Senate Daily Journal

WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTIETH LEGISLATURE

REGULAR SESSION, 2012

FIFTY-EIGHTH DAY

____________

Charleston, W. Va., Thursday, March 8, 2012

The Senate met at 11 a.m.

(Senator Kessler, Mr. President, in the Chair.)

Prayer was offered by the Reverend Ron Stoner, Emmanuel Baptist Church, Charleston, West Virginia.

Pending the reading of the Journal of Wednesday, March 7, 2012,

On motion of Senator Laird, the Journal was approved and the further reading thereof dispensed with.

The Senate proceeded to the second order of business and the introduction of guests.

The Senate then proceeded to the third of business.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of

Eng. Com. Sub. for Senate Bill No. 185, Relating to Employee Suggestion Award Program.

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

Eng. Com. Sub. for Senate Bill No. 186, Providing salary equity supplement payments to teachers and service personnel.

On motion of Senator Unger, the message on the bill was taken up for immediate consideration.

The following House of Delegates amendment to the bill was reported by the Clerk:

On page thirteen, section eight-a, line twenty-two, by striking out the word “section”.

On motion of Senator Unger, the Senate concurred in the House of Delegates amendment to the bill.

Engrossed Committee Substitute for Senate Bill No. 186, as amended by the House of Delegates, was then put upon its passage.

On the passage of the bill, the yeas were: Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--32.

The nays were: None.

Absent: Barnes and Green--2.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 186) passed with its title.

Senator Unger moved that the bill take effect from passage.

On this question, the yeas were: Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--32.

The nays were: None.

Absent: Barnes and Green--2.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 186) takes effect from passage.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to

Eng. Com. Sub. for Senate Bill No. 371, Providing school system under declared state of emergency participate as innovation zone pilot project.

On motion of Senator Unger, the message on the bill was taken up for immediate consideration.

The following House of Delegates amendments to the bill were reported by the Clerk:

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 §18-5B-12, to read as follows:

ARTICLE 5B. SCHOOL INNOVATION ZONES ACT.

§18-5B-12. School system collaborative innovation zones; legislative findings and intent; eligibility; designation; strategic plan for improvement; process for requesting exceptions; statutes, policies, rules and interpretations from which exceptions may not be requested or granted; state board rule; examples of innovations.

(a) Legislative findings and intent. --

(1) The Legislature created a performance-based accreditation system in 1988 and has amended these provisions several times, significantly in 1998 to set forth a process for improving education consisting of four elements: (i) High quality education standards; (ii) an assessment of the performance and progress of schools and school systems in achieving these standards with a primary focus on student learning; (iii) holding schools and school systems accountable for performance and progress to provide assurances that a thorough and efficient education is being provided; and (iv) a process for targeting resources strategically to improve teaching and learning. These provisions include a process for the state board to declare a state of emergency and intervene in the operation of a school system when its educational program does not meet the standards and it fails to implement an improvement plan or meet the plan’s deadlines and improve with a reasonable time. Since the inception of these provisions, the state board has declared a state of emergency in nine county school systems and intervened, including delegating decision-making authority to the state superintendent or his or her designee for system operations. Of these nine school systems, three improved sufficiently over a period of time for the state of emergency to be rescinded, the longest of which took ten years and six months. Of the six systems remaining under state board intervention, although most are fairly recent, one school system has been under state intervention for more than ten years and its improvement is progressing slowly.

(2) School systems do not exist in a vacuum and external circumstances and events can have a significant impact on them and the students they serve, as well as on the system’s capacity to deliver the thorough and efficient education to which those students are entitled. For example, the school system of a county which in the 1950’s at its height of employment in coal production had a total population of about 100,000 residents, faced much different challenges than it does today with that county’s total population now at 22,113 based on the 2010 census. This school system has lost nearly 70 percent of its enrollment in the past 30 years, declining from 11,715 students in 1981-82 to 3,535 in 2011-12. Along with the steep decline in the historical bedrock of employment in the county in the coal industry and the large number of middle class workers and services it supported, including housing, utilities and medical care, the county’s rugged mountainous topography contributes to its vulnerability to natural disasters such as the devastating floods in 2001 and 2002 that swept away many homes and much of the infrastructure along the creek beds throughout the county. This topography also significantly limits the amount of land suitable for development and transportation networks, and makes planning for future economic development alternatives difficult. The social and economic byproducts of these external circumstances and events leave a school system with many atypical challenges for addressing the needs of its students and making the improvements in performance and progress needed to assure a thorough and efficient education.

