by an external grant or contract from a federal, state or local government or a private entity.
(b) The commission and council shall complete the work and report their findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate the recommendations, to the Legislative Oversight Commission on Education Accountability no later than January 1, 2012.
ARTICLE 8. HIGHER EDUCATION FACULTY.
§18B-8-1. Definitions.
As used in this article:
(a) 'Academic rank', 'rank' or 'faculty rank' means the position held by a faculty member as determined by the president, consistent with a rule promulgated and adopted by the governing board, and includes the positions of professor, associate professor, assistant professor and instructor. All other ranks are excluded from the provisions of this article.
(b) 'Salary' means the total nine-month or ten-month salary paid from state funds to a full- time faculty member, or if the employment period is other than nine or ten months, the total salary adjusted to a nine-month base salary;
(c) 'Full-time faculty' means a faculty member so designated by the president, consistent with the duly promulgated and adopted rule of the appropriate governing board, and those persons with faculty rank who have research or administrative responsibilities.
§18B-8-2. Faculty salary rules; salary increase upon promotion in rank.
(a) Each governing board shall promulgate and adopt a faculty salary rule in accordance with section six, article one of this chapter which furthers the goals of attracting, retaining and rewarding high quality faculty. Faculty salary increases shall be distributed within each organization in accordance with the faculty salary rule.
(b) The salary of a full-time faculty member may not be reduced by the provisions of this article.
(c) The faculty salary rule shall pursue the following goals:
(1) The salary of each full-time faculty member within a discipline group is competitive with those in similar disciplines at peer institutions;
(2) Faculty are recognized for outstanding performance;
(3) Equity among salaries is maintained; and
(4) The faculty at each institution are involved effectively in the administration of the faculty salary rule.
(d) Each faculty member shall receive a salary increase of at least ten percent when he or she is promoted in rank.
§18B-8-3. Authority to grant sabbatical leave.
A governing board may grant sabbatical leave to a faculty member at the state institution of higher education under its jurisdiction for the purpose of permitting him or her to engage in graduate study, research or other activities calculated to improve teaching ability. A governing board may grant a request for sabbatical leave only in accordance with the uniform rule it has promulgated and adopted. A governing board may not adopt a rule which provides for granting sabbatical leave to a faculty member who has served fewer than six years at the institution where presently employed, nor which provides for leave for more than one half the contract period at full pay or for a full contract period at half pay. A faculty member receiving a sabbatical leave is required to return and serve the institution granting the leave for at least one year or to repay to the institution the compensation received during leave. A faculty member returning from leave shall be reinstated at the academic rank held immediately prior to taking sabbatical leave unless he or she is promoted to a higher rank and is entitled to the salary and any salary increases appropriate to his or her rank and years of experience. The compensation for a faculty member on sabbatical leave is paid by the institution where employed from its regular personal services appropriations.
§18B-8-4. Effect of leave of absence on academic tenure, rank, etc.
(a) Notwithstanding any provision of law to the contrary, a tenured professional at a state institution of higher education who is absent from duties at the institution to accept employment in a nonelected governmental capacity is afforded the benefits of academic tenure, rank and position as if he or she had remained continuously in the position retained and held at the institution immediately preceding the absence if the following conditions are met:
(1) The absence is approved by the president of the state institution of higher education by which the professional is employed;
(2) The leave of absence does not exceed two years; or
(3) If the leave of absence extends for more than two years, the president requests approval from the governing board for the absence in writing each year and the board approves each request up to eight full years.
(b) An individual who remains in governmental employment with leave granted in accordance with this section forfeits all rights to academic tenure, rank and position formerly held at the employing institution at the end of the eighth year of government employment.
§18B-8-5. Notice to probationary faculty members of retention or nonretention; hearing.
(a) For the purposes of this section, 'Probationary faculty member' means the definition adopted in a joint rule promulgated by the commission and council. The rights provided to probationary faculty members by this section are in addition to, and not in lieu of, other rights afforded to them by other rules and other provisions of law.
(b) The president of each state institution of higher education shall give written notice concerning retention or nonretention for the ensuing academic year to a probationary faculty member not later than March 1.
(c) If a probationary faculty member who is not retained so requests, the president or his or her designee shall inform the probationary faculty member by certified mail within ten days of the reasons for nonretention. A probationary faculty member who desires to appeal the decision may proceed to level three of the grievance procedure established in article two, chapter six-c of this code. If the administrative law judge decides that the reasons for nonretention are arbitrary, capricious or without a factual basis, the faculty member shall be retained for the ensuing academic year.
§18B-8-6. Faculty employment practices; campus administrators required to teach or perform research.
Each governing board, with the advice and assistance of the faculty senate, shall promulgate and adopt a rule in accordance with section six, article one of this chapter addressing the following issues:
(a) Defining an appropriate balance between full-time and adjunct faculty members and the appropriate role of adjunct faculty; and
(b) Requiring each administrator on each campus who holds faculty rank to teach at least one course during each eighteen-month employment period or to perform on-going research in lieu of teaching.
ARTICLE 9. TEMPORARY CLASSIFIED EMPLOYEE SALARY SCHEDULE; CLASSIFICATION AND COMPENSATION SYSTEM.

§18B-9-1. Legislative purpose and intent.
(a) The purpose of the Legislature in enacting this article is to require the commission and council jointly to implement, control, supervise and manage a complete, uniform system of personnel classification and compensation in accordance with the provisions of this article for classified employees at higher education organizations.
(b) It is the intent of the Legislature to require each higher education organization to achieve full funding of the salary schedule established in section three of this article. A higher education organization, as defined in section two, article nine-a of this chapter, is subject to the provisions of this article until full funding is reached.
(c) It is further the intent of the Legislature to encourage strongly that each organization dedicate a portion of future tuition increases to fund the classified salary schedule and, after full funding of the salary schedule is achieved, to move toward meeting salary goals for faculty, classified and nonclassified employees.
§18B-9-2. Definitions.
The following words have the meanings ascribed to them unless the context clearly indicates a different meaning:
(a) 'Classified employee' or 'employee' means a regular full-time or regular part-time employee of an organization who holds a position that is assigned a particular job title and pay grade in accordance with the personnel classification and compensation system established by this article or by the commission and council;
(b) 'Job description' means the specific listing of duties and responsibilities as determined by the appropriate governing board, the commission or council and associated with a particular job title;
(c) 'Job title' means the name of the position or job as defined by the commission and council;
(d) 'Pay grade' means the number assigned by the commission and council to a particular job title and refers to the vertical column heading of the salary schedule established in section three of this article;
(e) 'Personnel classification system' means the process of job categorization adopted by the commission and council jointly by which job title, job description, pay grade and placement on the salary schedule are determined;
(f) 'Salary' means the amount of compensation paid through the State Treasury per annum, excluding those payments made pursuant to section two, article five, chapter five of this code, to an organization employee;
(g) 'Schedule' or 'salary schedule' means the grid of annual salary figures established in section three of this article; and
(h) 'Years of experience' means the number of years a person has been an employee of the State of West Virginia and refers to the horizontal column heading of the salary schedule established in section three of this article. For the purpose of placement on the salary schedule, employment for nine months or more equals one year of experience, but a classified employee may not accrue more than one year of experience during any given fiscal year. Employment for less than full time or for fewer than nine months during any fiscal year shall be prorated. In accordance with rules established by the commission and council jointly, a classified employee may be granted additional years of experience not to exceed the actual number of years of prior, relevant work or experience at accredited institutions of higher education other than state institutions of higher education.
§18B-9-3. Temporary higher education classified employee annual salary schedule.
(a) There is hereby continued a temporary state annual salary schedule for classified employees consisting of a minimum annual salary for each pay grade in accordance with years of experience. Nothing in this article guarantees payment to a classified employee of the salary indicated on the schedule at the actual years of experience. The minimum salary herein indicated shall be prorated for classified employees working fewer than thirty-seven and one-half hours per week. For the purposes of this article and article nine-a, despite any differences in salaries that may occur, a classified employee is equitably compensated in relation to other classified employees in the same pay grade if the following conditions exist:
(1) His or her annual salary is at least the minimum salary that was required for his or her pay grade and years of experience on July 1, 2001, on the salary schedule included in this section; and
(2) Progress is being made by the institution in meeting the salary goals set out in this article and article nine-a.
(b) Nothing in this section requires an appropriation by the Legislature in excess of the legislative funding priorities as set forth in this chapter.
(c) For purposes of this article, an organization has achieved full funding of the temporary salary schedule established by this section when it provides, in total, one hundred percent of the funds needed to meet the salary funding target as calculated in October, 2010, in a report, required by a prior enactment of this section, and presented to the Legislative Oversight Commission on Education Accountability. Until an organization has achieved full funding as described and has received certification to this effect from the commission or council, as appropriate, the following requirements apply:
(1) Classified salary increases distributed within the organization shall be provided in accordance with the uniform classification and compensation system established by this article and rules of the commission and council and shall be applied toward achieving full funding of the temporary salary schedule; and
(2) An organization may not provide discretionary salary increases, including merit or performance-based increases, to the president or chief executive officer of an organization or to any group or class of employees within the organization, other than classified employees, unless the organization has achieved full funding of the salary schedule established in this section or is making appropriate progress toward achieving full funding of the salary schedule.
(A) This prohibition does not apply to salary increases mandated by law or funded by the Legislature.
(B) For the purposes of subdivision (2) of this subsection, 'appropriate progress' has the following meanings:
(i) For governing boards under the jurisdiction of the commission, appropriate progress means an organization has funded at least twenty-five percent of the amount needed to reach full funding of the salary schedule by July 1, 2012 as calculated pursuant to this subsection; has funded at least fifty percent of the calculated amount by July 1, 2013; has funded at least seventy-five percent of the calculated amount by July 1, 2014 and has funded one hundred percent of the calculated amount by July 1, 2015; and
(ii) For governing boards under the jurisdiction of the council, appropriate progress means an organization has funded at least twenty-five percent of the amount needed to reach full funding of the salary schedule by July 1, 2013 as calculated pursuant to this subsection; has funded at least fifty percent of the calculated amount by July 1, 2014; has funded at least seventy-five percent of the calculated amount by July 1, 2015 and has funded one hundred percent of the calculated amount by July 1, 2016.
TEMPORARY HIGHER EDUCATION CLASSIFIED EMPLOYEE

ANNUAL SALARY SCHEDULE

YEARS OF EXPERIENCE

PAY GRADE
0 1 2 3 4 5 6 7 8
1 12,809 13,094 13,385 13,677 13,968 14,274 14,580 14,900 15,221
2 13,465 13,764 14,070 14,376 14,696 15,017 15,352 15,687 16,036
3 14,164 14,478 14,798 15,133 15,483 15,832 16,182 16,546 16,925
4 14,908 15,250 15,599 15,949 16,313 16,692 17,085 17,478 17,872
5 15,696 16,066 16,444 16,837 17,231 17,624 18,046 18,469 18,906
6 16,556 16,954 17,362 17,784 18,207 18,644 19,081 19,547 20,013
7 17,489 17,915 18,352 18,804 19,255 19,721 20,202 20,697 21,192
8 18,495 18,949 19,416 19,896 20,391 20,901 21,411 21,950 22,489
9 19,559 20,056 20,566 21,091 21,615 22,168 22,722 23,290 23,887
10 19,916 20,421 20,938 21,484 22,029 22,602 23,176 23,763 24,379
11 21,107 21,665 22,239 22,812 23,400 24,015 24,645 25,288 25,945
12 22,436 23,022 23,624 24,253 24,896 25,554 26,225 26,924 27,638
13 23,837 24,477 25,134 25,805 26,505 27,218 27,945 28,701 29,470
14 25,363 26,057 26,771 27,498 28,253 29,022 29,806 30,631 31,470
15 27,015 27,764 28,533 29,330 30,141 30,981 31,834 32,715 33,624
16 28,821 29,624 30,449 31,316 32,197 33,092 34,030 34,981 35,974
17 30,767 31,638 32,533 33,470 34,421 35,400 36,421 37,456 38,519
18 32,868 33,820 34,799 35,806 36,841 37,904 39,009 40,142 41,303
19 37,613 38,718 39,855 41,022 42,219 43,460 44,747 46,064 47,410
20 40,265 41,471 42,712 43,984 45,301 46,647 48,038 49,460 50,941
21 43,171 44,478 45,824 47,216 48,637 50,103 51,614 53,170 54,786
22 46,332 47,754 49,220 50,731 52,272 53,873 55,534 57,224 58,975
23 49,777 51,330 52,931 54,561 56,252 58,002 59,797 61,653 63,568
24 53,552 55,234 56,970 58,750 60,605 62,505 64,465 66,485 68,579
25 57,462 59,483 61,383 63,328 65,348 67,427 69,567 71,781 74,070

PAY
GRADE
9 10 11 12 13 14 15
1 15,541 15,876 16,226 16,575 16,939 17,304 17,682
2 16,386 16,750 17,129 17,507 17,886 18,294 18,687
3 17,304 17,697 18,090 18,498 18,920 19,343 19,780
4 18,279 18,702 19139 19,576 20,027 20,493 20,959
5 19,343 19,794 20,260 20,741 21,222 21,717 22,227
6 20,479 20,974 21,469 21,994 22,518 23,057 23,596
7 21,717 22,241 22,780 23,334 23,902 24,484 25,081
8 23,042 23,610 24,193 24,805 25,416 26,043 26,684
9 24,484 25,096 25,737 26,378 27,048 27,732 28,417
10 25,008 25,638 26,295 26,980 27,666 28,379 29,106
11 26,617 27,316 28,015 28,757 29,498 30,267 31,064
12 28,365 29,120 29,890 30,687 31,498 32,323 33,176
13 30,267 31,078 31,918 32,771 33,652 34,561 35,484
14 32,323 33,204 34,114 35,051 36,002 36,981 38,002
15 34,561 35,512 36,505 37,512 38,547 39,624 40,715
16 36,981 38,030 39,093 40,198 41,331 42,492 43,694
17 39,624 40,757 41,918 43,121 44,352 45,611 46,925
18 42,506 43,736 44,995 46,296 47,639 49,023 50,450
19 48,801 50,238 51,719 53,230 54,801 56,416 58,062
20 52,452 54,023 55,623 57,284 58,990 60,755 62,550
21 56,431 58,137 59,902 61,712 63,568 65,482 67,472
22 60,785 62,640 64,555 66,530 68,579 70,674 72,828
23 65,527 67,562 69,656 71,826 74,040 76,344 78,708
24 70,734 72,948 75,237 77,601 80,039 82,552 85,156
25 76,419 78,842 81,356 83,944 86,607 89,360 92,202
§18B-9-4. Classified employee salary; payment beyond salary schedule; conditions.
(a) The current annual salary of a classified employee may not be reduced by the provisions of this article nor by any other action inconsistent with the provisions of this article.
(b) Nothing in this article prohibits promotion of a classified employee to a job title carrying a higher pay grade if the promotion is in accordance with the provisions of this article, the personnel classification and compensation system and personnel rules of the commission and council.
(c) An organization may pay classified employees in excess of the salary established for their pay grade and years of experience indicated on the salary schedule established by section three of this article under the following conditions:
(1) The commission or council, as appropriate, certifies that the organization has achieved full funding; and
(2) The governing board has promulgated and adopted a salary rule in accordance with section six, article one of this chapter and the rules of the commission and council establishing a procedure to ensure that salary increases above the temporary salary schedule are distributed equitably and in a manner that is consistent with the uniform classification and compensation system.
ARTICLE 9A. CLASSIFICATION AND COMPENSATION SYSTEM.
§18B-9A-1. Legislative intent and purpose.
(a) The intent of the Legislature in enacting this article is to establish the classification and compensation system for certain employees of higher education organizations and apply recognized best human resources practices in order to use available resources in the most effective and efficient manner for the benefit of the citizens of West Virginia.
It is further the intent of the Legislature to establish a plan that is fair, accountable, credible, transparent and systematic. In recognition of the importance of these qualities, this article, together with articles seven, eight and nine of this chapter, is designated and may be cited as 'FACTs for Higher Education'.
(b) In furtherance of the principles described in subsection (a) of this section, the chief purposes of the classification and compensation system are to accomplish the following objectives:
(1) Develop and implement a classification and compensation system that is fair, transparent, understandable, simple to administer, self-regulating and adaptable to meet future goals and priorities;
(2) Provide current, reliable data to governing boards, the commission, the council, the Governor and the Legislature to inform the decision-making process of these policymakers;
(3) Attract well-qualified and diverse job applicants and retain and motivate employees to accomplish the goals, objectives and priorities identified in state law, rules of the commission and council, the statewide master plans for higher education and the institutions' compacts;
(4) Retain and reward employees who make valuable contributions to state and organization goals, objectives and priorities;
(5) Compensate employees within an organization fairly in relation to one another;
(6) Compensate employees across organizations who are performing similar work at similar wage rates;
(7) Compensate employees at levels that are competitive with appropriate external markets and are fiscally responsible;
(8) Improve the process for evaluating jobs, including, but not limited to, mandating training and development in best human resources practices and directing that key terms, job titles and evaluation forms are consistent across organizations; and
(9) Ensure that regular market salary analyses are performed to determine how organization compensation for all classes of employees compares to compensation in relevant external markets.
§18B-9A-2. Definitions.
As used in this article and articles seven, eight and nine of this chapter, the following words have the meanings ascribed to them unless the context clearly indicates a different meaning:
(a) 'Classification system' means the process by which jobs, job titles, career ladders and assignment to pay grades are determined.
(b) 'Classified employee' or 'employee' means any regular employee of an organization who holds a position that is assigned a particular job and job title within the classification system established by this article, article nine and by duly promulgated and adopted rules of the commission and council.
(c) 'Job' means the total collection of tasks, duties and responsibilities assigned to one or more individuals whose work is of the same nature and level.
(d) 'Job description' means a summary of the most important features of a job, including the general nature and level of the work performed.
(e) 'Job evaluation' means a formal process used to create a job worth hierarchy.
(f) 'Job family' means a group of jobs having the same nature of work, but requiring different levels of skill, effort, responsibility or working conditions.
(g) 'Job title' means the descriptive name for the total collection of tasks, duties and responsibilities assigned to one or more individuals whose positions have the same nature of work performed at the same level.
(h) 'Job worth hierarchy' means the perceived internal value of jobs in relation to each other within an organization.
(i) 'Nonclassified employee' means an employee of an organization who holds a position that is not assigned a particular job and job title within the classification system established by this article, article nine, and by duly promulgated and adopted rules of the commission and council and who meets one or more of the following criteria:
(1) Holds a direct policy-making position at the department or organization level; or
(2) Reports directly to the president or chief executive officer of the organization.
(j) 'Organization' means the commission, the council, an agency or entity under the respective jurisdiction of the commission or the council or a state institution of higher education as defined in section two, article one of this chapter.
(k) 'Pay grade' means the level to which a job is assigned within a job worth hierarchy.
(l) 'Point factor methodology' means a quantitative job evaluation process in which elements of a job are given a factor value and each factor is weighted according to its importance.
(m) 'Position description' means a summary of the total duties and responsibilities of a position based on factors provided in the position information questionnaire (PIQ).
(n) 'Position information questionnaire' or 'PIQ' means a tool used in the creation and evaluation of position descriptions and includes the factors of knowledge, experience, complexity and problem solving, freedom of action, scope and effect, breadth of responsibility, intra-systems contacts, external contacts, direct supervision of personnel, indirect supervision of personnel and health, safety and physical considerations.
(o) 'Step' means a standard progression in pay rate that is established within a pay grade.
§18B-9A-3. Applicability.
(a) The provisions of this article apply to employees whose employment, if continued, accumulates to a minimum total of one thousand forty hours during a calendar year and extends over at least nine months of a calendar year.
(b) Until the commission or council, as appropriate, has certified that an organization has achieved full funding of the temporary classified employee annual salary schedule or is making appropriate progress toward attaining full funding as defined by section three, article nine of this chapter, the organization is subject to article nine of this chapter and may not exercise flexibility provisions in any area of human resources identified in this chapter or in commission and council rule.
§18B-9A-4. Job classification system; job classification committee established; membership; meetings; powers and duties.
(a) The commission and council jointly shall maintain a uniform system for classifying jobs and positions of organization employees.
(b) Pursuant to the rule authorized in section seven of this article, the commission and council jointly shall establish and maintain a job classification committee.
The rule shall contain the following provisions related to the job classification committee:
(A) A systematic method for appointing committee members who are representative of all the higher education organizations and affected constituent groups including specifically providing for membership selections to be made from nominations from these higher education organizations and affected constituent groups;
(B) A requirement that members be approved by the commission and council before beginning service on the committee;
(C) A requirement that an organization may have no more than two members serving on the committee at any time and the combined membership representing various groups or divisions within or affiliated with an organization in total may not constitute a majority of the membership; and
(D) A requirement that committee members serve staggered terms. One third of the initial appointments shall be for two years, one third for three years and one third for four years. Thereafter, the term is four years. A member may not serve more than four years consecutively.
(c) Powers and duties of the committee include, but are not limited to, the following:
(1) Modifying and deleting jobs and assigning job titles;
(2) Reviewing and revising job titles to make them consistent among organizations, including adopting consistent title abbreviations;
(3) Establishing job worth hierarchies and data lines for each job title;
(4) Classifying jobs, establishing proper pay grades and placing jobs in pay grades consistent with the job evaluation plan;
(5) Determining when new job titles are needed and creating new job titles within the system;
(6) Recommending base pay enhancements for jobs for which the application of point factor methodology produces significantly lower salaries than external market pricing. The committee may exercise this authority only if it reevaluates each job annually to make a determination whether the enhancement should be continued;
(7) Recommending a procedure for performing job family reviews;
(8) Determining appropriate career ladders within the classification system and establishing criteria for career progression; and
(9) Hearing job classification appeals prior to commencement of the formal grievance process pursuant to commission and council rule.
(d) The committee shall meet monthly if there is business to conduct and also may meet more frequently at the call of the chair. A majority of the voting members serving on the committee at a given time constitutes a quorum for the purpose of conducting business.
(e) When evaluating jobs, the committee shall use the following procedure:
(1) Each committee member shall classify each job individually, independently of other members;
(2) The chair shall compile and share the individual evaluations with the whole committee; and
(3) After discussing the issues and resolving differences, the committee shall make a determination of the appropriate classification for each job.
(f) The commission and council shall use a point factor methodology to classify jobs. The commission and council jointly may adjust the job evaluation plan, including the factors used to classify jobs and their relative values, at any time.
(g) No later than July 1, 2012, the commission and council shall have in place an up-to-date job description for every classified job.
(h) The commission and council shall develop a position information questionnaire to be used by all organizations to gather data necessary for classification of positions within the job worth hierarchy.
§18B-9A-5. Compensation planning and review committee established; membership; meetings; powers and duties.
(a) Pursuant to the rule authorized in section seven of this article, the commission and council jointly shall establish and maintain a compensation planning and review committee.
(b) Within the guidelines established in this article and articles seven, eight and nine of this chapter, the committee shall manage all aspects of compensation planning and review that the commission and council jointly delegate to it.
The rule shall contain the following requirements related to the compensation planning and review committee:
(1) A systematic method for appointing committee members who are representative of all the higher education organizations and affected constituent groups including specifically providing for membership selections to be made from nominations from these higher education organizations and affected constituent groups; and
(2) A requirement that members be approved by the commission and council before beginning service on the committee;
(3) A requirement that an organization may have no more than two members serving on the committee at any time and the combined membership representing various groups or divisions within or affiliated with an organization in total may not constitute a majority of the membership; and
(4) A requirement that committee members serve staggered terms. One third of the initial appointments shall be for two years, one third for three years and one third for four years. Thereafter, the term is four years. A member may not serve more than four years consecutively.
(c) The committee shall meet at least quarterly and at other times at the call of the chair. A majority of the voting members serving on the committee at a given time constitutes a quorum for the purpose of conducting business.
(d) An institution may not have a majority of the committee members and the combined membership representing various groups or divisions within or affiliated with an organization in total may not constitute a majority of the membership.
(e) The Compensation Planning and Review Committee has powers and duties which include, but are not limited to, the following:
(1) Making annual recommendations for revisions in the system compensation plan, based on existing economic, budgetary and fiscal conditions or on market study data.
(2) Overseeing the five-year external market salary study;
(3) Overseeing the annual internal market review;
(4) Meeting at least annually with the Job Classification Committee to discuss benchmark jobs to be included in salary surveys, market 'hot jobs' that may require a temporary salary adjustment, results of job family reviews, and assessment of current job titles within the classification system for market matches and other issues as the Vice Chancellor for Human Resources, in consultation with the chancellors, determines to be appropriate; and
(5) Performing other duties as assigned by the commission and council or as necessary or expedient to maintain an effective classification and compensation system.
(f) The commission and council may allow the committee to collapse the three lowest pay grades into a single pay grade and provide for employees to be paid at rates appropriate to the highest of the three lowest pay grades.
§18B-9A-6. Salary structure and salary schedules.
(a) The commission and council shall develop and maintain a market salary structure and minimum salary schedules and ensure that all organizations under their respective jurisdictions adhere to state and federal laws and duly promulgated and adopted organization rules.
(b) The commission and council may not delegate any of the following duties to the Compensation Planning and Review Committee or the Job Classification Committee:
(1) Approval of a classification and compensation rule;
(2) Approval of the job evaluation plan;
(3) Approval of the annual market salary schedule; and
(4) Approval of the annual minimum salary schedule.
(c) The market salary structure serves as the basis for the following activities:
(1) Evaluating compensation of classified employees in relation to appropriate external markets; and
(2) Developing the minimum salary schedules to be adopted by the commission and council.
(d) The market salary structure shall meet the following criteria:
(1) Sets forth the number of pay grades and steps to be included in the structure;
(2) Includes a midpoint value for each pay grade which represents the average salary of jobs in that pay grade. The commission and council may choose a midpoint value that is not based exclusively on market salary data; and
(3) Includes minimum and maximum step values based on an established range spread, as well as values for other steps in the salary structure.
(e) The commission and council jointly shall contract with an external vendor to conduct a classified employee market salary study at least once within each five-year period. At the conclusion of the study, the commission and council, in consultation with the Compensation Planning and Review Committee, may take any combination of the following actions:
(1) Adjust the number of pay grades and the point values necessary for a job to be assigned to a particular pay grade;
(2) Adjust the midpoint differentials between pay grades better to reflect market conditions; or
(3) Adjust the range spread for any pay grade.
(f) The commission and council jointly may perform an annual review of market salary data to determine how salaries have changed in the external market. Based on data collected, the commission and council jointly in consultation with the Compensation Planning and Review Committee, shall adjust the market salary structure, if changes are supported by the data. In the absence of a market salary study conducted by an external vendor, the commission and council may not adjust the midpoint differentials between pay grades unless required to do so by a change in minimum wage or other laws and may not adjust the range spread for any pay grade.
(g) Annually, the commission and council may approve a minimum salary schedule that sets forth a compensation level for each step and pay grade below which no organization employee may be paid.
(1) The minimum salary floor for each pay grade and step on the minimum salary schedule is determined by applying the percentage fixed by commission and council rule promulgated pursuant to section seven of this article to the annual market salary data. The commission and council also shall consider the minimum wage and other laws that ensure that employees earn a living wage and shall maintain a salary structure which ensures that the average salary of each class of employees meets relative market equity among employee classes. The commission and council may take into consideration other factors they consider appropriate.
(2) The salary of an employee working fewer than thirty-seven and one-half hours per week shall be prorated.
(h) The organization rule promulgated pursuant to (d), section seven of this article may provide for differential pay for certain employees who work different shifts, weekends or holidays.
§18B-9A-7. Classification and compensation rules required; emergency rule authorized.
(a) Notwithstanding any provision of law or rule to the contrary, the commission and council jointly shall design, develop, implement and administer the personnel system of classification and compensation pursuant to this article and articles seven, eight and nine of this chapter. In developing and designing the system, they shall give careful consideration to the recommendations and supporting documentation contained in the Final Report to the Select Committee on Higher Education Personnel, prepared pursuant to section thirteen, article one-b of this chapter, which was received and approved by the Select Committee on January 11, 2010.
(b) Classification and compensation system rule. --
By November 1, 2011, the commission and council shall propose a joint rule or rules for legislative approval in accordance with article three-a, chapter twenty-nine-a of this code to implement the provisions of this article and articles seven, eight and nine of this chapter. The rule shall establish a classification and compensation system that incorporates best human resources practices and takes into consideration the recommendations of the Legislative Select Committee on Higher Education Personnel. At a minimum, the system rule shall address the areas of organization accountability, employee classification and compensation, performance evaluation and development of organization rules.
(1) Organization accountability. --
The system rule shall provide a procedure for correcting deficiencies identified in the human resources reviews conducted pursuant to section nine, article seven of this chapter. The procedure shall include, but is not limited to, the following components:
(A) Specifying a reasonable time for organizations to correct deficiencies uncovered by a review;
(B) Applying sanctions when major deficiencies are not corrected within the allotted time:
(i) For purposes of this subsection, a major deficiency means an organization has failed to comply with federal or state law or with personnel rules of the commission and council.
(ii) When a major deficiency is identified, the commission or council, as appropriate, shall notify the governing board of the institution in writing, giving particulars of the deficiency and outlining steps the governing board is required to take to correct the deficiency.
(iii) The governing board shall correct the major deficiency within four months and shall notify the commission or council, as appropriate, when the deficiency has been corrected.
(iv) If the governing boards fail to correct the major deficiency or fails to notify the commission or council, as appropriate, that the deficiency has been corrected within a period of four months from the time the governing board receives notification, the commission or council shall apply sanctions as specified:
(I) A formal reprimand shall be placed in the personnel file of each key administrator who shares responsibility and has operational authority in the area of the identified deficiency; and
(II) Other sanctions may include, but are not limited to, suspending new hiring by the organization and prohibiting compensation increases for key administrators who have authority over the areas of major deficiency until the identified deficiencies are corrected.
(C) Certifying that an organization has achieved full funding of the temporary annual classified employee salary schedule or is making appropriate progress toward achieving full funding pursuant to section three, article nine of this chapter.
(2) Employee classification and compensation. -- The system rule shall establish a classification and compensation system to accomplish the following objectives:
(A) Moving classified employees through the classification system based on performance and other objective, measurable factors including education, years of experience in higher education and experience above position requirements;
(B) Achieving and maintaining appropriate levels of employee dispersion across steps;
(C) Assigning each current employee to an initial step for his or her pay grade that is closest to and exceeds his or her current salary regardless of previous education, experience or performance. The rule shall provide that the salary of a current employee may not be reduced by a job reclassification, a modification of the market salary schedule, or other conditions that the commission and the council consider appropriate and reasonable;
(D) Establishing a job worth hierarchy and identifying the factors to be used to classify jobs and their relative values and determining the number of points that are necessary to assign a job to a particular pay grade;
(E) Establishing an objective standard to be used in determining when a job description or a position description is up-to-date;
(F) Providing a procedure whereby a classified employee or a supervisor who believes that changes in the job duties and responsibilities of the employee justify a position review may request that a review be done at any time;
(G) Specifying that the acceptable period that may elapse between the time when an employee files a formal request for a position review and the time when the review is completed may not exceed forty-five days. An organization that fails to complete a review within the specified time shall provide the employee back pay from the date the request for review was received if the review, when completed, produces a reclassification of the position into a job in a higher pay grade;
(H) Providing a procedure by which employees may file appeals of job classification decisions for review by the Job Classification Committee prior to filing a formal grievance. The committee shall render a decision within sixty days of the date the appeal is filed with the commission or the council;
(I) Providing for recommendations from the Compensation Planning and Review Committee and the Job Classification Committee to be considered by the commission and the council and to be included in the legislative reporting process pursuant to section eight, article seven of this chapter; and
(J) Establishing and maintaining the job classification committee mandated in section four of this article.
(3) Performance evaluations. -- The system rule shall provide for developing and implementing a consistent, objective performance evaluation model and shall mandate that training in conducting performance evaluations be provided for all organization personnel who hold supervisory positions.
(c) Emergency rule. --
(1) The Legislature hereby finds that an emergency exists and, therefore, the commission and council shall propose a joint emergency rule or rules by November 1, 2011, in accordance with article three-a, chapter twenty-nine-a of this code to implement the provisions of this article and articles seven, eight and nine of this chapter.
(2) The commission and council shall file the emergency rule or rules with the Legislative Oversight Commission on Education Accountability by the date specified in subdivision (1) of this subsection and may not implement the emergency rule or rules without prior approval.
(d) Organization rules. --
(1) Each organization shall promulgate and adopt a rule or rules in accordance with the provisions of section six, article one of this chapter to implement requirements contained in the classification and compensation system rule or rules of the commission and council. The commission and council shall provide a model personnel rule for the organizations under their jurisdiction and shall provide technical assistance in rulemaking as requested.
(2) The initial organization rule shall be adopted not later than six months following the date on which the commission and council receive approval to implement the emergency rule promulgated pursuant to this section. Additionally, each organization shall amend its rule to comply with mandated changes not later than six months after the effective date of any change in statute or rules, unless a different compliance date is specified within the statute or rule containing the requirements or mandate.
(3) An organization may not adopt a rule under this section until it has consulted with the appropriate employee class affected by the rule's provisions.
(4) If an organization fails to adopt a rule or rules as mandated by this subsection, the commission and council may prohibit it from exercising any flexibility or implementing any discretionary provision relating to human resources contained in statute or in a commission or council rule until the organization's rule requirements have been met.
(5) Additional flexibility or areas of operational discretion identified in the system rule or rules may be exercised only by an organization which meets the following requirements:
(A) Receives certification from the commission or council, as appropriate, that the organization has achieved full funding of the temporary salary schedule or is making appropriate progress toward achieving full funding pursuant to section three, article nine of this chapter;
(B) Promulgates a comprehensive classification and compensation rule as required by this section;
(C) Receives approval for the classification and compensation rule from the appropriate chancellor in accordance with this section; and
(D) Adopts the rule by vote of the organization's governing board.
(6) Notwithstanding any provision of this code to the contrary, each chancellor, or his or her designee, has the authority and the duty to review each classification and compensation rule promulgated by an organization under his or her jurisdiction and to recommend changes to the rule to bring it into compliance with state and federal law, commission and council rules or legislative, commission and council intent. Each chancellor may reject or disapprove any rule, in whole or in part, if he or she determines that it is not in compliance with law or rule or if it is inconsistent with legislative, commission and council intent.
§18B-9A-8. Implementation of classification and compensation system.
(a) Sweeping cultural changes are needed to implement the recommendations of the Select Committee on Higher Education Personnel and the provisions of this article and articles seven, eight and nine of this code. These kinds of changes require dedication and cooperation from all employee classes across the two systems of public higher education, the commission, council and state policymakers. The primary responsibility for implementation, however, rests with the commission and the council who shall provide leadership and assistance to the human resources professionals within each organization to bring about the changes successfully.
(b) The implementation process shall be carried out in incremental steps, some of which may occur simultaneously. The steps include the following:
(1) Communicating with organization employees and administrators to acquaint them with the guiding principles of the classification and compensation system. The principles which undergird the policy changes are designed to promote fairness, accountability, credibility, transparency and a systematic approach to progress (FACTS for Higher Education). The discussion shall explain the origin of changes in law and policy and show how these are the result of four years of study culminating in the findings and recommendations contained in the Final Report to the Select Committee on Higher Education Personnel (January 11, 2010).
(2) Seeking out credentialed, experienced human resources professionals to provide staff support to the commission, council and organizations, pursuant to section two-a, article four of this chapter, who are committed to creating a culture of constant improvement in a complex and rapidly changing environment. These professionals are catalysts to promote the Fair, Accountable, Credible, Transparent, and Systematic (FACTs) principles and to serve the organizations by assisting them in developing and maintaining best human resources practices.
(3) Conducting a review of the human resources function at each organization pursuant to section nine, article seven of this chapter to identify best practices and areas of deficiency.
(4) Developing and implementing employee training and professional development pursuant to section six, article seven of this chapter to assist organization professionals in applying the Fair, Accountable, Credible, Transparent, and Systematic principles to all human resources functions.
(5) Given that the state is considering a unified enterprise resource program, the commission and council shall conduct a study to determine whether a human resources information system capable of meeting a wide range of data requirements to support personnel and policy initiatives is necessary. The findings of the study, along with any recommendations, shall be reported to the Legislative Oversight Commission on Education Accountability by December 1, 2011.
(6) Establishing the Compensation Planning and Review Committee pursuant to section five of this article and the Job Classification Committee pursuant to section four of this article whose members participate and represent a broad range of higher education interests in the decision and policy-making process.
(7) Providing data throughout the implementation process to the Legislative Oversight Commission on Education Accountability to inform state policymakers of progress and to provide a forum for further discussion of higher education personnel issues and employee concerns.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF HIGHER EDUCATION.

§18B-10-1. Enrollment, tuition and other fees at education institutions; refund of fees.
(a) Each governing board shall fix tuition and other fees for each school academic term for the different classes or categories of students enrolling at each the state institution of higher education under its jurisdiction and may include among the tuition and fees any one or more of the following as defined in section one-b of this article:
(1) Tuition and required educational and general fees;
(2) Auxiliary and auxiliary capital fees; and
(3) Required educational and general capital fees.
(b) An institution A governing board may establish a single special revenue account for each of the following classifications of fees:
(1) All tuition and required educational and general fees collected;
(2) All auxiliary and auxiliary capital fees collected; and
(3) All required educational and general capital fees collected to support existing systemwide and institutional debt service and future systemwide and institutional debt service, capital projects and campus renewal for educational and general facilities.
(4) Subject to any covenants or restrictions imposed with respect to revenue bonds payable from the accounts, an institution a governing board may expend funds from each special revenue account for any purpose for which funds were collected within that account regardless of the original purpose for which the funds were collected.
(c) The purposes for which tuition and fees may be expended include, but are not limited to, health services, student activities, recreational, athletic and extracurricular activities. Additionally, tuition and fees may be used to finance a student's students' attorney to perform legal services for students in civil matters at the institutions. Provided, That The legal services are limited only to those types of cases, programs or services approved by the administrative head president of the institution where the legal services are to be performed.
(d) By October 1, 2011, the commission and council jointly each shall propose a rule for legislative approval in accordance with the provisions of article three-a, chapter twenty-nine-a of this code to govern the fixing, collection and expenditure of tuition and other fees by the governing boards under their respective jurisdictions.
(e) The schedule of all tuition and fees, and any changes in the schedule, shall be entered in the minutes of the meeting of the appropriate governing board and the board shall file with the commission or council, or both, as appropriate, and the Legislative Auditor a certified copy of the schedule and changes.
(f) The governing boards shall establish the rates to be charged full-time students, as defined in section one-b of this article, who are enrolled during a regular academic term.
(1) Undergraduate students taking fewer than twelve credit hours in a regular term shall have their fees reduced pro rata based upon one twelfth of the full-time rate per credit hour and graduate students taking fewer than nine credit hours in a regular term shall have their fees reduced pro rata based upon one ninth of the full-time rate per credit hour.
(2) Fees for students enrolled in summer terms or other nontraditional time periods shall be prorated based upon the number of credit hours for which the student enrolls in accordance with the provisions of this subsection.
(g) All fees are due and payable by the student upon enrollment and registration for classes except as provided in this subsection:
(1) The governing boards shall permit fee payments to be made in installments over the course of the academic term. All fees shall be paid prior to the awarding of course credit at the end of the academic term.
(2) The governing boards also shall authorize the acceptance of credit cards or other payment methods which may be generally available to students for the payment of fees. The governing boards may charge the students for the reasonable and customary charges incurred in accepting credit cards and other methods of payment.
(3) If a governing board determines that a student's finances are affected adversely by a legal work stoppage, it may allow the student an additional six months to pay the fees for any academic term. The governing board shall determine on a case-by-case basis if whether the finances of a student are affected adversely.
(4) The commission and council jointly shall propose a rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code defining conditions under which an institution a governing board may offer tuition and fee deferred payment plans through the institution itself or through third parties.
(5) An institution A governing board may charge interest or fees for any deferred or installment payment plans.
(h) In addition to the other fees provided in this section, each governing board may impose, collect and distribute a fee to be used to finance a nonprofit, student-controlled public interest research group if the students at the institution demonstrate support for the increased fee in a manner and method established by that institution's elected student government. The fee may not be used to finance litigation against the institution.
(i) Institutions Governing boards shall retain tuition and fee revenues not pledged for bonded indebtedness or other purposes in accordance with the tuition rule rules proposed by the commission and council jointly pursuant to this section. The tuition rule rules shall address the following areas:
(1) Provide Providing a basis for establishing nonresident tuition and fees;
(2) Allow institutions Allowing governing boards to charge different tuition and fees for different programs;
(3) Provide that a board of Governors may Authorizing a governing board to propose to the commission, council or both, as appropriate, a mandatory auxiliary fee under the following conditions:
(A) The fee shall be approved by the commission, council or both, as appropriate, and either the students below the senior level at the institution or the Legislature before becoming effective;
(B) Increases may not exceed previous state subsidies by more than ten percent;
(C) The fee may be used only to replace existing state funds subsidizing auxiliary services such as athletics or bookstores;
(D) If the fee is approved, the amount of the state subsidy shall be reduced annually by the amount of money generated for the institution by the fees. All state subsidies for the auxiliary services shall cease five years from the date the mandatory auxiliary fee is implemented;
(E) The commission or council or both, as appropriate, shall certify to the Legislature annually by October 1 the amount of fees collected for each of the five years;
(4) Establish Establishing methodology, where applicable, to ensure that, within the appropriate time period under the compact, community and technical college tuition rates for community and technical college students in all independently accredited community and technical colleges will be commensurate with the tuition and fees charged by their peer institutions.
(j) A penalty may not be imposed by the commission or council upon any institution governing board based upon the number of nonresidents who attend the institution unless the commission or council determines that admission of nonresidents to any institution or program of study within the institution is impeding unreasonably the ability of resident students to attend the institution or participate in the programs of the institution. The institutions governing boards shall report annually to the commission or council on the numbers of nonresidents and such any other enrollment information as the commission or council may request.
(k) Tuition and fee increases of the governing boards, except for including the governing boards of the state institutions of higher education known as Marshall University and West Virginia University, are subject to rules adopted by the commission and council jointly pursuant to this section and in accordance with the provisions of article three-a, chapter twenty-nine-a of this code. The commission or council, as appropriate, shall examine individually each request from a governing board for an increase and make its determinations as follows:
(1) Subject to the provisions of subdivisions (4) and (8) of this subsection, a governing board of an institution under the jurisdiction of the commission may propose tuition and fee increases of up to nine and one-half percent for undergraduate resident students for any fiscal year. The nine and one-half percent total includes the amount of increase over existing tuition and fees, combined with the amount of any newly established specialized fee which may be proposed by a governing board.
(2) A governing board under the jurisdiction of the council may propose tuition and fee increases of up to four and three-quarters percent for undergraduate resident students for any fiscal year, except a governing board may propose increases in excess of four and three-quarters percent if existing tuition and fee rates at the institution are below the state average for tuition and fees at institutions under the jurisdiction of the council. The four and three-quarters percent total includes the amount of increase over existing tuition and fees, combined with the amount of any newly established, specialized fee which may be proposed by a governing board.
(3) The commission or council, as appropriate, shall examine individually each request from a governing board for an increase.
(4) Subject to the provisions of subdivision (8) of this subsection, the governing boards of Marshall University and West Virginia University, as these provisions relate to the state institutions of higher education known as Marshall University and West Virginia University, each may annually:
(A) Increase tuition and fees for undergraduate resident students to the maximum allowed by this section without seeking approval from the commission; and
(B) Set tuition and fee rates for post-baccalaureate resident students and for all nonresident students, including establishing regional tuition and fee rates, reciprocity agreements or both.
(C) The provisions of this subdivision do not apply to tuition and fee rates of the administratively linked institution known as Marshall Community and Technical College, the administratively linked institution known as the Community and Technical College at West Virginia University Institute of Technology, the regional campus known as West Virginia University at Parkersburg and, until the first day of July, two thousand seven, the regional campus known as West Virginia University Institute of Technology.
(5)(1) Any proposed A tuition and fee increase greater than five percent for resident students proposed by a governing board for state institutions of higher education other than the state institutions of higher education known as Marshall University, West Virginia School of Osteopathic Medicine and West Virginia University requires the approval of the commission or council, as appropriate.
(2) A fee used solely for the purpose of complying with the athletic provisions of 20 U.S.C. 1681, et seq., known as Title IX of the Education Amendment of 1972, is exempt from the limitations on fee increases set forth in this subsection for three years from the effective date of the section.
(3) In determining whether to approve or deny the a governing board's request for a tuition and/or fee increase for resident students greater than the increases granted pursuant to subdivision (1) of this subsection, the commission or council shall determine the progress the institution governing board has made toward meeting the conditions outlined in this subdivision subsection and shall make this determination the predominate factor in its decision. The commission or council shall consider the degree to which each institution governing board has met the following conditions:
(A) Has Maximized Maximizes resources available through nonresident tuition and fee charges to the satisfaction of the commission or council;
(B) Is Consistently achieving achieves the benchmarks established in the compact of the institution pursuant to the provisions of article one-a one-d of this chapter;
(C) Is Continuously pursuing pursues the statewide goals for post-secondary education and the statewide compact established in articles one and one-a of this chapter;
(D) Has demonstrated Demonstrates to the satisfaction of the commission or council that an increase will be used to maintain high-quality programs at the institution;
(E) Has demonstrated Demonstrates to the satisfaction of the commission or council that the institution governing board is making adequate progress toward achieving the goals for education established by the southern regional education board;
(F) Demonstrates to the satisfaction of the commission or council that the governing board has considered the average per capita income of West Virginia families and their ability to pay for any increases; and
(G) Demonstrates to the satisfaction of the commission or council that base appropriation increases have not kept pace with recognized nation-wide inflationary benchmarks;
(F) To the extent authorized, will increase by up to five percent the available tuition and fee waivers provided by the institution. The increased waivers may not be used for athletics.
(6) (5) This section does not require equal increases among institutions or governing boards nor does it require any level of increase at an institution by a governing board.
(7) (6) The commission and council shall report to the Legislative Oversight Commission on Education Accountability regarding the basis for approving or denying each approval or denial request as determined using the criteria established in subdivision (5) of this subsection.
(8) Notwithstanding the provisions of subdivisions (1) and (4) of this subsection, tuition and fee increases at state institutions of higher education which are under the jurisdiction of the commission, including the state institutions of higher education known as Marshall University and West Virginia University, are subject to the following conditions:
(A) Institutions may increase tuition and fees for resident, undergraduate students by no more than an average of seven and one-half percent per year during any period covering four consecutive fiscal years, with the first fiscal year of the first four fiscal-year cycle beginning on July 1, 2007;
(B) The seven and one-half percent average cap does not apply to an institution for any fiscal year in which the total state base operating budget appropriations to that institution are less than the total state base operating budget appropriations in the fiscal year immediately preceding;
(C) A new capital fee or an increase in an existing capital fee is excluded from the tuition and fee increase calculation in this subdivision:
(i) If the new fee or fee increase is approved by an institutional a governing board or by a referendum of an institution's undergraduate students, or both, on or before February 1, 2006; or
(ii) If the following conditions are met:
(I) The new fee or fee increase was approved by an institutional a governing board or by a referendum of an institution's undergraduate students, or both, on or before July 1, 2006;
(II) The institution for which the capital fee is approved has been designated a university pursuant to the provisions of section six, article two-a of this chapter by the effective date of this section; and
(III) The institutional board of Governors previously oversaw a community and technical college that achieved independent accreditation and consequently acquired its own board of Governors;
(D) Institutions shall provide, in a timely manner, any data on tuition and fee increases requested by the staff of the commission. The commission shall: (i) collect the data from any institution under its jurisdiction; and (ii) Annually by July 1, provide a detailed analysis of the institutions' compliance with the provisions of this subdivision to the Legislative Oversight Commission on Education Accountability."
On motion of Delegate Boggs, action on the adoption of the amendment by Delegates M. Poling and White was deferred.
Com. Sub. for S. B. 335, Authorizing certain municipalities regulate taxis and taxi stands by ordinance; 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. 357), and there were--yeas 88, nays 10, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Cowles, Ellem, Ellington, Gearheart, Householder, Kump, J. Miller, Savilla, Sigler and Sobonya.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 335) 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. 366, Relating to Underground Storage Tank Administrative Fund; 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. 358), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Howell.

Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 366) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 373, Requiring School Building Authority allocate and expend certain moneys for vocational programs at comprehensive middle schools; 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. 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: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 373) 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. 373 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-9D-4c; to amend and reenact §18-9D-15 of said Code; and to amend said code by adding thereto a new section, designated §18-9D-19a, all relating to funding and financing comprehensive middle schools and other School Building Authority projects and expenditures; providing the School Building authority the ability to temporarily finance project costs and expenditures for public schools through loans, notes or other financing; limiting the amount of outstanding loans, notes or other financing; providing that principal, interest and premium on loans, notes or other financing must be paid from certain sources; allowing, upon application by a county board of education, the School Building Authority to allocate and expend certain moneys for school major improvement projects for vocational programs at comprehensive middle schools; providing legislative findings; providing for definition of 'comprehensive middle high school' by state board rule; providing minimum contents of rule; requiring the authority, when planning the construction of a middle or junior high school, to provide funding for a comprehensive middle school that includes comprehensive career technical education facilities to be located, when feasible, on the same site as the middle or junior high school under certain conditions; requiring the authority, upon application of a county board to construct comprehensive career technical education facilities that would allow an existing middle or junior high school to become a comprehensive middle school, to provide technical assistance to the county in developing a plan for construction of the comprehensive career technical education facility; and requiring, upon development of the plan, the authority to consider funding based on certain criteria."
Delegate Boggs moved that the bill take effect July 1, 2011.
On this question, the yeas and nays were taken (Roll No. 360), 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: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 373) takes effect July 1, 2011.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 375, Authorizing Higher Education Policy Commission collect and disseminate information concerning higher education institutions; 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. 361), 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: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 375) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 362), 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: Andes and Crosier.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 375) 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. 376, Permitting unit owners' associations institute legal action to collect dues; on third reading, coming up in regular order, was read a third time.
Delegates Ellem and Walters requested to be excused from voting on the passage of S. B. 376 under the provisions of House Rule 49.
The Speaker replied that the Delegates were members 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 Gentlemen from voting.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 363), and there were--yeas 93, nays 5, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Nelson, Pasdon and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 376) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
At 11:58 a.m., on motion of Delegate Boggs, the House of Delegates recessed until 2:30 p.m., and reconvened at that time.
Delegate Caputo addressed the House in support of the Wisconsin state employees currently in hte news over the issue of collective bargaining rights, and at the conclusion of his remarks, Delegate Moore asked and obtained unanimous consent that they be printed in the Appendix to the Journal.
* * * * * * *

Afternoon Session

* * * * * * *

Reordering of the Calendar

Delegate Boggs
announced that the Committee on Rules had placed H. B. 3272, on third reading, Special Calendar, to follow Com. Sub. for S. B. 330, on third reading Special Calendar.
Delegate Boggs then announced that the Committee on Rules had transferred Com. Sub. for S. B. 193, Com. Sub. for S. B. 219, Com. Sub. for S. B. 228, Com. Sub. for S. B. 238, Com. Sub. for S. B. 239, Com. Sub. for S. B. 407 and Com. Sub. for S. B. 466, on third reading, Special Calendar, to the House Calendar.
Third Reading

-Continued-

Com. Sub. for S. B. 330, Relating to higher education personnel generally; on third reading, having been deferred in earlier proceedings, was reported by the Clerk.
Action on the amendment to the bill, having been deferred, was reported by the Clerk and adopted.
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 364), and there were--yeas 86, nays 11, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Cowles, Ellem, Householder, Lane, J. Miller, Nelson, Overington, Savilla and Walters.
Absent and Not Voting: Andes, Crosier and Snuffer.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 330) passed.
The Clerk reported a title amendment recommended by the Committee on Finance.
Whereupon,
Delegate M. Poling asked and obtained unanimous consent that the amendment be withdrawn.
On motion of Delegates M. Poling and White, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 330 - "A Bill to repeal §18-13-1 of the Code of West Virginia, 1931, as amended; to repeal §18-23-4a of said code; to repeal §18B-8-3a of said code; to repeal §18B-9-2a, §18B-9-5, §18B-9-7, §18B-9-8, §18B-9-9, §18B-9-10 and §18B-9-12 of said code; to amend and reenact §12-1-12d of said code; to amend and reenact §18B-1-2 and §18B-1-6 of said code; to amend and reenact §18B-1B-4 and §18B-1B-5 of said code; to amend and reenact §18B-2A-3, §18B-2A-4 and §18B-2A-8 of said code; to amend and reenact §18B-2B-3 of said code; to amend and reenact §18B-3-1, §18B-3-3 and §18B-3-4 of said code; to amend and reenact §18B-4-1 of said code; to amend said code by adding thereto a new section, designated §18B-4-2a; to amend and reenact §18B- 5-9 of said code; to amend and reenact §18B-7-1, §18B-7-2, §18B-7-3, §18B-7-4, §18B-7-5, §18B-7- 6, §18B-7-7, §18B-7-8, §18B-7-9, §18B-7-10, §18B-7-11 and §18B-7-12 of said code; to amend said code by adding thereto four new sections, designated §18B-7-13, §18B-7-14, §18B-7-15 and §18B-7- 16; to amend and reenact §18B-8-1, §18B-8-3, §18B-8-4, §18B-8-5 and §18B-8-6 of said code; to amend said code by adding thereto a new section, designated §18B-8-2; to amend and reenact §18B- 9-1, §18B-9-2, §18B-9-3 and §18B-9-4 of said code; to amend said code by adding thereto a new article, designated §18B-9A-1, §18B-9A-2, §18B-9A-3, §18B-9A-4, §18B-9A-5, §18B-9A-6, §18B- 9A-7 and §18B-9A-8; and to amend and reenact §18B-10-1 of said code, all relating to public higher education personnel generally; state organizations of higher education; public higher education governance; repealing sunset provision for pilot investment program for Marshall University and West Virginia University; extending authority to increase certain types of investment under certain circumstances; specifying and clarifying rule-making procedures; specifying certain powers and duties of certain higher education organizations; requiring certain governing boards to reach certain graduation rates by certain date; establishing classification and compensation for certain employees; providing legislative purposes and intent; providing certain definitions; requiring creation of certain professional staff positions; setting forth minimum qualifications and specifying duties; requiring organization rulemaking; authorizing certain supplemental retirement, health and welfare benefit plans for certain employees; providing for certain employer and employee matches; authorizing employee payroll deductions; requiring establishment of continuing education and professional development programs for certain employees; setting forth certain employment practices; requiring certain periodic reports; specifying data to be included in reports and designating report due dates; providing certain exceptions to report due dates; requiring periodic reviews of human resources functions at certain higher education organizations; setting forth purposes of reviews; specifying review criteria and designating completion dates; requiring prior notice of reviews and setting forth certain exceptions; authorizing compensatory time off for certain employees in certain instances; setting forth conditions; defining 'nonclassified' employees; limiting percentage of employees designated nonclassified and providing certain exceptions; establishing formula for calculating percentage; providing effective date for meeting percentage limits and requiring compliance reports; authorizing certain employment by mutual agreement; setting forth terms, conditions and applicability of agreements; requiring probationary period for certain employees; authorizing catastrophic leave banks and leave transfer for certain employees; setting forth terms and conditions for participation; codifying certain current practices; authorizing merit salary increases for certain employees under certain conditions; requiring study of certain employment practices; requiring report and specifying data and report due date; requiring faculty salary rules and providing for salary increases in certain instances; authorizing sabbatical leaves for certain professional personnel; specifying terms and conditions for participation; maintaining certain rights and benefits during leaves of absence under certain circumstances; requiring definition of certain terms; requiring notice of employment decisions to probationary faculty members by certain date and providing for hearings in certain instances; stating legislative intent regarding funding for certain employee salary schedules; specifying applicability of certain statutes; establishing certain terms and conditions and providing certain exceptions; providing formulas for making certain salary calculations; requiring certification of certain higher education organizations relating to certain salary funding requirements; specifying applicability of certain rules; requiring review and approval process for certain rules and specifying responsibilities of certain professional personnel relating to rulemaking; providing for funding certain salary schedules; specifying certain consequences and sanctions and providing exceptions; providing short title; requiring maintenance of uniform job classification system; establishing job classification committee and specifying organization, powers and duties; assigning certain other powers and duties relating to job classification; establishing compensation planning and review committee and specifying organization, powers and duties; providing for establishment of market salary structures and minimum salary schedules; requiring periodic updates and specifying certain other related powers and duties; providing for periodic market salary studies and specifying application of study findings; requiring certain salary comparisons and establishing limit on variations of average salaries among employee classes; specifying authority and duty of Higher Education Policy Commission and Council for Community and Technical College Education over classification and compensation system; requiring promulgation of certain personnel rules by certain date; authorizing emergency rules with prior approval; establishing parameters for rules; specifying mechanisms for correcting identified deficiencies and requiring and authorizing certain sanctions in certain instances; providing for hearing employee appeals; requiring performance evaluations for certain employees; requiring certain training for supervisory personnel; establishing terms and conditions for exercising certain operational flexibilities for governing boards; establishing goals for implementing certain statutes and rules; fixing certain implementation responsibilities; providing for review and approval of governing boards' requests for tuition and fee increases greater than set amounts; removing caps on increases in tuition and fees; making technical corrections; and deleting obsolete language."
H. B. 3272, Making supplementary appropriations to various agencies; on third reading, coming up in regular order, was read a third time.
Delegates Ashley, Ellem, Lane, Poore and Smith requested to be excused from voting on the passage of H. B. 3272 under the provisions of House Rule 49.
The Speaker replied that the Delegates were members 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 Delegates from voting.
On the passage of the bill, the yeas and nays were taken (Roll No. 365), and there were--yeas 87, nays 10, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead, Gearheart, Householder, Howell, Kump, Lane, J. Miller, Savilla, Sobonya and Walters.
Absent and Not Voting: Andes, Crosier and Snuffer.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3272) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 366), 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, Gearheart, Householder, Howell, Kump, J. Miller, Savilla, Sobonya and Walters.
Absent and Not Voting: Andes, Crosier and Snuffer.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3272) 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. 391, Relating to community voting locations generally; on third reading, coming up in regular order, with an amendment pending and the further right to amend, was reported by the Clerk.
The Clerk then reported an amendment recommended by the Committee on the Judiciary on yesterday.
On the adoption of the amendment, the yeas and nays were demanded, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 367), and there were--yeas 63, nays 34, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Border, Brown, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes, Crosier and Snuffer.
So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.
The bill was then read a third time.
Delegate Howell requested to be excused from voting on the passage of Com. Sub. for S. B. 391 under the provisions of House Rule 49.
The Speaker replied that the 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 member from voting.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 368), and there were--yeas 63, nays 35, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Border, Cann, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 391) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 391 - "A Bill to amend and reenact §3-3-2a of the Code of West Virginia, 1931, as amended, relating to authorizing community voting locations; removing the requirement that chairpersons of executive committees approve community voting locations; requiring community voting locations to be open a minimum of five days; providing for locations on a rotating basis; establishing criteria for community voting locations; permitting chairpersons of executive committees to nominate locations; requiring publication of notices prior to the designation of locations; requiring publication of notices of the dates, times and places of community voting locations; and requiring community voting locations to be utilized an equal number of days and for the same number of hours."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 369), and there were--yeas 68, nays 30, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Rowan, Savilla, Sigler, Snuffer, Sobonya, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
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. 391) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Armstead asked to be shown in the Journal as having voted "Nay" on the Judiciary Committee amendment to Com. Sub. for S. B. 391.
Com. Sub. for S. B. 408, Creating WV Health Benefit Exchange Act; 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, on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amendment, be amended by adding thereto a new article, designated §33-16G-1, §33-16G-2, §33-16G-3, §33-16G-4, §33-16G-5, §33-16G-6, §33-16G- 7, §33-16G-8 and §33-16G-9, all to read as follows:
ARTICLE 16G. WEST VIRGINIA HEALTH BENEFIT EXCHANGE ACT.
§33-16G-1. Purpose.
The purpose of this article is to establish a West Virginia Health Benefit Exchange to facilitate the purchase and sale of qualified health plans in the individual market in this state and a Small Business Health Options Program within the exchange to assist qualified small employers in this state in facilitating the enrollment of their employees in qualified health plans.
§33-16G-2. Definitions.
For purposes of this article:
(a) 'Board' means the board established in section four of this article.
(b) 'Commissioner' means the West Virginia Insurance Commissioner.
(c) 'Exchange' means the West Virginia Health Benefit Exchange established pursuant to section three of this article.
(d) 'Federal Act' means the Federal Patient Protection and Affordable Care Act (Public Law 111-148), as amended by the federal Health Care and Education Reconciliation Act of 2010 (Public Law 111-152), and any amendments thereto, or regulations or guidance issued thereunder.
(e) 'Health carrier' or 'carrier' means an entity subject to the insurance laws of this state, or subject to the jurisdiction of the commissioner, that contracts or offers to contract to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services, including a sickness and accident insurance company, a health maintenance organization, a nonprofit hospital and health service corporation, or any other entity providing a plan of health insurance, health benefits or health services.
(f) 'Secretary' means the Secretary of the United States Department of Health and Human Services.
(g) 'SHOP Exchange' means the Small Business Health Options Program established under this article.
(h) 'Small employer' means an employer that employed an average of not more than fifty employees during the preceding calendar year.
§33-16G-3. Establishment of exchange.
(a) There is established within the Offices of the Insurance Commissioner an entity known as the West Virginia Health Benefit Exchange. This is a governmental entity of the state.
(b) The exchange shall pursue available federal funding for operation of the exchange and shall promulgate rules necessary to obtain federal recognition of the exchange as a certified exchange under the Federal Act.
(c) The exchange may accept gifts, grants and bequests, contract with other persons, and enter into memoranda of understanding with other governmental agencies to carry out any of its functions, including agreements with other states to perform joint administrative functions. The provisions of article three, chapter five-a of this code relating to the Purchasing Division of the Department of Administration do not apply to these contracts: Provided, That these contracts shall be awarded on a competitive basis. The exchange may not enter into contracts with any health insurance carrier or an affiliate of a health insurance carrier.
(d) The exchange may enter into information-sharing agreements with federal and state agencies and other state exchanges to carry out its responsibilities under this article, provided such agreements include adequate protections with respect to the confidentiality of the information to be shared and comply with all state and federal laws and regulations.
§33-16G-4. Duties of exchange; decrease in funding or invalidation of the Federal Act.
(a) In carrying out the duties under this article, the exchange shall:
(1) Consult with stakeholders, including but not limited to consumers, carriers, producers, providers and advocates for hard to reach populations; and
(2) Meet the following financial integrity requirements:
(A) Keep an accurate accounting of all activities, receipts and expenditures and annually submit to the secretary, the Governor, the commissioner and the Legislature a report concerning such accountings;
(B) Fully cooperate with any investigation conducted by the secretary pursuant to the secretary's authority under the Federal Act and allow the secretary, in coordination with the Inspector General of the United States Department of Health and Humans Services, to:
(i) Investigate the affairs of the exchange;
(ii) Examine the properties and records of the exchange; and
(iii) Require periodic reports in relation to the activities undertaken by the exchange; and
(C) In carrying out its activities under this article, not use any funds intended for the administrative and operational expenses of the exchange for staff retreats, promotional giveaways, excessive executive compensation or promotion of federal or state legislative and regulatory modifications.
(b) (1) The implementation of the provisions of this article, other than this subsection, section three of this article, and section five of this article, shall be contingent on a determination by the board that sufficient financial resources exist or will exist in the fund, which determination shall be based on, at a minimum:
(A) Financial projections identifying that sufficient resources exist or will exist in the fund to implement the exchange; and
(B) A comparison of the projected resources available to support the exchange and the projected costs of activities required by this article.
(2) In the event any portion of the Federal Act or of any regulation or other guidance issued thereunder is legislatively or judicially invalidated and rendered of no effect in this state, the board shall immediately issue a bulletin setting forth its legal opinion as to the effect of such legislative or judicial action on the legal status of the corresponding provisions of such act, regulation or guidance as set forth in this article or in rules promulgated hereunder; the board shall also issue recommendations to the Legislature for amendments to this article necessitated by such judicial or legislative action.
§33-16G-5. Establishment of governing board of the exchange; reports; training.
(a) The exchange shall operate subject to the supervision and control of a governing board. The powers conferred upon the board by this article and the carrying out of its purposes and duties shall be considered to be essential governmental functions and for a public purpose. The Governor shall appoint a chairperson of the board from the membership set forth in subsection (b) of this section, with the advice and consent of the Senate.
(b) The board shall be composed of the following members:
(1) Four voting ex officio members: The Commissioner; the Commissioner of the West Virginia Bureau for Medical Services; the Director of the West Virginia Children's Health Insurance Program; and the Chair of the West Virginia Health Care Authority. Ex officio members may designate a representative to serve in his or her place;
(2) Four persons appointed by the Governor with advice and consent of the Senate, each to represent the interests of one of the following groups: Individual health care consumers; small employers; organized labor; and insurance producers;
(3) One person to represent the interests of payors who is selected by majority vote of an advisory group comprising representatives of the ten carriers with the highest health insurance premium volume in this state in the preceding calendar year, as certified by the commissioner. Beginning in 2014, the advisory group shall be comprised only of representatives of those carriers that are offering qualified plans in the exchange regardless of premium volume: Provided, That the member selected pursuant to this paragraph may not be an employee of a carrier or an affiliate of a carrier eligible to select such member; and
(4) One person to represent the interests of health care providers selected by the majority vote of an advisory group comprised of a representative of each of the following: West Virginia Association of Free Clinics, West Virginia Hospital Association, West Virginia State Medical Association, West Virginia Primary Care Association, West Virginia Nurses Association, West Virginia Society of Osteopathic Medicine, West Virginia Academy of Family Physicians, West Virginia Pharmacists Association, West Virginia Dental Association, West Virginia Behavioral Health Care Providers, West Virginia Chiropractic Society, West Virginia Optometric Association, West Virginia Podiatric Medical Association, West Virginia Physical Therapists Association, and a full-time health officer of a county or regional health department selected by all full-time health officers of all county or regional health departments.
(5) Selection of board members pursuant to paragraphs (3) and (4) of this subdivision shall be conducted in a manner and at such times designated by the chair of the board.
(6) Each member appointed pursuant to paragraph (2) of this section or selected pursuant to paragraph (3) or (4) of this subsection shall serve a term of four years and is eligible to be reappointed, except that the term of each of the four persons initially appointed pursuant to paragraph (2) of this section to represent the groups listed therein shall be as follows: Individual consumer, one year; small employers, two years; labor, three years; and producers, four years. Any appointed or selected member whose term has expired may continue to serve until either he or she has been reappointed or his or her successor has been duly appointed or selected.
(c) Board members may be removed by the Governor for cause.
(d) Members of the board are not entitled to compensation for services performed as members but are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties.
(e) Seven members of the board constitute a quorum, and the affirmative vote of six members is necessary for any action taken by vote of the board. No vacancy in the membership of the board impairs the rights of a quorum by such vote to exercise all the rights and perform all the duties of the board.
(f) The board may employ an executive director who has overall management responsibility for the exchange and such employees as may be necessary. The executive director and employees of the exchange shall receive a salary as provided by the board. The executive director and all employees of the board are exempt from the classified service and not subject to the procedures and protections provided by article two, chapter six-c of this code and article six, chapter twenty-nine of this code;
(g) The board may establish ad hoc or standing advisory committees of consumers and other stakeholder groups or interested parties to study particular policy issues and to advise the board.
(h) The board shall make an annual report to the Governor and also file it with the Joint Committee on Government and Finance. The report shall summarize the activities of the exchange in the preceding calendar year.
(i) Neither the board nor its employees are liable for any obligations of the exchange. No member of the board or employee of the exchange is liable and no cause of action of any nature may arise against them for any act or omission related to the performance of their powers and duties under this article unless the act or omission constitutes willful or wanton misconduct. The board may provide in its bylaws or rules for indemnification of, and legal representation for, its members and employees.
(j) Members of the board shall receive governmental ethics training within the first six months of being appointed. Additional ethics training is required for board members at least every two years thereafter.
§33-16G-6. Funding; publication of costs.
(a) On and after July 1, 2011, the board is authorized to assess fees on health carriers selling qualified dental plans or health benefit plans in this state, including health benefit plans sold outside the exchange, and shall establish the amount of such fees and the manner of the remittance and collection of such fees in legislative rules. Fees shall be based on premium volume of the qualified dental plans or health benefit plans sold in this state and shall be for the purpose of operation of the exchange.
(b) The exchange shall publish the average costs of licensing, regulatory fees and any other payments required by the exchange, and the administrative costs of the exchange, on an Internet website to educate consumers on such costs. This information shall include information on moneys lost to waste, fraud and abuse.
§33-16G-7. Rules.
The board may promulgate emergency rules and propose legislative rules for adoption by the Legislature pursuant to the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article. Emergency or legislative rules promulgated under this section may not conflict with or prevent the application of the federal act or regulations promulgated by the secretary under such act.
§33-16G-8. Relation to other laws.
Nothing in this article, and no action taken by the exchange pursuant to this article, preempts or supersedes the authority of the commissioner to regulate the business of insurance within this state and, except as expressly provided to the contrary in this article, all health carriers offering qualified health plans in this state shall comply fully with all applicable health insurance laws of this state and orders issued by the commissioner.
§33-16G-9. Special revenue account created.
(a) There is hereby created a special revenue account in the State Treasury, designated the 'West Virginia Health Benefits Exchange Fund', which shall be an interest-bearing account and may be invested in the manner permitted by article six, chapter twelve of this code, with the interest income a proper credit to the fund, unless otherwise designated in law. The fund shall be administered by the board and used to pay all proper costs incurred in implementing the provisions of this article. Moneys deposited into this account are available for expenditure as the board may direct in accordance with the provisions of this article. Expenditures shall be for the purposes set forth in this article, are authorized from collections and do not revert to the General Fund.
(b) The following shall be paid into this account:
(1) All funds from the federal government received and dedicated to or otherwise able to be used for the purposes of this article;
(2) All other payments, gifts, grants, bequests or income from any source;
(3) Fees on health carriers established by the board; and
(4) Appropriations from the Legislature."
Delegate J. Miller moved to amend the Finance Committee amendment on page eleven, following line five, by adding the following new section.
"33-16G- . No taxpayer funding of elective abortions; no qualified plan offered in the exchange to cover elective abortions.
(a) No tax dollars spent pursuant to this article shall be used to fund elective abortions.
(b) No qualified health plan offered in the exchange shall cover elective abortions."
And renumbering the remaining sections accordingly.
Delegate Boggs arose to a point of order as to the germaneness of the amendment, which point of order the Speaker ruled was well taken but put the question before the House.
On the germaneness of the amendment, the Speaker propounded, "Will the House consider J. Miller Amendment #1?"
On this question, the yeas and nays having been ordered, they were taken (Roll No. 370), and there were--yeas 29, nays 69, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Border, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was not considered.
Delegates Canterbury, Hamilton, Householder, Howell and Sigler noted to the Clerk that they had unintentionally voted in the negative on Roll No. 370, their intent was to have voted "Yea" on the motion to consider the amendment by Delegate J. Miller.
Delegate Miller J. moved to amend the Finance Committee amendment on page two, line eleven, following the word "action", by inserting the following:
"This article shall expire if the Patient Protection and Affordable Care Act of 2010, P.L. 111-148, as amended by the Health Care and Education Reconciliation Act of 2010, P.L. 111-152, and any amendments thereto, or regulations or guidance issued thereunder is ruled unconstitutional by any United States District Court, any United States Circuit Court of Appeals, or the United States Supreme Court."
Delegate Cowles was debating the bill and during the course of his remarks, Delegate Caputo arose to a point of order regarding House Rule 32, stating that Delegate Cowles had violated the rule by referring to *the President by name, which point of order the Speaker ruled was well taken, and admonished the members to maintain decorum in debate.
On the adoption of the amendment, Delegate J. Miller demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 371), and there were--yeas 36, nays 62, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, Michael, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner, Walters and White.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected.
Delegate Miller J. moved to amend the amendment on page three, following line thirteen by adding the following new section.
"§33-15F-. Expiration date.
This article shall expire and be of no effect after June 30, 2016 unless the Legislature reenacts this article at that time."
On the adoption of the amendment, Delegate J. Miller demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 372), and there were--yeas 34, nays 64, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected.
Delegate Miller J. moved to amend the amendment on page three following line thirteen, by adding the following:
"§33-15F-. Effective date.
This article shall take effect July 1, 2013."
And renumbering the remaining sections accordingly.
On the adoption of the amendment, Delegate J. Miller demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 373), and there were--yeas 34, nays 64, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected.

Delegate Miller J. moved to amend the amendment on page eleven, following line five, by adding the following new section.
"§33-16G-. Effective date.
This article shall take effect July 1, 2013, and renumbering the remaining sections accordingly. On the adoption of the amendment, Delegate J. Miller demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 374), and there were--yeas 32, nays 66, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Azinger, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected.
Delegate Miller J. moved to amend the amendment on page eleven, following line five by inserting the following:
"§33-16G-. All qualified individuals shall provide proof of citizenship or legal status.
All qualified individuals shall provide to the exchange proof of citizenship or legal status before enrolling."
And by renumbering the remaining sections accordingly
Delegate Boggs arose to a point of order as to the germaneness of the amendment.
The Speaker stated that he had been advised by the Clerk that there was ample precedent to submit the question of consideration to the House.
Whereupon, the Speaker propounded, "Will the House consider the J. Miller Amendment #6?"
On this question, the yeas and nays having been ordered, they were taken (Roll No. 375), and there were--yeas 33, nays 65, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting not having voted in the affirmative, the House refused to consider the J. Miller amendment #6.
Delegate Miller J. moved to amend the Finance committee amendment on page six, line five, by striking out the word "Four" and inserting in lieu thereof the word "Ten".
On page six, line six following the word "Senate" by inserting the words "two of each".
And,
On page six, line eight, following the word "employers", by adding the words "large employers".
On the adoption of the amendment, Delegate J. Miller demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 376), and there were-yeas 35, nays 63, absent and not voting 2, with the yeas and absent and not voting being as follows: Yeas: Anderson, Armstead, Ashley, Azinger, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Staggers, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected.
Delegate Miller J. moved to amend the amendment on page eleven, following line five by adding the following new section.
"33-16G- . Commissioner required to request a waiver.
(a) Within 90 days of enactment of this article, the commissioner shall request from the secretary a waiver to implement the exchange by January 1, 2016 instead of January 1, 2014.
The reason for requesting the waiver is to allow the American people and the people of this state to speak in the 2012 Election and to allow proper time for implementation if the American people and the people of this state change their opposition to the federal act to support for the federal act.
(b) The commissioner shall report to the Legislature, in writing, the request when it is made and, in writing, the response to the request from the secretary when it is made.
(c) If the commissioner does not make the request as required by subsection a, section eleven of this article, the commissioner and the board shall halt implementation of this article."
And renumbering the remaining sections accordingly
On the adoption of the amendment, Delegate J. Miller demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 377), and there were--yeas 35, nays 63, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Border, Cann, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected.
Delegate Miller J. moved to amend the amendment on page eleven, line five, by striking out the words "(4) Appropriations from the Legislature" and adding the following new subsection.
"(c) No money shall be appropriated by the Legislature to implement the provisions of this article. If the exchange created by this article cannot sustain itself through the funding sources listed in subsection b, section 10 of this article, then the exchange shall immediately cease to function."
On the adoption of the amendment, Delegate J. Miller demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 378), and there were--yeas 34, nays 64, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected.
There being no further amendments, the amendment of the Committee on Finance was adopted.
Conference Committee Report Availability

At 3:53 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 2532, Zipline Responsibility Act.
Third Reading

-Continued-

On motion of Delegate Boggs, the report of the Committee of Conference as to Com. Sub. for S. B. 408 was adopted.
Delegates Ashley, Hamilton, Pasdon and Walters requested to be excused from voting on the passage of Com. Sub. for S. B. 408 under the provisions of House Rule 49.
The Speaker replied that the Delegates were members 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 Members from voting.
The bill, as amended by said report, was then put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 379), and there were--yeas 63, nays 35, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Moye, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 408) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 380), and there were--yeas 64, nays 34, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Ellington, Evans, Gearheart, Hamilton, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Andes and Crosier.
So, two thirds of the members elected to the House of Delegates not having voted in the affirmative, the Speaker declared the motion to take effective from passage rejected.
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 messages from 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
S. B. 331, Correcting invalid code reference in definition of "eligible taxpayer".
The message further announced that the President of the Senate had appointed as conferees on the part the Senate the following::
Senators D. Facemire, Yost and Sypolt.
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. 242, Dedicating portion of coal severance tax to county of origin.
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 Kominar, Varner and Evans.
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 concurrence in the amendment of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 186, Relating to issuing subpoena to aid in criminal investigations involving certain crimes against minors,
Com. Sub. for S. B. 213, Relating to crimes using computers, telephones and electronic devices,
Com. Sub. for S. B. 592, Requiring schools have crisis response plans,
And,
Com. Sub. for S. B. 612, Exempting certain schools and school districts from certain statutory provisions.
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. 495, Relating generally to use of electronic voting systems,
And,
Com. Sub. for S. B. 544, Relating to municipal policemen's and firemen's pension and relief funds.

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 July 1, 2011, of
Com. Sub. for S. B. 328, Relating to issuance, disqualification, suspension and revocation of driver's licenses.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 2362, Increasing penalties for financial exploitation of an elderly person or incapacitated adult.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Williams, Wills and Nohe.
On motion of Delegate Boggs, the House of Delegates agreed to the appointment of a Committee of Conference of 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 Caputo, Barker and Ellem.
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 three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 2663, Relating to public service commissioners presiding at hearings.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Miller, Williams and Sypolt.
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 Frazier, Moore and C. Miller.
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 three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 2745, Providing that certain information provided by insurance companies to the Insurance Commissioner is confidential.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Minard, Jenkins and Hall.
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 Michael, Poore and Ireland.
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 three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 2757, Providing for evaluation of professional personnel in the public schools.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Browning, Tucker and Boley.
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 Perry, Shaver 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 passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 3144, Creating a criminal offense and adding misdemeanor criminal penalties for picketing or disrupting funerals.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-15. Regulating disruptive behavior at or near funeral, burial, cremation or memorial services.

(a) Any person who willfully engages in boisterous conduct or makes unreasonably loud noise with the intent to disrupt the conducting of a funeral, burial, cremation or memorial service of a member or past member of the armed Forces of the United States after being requested to desist by a law-enforcement officer acting in his or her official capacity shall be guilty of a misdemeanor. (b) Any person who without legal authority willfully hinders and obstructs the ingress or egress of attendees at a funeral, burial, cremation or memorial service of a member or past member of the armed Forces of the United States shall be guilty of a misdemeanor.
(c) The provisions of subsections (a) and (b) of this section apply to behavior occurring sixty minutes before and sixty minutes after the service and within three hundred feet of the property line of the building or site where the funeral, burial, cremation or memorial service is held.
(d) As used in this section, 'armed forces of the United States' means the United States Army, Navy, Marines, Coast Guard, Army Reserve and National Guard.
(e) Any person who violates the provisions of subsection (a) and (b) this section shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than six months or fined not more than $1,000, or both."
On motion of Delegate Boggs, the House refused to concur in the Senate amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
At 4:05 p.m., on motion of Delegate Boggs, the House of Delegates recessed until 7:00 p.m., and reconvened at that time.
* * * * * * *

Evening Session

* * * * * * *

Reordering of the Calendar

Delegate Boggs announced that the Committee on Rules had transferred the following bills as follows:
Com. Sub. for H. B. 2368, on unfinished business, House Calendar, to the Special Calendar,
Com. Sub. for S. B. 241, on third reading, House Calendar, to the Special Calendar,
Com. Sub. for S. B. 243, on third reading, House Calendar, to the Special Calendar,
Com. Sub. for S. B. 424, on third reading, Special Calendar to the bottom of third reading, Special Calendar,
S. B. 616, on third reading, Special Calendar to follow Som. Sub. for S. B. 570, on third reading, Special Calendar,
And,
Com. Sub. for S. B. 465, on third reading, Special Calendar, to follow S. B. 616, on third reading,, Special Calendar.
Com. Sub. for S. B. 570, on third reading, Special Calendar to the top of third reading, Special Calendar,
Com. Sub. for S. B. 570, Creating Volunteer for Nonprofit Youth Organizations Act; 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 the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §29-29-1, §29-29-2, §29-29-3, §29-29-4, §29-29-5, §29-29-6, and §29-29-7, all to read as follows:
ARTICLE 29. VOLUNTEER FOR NONPROFIT YOUTH ORGANIZATIONS ACT.
§29-29-1. Short title
.
This article shall be known as and may be cited to as the 'Volunteer for Nonprofit Youth Organizations Act'.
§29-29-2. Legislative purpose.
The Legislature finds that:
(1) Adventure and recreational activities attractive to nonprofit youth organizations interested in training and inspiring young people from other parts of the United States and throughout the world will contribute significantly to the economy of West Virginia, and enhance the state's reputation as a place to visit and transact business; and
(2) Nonprofit youth organizations must rely on volunteers to staff and support their events and programs and that some of the volunteers are medical, nursing, emergency medical service and law- enforcement professionals authorized to practice in other states. Because of the large number of volunteers required to support those events and programs, the benefits these events and programs provide to youth, the multicounty areas those events and programs may cover and the number of agencies potentially involved in granting authorizations to practice for those volunteers to provide those services in this state, it is in the state's best interest to provide a streamlined system to permit those volunteers to practice for the periods of time they engage in volunteer work at those events and programs.
§29-29-3. Definitions.
As used in this article:
(a) 'Applicant' means any emergency medical service applicant, law-enforcement applicant or medical services applicant, that is registered as a volunteer of the nonprofit organization, making application for a nonprofit volunteer permit under the provisions of this article.
(b) 'Appropriate licensing agency' means the board, department, division or other agency in each jurisdiction charged with the licensing, certification or permitting of persons performing services of the nature and kind described or duties provided for in this article.
(c) 'Emergency medical service applicant' means a person authorized to provide emergency medical services in West Virginia, or in another state who but for this article would be required to obtain a certification from the Commissioner of the Bureau for Public Health pursuant to article eight, chapter sixteen of this code to perform emergency medical services in this state.
(d) 'Law-enforcement applicant' means a person authorized to work as a law-enforcement officer in West Virginia, or in another state who but for this article would be required to obtain authorization pursuant to article twenty-nine, chapter thirty of this code to work as a law-enforcement officer in this state: Provided, That any person authorized to work as a law-enforcement officer in another state shall have completed a training program approved by the governing authority of a political subdivision in order to work as a law-enforcement officer in that state.
(e) 'Medical services applicant' means a person authorized to provide medical services in West Virginia, or in another state who but for this article would be required to obtain authorization to practice in this state, and who is a:
(1) Practitioner of medicine or surgery as defined in article three, chapter thirty of this code;
(2) Physician assistant as defined in section three, article three, chapter thirty of this code;
(3) Dentist or dental assistant as defined in article four, chapter thirty of this code;
(4) Nurse as defined in article seven or seven-a, chapter thirty of this code;
(5) Osteopathic physician or surgeon as defined in article fourteen, chapter thirty of this code;
(6) Osteopathic physician assistant as defined in article fourteen-a, chapter thirty of this code; and
(7) Physical therapist as defined in article twenty, chapter thirty of this code;
(f) 'Nonprofit volunteer permit' or 'permit' means a permit issued to an applicant pursuant to the provisions of this article.
(g) 'Nonprofit volunteer permittee' or 'permittee' means a person holding a nonprofit volunteer permit issued under the provisions of this article.
(h) 'Nonprofit youth organization' or 'organization' means any nonprofit organization, including any subsidiary, affiliated or other related entity within its corporate or business structure, that has been chartered by the United States Congress to help 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.
(i) 'Nonprofit volunteer organization medical director' means an individual licensed in West Virginia as a practitioner of medicine or surgery pursuant to article three, chapter thirty of this code, or an individual licensed in West Virginia as a osteopathic physician or surgeon pursuant to article fourteen, chapter thirty of this code, that has been designated by the nonprofit volunteer organization to serve as the medical director for an event or program offered by the organization.
§29-29-4. Exemption from professional licensure.
(a) Notwithstanding any other provision of this code, any individual rendering services in this state in connection with any event or program offered by the nonprofit youth organization is exempt from obtaining an authorization to practice from the appropriate licensing agency of this state while providing services within the limits of his or her authorization to practice, but is required to obtain a nonprofit volunteer permit.
(b) The nonprofit youth organization may issue a nonprofit volunteer permit to an applicant, who is a registered volunteer of the nonprofit youth organization serving as a volunteer, without compensation, in connection with any event or program offered by the organization, if:
(1) All authorizations held by the medical services applicant are valid, unrestricted without limitation or condition and in good standing: Provided, That any medical services applicant issued a permit pursuant to this article shall:
(A) Not have prescriptive authority;
(B) Not dispense a Schedule II or Schedule III controlled substance, but may dispense pharmaceutical drugs in a manner consistent with the applicant's training and experience; and
(C) At all times be subject to the direction of nonprofit volunteer organization medical director.
(2) All authorizations held by the law-enforcement applicant are valid, unrestricted without limitation or condition and in good standing and the applicant is deputized by the Superintendent of the West Virginia State Police prior to rendering any law-enforcement services: Provided, That:
(A) Any permit issued pursuant to this article shall not supersede the authority or duty of a law-enforcement officer certified pursuant to article twenty-nine, chapter thirty of this code to preserve law and order on the premises;
(B) The Superintendent of the West Virginia State Police has sole discretion in determining whether to deputize any law-enforcement applicant; and
(C) The jurisdiction for a law-enforcement applicant issued a permit pursuant to the provisions of this article shall be limited to:
(i) The property owned by the nonprofit youth organization;
(ii) Any street, road or thoroughfare, except controlled access and open country highways, immediately adjacent to or passing through the property owned by the nonprofit youth organization; and
(iii) Areas of operations in support of an event sponsored by the nonprofit youth organization.
(D) A law-enforcement applicant issued a permit pursuant to the provisions of this article shall at all times be subject to the direction of the Superintendent of the West Virginia State Police.
(3) All authorizations held by the emergency medical service applicant are valid, unrestricted without limitation or condition and in good standing: Provided, That any emergency medical service applicant issued a permit pursuant to this article shall:
(A) Not have prescriptive authority;
(B) Not dispense a Schedule II or Schedule III controlled substance, but may dispense pharmaceutical drugs in a manner consistent with the applicant's training and experience; and
(C) At all times be subject to the direction of nonprofit volunteer organization medical director.
(c) Any services rendered by a permittee shall at all times be performed under the guidelines and instructions of the nonprofit volunteer organization.
(d) A nonprofit volunteer permit issued pursuant to the provisions of this article may only be valid for a period not to exceed ninety days in a calendar year.
§29-29-5. Powers and duties of nonprofit youth organization.
(a) Before the nonprofit youth organization may issue a nonprofit volunteer permit to an applicant, the organization shall:
(1) Gather and maintain the following information for each applicant:
(A) The applicant's name, position, address and phone number;
(B) A copy of the applicant's authorization to practice from all jurisdictions in which the applicant is authorized to practice;
(2) Require documentation that the applicant has received at least two hours of instruction provided by the nonprofit youth organization, which may be accomplished by webinar, video conference or other remote means of instruction;
(3) No more than one hundred twenty days prior to any volunteer services being performed, require documentation from all jurisdictions in which the applicant authorized to practice stating that the applicant's authorization to practice is valid, in good standing and unrestricted and without limitation or condition; and
(4) Require a written acknowledgment signed by the applicant that the rules, regulations and procedures established by the nonprofit youth organization have been received and reviewed.
(b) All information and documentation maintained and gathered pursuant to this section shall be maintained in a safe and secure manner, which may be electronically, by the nonprofit youth organization for a period of ten years from the date a permit is issued to the applicant.
(c) The nonprofit youth organization providing emergency medical services shall have a license to operate an emergency medical services agency pursuant to section six-a, article four-c, chapter sixteen of this code and the Commissioner of the Bureau of Public Health may make such adjustments to the licensing standards to reflect the nature of the services provided by the permittees and the size, scope and interests being served by any event or program of such organization.
§29-29-6. Revocation of nonprofit volunteer permit.