(3) Among the findings, intent and purposes of this article are that: (i) Allowing exceptions from certain statutes, policies, rules and interpretations through the creation of innovation zones will enable greater local control over the important educational factors that impact student achievement and the delivery of educational services to improve student learning; and (ii) Innovation zones will provide greater flexibility and local control to meet the needs of a diverse population of students. In addition, among the findings of the Local Solution Dropout Prevention and Recovery Innovation Zone Act as set forth in section eleven of this article are findings that when educators, parents, elected officials, business leaders, faith-based leaders, human service personnel, judicial personnel and civic leaders collectively work together they are often able to find innovative solutions to address school and community problems. Since the creation of this article, forty-five innovation zone projects have been approved by the state board, nine of which were Dropout Prevention and Recovery Innovation Zone projects. Twenty-seven policy waivers and five statutory waivers have been granted to enable implementation of these projects. In one county, an innovation zone project was expanded to all of the remaining schools in the county when the schools used the Local School Improvement Council waiver process to request and receive a statutory waiver to implement a comprehensive new teacher induction process county-wide. Collectively, these projects illustrate how local schools, and in some cases school systems, have increased their capacity by using the innovation zone process to collaboratively plan and implement a variety of changes to increase student engagement, develop more flexible schedules, enhance student and teacher ownership of the learning process and increase student achievement.

(4) In light of the foregoing findings, it is the intent of the Legislature though this section to create a special category of innovation zones entitled “School System Collaborative Innovation Zones” to provide an opportunity for a school system that has been under a state of emergency and subject to state board intervention for an extended period of time and that faces atypical challenges to the delivery of a thorough and efficient education, to seek and receive exceptions to certain statutes, policies, rules and interpretations applicable throughout the county or at certain schools within the county as needed to best serve the interests of improving educational capacity to meet the needs of its students. This section is intended as an additional tool for an eligible school system in collaboration with community and business partners to plan and implement new approaches to improve the performance and progress of the students, schools and system to achieve full approval at the earliest possible date. It is further the intent of the Legislature that the process for an eligible school system to apply for exceptions under this section should allow multiple opportunities to apply for additional exceptions as the system moves forward with its partners toward fulfillment of its improvement goals.

(b) School System Eligibility --

The eligibility of a school system to be designated as a school system collaborative innovation zone in accordance with this section is restricted to school systems that: (1) Are under a state of emergency due to nonapproval status and subject to state board intervention on the date of initial designation and for at least the preceding ten consecutive years; (2) face atypical challenges to the delivery of a thorough and efficient education as determined by the state board in its sole discretion; and (3) are engaged in a public-private partnership to begin addressing these challenges both within the school system and in the community at large.

(1) Upon the request of an eligible school system, the state board may designate a school system as a school system collaborative innovation zone. The request shall be accompanied by a strategic plan for improvement as provided in subsection (d) of this section and the plan shall serve as the basis for the innovation zone activities of the school system. The decision to approve or disapprove a request by a school system to be designated as a school system collaborative innovation zone is at the sole discretion of the state board. If the request is disapproved, the state board shall provide the school system with its reasons for disapproving the request and provide the school system with an opportunity to again request the designation.

(2) The designation as a school system collaborative innovation zone authorizes the school system to submit requests as provided in subsection (e) of this section to the state board for exceptions to statutes, policies, rules and interpretations that are required to permit implementation by the school system of the innovative strategies contemplated in its strategic plan for school improvement. The designation shall be for a period of five years, during which the school system may submit multiple individual requests for exceptions to permit implementation of different strategies contemplated in the plan as the strategies are developed. Each request for an exception shall be submitted and may be approved by the state board in accordance with subsection (e) of this subsection.

(3) A school system designated as a school system collaborative innovation zone may request and the state board may approve amendments to the strategic plan for improvement. Prior to submission to the state board, a requested amendment must be approved under the same procedures as set forth in subsection (d) of this section for plan approval.

(4) The expiration of the designation does not negate any exceptions to statutes, policies, rules or interpretations granted to the school system, unless and until specifically revoked, repealed or modified by the state board or by the Legislature as applicable. If, at the end of its five-year designation, the school system has outstanding items in its strategic plan of improvement that it still wants to pursue, the state board may, upon the request of the school system, extend the designation for and additional two years but only for the purpose of pursuing those outstanding items.

(5) In accordance with the intent of this section as an additional tool for planning and implementing new approaches to improve the performance and progress of the students, schools and school system to achieve full approval at the earliest possible date, the state board shall rescind the state of emergency and nonapproval status of a school system designated as a school system collaborative innovation zone as soon as the requisite conditions are met as provided in section five, article two-e of this chapter, notwithstanding the designation. If a school system that has been designated as a school system collaborative innovation zone is subsequently issued a school system approval status that would make it ineligible for the designation, the designation shall remain in effect until the end of the five year designation period. In addition, if the school system has outstanding items in its strategic plan of improvement that it still wants to pursue, the state board may, upon the request of the school system, extend the designation for an additional two years, but only for the purpose of pursuing those outstanding items.

(d) Strategic Plan for Improvement --

(1) Prior to submitting a request to the state board for designation as a school system collaborative innovation zone, the school system shall establish a strategic plan for improvement which shall be submitted with the request and shall serve as the basis for the innovation zone activities of the school system. The plan shall include, but is not limited to the following:

(A) A description of the challenges affecting the quality of education in the county that the school system collaborative innovation zone has identified and plans to develop measures address;

(B) A description of potential strategies that will be explored by the collaborative for addressing the challenges;

(C) Identification of the priorities of the collaborative for implementing the various strategies and tentative time lines for addressing them; and

(D) A description of the collaborative partners and the potential strategies to be undertaken in collaboration with the school system or in the community at large, or both, to help improve the quality of education in the county.

(2) Establishment of the plan is subject to the following procedures for plan development and approval:

(A) The school system in collaboration with its public-private partnership shall conduct public town hall meetings in at least two schools in the county for the dual purposes of (i) presenting information on the opportunity and process for requesting designation as a school system collaborative innovation zone; and (ii) soliciting input from those in attendance on the challenges affecting the quality of education in the county and the potential strategies and priorities for addressing them;

(B) The county superintendent shall hold a meeting for the purpose of reviewing the input gathered at the public town hall meetings and developing the strategic plan for improvement. The meeting shall include the principals employed within the county, the chairs of the faculty senates of each school in the county, employee organization representatives, parents and other stakeholders;

(C) The county superintendent shall hold a meeting of the regularly employed school employees in the county for the purpose of providing the employees an opportunity to examine and discuss the strategic plan for improvement;

(D) The county superintendent shall direct that a vote of all regularly employed school employees in the county be conducted to determine the level of school employee support for the strategic plan for improvement. The vote shall be by secret ballot administered by the panels created in subsection (c) section six of this article for each school and shall be administered in accordance with said subsection. For the vote to be valid, ballots must be cast by at least fifty percent of all regularly employed school employees in the county. The plan may not be submitted to the state board and the state board may not designate the school system as a school system collaborative innovation zone unless at least two-thirds of the employees voting vote to submit the plan.

(3) The plan is intended to serve as the basis for the innovation zone activities of the school system and to provide a vision for the school improvement goals it will work to accomplish in collaboration with its school and community partners. The plan is not intended as a limit on the normal school improvement activities that all school systems are expected to pursue, nor is the plan intended as a restriction on the ability of the school system or its schools to pursue other innovative strategies in accordance with the other provisions of this article, specifically the designation as a Local Solution Dropout Prevention and Recovery Innovation Zone in accordance with section eleven of this article.