(a) The nonprofit volunteer permit may be revoked at any time by the nonprofit volunteer organization.
(b) The nonprofit volunteer organization shall revoke a nonprofit volunteer permit and shall report the revocation to the appropriate licensing agency in every jurisdiction where the individual holds an authorization to practice for the following reasons:
(1) Professional incompetence;
(2) Professional misconduct; or
(3) Criminal activity.
§29-29-7. Liability of permittees and the nonprofit volunteer organization for volunteer services.

(a) Any claim arising out of the services provided by a permittee or the nonprofit volunteer organization pursuant to this article shall be determined in the same manner and by the same standards as if the permittee was authorized to practice in this state.
(b) The nonprofit youth organization shall carry liability insurance in limits of no less than $1 million per person, and $1 million per occurrence and $50,000 for property damage and this insurance shall extend to the acts of any nonprofit volunteer permittees providing services under this article and shall be primary to any other available insurance.
(c) The West Virginia appropriate licensing agency shall not be liable for any harm or claim arising solely out of the actions of any permittee exempt from obtaining authorization to practice in this state pursuant to this article."
On motion of Delegate Miley, the amendment recommended by the Committee on the Judiciary was amended on page six, section four, line eight, after the word "Police", by inserting the words "pursuant to subsection (e), section twelve, article two, chapter fifteen of this code".
And,
On page nine, section seven, by striking out section seven in its entirety and inserting in lieu thereof the following:
"§29-29-7. Liability of permittees and the nonprofit volunteer organization for volunteer services.

(a) Any claim arising out of the services provided by a permittee or the nonprofit volunteer organization pursuant to this article shall be determined in the same manner and by the same standards as if the permittee was authorized to practice in this state.
(b) The nonprofit youth organization shall carry liability insurance in limits of no less than $1 million per person, and $3 million per occurrence and $50,000 for property damage and this insurance shall extend to the acts of any nonprofit volunteer permittees providing services under this article and shall be primary to any other available insurance.
(c) The liability of nonprofit volunteer permittees shall be limited to the amount of liability insurance available to them under subsection (b) unless the act or omission giving rise to the permittee's liability was the result of willful misconduct: Provided, That permittees deputized by the Superintendent of the West Virginia State Police pursuant to section four of this article and subsection (e), section twelve, article two, chapter fifteen of the code, shall not be considered an insured under the terms of the liability insurance policy provided West Virginia state agencies through the state board of risk and insurance management."
(d) The West Virginia appropriate licensing agency shall not be liable for any harm or claim arising solely out of the actions of any permittee exempt from obtaining authorization to practice in this state pursuant to this article."
The amendment recommended by the Committee on the Judiciary, 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. 381), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 570) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 570 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §29-29-1, §29-29-2, §29-29-3, §29-29-4, §29-29-5, §29- 29-6 and §29-29-7, all relating to creating an exemption from licensing for nonprofit youth volunteers; exempting certain volunteers for nonprofit youth organizations from licensing, certification and permitting; exempting certain medical service professionals; exempting certain law-enforcement officers; exempting certain emergency medical service professionals; stating duties of the nonprofit youth organization; providing for the revocation of permits; and defining liability of the volunteers and the nonprofit youth organizations."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Conference Committee Report Availability

At 7:18 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 2362.
Third Reading

-Continued-

S. B. 616, Relating to post-employment benefits generally; 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 82, nays 17, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Border, Canterbury, Carmichael, Cowles, Householder, Howell, Kump, Lane, J. Miller, Pasdon, Savilla, Sigler, Snuffer and Storch.
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 616) 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. 616 - "A Bill to amend and reenact §4-11A-18 of the Code of West Virginia, 1931, as amended; to amend and reenact §5-16-3 and §5-16-5 of said code; to amend and reenact §5-16D-1 and §5-16D-6 of said code; to amend said code by adding thereto a new section, designated §15-16D- 7; to amend and reenact §11-10-5d of said code; to amend and reenact §11-21-96 of said code; to amend and reenact §11B-2-20 of said code; and to amend and reenact §18-9A-24 of said code, all relating to the provision of health insurance benefits by the Public Employees Insurance Agency generally; capping the amount the finance board may include in the financial plans as subsidy for the cost of coverage for certain retired employees; escalating the funding; requiring director to report on certain payment and delivery system reforms; authorizing the director and the finance board to change copayments and coinsurance rates under certain circumstances; defining "contractually required contribution"; authorizing the finance board to set minimum annual required contribution below annual required contribution; specifying that each participating government entity is required to remit annual contractual obligation; authorizing the Tax Commissioner to disclose certain return information to the Public Employees Insurance Agency; authorizing the transfer of certain moneys into the West Virginia Retiree Health Benefit Trust Fund from the Revenue Shortfall Reserve Fund - Part B; authorizing the transfer of $45 million to the West Virginia Health Benefit Trust Fund upon certain circumstances; authorizing the transfer of $50,400,000 to the West Virginia Health Benefit Trust Fund upon certain circumstances; specifying that the foundation allowance for Public Employees Insurance Fund shall be paid directly to the West Virginia Public Employees Insurance Agency and each county board shall reflect its share of the payment as revenue on its financial statements to offset the applicable portion of its annual contractually required contribution expense; and providing that any amount of annual contractually required contribution allocated to and billed county boards of education at any period for certain employees is a liability of the state until fully paid."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 383), and there were--yeas 87, nays 11, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Border, Carmichael, Cowles, Householder, Howell, Kump, J. Miller, Pasdon, Savilla and Sigler.
Absent and Not Voting: Boggs and Crosier.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 616) 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.
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. 2451, Relating to victim impact statements.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-2. Testimony of crime victim at sentencing hearing.
(a) For the purposes of this section, 'victim' means a person who is a victim of a felony, or where a death occurs during commission of a misdemeanor the fiduciary of a deceased victim's estate or a member of a deceased victim's immediate family or a nonrelated person who resided with the deceased victim at the time of the crime for at least twelve months preceding the crime id such person is known to the prosecutor.
(b) Prior to the imposition of sentence upon any a defendant who has been found guilty of a felony or of a misdemeanor if death occurred as a result of the crime or has pleaded guilty or nolo contendere to any a felony, or of a misdemeanor if death occurred as a result of the crime the court shall permit the victim of the crime to appear before the court for the purpose of making an oral statement for the record if the victim notifies the court of his or her desire to make such a statement after receiving notification provided in subsection (c) of this section. If the victim fails to so notify the court, such failure shall constitute constitutes a waiver of the right to make an oral statement. In lieu of such appearance and oral statement, the victim may submit a written statement to the court or to the probation officer in charge of the case. Such probation officer shall forthwith file any such the statement delivered to his or her office with the sentencing court and the statement shall be made a part of the record at the sentencing hearing. Any such statement, whether oral or written, shall relate solely to the facts of the case and the extent of any injuries, financial losses and loss of earnings directly resulting from the crime for which the defendant is being sentenced.
(c) Within a reasonable time prior to the imposition of sentence upon such defendant, the prosecuting attorney or assistant prosecuting attorney in charge of the case shall make reasonable efforts, in writing, advise the person who was the victim of such crime or, in the case of a minor, the parent or guardian of such minor or the fiduciary of his or her estate if he or she be then deceased, of the date, time and place of the original sentencing hearing and of the victim's rights to submit a written or oral statement to the sentencing court. as hereinabove provided.
(d) The oral or written statement given or submitted by any a victim in accordance with the provisions of this section shall be is in addition to and not in lieu of the victim impact statement required by the provisions of section three of this article.
§61-11A-6. State guidelines for fair treatment of crime victims and witnesses in the criminal justice system.

(a) No later than July 1, 1984, the Attorney General shall promulgate rules and regulations in accordance with the provisions of chapter twenty-nine-a of this code, establishing guidelines for law- enforcement agencies and prosecuting attorneys' offices consistent with the purposes of this article. The Attorney General shall seek the advice of the department of public safety and department of human services West Virginia State Police and Department of Health and Human Resources in preparing such rules and regulations. In preparing such rules and regulations, the following objectives shall be considered:
(1) The arresting law-enforcement agency should ensure that victims routinely receive emergency social and medical services as soon as possible and are given information on the following:
(A) Availability of crime victim compensation, where applicable;
(B) Community-based victim treatment programs;
(C) The role of the victim in the criminal justice process including what they can expect from the system as well as what the system expects from them; and
(D) Stages in the criminal justice process of significance to a crime victim and the manner in which information about such stages can be obtained.
(2) The prosecuting attorney or his or her assistant should ensure that victims and witnesses receive information on steps that law-enforcement officers and prosecuting attorneys can take to protect victims and witnesses from intimidation.
(3) All victims and witnesses who have been scheduled to attend criminal justice proceedings should be notified by the prosecuting attorneys' offices as soon as possible of any scheduling changes which will affect their appearances.
(4) Victims, witnesses, and one member of the immediate family of those victims and witnesses and any nonrelated person who resided with the victim for at least twelve months preceding the crime should, if such persons provide the appropriate official with a current address and telephone number, receive prompt advance notification, if possible, of judicial proceedings relating to their case, from the prosecuting attorney's office, including:
(A) The arrest of an accused;
(B) The initial appearance of an accused before a judicial officer;
(C) The release of the accused pending judicial proceedings; and
(D) Proceedings in the prosecution of the accused including, but not limited to, the entry of a plea of guilty, trial, sentencing, and, where a term of imprisonment is imposed, the release of the accused from such imprisonment.
(5) The victim of a serious crime, or in the case of a minor child or a homicide, the family of the victim, shall be consulted by the prosecuting attorney in order to obtain the views of the victim or family about the disposition of any criminal case brought as a result of such crime including the views of the victim or family about:
(A) Dismissal;
(B) Release of the accused pending judicial proceedings;
(C) Plea negotiations; and
(D) Pretrial diversion program.
(6) Victims and other prosecution witnesses should if practical, be provided prior to court appearance, be provided a waiting area that is separate from all other witnesses prior to court appearances, if feasible.
(7) Law-enforcement agencies should promptly return victim's victims' property held for evidentiary purposes unless there is a compelling law-enforcement reason for retaining it.
(8) A victim or witness who so requests should be assisted by law-enforcement agencies and prosecuting attorneys in informing employers that the need for victim and witness cooperation in the prosecution of the case may necessitate absence of that victim or witness from work. A victim or witness who, as a direct result of a crime or of cooperation with law-enforcement agencies or attorneys for the government, is subjected to serious financial strain, should be assisted by the appropriate state agencies in dealing with creditors.
(b) Nothing in this section shall be construed as creating a cause of action against the State of West Virginia or any of its political subdivisions.
CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 12. PROBATION AND PAROLE.
§62-12-23. Notification of parole hearing; victim's right to be heard; notification of release on parole.

(a) Following the sentencing of a person who has been convicted of murder, aggravated robbery, sexual assault in the first or second degree, kidnapping, child abuse resulting in injury, child neglect resulting in injury, arson or a sexual offense against a minor, the prosecuting attorney who prosecuted the offender shall prepare a 'Parole Hearing Notification Form'. This form shall contain the following information:
(1) The name of the county in which the offender was prosecuted and sentenced;
(2) The name of the court in which the offender was prosecuted and sentenced;
(3) The name of the prosecuting attorney or assistant prosecuting attorney who prosecuted the offender;
(4) The name of the judge who presided over the criminal case and who sentenced the offender;
(5) The names of the law-enforcement agencies and officers who were primarily involved with the investigation of the crime for which the offender was sentenced; and
(6) The names, addresses and telephone numbers of the victims of the crime for which the offender was sentenced or the names, addresses and telephone numbers of the immediate family members of each victim of the crime including, but not limited to, each victim's spouse, father, mother, brothers, and sisters and any nonrelated person who resided with an adult victim at the time of the crime and for at least twelve months preceding the crime.
(b) The prosecuting attorney shall retain the original of the Parole Hearing Notification Form and shall provide copies of it to the circuit court which sentenced the offender, the Parole Board, the Commissioner of Corrections and to all persons whose names and addresses are listed on the 'Parole Hearing Notification Form'. form.
(c) At least forty-five days prior to the date of a parole hearing, the Parole Board shall notify all persons who are listed on the Parole Hearing Notification Form of the date, time and place at which a parole hearing will be held. of the hearing. Such notice shall be sent by certified mail, return receipt requested. The notice shall state that the victims of the crime have the right to submit a written statement to the Parole Board and to attend the parole hearing to be heard regarding the propriety of granting parole to the prisoner. The notice shall also state that only the victims may submit written statements and speak at the parole hearing unless a victim is deceased, is a minor or is otherwise incapacitated.
(d) The panel considering the parole shall inquire during the parole hearing as to whether the victims of the crime or their representatives, as provided in this section, are present. If so, the panel shall permit those persons to speak at the hearing regarding the propriety of granting parole for the prisoner.
(e) If the panel grants parole, it shall immediately set a date on which the prisoner will be released. Such date shall be no earlier than thirty days after the date on which parole is granted. On the date on which parole is granted, the Parole Board shall notify all persons listed on the Parole Hearing Notification Form that parole has been granted and that the prisoner will be released on a particular date. the date of release. A written statement of reasons for releasing the prisoner, prepared pursuant to subdivision (4), subsection (b), section thirteen of this article, shall be provided upon request to all persons listed on the Parole Hearing Notification Form."
And, by amending the enacting section to read as follows:
"That §61-11A-2 and §61-11A-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §62-12-23 of said code be amended and reenacted, all to read as follows" followed by a colon.
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.
Special Calendar

Third Reading

-Continued-

Com. Sub. for S. B. 465, Creating Marcellus Gas and Manufacturing Development Act; on third reading, coming up in regular order, with restricted right to amend, was reported by the Clerk.
On motion of Delegate White, the bill was amended on page three, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5B-2H-1 and §5B-2H-2; that said code be amended by adding thereto a new section, designated §11-1C-11c; that §11-6D-1, §11-6D-2, §11-6D-3, §11-6D-4, §11-6D-5, §11-6D- 6, §11-6D-7 and §11-6D-8 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §11-6D-9; that §11-6F-2 and §11-6F-3 of said code be amended and reenacted; that §11-13Q-20 of said code be amended and reenacted; that §11-13R-3 of said code be amended and reenacted; that §11-13S-3 and §11-13S-4 of said code be amended and reenacted; that §11-15-8d of said code be amended and reenacted; and that §24-2F-3 of said code be amended and reenacted, all to read as follows:
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

ARTICLE 2H. MARCELLUS GAS AND MANUFACTURING DEVELOPMENT ACT.
§5B-2H-1. Short Title.
This article shall be known and cited as the 'Marcellus Gas and Manufacturing Development Act.'
§5B-2H-2. Legislative findings; declaration of public policy.
(a) The Legislature finds that:
(1) The advent and advancement of new and existing technologies and drilling practices have created the opportunity for the efficient development of natural gas contained in underground shales and other geological formations.
(2) With development of the Marcellus shale comes the opportunity for economic development in related areas of the economy including, but not limited to, manufacturing, transmission of natural gas and related products and the transportation of manufactured products.
(3) It is in the interest of national security to encourage post-production uses of natural gas and its various components as a replacement for oil imported from other countries.
(4) Producers of natural gas, transporters of natural gas and manufacturers of products using natural gas face a significant number of regulatory requirements, some of which may be redundant, inconsistent, or overlapping. Agencies should work together, where practical, to avoid duplication, promote better coordination and reduce these requirements, thus reducing costs, simplifying and harmonizing rules and streamlining regulatory oversight.
(5) In developing regulatory actions and identifying appropriate approaches, agencies should attempt to promote coordination, simplification, and harmonization.
(6) Agencies should also seek to identify, as appropriate, means to achieve regulatory goals that are designed to promote innovation.
(7) Agencies should review their existing significant legislative, interpretive and procedural rules to determine whether any such rules should be modified, streamlined, expanded or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.
(8) The West Virginia Economic Development Authority established in article fifteen, chapter thirty-one of this code and the West Virginia Infrastructure and Jobs Development Council created in article fifteen-a, chapter thirty-one of this code, should, where appropriate, provide assistance that grows or sustains this segment of the economy.
(b) The Legislature declares that facilitating the development of business activity directly and indirectly related to development of the Marcellus shale serves the public interest of the citizens of this state by promoting economic development and improving economic opportunities for the citizens of this state.
CHAPTER 11. TAXATION.

ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.
§11-1C-11c. Valuation of oil and gas drilling rigs.
Notwithstanding any provision of this code to the contrary and to facilitate the equal and uniform taxation of oil and natural gas drilling rigs throughout the state, the State Tax Commissioner shall annually compile a schedule of oil and natural gas drilling rig values based on the values shown in a nationally recognized guide or bulletin published during the calendar year that includes the assessment date, using the appropriate depth rating assigned to the drawworks by its manufacturer and the actual condition of the drilling rig. The State Tax Commissioner shall furnish the schedule to each assessor and it shall be used by him or her as a guide in placing the assessed values on all oil and natural gas drilling rigs in his or her county. This section applies to assessment years beginning on and after July 1, 2011.
ARTICLE 6D. ALTERNATIVE-FUEL MOTOR VEHICLES TAX CREDIT.
§11-6D-1. Legislative findings and purpose.
Consistent with the public policy as stated in section one, article two-d, chapter twenty-four of this code, the Legislature hereby finds that the use of alternative fuels is in the public interest and promotes the general welfare of the people of this state insofar as it addresses serious concerns for our environment and our state's and nation's dependence on foreign oil as a source of energy. The Legislature further finds that this state has an abundant supply of alternative fuels and an extensive supply network and that, by encouraging the use of alternatively-fueled motor vehicles, the state will be reducing its dependence on foreign oil and attempting to improve its air quality. The Legislature further finds that the wholesale cost of fuel for certain alternatively-fueled motor vehicles is significantly lower than the cost of fueling traditional motor vehicles with oil based fuels.
However, because the cost of motor vehicles which utilize alternative-fuel technologies remains high in relation to motor vehicles that employ more traditional technologies, citizens of this state who might otherwise choose an alternatively-fueled motor vehicle are forced by economic necessity to continue using motor vehicles that are fueled by more conventional means. Additionally, the availability of commercial and residential infrastructure to support alternatively-fueled vehicles available to the public is inadequate to encourage the use of alternatively-fueled motor vehicles. It is the intent of the Legislature that the alternative fuel motor vehicle tax credit previously expired in 2006 be hereby reinstated with changes and amendments as set forth herein. Therefore, in order to encourage the use of alternatively-fueled motor vehicles and possibly reduce unnecessary pollution of our environment and reduce our dependence on foreign sources of energy, there is hereby created an alternative-fuel motor vehicles tax credit and an alternative-fuel infrastructure tax credit.
§11-6D-2. Definitions.
As used in this article, the following terms have the meanings ascribed to them in this section:
(a) 'Alternative fuel' includes:
(1) Compressed natural gas;
(2) Liquified natural gas;
(3) Liquified petroleum gas;
(4) Methanol;
(5)(4) Ethanol;
(6)(5) Fuel mixtures that contain eighty-five percent or more by volume, when combined with gasoline or other fuels, of the following:
(A) Methanol;
(B) Ethanol; or
(C) Other alcohols;
(6) Natural gas hydrocarbons and derivatives;
(7) Hydrogen;
(7) (8) Coal-derived liquid fuels; and
(8) (9) Electricity, including electricity from solar energy.
(b) 'Alternative-fuel motor vehicle' means a motor vehicle that as a new or retrofitted or converted fuel vehicle:
(1) Operates solely on one alternative fuel;
(2) Is capable of operating on one or more alternative fuels, singly or in combination; or
(3) Is capable of operating on an alternative fuel and is also capable of operating on gasoline or diesel fuel.
(c) 'Bi-fueled' means the ability of an alternative-fuel motor vehicle to operate on an alternative fuel and another form of fuel.
(d) 'Lug-in hybrid electric vehicle' means:
(1)A plug-in hybrid electric vehicle manufactured by an established motor vehicle manufacturer of plug-in hybrid electric vehicles that can operate solely on electric power and that is capable of recharging its battery from an on-board generation source and an off-board electricity source; and
(2) A plug-in hybrid electric vehicle conversion that provides an increase in city fuel economy of seventy-five percent or more as compared to a comparable nonhybrid version vehicle for a minimum of twenty miles and that is capable of recharging its battery from an on-board generation source and an off-board electricity source. A vehicle is comparable if it is the same model year and the same vehicle class as established by the United States Environmental Protection Agency and is comparable in weight, size and use. Fuel economy comparisons shall be made using city fuel economy standards in a manner that is substantially similar to the manner in which city fuel economy is measured in accordance with procedures set forth in 40 C.F.R. 600 as in effect on January 1, 2011.
(e) 'Qualified alternative fuel vehicle refueling infrastructure' means property owned by the applicant for the tax credit and used for storing alternative fuels and for dispensing such alternative fuels into fuel tanks of motor vehicles, including, but not limited to, compression equipment, storage tanks and dispensing units for alternative fuel at the point where the fuel is delivered: Provided, That the property is installed and located in this state and is not located on a private residence or private home.
(f) 'Qualified alternative fuel vehicle home refueling infrastructure' means property owned by the applicant for the tax credit located on a private residence or private home and used for storing alternative fuels and for dispensing such alternative fuels into fuel tanks of motor vehicles, including, but not limited to, compression equipment, storage tanks and dispensing units for alternative fuel at the point where the fuel is delivered or for providing electricity to plug-in hybrid electric vehicles or electric vehicles: Provided, That the property is installed and located in this state.
(g) 'Taxpayer' means any natural person, corporation, limited liability company or partnership subject to the tax imposed under article twenty-one, article twenty-three or article twenty-four of this chapter or any combination thereof.
§11-6D-3. Credit allowed for alternative-fuel motor vehicles and qualified alternative fuel vehicle refueling infrastructure; application against personal income tax, business franchise tax or corporate net income tax; effective date.

The tax credit credits for the purchase of alternative-fuel motor vehicles or conversion to alternative-fuel motor vehicles, qualified alternative fuel vehicle refueling infrastructure and qualified alternative fuel vehicle home refueling infrastructure provided in this article may be applied against the tax liability of a taxpayer imposed by the provisions of either article twenty-one, article twenty- three or article twenty-four of this chapter but in no case may more than one credit be granted for the same alternative-fuel motor vehicle as defined in subdivision (b), section two of this article. This credit shall be available for those tax years beginning on or after June 30, 1997 January 1, 2011.
§11-6D-4. Eligibility for credit.
A taxpayer is eligible to claim the credit against tax provided in this article if he or she:
(a) Converts a motor vehicle that is presently registered in West Virginia to operate exclusively on an alternative fuel as defined in subdivision (a), section two of this article; or
(1) Exclusively on an alternative fuel as defined in subdivision (a), section two of this article; or
(2) In a dual fuel mode, as defined in paragraph (6), subdivision (a), section two of this article;
(b) Purchases from an original equipment manufacturer or an after-market conversion facility or any other automobile retailer, a new dedicated or dually fueled bi-fueled alternative-fuel motor vehicle for which the taxpayer then obtains a valid West Virginia registration; or
(c) Constructs or purchases and installs qualified alternative fuel vehicle refueling infrastructure or qualified alternative fuel vehicle home refueling infrastructure that is capable of dispensing alternative fuel for alternative-fuel motor vehicles.
(c) (d) The credit provided in this article is not available to and may not be claimed by any taxpayer under any obligation pursuant to any federal or state law, policy or regulation to convert to the use of alternative fuels for any motor vehicle.
§11-6D-5. Amount of credit for alternative fuel motor vehicles.
(a) The total amount of any credit allowed under this article is limited by and subject to the provisions set forth in this subsection and subsections (b), (c) and (d) of this section and may not exceed: (1) In the case of a motor vehicle conversions or retrofitting, the actual cost of converting from a traditionally- fueled motor vehicle to an alternatively-fueled motor vehicle; or (2) in the case of a new purchase, the incremental difference in cost between an alternative-fuel motor vehicle and a comparably equipped motor vehicle that employs traditional fuel technology.
(b) The maximum total credit allowed for an alternative-fuel motor vehicle is:
(1) For a vehicle with a gross vehicle weight of not more than ten thousand pounds, $3,750;
(2) For a vehicle with a gross vehicle weight of more than ten thousand pounds up to twenty- six thousand pounds, $9,250;
(3) For a truck or van with a gross vehicle weight of more than twenty-six thousand pounds, $50,000; and
(4) For a bus capable of seating at least twenty adults, $50,000.
(c) Subject to the limitations set forth in subsection (a) of this section, a taxpayer who is otherwise entitled to a credit against tax who claims the credit provided for in this article on the basis of any alternative-fuel motor vehicle that operates exclusively on electricity is entitled to an additional credit of ten percent of the credit which is otherwise allowed under subsection (b) of this section.
(d) The maximum incremental credit allowed per year is one third of the credit attributable to five vehicles with the cumulative credit over a three-year period not to exceed one third of the credit attributable to fifteen vehicles.
(a) For taxable years beginning on and after January 1, 2011, the amount of the credit allowed under this article for an alternative-fuel motor vehicle that weighs less than twenty-six thousand pounds is thirty-five percent of the purchase price of the alternative-fuel motor vehicle up to a maximum amount of $7,500 or fifty percent of the actual cost of converting from a traditionally fueled motor vehicle to an alternative fuel motor vehicle up to a maximum amount of $7,500.
(b) For taxable years beginning on and after January 1, 2011, the amount of the credit allowed under this article for an alternative-fuel motor vehicle that weighs more than twenty-six thousand pounds is thirty-five percent of the purchase price of the alternative-fuel motor vehicle up to a maximum amount of $25,000 or fifty percent of the actual cost of converting from a traditionally fueled motor vehicle to an alternative fuel motor vehicle up to a maximum amount of $25,000.
§11-6D-6. Credit to be apportioned over three-year period Amount of credit for qualified alternative fuel vehicle refueling infrastructure and qualified alternative fuel vehicle home refueling infrastructure.

The credit against tax for any alternative-fuel motor vehicle provided for in this article may be taken by a taxpayer claiming the credit only in three equal increments over a three-consecutive tax- year period, so that in any tax year in which a taxpayer is entitled to the credit, only one third of the total credit allowed for a certain alternative-fuel motor vehicle under section five may be taken.
(a) For taxable years beginning on and after January 1, 2011, but prior to January 1, 2014, the amount of the credit allowed under this article for qualified alternative fuel vehicle refueling infrastructure is equal to an amount of fifty percent of the total costs directly associated with the construction or purchase and installation of the alternative fuel vehicle refueling infrastructure up to a maximum of $250,000: Provided, That if the qualified alternative fuel vehicle refueling infrastructure is generally accessible for public use, the amount of the credit allowed will be multiplied by 1.25 and the maximum amount allowable will be $312,500. The amount of credit allowed may not exceed the cost of construction of the alternative fuel vehicle refueling infrastructure.
(b) For taxable years beginning on and after January 1, 2014, but prior to January 1, 2016, the amount of the credit allowed under this article for qualified alternative fuel vehicle refueling infrastructure is equal to an amount of fifty percent of the total costs directly associated with the construction or purchase and installation of the alternative fuel vehicle refueling infrastructure up to a maximum of $200,000: Provided, That if the qualified alternative fuel vehicle refueling infrastructure is generally accessible for public use, the amount of the credit allowed will be multiplied by 1.25 and the maximum amount allowable will be $250,000. The amount of credit allowed may not exceed the cost of construction of the alternative fuel vehicle refueling infrastructure.
(c) For taxable years beginning on and after January 1, 2016, but prior to January 1, 2022, the amount of the credit allowed under this article for qualified alternative fuel vehicle refueling infrastructure is equal to an amount of fifty percent of the total costs directly associated with the construction or purchase and installation of the alternative fuel vehicle refueling infrastructure up to a maximum of $150,000: Provided, That if the qualified alternative fuel vehicle refueling infrastructure is generally accessible for public use, the amount of the credit allowed will be multiplied by 1.25 and the maximum amount allowable will be $187,500. The amount of credit allowed may not exceed the cost of construction of the alternative fuel vehicle refueling infrastructure.
(d) For taxable years beginning on and after January 1, 2011, the amount of the credit allowed under this article for qualified alternative fuel vehicle home refueling infrastructure is equal to an amount of fifty percent of the total costs directly associated with the construction or purchase and installation of the alternative fuel vehicle home refueling infrastructure up to a maximum of $10,000.
(e) The cost of construction of the alternative fuel vehicle refueling infrastructure or alternative fuel vehicle home refueling infrastructure eligible for a tax credit under this section does not include costs associated with exploration, development or production activities necessary for severing natural resources from the soil or ground.
(f) When the taxpayer is a pass-through entity treated like a partnership for federal and state income tax purposes, the credit allowed under this article for the year shall flow through to the equity owners of the pass-through entity in the same manner that distributive share flows through to the equity owners and in accordance with any legislative rule the Tax Commissioner may propose for legislative approval in accordance with article three, chapter twenty-nine-a of this code to administer this section.
(g) No credit allowed by this article may be applied against employer withholding taxes imposed by article twenty-one of this chapter.
§11-6D-7. Duration of availability of credit.
The tax credit provided in this article shall expire by operation of law ten years after the effective date of this article: Provided, That any eligible taxpayer who makes a valid claim for the credit before that expiration is entitled to claim and receive the remaining one-third increment or increments of the total credit allowed under section five of this article for the tax year or years ensuing after the expiration of this article until the total amount of credit allowed has been exhausted.
No person is eligible to receive a tax credit under this article for: (1) An alternative-fuel motor vehicle purchased after December 31, 2021; (2) a vehicle converted to an alternative-fuel motor vehicle after December 31, 2021; or (3) the construction or purchase and installation of qualified alternative fuel vehicle refueling infrastructure or qualified alternative fuel vehicle home refueling infrastructure occurring after December 31, 2021.
§11-6D-8. Commissioner to design forms and schedules; promulgation of rules.
(a) The Tax Commissioner shall design and provide to the public simplified forms and schedules to implement and effectuate the provisions of this article.
(b) The Tax Commissioner is authorized to promulgate shall promulgate new rules for the administration of this article consistent with its provisions and in accordance with article three, chapter twenty-nine-a of this code as the Commissioner deems necessary after the effective date of the amendments to this article. Such rules shall include rules relating to the necessary documentation required to be filed in order to take the tax credits allowed in this article.
(c) Within one year following prior to the expiration of the credit established in this article, the State Tax Commissioner shall provide a written report to the Legislature setting forth the utilization of the credit, the benefit of the credit and the overall cost of the credit.
§11-6D-9. Carryover credit allowed; recapture of credit.
(a) If the tax credit allowed under this article in any taxable year exceeds the taxpayer's tax liability as determined in accordance with article twenty-one, article twenty-three or article twenty- four of this chapter for that taxable year, the excess may be applied for succeeding taxable years until the full amount of the excess tax credit is used.
(b) No carry back to a prior taxable year is allowed for the amount of any unused credit in any taxable year.
(c) A tax credit is subject to recapture, elimination or reduction if it is determined by the State Tax Commissioner that a taxpayer was not entitled to the credit, in whole or in part, in the tax year in which it was claimed by the taxpayer. The amount of credit that flows through to equity owners of a passthrough entity may be recaptured or recovered from either the taxpayer or the equity owners in the discretion of the Tax Commissioner.
ARTICLE 6F. SPECIAL METHOD FOR APPRAISING QUALIFIED CAPITAL
ADDITIONS TO MANUFACTURING FACILITIES
.
§11-6F-2. Definitions.
As used in this article, the term:
(a) 'Certified capital addition property' means all real property and personal property included within or to be included within a qualified capital addition to a manufacturing facility that has been certified by the State Tax Commissioner in accordance with section four of this article: Provided, That airplanes and motor vehicles licensed by the Division of Motor Vehicles shall in no event constitute certified capital addition property.
(b) 'Manufacturing' means any business activity classified as having a sector identifier, consisting of the first two digits of the six-digit North American Industry Classification System code number of thirty-one, thirty-two or thirty-three or the six digit code number 211112.
(b) (c) 'Manufacturing facility' means any factory, mill, chemical plant, refinery, warehouse, building or complex of buildings, including land on which it is located, and all machinery, equipment, improvements and other real property and personal property located at or within the facility used in connection with the operation of the facility in a manufacturing business.
(c) (d) 'Personal property' means all property specified in subdivision (q), section ten, article two, chapter two of this code and includes, but is not limited to, furniture, fixtures, machinery and equipment, pollution control equipment, computers and related data processing equipment, spare parts and supplies.
(d) (e) 'Qualified capital addition to a manufacturing facility' means all real property and personal property, the combined original cost of all of the property which exceeds $50 million to be constructed, located or installed at or within two miles of a manufacturing facility owned or operated by the person making the capital addition that has a total original cost before the capital addition of at least $100 million. Provided, That If the capital addition is made in a steel, chemical or polymer alliance zone as designated from time-to-time by executive order of the Governor, then the person making the capital addition may for purposes of satisfying the requirements of this subsection join in a multiparty project with a person owning or operating a manufacturing facility that has a total original cost before the capital addition of at least $100 million if the capital addition creates additional production capacity of existing or related products or feedstock or derivative products respecting the manufacturing facility, consists of a facility used to store, handle, process or produce raw materials for the manufacturing facility, consists of a facility used to store, handle or process natural gas to produce fuel for the generation of steam or electricity for the manufacturing facility or consists of a facility that generates steam or electricity for the manufacturing facility, including but not limited to a facility that converts coal to a gas or liquid for the manufacturing facility's use in heating, manufacturing or generation of electricity. Beginning on and after July 1, 2011, when the new capital addition is a facility that is or will be classified under the North American Industry Classification System with a six digit code number 211112, or is a manufacturing facility that uses product produced at a facility with code number 211112, then wherever the term '100 million' is used in this subsection, the term '20 million' shall be substituted and where the term '50 million' is used, the term '10 million' shall be substituted.
(e) (f) 'Real property' means all property specified in subdivision (p), section ten, article two, chapter two of this code and includes, but is not limited to, lands, buildings and improvements on the land such as sewers, fences, roads, paving and leasehold improvements.
§11-6F-3. Tax treatment of certified capital addition property.
Notwithstanding any other provisions of law, the value of certified capital addition property, for purposes of ad valorem property taxation under this chapter, shall be is its salvage value, which for purposes of this article is five percent of the certified capital addition property's original cost. For capital additions certified on or after July 1, 2011, the value of the land before any improvements shall be subtracted from the value of the capital addition and the unimproved land value shall not be given salvage value treatment.
ARTICLE 13Q. ECONOMIC OPPORTUNITY TAX CREDIT.
§11-13Q-20. Tax credit review and accountability.
(a) Beginning on February 1, 2006, and every third year thereafter, the commissioner shall submit to the Governor, the President of the Senate and the Speaker of the House of Delegates a tax credit review and accountability report evaluating the cost effectiveness of the economic opportunity credit during the most recent three-year period for which information is available. The criteria to be evaluated shall include, but not be limited to, for each year of the three-year period:
(1) The numbers of taxpayers claiming the credit;
(2) The net number of new jobs created by all taxpayers claiming the credit;
(3) The cost of the credit;
(4) The cost of the credit per new job created; and
(5) Comparison of employment trends for an industry and for taxpayers within the industry that claim the credit.
(b) Taxpayers claiming the credit shall provide any information the Tax Commissioner may require to prepare the report: Provided, That the information provided is subject to the confidentiality and disclosure provisions of sections five-d and five-s, article ten of this chapter.
(c) On or before February 1, 2013, the Department of Commerce, in consultation with the Tax Commissioner, the Department of Transportation and the Department of Environmental Protection shall submit to the Governor, the President of the Senate and the Speaker of the House of Delegates a report of the impact of all the tax credits and other economic incentives provided in the act of the Legislature which amended and reenacted this section during 2011 upon economic development in this state, including but not limited to the creation of jobs in this state, upon the state's infrastructure, including but not limited to the need for construction or maintenance of the roads and highways of the state, upon the natural resources of the state, and upon public and private property interests in the state.
ARTICLE 13R. STRATEGIC RESEARCH AND DEVELOPMENT TAX CREDIT.
§11-13R-3. Definitions.
(a) General. -- When used in this article or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section unless a different meaning is clearly required by either the context in which the term is used or by specific definition in this article.
(b) Terms defined. --
(1) 'Base amount' means:
(A) The average annual combined qualified research and development expenditure for the three taxable years immediately preceding the taxable year for which a credit is claimed under this article;
(B) For a taxpayer that has filed a tax return under article twenty-three of this chapter for fewer than three but at least one prior taxable year, determined on the basis of all filings by the taxpayer's controlled group, the base amount is the average annual combined qualified research and development expenditure for the number of immediately preceding taxable years, other than short taxable years, during which the taxpayer has filed a tax return under article twenty-three of this chapter; or
(C) For a taxpayer that has not filed a tax return under article twenty-three of this chapter for at least one taxable year, determined on the basis of all filings by the taxpayer's controlled group, the base amount is zero.
(2) 'Commissioner' and 'Tax Commissioner' are used interchangeably herein and mean the Tax Commissioner of the State of West Virginia or his or her delegate.
(3) 'Controlled group' means a controlled group as defined by section 1563 of the Internal Revenue Code of 1986, as amended.
(4) 'Corporation' means any corporation, limited liability company, joint-stock company or association and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certificate of interest or ownership or similar written instrument.
(5) 'Delegate' in the phrase 'or his or her delegate', when used in reference to the Tax Commissioner, means any officer or employee of the State Tax Division of the Department of Tax and Revenue duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article.
(6) 'Eligible taxpayer' means any person that is subject to the tax imposed by article twenty- three or article twenty-four of this chapter that is engaged in qualified research and development that has paid or incurred investment in qualified research and development credit property or that has paid or incurred qualified research and development expenses as defined in section four of this article. In the case of a sole proprietorship subject to neither the tax imposed by article twenty-three nor the tax imposed by article twenty-four, the term 'eligible taxpayer' means any sole proprietor who is subject to the tax imposed by article twenty-one of this chapter and who is engaged in qualified research and development that has paid or incurred investment in qualified research and development credit property or that has paid or incurred qualified research and development expenses as defined in section four of this article.
(7) 'Partnership' includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, and which is not a trust or estate, a corporation or a sole proprietorship. The term 'partner' includes a member in such a syndicate, group, pool, joint venture or other organization.
(8) 'Person' includes any natural person, corporation, limited liability company or partnership.
(9) 'Qualified research and development credit property' means depreciable property purchased for the conduct of qualified research and development.
(10) 'Research and development' means systematic scientific, engineering or technological study and investigation in a field of knowledge in the physical, computer or software sciences often involving the formulation of hypotheses and experimentation for the purpose of revealing new facts, theories or principles or increasing scientific knowledge which may reveal the basis for new or enhanced products, equipment or manufacturing processes.
(A) Research and development includes, but is not limited to, design, refinement and testing of prototypes of new or improved products or design or equipment or the design, refinement and testing of manufacturing processes before commercial sales relating thereto have begun. For purposes of this section, commercial sales includes, but is not limited to, sales of prototypes or sales for market testing.
(B) Research and development does not include:
(i) Market research;
(ii) Sales research;
(iii) Efficiency surveys;
(iv) Consumer surveys;
(v) Product market testing;
(vi) Product testing by product consumers or through consumer surveys for evaluation of consumer product performance or consumer product usability;
(vii) The ordinary testing or inspection of materials or products for quality control; (quality control testing);
(viii) Management studies;
(ix) Advertising;
(x) Promotions;
(xi) The acquisition of another's patent, model, production or process or investigation or evaluation of the value or investment potential related thereto;
(xii) Research in connection with literary, historical or similar activities;
(xiii) Research in the social sciences, economics, humanities or psychology and other nontechnical activities; and
(xiv) The providing of sales services or any other service, whether technical service or nontechnical service.
(11) 'Related person' means:
(A) A corporation, limited liability company, partnership, association or trust controlled by the taxpayer;
(B) An individual, corporation, limited liability company, partnership, association or trust that is in control of the taxpayer;
(C) A corporation, limited liability company, partnership, association or trust controlled by an individual, corporation, partnership, association or trust that is in control of the taxpayer; or
(D) A member of the same controlled group as the taxpayer.
For purposes of this article, 'control', with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of the corporation entitled to vote. 'Control', with respect to a trust, means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust is determined in accordance with the rules for constructive ownership of stock provided in section 267(c) of the United States Internal Revenue Code of 1986, as amended, other than paragraph (3) of that section.
(12) 'Taxpayer' means any person subject to the tax imposed by article twenty-three or twenty-four of this chapter or both. In the case of a sole proprietorship subject to neither the tax imposed by article twenty-three nor the tax imposed by article twenty-four, the term 'taxpayer' means any sole proprietor who is subject to the tax imposed by article twenty-one of this chapter.
(13) 'This code' means the Code of West Virginia, 1931, as amended.
(14) 'This state' means the State of West Virginia.
ARTICLE 13S. MANUFACTURING INVESTMENT TAX CREDIT.
§11-13S-3. Definitions.
(a) Any term used in this article has the meaning ascribed by this section unless a different meaning is clearly required by the context of its use or by definition in this article.
(b) For purpose of this article, the term:
(1) 'Eligible taxpayer' means an industrial taxpayer who purchases new property for the purpose of industrial expansion or for the purpose of industrial revitalization of an existing industrial facility in this state.
(2) 'Industrial expansion' means capital investment in a new or expanded industrial facility in this state.
(3) 'Industrial facility' means any factory, mill, plant, refinery, warehouse, building or complex of buildings located within this state, including the land on which it is located, and all machinery, equipment and other real and tangible personal property located at or within the facility primarily used in connection with the operation of the manufacturing business.
(4) 'Industrial revitalization' or 'revitalization' means capital investment in an industrial facility located in this state to replace or modernize buildings, equipment, machinery and other tangible personal property used in connection with the operation of the facility in an industrial business of the taxpayer including the acquisition of any real property necessary to the industrial revitalization.
(5) 'Industrial taxpayer' means any taxpayer who is primarily engaged in a manufacturing business.
(6) 'Manufacturing' means any business activity classified as having a sector identifier, consisting of the first two digits of the six-digit North American Industry Classification System code number, of thirty-one, thirty-two or thirty-three or the six digit code number 211112.
(7) 'Property purchased for manufacturing investment' means real property, and improvements thereto, and tangible personal property but only if the property was constructed or purchased on or after the first day of January, two thousand three, January 1, 2003, for use as a component part of a new, expanded or revitalized industrial facility. This term includes only that tangible personal property with respect to which depreciation, or amortization in lieu of depreciation, is allowable in determining the federal income tax liability of the industrial taxpayer, that has a useful life, at the time the property is placed in service or use in this state, of four years or more. Property acquired by written lease for a primary term of ten years or longer, if used as a component part of a new or expanded industrial facility, is included within this definition.
(A) 'Property purchased for manufacturing investment' does not include:
(i) Repair costs, including materials used in the repair, unless for federal income tax purposes, the cost of the repair must be capitalized and not expensed;
(ii) Motor vehicles licensed by the department of motor vehicles;
(iii) Airplanes;
(iv) Off-premises transportation equipment;
(v) Property which is primarily used outside this state; and
(vi) Property which is acquired incident to the purchase of the stock or assets of an industrial taxpayer which property was or had been used by the seller in his or her industrial business in this state or in which investment was previously the basis of a credit against tax taken under any other article of this chapter.
(B) Purchases or acquisitions of land or depreciable property qualify as purchases of property purchased for manufacturing investment for purposes of this article only if:
(i) The property is not acquired from a person whose relationship to the person acquiring it would result in the disallowance of deductions under section 267 or 707(b) of the United States Internal Revenue Code of 1986, as amended;
(ii) The property is not acquired from a related person or by one component member of a controlled group from another component member of the same controlled group. The Tax Commissioner may waive this requirement if the property was acquired from a related party for its then fair market value; and
(iii) The basis of the property for federal income tax purposes, in the hands of the person acquiring it, is not determined, in whole or in part, by reference to the federal adjusted basis of the property in the hands of the person from whom it was acquired or under Section 1014(e) of the United States Internal Revenue Code of 1986, as amended.
(8) 'Qualified manufacturing investment' means that amount determined under section five of this article as qualified manufacturing investment.
(9) 'Taxpayer' means any person subject to any of the taxes imposed by article thirteen-a, twenty-three or twenty-four of this chapter or any combination of those articles of this chapter.
11-13S-4. Amount of credit allowed for manufacturing investment.
(a) Credit allowed. -- There is allowed to eligible taxpayers and to persons described in subdivision (5), subsection (b) of this section a credit against the taxes imposed by articles thirteen-a, twenty-three and twenty-four of this chapter: Provided, That a tax credit for any eligible taxpayer operating a business activity classified as having a sector identifier, consisting of the six digit code number 211112 such eligible taxpayer must comply with the provisions of subsection (e) of this section for all construction related thereto in order to be eligible for any credit under this article. The amount of credit shall be determined as hereinafter provided in this section.
(b) Amount of credit allowable. -- The amount of allowable credit under this article is equal to five percent of the qualified manufacturing investment (as determined in section five of this article) and shall reduce the severance tax, imposed under article thirteen-a of this chapter, the business franchise tax imposed under article twenty-three of this chapter and the corporation net income tax imposed under article twenty-four of this chapter, in that order, subject to the following conditions and limitations:
(1) The amount of credit allowable is applied over a ten-year period, at the rate of one-tenth thereof per taxable year, beginning with the taxable year in which the property purchased for manufacturing investment is first placed in service or use in this state;
(2) Severance tax. -- The credit is applied to reduce the severance tax imposed under article thirteen-a of this chapter (determined before application of the credit allowed by section three, article twelve-b of this chapter and before any other allowable credits against tax and before application of the annual exemption allowed by section ten, article thirteen-a of this chapter). The amount of annual credit allowed may not reduce the severance tax, imposed under article thirteen-a of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax: Provided, That for tax years beginning on and after January 1, 2009, the amount of annual credit allowed may not reduce the severance tax, imposed under article thirteen-a of this chapter, below forty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax. When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the severance tax, imposed under article thirteen-a of this chapter, below fifty percent of the amount which would be imposed for such taxable year (determined before application of the credit allowed by section three, article twelve-b of this chapter and before any other allowable credits against tax and before application of the annual exemption allowed by section ten, article thirteen-a of this chapter): Provided, however, That when in any taxable year beginning on and after January 1, 2009, the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the severance tax imposed under article thirteen-a of this chapter, below forty percent of the amount which would be imposed for such taxable year as determined before application of the credit allowed by section three, article twelve-b of this chapter and before any other allowable credits against tax and before application of the annual exemption allowed by section ten, article thirteen-a of this chapter;
(3) Business franchise tax. --
After application of subdivision (2) of this subsection, any unused credit is next applied to reduce the business franchise tax imposed under article twenty-three of this chapter (determined after application of the credits against tax provided in section seventeen, article twenty-three of this chapter, but before application of any other allowable credits against tax). The amount of annual credit allowed will not reduce the business franchise tax, imposed under article twenty-three of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax: Provided, That for tax years beginning on and after January 1, 2009, the amount of annual credit allowed will not reduce the business franchise tax, imposed under article twenty-three of this chapter, below forty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax. When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the amount of the business franchise tax, imposed under article twenty-three of this chapter, below fifty percent of the amount which would be imposed for the taxable year (determined after application of the credits against tax provided in section seventeen, article twenty-three of this chapter, but before application of any other allowable credits against tax): Provided, however, That when in any taxable year beginning on and after January 1, 2009, the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the amount of the business franchise tax, imposed under article twenty-three of this chapter, below forty percent of the amount which would be imposed for the taxable year as determined after application of the credits against tax provided in section seventeen, article twenty-three of this chapter, but before application of any other allowable credits against tax;
(4) Corporation net income tax. --
After application of subdivision (3) of this subsection, any unused credit is next applied to reduce the corporation net income tax imposed under article twenty-four of this chapter (determined before application of any other allowable credits against tax). The amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty-four of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax: Provided, That for tax years beginning on and after January 1, 2009, the amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty-four of this chapter, below forty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax. When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the corporation net income tax, imposed under article twenty-four of this chapter, below fifty percent of the amount which would be imposed for the taxable year (determined before application of any other allowable credits against tax): Provided, however, That when in any taxable year beginning on and after January 1, 2009, the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the corporation net income tax, imposed under article twenty-four of this chapter, below forty percent of the amount which would be imposed for the taxable year as determined before application of any other allowable credits against tax;
(5) Pass-through entities. --
(A) If the eligible taxpayer is a limited liability company, small business corporation or a partnership, then any unused credit (after application of subdivisions (2), (3) and (4) of this subsection) is allowed as a credit against the taxes imposed by article twenty-four of this chapter on owners of the eligible taxpayer on the conduit income directly derived from the eligible taxpayer by its owners. Only those portions of the tax imposed by article twenty-four of this chapter that are imposed on income directly derived by the owner from the eligible taxpayer are subject to offset by this credit.
(B) The amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty-four of this chapter, below fifty percent of the amount which would be imposed on the conduit income directly derived from the eligible taxpayer by each owner for such taxable year in the absence of this credit against the taxes (determined before application of any other allowable credits against tax): Provided, That for tax years beginning on and after January 1, 2009, the amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty- four of this chapter, below forty percent of the amount which would be imposed on the conduit income directly derived from the eligible taxpayer by each owner for such taxable year in the absence of this credit against the taxes as determined before application of any other allowable credits against tax.
(C) When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the corporation net income tax imposed on the conduit income directly derived from the eligible taxpayer by each owner below fifty percent of the amount that would be imposed for such taxable year on the conduit income (determined before application of any other allowable credits against tax): Provided, That when in any taxable year beginning on and after January 1, 2009, the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the corporation net income tax imposed on the conduit income directly derived from the eligible taxpayer by each owner below forty percent of the amount that would be imposed for such taxable year on the conduit income as determined before application of any other allowable credits against tax;
(6) Small business corporations, limited liability companies, partnerships and other unincorporated organizations shall allocate any unused credit after application of subdivisions (2), (3) and (4) of this subsection among their members in the same manner as profits and losses are allocated for the taxable year; and
(7) No credit is allowed under this article against any tax imposed by article twenty-one of this chapter.
(c) No carryover to a subsequent taxable year or carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance. Any unused credit is forfeited.
(d) Application for credit required. --
(1) Application required. -- Notwithstanding any provision of this article to the contrary, no credit is allowed or may be applied under this article for any qualified investment property placed in service or use until the person claiming the credit makes written application to the Tax Commissioner for allowance of credit as provided in this section. This application shall be in the form prescribed by the Tax Commissioner and shall provide the number and type of jobs created, if any, by the manufacturing investment, the average wage rates and benefits paid to employees filling the new jobs and any other information the Tax Commissioner may require. This application shall be filed with the Tax Commissioner no later than the last day for filing the annual return, determined by including any authorized extension of time for filing the return, required under article twenty-one or twenty-four of this chapter for the taxable year in which the property to which the credit relates is placed in service or use.
(2) Failure to file. -- The failure to timely apply the application for credit under this section results in forfeiture of fifty percent of the annual credit allowance otherwise allowable under this article. This penalty applies annually until the application is filed.
(e) (1) Any person or entity undertaking any construction related to any business activity included within North American Industrial Code six digit code number 211112, the value of which is an amount equal to or greater than $500,000, shall hire at least seventy-five percent of employees for said construction from the local labor market, to be rounded off, with at least two employees from outside the local labor market permissible for each employer per project, 'the local labor market' being defined as every county in West Virginia and any county outside of West Virginia if any portion of that county is within fifty miles of the border of West Virginia.
(2) Any person or entity unable to employ the minimum number of employees from the local labor market shall inform the nearest office of the Bureau of Employment Programs' Division of Employment Services of the number of qualified employees needed and provide a job description of the positions to be filled.
(3) If, within three business days following the placing of a job order, the division is unable to refer any qualified job applicants to the person or entity engaged in said construction or refers less qualified job applicants than the number requested, then the division shall issue a waiver to the person or entity engaged in said construction stating the unavailability of applicants and shall permit the person or entity engaged in said construction to fill any positions covered by the waiver from outside the local labor market. The waiver shall be either oral or in writing and shall be issued within the prescribed three days. A waiver certificate shall be sent to the person or entity engaged in said construction for its permanent project records.
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-8d. Limitations on right to assert exemptions.
(a) Persons who perform 'contracting' as defined in section two of this article or persons acting in an agency capacity may not assert any exemption to which the purchaser of such contracting services or the principal is entitled. Any statutory exemption to which a taxpayer may be entitled shall be is invalid unless the tangible personal property or taxable service is actually purchased by such taxpayer and is directly invoiced to and paid by such taxpayer. This section shall not does not apply to purchases by an employee for his or her employer, purchases by a partner for his or her partnership or purchases by a duly authorized officer of a corporation, or unincorporated organization, for his or her corporation or unincorporated organization so long as the purchase is invoiced to and paid by the employer, partnership, corporation or unincorporated organization.
(b) Transition rule. -- This section shall not does not apply to purchases of tangible personal property or taxable services in fulfillment of a purchasing agent or procurement agent contract executed and legally binding on the parties thereto prior to September 15, 1999. Provided, That This transition rule shall not does not apply to any purchases of tangible personal property or taxable services made under such a contract after August 31, 1991 and this transition rule shall not does not apply if the primary purpose of the purchasing agent or procurement agent contract was to avoid payment of consumers sales and use taxes. However, Effective July 1, 2007, this section shall not does not apply to purchases of services, machinery, supplies or materials, except gasoline and special fuel, to be directly used or consumed in the construction, alteration, repair or improvement of a new or existing building or structure by a person performing 'contracting', as defined in section two of this article, if the purchaser of the 'contracting' services would be entitled to claim the refundable exemption under subdivision (2), subsection (b), section nine of this article had it purchased the services, machinery, supplies or materials. Effective July 1, 2009, this section shall not does not apply to purchases of services, computers, servers, building materials and tangible personal property, except purchases of gasoline and special fuel, to be installed into a building or facility or directly used or consumed in the construction, alteration, repair or improvement of a new or existing building or structure by a person performing 'contracting', as defined in section two of this article, if the purchaser of the 'contracting' services would be entitled to claim the exemption under subdivision (7), subsection (a), section nine-h of this article. This section shall not apply to qualified purchases of computers and computer software, primary material handling equipment, racking and racking systems, and their components, or to qualified purchases of building materials and certain tangible personal property, as those terms are defined in section nine-n of this article, by a person performing 'contracting', as defined in section two of this article, if the purchaser of the 'contracting' services would be entitled to claim the refundable exemption under section nine-n of this article. Purchases of gasoline and special fuel shall not be treated as exempt pursuant to this section.
(c) Effective July 1, 2011, notwithstanding any other provision of this code to the contrary, this section shall apply as to purchases of services, machinery, supplies or materials, except gasoline and special fuel, to be directly used or consumed in the construction, alteration, repair or improvement of a new or existing natural gas compressor station or gas transmission line having a diameter of twenty inches or more by a person performing 'contracting', as defined in section two of this article, even though the purchaser of the 'contracting' services would be entitled to claim the refundable exemption under subdivision (2), subsection (b), section nine of this article had it purchased the services, machinery, supplies or materials, unless the person or entity performing 'contracting' under this subsection, as the term 'contracting' is defined in section two of this article, complies with subsection (e), section four, article thirteen-s of this chapter.
CHAPTER 24. PUBLIC SERVICE COMMISSION.