(e) Process for Requesting and Approving Exceptions to Statutes, Policies, Rules and Interpretations --

(1) A school system designated as a school system collaborative innovation zone may request an exception to a statute, policy, rule or interpretation by submitting an application to the state board that contains the following information:

(A) A description of the program or initiative the school system intends to implement as an innovative strategy to improve student achievement if the request is approved by the state board;

(B) An explanation of the specific exception to a statute, policies, rule or interpretation, in the singular or plural, that the school system has identified as prohibiting or constraining the implementation of the program or initiative and why the exception is necessary;

(C) An explanation of how the program or initiative furthers the activities contemplated in the strategic plan for improvement;

(D) A certification by the county superintendent that the request for an exception was approved by a vote of the eligible employees in accordance with the process for voting as set forth in section six of this article, except that notwithstanding subsection (d) of said section six, at least two-thirds of the eligible employees voting must vote to request the exception for it to be approved for submission to the state board: Provided, That for the vote to be valid, ballots must be cast by at least fifty percent of the eligible employees; and

(E) Any other information the state board requires as set forth in its rule pursuant to subsection (g) of this section.

(2) The state board shall review request in accordance with the standards adopted by the board in its rule and shall determine whether to approve or disapprove the request. The approval or disapproval of a request is at the sole discretion of the state board. Any approval requirement not contained within this section does not apply.

(3) Except as provided in subdivision (5) of this subsection, the state board shall approve or disapprove the request within thirty days of receipt, subject to the following:

(A) No exceptions to state board policies, rules or interpretations are granted unless the state board approves the request at least conditionally pursuant to subdivisions (2) and (5) of this subsection; and

(B) If the request is disapproved, the state board shall communicate its reasons for the disapproval to the school system and shall make recommendations for improving the request. The school system may amend and resubmit the request.

(4) Upon approval of the request by the state board, all of the exceptions to state board policies, rules and interpretations the were requested are granted; and

(5) If a request, or a part thereof, may not be implemented unless an exception to a statute is granted by an Act of the Legislature, the state board may approve the request, or the part thereof, only upon the condition that the Legislature acts to grant the exception. If the state board approves a request on that condition, the state board shall submit the request for an exception to a statute, along with supporting reasons, to the Legislative Oversight Commission of Education Accountability. The commission shall review the request and make a recommendation to the Legislature regarding the exception requested.

(f) Statutes, policies, rules and interpretations from which an exception may not be requested or granted --

(1) A school system collaborative innovation zone may not request an exception nor may an exception be granted from any of the following:

(A) A required statewide assessment program administered by the West Virginia Department of Education;

(B) Any provision of law or policy required by the No Child Left Behind Act of 2001, Public Law No. 107-110 or other federal law; and

(C) Sections two and seven, article two, chapter eighteen-a of this code and sections seven-a, seven-b, eight and eight-b, article four, chapter eighteen-a of this code, except that a school system collaborative innovation zone may make a job posting for a teacher vacancy in accordance with the procedures and the approval by a vote of the teachers as provided in section eight of this article.

(g) State Board Rule --

(1) The state board shall promulgate a rule, including an emergency rule if necessary, in accordance with article three-b, chapter twenty-nine-a of this code to implement this section. The rule shall include, but is not limited to, the following provisions:

(A) The manner and process for a school system collaborative innovation zone to request an exception from a statute, policy, rule or interpretation;

(B) The contents of the request, which must include a general description of the innovations that the collaborative seeks to institute;

(C) Factors to be considered by the state board when evaluating a request, which shall include, but are not limited to, the following factors:

(i) Support from teachers, service personnel, parents, students, the county board of education, the local school improvement council and school business partners; and

(ii) The potential for an applicant to be successful in raising student achievement; and

(D) Standards for the state board to review the request and to make determinations on approval or disapproval.

(h) State Board Review and Reports –

The state board or its designated committee shall perform annual performance reviews and provide reports in accordance with section seven of this article on the progress of school system collaborative innovation zones designated pursuant to this section.