ARTICLE 2F. ALTERNATIVE AND RENEWABLE ENERGY PORTFOLIO STANDARD.
§24-2F-3. Definitions.
Unless the context clearly requires a different meaning, as used in this article:
(1) 'Advanced coal technology' means a technology that is used in a new or existing energy generating facility to reduce airborne carbon emissions associated with the combustion or use of coal and includes, but is not limited to, carbon dioxide capture and sequestration technology, supercritical technology, advanced supercritical technology as that technology is determined by the Public Service Commission, ultrasupercritical technology and pressurized fluidized bed technology and any other resource, method, project or technology certified by the commission as advanced coal technology.
(2) 'Alternative and renewable energy portfolio standard' or 'portfolio standard' means a requirement in any given year that requires an electric utility to own credits in an amount equal to a certain percentage of electric energy sold in the preceding calendar year by the electric utility to retail customers in this state.
(3) 'Alternative energy resources' means any of the following resources, methods or technologies for the production or generation of electricity:
(A) Advanced coal technology;
(B) Coal bed methane;
(C) Natural gas, including any component of raw natural gas;
(D) Fuel produced by a coal gasification or liquefaction facility;
(E) Synthetic gas;
(F) Integrated gasification combined cycle technologies;
(G) Waste coal;
(H) Tire derived fuel;
(I) Pumped storage hydroelectric projects; and
(J) Any other resource, method, project or technology certified as an alternative energy resource by the Public Service Commission.
(4) 'Alternative and renewable energy resource credit' or 'credit' means a tradable instrument that is used to establish, verify and monitor the generation of electricity from alternative and renewable energy resource facilities, energy efficiency or demand-side energy initiative projects or greenhouse gas emission reduction or offset projects.
(5) 'Alternative energy resource facility' means a facility or equipment that generates electricity from alternative energy resources.
(6) 'Commission' or 'Public Service Commission' means the Public Service Commission of West Virginia as continued pursuant to section three, article one of this chapter.
(7) 'Customer-generator' means an electric retail customer who owns and operates a customer-sited generation project utilizing an alternative or renewable energy resource or a net metering system in this state.
(8) 'Electric utility' means any electric distribution company or electric generation supplier that sells electricity to retail customers in this state. Unless specifically provided for otherwise, for the purposes of this article, the term 'electric utility' may not include rural electric cooperatives, municipally-owned electric facilities or utilities serving less than thirty thousand residential electric customers in West Virginia.
(9) 'Energy efficiency or demand-side energy initiative project' means a project in this state that promotes customer energy efficiency or the management of customer consumption of electricity through the implementation of:
(A) Energy efficiency technologies, equipment, management practices or other strategies utilized by residential, commercial, industrial, institutional or government customers that reduce electricity consumption by those customers;
(B) Load management or demand response technologies, equipment, management practices, interruptible or curtailable tariffs, energy storage devices or other strategies in residential, commercial, industrial, institutional and government customers that shift electric load from periods of higher demand to periods of lower demand;
(C) Industrial by-product technologies consisting of the use of a by-product from an industrial process, including, but not limited to, the reuse of energy from exhaust gases or other manufacturing by-products that can be used in the direct production of electricity at the customer's facility;
(D) Customer-sited generation, demand-response, energy efficiency or peak demand reduction capabilities, whether new or existing, that the customer commits for integration into the electric utility's demand-response, energy efficiency or peak demand reduction programs; or
(E) Infrastructure and modernization projects that help promote energy efficiency, reduce energy losses or shift load from periods of higher demand to periods of lower demand, including the modernization of metering and communications, (also known as 'smart grid'), distribution automation, energy storage, distributed energy resources and investments to promote the electrification of transportation.
(10) 'Greenhouse gas emission reduction or offset project' means a project to reduce or offset greenhouse gas emissions from sources in this state other than the electric utility's own generating and energy delivery operations. Greenhouse gas emission reduction or offset projects include, but are not limited to:
(A) Methane capture and destruction from landfills, coal mines or farms;
(B) Forestation, afforestation or reforestation; and
(C) Nitrous oxide or carbon dioxide sequestration through reduced fertilizer use or no-till farming.
(11) 'Net metering' means measuring the difference between electricity supplied by an electric utility and electricity generated from an alternative or renewable energy resource facility owned or operated by an electric retail customer when any portion of the electricity generated from the alternative or renewable energy resource facility is used to offset part or all of the electric retail customer's requirements for electricity.
(12) 'Reclaimed surface mine' means a surface mine, as that term is defined in section three, article three, chapter twenty-two of this code, that is reclaimed or is being reclaimed in accordance with state or federal law.
(13) 'Renewable energy resource' means any of the following resources, methods, projects or technologies for the production or generation of electricity:
(A) Solar photovoltaic or other solar electric energy;
(B) Solar thermal energy;
(C) Wind power;
(D) Run of river hydropower;
(E) Geothermal energy, which means a technology by which electricity is produced by extracting hot water or steam from geothermal reserves in the earth's crust to power steam turbines that drive generators to produce electricity;
(F) Biomass energy, which means a technology by which electricity is produced from a nonhazardous organic material that is available on a renewable or recurring basis, including pulp mill sludge;
(G) Biologically derived fuel including methane gas, ethanol or biodiesel fuel;
(H) Fuel cell technology, which means any electrochemical device that converts chemical energy in a hydrogen-rich fuel directly into electricity, heat and water without combustion;
(I) Recycled energy, which means useful thermal, mechanical or electrical energy produced from: (i) Exhaust heat from any commercial or industrial process; (ii) waste gas, waste fuel or other forms of energy that would otherwise be flared, incinerated, disposed of or vented; and (iii) electricity or equivalent mechanical energy extracted from a pressure drop in any gas, excluding any pressure drop to a condenser that subsequently vents the resulting heat; and
(J) Any other resource, method, project or technology certified by the commission as a renewable energy resource.
(14) 'Renewable energy resource facility' means a facility or equipment that generates electricity from renewable energy resources.
(15) 'Waste coal' means a technology by which electricity is produced by the combustion of the by-product, waste or residue created from processing coal, such as gob."
The bill was then read a third time.
Delegate Armstead requested to be excused from voting on the passage of Com. Sub. for S. B. 465 under the provisions of House Rule 49.
The Speaker replied that the 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 member from voting.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 384), and there were--yeas 95, nays 4, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Cowles, J. Miller and Savilla.
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 465) 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. 465 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5B-2H-1 and §5B-2H-2; to amend said code by adding thereto a new section, designated §11-1C-11c; to amend and reenact §11-6D-1, §11-6D-2, §11-6D-3, §11-6D-4, §11-6D-5, §11-6D-6, §11-6D-7 and §11-6D-8 of said code; to amend said code by adding thereto a new section, designated §11-6D-9; to amend and reenact §11-6F-2 and §11-6F-3 of said code; to amend and reenact §11-13Q-20; to amend and reenact §11-13R-3 of said code; to amend and reenact §11-13S-3 and §11-13S-4 of said code; to amend and reenact §11-15-8d of said code; and to amend and reenact §24-2F-3 of said code, all relating generally to the Marcellus Gas and Manufacturing Development Act of 2011; providing short title; making legislative findings and declarations; providing guideline for valuation of drilling rigs for property tax purposes; authorizing the tax commissioner to promulgate rules; amending and reinstating alternative fuel motor vehicle tax credit; providing credit for alternative fuel refueling facilities; making legislative findings; stating legislative purpose; defining terms; allowing credit for purchase of alternative fuel motor vehicles, conversion of vehicles to alternative fuel motor vehicles and for commercial and residential alternative fuel refueling facilities; providing for expiration of credits; requiring Tax Commissioner to promulgate rules and design forms; providing for carryover of unused credits and for recapture of credits; amending definition of 'manufacturing' for purposes of special method for appraising qualified capital additions to manufacturing facilities for property tax purposes; providing new rules for treatment of certified capital addition property; adding additional requirements for reports to governor and Legislature; amending definition of 'research and development' for purposes of strategic research and development tax credit; amending definition of 'manufacturing' for purposes of manufacturing investment tax credit; requiring certain business activities comply with certain hiring requirements in order to be eligible for the manufacturing investment tax credit and sales tax exemption; providing additional exception to limitation on right to assert sales and use tax exemptions; and clarifying meaning of 'natural gas' for purposes of Alternative and Renewable Energy Portfolio Standard Act."
Delegate Boggs moved that the bill take effect July 1, 2011.
On this question, the yeas and nays were taken (Roll No. 385), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Howell and J. Miller.
Absent and Not Voting: Crosier.
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. 465) takes effect July 1, 2011.
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
S. B. 614, Permitting specific law-enforcement officials access to certain confidential pharmaceutical information.
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, Poore and Border.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Special Calendar

Third Reading

-Continued-

S. B. 428, Increasing fees charged by clerk of circuit court for medical professional liability actions; 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 71, nays 27, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Border, Canterbury, Carmichael, Cowles, Ellington, Gearheart, Householder, Kump, Lane, J. Miller, Nelson, O'Neal, Overington, Pasdon, Romine, Rowan, Savilla, Shaver, Sigler, Snuffer, Sobonya, Sumner and Walters.
Absent and Not Voting: Crosier and C. Miller.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 428) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
S.B. 428 - "A Bill to amend and reenact §59-1-11 of the Code of West Virginia, 1931, as amended, all relating to fees collected by clerks of court to be used to enhance funding for civil legal services for victims of domestic violence and low income citizens in the state."
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. 2513, Relating to the practice of pharmacy.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment were reported by the Clerk:
On page two by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §30-5-1a, §30-5-1b, §30-5-2a, §30-5-3a, §30-5-5a, §30-5-5b, §30-5-6a, §30-5-7a, §30-5-7b, §30-5-7c, §30-5-9a, §30-5-10a, §30-5-12b, §30-5-12c, §30-5-14a, §30-5-14b, §30-5-16a, §30-5- 16b, §30-5-16c and §30-5-22a of the Code of West Virginia, 1931, as amended, be repealed; that §16- 5A-9a of said code be amended and reenacted; that §30-5-1, §30-5-2, §30-5-3, §30-5-4, §30-5-5, §30- 5-6, §30-5-7, §30-5-8, §30-5-9, §30-5-10, §30-5-11, §30-5-12, §30-5-13, §30-5-14, §30-5-15, §30-5- 16, §30-5-17, §30-5-18, §30-5-19, §30-5-20, §30-5-21, §30-5-22, §30-5-23, §30-5-24, §30-5-26, §30- 5-27, §30-5-28 and §30-5-30 of said code be amended and reenacted; that said code be amended by adding thereto new sections, designated §30-5-25, §30-5-29, §30-5-31, §30-5-32, §30-5-33 and §30- 5-34; and that §60A-10-3 of said code be amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 5A. CANCER CONTROL.
§16-5A-9a. Laetrile use; informed consent.
A hospital or other health care facility may not interfere with the physician-patient relationship by restricting or forbidding the intravenous use of amygdalin (laetrile) as certified in accordance with section sixteen-a, article five, chapter thirty of this code, as an adjunct to recognized, customary or accepted modes of therapy in the treatment of any malignancy for terminally ill cancer patients when it is prescribed or administered by a physician holding an unlimited license for the practice of medicine in the State of West Virginia and the patient has signed the 'written informed request' therefor as set forth in this section: Provided, That a parent or guardian may sign the 'written informed request' on a minor's behalf.
In the event that no recognized, customary or accepted mode of therapy is available for the treatment of any malignancy for a terminally ill cancer patient, the physician may prescribe or administer intravenous amygdalin (laetrile), as certified in accordance with section sixteen-a, article five, chapter thirty of this code, as the sole mode of therapy, providing further that said patient executed the 'written informed request' as set forth in this section.
Any physician, hospital or other health care facility participating in any act permitted or required by this section is immune from any civil or criminal liability that otherwise might result by reason of such actions. A physician may not be subjected to disciplinary action by the State Board of Medicine of West Virginia for prescribing or administering intravenous amygdalin (laetrile), in compliance with the provisions of this section.
Nothing in this section shall be construed as constituting an endorsement of amygdalin (laetrile), as certified in accordance with section sixteen-a, article five, chapter thirty of this code, for the treatment of any malignancy, disease, illness or physical condition.
The 'written informed request' referred to in this section shall be on a form prepared by and obtained from the state department of health and shall be in substance as follows:
'WRITTEN INFORMED REQUEST' FOR PRESCRIPTION OF

INTRAVENOUS AMYGDALIN (LAETRILE) FOR

MEDICAL TREATMENT

Patient's name: ____________________________________________
Address ____________________________________________________
Age _______________________ Sex ____________________________
Name and address of prescribing physician: ____________________________________________________________
Nature of malignancy diagnosed for medical treatment by amygdalin (laetrile):
____________________________________________________________
____________________________________________________________
____________________________________________________________
My physician has explained to me:
(a) That the manufacture and distribution of amygdalin (laetrile) has not been approved by the Federal Food and Drug Administration.
(b) That neither the American Cancer Society, the American Medical Association nor the West Virginia State Medical Association recommends use of amygdalin (laetrile) in the treatment of any malignancy, disease, illness or physical condition.
(c) That there are alternative recognized treatments for the malignancy, disease, illness or physical condition from which I suffer which he or she has offered to provide for me including:
(here describe) (state 'none' if applicable) _______________
________________________________________________________________
________________________________________________________________
(d) That I have the right to refuse or terminate the intravenous use of laetrile at any time.
I understand that physicians, hospitals or health care facilities are immune from civil and criminal liability for prescribing or administering amygdalin (laetrile) in compliance with state statutes.
That notwithstanding the foregoing, I hereby request prescription and use of intravenous amygdalin (laetrile) in the medical treatment of the malignancy from which I suffer.
____________________________________________________________
Patient or person signing for patient

Date of execution of request _______________________________
ATTEST: ____________________________________________________
Prescribing physician

The prescribing physician shall forward a copy of the written informed request to the state registrar of vital statistics within ten days of the execution of such request and shall retain a copy of the request in the patient's medical file.
ARTICLE 5. PHARMACISTS, PHARMACY TECHNICIANS, PHARMACY INTERNS AND PHARMACIES.

§30-5-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice pharmacist care or practice or offer to assist in the practice of pharmacist care in this state without a license or registration, issued under the provisions of this article, or advertise or use any title or description tending to convey or give the impression that they are a pharmacist or pharmacy technician, unless the person is licensed or registered 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 pharmacist care, except through a pharmacist.
(c) It is unlawful for the proprietor of a pharmacy or a ambulatory health care facility to permit any person not a licensed pharmacist to practice pharmacist care, Provided, That a charitable clinic pharmacy may permit a licensed practitioner to act in place of the pharmacist when no pharmacist is present in the charitable clinic.
§30-5-2. Applicable law.
The practices authorized under the provisions of this article and the Board of Pharmacy are subject to article one of this chapter, the provisions of this article, and any rules promulgated hereunder.
§30-5-3. Definitions.

The following words and phrases have the following meaning:
(1) 'Ambulatory health care facility' as defined in article five-b, chapter sixteen of this code, that has a pharmacy, offers pharmacist care, or is otherwise engaged in the practice of pharmacist care.
(2) 'Active Ingredients' means chemicals, substances, or other components of articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of diseases in humans or animals or for use as nutritional supplements.
(3) 'Administer' means the direct application of a drug to the body of a patient or research subject by injection, inhalation, ingestion or any other means.
(4) 'Board' means the West Virginia Board of Pharmacy.
(5) 'Board authorization' means a license, registration or permit issued under this article.
(6) 'Brand name' means the proprietary or trade name selected by the manufacturer and placed upon a drug or drug product, its container, label or wrapping at the time of packaging.
(7) 'Cash Retail Sales Price' means the price paid by the consumer which is not affected by contractual, governmental or private third party payors.
(8) 'Chain Pharmacy Warehouse' means a permanent physical location for drugs and/or devices that acts as a central warehouse and performs intracompany sales and transfers of prescription drugs or devices to chain pharmacies, which are members of the same affiliated group, under common ownership and control.
(9) 'Charitable clinic pharmacy' means a clinic or facility organized as a not-for-profit corporation that has a pharmacy, offers pharmacist care, or is otherwise engaged in the practice of pharmacist care and dispenses its prescriptions free of charge to appropriately screened and qualified indigent patients.
(10) 'Collaborative pharmacy practice' is that practice of pharmacist care where one or more pharmacists have jointly agreed, on a voluntary basis, to work in conjunction with one or more physicians under written protocol where the pharmacist or pharmacists may perform certain patient care functions authorized by the physician or physicians under certain specified conditions and limitations.
(11) 'Collaborative pharmacy practice agreement' is a written and signed agreement between a pharmacist, a physician and the individual patient, or the patient's authorized representative who has granted his or her informed consent, that provides for collaborative pharmacy practice for the purpose of drug therapy management of a patient, which has been approved by the board, the Board of Medicine in the case of an allopathic physician or the West Virginia Board of Osteopathy in the case of an osteopathic physician.
(12) 'Common Carrier' means any person or entity who undertakes, whether directly or by any other arrangement, to transport property including prescription drugs for compensation.
(13) 'Component' means any active ingredient or added substance intended for use in the compounding of a drug product, including those that may not appear in such product.
(14) 'Confidential information' means information maintained by the pharmacist in the patient record or which is communicated to the patient as part of patient counseling or which is communicated by the patient to the pharmacist. This information is privileged and may be released only to the patient or to other members of the health care team and other pharmacists where, in the pharmacists' professional judgment, the release is necessary to the patient's health and well-being; to health plans, as that term is defined in 45 CFR §160.103, for payment; to other persons or governmental agencies authorized by law to receive the privileged information; as necessary for the limited purpose of peer review and utilization review; as authorized by the patient or required by court order.
(15) 'Deliver' or 'delivery' means the actual, constructive or attempted transfer of a drug or device from one person to another, whether or not for a consideration.
(16) 'Device' means an instrument, apparatus, implement or machine, contrivance, implant or other similar or related article, including any component part or accessory, which is required under federal law to bear the label: 'Caution: Federal or state law requires dispensing by or on the order of a physician'.
(17) 'Digital Signature' means an electronic signature based upon cryptographic methods of originator authentication, and computed by using a set of rules and a set of parameters so that the identity of the signer and the integrity of the data can be verified.
(18) 'Dispense' or 'dispensing' means the interpretation, evaluation, and implementation of a prescription drug order, including the preparation, verification and delivery of a drug or device to a patient or patient's agent in a suitable container appropriately labeled for subsequent administration to, or use by, a patient.
(19) 'Distribute' or 'Distribution' means to sell, offer to sell, deliver, offer to deliver, broker, give away, or transfer a drug, whether by passage of title, physical movement, or both. The term does not include:
(A) To dispense or administer;
(B) (i) Delivering or offering to deliver a drug by a common carrier in the usual course of business as a common carrier; or providing a drug sample to a patient by a practitioner licensed to prescribe such drug; or
(ii) A health care professional acting at the direction and under the supervision of a practitioner; or the pharmacy of a hospital or of another health care entity that is acting at the direction of such a practitioner and that received such sample in accordance with the Prescription Drug Marketing Act and regulations to administer or dispense.
(20) 'Drop shipment' means the sale of a prescription drug to a wholesale distributor by the manufacturer of the prescription drug or by that manufacturer's co-licensed product partner, that manufacturer's third party logistics provider, that manufacturer's exclusive distributor, or by an authorized distributor of record that purchased the product directly from the manufacturer or from one of these entities whereby:
(A) The wholesale distributor takes title to but not physical possession of such prescription drug;
(B) The wholesale distributor invoices the pharmacy, pharmacy warehouse, or other person authorized by law to dispense or administer such drug; and
(C)The pharmacy, pharmacy warehouse or other person authorized by law to dispense or administer such drug receives delivery of the prescription drug directly from the manufacturer or from that manufacturer's co-licensed product partner, that manufacturer's third party logistics provider, that manufacturer's exclusive distributor, or from an authorized distributor of record that purchased the product directly from the manufacturer or from one of these entities.
(21) 'Drug' means:
(A) Articles recognized as drugs by the United States Food and Drug Administration, or in any official compendium, or supplement thereto, designated by the board for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or other animals;
(B) Articles, other than food, intended to affect the structure or any function of the body of human or other animals; and
(C) Articles intended for use as a component of any articles specified in paragraph (A) or (B) of this subdivision.
(22) 'Drug regimen review' includes, but is not limited to, the following activities:
(A) Evaluation of the prescription drug orders and patient records for:
(i) Known allergies;
(ii) Rational therapy-contraindications;
(iii) Reasonable dose and route of administration; and
(iv) Reasonable directions for use.
(B) Evaluation of the prescription drug orders and patient records for duplication of therapy.
(C) Evaluation of the prescription drug for interactions and/or adverse effects which may include, but are not limited to, any of the following:
(i) Drug-drug;
(ii) Drug-food;
(iii) Drug-disease; and
(iv) Adverse drug reactions.
(D) Evaluation of the prescription drug orders and patient records for proper use, including overuse and underuse and optimum therapeutic outcomes.
(E) All drug regimen review activities according to subdivision (22).
(23) 'Drug therapy management' means the review of drug therapy regimens of patients by a pharmacist for the purpose of evaluating and rendering advice to a physician regarding adjustment of the regimen in accordance with the collaborative pharmacy practice agreement. Decisions involving drug therapy management shall be made in the best interest of the patient. Drug therapy management shall be limited to:
(A) Implementing, modifying and managing drug therapy according to the terms of the collaborative pharmacy practice agreement;
(B) Collecting and reviewing patient histories;
(C) Obtaining and checking vital signs, including pulse, temperature, blood pressure and respiration; and
(D) Ordering screening laboratory tests that are dose related and specific to the patient's medication or are protocol driven and are also specifically set out in the collaborative pharmacy practice agreement between the pharmacist and physician.
(24) 'Electronic data intermediary' means an entity that provides the infrastructure to connect a computer system, hand-held electronic device or other electronic device used by a prescribing practitioner with a computer system or other electronic device used by a pharmacy to facilitate the secure transmission of:
(A) An electronic prescription order;
(B) A refill authorization request;
(C) A communication; or
(D) Other patient care information.
(25) 'E-prescribing' means the transmission, using electronic media, of prescription or prescription-related information between a practitioner, pharmacist, pharmacy benefit manager or health plan as defined in 45 CFR §160.103, either directly or through an electronic data intermediary. E-prescribing includes, but is not limited to, two-way transmissions between the point of care and the pharmacist. E-prescribing may also be referenced by the terms 'electronic prescription' or 'electronic order'.
(26) 'Electronic Signature' means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
(27) 'Electronic transmission' means transmission of information in electronic form or the transmission of the exact visual image of a document by way of electronic equipment.
(28) 'Emergency medical reasons' include, but are not limited to, transfers of a prescription drug by one pharmacy to another pharmacy to alleviate a temporary shortage of a prescription drug; sales to nearby emergency medical services, i.e., ambulance companies and firefighting organizations in the same state or same marketing or service area, or nearby licensed practitioners of prescription drugs for use in the treatment of acutely ill or injured persons; and provision of minimal emergency supplies of prescription drugs to nearby nursing homes for use in emergencies or during hours of the day when necessary prescription drugs cannot be obtained.
(29) 'Equivalent drug product' means a drug product which has the same established name, active ingredient(s), strength or concentration, dosage form, and route of administration and which is formulated to contain the same amount of active ingredient(s) in the same dosage form and to meet the same compendial or other applicable standards (e.g., strength, quality, purity, and identity) and is approved by the United States Food and Drug Administration, but which may differ in characteristics, such as shape, scoring, configuration, packaging, excipients (including colors, flavors, and preservatives), and expiration time. Pharmacists may utilize as a basis for the determination of generic equivalency Approved Drug Products with Therapeutic Equivalence Evaluations and current supplements published by the Federal Food and Drug Administration, within the limitations stipulated in that publication.
(30) 'Exclusive distributor' means an entity that:
(A) Contracts with a manufacturer to provide or coordinate warehousing, wholesale distribution, or other services on behalf of a manufacturer and who takes title to that manufacturer's prescription drug, but who does not have general responsibility to direct the sale or disposition of the manufacturer's prescription drug; and
(B) Is licensed as a wholesale distributor under this chapter.
(31) 'FDA' means the Food and Drug Administration, a federal agency within the United States Department of Health and Human Services.
(32) 'Generic name' means the official title of a drug or drug combination for which a new drug application, or an abbreviated new drug application, has been approved by the FDA.
(33) 'Health care entity' means any person that provides diagnostic, medical, community pharmacies, surgical, dental treatment, or rehabilitative care but does not include any retail pharmacy or wholesale distributor.
(34) 'Health information' means any information, whether oral or recorded in any form or medium, that:
(A) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and
(B) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.
(35) 'HIPAA' is the federal Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191).
(36) 'Immediate container' means a container and does not include package liners.
(37) 'Individually identifiable health information' is information that is a subset of health information, including demographic information collected from an individual and is created or received by a health care provider, health plan, employer, or health care clearinghouse; and relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and that identifies the individual; or with respect to which there is a reasonable basis to believe the information can be used to identify the individual.
(38) 'Intracompany transaction' means any transaction between a division, subsidiary, parent, and/or affiliated or related company under the common ownership and control of a corporate or other legal business entity.
(39) 'Label' means a display of written, printed, or graphic matter upon the immediate container of any drug or device.
(40) 'Labeling' means the process of preparing and affixing a label to a drug container exclusive, however, of a labeling by a manufacturer, packer or distributor of a nonprescription drug or commercially packaged legend drug or device.
(41) 'Long-Term care facility' means a nursing home, retirement care, mental care, or other facility or institution that provides extended health care to resident patients.
(42) 'Mail-order pharmacy' means a pharmacy, regardless of its location, which dispenses greater than twenty-five percent prescription drugs via the mail or other delivery services.
(43) 'Manufacturer' means a person engaged in the manufacture of drugs or devices.
(44) 'Manufacturing' means the production, preparation, propagation or processing of a drug or device, either directly or indirectly, by extraction from substances of natural origin or independently by means of chemical or biological synthesis and includes any packaging or repackaging of the substance or substances or labeling or relabeling of its contents and the promotion and marketing of the drugs or devices. Manufacturing also includes the preparation and promotion of commercially available products from bulk compounds for resale by pharmacies, practitioners or other persons.
(45) 'Medical order' means a lawful order of a practitioner that may or may not include a prescription drug order.
(46) 'Medication therapy management' is a distinct service or group of services that optimize therapeutic outcomes for individual patients. Medication therapy management services are independent of, but can occur in conjunction with, the provision of a medication or a medical device. Medication therapy management encompasses a broad range of professional activities and responsibilities within the licensed pharmacist's scope of practice. These services may include, but are not limited to, the following, according to the individual needs of the patient:
(A) Performing or obtaining necessary assessments of the patient's health status;
(B) Formulating a medication treatment plan;
(C) Administering medications, or recommending to a prescriber the selection, initiation or modification of medication therapy;
(D) Monitoring and evaluating the patient's response to therapy, including safety and effectiveness;
(E) Performing a comprehensive medication review to identify, resolve, and prevent medication-related problems, including adverse drug events;
(F) Documenting the care delivered and communicating essential information to the patient's primary care providers;
(G) Providing verbal education and training designed to enhance patient understanding and appropriate use of his or her medications;
(H) Providing information, support services and resources designed to enhance patient adherence with his or her therapeutic regimens;
(I) Coordinating and integrating medication therapy management services within the broader health care management services being provided to the patient; and
(J) Such other patient care services as may be allowed by law.
(47) 'Misbranded' means a drug or device that has a label that is false or misleading in any particular; or the label does not bear the name and address of the manufacturer, packer, or distributor and does not have an accurate statement of the quantities of the active ingredients in the case of a drug; or the label does not show an accurate monograph for prescription drugs.
(48) 'Nonprescription drug' means a drug which may be sold without a prescription and which is labeled for use by the consumer in accordance with the requirements of the laws and rules of this state and the federal government.
(49) 'Normal distribution channel' means a chain of custody for a prescription drug that goes from a manufacturer of the prescription drug, the manufacturer's third-party logistics provider, or the manufacturer's exclusive distributor to:
(A) A wholesale distributor to a pharmacy to a patient or other designated persons authorized by law to dispense or administer such prescription drug to a patient;
(B) A wholesale distributor to a chain pharmacy warehouse to that chain pharmacy warehouse's intracompany pharmacy to a patient or other designated persons authorized by law to dispense or administer such prescription drug to a patient;
(C) A chain pharmacy warehouse to that chain pharmacy warehouse's intracompany pharmacy to a patient or other designated persons authorized by law to dispense or administer such prescription drug to a patient;
(D) A pharmacy or to other designated persons authorized by law to dispense or administer such prescription drug to a patient; or
(E) As prescribed by the board's rules.
(50) 'Patient counseling' means the oral communication by the pharmacist of information, as defined in the rules of the board, to the patient to improve therapy by aiding in the proper use of drugs and devices.
(51) 'Pedigree' means a statement or record in a written form or electronic form, approved by the board, that records each wholesale distribution of any given prescription drug (excluding veterinary prescription drugs), which leaves the normal distribution channel.
(52) 'Person' means an individual, corporation, partnership, association or any other legal entity, including government.
(53) 'Pharmacist' means an individual currently licensed by this state to engage in the practice of pharmacist care.
(54) 'Pharmacist Care' is the provision of health care by a pharmacist of medication therapy management services, with or without the dispensing of drugs or devices, intended to achieve outcomes related to the cure or prevention of a disease, elimination or reduction of a patient's symptoms, or arresting or slowing of a disease process, and as provided for in section nine.
(55) 'Pharmacist-in-charge' means a pharmacist currently licensed in this state who accepts responsibility for the operation of a pharmacy in conformance with all laws and legislative rules pertinent to the practice of pharmacist care and the distribution of drugs and who is personally in full and actual charge of the pharmacy and personnel.
(56) 'Pharmacist's scope of practice pursuant to the collaborative pharmacy practice agreement' means those duties and limitations of duties placed upon the pharmacist by the collaborating physician, as jointly approved by the board and the Board of Medicine or the Board of Osteopathy.
(57) 'Pharmacy' means any place within this state where drugs are dispensed and pharmacist care is provided and any place outside of this state where drugs are dispensed and pharmacist care is provided to residents of this state.
(58) 'Pharmacy Intern' or 'Intern' means an individual who is currently licensed to engage in the practice of pharmacist care while under the supervision of a pharmacist.
(59) 'Pharmacy Technician' means a person registered with the board to practice certain tasks related to the practice of pharmacist care as permitted by the board.
(60) 'Physician' means an individual currently licensed, in good standing and without restrictions, as an allopathic physician by the West Virginia Board of Medicine or an osteopathic physician by the West Virginia Board of Osteopathy.
(61) 'Practice of telepharmacy' means the provision of pharmacist care by properly licensed pharmacists located within United States jurisdictions through the use of telecommunications or other technologies to patients or their agents at a different location that are located within United States jurisdictions.
(62) 'Practitioner' means an individual authorized by a jurisdiction of the United States to prescribe drugs in the course of professional practices, as allowed by law.
(63) 'Prescription drug' or 'legend drug' means a drug which, prior to being dispensed and delivered:
(A) Is required under Federal law to be labeled with one of the following statements:
(i) 'Rx Only';
(ii) 'Caution: Federal law prohibits dispensing without prescription';
(iii) 'Caution: Federal law restricts this drug to use by, or on the order of, a licensed veterinarian'; or
(B) Is required by any applicable federal or state law or rule to be dispensed pursuant only to a prescription drug order or is restricted to use by practitioners only.
(64) 'Prescription or prescription drug order' means a lawful order from a practitioner for a drug or device for a specific patient, including orders derived from collaborative pharmacy practice, where a valid patient-practitioner relationship exists, that is communicated to a pharmacist in a pharmacy.
(65)'Product Labeling' means all labels and other written, printed, or graphic matter upon any article or any of its containers or wrappers, or accompanying such article.
(66) 'Repackage' means changing the container, wrapper, quantity, or product labeling of a drug or device to further the distribution of the drug or device.
(67) 'Repackager' means a person who repackages.
(68) 'Substitute' means to dispense without the prescriber's express authorization a therapeutically equivalent generic drug product in the place of the drug ordered or prescribed.
(69) 'Therapeutic equivalence' means drug products classified as therapeutically equivalent can be substituted with the full expectation that the substituted product will produce the same clinical effect and safety profile as the prescribed product which contain the same active ingredient(s); dosage form and route of administration; and strength.
(70) 'Third-Party logistics provider' means an entity that:
(A) Provides or coordinates warehousing, distribution, or other services on behalf of a manufacturer, but does not take title to the prescription drug or have general responsibility to direct the prescription drug's sale or disposition; and
(B) Is licensed as a wholesale distributor under this article.
(71) 'Valid patient-practitioner relationship' means the following have been established:
(A) A patient has a medical complaint;
(B) A medical history has been taken;
(C) A face-to-face physical examination adequate to establish the medical complaint has been performed by the prescribing practitioner or in the instances of telemedicine through telemedicine practice approved by the appropriate practitioner board; and
(D) Some logical connection exists between the medical complaint, the medical history, and the physical examination and the drug prescribed.
(72) 'Wholesale Distribution' means the distribution of prescription drugs or devices by wholesale distributors to persons other than consumers or patients, and includes the transfer of prescription drugs by a pharmacy to another pharmacy if the value of the goods transferred exceeds 5% of total prescription drug sales revenue of either the transferor or transferee pharmacy during any consecutive 12 month period. Wholesale distribution does not include:
(A) The sale, purchase, or trade of a prescription drug or device, an offer to sell, purchase, or trade a prescription drug or device, or the dispensing of a prescription drug or device pursuant to a prescription;
(B) The sale, purchase, or trade of a prescription drug or device or an offer to sell, purchase, or trade a prescription drug or device for emergency medical reasons;
(C) Intracompany transactions, unless in violation of own use provisions;
(D) The sale, purchase, or trade of a prescription drug or device or an offer to sell, purchase, or trade a prescription drug or device among hospitals, chain pharmacy warehouses, pharmacies, or other health care entities that are under common control;
(E) The sale, purchase, or trade of a prescription drug or device or the offer to sell, purchase, or trade a prescription drug or device by a charitable organization described in 503(c)(3) of the Internal Revenue Code of 1954 to a nonprofit affiliate of the organization to the extent otherwise permitted by law;
(F) The purchase or other acquisition by a hospital or other similar health care entity that is a member of a group purchasing organization of a prescription drug or device for its own use from the group purchasing organization or from other hospitals or similar health care entities that are members of these organizations;
(G) The sale, purchase, or trade of blood and blood components intended for transfusion;
(H) The return of recalled, expired, damaged, or otherwise non-salable prescription drugs, when conducted by a hospital, health care entity, pharmacy, or charitable institution in accordance with the board's rules; or
(I) The sale, transfer, merger, or consolidation of all or part of the business of a pharmacy or pharmacies from or with another pharmacy or pharmacies, whether accomplished as a purchase and sale of stock or business assets, in accordance with the board's legislative rules.
(73) 'Wholesale distributor' means a person engaged in wholesale distribution of drugs, including, but not limited to, manufacturers' and distributors' warehouses, chain drug warehouses and wholesale drug warehouses, independent wholesale drug trader and retail pharmacies that conduct wholesale distributions.
§30-5-4. West Virginia Board of Pharmacy.
(a) The West Virginia Board of Pharmacy is continued. The members of the board in office on July 1, 2011, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.
(b) The Governor, by and with the advice and consent of the Senate, shall appoint:
(1) Five members who are licensed to practice pharmacist care in this state; 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 pharmacist care regulated under the provisions of this article.
(c) 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.
(d) 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 three years immediately preceding the appointment.
(e) Each member of the board must be a resident of this state during the appointment term.
(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 60 days of the vacancy.
(g) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(h) 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 in any jurisdiction.
(i) 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.
(j) The board shall elect annually one of its members as president, one member as vice- president and one member as 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 of the board constitutes a quorum.
(m) The board shall hold at least two meetings annually. 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.
(n) 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.
§30-5-5. 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 and registration;
(3) Establish procedures for submitting, approving and rejecting applications for a license, permit and registration;
(4) Determine the qualifications of any applicant for a license, permit and registration;
(5) Determine the passing grade for examinations;
(6) Establish a fee schedule;
(7) Issue, renew, deny, suspend, revoke or reinstate a license, permit, and registration;
(8) Prepare, conduct, administer and grade written, oral or written and oral examinations for a license and registration;
(9) Establish continuing education requirements;
(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. Inspectors shall be licensed pharmacists;
(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) 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
(19) 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.
§30-5-6. 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, and articles two, three, eight, nine and ten of chapter sixty-A including:
(1) Standards and requirements for a license, permit 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) Procedures for the issuance and renewal of a license, permit and registration;
(7) A fee schedule;
(8) Continuing education requirements;
(9) Set standards for professional conduct;
(10) Establish equipment and facility standards for pharmacies;
(11) Approve courses and standards for training pharmacist technicians;
(12) Regulation of charitable clinic pharmacies;
(13) Regulation of mail order pharmacies;
(14) Agreements with organizations to form pharmacist recovery networks;
(15) Creating an alcohol or chemical dependency treatment program;
(16) Establishing a ratio of pharmacy technicians to on-duty pharmacist operating in any outpatient, mail order or institutional pharmacy;
(17) Regulation of telepharmacy;
(18) Establishing the minimum standards for a charitable clinic pharmacy and rules regarding the applicable definition of a pharmacist-in-charge, who may be a volunteer, at charitable clinic pharmacies: Provided, That a charitable clinic pharmacy may not be charged any applicable licensing fees and such clinics may receive donated drugs;
(19) Establish standards for substituted drug products;
(20) Establish the regulations for E-prescribing;
(21) Establish the proper use of the automated data processing system;
(22) Registration and control of the manufacture and distribution of controlled substances within this state;
(23) Regulation of pharmacies;
(24) Sanitation and equipment requirements for wholesalers, distributers and pharmacies;
(25) Procedures for denying, suspending, revoking, reinstating or limiting the practice of a pharmacist, pharmacy technician or person holding a permit;
(26) Regulations on prescription paper as provided in article five-w, chapter sixteen;
(27) Regulations on controlled substances as provided in article two, chapter sixty-A;
(28) Regulations on manufacturing, distributing, or dispensing any controlled substance as provided in article three, chapter sixty-A;
(29) Regulations on wholesale drug distribution as provided in article eight, chapter sixty-A;
(30) Regulations on controlled substances monitoring as provided in article nine, chapter sixty-A;
(31) Regulations on Methamphetamine Laboratory Eradication Act as provided in article ten, chapter sixty-A; and
(32) Any other rules necessary to effectuate the provisions of this article.
(b) The board may provide an exemption to the pharmacist-in-charge requirement for the opening of a new retail pharmacy or during a declared emergency.
(c) The board, the Board of Medicine and the Board of Osteopathy shall jointly agree and propose rules concerning collaborative pharmacy practice for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of the code.
(d) The Board with the advice of the Board of Medicine and the Board of Osteopathy shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to perform influenza and pneumonia immunizations, on a person of eighteen years of age or older. These rules shall provide, at a minimum, for the following:
(1) Establishment of a course, or provide a list of approved courses, in immunization administration. The courses must be based on the standards established for such courses by the Centers for Disease Control and Prevention in the public health service of the United States Department of Health and Human Services;
(2) Definitive treatment guidelines which shall include, but not be limited to, appropriate observation for an adverse reaction of an individual following an immunization;
(3) Prior to administration of immunizations, a pharmacist shall have completed a board approved immunization 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 pharmacists administering immunizations to report to the primary care physician or other licensed health care provider as identified by the person receiving the immunization;
(6) Reporting requirements for pharmacists administering immunizations to report to the West Virginia Statewide Immunization Information (WVSII);
(7) That a pharmacist may not delegate the authority to administer immunizations to any other person, unless administered by a licensed pharmacy intern under the direct supervision of a pharmacist of whom both pharmacist and intern have successfully completed all board required training; and
(8) Any other provisions necessary to implement the provisions of this section.
(e) The board, the Board of Medicine and the Board of Osteopathy shall propose joint rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to permit licensed pharmacists to administer other immunizations any may include, but is not limited to, Hepatitis A, Hepatitis B, Herpes Zoster and Tetanus. These rules shall provide, at a minimum, the same provisions contained in subsection (d) of this section.
(f) All of the board's rules in effect on July 1, 2011, shall remain in effect until they are amended, modified, repealed or replaced.
§30-5-7. 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 'Board of Pharmacy 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.
§30-5-8. Qualifications for licensure as pharmacist;
(a) To be eligible for a license to practice pharmacist care under the provisions of this article, the applicant must:
(1) Submit a written application to the board;
(2) Be eighteen years of age or older;
(3) Pay all applicable fees;
(4) Graduate from a recognized school of pharmacy;
(5) Complete at least fifteen hundred hours of internship in a pharmacy under the instruction and supervision of a pharmacist;
(6) Pass an examination or examinations approved by the board;
(7) 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;
(8) Present to the board satisfactory evidence that he or she is a person of good moral character, has not been convicted of a felony involving controlled substances or violent crime;
(9) Not been convicted in any jurisdiction of a felony or any crime which bears a rational nexus to the individual's ability to practice pharmacist care; and
(10) Has fulfilled any other requirement specified by the board in rule.
(b) An applicant from another jurisdiction shall comply with all the requirements of this article.
§30-5-9. Scope practice for licensed pharmacist;
(a) A licensed pharmacist may:
(1) Provide care related to the interpretation, evaluation, and implementation of medical orders;
(2) Dispense of prescription drug orders and participate in drug and device selection;
(3) Provide drug administration;
(4) Provide drug regimen review;
(5) Provide drug or drug-related research;
(6) Perform patient counseling;
(7) Provide pharmacist care in all areas of patient care, including collaborative pharmacy practice;
(8) Compound and label drugs and drug devices;
(9) Perform proper and safe storage of drugs and devices;
(10) Maintain proper records;
(11) Provide patient counseling concerning the therapeutic value and proper use of drugs and devices;
(12) Order laboratory tests in accordance with drug therapy management and medication therapy assessments management; and
(13) Provide medication therapy management.
(b) A pharmacist meeting the requirements as promulgated by legislative rule may administer immunizations.
§30-5-10. Registration of pharmacy technicians;
(a) To be eligible for a registration as a pharmacy technician to assist in the practice of pharmacist care, the applicant must:
(1) Submit a written application to the board;
(2) Be at least eighteen years of age;
(3) Pay the applicable fees;
(4) Have graduated from high school or obtained a Certificate of General Educational Development (GED) or equivalent;
(5) Have:
(A) Graduated from a competency-based pharmacy technician education and training program as approved the board; or
(B)Completed a pharmacy provided, competency-based education and training program approved by the board;
(6) Commencing July 1, 2012, have successfully passed an examination developed using nationally recognized and validated psychometric and pharmacy practice standards approved by the board: Provided, That any person registered as a pharmacy technician under the provisions of this article prior to July 1, 2012 are exempt from this requirement;
(7) 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;
(8) Not have been convicted of a felony in any jurisdiction within ten years preceding the date of application for license which conviction remains unreversed;
(9) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted bearing a rational nexus to the practice of pharmacist care, which conviction remains unreversed; and
(10) Have fulfilled any other requirement specified by the board in rule.
(b) A person whose license to practice pharmacist care has been denied, revoked, suspended, or restricted for disciplinary purposes in any jurisdiction is not eligible to be registered as a pharmacy technician.
(c) A person registered with the board to assist in the practice of pharmacist care prior to July 1, 2011 shall for all purposes be considered as registered under this article and may renew pursuant to the provisions of this article.
§30-5-11. Scope practice for registered pharmacy technician;
(a) A pharmacy technician shall be under the direct supervision of a pharmacist when:
(1) Assisting in the dispensing process;
(2) Receiving new, written or electronic prescription drug orders;
(3) Compounding; and
(4) Stocking medications.
(b) A pharmacy technician may, under the indirect supervision of a pharmacist, perform the following:
(1) Process medical coverage claims; and
(2) Cashier.
(c) A pharmacy technician shall not perform the following:
(1) Drug regimen review;
(2) Clinical conflict resolution;
(3) Contact a prescriber concerning prescription drug order clarification or therapy modification;
(4) Patient counseling;
(5) Dispense process validation;
(6) Prescription transfer; and
(7) Receive new oral prescription drug orders.
(d) Indirect supervision of a pharmacy technician is permitted to allow a pharmacist to take one break of no more than thirty minutes during any contiguous eight hour period. The pharmacist may leave the pharmacy area but may not leave the building during the break. When a pharmacist is on break, a pharmacy technician may continue to prepare prescriptions for the pharmacist's verification. A prescription may not be delivered until the pharmacist has verified the accuracy of the prescription, and counseling, if required, has been provided to or refused by the patient.
(e) A pharmacy that permits indirect supervision of pharmacy technician during a pharmacist's break shall have either an interactive voice response system or a voice mail system installed on the pharmacy phone line in order to receive new prescription orders and refill authorizations during the break.
(f) The pharmacy shall establish protocols that require a pharmacy technician to interrupt the pharmacist's break if an emergency arises.
§30-5-12. Pharmacist interns.
(a) To be eligible for a license to assist in the practice of pharmacist care as a pharmacy intern, the applicant must be:
(1) Enrolled in a professional degree program of a school or college of pharmacy that has been approved by the board, is in good standing and is satisfactorily progressing toward meeting the requirements for licensure as a pharmacist;
(2) A graduate of an approved professional degree program of a school or college of pharmacy or a graduate who has established educational equivalency by obtaining a Foreign Pharmacy Graduate Examination Committee Certificate, who is currently licensed by the board for the purpose of obtaining practical experience as a requirement for licensure as a pharmacist;
(3) A qualified applicant awaiting examination for licensure or meeting board requirements for re-licensure; or
(4) An individual participating in a pharmacy residency or fellowship program.
§30-5-13. Prohibiting the dispensing of prescription orders in absence of practitioner-patient relationship.