(i) Examples of potential areas for innovation –

(1) In exploring potential areas of innovation for inclusion in its strategic plan for improvement, a school system seeking designation as a school system collaborative innovation zone may in its sole discretion consider the following:

(A) Allowing increased collaborative site based decision-making powers over the budgeting for and spending on programs and services for students;

(B) Allowing increased collaborative site based decision-making powers over teacher recruitment;

(D) Allowing a collaborative process which provides input and demonstrative buy-in from education personnel regarding appropriate professional development, supports, resources and working conditions;

(E) Allowing a collaborative site based process to reduce certain requirements to allow school based education personnel to meet the school’s mission;

(F) Allowing, through a collaborative site based process, flexibility to the school calendar to achieve the instructional day goal provided by section forty-five, article five of this chapter;

(G) Allowing, through a collaborative site based process, flexibility to the alternative teacher certification provided in section one-a, article three, chapter eighteen-a of the code;

(H) Utilizing virtual school courses aligned with the Southern Regional Education Board’s Standards for Quality Online Courses; and

(J) Other innovation zone plans approved under the provisions of this article and being implemented in other schools and school systems throughout the state.

(2) For any county that is designated as an innovation zone under the provisions of this section and to the extent the following provisions are applicable:

(A) The county commission of the designated county shall collaborate with the Office of Coalfield Community Development in including any land and infrastructure needs in the land use master plan provided for in section nine, article two-a, chapter five-b of this code. These needs may include, but are not limited to, advancement of public education, economic development, highway development, recreational amenities and housing development;

(B) An area health organization, such as the Tug River Health Association, Inc., is authorized to work with the county board to address the health, wellness and fitness needs of students, parents, school personnel and all others in the county. The organization may partner with the Robert C. Byrd Center for Rural Health and the Marshall University Medical School in addressing these needs. In addressing the health, wellness and fitness needs, the following should be considered:

(i) New evaluations of school-aged children are needed to reassess their health status and direct further interventions;

(ii) Prior to developing new assessment tools and initiating programs, a comprehensive inventory of prior assessment tools and programs is needed to determine their strengths and weaknesses. This can direct further studies and interventions;

(iii) New assessment tools should include objective markers of disease as well as subjective opinions of individual health status and barriers to health;

(iv) Objective and subjective data should be linked at individual and disease specific levels;

(v) Disease specific data may be used to address common barriers to health as perceived by a specific population and tailor interventions to these specific populations;

(vi) The effectiveness of interventions should be assessed using the same health status markers used to develop the intervention;

(vii) Interventions should use available technology that allows individuals to track measures of health and provide assistance in making informed decisions about their health;

(viii) Assessments and interventions should be developed and implemented using community-based participatory research models; and

(ix) Assessments and interventions should be multidisciplinary, collaborative efforts with existing organizations and programs; and

(C) Concord University is authorized to work with the county board on innovative strategies to address challenges facing the school system and community, including but not limited to, the areas of critical need and shortage in the teaching force, educator professional development and improving the college going rate. In addressing the areas of critical need shortage in the teaching force, consideration should be given to the implementation of an intensively supervised and mentored teacher-in-residence program for prospective teachers during their senior year in lieu of student teaching. The implementation of a teacher-in-residence program shall be subject to the following conditions:

(i) An agreement between the university and the county board with the county board to implement a teacher-in-residence program in the public schools of the county that provides for the program of instruction for the teacher-in-residence, including but not limited to, the responsibilities for supervision and mentoring by the institution’s educator preparation program, the school principal, and peer teachers and mentors, and the responsibilities for the formal instruction or professional development necessary for the teacher-in-residence to perfect his or her professional practice skills;

(ii) Approval of the agreement in subparagraph (i) of this subdivision by the state board;

(iii) A requirement that a prospective teacher in a teacher-in-residence program must have first completed the content area preparation courses and passed the appropriate state board approved basic skills and subject matter test or tests required by the state board for teachers to become certified in the area for which licensure is being sought;

(iv) A teacher-in-residence may serve only in a teaching position in the county which has been posted and no other teacher fully certified for the position has been employed;

(v) Establishment by the state superintendent of a temporary, non renewable teacher-in-residence permit that provides for the qualifications issuance of the permit in accordance with sections one and two-a, article three, chapter eighteen-a of this code;

(vi) A requirement for the teacher-in-residence to have been issued a teacher-in-residence permit qualifying the teacher-in-residence to teach in his or her assigned position as the teacher of record;

(vii) Provisions for the salary and benefit costs for the position in which the teacher-in-residence is assigned to be used as specified in the agreement between the university and the county board for program support and for the payment of a stipend to the teacher-in-residence. These salary and benefit costs shall be calculated at the level of a teacher with a bachelor’s degree with zero years of experience; and

(viii) Other provisions required by the state board, if any.;

And,

By striking out the title and substituting therefor a new title, to read as follows:

Eng. Com. Sub. for Senate Bill No. 371--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-5B-12, relating to creating school system collaborative innovation zones; legislative findings and intent; restricted eligibility for designation of school systems; process for requesting and approving or disapproving designation; authorities granted by virtue of designation and duration thereof; extension of designation; effect of change in status on designation; required strategic plan of improvement; purpose, contents and process for development and approval of improvement plan; plan amendments; process for requesting and approving exceptions to statutes, policies, rules and interpretations; prohibition on exceptions from certain statutes, policies, rules and interpretations; state board rule for implementation, including emergency rule if necessary; certain state board review and reporting on progress of designated school systems; examples of potential areas for innovation; requiring collaboration to the extent applicable of county commission with Office of Coalfield Community Development on certain needs; authorizing to the extent applicable an area health organization to work with county board in addressing certain needs and authorizing partnership with certain other health organizations; and authorizing to the extent applicable Concord University to work with county board in addressing certain needs including implementation of teacher-in-residence program subject to certain conditions.

On motion of Senator Unger, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for S. No. 371) and requested the House of Delegates to recede therefrom.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of

Eng. Com. Sub. for Senate Bill No. 387, Requiring training of floodplain managers.

A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to

Eng. Senate Bill No. 410, Requiring backup withholding for certain gambling prizes.

On motion of Senator Unger, the message on the bill was taken up for immediate consideration.

The following House of Delegates amendment to the bill was reported by the Clerk:

On page two, section seventy-seven, line twenty-one, by striking out the word “Every” and inserting in lieu thereof the words “Beginning July 1, 2012, every”.

On motion of Senator Unger, the Senate concurred in the House of Delegates amendment to the bill.

Engrossed Senate Bill No. 410, as amended by the House of Delegates, was then put upon its passage.

On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--33.

The nays were: None.

Absent: Green--1.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 410) passed with its House of Delegates amended title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of

Eng. Senate Bill No. 430, Conforming code provisions to Streamlined Sales and Use Tax Agreement.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of

Eng. Com. Sub. for Senate Bill No. 471, Authorizing Supreme Court establish mental hygiene commissioners' compensation.

A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to

Eng. Com. Sub. for Senate Bill No. 621, Requiring DOH concurrence that major subdivisions or land developments provide sufficient access.

On motion of Senator Unger, the message on the bill was taken up for immediate consideration.

The following House of Delegates amendments to the bill were reported by the Clerk:

By striking out everything after the enacting clause and inserting in lieu thereof the following:

That §8A-5-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 1. GENERAL PROVISIONS.

§8A-5-7. Contents of a major subdivision or land development plan and plat.

(a) A land development plan and plat must include everything required by the governing body’s subdivision and land development ordinance.

(b) If a governing body does not have a subdivision and land development ordinance or if a governing body’s subdivision and land development ordinance does not specify what may be included in a subdivision or land development plan and plat, then the following may be included, when applicable, in a subdivision or land development plan and plat:

(1) Show that the subdivision or land development conforms to the governing body’s comprehensive plan;

(2) A method of payment to cover the cost of the water and sewer service infrastructure, which can include, but is not limited to, bonds, impact fees, escrow fees and proffers;

(3) Coordination among land development with adjoining land owners, including, but not limited to, facilities and streets;

(4) Distribution of population and traffic in a manner tending to create conditions favorable to health, safety, convenience and the harmonious development of the municipality or county;

(5) Show that there is a fair allocation of areas for different uses, including, but not limited to, streets, parks, schools, public and private buildings, utilities, businesses and industry;

(6) Show that there is a water and sewer supply;

(7) Setback and lot size measures were used;

(8) The standards used for designating land which is subject to flooding or subsidence, details for making it safe, or information showing that such land will be set aside for use which will not endanger life or property and will not further aggravate or increase the existing menace;

(9) The control measures for drainage, erosion and sediment;

(10) The coordination of streets, sidewalks and pedestrian pathways in and bordering the land development, including a letter from the Division of Highways stating that the plan provides sufficient access to state roads; and