(a) A pharmacist may not compound or dispense any prescription order when the pharmacist has knowledge that the prescription was issued by a practitioner without establishing an ongoing practitioner-patient relationship. An online or telephonic evaluation by questionnaire is inadequate to establish an appropriate practitioner-patient relationship.
(b) The provisions of the section do not apply in the following situations:
(1) A documented emergency;
(2) An on-call or cross-coverage situation; or
(3) Where patient care is rendered in consultation with another practitioner who has an ongoing relationship with the patient and who has agreed to supervise the patient's treatment, including the use of any prescribed medications.
§30-5-14. License to practice pharmacist care from another jurisdiction.

(a) The board may issue a license to practice pharmacist care to an applicant who holds a valid license or other authorization to practice pharmacist care from another state, if the applicant meets the requirements of the rules for reciprocity promulgated by the board in accordance with the provisions of chapter twenty-nine-a of this code; Provided, That the board shall not issue a license to an applicant that holds authorization to practice pharmacist care from another state where that state does not permit reciprocity to pharmacists licensed in West Virginia.
(b) The board may issue a license to practice pharmacist care to an applicant who holds a valid license or other authorization to practice pharmacist care from another country, if the applicant meets the requirements of the rules for reciprocity for foreign applicants promulgated by the board in accordance with the provisions of chapter twenty-nine-a of this code.
§30-5-15. Renewal requirements.
(a) All persons regulated by this article shall annually or biannually, renew his or her business authorization 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 board authorization 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 pharmacist or pharmacy technician complete continuing education.
(d) The board may deny an application for renewal for any reason which would justify the denial of an original application.
(e) Commencing July 1, 2013, a previously registered pharmacy technician may renew his or her current registration without having successfully completed subdivision (6), subsection (a), of section ten. The previously registered pharmacy technician may continue to renew his or her registration under this provision.
§30-5-16. Special volunteer pharmacist license; civil immunity for voluntary services rendered to indigents.

(a) There is a special volunteer pharmacist license for pharmacists retired or retiring from the active practice of pharmacist care who wish to donate their expertise for the pharmacist 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. The special volunteer pharmacist license shall be issued by the board to pharmacists 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 license provided in this subsection which shall contain the pharmacist's acknowledgment that:
(1) The pharmacist's practice under the special volunteer pharmacist license shall be exclusively devoted to providing pharmacist care to needy and indigent persons in West Virginia;
(2) The pharmacist may not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any pharmacist care rendered under the special volunteer pharmacist license;
(3) The pharmacist will supply any supporting documentation that the board may reasonably require; and
(4) The pharmacist agrees to continue to participate in continuing professional education as required by the board for the special volunteer pharmacist license.
(b) Any pharmacist who renders any pharmaceutical 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 pharmacist 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 pharmacist care at the clinic unless the act or omission was the result of the pharmacist's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the pharmacist and the clinic pursuant to which the pharmacist provides voluntary uncompensated pharmacist care under the control of the clinic to patients of the clinic before the rendering of any services by the pharmacist 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 pharmacist rendering voluntary pharmaceutical services at or for the clinic under a special volunteer pharmacist license authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure as listed in section eight of this article and in the legislative rules promulgated thereunder, except the fee requirements of that section and of the legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer pharmacist license to any pharmacist whose license is or has been subject to any disciplinary action or to any pharmacist 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 pharmacist 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 pharmacist license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any pharmacist 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 a pharmacist who holds a special volunteer pharmacist license.
§30-5-17. Pharmacist requirements to participate in a collaborative pharmacy practice agreement.

Before a pharmacist may participate in a collaborative pharmacy practice agreement, the pharmacist shall:
(a) Have an unrestricted and current license to practice as a pharmacist in West Virginia;
(b) Have at least one million dollars of professional liability insurance coverage; and
(c) Meet one of the following qualifications, at a minimum:
(1) Earned a Certification from the Board of Pharmaceutical Specialties, is a Certified Geriatric Practitioner, or has completed an American Society of Health System Pharmacists(ASHP) accredited residency program, which includes two years of clinical experience approved by the boards;
(2) Successfully completed the course of study and holds the academic degree of Doctor of Pharmacy and has three years of clinical experience approved by the board and has completed an Accreditation Council for Pharmacy Education (ACPE) approved certificate program in the area of practice covered by the collaborative pharmacy practice agreement; or
(3) Successfully completed the course of study and hold the academic degree of Bachelor of Science in Pharmacy and has five years of clinical experience approved by the boards and has completed two ACPE approved certificate programs with at least one program in the area of practice covered by a collaborative pharmacy practice agreement.
§30-5-18. Collaborative pharmacy practice agreement.
(a) A pharmacist engaging in collaborative pharmacy practice shall have on file at his or her place of practice the collaborative pharmacy practice agreement. The existence and subsequent termination of the agreement and any additional information the rules may require concerning the agreement, including the agreement itself, shall be made available to the appropriate licensing board for review upon request. The agreement may allow the pharmacist, within the pharmacist's scope of practice pursuant to the collaborative pharmacy practice agreement, to conduct drug therapy management activities approved by the collaborating physician. The collaborative pharmacy practice agreement must be a voluntary process, which is a physician directed approach, that is entered into between an individual physician, an individual pharmacist and an individual patient or the patient's authorized representative who has given informed consent.
(b) A collaborative pharmacy practice agreement may authorize a pharmacist to provide drug therapy management. In instances where drug therapy is discontinued, the pharmacist shall notify the treating physician of the discontinuance in the time frame and in the manner established by joint legislative rules. Each protocol developed, pursuant to the collaborative pharmacy practice agreement, shall contain detailed direction concerning the services that the pharmacists may perform for that patient. The protocol shall include, but is not be limited to:
(1) The specific drug or drugs to be managed by the pharmacist;
(2) The terms and conditions under which drug therapy may be implemented, modified or discontinued;
(3) The conditions and events upon which the pharmacist is required to notify the physician; and
(4) The laboratory tests that may be ordered in accordance with drug therapy management.
(c) All activities performed by the pharmacist in conjunction with the protocol shall be documented in the patient's medical record. The pharmacists shall report at least every thirty days to the physician regarding the patient's drug therapy management. The collaborative pharmacy practice agreement and protocols shall be available for inspection by the board, the West Virginia Board of Medicine, or the West Virginia Board of Osteopathy, depending on the licensing board of the participating physician. A copy of the protocol shall be filed in the patient's medical record.
(d) Collaborative pharmacy agreements may not include the management of controlled substances.
(e) A collaborative pharmacy practice agreement, meeting the requirements herein established and in accordance with joint rules, shall be allowed in the hospital setting, the nursing home setting, the medical school setting and the hospital, community-based pharmacy setting and ambulatory care clinics. The pharmacist shall be employed by or under contract to provide services to the hospital, pharmacy, nursing home or medical school, or hold a faculty appointment with one of the schools of pharmacy or medicine in this state.
(f) Nothing pertaining to collaborative pharmacy practice shall be interpreted to permit a pharmacist to accept delegation of a physician's authority outside the limits included in the appropriate board's statute and rules.
§30-5-19. Display of business authorization.
(a) The board shall prescribe the form for a business authorization, and may issue a duplicate upon payment of a fee.
(b) Any person regulated by the article shall conspicuously display his or her business authorization at his or her principal business location.
§30-5-20. Responsibility for quality of drugs dispensed; exception; falsification of labels; deviation from prescription.

(a) All persons, whether pharmacists or not, shall be responsible for the quality of all drugs, chemicals and medicines they may sell or dispense, with the exception of those sold in or dispensed unchanged from the original retail package of the manufacturer, in which event the manufacturer shall be responsible.
(b) Except as provided in section twenty-one of this article, the following acts shall be prohibited:
(1) The falsification of any label upon the immediate container, box and/or package containing a drug;
(2) The substitution or the dispensing of a different drug in lieu of any drug prescribed in a prescription without the approval of the practitioner authorizing the original prescription: Provided, That this may not be construed to interfere with the art of prescription compounding which does not alter the therapeutic properties of the prescription or appropriate generic substitute;
(3) The filling or refilling of any controlled substance prescription for a greater quantity of any drug or drug product than that prescribed in the original prescription without a written or electronic order or an oral order reduced to writing, or the refilling of a prescription without the verbal, written or electronic consent of the practitioner authorizing the original prescription.
(4) The filling or refilling of any non-controlled substance prescription for a greater quantity of any drug or drug product than the total number or amount authorized in the original prescription, including refills, without a written or electronic order or an oral order reduced to writing, or the refilling of a prescription without the verbal, written or electronic consent of the practitioner authorizing the original prescription provided any one fill may not exceed a 90 day supply unless otherwise approved by the practitioner who authorized the original prescription.
§30-5-21. Generic drug products.

(a) A pharmacist who receives a prescription for a brand name drug or drug product shall substitute the least expensive therapeutic equivalent generic drug or drug product based on the cash retail sales price of the respective products at the time it is dispensed unless otherwise required by a third party payor, the patient or in the exercise of his or her professional judgment the pharmacist affirmatively indicates that the least expensive therapeutic equivalent drug is not suitable for the particular patient: Provided, That no substitution may be made by the pharmacist where the prescribing practitioner indicates that, in his or her professional judgment, a specific brand name drug is medically necessary for a particular patient.
(b) A written prescription order shall permit the pharmacist to substitute an equivalent generic name drug or drug product except where the prescribing practitioner has indicated in his or her own handwriting, the words 'Brand Necessary' or 'Brand Medically Necessary'. The following sentence shall be printed on the prescription form: 'This prescription may be filled with a generically equivalent drug product unless the words 'Brand Necessary' or 'Brand Medically Necessary' are written, in the practitioner's own handwriting, indicated by the prescribing practitioner on this prescription form'.
(c) A verbal prescription order shall permit the pharmacist to substitute an equivalent generic name drug or drug product except where the prescribing practitioner shall indicate to the pharmacist that the prescription is 'Brand Necessary' or 'Brand Medically Necessary'. The pharmacist shall note the instructions on the file copy of the prescription or electronic chart.
(d) An electronic prescription order shall permit the pharmacist to substitute an equivalent generic name drug or drug product except where the prescribing practitioner shall indicate to the pharmacist that the prescription is 'Brand Necessary' or 'Brand Medically Necessary'. The pharmacist shall note the instructions on the file copy of the prescription or electronic chart.
(e) No person may by trade rule, work rule, contract or in any other way prohibit, restrict, limit or attempt to prohibit, restrict or limit the making of a generic name drug or other product substitution under the provisions of this section. No employer or his or her agent may use coercion or other means to interfere with the professional judgment of the pharmacist in deciding which generic name drugs or drug products shall be stocked or substituted: Provided, That this section may not be construed to permit the pharmacist to generally refuse to substitute less expensive therapeutically equivalent generic drugs for brand name drugs and that any pharmacist so refusing shall be subject to the penalties prescribed in this article.
(f) A pharmacist may substitute a drug pursuant to the provisions of this section only if the drug is a lower cash retail sales price than the prescribed drug, unless otherwise required by a third party payor. Where substitution is proper, pursuant to this section, or where the practitioner prescribes the drug by generic name, the pharmacist shall, consistent with his or her professional judgment, dispense an equivalent generic drug product with the lowest cash retail sales price which is available in the pharmacy at the time of dispensing: Provided, That all savings in the retail price of the prescription shall be passed on to the purchaser and shall be passed on to the cash paying consumer.
(g) Each pharmacy shall maintain a record of any substitution of an equivalent generic name drug product for a prescribed brand name drug product on the file copy of a written, electronic or verbal prescription or chart order. The record shall include the manufacturer and generic name of the drug product selected.
(h) All drugs shall be labeled in accordance with the instructions of the practitioner.
(i) Unless the practitioner directs otherwise, the prescription label on all drugs dispensed by the pharmacist shall indicate the generic name using abbreviations, if necessary, and either the name of the manufacturer or packager, whichever is applicable in the pharmacist's discretion. The same notation will be made on the original prescription retained by the pharmacist.
(j) A pharmacist may not dispense a product under the provisions of this section unless the manufacturer has shown that the drug has been manufactured with the following minimum good manufacturing standards and practices by:
(1) Labeling products with the name of the original manufacturer and control number;
(2) Maintaining quality control standards equal to or greater than those of the FDA;
(3) Marking products with identification code or monogram; and
(4) Labeling products with an expiration date.
(k) A pharmacist may not substitute a generic-named therapeutically equivalent drug product for a prescribed brand name drug product if the brand name drug product or the generic drug type is listed on the formulary established by the board pursuant to this article or is found to be in violation of the requirements of the FDA.
(l) A pharmacist who substitutes any drug shall, either personally or through his or her agent, assistant or employee, notify the person presenting the prescription of the substitution. The person presenting the prescription shall have the right to refuse the substitution. Upon request the pharmacist shall relate the cash retail sales price difference between the brand name and the drug substituted for it.
(m) A pharmacist complying with the provisions of this section may not be liable in any way for the dispensing of a generic-named therapeutically equivalent drug, substituted under the provisions of this section, unless the generic-named therapeutically equivalent drug was incorrectly substituted.
(n) In no event where the pharmacist substitutes a drug under the provisions of this section shall the prescribing physician be liable in any action for loss, damage, injury or death of any person occasioned by or arising from the use of the substitute drug unless the original drug was incorrectly prescribed.
(o) Failure of a practitioner to specify that a specific brand name is necessary for a particular patient does not constitute evidence of negligence unless the practitioner had reasonable cause to believe that the health of the patient required the use of a certain product and no other.
§30-5-22. Pharmacies to be registered.

(a) To be eligible for a permit to operate, maintain, open or establish a pharmacy, the applicant shall:
(1) Submit a written application to the board;
(2) Pay all applicable fees;
(3) Designate a pharmacist-in-charge; and
(4) Successfully complete an inspection by the board.
(b) A pharmacy, an ambulatory health care facility, and a charitable clinic pharmacy shall register with the board.
(c) A person desiring to operate, maintain, open or establish a pharmacy shall register with the board.
(d) A separate application shall be made and separate permits issued for each location.
(e) Permits issued under the provisions of this article are not transferable.
(f) Permits shall be renewed annually. If a permit expires, the pharmacy shall be reinspected and an inspection fee is required.
(g) A holder of a permit issued pursuant to this section shall employ a pharmacist-in-charge and operate in compliance with the legislative rules governing the practice of pharmacist care and the operation of a pharmacy.
(h) The provisions of this section do not apply to the sale of nonprescription drugs which are not required to be dispensed pursuant to a practitioner's prescription.
§30-5-23. Pharmacist-in-charge.
(a) A pharmacy shall be under the direction and supervision of a pharmacist who shall be designated by the owner of the pharmacy as the pharmacist-in-charge. This designation shall be filed with the board within thirty days of the designation.
(b) The pharmacist-in-charge is responsible for the pharmacy's compliance with state and federal pharmacy laws and regulations and for maintaining records and inventory.
(c) A pharmacist-in-charge may not hold the designated position at more than one pharmacy, whether within or outside the state, except as provided in legislative rule.
(d) An interim pharmacist-in-charge may be designated for a period not to exceed sixty days. The request for an interim pharmacist-in-charge shall detail the circumstances which warrant the change. This change in designation shall be filed with the board within thirty days of the designation.
§30-5-24. Permits for mail-order pharmacy.
(a) A mail-order pharmacy which dispenses drugs shall register with the board.
(b) A mail-order pharmacy shall submit an application for a permit to the board: Provided, That this personnel supervision requirement shall not apply to any person that manufactures, makes, produces, packs, packages, prepares, offers for sale, or distributes drugs if that person is registered and inspected by the United States Food and Drug Administration pursuant to the provisions of 21 U.S.C. Section 360. The application shall require the following information:
(1) The owner of the mail-order pharmacy, whether an individual, a partnership, or a corporation;
(2) The names and titles of all individual owners, partners or corporate officers;
(3) The pharmacy manager;
(4) The pharmacist-in-charge; and
(5) The complete address, telephone number and fax number of the mail-order pharmacy.
(c) This section does not apply to any mail-order pharmacy which operates solely as a wholesale distributor.
§30-5-25. Permit for manufacture and packaging of drugs, medicines, distribution of legend drugs.

(a) Drugs may not be manufactured, made, produced, packed, packaged or prepared within the state, except under the personal supervision of a pharmacist or other qualified person as may be approved by the board.
(b) A person may not manufacture, package or prepare a drug without obtaining a permit from the board.
(c) A person, who offers for sale, sells, offers for sale through the method of distribution any legend drugs is subject to this article.
(d) The application for a permit shall be made on a form to be prescribed and furnished by the board and shall be accompanied by an application fee.
(e) The board shall promulgate rules on permit requirements and sanitation requirements.
(f) Separate applications shall be made and separate permits issued for each place of manufacture, distribution, making, producing, packing, packaging or preparation.
§30-5-26. Filling of prescriptions more than one year after issuance.

A prescription order may not be dispensed after twelve months from the date of issuance by the practitioner. A pharmacist may fill the prescription after twelve months if the prescriber confirms to the pharmacist that he or she still wants the prescription filled and the pharmacist documents upon the prescription that the confirmation was obtained.
§30-5-27. Partial filling of prescriptions.
(a) The partial filling of a prescription is permissible for any prescription if the pharmacist is unable to supply, or the patient requests less than the full quantity called for in a written, electronic, or oral prescription, provided the pharmacist makes a notation of the quantity supplied on either the written prescription or in the electronic record.
(b) The partial filling of a prescription for a controlled substance listed in Schedule II is permissible if the pharmacist is unable to supply or the patient requests less than the full quantity called for in the prescription. The remaining portion of the prescription may be filled within seventy- two hours of the first partial filling: Provided, That if the remaining portion is not or cannot be filled within the seventy-two hour period, the pharmacist shall notify the prescribing individual practitioner. Further quantity may not be supplied beyond seventy-two hours without a new prescription.
§30-5-28. Partial filling of prescriptions for long-term care facility or terminally ill patients; requirements; records; violations.

(a) As used in this section, 'long-term care facility' or 'LTCF' means any nursing home, personal care home, or residential board and care home as defined in section two, article five-c, chapter sixteen of this code which provides extended health care to resident patients: Provided, That the care or treatment in a household, whether for compensation or not, of any person related by blood or marriage, within the degree of consanguinity of second cousin to the head of the household, or his or her spouse, may not be deemed to constitute a nursing home, personal care home or residential board and care home within the meaning of this article. This section does not apply to:
(1) Hospitals, as defined under section one, article five-b, chapter sixteen of this article or to extended care facilities operated in conjunction with a hospital;
(2) State institutions as defined in section six, article one, chapter twenty-seven or in section three, article one, chapter twenty-five, all of this code;
(3) Nursing homes operated by the federal government;
(4) Facilities owned or operated by the state government;
(5) Institutions operated for the treatment and care of alcoholic patients;
(6) Offices of physicians; or
(7) Hotels, boarding homes or other similar places that furnish to their guests only a room and board.
(b) As used in this section, 'terminally ill' means that an individual has a medical prognosis that his or her life expectancy is six months or less.
(c) Schedule II prescriptions for patients in a LTCF and for terminally ill patients shall be valid for a period of sixty days from the date of issue unless terminated within a shorter period by the discontinuance of the medication.
(d) A prescription for a Schedule II controlled substance written for a patient in a LTCF or for a terminally ill patient may be filled in partial quantities, including, but not limited to, individual dosage units and the total quantity of Schedule II controlled substances dispensed in all partial filling may not exceed the total quantity prescribed: Provided, That:
(1) If there is any question whether a patient may be classified as having a terminal illness, the pharmacist shall contact the prescribing practitioner prior to partially filling the prescription; and
(2) Both the pharmacist and the prescribing practitioner have a corresponding responsibility to assure that the controlled substance is for a terminally ill patient.
(e) The pharmacist shall record on the prescription that the patient is 'terminally ill' or a 'LTCF patient'. A prescription that is partially filled and does not contain the notation 'terminally ill' or 'LTCF patient' shall be deemed to have been filled in violation of section three hundred eight, article three, chapter sixty-a of this code.
(f) For each partial filling, the dispensing pharmacist shall record on the back of the prescription, or on another appropriate record which is readily retrievable, the following information:
(1) The date of the partial filling;
(2) The quantity dispensed;
(3) The remaining quantity authorized to be dispensed; and
(4) The identification of the dispensing pharmacist.
(g) Information pertaining to current Schedule II prescriptions for terminally ill and LTCF patients may be maintained in a computerized system if such a system has the capability to permit either by display or printout, for each patient and each medication, all of the information required by this section as well as the patient's name and address, the name of each medication, original prescription number, date of issue, and prescribing practitioner information. The system shall also allow immediate updating of the prescription record each time a partial filling of the prescription is performed and immediate retrieval of all information required under this section.
§30-5-29. Limitations of article.
(a) This article may not be construed to prevent, restrict or in any manner interfere with the sale of nonnarcotic nonprescription drugs which may be lawfully sold without a prescription in accordance with the United States Food, Drug and Cosmetic Act or the laws of this state, nor may any legislative rule be adopted by the board which shall require the sale of nonprescription drugs by a licensed pharmacist or in a pharmacy or which shall prevent, restrict or otherwise interfere with the sale or distribution of such drugs by any retail merchant. The sale or distribution of nonprescription drugs may not be deemed to be improperly engaging in the practice of pharmacist care.
(b) This article may not be construed to interfere with any legally qualified practitioner of medicine, dentistry or veterinary medicine, who is not the proprietor of the store for the dispensing or retailing of drugs and who is not in the employ of such proprietor, in the compounding of his or her own prescriptions or to prevent him or her from supplying to his or her patients such medicines as he or she may deem proper, if such supply is not made as a sale.
(c) The exception provided in subsection (b) of this section does not apply to an ambulatory health care facility: Provided, That a legally licensed and qualified practitioner of medicine or dentistry may supply medicines to patients that he or she treats in a free clinic and that he or she deems appropriate.
§30-5-30. Actions to enjoin violations.
(a) If the board obtains information that any person has engaged in or is engaging in any act which constitutes a violation of the provisions of this article, the rules promulgated pursuant to this article, or a final order or decision of the board, it may issue a notice to the person to cease and desist in engaging in the act and/or apply to the circuit court in the county of the alleged violation for an order enjoining the act.
(b) The circuit court may issue a temporary injunction pending a decision on the merits, and may issue a permanent injunction based on its findings in the case.
(c) The judgment of the circuit court on an application permitted by the provisions of this section is final unless reversed, vacated or modified on appeal to the West Virginia Supreme Court of Appeals.
§30-5-31. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may initiate a complaint upon receipt of credible information, and shall upon the receipt of a 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 pharmacist, pharmacy technician or permit holder.
(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the pharmacist, pharmacy technician or person holding a permit has violated subsection (g) of this section or rules promulgated pursuant to this article.
(d) Upon a finding of probable cause exists that the pharmacist, pharmacy technician or person holding a permit 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, registration or permit or the imposition of sanctions against the pharmacist, pharmacy technician or person holding a permit. 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, restrict or revoke the license, registration or permit of, or impose probationary conditions upon or take disciplinary action against, any pharmacist, pharmacy technician or person holding a permit for any of the following reasons once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a business authorization by fraud, misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving drugs, violent crime, or 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 board authorization revoked or suspended, other disciplinary action taken, or an application for a board 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, 2011, 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;
(7) Requiring the pharmacist, pharmacy technician or person holding a permit to report to the board for periodic interviews for a specified period of time; or
(8) 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.
(i) In addition to any other sanction imposed, the board may require a pharmacist, pharmacy technician or person holding a permit to pay the costs of the proceeding.
(j) The board may defer disciplinary action with regard to an impaired pharmacist or pharmacy technician who voluntarily signs an agreement, in a form satisfactory to the board, agreeing not to practice pharmacist care and to enter an approved treatment and monitoring program in accordance with the board's legislative rule: Provided, That this subsection does not apply to a pharmacist, pharmacy technician or person holding a permit who has been convicted of, pleads guilty to, or enters a plea of nolo contendere or a conviction relating to a controlled substance in any jurisdiction.
(k) Nothing shall be construed as barring criminal prosecutions for violations of this article.
§30-5-32. 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 pharmacist, pharmacy technician or person holding a permit 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.
§30-5-33. Judicial review.
Any pharmacist, pharmacy technician or person holding a permit 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.
§30-5-34. 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 authorized under this article has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.
(b) Any person violating section one of this article is guilty of a misdemeanor, and, upon conviction, shall be fined not to exceed $50 for the first offense, and upon conviction of a second offense shall be fined an amount not less than $50 nor more than $500, or shall be imprisoned in the regional jail no more than thirty days, or both fined and imprisoned. Each day that the violation continues shall constitute a separate offense.
CHAPTER 60A. UNIFORM CONTROLLED SUBSTANCES ACT.

ARTICLE 10. METHAMPHETAMINE LABORATORY ERADICATION ACT.
§60A-10-3. Definitions.
In this article:
(a) 'Board of Pharmacy' or 'board' means the West Virginia Board of Pharmacy established by the provisions of article five, chapter thirty of this code.
(b) 'Designated precursor' means any drug product made subject to the requirements of this article by the provisions of section seven of this article.
(c) 'Distributor' means any person within this state or another state, other than a manufacturer or wholesaler, who sells, delivers, transfers or in any manner furnishes a drug product to any person who is not the ultimate user or consumer of the product;
(d) 'Drug product' means a pharmaceutical product that contains as its single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or a substance identified on the supplemental list provided for in section seven of this article which may be sold without a prescription and which is labeled for use by a consumer in accordance with the requirements of the laws and rules of this state and the federal government.
(e) 'Ephedrine ' means ephedrine, its salts or optical isomers or salts of optical isomers.
(f) 'Manufacturer' means any person within this state who produces, compounds, packages or in any manner initially prepares for sale or use any drug product or any such person in another state if they cause the products to be compounded, packaged or transported into this state.
(g) 'Phenylpropanolamine' means phenylpropanolamine, its salts, optical isomers and salts of optical isomers.
(h) 'Pseudoephedrine' means pseudoephedrine, its salts, optical isomers and salts of optical isomers.
(i) 'Precursor' means any substance which may be used along with other substances as a component in the production and distribution of illegal methamphetamine.
(j) 'Pharmacist' means an individual currently licensed by this state to engage in the practice of pharmacy and pharmaceutical care pharmacist care as defined in subsection (t), section one-b, article fifty five, chapter thirty of this code.
(k) 'Pharmacy intern' has the same meaning as the term 'intern' as set forth in section one-b, article five, chapter thirty of this code.
(l) 'Pharmacy' means any drugstore, apothecary or place within this state where drugs are dispensed and sold at retail or display for sale at retail and pharmaceutical pharmacist care is provided outside of this state where drugs are dispensed and pharmaceutical pharmacist care is provided to residents of this state.
(m) 'Pharmacy counter' means an area in the pharmacy restricted to the public where controlled substances are stored and housed and where controlled substances may only be sold, transferred or dispensed by a pharmacist or pharmacy technician.
(n) 'Pharmacy technician' means a registered technician who meets the requirements for registration as set forth in article five, chapter thirty of this code.
(o) 'Retail establishment' means any entity or person within this state who sells, transfers or distributes goods, including over-the-counter drug products, to an ultimate consumer.
(p) 'Schedule V' means the schedule of controlled substances set out in section two hundred twelve, section two of this chapter.
(q) 'Single active ingredient' means those ingredients listed on a drug product package as the only active ingredient in over-the-counter medication or identified on the Schedule maintained by the Board of Pharmacy as being primarily used in the illegal production and distribution of methamphetamine.
(r) 'Superintendent of the State Police' or 'Superintendent' means the Superintendent of the West Virginia State Police as set forth in section five, article two, chapter fifteen of this code.
(s) 'Wholesaler' means any person within this state or another state, other than a manufacturer, who sells, transfers or in any manner furnishes a drug product to any other person in this state for the purpose of being resold.'
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2513 - "A Bill to repeal §30-5-1a, §30-5-1b, §30-5-2a, §30-5-3a, §30-5- 5a, §30-5-5b, §30-5-6a, §30-5-7a, §30-5-7b, §30-5-7c, §30-5-9a, §30-5-10a, §30-5-12b, §30-5-12c, §30-5-14a, §30-5-14b, §30-5-16a, §30-5-16b, §30-5-16c and §30-5-22a of the Code of West Virginia, 1931, as amended; to amend and reenact §16-5A-9a of said Code; to amend and reenact §30-5-1, §30- 5-2, §30-5-3, §30-5-4, §30-5-5, §30-5-6, §30-5-7, §30-5-8, §30-5-9, §30-5-10, §30-5-11, §30-5-12, §30-5-13, §30-5-14, §30-5-15, §30-5-16, §30-5-17, §30-5-18, §30-5-19, §30-5-20, §30-5-21, §30-5- 22, §30-5-23, §30-5-24, §30-5-26, §30-5-27, §30-5-28 and §30-5-30 of said code; to amend said code by adding thereto six new sections, designated §30-5-25, §30-5-29, §30-5-31, §30-5-32, §30-5-33 and §30-5-34; and to amend and reenact §60A-10-3 of said code, all relating to the practice of pharmacist care; prohibiting the practice of pharmacist care without a license; permitting a licensed practitioner to dispense in certain settings; providing other applicable sections; providing definitions; continuing the Board of Pharmacy; providing for board composition; setting forth the powers and duties of the board; clarifying rule-making authority; continuing a special revenue account; establishing license, registration and permit requirements; creating scopes of practice; providing requirements for pharmacy interns; establishing renewal requirements; providing for exemptions from licensure; providing for a special volunteer license; providing requirement to participate in collaborative pharmacy practice; providing requirements for dispensing generic drugs; requiring the registration of pharmacies; requiring a permit for mail-order pharmacies and manufacturing of drugs; providing requirements of filling prescriptions; providing requirements for a pharmacist-in-charge; providing requirements for the display of a board authorization; permitting the board to file an injunction; 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 updating references."
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.
Special Calendar

Third Reading

-Continued-

S. B. 435, Amending insurance code with respect to surplus lines insurance; 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: Boggs, Crosier and C. Miller.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 435) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 435 - "A Bill to amend and reenact §33-12C-3, §33-12C-5, §33-12C-7 and §33-12C-8 of the Code of West Virginia, 1931, as amended, all relating to surplus lines insurance; defining terms; providing for compliance with the federal Nonadmitted and Reinsurance Reform Act of 2010; authorizing Insurance Commissioner to enter into multistate agreements regarding taxation of surplus lines insurance; establishing a blended taxation rate; authorizing participation in clearinghouse or other process for allocation of taxes; specifying disbursement and distribution of moneys; restricting certain provisions to transactions in which West Virginia is the home state of the insurer; and exempting certain large entities from compliance with due diligence requirements."
Delegate Boggs moved that the bill take effect July 1, 2011.
On this question, the yeas and nays were taken (Roll No. 388), 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: Crosier and C. Miller.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 435) takes effect July 1, 2011.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 436, Continuing personal income tax adjustment to gross income of certain retirees; on third reading, coming up in regular order, was read a third time.
Conference Committee Report Availability

At 7:39 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 2745.
Third Reading

-Continued-

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 389), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 436) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 390), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 436) 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. 439, Clarifying that filing of manufactured housing complaint with state regulatory board is prerequisite for lawsuit; 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. 391), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 439) passed.
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 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent and Not Voting: Boggs and Crosier.
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. 439) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Unfinished Business

Com. Sub. for H. B. 2368, Relating to the practice of beauty care; coming up in regular order, as unfinished business, was reported by the Clerk.
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 84, nays 15, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Border, Ellem, Evans, Gearheart, Howell, Ireland, Kump, Lane, Nelson, Savilla, Sobonya, Storch and Walters.
Absent and Not Voting: Crosier.
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. 2368) 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 93, nays 6, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Gearheart, Howell, Ireland, Kump, Nelson and Walters.
Absent and Not Voting: Crosier.
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. 2368) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Third Reading

Com. Sub. for S. B. 472, Relating to portable electronics insurance; 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. 395), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Kump.
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 472) 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. 474, Relating to manufacturer's liability for prescription drug warning or instruction; 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. 396), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 474) passed.
Delegate Boggs moved that the bill take effect July 1, 2011.
On this question, the yeas and nays were taken (Roll No. 397), 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: Boggs and Crosier.
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. 474) takes effect July 1, 2011.
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 passed, with amendment, to take effect from passage, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 2161, Creating the Herbert Henderson Office of Minority Affairs.
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 one, lines forty-three through forty-six, by striking out all of subsection (c).
On page five, section two, lines fifty-six and fifty-seven, by striking out the words "by the Executive Director of the Herbert Henderson Office of Minority Affairs".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2161 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-26-1 and §5-26-2, all relating to the creation of the Herbert Henderson Office of Minority Affairs; establishing the powers and duties of the office; requiring annual reports to the Governor and the Joint Committee on Government and Finance; and creating a Minority Affairs Fund."
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.
Third Reading

Com. Sub. for S. B. 488, Revising HIV testing statute to conform with most recent recommendations from CDC; 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. 398), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 488) 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. 532, Relating to fraud and abuse in Medicaid program; on third reading, coming up in regular order, was read a third time.
Delegate Ellington requested to be excused from voting on the passage of Com. Sub. for S. B. 532 under the provisions of House Rule 49.
The Speaker replied that the 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 member from voting.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 399), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Cowles.
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 532) 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. 560, Relating to confidentiality of Health Care Authority's rate-setting model; 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. 400), and there were--yeas 73, nays 26, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Ashley, Border, Canterbury, Carmichael, Cowles, Duke, Ellington, Gearheart, Hamilton, Householder, Howell, Kump, Lane, C. Miller, J. Miller, Nelson, Overington, Pasdon, Savilla, Sigler, Snuffer, Sobonya, Storch and Walters.
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 560) 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 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. 242, Dedicating portion of coal severance tax to county of origin.
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 Kominar, Varner and Evans.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading

S. B. 192, Protecting consumers from price gouging and unfair pricing practices; on third reading, coming up in regular order, with restricted right to amend by Delegate Miley, was reported by the Clerk.
On motion of Delegate Miley, the bill was amended on page five, section three, line eleven, by striking out the word "ten" and inserting in lieu thereof the word "five".
On page six, section three, line twenty-one, by striking out the word "ten" and inserting in lieu thereof the word "five".
On page seven, section three, line thirty-seven, by striking out the word "ten" and inserting in lieu thereof the word "five".
And,
On page seven, section three, line forty-six, by striking out the word "ten" and inserting in lieu thereof the word "five".
On the adoption of the amendment, the yeas and nays were taken (Roll No. 401), and there were--yeas 53, nays 44, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Azinger, Border, Butcher, Canterbury, Carmichael, Cowles, Craig, Duke, Ellem, Ellington, Evans, Ferns, Gearheart, Hall, Hamilton, Householder, Howell, Kump, Lane, Lawrence, C. Miller, J. Miller, Nelson, O'Neal, Overington, Pasdon, R. Phillips, Rodighiero, Romine, Rowan, Savilla, Sigler, Skaff, Snuffer, Sobonya, Stephens, Storch, Stowers, Sumner and Walters.
Absent and Not Voting: Brown, Crosier and Fleischauer.
So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 402), and there were--yeas 85, nays 13, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Border, Canterbury, Carmichael, Cowles, Ellington, Gearheart, Howell, Kump, J. Miller, Nelson, Pasdon, Savilla and Sigler.
Absent and Not Voting: Andes and Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 192) 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. 193, Relating to law-enforcement certification generally; on third reading, coming up in regular order, was reported by the Clerk.
Delegate Miley asked and obtained unanimous consent for the offering and consideration of an amendment on third reading.
On motion of Delegate Miley, the bill was amended on page fifteen, section eleven, line eight, by striking out the word "their" and inserting in lieu thereof the words "his or her".
On page fifteen, section eleven, line thirteen, by striking out the word "their" and inserting in lieu thereof the words "his or her".
On page fifteen, section eleven, line eighteen, by striking out the word "applicant's" and inserting in lieu thereof the word "officer".
And,
On page fifteen, section eleven, line twenty-three, by striking out the word "their" and inserting in lieu thereof the words "his or her".
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 403), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 193) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 193 - "A Bill to amend and reenact §30-29-1, §30-29-2, §30-29-3 and §30-29-5 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §30-29-11, all relating to certifying law-enforcement officers generally; expanding the responsibilities of the law-enforcement training subcommittee and renaming it the law- enforcement professional standards subcommittee; clarifying the authority to decertify or reactivate a law-enforcement officer's certification; adding the West Virginia Troopers Association to the subcommittee membership; expanding duties of the Governor's committee and the subcommittee; providing consequences for the failure to be certified process for making inactive the certification of officers who separate from their employment; reactivating a law-enforcement officer's certification; rehiring of officer reactivated not required; and providing for immunity from civil liability."
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 appointed a Committee of Conference of three on the disagreeing votes of the two houses, as to
Com. Sub. for S. B. 242, Dedicating portion of coal severance tax to county of origin.
The message further announced that the President had appointed as conferees on the part of the Senate the following:
Senators Stollings, Miller and Hall.
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. 2159, Relating to prohibiting members of the news media from being compelled to give testimony.
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 ten, line five, by striking out the word "substantial".
On page two, section ten, lines five and six, by striking out the words "or for substantial financial gain".
On page two, section ten, line seven, after the word "capacity" by changing the period to a colon and inserting the following proviso: "Provided, That a student reporter at an accredited educational institution who meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood, meets the definition of reporter for purposes of this section."
On page two, section ten, line ten, after the word "the" by inserting the word "confidential";
On page two, section ten, line thirteen, after the words "consent of the" by inserting the word "confidential".
On page two, section ten, line fourteen, by striking out the words "or serious bodily injury" and inserting in lieu thereof a comma and the words "serious bodily injury or unjust incarceration".
On page two, section ten, line seventeen, after the words "consent of the" by inserting the word "confidential".
And,
On page three, section ten, line nineteen, by striking out the words "or serious bodily injury" and inserting in lieu thereof a comma and the words "serious bodily injury or unjust incarceration".
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 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
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. 2159) 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. 2437, Requiring study relating to mandating the utilization of devices that case underground mining machines to shut-off when methane is detected.
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, line five, by striking out the word "Office" and inserting in lieu thereof the word "Board".
On page two, line eight, by striking out the word "Office" and inserting in lieu thereof the word "Board".
On page two, line nine, by striking out the word "devises" and inserting in lieu thereof the word "devices".
And,
On page two, line ten, by striking out the word "Office" and inserting in lieu thereof the word "Board".
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 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Sigler.
Absent and Not Voting: Crosier.
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. 2437) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
At 8:16 p.m., on motion of Delegate Boggs, the House of Delegates recessed until 8:45 p.m., and reconvened at that time.
* * * * * * *

Evening Session

* * * * * * *

-Continued-

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. 2520, Relating to centers for housing young adult offenders.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate title amendment was reported by the Clerk:
Eng. Com. Sub. for H. B. 2520 - "A Bill to amend and reenact §25-4-6 of the Code of West Virginia, 1931, as amended, relating to assignment of youthful offenders to correctional facilities; specifying circuit court jurisdiction; modifying age criteria for eligibility for commitment to youthful offender center; and providing maximum age for center commitment."
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 92, nays 1, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Gearheart.
Absent and Not Voting: Border, Cann, Crosier, Doyle, Fragale, Iaquinta and Stowers.
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. 2520) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 407), and there were--yeas 92, nays 2, absent and not voting 6, with the nays and absent and not voting being as follows:
Nays: Gearheart and Howell.
Absent and Not Voting: Border, Crosier, Fleischauer, Fragale, Iaquinta and Stowers.
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. 2520) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Conference Committee Report Availability

At 8:54 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 2663, Relating to public service commissioners presiding at hearings.
* * * * * * *

Evening Session

* * * * * * *

-Continued-

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. 2542, Clarifying requirements and procedures for access to cemeteries and grave sites located on private land.
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 section and inserting in lieu thereof the following:
"ARTICLE 13A. GRAVES LOCATED UPON PRIVATELY OWNED LANDS.
§37-13A-1. Access of certain persons to cemeteries and graves located on private land.
(a) Any authorized person who wishes to visit a cemetery or grave site located on privately owned land and for which no public ingress or egress is available, shall have the right to reasonable ingress or egress for the purposes described in subsection (c) of this section after providing the owner of the privately owned land with reasonable notice as defined in subsection (c) of this section.
(b) An authorized person intending to visit the cemetery or grave site for the purpose of installing a monument or grave marker pursuant subdivision (b) of this section, shall give reasonable notice to the property owner which is to include a description of the monument or grave marker to be installed. As used in this article,'"reasonable notice' means written notice of the date and time the authorized person intends to visit the cemetery or grave site delivered to the property owner at least ten days prior to the date of the intended visit.
(C) The right of access to cemeteries or grave sites provided in subsection (a) of this section shall be during reasonable hours and only for the purposes of:
(1) Visiting graves;
(2) Maintaining the grave site or cemetery, including the installation of a monument or a grave marker: Provided, That a property owner may deny access to the cemetery or grave site because the owner objects to the installation of the type or style of the monument or grave marker that has been described in the notice given pursuant to subsection (b), section one of this article;
(3) Burying a deceased person in a cemetery plot by those granted rights of burial to that plot; and
(4) Conducting genealogy research.
(c)(1) The access route to the cemetery or grave site may be designated by the landowner if no traditional access route is obviously visible by a view of the property. If no traditional access route is obviously visible by a view of the property, the landowner is not required to incur any expense in improving a designated access route.
(2) Unless the property owner has caused a traditional access route to the cemetery or grave site to be unusable or unavailable, the property owner is not required to make any improvements to their property to satisfy the requirement of providing reasonable ingress and egress to a cemetery or burial site pursuant to this section.
(d) A property owner who is required to permit authorized persons reasonable ingress and egress for the purpose of visiting a cemetery or grave site and who acts in good faith and in a reasonable manner pursuant to this section is not liable for any personal injury or property damage that occurs in connection with the access to the cemetery or grave site.
(e) Nothing in this section shall be construed to limit or modify the power or authority of a court in any action of law or equity to order the disinterment and removal of the remains from a cemetery and interment in a suitable location.
§37-13A-2. Definitions.
In this article:
(1) 'Authorized person' means:
(A) A family member, close friend or descendant of a deceased person;
(B) A cemetery plot owner; or
(C) A person who has the written permission of a family member or descendant of a deceased person to enter the property solely for the purpose of installing monuments or grave markers or preparing the cemetery plot for burying a deceased person by those granted rights of burial to that plot; or
(D) A person engaged in genealogy research.
(2) 'Governmental subdivision' means any county commission or municipality.
(3) 'Reasonable ingress and egress' or 'reasonable access' means access to the cemetery or grave site within ten days of the receipt of written notice of the intent to visit the cemetery or grave site. If the property owner cannot provide reasonable access to the cemetery or grave site on the desired date, the property owner shall provide reasonable alternative dates when the property owner can provide access within five days of the receipt of the initial notice.
§37-13A-5. Cause of action for injunctive relief.
(a) An authorized person denied reasonable access under the provisions of this article, including the denial of permission to use vehicular access or the denial of permission to access the cemetery or grave site to install a monument or grave marker, may institute a proceeding in the circuit court of the county in which the cemetery or grave site is located to enjoin the owner of the private lands on which the cemetery or grave site is located, or his or her agent, from denying the authorized person reasonable ingress and egress to the cemetery or grave site for the purposes set forth in this article. In granting relief, the court may set the frequency of access, hours and duration of the access.
(b) The court or the judge thereof may issue a preliminary injunction in any case pending a decision on the merits of any application filed without requiring the filing of a bond or other equivalent security."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2542 - "A Bill to amend and reenact §37-13A-1, §37-13A-2 and §37- 13A-5 of the Code of West Virginia, 1931, as amended, all relating to access to cemeteries and grave sites located on privately owned land generally; allowing access for the purposes of installation of monuments or grave markers; allowing access to an authorized person who has the written permission of a family member or descendant of a deceased person to enter the property solely for the purpose of installing monuments or grave markers or preparing the cemetery plot for burying a deceased person by those granted rights of burial to that plot; requiring notice and description of monuments or grave markers to be installed; permitting denial of installation by property owner; and providing injunctive relief."
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 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Gearheart.
Absent and Not Voting: Border, Crosier and Stowers.
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. 2542) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Delegate Doyle announced that he was absent on today when the vote was taken on Roll No. 406, and that had he been present, he would have voted "Yea" thereon.
Delegate Stowers announced that he was absent on today when the votes were taken on Roll Nos. 406, 407 and 408, and that had he been present, he 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. 2639, Authorizing miscellaneous boards and agencies 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. Board of Pharmacy.
(a) The legislative rule filed in the state register on July 29, 2010, authorized under the authority of section five, article nine, chapter sixty-a, of this code, relating to the Board of Pharmacy (licensure and the practice of pharmacy, 15 CSR 1), is authorized with the following amendments:
On page thirty-seven, subsection 21.1, by striking out all of subsection 21.1 and inserting in lieu thereof a new subsection 21.1 to read as follows:
"21.1. A prescription to be valid, shall be issued for a legitimate medical purpose by a practitioner acting within the course of legitimate professional practice, and shall bear the preprinted, stamped, typed, or manually printed name, address and telephone number of the prescribing practitioner. If it is a prescription for a controlled substance listed in Schedules II through V, then it shall also contain the prescriber's DEA registration number, including any suffix. The National Provider Identification (NPI) number shall be required on all valid prescriptions beginning January 1, 2012."
And,
On page forty-seven, after subsection 26.1, by adding a new section 27 to read as follows:
"15-1-27. West Virginia Official Prescription Paper Program Rules.
27.1. The purpose of this section is to establish rules for the West Virginia Official Prescription Program Act set forth at West Virginia Code Section §16-5W-1, et seq. for use in writing prescriptions by practitioners.
27.2. Definitions. As used in this rule:
a. "Program Vendor" means the private contractor or contractors selected to manage the production and delivery of official state prescription paper.
b. "West Virginia Official Prescription Paper" means prescription paper, which has been authorized by the state for use, and meets the following criteria:
1. Prevention of unauthorized copying;
2. Prevention of erasure or modification;
3. An ability to prevent counterfeit prescription pads; and
4. Capable of supporting automated validation through pharmacy claims processing systems using the official state prescription control number.
27.3. Minimum Requirements of West Virginia Official Prescription Paper. The prescription paper shall contain the following security features:
a. Shall meet all requirements issued by the Center for Medicare and Medicaid Services for a written prescription for controlled substances as required by Section 2002(b) of PL. 110-28 of the Iraq War Supplemental Appropriations Bill enacted by the United States Congress in 2007;
b. shall contain six (6) quantity check-off boxes printed on the form and in the following quantities shall appear:
1. 1-24;
2. 25-49;
3. 50-74;
4. 75-100;
5. 101-150; and
6. 151 and over:
Provided, That if the blank has the quantity prescribed electronically printed in both numeric and word format, then the quantity check-off boxes shall not be necessary;
c. Shall contain space for the prescriber to indicate number of refills, if any, or to indicate no refills;
d. Shall provide space for the patient"s name and address, the prescribing practitioner"s signature;
e. Shall provide space for the preprinted, stamped, typed, or manually printed name, address and telephone number of the prescribing practitioner, and the practitioner"s DEA registration number and NPI number;
f. Shall contain the following statement printed on the bottom of the prescription blank: "This prescription may be filled with a generically equivalent drug product unless the words 'Brand Medically Necessary' are written in the practitioner's own handwriting, on this prescription form."; and
g. Each blank must be numbered on the face with a unique identifying control number in both human readable and bar code format.
27.4. The Board will solicit open bids and select a vendor or vendors to provide West Virginia Official Prescription Paper and maintain appropriate records of such product supplied to practitioners based on ability of proposed program to prevent prescription fraud, price and ability to meet these requirements.
a. Practitioners licensed to practice in this State may purchase West Virginia Official Prescription Paper as per individual orders from the selected vendor(s). The cost of the Official Prescription Paper will be borne by the ordering practitioner/institution, unless the state is successful in securing offsetting funds such as federal grants, risk/reward programs or private funding applied for and received by the state for the express purpose of partially or fully funding the West Virginia Official Prescription Program.
b. Orders shall be placed through a vendor supplied secure on-line order capture system or on an order form to be supplied by the Vendor, and must contain the requesting practitioner's name, specialty, primary address and other practice site address(s), Federal DEA registration number, if any, National Provider Identification number, the State professional practice license number, number of prescriptions requested, and shall be signed by the requesting practitioner.
c. Records of West Virginia Official Prescription Paper supplied to practitioners will be maintained by the vendor or vendors and will be subject to random and regular audits. Discrepancies shall be reported to the Board in a regular and timely manner.
27.5. On and after January 1, 2012 every written prescription written in West Virginia by a practitioner shall be written on West Virginia Official Prescription Paper. A pharmacist may not fill a written prescription from a West Virginia practitioner unless issued upon an official state issued prescription form.
27.6. Practitioners; control and reporting of West Virginia Official Prescription Paper.
a. Adequate safeguards and security measures shall be undertaken by practitioners holding West Virginia Official Prescription Paper to assure against the loss, destruction, theft or unauthorized use of the forms. The forms may be used only by the practitioner to whom they are issued and are not transferable.
b. The Practitioner must also notify the vendor of any failure to receive Official Prescription Paper within a reasonable time after ordering them. Further, practitioners must immediately notify the Board and vendor in writing of the loss through destruction, theft or loss, or unauthorized use of any Official Prescription Paper blanks, including:
1. Estimated number of blanks affected;
2. Control numbers if available; and
3. Suspected reason for destruction, theft, or loss.
c. The program vendor must provide annual SAS70 or SSAE16 third party audits of the prescription paper printing/personalization facility used in the preparation and distribution of West Virginia Official Prescription Paper blanks upon request. The program vendor must be able to provide such report for each year and for two years prior to the term of the contract."
(b) The legislative rule filed in the state register on July 29, 2010, authorized under the authority of section five, article nine, chapter sixty-a, of this code, relating to the Board of Pharmacy (controlled substances monitoring, 15 CSR 8), is authorized with the following amendments:
On page two, subsection 2.15, by striking out the words "15-1-27 of the West Virginia Code of State Rules" and inserting in lieu thereof the word "5";
On page six, subdivision 7.3(b), by striking out all of subdivision 7.3(b) and inserting in lieu thereof a new subdivision 7.3(b) to read as follows:
"(b) members of the West Virginia State Police expressly authorized by the superintendent of the West Virginia State Police to have access to the information;";
On page six, subdivision 7.3(e), after the word "(e)", by striking out the word "The" and inserting in lieu thereof the word "the";
On page six, subdivision 7.3(f), after the word "(f)" by striking out the word "A" and inserting in lieu thereof the word "a";
On page six, subdivision 7.3(g), by striking out the word "board" and inserting in lieu thereof the word "Board";
On page six, subdivision 7.3(j), by striking out the word "date" and inserting in lieu thereof the word "data";
On page six, subsection 7.4, by striking out the word "board" and inserting in lieu thereof the word "Board";
And,
On page six, subsection 7.4, after the words "subsection 7.3" by inserting the words "(a) through (i)".
§64-9-2. Physical Therapy.
(a) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section six, article twenty, chapter thirty, of this code, modified by the Board of Physical Therapy to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on December 21, 2010, relating to the Board of Physical Therapy (general provisions, 16 CSR 1), is authorized with the following amendments:
On page two, by striking 2.15a in its entirety and inserting in lieu thereof the following:
"2.15.a. A physical therapy aide works under the direct supervision of a physical therapist; Provided, That a physical therapist assistant may directly supervise a physical therapy aide in emergency situations necessary to provide patient safety."
On page three, by striking out section 5 in its entirety and inserting in lieu thereof the following:
§16-1-5. Issuance, Renewal or Reinstatement of License.
5.1. The Board reserves the right to evaluate the applicant according to the testing, licensure, and procedural requirements as initiated by the agency responsible for the ownership and development of the National exam.
5.2. Licenses expiring on December 3l, of each particular year must be renewed by payment of applicable fee along with completed renewal application.
5.3. A license not renewed without specific request to place it in "inactive" status will automatically be placed on delinquent status.
5.4. Delinquent licensee is responsible for penalty fees including but not limited to: application fee, delinquent license fee, and the current year renewal fee. A licensee must also complete and show proof of board approved continuing education requirements.
5.5. To reinstate an "inactive" license, the licensee must submit an application for renewal along with a non-refundable application fee and license renewal fee.
5.6. A volunteer license will be marked as a "volunteer" license and is restricted to practicing in accordance with §30-20-13.
5.7. Any change in personal contact and employer/supervisor information must be submitted in writing to the board as changes occur."
On page four, by striking out subsection 6.1 in its entirety and inserting in lieu thereof the following:
"6.1. An individual possessing a temporary permit issued by the Board to practice Physical Therapy or act as a physical therapist assistant in the State of West Virginia shall practice under the on-site supervision of a Physical Therapist. All progress notes written by the Physical Therapist or physical therapist assistant with a temporary permit shall be cosigned by a Physical Therapist supervisor within twenty-four (24) hours."
On page six, by inserting a new subsection 7.7, to read as follows:
"7.7. A licensee must report to the board any discipline received in another jurisdiction within 30 days of that discipline. The board reserves the right to discipline up to and including revocation of a license until disciplinary process in the other jurisdiction is completed. If the licensee fails to report discipline in another jurisdiction, they are subject to disciplinary procedures in our jurisdiction determined by the board."
On page seven, by striking subdivision 8.2.a in its entirety and inserting in lieu thereof the following:
"8.2.a. When care is delivered in a hospital or other acute-care center, free-standing, outpatient, or independent practice setting, a Physical Therapist must provide on-site supervision, with the exception that general supervision is permitted in a hospital or other acute-care center, free-standing, outpatient, or independent practice setting 40% of the time once the physical therapist assistant performing treatment has at least 1000 hours of experience. The supervising physical therapist shall document when general supervision is utilized under this subdivision."
On page seven, by striking out subdivision 8.2.b. in its entirety and inserting in lieu thereof the following:
"8.2.b. General supervision may be utilized when care is delivered in a skilled/unskilled nursing facility, distinct part skilled/unskilled nursing unit or swing-bed unit in an acute-care hospital, home health, or school system setting, and the following requirements must be observed and documented in the patient records when general supervision is used:"
On page seven, by striking out subparagraph 8.2.b.1 in its entirety and inserting in lieu thereof the following:
"8.2.b.1. A physical therapist must be accessible by telecommunications to the physical therapist assistant at all times that the physical therapist assistant is treating patients; and available to make a joint onsite visit with the physical therapist assistant within 24 hours as prudent practice indicates."
On page seven, by striking out subparagraph 8.2.b.2 in its entirety and inserting in lieu thereof the following:
"8.2.b.2 The physical therapist must visit the patient at least once every 10 physical therapist assistant visits, or within 30 calendar days, whichever occurs first."
On page seven, by striking out subparagraph 8.2.b.3 in its entirety and inserting in lieu thereof the following:
"8.2.b.3. In the event that the supervising physical therapist changes, the new supervising physical therapist must discuss the patient's diagnosis and plan of care with the previous supervising physical therapist before the next physical therapist assistant visit is made. Either physical therapist must document such communication."
On page eight, by striking out subsection 8.5 in its entirety and inserting in lieu thereof the following:
"8.5. In an emergency situation, such as serious illness or injury of the therapist or therapist's family member or death of a family member, which causes the unanticipated absence of the supervising physical therapist for not more than three consecutive days, and no more than twelve days per calender year, a licensed physical therapist assistant may continue to render services, under the supervision of another physical therapist, to only those patients for which the licensed physical therapist assistant has previously participated in the intervention for established plans of care not to exceed the regularly scheduled operational hours of the particular day or days the supervising physical therapist is absent. When this provision is utilized, the ratio in subdivision 8.1.c. may be exceeded and the physical therapist shall document the dates and the emergency situation."
On page eight, by striking out subsection 8.6 in its entirety and inserting in lieu thereof the following:
"8.6. In a temporary situation, which causes the absence of the supervising physical therapist up to one day, and no more than eighty hours in a calender year, a licensed physical therapist assistant may continue to render services, under general supervision of the supervising physical therapist, to only those patients for which the licensed physical therapist assistant has previously participated in the intervention for established plans of care not to exceed the regularly scheduled operational hours of the particular day the supervising physical therapist is absent. When this provision is utilized, the level of supervision in subdivision 8.2.a. may be exceeded and the physical therapist shall document the hours, date and temporary situation."
On page none, by inserting a new section 10 to read as follows:
§16-1-10. Continuing Education.

10.1. A "unit" is one clock hour spent in a continuing education activity unless otherwise defined in this section.
10.2. All licensees desiring to remain "active" and in good standing must complete 24 units of board approved continuing education within the two year licensing period. If the licensee does not complete the 24 units of board approved continuing education within the license period, that licensee will be placed on delinquent status and will be subject to all fees associated with delinquent status.
10.2.a. For those applicants reinstating their license for a period of 6 months or less, only 6 units are required for that year.
10.2.b. Volunteer licensees need only to complete twenty (20) units of board approved continuing education activities within a two year renewal cycle.
10.2.c. Accumulated CEU's may not be carried over from one renewal period to another.
10.2.d. A new graduate does not need continuing education hours for the current year of graduation.
10.3. Completion of examinations, residencies, fellowships, tools, and courses for continuing education credit.
10.3.a. A maximum of 8 units per license period can be obtained from any combination of clinical instruction or competency tools.
10.3.b. Passing the following specialty examinations will qualify for twenty-four contact hours of continuing education in the year the examination is taken:
10.3.b.1 Specialty examinations and recertification administered by the American board of physical therapy specialties (ABPTS).
10.3.b.2. The hand therapy certification commission (HTCC) certification examination.
10.3.b.3. Continuing education course instructors can receive 1 unit per hour of class instruction time will be awarded for board approved continuing education courses in the year the course given. Credit awarded to the instructor for said course will be granted only one time.
10.3.c. The successful completion of an American physical therapy association credentialed residency or fellowship program will qualify for twenty-four contact hours of continuing education in the year the residency or fellowship is completed.
10.3.d. The successful completion of a practice review tool of the federation of state boards of physical therapy pertaining to continued competence will qualify for continuing education.
10.3.d.1. Eight contact hours of continuing education will be awarded for completion of a practice review tool.
10.3.d.2. Licensees may use a practice review tool identified in paragraph 3.d.1 of this section no more than every other renewal period.
10.3.e. Clinical instruction.
10.3.e.1. Providing clinical instruction to PT or PTA student(s) enrolled in a CAPTE approved physical therapist or physical therapist assistant program can qualify for up to a maximum 8 units per year.
10.3.e.2. Four weeks of clinical instruction is equal to 1 unit of continuing education.
10.3.f. Continuing education courses are subject to board approval.
10.3.f.1 One unit per hour of class instruction time will be awarded for board approved continuing education courses in the year the course is taken.
10.3.g. One unit per hour of class instruction time shall be awarded and automatically approved for CAPTE College/University, American Physical Therapy Association or West Virginia Physical Therapy Association sponsored continuing education courses in the year the course is taken.
10.3.h. One unit per hour of class instructions for CAPTE college or university physical therapy or doctorate physical therapy programs.
10.4. The board may grant a waiver of the continuing education requirements in the case of illness, disability or undue hardship.
10.4.a. A request for waiver form must be completed in full. In the case of illness or disability, a physician's statement is required.
10.4.b. All completed forms must be received by the Board for consideration no later than the first day of October of the year preceding the renewal date.
10.4.c. A waiver may be granted for any period of time not to exceed one renewal cycle.
10.4.d. In the event that the illness, disability or hardship continues to the next renewal cycle, then a new waiver request is required.
10.4.e. Should a waiver be granted due to disability or illness, the section may require the individual to provide appropriate documentation from a physician or another qualified and appropriate practitioner to verify the individual's competency and ability to practice physical therapy in the state of West Virginia prior to the return to active practice of physical therapy in West Virginia.".
(b) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section six, article twenty, chapter thirty, of this code, relating to the Board of Physical Therapy (fees for physical therapists and physical therapist assistants, 16 CSR 4), is authorized.
(c) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section four, article twenty-a, chapter thirty, of this code, modified by the Board of Physical Therapy to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on September 20, 2010, relating to the Board of Physical Therapy (general provisions for athletic trainers, 16 CSR 5), is authorized.
(d) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section four, article twenty-a, chapter thirty, of this code, modified by the Board of Physical Therapy to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on September 20, 2010, relating to the Board of Physical Therapy (fees for athletic trainers, 16 CSR 6), is authorized.
§64-9-3. Sanitarians.
(a) The legislative rule filed in the state register on July 29, 2010, authorized under the authority of section six, article seventeen, chapter thirty, of this code, relating to the of Board of Sanitarians (interim fee schedule, 20 CSR 3), is authorized.
(b) The legislative rule filed in the state register on July 29, 2010, authorized under the authority of section six, article seventeen, chapter thirty, of this code, relating to the Board of Sanitarians (practice of public health sanitation, 20 CSR 4), is authorized, with the following amendments:
On page three, following subdivision 4.1.c, by inserting a new subdivision 4.1.d. to read as follows:
"4.1.d. Has not previously failed an examination for licensure in this state;";
And,
By re-designating the remaining subdivisions accordingly.
§64-9-4. Secretary of State.
The legislative rule filed in the state register on November 12, 2010, authorized under the authority of section twelve, article two, chapter three, of this code, relating to the Secretary of State (combined voter registration and driver licensing fund, 153 CSR 25), is authorized with the following amendments:
On page one, section two, following the words "For the purposes of this rule:", by striking out subsection 2.1 in its entirety and renumbering the following subsections of section two;
On page three, subdivision 4.2.2 following the words "under this subsection on a", by striking out the word "quarterly" and inserting in lieu thereof the word "annual";
On page three, subsection 4.3, following the words "collection and transmission of the completed forms:", by striking out the proviso in its entirety, and inserting in lieu thereof the following proviso "Provided, That the total reimbursement shall not exceed sixty (60) percent of the total annual revenue of the Fund. In any year in which the revenue is insufficient to pay the reimbursement rate of $1.00 per completed registration as provided in this subsection, the amount per registration application shall be reduced proportionally.";
And,
On page four, by striking out subsection 4.4 and subdivisions 4.4.1, 4.4.2, 4.4.3 and 4.4.4 in their entirety and renumbering the remaining sections of the rule.
§64-9-5. Board of Barbers and Cosmetologists.
(a) The legislative rule filed in the state register on July 30, 2010,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 October 18, 2010, relating to the Board of Barbers and Cosmetologists (procedures, criteria and curricula for examinations and licensure of barbers, cosmetologists, manicurists and aestheticians, 3 CSR 1), is authorized with the following amendments:
On page two, by striking out the words "43.1" and inserting in lieu thereof the word "3.1.";
And,
On page three, subsection 4.2, after the word "obtain" by inserting the word "a".
(b) The legislative rule filed in the state register on July 30, 2010, 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 October 18, 2010, relating to the Board of Barbers and Cosmetologists (qualifications, training, examination of licensure of instructors, 3 CSR 2), is authorized, with the following amendments:
On page one, by striking out subdivision 2.1.1 in its entirety and inserting in lieu thereof the following:
"2.1.1 Have been licensed 5 years with 5 years of salon/shop experience.";
On page one, subdivision 2.1.6 by striking out the percentage amount "70%" and inserting in lieu thereof the percentage amount "80%";
And,
On page one, by striking out all of subdivisions 2.1.7. and 2.1.8. and inserting in lieu new subdivisions 2.1.7. and 2.1.8. to read as follows:
"2.1.7. Submit an application to the board;
2.1.8. Pay applicable certification, examination and registration fees.".
(c) The legislative rule filed in the state register on July 30, 2010,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 October 18, 2010, relating to the Board of Barbers and Cosmetologists (operational standards for schools of barbering and beauty culture, 3 CSR 4), is authorized with the following amendments:
On page five, by striking out section caption "3-4-5. Enrollment" and inserting in lieu thereof a new section caption to read as follows:
"§3-4-5. Enrollment";
And,
On page six, by striking out the section caption "3-4-8. Teaching Staff" and inserting in lieu thereof a new section caption to read as follows:
"§3-4-8 Teaching Staff".
(d) The legislative rule filed in the state register on June 18, 2010, 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 amendment:
On page one, subsection 2.1, by striking out the words "$99.00" and inserting in lieu thereof the words "Based on the National Interstate Council Index with a cap of $107.00".
§64-9-6. Commissioner of Agriculture.
(a) The legislative rule filed in the state register on July 26, 2010, authorized under the authority of section four, article thirteen, 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 21, 2010, relating to the Commissioner of Agriculture (West Virginia Apiary Rule, 61 CSR 2), is authorized.
(b) The legislative rule filed in the state register on July 12, 2010, authorized under the authority of section five-c, article twelve, chapter twenty-two, of this code, relating to the Commissioner of Agriculture (general groundwater protection rules for fertilizers and manures, 61 CSR 6C), is authorized.
(c) The legislative rule filed in the state register on the July 20, 2010, authorized under the authority of section three, article two-B, chapter nineteen, of this code, relating to the Commissioner of Agriculture (inspection of meat and poultry, 61 CSR 16), is authorized.
§64-9-7. Board of Veterinary Medicine.
The legislative rule filed in the state register on July 27, 2010, authorized under the authority of section six, article ten, chapter thirty, of this code, modified by the West Virginia, 1931, as amended, relating to authorizing the Board of Veterinary Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on November 24, 2010, relating to the West Virginia, 1931, as amended, relating to the Board of Veterinary Medicine (organization and operation and licensing of veterinarians, 26 CSR 1), is authorized with the following amendments:
On page two, subdivision 2.4.4, by striking out the subdivision in its entirety;
On page twelve, subsection 8.1, by striking out the words "the supervision of a West Virginia licensed veterinarian" and inserting in lieu thereof the words "the indirect or general supervision of a West Virginia licensed supervising veterinarian. During the period of supervision of a temporary permittee, the supervising veterinarian must remain within one hour's physical access to the location where the temporary permittee is rendering veterinary care."
And,
On page twelve, subsection 8.2, in the last sentence of the subsection, by striking out the word "supervisory" and inserting in lieu thereof the word "supervising".
(b) The legislative rule filed in the state register on July 27, 2010, authorized under the authority of section six, article ten, chapter thirty of this code, modified by the Board of Veterinary Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on November 24, 2010, relating to the Board of Veterinary Medicine (registration of veterinary technicians, 26 CSR 3), is authorized.
(c) The legislative rule filed in the state register on July 27, 2010, authorized under the authority of section six, article ten, chapter thirty of this code, modified by the Board of Veterinary Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on November 24, 2010, relating to the Board of Veterinary Medicine (standards of practice, 26 CSR 4), is authorized, with the following amendments:
On page four, subsection 3.6, in the title to the subsection, by striking out the words "position or trust" and inserting in lieu thereof the words "position of trust".
(d) The legislative rule filed in the state register on July 27, 2010, authorized under the authority of section six, article ten, chapter thirty of this code, modified by the Board of Veterinary Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on November 24, 2010, relating to the Board of Veterinary Medicine (certified animal euthanasia technicians, 26 CSR 5), is authorized, with the following amendment:
On page eight, subdivision 10.1.d., by striking out the words "Section 10" and inserting in lieu thereof the words "Section 13".
(e) The legislative rule filed in the state register on July 27, 2010, authorized under the authority of section six, article ten, chapter thirty of this code, modified by the Board of Veterinary Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on November 24, 2010, relating to the Board of Veterinary Medicine (schedule of fees, 26 CSR 6), is authorized.
§64-9-8. Board of Optometry.
(a) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section six, article eight, chapter thirty, of this code, modified by the Board of Optometry to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on November 24, 2010, relating to the Board of Optometry (rules of the West Virginia Board of Optometry, 14 CSR 1), is authorized.
(b) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section six, article eight, chapter thirty, of this code, modified by the Board of Optometry to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on January 3, 2011, relating to the Board of Optometry (oral pharmaceutical prescriptive authority, 14 CSR 2), is authorized.
(c) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section six, article eight, chapter thirty, of this code, modified by the Board of Optometry to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on November 24, 2010, relating to the Board of Optometry (schedule of fees, 14 CSR 5), is authorized.
(d) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section six, article eight, chapter thirty, of this code, modified by the Board of Optometry to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on November 24, 2010, relating to the Board of Optometry (examination and scoring policy, 14 CSR 6), is authorized with the following amendments:
On page one, subsection 2.1., by striking out all of subsection 2.1. and inserting in lieu thereof a new subsection 2.1. to read as follows:
"2.1. The Board shall conduct the interview with a quorum of the Board being present.";
On page one, subsection 3.2, after the word "The" by inserting the word "Board";
And,
On page two, subsection 4.1., by striking out all of subsection 4.1. and inserting a new subsection 4.1. to read as follows:
"4.1. A Board quorum may evaluate the applicant's successful or unsuccessful completion of the interview by consesus.".
(e) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section six, article eight, chapter thirty, of this code, modified by the Board of Optometry to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on November 24, 2010, relating to the Board of Optometry (licensure by endorsement, 14 CSR 8), is authorized with the following amendments:
On page one, after subdivision 2.2.5., by inserting a new subdivision 2.2.6. to read as follows:
"2.2.6. At the option of the Board, an applicant for licensure by reciprocity may be required to take the National Board Examination.;
On page one, subsection 3.2., by striking out the word "licensee" and inserting in lieu thereof the word "applicant";
On page two, subsection 3.7, by striking out the word "person" and inserting in lieu thereof the word "applicant";
On page two, subsection 3.8, after the words "Code of", by inserting the word "State";
And,
On page two, subsection 3.9., by striking out all of subsection 3.9. and inserting in lieu thereof a new subsection 3.9. to read as follows:
"3.9. The Board may require an applicant to interview with the Board.".
(f) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section six, article eight, chapter thirty, of this code, modified by the Board of Optometry to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on November 24, 2010, relating to the Board of Optometry (contact lenses that contain and deliver pharmaceutical agents certificates, 14 CSR 9), is authorized with the following amendment:
On page one, subsection 3.3., after the words "Code of", by inserting the word "State".
(g) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section six, article eight, chapter thirty, of this code, modified by the Board of Optometry to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on November 24, 2010, relating to the Board of Optometry (continuing education, 14 CSR 10), is authorized with the following amendments:
On page one, subsection 2.1., after the words "Code of" by inserting the word "State";
On page one, subsection 3.2., after the word "hours" by inserting the words "of continuing education";
On page one, subsection 3.6., after the word "outlined" by inserting the word "in";
On page one, subsection 3.7., by striking out the word "hold" and inserting in lieu thereof the word "holds";
On page two, subdivision 4.1(d), by striking out the word "Postgraduate" and inserting in lieu thereof the word "postgraduate";
On page two, subsection 5.1., after the words "Code of" by inserting the word "State";
On page two, subsection 6.1., after the word "instruction" by striking out the words "by correspondence, Internet or other electronic means";
And,
On page two, subsection 6.1, after the word "attendance" by changing the period to a comma and inserting the words "by correspondence, Internet or other electronic means."
(h) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section fifteen, article eight, chapter thirty, of this code, modified by the Board of Optometry to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on December 23, 2010, relating to the Board of Optometry (injectable pharmaceutical agents certificate, 14 CSR 11), is authorized with the following amendments:
On page five, by striking out subsection 11.1 in its entirety and inserting in lieu thereof by inserting the following:
"11.1 A certificate holder may not establish a pharmacy in an optometric office or sell injectable pharmaceutical agents prescribed in treatment unless there is a licensed pharmacist on staff or present when the prescription is filled. Nothing in this rule shall prohibit the optometrist from charging a usual and customary fee for performing the injection.
11.2 Retrobulbar and Peribulbar injections are prohibited.
11.3. The board shall establish a formulary of pharmaceutical agents to be administered by injection.
11.3.1. The injection formulary shall be created from those agents that certificate holders have been authorized previously to administer or prescribe as topical agents or oral medication categories listed in the oral formulary of the Board in the W.Va. Code of State Rules, §14-2-7.2a through §14-2- 7.2g.
11.3.2. New drugs or drug indications may be added to the formulary by a decision of the Board based on any of the following criteria:
11.3.2.1. A new or existing drug has been approved by the Food and Drug Administration for the treatment of the eye or its appendages.
11.3.2.2. A new drug or new drug indication has gained accepted use in the eye care field. Such acceptance may be indicated by its inclusion in the curriculum of an optometry school accredited by the Accreditation Council on Optometric Education or its successor approved by the U.S. Department of Education or approved post-graduate continuing education, through peer- reviewed, evidence-based research and professional journal articles, or by inclusion in established standards of practice and care published by professional organizations.
§64-9-9. Board of Osteopathy.
(a) The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section one, article fourteen-a, 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 29, 2010, relating to the Board of Osteopathy (osteopathic physician assistants, 24 CSR 2), is authorized with the following the following amendments:
On page nine, subsection 6.6., after the words "Board and the", by striking out the word "board" and inserting in lieu thereof the word "Board";
And,
On page eleven, subsection 8.6., after the words "and expire with, the", by inserting the word "osteopathic".
(b) The legislative rule filed in the state register on July 28, 2010, authorized under the authority of section three, article fourteen-a, 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 29, 2010, relating to the Board of Osteopathy (fees for services rendered by the Board, 24 CSR 5), is authorized.
§64-9-10. Treasurer's Office.
The legislative rule filed in the state register on July 30, 2010, authorized under the authority of section two, article two, chapter twelve, of this code, modified by the Treasurer's Office to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on July 30, 2010, relating to the Treasurer's Office (establishment of imprest funds, 112 CSR 3), is authorized.
§64-9-11. State Election Commission.
The legislative rule filed in the state register on the July 29, 2010, authorized under the authority of section fourteen, article twelve, chapter three, of this code, modified by the State Election Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the state register on January 14, 2011, relating to the State Election Commission (West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program, 146 CSR 5), is authorized, with the following amendment:
On page nine, subdivision 6.9.a., by striking out "per W. Va. Code §3-12-9(f)" and inserting in lieu thereof "as required by W. Va. Code §3-12-9(g)".
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment with further amendment, on page thirty, section eight, line seventeen, by inserting the following:
"On page five, subsection 10.1., by striking out the word 'not'.
And,"
The bill, as amended by the Senate and further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 409), and there were--yeas 77, nays 21, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Cowles, Duke, Ellington, Evans, Householder, Howell, Ireland, Kump, Lane, J. Miller, O'Neal, Overington, Pasdon, Savilla, Snuffer, Sobonya, Sumner and Walters.
Absent and Not Voting: Border and Crosier.
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. 2639) 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 78, nays 21, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Cowles, Ellington, Evans, Gearheart, Hatfield, Householder, Howell, Ireland, Kump, J. Miller, O'Neal, Overington, Pasdon, Savilla, Snuffer, Sobonya, Sumner and Walters.
Absent and Not Voting: Crosier.
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. 2639) 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. 2752, Increasing the maximum age for persons applying for appointment for the police force in a Class I or Class II city from thirty-five to forty years.
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 14. LAW AND ORDER; POLICE FORCE OR DEPARTMENTS; POWERS, AUTHORITY AND DUTIES OF LAW-ENFORCEMENT OFFICIALS AND POLICEMEN; POLICE MATRONS; SPECIAL SCHOOL ZONE AND PARKING LOT OR PARKING BUILDING POLICE OFFICERS; CIVIL SERVICE FOR CERTAIN POLICE DEPARTMENTS.

§8-14-12. Form of application; age and residency requirements; exceptions.

(a) The policemen's civil service commission in each Class I and Class II city shall require individuals a person applying for admission to any competitive examination provided for under the civil service provisions of this article or under the commission's rules and regulations of said 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 The applicant's full name, residence and post-office address;
(2) His The applicant's United States citizenship, age and the place and date of his the applicant's birth;
(3) His The applicant's state of health and his the applicant's physical capacity for the public service;
(4) His The applicant's business and employments and residences for at least three previous years; and
(5) Such Other information as may reasonably be required, touching upon the applicant's qualifications and fitness for the public service.
(b) Blank forms for such Applications shall be furnished by the commission, without charge. to all individuals requesting the same. The commission may require, in connection with such the application, such the certificates of citizens, physicians and others, having pertinent knowledge concerning the applicant, as the good of the service may require.
(c) No application Notwithstanding the provisions of article five, chapter eleven of this code, a person may not submit an application for original appointment shall be received if the individual applying person is less than eighteen years of age or more than thirty-five forty years of age at the date of his the individual's application: Provided, That in the event
(d) Notwithstanding the requirements established in this section, if any an applicant formerly served upon the paid police department of the city to which he or she makes application, for a period of more than his or her probationary period, and resigned from the department at a time when there were no charges of misconduct or other misfeasance pending against such 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 city in which the paid police department to which he the individual seeks appointment by reinstatement is located, then such the individual shall be eligible for appointment by reinstatement in the discretion of the policemen's civil service commission. even though such The applicant shall be may be over the age of thirty-five forty years. and such The applicant, providing his or her former term of service so justifies, may be appointed by reinstatement to the paid police department without a competitive examination, but such the applicant shall undergo a medical examination. and if such individual shall be so appointed by reinstatement to the paid police department, he The applicant shall be the lowest in rank in the department next above the probationers of the department.
Any applicant for original appointment must have been a resident for one year, during some period of time prior to the date of his application, of the city in which he seeks to become a member of the paid police department: Provided, That if the commission deems it necessary it may consider for original appointment or for reinstatement under the preceding proviso of this section, applicants who are not residents of the city but who have been residents of the county in which the city or any portion of the territory thereof is located for a period of at least one year."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2752 - "A Bill to amend and reenact §8-14-12 of the Code of West Virginia, 1931, as amended, relating to municipal police departments; increasing the maximum age for persons applying for examination for original appointment to an applicable municipal police civil system from thirty-five to forty years; and removing an unconstitutional residency requirement."
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. 411), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
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. 2752) 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. 2888, Strengthening of protections for whistleblowers of unsafe working conditions in mines.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, section twelve, line five, by striking out the word "board" and inserting in lieu thereof the word "Board".
On page two, section twelve, line eight, by striking out the word "Office" and inserting in lieu thereof the word "Board".
And,
On page two, section twelve, line nine, by striking out the word "to".
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. 412), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
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. 2888) 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. 2953, Relating to dedication of coalbed methane severance tax proceeds. On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page twelve, section twenty-a, line one hundred seventy-two, by striking out the word "providing" and inserting in lieu thereof the word "provides".
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. 413), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
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. 2953) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 414), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
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. 2953) 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. 2986, Relating to forest fire seasons.
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 §20-3-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. FORESTS AND WILDLIFE AREAS.
§20-3-5. Forest fire seasons; prohibited and permissible fires; burning permits and fees; fire control measures; criminal and civil penalties.

(a) Forest fire seasons. -- The periods of each year between March 1 and through May 31, inclusive and October 1 and through December 31, inclusive are hereby designated as forest fire seasons. No person shall during any such During any fire season, a person may except between the hours of four o'clock p.m. and seven o'clock a.m. prevailing time, set on fire or cause to be set on fire any forest land, or any grass, grain, stubble, slash, debris, or other inflammable materials only between five o'clock p.m. and seven o'clock a.m., at which time the fire must be extinguished. Any fire set during this time shall be extinguished prior to seven o'clock a.m. prevailing time.
(b) Permissible fires during forest fire seasons. -- Such prohibition of fires The following attended fires are permitted without a burning permit unless there is a burning ban in effect: between seven o'clock a.m. and four o'clock p.m. : prevailing time shall not be construed to include
(1) Small fires set for the purpose of food preparation, or providing light or warmth around which all grass, brush, stubble, or other debris has been removed for a distance of ten feet from the fire; and
(2) Burning which may be conducted at any time when the ground surrounding the burning site is covered by one inch or more of snow.
Any person who sets or causes to be set any fire permitted by this section shall not leave such fire unattended for any period of time.
(c) Burning permits.-- The director or his or her designated appointees or employees designee may issue burning permits authorizing fires prohibited by the preceding paragraph. Such permits may be granted on such conditions and for such periods of time as the director deems necessary during forest fire seasons that are otherwise prohibited by this section. The permits shall state the requisite conditions and time frame to prevent danger from the fire to life or property. and noncompliance
(1) Permit fees.-- Entities required to pay a permit fee are those engaged in commercial, manufacturing, public utility, mining and like activities. Agricultural activities are exempt from paying the permit fee. The permit fee is $125 per site and shall be deposited into the Division of Forestry Fund (3081) to be used to administer the provisions of this section. The permit fee covers the fire season during which it is issued.
(2) Noncompliance with any term condition of the permit shall be is a violation of this section. Any permit which was obtained through willful misrepresentation shall be is invalid and violates this section.
(3) All Permit holders shall take all necessary and adequate precautions to confine and control any fire permitted by the authorization; failure fires authorized by the permit. Failure to take such action shall be is a violation of this section and shall be is justification for the director or his duly authorized representative to cancel to revoke the permit.
(d) Fire control. -- When the director considers it necessary to prevent danger from fire to life or property, he may, with the prior
(1) With approval of the Governor, the director may prohibit the starting of and require the extinguishment of any fire in any area designated area, including fires permitted by this section. by the director, and such action may include any fire for which a permit has been issued under the preceding paragraph. In addition, if so deemed necessary, the director may, with the prior
(2) With approval of the Governor, the director may designate any forest area as a danger area, and prohibit entry, thereon or use thereof except for the purposes and on the conditions he designates and declare conditional uses and prohibited areas of the forest by proclamation at any time of the year. The director by proclamation shall establish such areas and designate which fires are prohibited therein; and if a danger area is established, he shall announce the purposes for which and conditions under which entry thereon or use thereof may be made. Action hereunder may be taken by the director at any time during the year. Notice of any proclamation hereunder The proclamation shall be furnished to newspapers, radio stations and television stations which that serve the designated area designated. The proclamation shall not be and shall become effective after twenty-four hours. effective until twenty-four hours after it is proclaimed. Any The proclamation hereunder shall remain in force remains in effect until the director, with the approval of the Governor, by order terminates it. The order shall designate the time of termination, and notice of any such the order shall be furnished to each newspaper, radio station and television station which that received a copy of the proclamation. Any person who starts or fails to extinguish a fire so prohibited or enters or uses a danger area otherwise than permitted shall be guilty of a violation of this section.
(3) No burning allowed by this section may be done unless Burning is not permitted by this section until all inflammable material has been removed from around the material to be burned as and a safety strip of at least for a distance which insures that the fire will not escape and which is no less than ten feet is established to ensure that the fire will not escape. Any person or his agent or employee who sets or causes to be set any fire at any time in the use and occupation of any land on which the burning was being done is in violation of this section if fire escapes beyond the safety strip and shall be guilty of a misdemeanor.
(e) Criminal and civil penalties. -- A person or entity that violates this section is guilty of a misdemeanor and, upon conviction, shall be fined not less than $100 and not more than $1,000 for each violation. In addition to fines and costs, a person or entity convicted of a violation of this section shall pay a $200 civil penalty to the division within sixty days. The civil penalty shall be collected by the court in which the person is convicted and forwarded to the division and deposited in the Division of Forestry Fund (3081) to be used to administer the provisions of this section."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2986 - "A Bill to amend and reenact §20-3-5 of the Code of West Virginia, 1931, as amended, relating to forest fire seasons; modifying prohibited and permissible fire times and forest fire seasons; revising the procedure for obtaining a burning permit; establishing permit fees for certain entities; exempting agriculture from permit fees; setting forth fire control requirements; and establishing criminal and civil penalties."
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. 415), and there were--yeas 74, nays 25, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Border, Canterbury, Carmichael, Cowles, Duke, Evans, Gearheart, Householder, Howell, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Savilla, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Crosier.
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. 2986) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 416), and there were--yeas 76, nays 23, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Border, Canterbury, Carmichael, Cowles, Duke, Gearheart, Householder, Howell, Kump, C. Miller, J. Miller, Nelson, O'Neal, Savilla, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Crosier.
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. 2986) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:
H. B. 2993, Relating to the West Virginia Commercial Patents Incentives Tax Act.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 13AA. COMMERCIAL PATENT INCENTIVES TAX ACT.
§11-13AA-3. Definitions.

(a) General. -- When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by either the context in which the term is used, or by specific definition, in this article.
(b) Terms defined. --
(1) 'Agreement' means any agreement or contractual relationship entered into after the effective date of this section between a person developing patents in this state and either:
(A) A corporation established under the laws of this state that meet the requirements of section three, article twelve, chapter eighteen-b of this code; or
(B) A center for economic development and technological advancement created pursuant to section three, article twelve-a, chapter eighteen-b of this code.
(2) 'Business activity' means all activities engaged in or caused to be engaged in by a person with the object of gain or economic benefit, direct or indirect. For purposes of this definition, the term 'gain or economic benefit, direct or indirect' does not include income realized by any person in the form of wages, salary or income that is reported on federal form W-2.
(3) 'Commercial use' means selling, licensing, leasing or otherwise making patents available to a third party for a price, fee, royalty, commission or other consideration called by whatever name. 'Commercial use' also means, in the case of patents developed by the developer for the developer's own commercial use, the first use of the patents in a manufacturing or other business activity of the developer. 'Commercial use' does not include any selling, licensing, leasing or otherwise making patents available to a third party when done by a broker or by any person who does not own the patent sold, licensed, leased or otherwise made available.
(4) 'Commissioner' and 'Tax Commissioner' are used interchangeably herein and mean the Tax Commissioner of the State of West Virginia or his or her designee.
(5) 'Copyright' means a copyright that is registered with the United States Copyright Office or with a similar office of a foreign country when the foreign copyright is recognized under federal law.
(6) 'Credit year' means the taxable year in which the person realizes the net profit attributable to a patent. In the case of a license or lease to use patents, 'credit year' means each taxable year during the term of the license or lease to use patents.
(7) (6) 'Delegate' in the phrase 'or his or her delegate', when used in reference to the Tax Commissioner, means any officer or employee of the Tax Department of the Department of Revenue duly authorized by the Tax Commissioner directly, or indirectly, by one or more redelegations of authority to perform the functions mentioned or described in this article.
(7) 'Development of a patent,' 'developing patents' or 'development' means the act of inventing or discovering any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereto through significant investment of money, performance of research, or application of design or engineering expertise, which culminates in the issuance of a patent, as defined in this article.
(8) 'Developer' means a person engaged in this state in developing patents for direct use in a manufacturing process or product and who has an agreement, as defined in this section, with Marshall University or West Virginia University.
(9) 'Directly used in manufacturing process or product', and 'direct use in manufacturing process or product' with reference to patents mean the use of patents directly in those activities or operations which constitute an integral and essential part of the manufacturing processes and products, as contrasted with and distinguished from those activities or operations which are simply incidental, convenient or remote to the manufacturing activity such as those activities that are incidental. Those activities that are incidental to business activities such as bills, marketing, inventory control, order fulfillment, shipping and tracking are not considered an integral and essential part of the manufacturing process or product means application or incorporation of a patented process, machine, article of manufacture or composition of matter, in manufacturing operations or processes, or in manufactured products, in circumstances where United States or foreign patent laws require that the specific patent for the process, machine, article of manufacture or composition of matter be owned by the manufacturer, or purchased, leased, licensed or authorized by contract to be applied or incorporated in the manufacturing operation, processes or product, and where such lawful ownership, purchase, lease, licensure or contractual authorization is in effect.
(10) 'Manufacturing' means any business activity classified as having a sector identifier, consisting of the first two digits of the six-digit North American Industry Classification System code number of thirty-one, thirty-two or thirty-three.
(11) 'Mask work' means a series of related images, however fixed or encoded:
(A) Having or representing the predetermined, three-dimensional pattern of metallic, insulating or semiconductor material present or removed from the layers of a semiconductor chip product; and
(B) In which series the relation of the images to one another is that each image has the pattern of the surface of one form of the semiconductor chip product.
(12) 'Net profits' means West Virginia taxable income as determined for purposes of article twenty four of this chapter, before application of this credit and after application of all credits allowable under this chapter except this credit. In the case of taxpayers that are not subject to the tax imposed by article twenty-four, 'net profits' means West Virginia taxable income as determined for purposes of article twenty-one of this chapter, before application of this credit and after application of all credits allowable under this chapter except this credit. In circumstances where net profit is not solely attributable to and the exclusive result of the direct use of a patent in a manufacturing process or product in this state, the taxpayer shall determine net profit solely attributable to and the exclusive result of the direct use of a patent in a manufacturing process or product in this state, and net profit for purposes of determining the amount of credit allowable under this article shall be the net profit solely attributable to and the exclusive result of the direct use of a patent in a manufacturing process or product in this state.
(12) (13) 'Owner', when used in reference to a pass-through entity, means a person who owns an equity interest in the pass-through entity.
(13) (14) 'Partnership' includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, which is not a sole proprietorship, trust or estate, and which is treated as a partnership for federal income tax purposes for the taxable year.
(14) (15) 'Pass-through entity' means a partnership, limited liability company, small business corporation (S corporation) or other entity treated as a partnership for federal income tax purposes for the taxable year.
(15) (16) 'Patent' means a United States patent issued pursuant to 35 U.S.C. §101, et seq. or the Patent Cooperation Treaty done at Washington, on June 19, 1970 or foreign national patent grant or United States certificate of invention or certificate of protection under the Plant Variety Protection Office of the United States Department of Agriculture and is limited to plant patents, design patents and patents developed in this state for direct use in a manufacturing process or product, or both developed for use and directly used in a manufacturing process or product in this state. For purposes of this article, patents do not include copyrights, trademarks, mask works, trade secrets or any intellectual property that is not a patent.
(16) (17) 'Person' includes a natural person, corporation, limited liability company or partnership. A single member liability company that is treated as a disregarded entity for federal income tax purposes is be treated as a disregarded entity for purposes of this article.
(17) (18) 'Purchase' means a transaction under which title to an item is transferred for consideration, or a license or lease contract for at least three years is executed, regardless of whether title to the item is transferred at the end of the lease or license period.
(18) (19) 'Taxpayer' means any person subject to the tax imposed by article twenty-three or twenty-four of this chapter or to both taxes. In the case of a sole proprietorship that is not subject to either the tax imposed by article twenty-three or twenty-four of this chapter, the term 'taxpayer' means a natural person who owns a disregarded entity and who is subject to the tax imposed by article twenty-one of this chapter on his or her income from business activity in this state, or any sole proprietor who is subject to the tax imposed by article twenty-one of this chapter.
(19) (20) 'Trademark' means any trademark, trade name, service mark or other identifying symbol or name that is registered with the United States Patent and Trademark Office or with a similar office of a foreign country when the foreign registration is recognized under federal law.
(20) (21) 'Trade secret' means information, including a formula, pattern, compilation, program device, method, technique or process, that:
(A) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use; and
(B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
§11-13AA-4. Tax incentive for developing patents in this state.
(a) Allowance of credit. -- A person engaging in this state in developing plant patent, design patent or patents for direct use in a manufacturing process or product and who has an agreement, as defined in section three of this article, with Marshall University or West Virginia University is allowed a credit, when computing the person's liability for business franchise tax imposed by article twenty-three of this chapter and corporation net income tax imposed by article twenty-four of this chapter, in the amount allowed under subsection (b) of this section. When the developer is a sole proprietor or a pass-through entity, that amount of the credit remaining after first applying it against the tax liability under article twenty-three of this chapter for the taxable year is allowed when computing the tax imposed by article twenty-one of this chapter on income from the person's business activity. No credit is allowed under this article for any activity, investment, assets, or expenditures for which any of the tax credits authorized under articles thirteen-d, thirteen-e, thirteen-q, thirteen-r, thirteen-s, or thirteen-x of this chapter, has been authorized, taken or allowed. No credit is allowed under this article for any activity, investment, assets, or expenditures for which the tax credits authorized under article thirteen, chapter eighteen-b, has been, authorized, taken or allowed.
(b) Amount of credit. -- The amount of credit allowed under this section is equal to twenty percent of the royalties, license fees or other consideration received by the developer during the taxable year from the sale, lease or licensing of a patent developed in this state for direct use in a manufacturing process or product by the person in taxable years beginning on or after January 1, 2011: Provided, That the amount of credit allowed under this section is thirty percent, rather than twenty percent, when the person reinvests at least eighty percent of the amount of the credit claimed for the taxable year in depreciable property purchased for purposes of developing additional patents in this state in taxable years beginning on or after January 1, 2011, or improving upon a patent developed in this state or contributing to a stipend to retain a graduate or post-doctoral student in this state integral to the development of the patents or related technology in taxable years beginning on or after January 1, 2011, during the next taxable year of the person, and the person has an agreement, as defined in section three of this article, for the development of a patent.
(c) Rules for application of credit. -- The amount of credit computed under this section is allowed in accordance with the following rules and applied as provided in subsection (d) of this section:
(1) No credit is allowed under this section for royalties, rents, license fees or other consideration received by the developer of the patent for a patent developed outside this state, except as provided in subdivision (2) of this subsection;
(2) When the person developed the patent for direct use in a manufacturing process or product through that person's activity in this state and through that person's activity in one or more other states, the consideration received by the developer during the taxable year from the sale, lease or license of the patent developed through multistate activity of the developer is multiplied by a fraction, the numerator of which is the direct costs of developing the patent in this state and the denominator of which is the total direct costs of developing the patent. The product of this computation establishes the consideration to be used in subsection (b) of this section;
(3) If a person receives a portion of a royalty that would be eligible for a tax credit under this section because of a business association, licensing agreement or otherwise, the person may receive the tax credit allowable to the portion of royalties that person receives provided the person has an agreement, as defined in section three of this article and otherwise meets the requirements for entitlement to this credit, as set forth in subsection (a) of this section;
(4) Unused credit may be carried forward until the earlier of the tax year when the credit is used up or used for a period of nine the ninth consecutive tax year after the taxable year in which the credit allowed by this section accrues to the person the first tax year in which the taxpayer is eligible to claim the credit. When the person is an owner of a pass-through entity, credit accrues to may be taken by the owner beginning in the tax year when it accrues to credit may be taken by the pass- through entity or when the pass through entity gains entitlement to the credit;
(5) No credit is allowed under this section for consideration received by the developer for patents developed for direct use in a manufacturing process or product before the taxable year beginning January 1, 2011. For purposes of this subdivision, a patent was developed for direct use in a manufacturing process or product before January 1, 2011, if before that date it was sold, leased or licensed to a third party prior to January 1, 2011, or before that day it was reduced to practice for purely commercial purposes by the developer or a person related to the developer, as defined in subsection (b), Section 267 of the Internal Revenue Code of 1986, as amended; and as defined in section nine, article twenty-one of this chapter or section three, article twenty-four of this chapter; and
(6) No credit is allowed under this section for consideration received by the developer from a person related to the developer, as defined in subsection (b), Section 267 of the Internal Revenue Code of 1986, as amended for patents developed for direct use in a manufacturing process or product; and
(6) (7) No credit is allowed under this section beginning with the eleventh taxable year after the patent was first directly used in a manufacturing process or product.
(d) Application of credit. -- The amount of the credit computed under this section is allowed as a credit against tax as provided in this subsection, but the credit may not reduce the tax below zero.
(1) Business franchise tax.-- The amount of the allowable credit shall first be taken as a credit against the tax liability of the developer for the taxable year under article twenty-three of this chapter.
(2) Corporation net income tax. -- The amount of the allowable credit remaining, if any, after first applying the credit against the tax imposed by article twenty-three of this chapter shall then be taken as a credit when computing the liability of the developer for the taxable year under article twenty-four of this chapter.
(3) Personal income tax on business income. --
(A) When the developer is a sole proprietor, the amount of the allowable credit is taken as a credit when computing the liability of the developer for the taxable year on business income under article twenty-one of this chapter.
(B) When the developer is a pass-through entity, the amount of allowable credit remaining, if any, after first applying the credit against the tax imposed by article twenty-three of this chapter for the taxable year is allowed as a credit against the tax imposed for the taxable year on the West Virginia source income of the pass-through entity under article twenty-one of this chapter and the amount of the credit is distributed to the owners of the pass-through entity in the same manner as items of partnership income, gain loss or deduction are distributed or allocated for the taxable year.
§11-13AA-5. Tax credit for use of a patent in a manufacturing process or product in this state that was developed in this state.

(a) Allowance of credit. -- A person directly using a plant patent, design patent or patent developed in this state in a manufacturing process or product in this state is allowed a credit against the person's liability for business franchise tax imposed by article twenty-three of this chapter and corporation net income tax imposed by article twenty-four of this chapter, the amount computed under subsection (b) of this section. When the user of a patent is a sole proprietor or a pass-through entity, that amount of credit allowed against income taxes shall be against the tax imposed by article twenty- one of this chapter.
(b) Amount of credit. -- The amount of credit allowed under this section is equal to twenty percent of the net profit attributable to the patent: Provided, That the amount of credit allowed under this section is equal to thirty percent of the net profit attributable to the patent when the person claiming the credit reinvests in capital improvements to add product lines to or increase productivity in this state during the next taxable year an amount equal to at least eighty percent of the tax credit amount used for the taxable year.
(c) Rules for application of credit. -- The amount of credit computed under this section is allowed in accordance with the following rules and applied as provided in subsection (d) of this section:
(1) The credit allowed by this section is applied after all other credits allowed by this chapter have been applied against the person's business franchise tax and West Virginia income tax liabilities for the taxable year under this chapter;
(2) Unused credit may be carried forward until the earlier of the tax year when the credit is used up or used for a period of nine the ninth consecutive tax year after the taxable year in which the credit allowed by this section accrues to the person the first tax year in which the taxpayer is eligible to claim the credit. When the person is an owner of a pass-through entity, credit accrues to may be taken by the owner beginning in the tax year when it accrues to credit may be taken by the pass- through entity or when the pass through entity gains entitlement to the credit;
(3) Any credit not used within the ten-year period described in subdivision (2) of this subsection is forfeited beginning with the eleventh taxable year after the taxable year in which the credit accrued to the person first tax year in which the taxpayer is eligible to claim the credit;
(4) No credit is allowed under this section for using a patent in this state when the person began using the patent before January 1, 2011;
(5) No credit is allowed under this section for using a patent in this state for which the taxpayer is allowed credit under another article of this chapter.
(6) No credit is allowed under this section for any patent acquired from, by or between, leased from, by or between, licensed from, by or between, or otherwise authorized to be used from, by or between related persons, as defined in subsection (b), Section 267 of the Internal Revenue Code of 1986, as amended.
(7) Amounts received from, by or between related persons, as defined in subsection (b), Section 267 of the Internal Revenue Code of 1986, as amended, are disallowed when calculating net profit attributable to a patent.
(d) Application of credit. -- The amount of the credit computed under this section is allowed as a credit against tax as provided in this subsection, but the credit may not reduce the tax below zero.
(1) Business franchise tax. -- The amount of the allowable credit shall first be taken as a credit against the tax liability of the person allowed the credit for the taxable year under article twenty-three of this chapter.
(2) Corporation net income tax. -- The amount of the allowable credit remaining, if any, after first applying the credit against the tax imposed by article twenty-three of this chapter shall then be taken as a credit when computing the liability of the corporation for the taxable year under article twenty-four of this chapter.
(3) Personal income tax on business income. --
(A) When the person allowed the credit is a sole proprietor, the amount of the allowable credit is taken as a credit when computing the liability of the person allowed the credit for the taxable year on business income under article twenty-one of this chapter.
(B) When the person allowed the credit is a pass-through entity, the amount of allowable credit remaining, if any, after first applying the credit against the tax imposed by article twenty-three of this chapter for the taxable year is allowed as a credit against the tax imposed for the taxable year on the West Virginia source income of the pass-through entity under article twenty-one of this chapter and the amount of the credit is distributed to the owners of the pass-through entity in the same manner as items of partnership income, gain loss or deduction are distributed or allocated for the taxable year.
§11-13AA-7. Identification of a patent and required records.
(a) Required records. -- Every developer of a patent in this state for direct use in a manufacturing process or product and every person who uses a patent directly in a manufacturing process or product in this state who claims a credit under this article shall maintain sufficient records to establish the following facts for each item of a patent for which a credit is allowed under this article:
(1) Its identity;
(2) The amount of net profit attributable to the patent;
(3) The month and taxable year in which the patent was first used, placed in service or directly used in the person's manufacturing process or product in this state;
(4) The amount of credit taken; and
(5) The date the patent was disposed of or otherwise ceased to be directly used in the person's manufacturing process or product in this state.
(b) Enhanced deduction of credit. -- Any person who claims the enhanced credit under section four or five of this article shall maintain sufficient records to clearly establish entitlement to claim the amount of the enhanced credit. At a minimum those records shall identify:
(1) Each and every item of depreciable property purchased for purposes of claiming the enhanced credit;
(2) The date the depreciable property identified in subdivision (1) of this subsection was purchased, its cost and its estimated useful life determined using strait straight-line method of depreciation;
(3) The date the depreciable property identified in subdivision (1) of this subsection was placed in service or used in the person's business activity in this state;
(4) The date the depreciable property identified in subdivision (1) of this subsection was taken out of service or use in the person's business activity in this state and the reason why the property was taken out of service or use; and
(5) Other information that the Tax Commissioner may reasonably require by rule promulgated as provided in section eleven of this article."
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. 417), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2993) 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. 3021, Adding two new members to the Comprehensive Behavioral Health Commission.
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 42. COMPREHENSIVE BEHAVIORAL HEALTH COMMISSION.
§16-42-3. Comprehensive Behavioral Health Commission.
(a) Effective May 1, 2009 July 1, 2011, the Comprehensive Behavioral Health Commission is reestablished within the Department of Health and Human Resources to continue the study of the current behavioral health system of care, including services to adults and children, substance abuse and domestic violence when those conditions have an effect upon or are impacted by the system.
(b) The commission consists of:
(1) A representative of the circuit and family court system, appointed by the Chief Justice of the West Virginia Supreme Court of Appeals;
(2) A representative of the Commissioner of the Division of Corrections;
(3) The Commissioner of the Bureau of Senior Services or a designee;
(4) The Secretary of the Department of Health and Human Resources or a designee, who is a nonvoting member;
(5) The Commissioner of the Bureau for Behavioral Health and Health Facilities or a designee, who is a nonvoting member;
(6) The Commissioner of the Bureau for Children and Families or a designee, who is a nonvoting member;
(7) The Executive Director of the West Virginia Chapter of the National Alliance on Mental Illness or a designee;
(8) The Chancellor for Higher Education or a designee, who is a nonvoting member;
(9) One physician with a speciality specialty in psychiatry appointed by the Governor from a list provided by the West Virginia Medical Association;
(10) One physician with a specialty in child psychiatry, appointed by the Governor from a list of names provided by the West Virginia Medical Association;
(11) One member of the Advisory Board, selected by the Advisory Board, who shall serve as the vice chairperson of the Commission;
(10) (12) One member of the House of Delegates, who is a nonvoting member, appointed by the Speaker; and
(11) (13) One member of the Senate, who is a nonvoting member, appointed by the President.
(c) The commission shall meet at times and places as it finds necessary and shall be staffed by the Bureau for Behavioral Health and Health Facilities. and the Health Care Authority
(d) The commission shall elect a chairperson from those who are appointed. The chairperson's term shall be no longer than two consecutive years whereupon the chairperson is to be replaced by a vote of the membership.
(d) (e) Effective May 1, 2009 July 1, 2011, the Comprehensive Behavioral Health Commission Advisory Board is reestablished to serve in a consulting role to the Commission with the following members appointed by the Governor:
(1) One member from a list provided by the West Virginia Chapter of the National Association of Social Workers;
(2) One member from a list provided by the West Virginia Hospital Association;
(3) One member who is a psychologist from a list provided by the West Virginia Psychological Association;
(4) One citizen member from a list of two nominees from each medical school;
(5) One member from a list of five nominees provided by the Primary Care Association who is an executive director of a federally qualified health center in West Virginia;
(6) One member from a list provided by the West Virginia Behavioral Healthcare Providers Association who is the chief executive officer of a comprehensive behavioral health center;
(7) One member from a list provided by the West Virginia Child Care Association Two members who are the chairperson or the chief executive officer of a not-for-profit corporation with its principal headquarters in West Virginia, that provides residential or non-residential care or treatment for children; and
(8) One member from a list provided by the Council of Churches.
(e) (f) Those persons serving on the commission and the advisory board on January 1, 2009 July 1, 2011, may continue serving on the reestablished commission and advisory board and the person so designated as chairperson of the commission shall remain as chairperson until an election occurs as provided in this section.
(f) (g) Each member of the commission and advisory board is entitled to receive compensation and expense reimbursement for attending official meetings or engaging in official duties not to 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. A commission member may not receive compensation for travel days that are not on the same day as the official meeting or official duties.
§16-42-5. Report.
The commission shall submit a report on its study, including recommendations, to the Governor and the Legislature by January 1, 2011 2012, and each January 1 thereafter.
§16-42-7. Termination of commission.
The commission and advisory board terminate on June 30, 2011 2014."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3021 - "A Bill to amend and reenact §16-42-3, §16-42-5 and §16-42-7 of the Code of West Virginia, 1931, as amended, all relating to the Comprehensive Behavioral Health Commission; adding two members to the Commission; designating non-voting members; requiring a chairperson be selected by the appointed commission members; prohibiting a chairperson from serving more than two consecutive years; changing the membership of the advisory board; authorizing commission and advisory board members to continue to serve; requiring yearly reports to the Governor and Legislature; and extending the commission three years."
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. 418), and there were--yeas 92, nays 7, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Gearheart, Householder, Howell, Kump, J. Miller and Savilla.
Absent and Not Voting: Crosier.
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. 3021) 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. 3028, Expanding the responsibilities of the Maternal Mortality Review Team.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page three, section two, line six, by striking out the words "infant deaths" and inserting in lieu thereof the word "infants".
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 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
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. 3028) 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. 3105, Providing immunity from civil or criminal liability for first responders who use forced entry to a residence.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, section twenty-six, line four, by striking out the words "A first responder is not" and inserting in lieu thereof the words "Neither a first responder nor his or her supervisor, agency, employer or supervising entity is".
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 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
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. 3105) 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. 3116, Relating to the authority of school curriculum teams and local school collaborative processes.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
§18-5A-6. Establishment of school curriculum teams; process for teacher collaboration to improve learning.

(a) There shall be established at each school in the state a school curriculum team composed of the school principal, the counselor designated to serve that school and no fewer than three teachers representative of the grades taught at the school and chosen by the faculty senate: Provided, That for In instances where the counselor is assigned to an elementary school or a combination elementary and middle school on less than a one-half time basis, a school curriculum team established at an elementary school or a combination elementary and middle school, when the counselor is not assigned to the school on at least a one-half time basis, the curriculum team that school may meet on days when the counselor is not at the school and the principal shall consult with the counselor on the issues relevant to the meeting agenda.
(b) The purposes of this section are to implement the following goals:
(1) Provide professional opportunities for teachers, administrators and other school personnel that allow them to have a direct voice in the operation of their schools and to create a culture of shared decision-making focused on the ultimate goal of raising student achievement;
(2) Encourage the use of different, high-quality models of teaching, scheduling and other aspects of educational delivery that meet a variety of student needs;
(3) Increase high-quality educational opportunities for all students that close achievement gaps between high-performing and low-performing groups of public school students; and
(4) Provide public schools with increased school-level freedom and flexibility to achieve these purposes when they have achieved exceptional levels of results-driven accountability.
(c) Powers and duties of the school curriculum team. -- shall
(1) Establish for use at the school the programs and methods for implementing to be used to implement a curriculum based on state-approved content standards based on that meet the needs of students at the individual school. with a
(A) The curriculum shall focus on reading, composition, mathematics, science and technology.
(B) The curriculum thus established shall be submitted to the county board for approval which may approve for implementation at the school or for may return to the school curriculum team for reconsideration.
(2) The school curriculum team shall Review the list of other, non-required testing and assessment instruments provided by the state board through the statewide assessment program as provided in section five, article two-e of this chapter. and The curriculum team may select one or more of them tests or assessment instruments that are applicable to the grade levels at the school for use at the school to improve student learning.
(3) The school has the discretion to use the Establish for use at the school the assessments, and implement the instructional strategies and programs, upon approval by the school curriculum team, that it determines are best suited to promote student achievement at the school and to achieve content standards for courses required by the state board. The curriculum team shall submit the established assessments, instructional strategies and programs to the county board which shall approve the recommendations for implementation at the school or shall return them to the curriculum team for reconsideration. The school curriculum team may apply for a waiver of any state or county policy requiring it to assess students using any specific assessment except
(d) Notwithstanding subsection (c) of this section, the school curriculum team established at a school that has achieved adequate yearly progress or has achieved an accreditation status of distinction or exemplary in accordance with section five, article two-e of this chapter, may use the assessments and implement the instructional strategies and programs consistent with the approved curriculum that it determines are best suited to promote student achievement at the school.
(1) The school may not be required to assess students using any specific assessment except the state summative assessment known as the WESTEST2 or any successor tests, the Alternative Performance Task Assessment, the Online Writing Assessment, and the National Assessment of Educational Progress (NAEP); and
(2) The school may not be required to employ any specific instructional strategy or program to achieve content standards for courses required by the state board, except as approved by the school curriculum team.
(e) If a school fails to achieve adequate yearly progress or if it receives any school approval level other than distinction or exemplary as set forth in section five, article two-e of this chapter, the curriculum team may not exercise the options provided in subsections (d) and (i) of this article until the school has regained one or more of these credentials.
(f) Nothing in this section exempts a school from assessments required by statute or state board policy including, but not limited to, the state summative assessment known as the WESTEST2 or any successor tests, the Alternative Performance Task Assessment, the Online Writing Assessment, and the National Assessment of Educational Progress (NAEP). or to employ any specific instructional strategy or program to achieve content standards for courses required by the state board. Attainment by the school of at least full accreditation status for the previous year shall be the factor considered for granting the waiver request.
(g) The school curriculum team also may apply for a waiver for instructional resources approved and adopted pursuant to article two-a of this chapter if, in the judgment of the team, the instructional resources necessary for the implementation of the instructional strategies and programs best suited to teach the school's curriculum are not available through the normal adoption process.
School curriculum teams may request waivers of non-state mandated tests listed in their county board policies. The determination of whether to grant the request shall be based on the school's accreditation status. Waivers are in effect for one year only. School curriculum teams may resubmit the same or additional waiver requests the following year.
(h) The school curriculum team may apply for a grant from the state board for the development or implementation to develop and/or implement or both, of remedial and accelerated programs to meet the needs of the students at the individual school.
(b) (i) Process for teacher collaboration. --
(1) Notwithstanding the application and approval process established by article five-c of this chapter, at a school that has achieved adequate yearly progress or has achieved a school accreditation status of distinction or exemplary in accordance with section five, article two-e of this chapter, the Each faculty senate, with approval of the principal, may, in addition to or as an alternative to the school curriculum team provided for in subsection (a) of this section, establish a process for teacher collaboration to improve instruction and learning.
(A) The collaborative process may be established in addition to, or as an alternative to, the school curriculum team provided for in subsection (a) of this section.
(B) The mission of the collaboration process is to review student academic performance based on multiple measures, to identify strategies to improve student performance and make recommendations for improvement to be implemented subject to approval of the principal.
(C) The teacher collaborative process shall include such includes members as determined necessary by the faculty senate the faculty senate determines are necessary to address the needed improvements in the academic performance of students at the school. and, If applicable, the collaborative may consist of multiple subject area subcommittees which may meet independently.
(2) If a collaborative process is established as an alternative to the school curriculum team, the teacher collaborative has all the powers and duties assigned to school curriculum teams.
(A) The collaborative process also may incorporate the functions of the Strategic Planning Committee, the Technology Team, and/or the School Support Team.
(B) When the functions of any or all of these committees are incorporated into the collaborative process, the school is not required to establish a separate committee for any one whose functions have been assumed by the collaborative."
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 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes and Walters.
Absent and Not Voting: Crosier.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3116) 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. 3126, Requiring a railroad company to provide pesticide safety information.
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 sixteen, lines fifty through sixty-nine, by striking out all of subsection (d) and by relettering the remaining subsections.
And,
On page six, section sixteen, lines seventy-four through seventy-five, by striking out the words "or the Commissioner of Agriculture of the State of West Virginia".
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. 422), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes and Romine.
Absent and Not Voting: Crosier.
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. 3126) 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. 3134, Relating to child support enforcement.
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 three hundred two, lines twenty-four and twenty-five, by striking out the words "twenty-four months but not to exceed".
And,
By amending the title of the bill to read as follows:
H. B. 3134 - "A Bill to amend and reenact §48-1-204, §48-1-244 and §48-1-302 of the Code of West Virginia, 1931, as amended; to amend and reenact §48-14-408 and §48-14-410 of said code; and to amend and reenact §48-24-106 of said code, all relating to child support enforcement; lowering the accrued interest rate; requiring employers provide information as to the issuance of a bonus to the Bureau for Child Support Enforcement; extending the time parties may agree to for payment of arrearages under a payment plan from twenty-four to sixty months; requiring certain employers to submit support withheld electronically; and making various technical corrections."
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. 423), and there were--yeas 92, nays 7, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Gearheart, Householder, Howell, J. Miller, Savilla and Sigler.
Absent and Not Voting: Crosier.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3134) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 3143, Relating to penalties for causing injury or death to certain animals used by law enforcement.
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 twenty-four, line seventeen, by striking out the word "the".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3143 - "A Bill to amend and reenact §19-20-24 of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-3E-6 of said code, all relating to increasing penalties for causing injury or death to certain animals used by law enforcement or in law enforcement duties; and providing for restitution to the agency or department that owns or owned the animal."
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. 424), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
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. 3143) 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. 3163, Relating to workers' compensation programs of state government entities.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page seven, section twenty one-a, line ninety-two, after the word "finance" by inserting the words "monthly and".
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. 425), and there were--yeas 85, nays 14, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Carmichael, Howell, Ireland, Kump, Lane, C. Miller, Savilla, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Crosier.
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. 3163) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 426), and there were--yeas 89, nays 10, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Carmichael, Howell, Ireland, Kump, Savilla, Snuffer, Sumner and Walters.
Absent and Not Voting: Crosier.
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. 3163) 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. 3144, Creating a criminal offense and adding misdemeanor criminal penalties for picketing or disrupting funerals.
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 section and inserting in lieu thereof the following:
"ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-15. Regulating disruptive behavior at or near funeral, burial, cremation or memorial services.

(a) Any person who willfully engages in boisterous conduct or makes unreasonably loud noise with the intent to disrupt the conducting of a funeral, burial, cremation or memorial service of a member or past member of the armed Forces of the United States after being requested to desist by a law-enforcement officer acting in his or her official capacity shall be guilty of a misdemeanor. (b) Any person who without legal authority willfully hinders and obstructs the ingress or egress of attendees at a funeral, burial, cremation or memorial service of a member or past member of the armed Forces of the United States shall be guilty of a misdemeanor.
(c) The provisions of subsections (a) and (b) of this section apply to behavior occurring sixty minutes before and sixty minutes after the service and within three hundred feet of the property line of the building or site where the funeral, burial, cremation or memorial service is held.
(d) As used in this section, "armed forces of the United States" means the United States Army, Navy, Marines, Coast Guard, Army Reserve and National Guard.
(e) Any person who violates the provisions of subsection (a) and (b) this section shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than six months or fined not more than $1,000, or both."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3144 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-8-15, relating to creating a criminal offense and adding misdemeanor criminal penalties for willfully disrupting military member's funeral, burial, cremation or memorial services."
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. 3185, Allowing county commissions to waive or reduce impact fees and capital improvement fees of affordable housing units in their county.
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 section, designated §7-20-7a, to read as follows:
ARTICLE 20. FEES AND EXPENDITURES FOR COUNTY DEVELOPMENT.
§7-20-7a. Impact fees for affordable housing.

(a) The Legislature finds that:
(1) There is a lack of affordable housing in counties that impose impact fees because the cost of the fees along with the economic conditions in those counties has resulted in low and moderate income persons, persons on fixed incomes, the elderly and persons with special needs, not being able to obtain safe, decent and affordable housing;
(2) A lack of affordable housing affects the ability of a community to develop and maintain strong and stable economies, and impairs the health, stability and self-esteem of individuals and families; and
(3) Financing affordable housing particularly in high growth counties is becoming increasingly difficult.
For these reasons, it is in the public interest to encourage counties that have imposed impact fees and those considering the imposition of impact fees to fairly assess and discount impact fees so as not to limit safe, decent and affordable housing.
(b) On or before July 1, 2012, a county imposing impact fees shall enact an affordable housing component with a discount impact fees schedule, based upon the new homes value compared to the most recent annual single dwelling residential housing index created in section two-b, article one, chapter eleven of this code, to the county's impact fees ordinance. The impact fees schedule shall be updated annually to reflect the changes to the single dwelling residential housing index.
(c) The affordable housing component shall:
(1) Take into account all the different types of housing, including single family detached, single family attached, duplex, town house, apartment, condominium and manufactured home; and
(2) Include a discount for mobile homes, as defined in section one, article one, chapter seventeen-a of this code, based upon the value set out in the National Automobile Dealers Association book.
(d) The county commission shall annually approve, by a majority vote, any increase or decrease in the impact fees schedule."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3185 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §7-20-7a, relating to impact fees; providing legislative findings; requiring counties to have an affordable housing component in the county's impact fees ordinance; providing requirements for the affordable housing component; and requiring a vote by the county commission to increase or decrease impact fees."
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. 427), and there were--yeas 73, nays 26, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Border, Carmichael, Cowles, Ellem, Ellington, Evans, Gearheart, Householder, Howell, Ireland, Kump, Lane, C. Miller, J. Miller, Nelson, O'Neal, Savilla, Sigler, Snuffer, Sobonya, Storch, Sumner and Walters.
Absent and Not Voting: Crosier.
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. 3185) 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. 3202, Relating to residential rental security deposits
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 section and inserting in lieu thereof the following:
"ARTICLE 6A. RESIDENTIAL RENTAL SECURITY DEPOSITS.
§37-6A-1. Definitions.
When used in this article, unless expressly stated otherwise:
(1) 'Action' means recoupment, counterclaim, set off or other civil suit and any other proceeding in which rights are determined, including without limitation actions for possession, rent, unlawful detainer, unlawful entry and distress for rent.
(2) 'Application fee' means any deposit of money, however denominated, which is paid by a tenant to a landlord, lessor or agent of a landlord for the purpose of being considered as a tenant for a dwelling unit.
(3) 'Dwelling unit' means a structure or part of a structure that is used as a home or residence by one or more persons who maintain a household, including, but not limited to, a manufactured home.
(4) 'Facility' means something that is built, constructed, installed or established to perform some particular function.
(5) 'Landlord' means the owner or lessor of the dwelling unit or the building of which such dwelling unit is a part. 'Landlord' also includes a managing agent of the premises who fails to disclose the name of such owner or lessor.
(6) 'Managing agent' means a person authorized by the landlord to act on behalf of the landlord under a management agreement.
(7) 'Notice period' means: (A) within 60 days of the termination of the tenancy; or (B) within 45 days of the occupation of the premise by a subsequent tenant, whichever time period is shorter.
(8) 'Owner' means one or more persons, jointly or severally, in whom is vested:
(A) All or part of the legal title to the property, or
(B) All or part of the beneficial ownership and a right to present use and enjoyment of the premises, and the term includes a mortgagee in possession.
(9) 'Person' means any individual, group of individuals, corporation, partnership, business trust, association or other legal entity, or any combination thereof.
(10) 'Premises' means a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas and facilities held out for the use of tenants generally or whose use is promised to the tenant.
(11) 'Rent' means all money, other than a security deposit, a nonrefundable fee or money paid to the landlord by the tenant for damage caused by the tenant to the dwelling unit, owed or paid to the landlord under the rental agreement.
(12) 'Rental agreement' means all agreements, written (including an electronic record as defined by paragraph (7), section two, article one, chapter thirty-nine-a of the code) or oral, express or implied, embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises.
(13) 'Roomer' means a person occupying a dwelling unit that lacks a major bathroom or kitchen facility, in a structure where one or more major facilities are used in common by occupants of the dwelling unit and other dwelling units. Major facility in the case of a bathroom means toilet, and either a bath or shower, and in the case of a kitchen means refrigerator, stove or sink.
(14) 'Security deposit' means any refundable deposit of money that is furnished by a tenant to a landlord to secure the performance of the terms and conditions of a rental agreement, or as security for damages to the leased premises. Security deposit does not include: (A) Rent; (B) a pet fee; or (C) application fee: Provided, That the parties expressly agree, in writing, that a pet fee or application fee is nonrefundable. A security deposit does not include prepaid rent.
(15) 'Sublease' means the transfer by any tenant of any but not all interests created by a rental agreement.
(16) 'Tenant' means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others and shall include a roomer.
(17) 'Utility' means electricity, natural gas, propane gas, water, sewer, telephone and cable television provided by a public utility or such other person providing residential utility services. If the rental agreement so provides, a landlord may use submetering equipment or energy allocation equipment, or a ratio utility billing system.
§37-6A-2. Security deposits.
(a) Upon termination of the tenancy and within the applicable notice period, any security deposit held by the landlord, minus any deductions for damages or other charges, shall be delivered to the tenant, together with a written itemization of any such damages or other charges as provided in subsection (c).
(b) Upon termination of the tenancy, any security deposit held by the landlord may be applied by the landlord only to:
(1) The payment of rent due, including the reasonable charges for late payment of rent specified in the rental agreement;
(2) The payment of the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with the rental agreement, less reasonable wear and tear;
(3) The payment of unpaid utilities that were billed to and paid by the landlord, are the obligation of the tenant under the rental agreement and unpaid by the tenant;
(4) The payment of reasonable costs for the removal and storage of the tenant's personal property. The landlord may dispose of the stored personal property pursuant to the provisions of subdivisions (1) through (3), subsection (h), section three, article three-a, chapter fifty-five of this code; and
(5) To other damages or charges as provided in the rental agreement, including but not limited to, paying for the services of a third party contractor to repair damages to the property caused by the tenant.
(c) In the event that damages to the premises exceed the amount of the security deposit and require the services of a third party contractor, the landlord shall give written notice to the tenant, advising him or her of that fact, within the applicable notice period. If notice is given as prescribed in this subsection, the landlord shall have an additional fifteen day period to provide an itemization of the damages and the cost of repair.
(d) Nothing in this section shall be construed by a court of law or otherwise as entitling the tenant, upon the termination of the tenancy, to an immediate credit against the tenant's delinquent rent account in the amount of the security deposit.
(e The holder of the landlord's interest in the premises at the time of the termination of the tenancy, regardless of how the interest is acquired or transferred, is bound by this section and shall be required to return any security deposit received by the original landlord that is duly owed to the tenant. The provisions of this subsection apply whether or not such security deposit is transferred with the landlord's interest by law or equity, and regardless of any contractual agreements between the original landlord and his or her successors in interest.
(f) If the tenant has any assignee or sublessee, the landlord shall be entitled to hold a security deposit from only one party in compliance with the provisions of this section.
(g) For the purposes of this section, the delivery to a tenant of a security deposit and/or any notice prescribed by this section, may be accomplished by either personal delivery to the tenant, or by mailing the deposit and/or notice to the tenant's last known address or forwarding address as provided by the tenant. It shall be the responsibility of the tenant to provide an accurate address to the landlord. If personal delivery is not reasonably possible and a deposit or notice mailed to the tenant at his or her last known address or forwarding address provided is returned as non-deliverable, then the landlord shall hold the deposit or notice for the period of six months, to be personally delivered to the tenant, or his or her authorized agent or attorney, at the landlord's place of business during normal business hours within seventy-two hours after a written request is received from the tenant.
§37-6A-3. Maintenance of records by landlord.
The landlord shall:
(1) Maintain and itemize records for each tenant of all deductions from security deposits provided under this article which the landlord has made by reason of a tenant's noncompliance with the rental agreement for one year after the termination of the tenancy; and
(2) Either permit a tenant or his or her authorized agent or attorney to inspect the tenant's records of deductions at any time during normal business hours within seventy-two hours of a written request, or at the landlord's option, provide a tenant or his or her authorized agent or attorney a copy of the tenant's record of deductions during normal business hours within seventy-two hours of a written request.
§37-6A-4. Prohibited provision in rental agreements.
A rental agreement may not contain a provision that the tenant agrees to waive or forego rights or remedies under this article. A provision prohibited by this section included in a rental agreement is unenforceable. If a landlord brings an action to enforce any of the prohibited provisions, the tenant may recover actual damages sustained by him or her and reasonable attorney's fees.
§37-6A-5. Landlord's noncompliance.
(a) If a landlord fails to comply with any of the provisions of this article, and such noncompliance is willful or not in good faith, the tenant is entitled to a judgment for:
(1) The amount of any unreturned security deposit; and
(2) Damages for annoyance or inconvenience resulting from the landlord's nonconformance equal to one and a half times the amount wrongfully withheld, unless the tenant owes rent to the landlord, in which case, the court shall order an amount equal to any amount awarded to the tenant pursuant to this subsection to be credited against any rent due to the landlord.
(b) Jurisdiction for any civil action brought pursuant to this article shall be in magistrate court or circuit court in the county where the residential rental premises or units are located.
(c) This section does not limit rights or remedies available to a landlord or tenant under any other law.
§37-6A-6. Application and effective date of this article.
(a) The provisions of this article shall apply to all residential rental premises or units used for dwelling purposes.
(b) The provisions of this article do not apply to agreements for the payment of security deposits entered into prior to the effective date of this article."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3202 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §37-6A-1, §37-6A-2, §37-6A-3, §37-6A-4, §37-6A-5 and §37-6A-6, all relating to residential rental security deposits; providing relevant definitions; providing for deduction from and returning of security deposits; maintaining records; prohibiting certain provisions in rental agreements; providing remedies upon landlord's noncompliance; setting forth application of article; and providing for security deposits prior to effective date of article."
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. 428), and there were--yeas 82, nays 17, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Azinger, Border, Cann, Carmichael, Cowles, Ellem, Evans, Hamilton, Householder, Howell, Kump, Nelson, O'Neal, Sigler, Snuffer, Sumner and Walters.
Absent and Not Voting: Crosier.
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. 3202) 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. 3204, Creating the West Virginia Enterprise Resource Planning Board and Executive Committee.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On pages nine and ten, section five, lines one through thirty-two, by striking out all of section five, and renumbering the remaining sections accordingly.
And,
On page two, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §12-6D-1, §12-6D-2, §12-6D-3, §12-6D-4, §12-6D-5 and §12-6D-6, all to read as follows" followed by a colon.
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3204 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §12-6D-1, §12-6D-2, §12-6D-3, §12-6D-4, §12-6D-5 and §12-6D-6, all relating to the West Virginia Enterprise Resource Planning System; creating the Enterprise Resource Planning Board; providing for composition, purpose, powers and duties of the board; creating a steering committee; providing for composition, purpose, powers and duties of the steering committee; providing for expense reimbursement for members of the steering committee; creating the Enterprise Resource Planning System Fund in the state treasury; and transferring funds allocated to the system to the Enterprise Resource Planning System Fund."
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. 429), and there were--yeas 90, nays 9, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Gearheart, Householder, Howell, Kump, J. Miller, Savilla and Sobonya.
Absent and Not Voting: Crosier.
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. 3204) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 430), and there were--yeas 90, nays 9, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Gearheart, Householder, Howell, Kump, J. Miller, Savilla and Sobonya.
Absent and Not Voting: Crosier.
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. 3204) 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. 3225, Expanding the definition of harassment, intimidation or bullying. 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 three, line thirty, by striking out the word "and".
On page five, section three, line thirty-three, after the word "code", by changing the period to a semicolon and inserting the word "and".
On page five, section three, after line thirty-three, by inserting a new subdivision, designated subdivision (11), to read as follows:
"(11) A requirement that each county board shall input into the uniform integrated regional computer information system (commonly known as the West Virginia Education Information System) described in section twenty-six, article two of this chapter, and compile an annual report regarding the means of harassment, intimidation or bullying that have been reported to them, and the reasons therefor, if known. The West Virginia Department of Education shall compile the information and report it annually beginning July 1, 2012, to the Legislative Oversight Committee on Education Accountability."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 3225 - "A Bill to amend and reenact §18-2C-2 and §18-2C-3 of the Code of West Virginia, 1931, as amended, all relating to harassment, intimidation or bullying of students; expanding the definition of harassment, intimidation or bullying; expanding the areas where harassment, intimidation and bullying are prohibited to include school buses and school bus stops; requiring county board and West Virginia Department of Education policies regarding harassment, intimidation or bullying; and establishing reporting requirements."
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. 431), and there were--yeas 75, nays 24, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Border, Canterbury, Carmichael, Cowles, Ellington, Gearheart, Householder, Howell, Ireland, Kump, C. Miller, J. Miller, Nelson, O'Neal, Overington, Savilla, Sigler, Snuffer, Sobonya, Sumner, Walker and Walters.
Absent and Not Voting: Crosier.
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. 3225) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
S. B. 563, Authorizing municipalities to create deferred retirement option plans for certain employees.
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. 112, Authorizing Department of Administration promulgate legislative rules,
Com. Sub. for S. B. 177, Authorizing Department of Revenue promulgate legislative rules,
Com. Sub. for S. B. 484, Relating to management agreements of Higher Education Policy Commission,
S. B. 546, Relating to municipal police and firefighter pensions,
And,
S. B. 581, Changing beginning date for early voting; allowing Saturday early voting.
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 July 1, 2011, of
Com. Sub. for S. B. 253, Amending insurance code with respect to holding companies.,
And,
Com. Sub. for S. B. 550, Relating generally to gaming at licensed racetracks and historic resort hotels.
Conference Committee Report

Delegate , from the Committee of Conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 2532, Zipline 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 Senate to Engrossed Committee Substitute for House Bill No. 2532, 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 Senate, striking out everything after the enacting clause and inserting new language, and agree to the same as follows:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §21-15-1, §21-15-2, §21-15-3, §21-15-4, §21-15-5, §21-15-6, §21-15-7, §21-15-8, §21-15-9, §21-15-10, §21-15-11, §21-15-12, §21-15-13 and §21-15-14 to read as follows:
ARTICLE 15. ZIPLINE AND CANOPY TOUR RESPONSIBILITY ACT.
§21-15-1. Legislative purpose.
The Legislature finds that:
(1) The sport of ziplining and canopy touring is practiced by a large number of citizens of West Virginia and also attracts to West Virginia a large number of nonresidents, significantly contributing to the economy of West Virginia; and
(2) There are inherent risks in the sport of ziplining and canopy touring which should be understood by each participant and which are essentially impossible to eliminate by the zipline or canopy tour operator.
§21-15-2. Definitions.
As used in this article:
(1) "ACCT" means the Association for Challenge Course Technology;
(2) "Canopy tours" means a facility not located in an amusement park or carnival which is a supervised or guided educational or recreational activity including, but not limited to, beams, bridges, cable traverses, climbing walls, nets, platforms, ropes, swings, towers and ziplines, which may be installed on or in trees, poles, portable structures or buildings, or be part of self-supporting structures.
(3) "Challenge course standards" means the Challenge Course Standards: Association for Challenge Course Technology, Seventh Edition (2008), or substantially equivalent standards.
(4) "Division" means the West Virginia Division of Labor.
(5) "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 zipline operator.
(6) "Operator" means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, who has operational responsibility for any zipline or canopy tour.
(7) "Participant" means any person who engages in activities on a zipline or canopy tour individually or in a group activity supervised by a zipline or canopy tour operator.
(8) "Special inspector" means a professional inspector who meets the qualifications set forth in ACCT or substantially equivalent standards and is certified by the division pursuant to section eight;
(9) "Zipline" means a commercial recreational activity where participants, by the use of a permanent cable or rope line suspended between support structures, enables a participant attached to a pulley to traverse from one point to another, for the purpose of giving the participants amusement, pleasure, thrills or excitement.
§21-15-3. Duties of a zipline or canopy tour operators.
Every operator shall:
(1) Construct, install, maintain and operate all ziplines and canopy tours in accordance with ACCT challenge course standards or substantially equivalent standards;
(2) Ensure that ziplines and canopy tours are inspected at least annually by the Division or a special inspector;
(3) Train employees operating ziplines and canopy tours in accordance with national standards associated with their profession;
(4) Procure and maintain commercial general liability insurance against claims for personal injury, death and property damages occurring upon, in or about the zipline or canopy tour which affords protection to the limit of not less than $1 million for injury or death of a single person, to the limit of $2 million in the aggregate, and to the limit of not less than $50,000 for property damage; and
(5) Maintain records for a period of at least three years from the date of the creation of the record of:
(A) Proof of insurance;
(B) Inspection reports;
(C) Maintenance records; and
(D) Participant acknowledgment of risks and duties.
§21-15-4. Responsibilities of participants; prohibited acts.
(a) It is the duty of each participant to participate as instructed by the operator.
(b) Participants have a duty to act as would a reasonably prudent person when engaging in the sport of ziplining or canopy touring offered by a operator.
(c) No participant may:
(1) Use a zipline or canopy tour without the authority, supervision and guidance of the zipline operator;
(2) Drop, throw or expel any object from a zipline or canopy tour except as authorized by the operator;
(3) Perform any act which interferes with the running or operation of a zipline or canopy tour; or
(4) Engage in any harmful conduct, or willfully or negligently engage in any type of conduct with contributes to cause injury to any person.
§21-15-5. Liability of zipline operators.
(a) A zipline operator shall be liable for injury, loss or damage caused by failure to follow the duties and standard of care set forth in section three of this article where the violation of duty is causally related to the injury, loss or damage suffered.
(b) A zipline operator is not liable for any injury, loss or damage caused by the negligence of any person who is not an agent or employee of the operator.
§21-15-6. Rules.
The division shall promulgate rules for the safe installation, repair, maintenance, use, operation and inspection of all ziplines and canopy tours consistent with ACCT Challenge Course Standards. The rules shall be in addition to any existing applicable safety orders and shall be concerned with the installation, repair, maintenance, use, operation and inspection of ziplines and canopy tours consistent with ACCT Challenge Course Standards. The rules shall be promulgated and designed for the purpose of developing ziplines and canopy tours as a recreational activity and additional tourist attraction in West Virginia. All rules shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.
§21-15-7. Inspection and permit fees.
(a) The Division shall charge inspection and permit fees. The annual permit fee is $100.00 for each zipline or canopy tour.
(1) The annual inspection fee, if an inspection is to be done by the Division, is $100.00 for each zipline or canopy tour.
(2) The annual inspection fee, if an inspection is to be done by the Division, is due at the time of application for the annual permit.
(3) The Division shall waive the inspection fee for a zipline or canopy tour whose operator provides proof of nonprofit business status or for any zipline or canopy tour whose operator provides proof that an inspection has been completed within the last year by a certified special inspector as provided in section nine of this article.
(b) The Division may charge additional inspection fees equal to the annual inspection fee for additional inspections required as the result of the condemnation of a device for safety standards violations and for inspections required as a result of accidents involving serious or fatal injury. If any operator requires an inspection as the result of a violation of the permitting requirements of section nine of this article, the Division shall charge the operator $75.00 per hour in addition to the established inspection fee, including travel time.
(c) All fees received shall be deposited in a special revenue account in the State Treasury known as the "Amusement Rides and Amusement Attractions Safety Fund". The Division may use moneys from the fund for the purpose of enforcement of the provisions of this article. Expenditures are not authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter eleven-b of this code.
(d) No inspection fee may be charged public agencies.
§21-15-8. Inspectors.
(a) The Division may hire or contract with inspectors to inspect zipline or canopy tours. The Division is responsible for oversight and review of the activities of special inspectors and may hire or contract with inspectors to review the activities of special inspectors.
(b) The Division shall certify all special inspectors. The Division may suspend or revoke any certification of a special inspector upon a showing of good cause. The Division shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code providing an application process and minimum qualifications for certification of special inspectors. The Division may charge an annual certification fee not to exceed $50.00.
§21-15-9. Permits; application; annual inspection.
(a) No operator may knowingly permit the operation of a zipline or canopy tour without a permit issued by the Division.
(b) Each year and at least fifteen days before the first time the zipline or canopy tour is made available in this state for public use, an operator shall apply for a permit to the Division on a form furnished by the Division and containing any information the Division may require.
(c) The Division shall, upon application and within ten days of the first time the zipline or canopy tour is made available in this state for public use, inspect the zipline or canopy tour.
(d) The Division shall inspect all zipline or canopy tours at least once every year.
(e) The Division may conduct inspections at any reasonable time without prior notice: Provided, That in lieu of performing its own inspection, the Division shall accept inspection reports from special inspectors certified by the Division.
§21-15-10. Issuance of permit; certificate of inspection; availability to public.
If, after inspection, a zipline or canopy tour, is found to comply with the rules of the division, the division shall issue a permit to operate. The permit shall be in the form of a certificate of inspection and shall be kept in the records of any operator for a three-year period and shall be readily accessible to the public for inspection at any reasonable time at the zipline location. A copy of the certificate, showing the last date of inspection, shall be affixed to the zipline upon issuance, or at any other location designated by the commissioner of the division.
§21-15-11. Notice of serious physical injury or fatality; investigations; records available to public.
An operator of a zipline or canopy tour shall notify the division not later than twenty-four hours after any fatality or accident occurring as a result of the operation of the zipline or canopy tour that results in a serious physical injury to any person requiring medical treatment or results in a loss of consciousness to any person. Notice to the division may be oral, written or by electronic means, but this notice requirement in no way limits the an operators responsibility to notify emergency or law enforcement personnel of the incident as soon as is reasonably practicable. The division shall investigate each fatality or accident and any safety-related complaint involving a zipline or canopy tour in this state about which the division receives notice. Every operator of a zipline or canopy tour shall keep a record of each accident or fatality and the record shall be kept with the certificate of inspection required by this article and shall be readily accessible to the public for inspection at any reasonable time at the place where the zipline or canopy tour is located.
§21-15-12. Service of process.
Any person, firm or corporation operating a zipline may be served with civil process in the same manner as if the owner or operator was a domestic or foreign corporation.
§21-15-13. Temporary cessation of the operation of a zipline or canopy tour determined to be unsafe.
The division may order, in writing, a temporary cessation of operation of a zipline if it has been determined after inspection to be hazardous or unsafe. Operation may not resume until the conditions are corrected to the satisfaction of the division.
§21-15-14. Regulation of ziplines by cities and counties.
Nothing contained in this article prevents cities and counties from regulating a zipline or canopy tour with regard to any aspect not relating to installation, repair, maintenance, use, operation and inspection of a zipline or canopy tour."
And,
That both houses recede from their respective positions as to the title of the bill and agree to a new title as follows:
Com. Sub. for H. B. 2532 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §21-15-1, §21-15-2, §21-15-3, §21-15-4, §21-15-5, §21- 15-6, §21-15-7, §21-15-8, §21-15-9, §21-15-10, §21-15-11, §21-15-12, §21-15-13 and §21-15-14, all relating to zipline and canopy tour regulation; establishing legislative purpose; defining terms; setting forth duties of zipline and canopy tour operators; requiring liability insurance; establishing responsibilities of participants; defining liability of zipline and canopy tour operators; authorizing the Division of Labor to regulate ziplines and canopy tours; authorizing the Division of Labor to propose rules for Legislative approval; requiring permits and inspections; authorizing the Division of Labor to charge inspection and permit fees; authorizing the Division of Labor to hire or contract with inspectors; authorizing the Division of Labor to certify professional inspectors; requiring notice of serious physical injury or fatality; requiring investigations of serious physical injuries or fatalities; providing for service of process; authorizing the temporary cessation of operations; providing for insurance or bond requirements; and providing for regulation of ziplines and canopy tours by cities and counties."
Respectfully submitted,

Barbara Evans Fleischauer,
William R. Laird IV,

John R. Frazier,
Mark Wills,

Bill Hamilton,
Mike Hall,

Conferees on the part
Conferees on the part

of the Senate.
of the House of Delegates.

On motion of Delegate Fleischauer 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. 432), and there were--yeas 93, nays 5, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes, Howell, Kump, J. Miller and Savilla.
Absent and Not Voting: Crosier and Hatfield.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2532) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates 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 July 1, 2011, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 2693, Requiring insurance coverage for autism spectrum disorders.
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 section and inserting in lieu thereof the following:
"CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,

SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD

OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,

OFFICES, PROGRAMS, ETC.

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

(a) The agency shall establish a group hospital and surgical insurance plan or plans, a group prescription drug insurance plan or plans, a group major medical insurance plan or plans and a group life and accidental death insurance plan or plans for those employees herein made eligible, and to establish and promulgate rules for the administration of these plans, subject to the limitations contained in this article. Those plans shall include:
(1) Coverages and benefits for X ray and laboratory services in connection with mammograms when medically appropriate and consistent with current guidelines from the United States Preventive Services Task Force; pap smears, either conventional or liquid-based cytology, whichever is medically appropriate and consistent with the current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists; and a test for the human papilloma virus (HPV) when medically appropriate and consistent with current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists, when performed for cancer screening or diagnostic services on a woman age eighteen or over;
(2) Annual checkups for prostate cancer in men age fifty and over;
(3) Annual screening for kidney disease as determined to be medically necessary by a physician using any combination of blood pressure testing, urine albumin or urine protein testing and serum creatinine testing as recommended by the National Kidney Foundation;
(4) For plans that include maternity benefits, coverage for inpatient care in a duly licensed health care facility for a mother and her newly born infant for the length of time which the attending physician considers medically necessary for the mother or her newly born child: Provided, That no plan may deny payment for a mother or her newborn child prior to forty-eight hours following a vaginal delivery, or prior to ninety-six hours following a caesarean section delivery, if the attending physician considers discharge medically inappropriate;
(5) For plans which provide coverages for post-delivery care to a mother and her newly born child in the home, coverage for inpatient care following childbirth as provided in subdivision (4) of this subsection if inpatient care is determined to be medically necessary by the attending physician. Those plans may also include, among other things, medicines, medical equipment, prosthetic appliances and any other inpatient and outpatient services and expenses considered appropriate and desirable by the agency; and
(6) Coverage for treatment of serious mental illness.
(A) The coverage does not include custodial care, residential care or schooling. For purposes of this section, 'serious mental illness' means an illness included in the American Psychiatric Association's diagnostic and statistical manual of mental disorders, as periodically revised, under the diagnostic categories or subclassifications of: (i) Schizophrenia and other psychotic disorders; (ii) bipolar disorders; (iii) depressive disorders; (iv) substance-related disorders with the exception of caffeine-related disorders and nicotine-related disorders; (v) anxiety disorders; and (vi) anorexia and bulimia. With regard to any covered individual who has not yet attained the age of nineteen years, 'serious mental illness' also includes attention deficit hyperactivity disorder, separation anxiety disorder and conduct disorder.
(B) Notwithstanding any other provision in this section to the contrary, in the event that the agency can demonstrate that its total costs for the treatment of mental illness for any plan exceeded two percent of the total costs for such plan in any experience period, then the agency may apply whatever additional cost-containment measures may be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two percent of the total costs for the plan for the next experience period.
(C) The agency shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its plan. With regard to both medical-surgical and mental health benefits, it may make determinations of medical necessity and appropriateness, and it may use recognized health care quality and cost management tools, including, but not limited to, limitations on inpatient and outpatient benefits, utilization review, implementation of cost-containment measures, preauthorization for certain treatments, setting coverage levels, setting maximum number of visits within certain time periods, using capitated benefit arrangements, using fee-for-service arrangements, using third-party administrators, using provider networks and using patient cost sharing in the form of copayments, deductibles and coinsurance.
(7) Coverage for general anesthesia for dental procedures and associated outpatient hospital or ambulatory facility charges provided by appropriately licensed health care individuals in conjunction with dental care if the covered person is:
(A) Seven years of age or younger or is developmentally disabled, and is an individual for whom a successful result cannot be expected from dental care provided under local anesthesia because of a physical, intellectual or other medically compromising condition of the individual and for whom a superior result can be expected from dental care provided under general anesthesia;
(B) A child who is twelve years of age or younger with documented phobias, or with documented mental illness, and with dental needs of such magnitude that treatment should not be delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of teeth or other increased oral or dental morbidity and for whom a successful result cannot be expected from dental care provided under local anesthesia because of such condition and for whom a superior result can be expected from dental care provided under general anesthesia.
(8)(A) Any plan issued or renewed after January 1, 2012, shall include coverage for diagnosis and treatment of autism spectrum disorder in individuals ages eighteen months through eighteen years. To be eligible for coverage and benefits under this subdivision, the individual must be diagnosed with autism spectrum disorder at age 8 or younger. Such policy shall provide coverage for treatments that are medically necessary and ordered or prescribed by a licensed physician or licensed psychologist for an individual diagnosed with autism spectrum disorder, in accordance with a treatment plan developed by a certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the individual, subject to review by the agency every six months. Progress reports are required to be filed with the agency semi-annually. In order for treatment to continue, the agency must receive objective evidence or a clinically supportable statement of expectation that:
(1) The individual's condition is improving in response to treatment, and
(2) A maximum improvement is yet to be attained, and
(3) There is an expectation that the anticipated improvement is attainable in a reasonable and generally predictable period of time.
(B) Such coverage shall include, but not be limited to, applied behavioral analysis provided or supervised by a certified behavior analyst: Provided, That the annual maximum benefit for treatment required by this subdivision shall be in amount not to exceed $30,000 per individual, for three consecutive years from the date treatment commences. At the conclusion of the third year, required coverage shall be in an amount not to exceed $2000 per month, until the individual reaches eighteen years of age, as long as the treatment is medically necessary and in accordance with a treatment plan developed by a certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the individual. This section shall not be construed as limiting, replacing or affecting any obligation to provide services to an individual under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., as amended from time to time or other publicly funded programs. Nothing in this subdivision shall be construed as requiring reimbursement for services provided by public school personnel.
(C) On or before January 1 each year, the agency shall file an annual report with the joint committee on government and finance describing its implementation of the coverage provided pursuant to this subdivision. The report shall include, but shall not be limited to, the number of individuals in the plan utilizing the coverage required by this subdivision, the fiscal and administrative impact of the implementation, and any recommendations the agency may have as to changes in law or policy related to the coverage provided under this subdivision. In addition, the agency shall provide such other information as may be required by the joint committee on government and finance as it may from time to time request.
(D) For purposes of this subdivision, the term:
(i) 'Applied Behavior Analysis' means the design, implementation, and evaluation of environmental modifications using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.
(ii) 'Autism spectrum disorder' means any pervasive developmental disorder, including autistic disorder, Asperger's Syndrome, Rett syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.
(iii) 'Certified behavior analyst' means an individual who is certified by the Behavior Analyst Certification Board or certified by a similar nationally recognized organization.
(iv) 'Objective evidence' means standardized patient assessment instruments, outcome measurements tools or measurable assessments of functional outcome. Use of objective measures at the beginning of treatment, during and/or after treatment is recommended to quantify progress and support justifications for continued treatment. Such tools are not required, but their use will enhance the justification for continued treatment.
(E) To the extent that the application of this subdivision for autism spectrum disorder causes an increase of at least one percent of actual total costs of coverage for the plan year the agency may apply additional cost containment measures.
(F) To the extent that the provisions of this subdivision requires benefits that exceed the essential health benefits specified under section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential health benefits shall not be required of insurance plans offered by the public employees insurance agency.
ARTICLE 16B. WEST VIRGINIA CHILDREN'S HEALTH INSURANCE PROGRAM.
§5-16B-6e. Coverage for treatment of autism spectrum disorders.

(a) To the extent that the diagnosis and treatment of autism spectrum disorders are not already covered by this agency, after January 1, 2012, a policy, plan or contract subject to this section shall provide coverage for such diagnosis and treatment, for individuals ages eighteen months through eighteen years. To be eligible for coverage and benefits under this section, the individual must be diagnosed with autism spectrum disorder at age eight or younger. Such policy shall provide coverage for treatments that are medically necessary and ordered or prescribed by a licensed physician or licensed psychologist for an individual diagnosed with autism spectrum disorder, in accordance with a treatment plan developed by a certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the individual subject to review by the agency every six months. Progress reports are required to be filed with the agency semi-annually. In order for treatment to continue, objective evidence or a clinically supportable statement of expectation that:
(1) the individual's condition is improving in response to treatment, and
(2) maximum improvement is yet to be attained, and
(3) there is an expectation that the anticipated improvement is attainable in a reasonable and generally predictable period of time.
(b) Such coverage shall include, but not be limited to, applied behavioral analysis provided or supervised by a certified behavior analyst: Provided, That the annual maximum benefit for treatment required by this section shall be in amount not to exceed $30,000 per individual, for three consecutive years from the date treatment commences. At the conclusion of the third year, required coverage shall be in an amount not to exceed $2000 per month, until the individual reaches eighteen years of age, as long as the treatment is medically necessary and in accordance with a treatment plan developed by a certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the individual. This section shall not be construed as limiting, replacing or affecting any obligation to provide services to an individual under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., as amended from time to time or other publicly funded programs. Nothing in this section shall be construed as requiring reimbursement for services provided by public school personnel.
(c) On or before January 1 each year, the agency shall file an annual report with the joint committee on government and finance describing its implementation of the coverage provided pursuant to this section. The report shall include, but shall not be limited to the number of individuals in the plan utilizing the coverage required by this section, the fiscal and administrative impact of the implementation, and any recommendations the agency may have as to changes in law or policy related to the coverage provided under this section. In addition, the agency shall provide such other information as may be requested by the joint committee on government and finance as it may from time to time request.
(d) For purposes of this section, the term:
(1) 'Applied Behavior Analysis' means the design, implementation, and evaluation of environmental modifications using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.
(2) 'Autism spectrum disorder' means any pervasive developmental disorder, including autistic disorder, Asperger's Syndrome, Rett syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.
(3) 'Certified behavior analyst' means an individual who is certified by the Behavior Analyst Certification Board or certified by a similar nationally recognized organization.
(4) 'Objective evidence' means standardized patient assessment instruments, outcome measurements tools or measurable assessments of functional outcome. Use of objective measures at the beginning of treatment, during and/or after treatment is recommended to quantify progress and support justifications for continued treatment. Such tools are not required, but their use will enhance the justification for continued treatment.
(e) To the extent that the application of this section for autism spectrum disorder causes an increase of at least one percent of actual total costs of coverage for the plan year the agency may apply additional cost containment measures.
(f) To the extent that the provisions of this section requires benefits that exceed the essential health benefits specified under section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential health benefits shall not be required of the West Virginia Children's Health Insurance Program.
CHAPTER 9. HUMAN SERVICES.

ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-21. Annual report to joint committee on government and finance regarding treatment for autism spectrum disorders provided by the Bureau for Medical Services.

(a) On or before January 1 each year, the agency shall file an annual report with the joint committee on government and finance describing the number of enrolled individuals with autism spectrum disorder, including the fiscal and administrative impact of treatment of autism spectrum disorders, and any recommendations the agency may have as to changes in law or policy related to such disorder. In addition, the agency shall provide such other information as may be requested by the joint committee on government and finance as it may from time to time request.
(b) For purposes of this section, the term 'autism spectrum disorder' means any pervasive developmental disorder, including autistic disorder, Asperger's Syndrome, Rett syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.
CHAPTER 33. INSURANCE.

ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3v. Required coverage for treatment of autism spectrum disorders.

(a) Any insurer who, on or after January 1, 2012, delivers, renews or issues a policy of group accident and sickness insurance in this State under the provisions of this article shall include coverage for diagnosis and treatment of autism spectrum disorder in individuals ages eighteen months through eighteen years. To be eligible for coverage and benefits under this section, the individual must be diagnosed with autism spectrum disorder at age 8 or younger. Such policy shall provide coverage for treatments that are medically necessary and ordered or prescribed by a licensed physician or licensed psychologist for an individual diagnosed with autism spectrum disorder, in accordance with a treatment plan developed by a certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the individual, subject to review by the agency every six months. Progress reports are required to be filed with the insurer semi-annually. In order for treatment to continue, the insurer must receive objective evidence or a clinically supportable statement of expectation that:
(1) The individual's condition is improving in response to treatment, and
(2) A maximum improvement is yet to be attained, and
(3) There is an expectation that the anticipated improvement is attainable in a reasonable and generally predictable period of time.
(b) Such coverage shall include, but not be limited to, applied behavioral analysis provided or supervised by a certified behavioral analyst: Provided, That the annual maximum benefit for treatment required by this subdivision shall be in amount not to exceed $30,000 per individual, for three consecutive years from the date treatment commences. At the conclusion of the third year, required coverage shall be in an amount not to exceed $2000 per month, until the individual reaches eighteen years of age, as long as the treatment is medically necessary and in accordance with a treatment plan developed by a certified behavioral analyst pursuant to a comprehensive evaluation or reevaluation of the individual. This section shall not be construed as limiting, replacing or affecting any obligation to provide services to an individual under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., as amended from time to time or other publicly funded programs. Nothing in this section shall be construed as requiring reimbursement for services provided by public school personnel.
(c) For purposes of this section, the term:
(1) 'Applied Behavior Analysis' means the design, implementation, and evaluation of environmental modifications using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.
(2) 'Autism spectrum disorder' means any pervasive developmental disorder, including autistic disorder, Asperger's Syndrome, Rett syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.
(3) 'Certified behavior analyst' means an individual who is certified by the Behavior Analyst Certification Board or certified by a similar nationally recognized organization.
(4) 'Objective evidence' means standardized patient assessment instruments, outcome measurements tools or measurable assessments of functional outcome. Use of objective measures at the beginning of treatment, during and/or after treatment is recommended to quantify progress and support justifications for continued treatment. Such tools are not required, but their use will enhance the justification for continued treatment.
(d) The provisions of this section do not apply to small employers. For purposes of this section a small employer shall be defined as any person, firm, corporation, partnership or association actively engaged in business in the state of West Virginia who, during the preceding calendar year, employed an average of no more than twenty-five eligible employees.
(e) To the extent that the application of this section for autism spectrum disorder causes an increase of at least one percent of actual total costs of coverage for the plan year the insurer may apply additional cost containment measures.
(f) To the extent that the provisions of this section requires benefits that exceed the essential health benefits specified under section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential health benefits shall not be required of a health benefit plan when the plan is offered by a health care insurer in this state..
ARTICLE 24. HOSPITAL MEDICAL AND DENTAL CORPORATIONS.
§33-24-7k. Coverage for diagnosis and treatment of autism spectrum disorders.

(a) Notwithstanding any provision of any policy, provision, contract, plan or agreement to which this article applies, any entity regulated by this article, for policies issued or renewed on or after January 1, 2012, delivers, renews or issues a policy of group accident and sickness insurance in this State under the provisions of this article shall include coverage for diagnosis and treatment of autism spectrum disorder in individuals ages eighteen months through eighteen years. To be eligible for coverage and benefits under this section, the individual must be diagnosed with autism spectrum disorder at age 8 or younger. Such policy shall provide coverage for treatments that are medically necessary and ordered or prescribed by a certified behavior analyst for an individual diagnosed with autism spectrum disorder, in accordance with a treatment plan developed by a certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the individual, subject to review by the corporation every six months. Progress reports are required to be filed with the corporation semi-annually. In order for treatment to continue, the agency must receive objective evidence or a clinically supportable statement of expectation that:
(1) The individual's condition is improving in response to treatment, and
(2) A maximum improvement is yet to be attained, and
(3) There is an expectation that the anticipated improvement is attainable in a reasonable and generally predictable period of time.
(b) Such coverage shall include, but not be limited to, applied behavioral analysis provided or supervised by a certified behavioral analyst: Provided, That the annual maximum benefit for treatment required by this section shall be in amount not to exceed $30,000 per individual, for three consecutive years from the date treatment commences. At the conclusion of the third year, required coverage shall be in an amount not to exceed $2000 per month, until the individual reaches eighteen years of age, as long as the treatment is medically necessary and in accordance with a treatment plan developed by a certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the individual. This section shall not be construed as limiting, replacing or affecting any obligation to provide services to an individual under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., as amended from time to time or other publicly funded programs. Nothing in this section shall be construed as requiring reimbursement for services provided by public school personnel.
(c) For purposes of this section, the term:
(1) 'Applied Behavior Analysis' means the design, implementation, and evaluation of environmental modifications using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.
(2) 'Autism spectrum disorder' means any pervasive developmental disorder, including autistic disorder, Asperger's Syndrome, Rett syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.
(3) 'Certified behavior analyst' means an individual who is certified by the Behavior Analyst Certification Board or certified by a similar nationally recognized organization.
(4) 'Objective evidence' means standardized patient assessment instruments, outcome measurements tools or measurable assessments of functional outcome. Use of objective measures at the beginning of treatment, during and/or after treatment is recommended to quantify progress and support justifications for continued treatment. Such tools are not required, but their use will enhance the justification for continued treatment.
(d) The provisions of this section do not apply to small employers. For purposes of this section a small employer shall be defined as any person, firm, corporation, partnership or association actively engaged in business in the state of West Virginia who, during the preceding calendar year, employed an average of no more than twenty-five eligible employees.
(e) To the extent that the application of this section for autism spectrum disorder causes an increase of at least one percent of actual total costs of coverage for the plan year the corporation may apply additional cost containment measures.
(f) To the extent that the provisions of this section requires benefits that exceed the essential health benefits specified under section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential health benefits shall not be required of a health benefit plan when the plan is offered by a corporation in this state.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-8j. Coverage for diagnosis and treatment of autism spectrum disorders.

(a) Notwithstanding any provision of any policy, provision, contract, plan or agreement to which this article applies, any entity regulated by this article, for policies issued or renewed on or after January 1, 2012, delivers, renews or issues a policy of group accident and sickness insurance in this State under the provisions of this article shall include coverage for diagnosis and treatment of autism spectrum disorder in individuals ages eighteen months through eighteen years. To be eligible for coverage and benefits under this section, the individual must be diagnosed with autism spectrum disorder at age 8 or younger. Such policy shall provide coverage for treatments that are medically necessary and ordered or prescribed by a certified behavior analyst for an individual diagnosed with autism spectrum disorder, in accordance with a treatment plan developed by a certified behavioral analyst pursuant to a comprehensive evaluation or reevaluation of the individual, subject to review by the health maintenance organization every six months. Progress reports are required to be filed with the health maintenance organization semi-annually. In order for treatment to continue, the health maintenance organization must receive objective evidence or a clinically supportable statement of expectation that:
(1) The individual's condition is improving in response to treatment, and
(2) A maximum improvement is yet to be attained, and
(3) There is an expectation that the anticipated improvement is attainable in a reasonable and generally predictable period of time.
(b) Such coverage shall include, but not be limited to, applied behavioral analysis provided or supervised by a certified behavioral analyst: Provided, That the annual maximum benefit for treatment required by this subdivision shall be in amount not to exceed $30,000 per individual, for three consecutive years from the date treatment commences. At the conclusion of the third year, required coverage shall be in an amount not to exceed $2000 per month, until the individual reaches eighteen years of age, as long as the treatment is medically necessary and in accordance with a treatment plan developed by a certified behavioral analyst pursuant to a comprehensive evaluation or reevaluation of the individual. This section shall not be construed as limiting, replacing or affecting any obligation to provide services to an individual under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., as amended from time to time or other publicly funded programs. Nothing in this section shall be construed as requiring reimbursement for services provided by public school personnel.
(c) For purposes of this section, the term:
(1) 'Applied Behavior Analysis' means the design, implementation, and evaluation of environmental modifications using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.
(2) 'Autism spectrum disorder' means any pervasive developmental disorder, including autistic disorder, Asperger's Syndrome, Rett syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.
(3) 'Certified behavior analyst' means an individual who is certified by the Behavior Analyst Certification Board or certified by a similar nationally recognized organization.
(4) 'Objective evidence' means standardized patient assessment instruments, outcome measurements tools or measurable assessments of functional outcome. Use of objective measures at the beginning of treatment, during and/or after treatment is recommended to quantify progress and support justifications for continued treatment. Such tools are not required, but their use will enhance the justification for continued treatment.
(d) The provisions of this section do not apply to small employers. For purposes of this section a small employer shall be defined as any person, firm, corporation, partnership or association actively engaged in business in the state of West Virginia who, during the preceding calendar year, employed an average of no more than twenty-five eligible employees.
(e) To the extent that the application of this section for autism spectrum disorder causes an increase of at least one percent of actual total costs of coverage for the plan year the health maintenance organization may apply additional cost containment measures.
(f) To the extent that the provisions of this section requires benefits that exceed the essential health benefits specified under section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential health benefits shall not be required of a health benefit plan when the plan is offered by a health maintenance organization in this state."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2693 - "A Bill to amend and reenact §5-16-7 of the code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §5-16B- 6e; to amend said code by adding thereto a new section, designated §9-5-21; to amend said code by adding thereto a new section, designated §33-15-4k; to amend said code by adding thereto a new section, designated §33-16-3v; to amend said code by adding thereto a new section, designated §33- 24-7k; and to amend said code by adding thereto a new section, designated §33-25A-8j, all relating to requiring insurance coverage for autism spectrum disorders; providing for an effective date for coverage; providing definitions; setting out age limitations; providing for coverage amounts and time frames; setting forth who may provide appropriate treatment; providing reporting requirements to determine if treatment remains effective; allowing for cost saving measures in specified instances; providing the provisions are only required to the extent required by federal law; and providing reporting requirements by state agencies."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment with further amendment, on page nine, section seven, following line nine, by inserting the following:
"(b) The agency shall make available to each eligible employee, at full cost to the employee, the opportunity to purchase optional group life and accidental death insurance as established under the rules of the agency. In addition, each employee is entitled to have his or her spouse and dependents, as defined by the rules of the agency, included in the optional coverage, at full cost to the employee, for each eligible dependent; and with full authorization to the agency to make the optional coverage available and provide an opportunity of purchase to each employee.
(c) The finance board may cause to be separately rated for claims experience purposes:
(1) All employees of the State of West Virginia;
(2) All teaching and professional employees of state public institutions of higher education and county boards of education;
(3) All nonteaching employees of the Higher Education Policy Commission, West Virginia Council for Community and Technical College Education and county boards of education; or
(4) Any other categorization which would ensure the stability of the overall program.
(d) The agency shall maintain the medical and prescription drug coverage for Medicare- eligible retirees by providing coverage through one of the existing plans or by enrolling the Medicare- eligible retired employees into a Medicare-specific plan, including, but not limited to, the Medicare/Advantage Prescription Drug Plan. In the event that a Medicare-specific plan would no longer be available or advantageous for the agency and the retirees, the retirees shall remain eligible for coverage through the agency."
The bill, as amended by the Senate and further amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 433), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
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. 2693) passed.
Delegate Boggs moved that the bill take effect July 1, 2011.
On this question, the yeas and nays were taken (Roll No. 434), 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: Azinger and Crosier.
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. 2693) takes effect July 1, 2011.
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. 2505, Adding synthetic cannabinoids and hallucinogens and stimulants to the Schedule I list of controlled substances (K2).
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page twenty-eight, section two hundred four, after line two hundred ninety-seven, by inserting a new subdivision, designated subdivision (8), to read as follows:
"(8) N-benzylpiperazine, also known as BZP".
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. 435), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Voting: Crosier.
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. 2505) passed.
Delegate Boggs moved that the bill take effect thirty days from passage.
On this question, the yeas and nays were taken (Roll No. 436), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent and Not Votin