(11) The design, construction and improvement measures to be used for the streets, sidewalks, easements, rights-of-way, drainage, utilities, walkways, curbs, gutters, street lights, fire hydrants, water and wastewater facilities, and other improvements installed, including the width, grade and location for the purpose of accommodating prospective traffic, customers and facilitating fire protection.;

And,

By striking out the title and substituting therefor a new title, to read as follows:

Eng. Com. Sub. for Senate Bill No. 621--A Bill to amend and reenact §8A-5-7 of the Code of West Virginia, 1931, as amended, all relating to the approval of major subdivision or land development plans and plats; and requiring a letter from the Division of Highways stating there is sufficient access to state roads.

On motion of Senator Unger, the Senate concurred in the House of Delegates amendments to the bill.

Engrossed Committee Substitute for Senate Bill No. 621, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: Green--1.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 621) passed with its House of Delegates amended title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

Eng. Senate Bill No. 655, Allowing licensure of certain veterinarians by endorsement.

On motion of Senator Unger, the message on the bill was taken up for immediate consideration.

The following House of Delegates amendments to the bill were reported by the Clerk:

By striking out everything after the enacting clause and inserting in lieu thereof the following:

That §30-10-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §30-10-8a, all to read as follows:

ARTICLE 10. VETERINARIANS.

§30-10-8. Requirements for veterinary license.

(a) To be eligible for a license to practice veterinary medicine under the provisions of this article, the applicant must:

(1) Be of good moral character;

(2) (A) Be a graduate of an accredited school approved by the board; or

(B) Be a graduate of a foreign veterinary school and hold a certificate of competence issued by a foreign veterinary graduate educational organization as approved by the board;

(3) Have passed the examinations required by the board;

(4) Be at least eighteen years of age;

(5) Be a citizen of the United States or be eligible for employment in the United States;

(6) Not have been convicted of a crime involving moral turpitude;

(7) Not have been convicted of a felony under the laws of any jurisdiction within five years preceding the date of application for licensure which conviction remains unreversed; and

(8) Not have been convicted of a misdemeanor or a felony under the laws of any jurisdiction at any time if the offense for which the applicant was convicted related to the practice of veterinary medicine or animal abuse or neglect.

(b) A person seeking a license under the provisions of this article shall submit an application on a form prescribed by the board and pay all applicable fees.

(d) (c) A license to practice veterinary medicine issued by the board prior to July 1, 2010, shall for all purposes be considered a license issued under this article and may be renewed under this article.

(e) (d) An application for a license to practice veterinary medicine submitted to the board prior to July 1, 2010, shall be considered in conformity with the licensing provisions of this article and the rules promulgated thereunder in effect at the time of the submission of the application.

§30-10-8a. License to practice veterinary medicine from another jurisdiction.

(a) The board may issue a license to practice veterinary medicine to an applicant who holds a valid license or other authorization to practice in another jurisdiction with requirements which are substantially similar to the license requirements in this state.

(b) To be eligible for a license, the applicant shall apply to the board and pay the applicable fees as set by the board.

(1) The applicant is a graduate of a veterinary college approved by the board;

(2) The applicant is of good moral character;

(3) The applicant holds a valid license to practice veterinary medicine and has practiced veterinary medicine in another jurisdiction for at least one year immediately preceding application. The requirements for licensure in the issuing state shall be substantially similar to the standards required for issuance of a license under the provisions of this article;

(4) The applicant shall pass a national examination, as prescribed by legislative rule;

(5) Provide a letter of good standing from each state board in which the applicant is licensed; and

(6) The applicant has passed an examination given by the board on the laws and legislative rules of West Virginia governing the practice of veterinary medicine.

(d) The board may not issue a license to any applicant who is under investigation in another jurisdiction, until the investigation and disciplinary proceedings have been completed.;

And,

By striking out the title and substituting therefor a new title, to read as follows:

Eng. Senate Bill No. 655--A Bill to amend and reenact §30-10-8 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §30-10-8as, all relating to authorizing license of veterinarians from other jurisdictions; requiring substantially similar qualifications; providing requirements for licensure; and prohibiting licensure for practitioner under investigation.

On motion of Senator Unger, the Senate refused to concur in the foregoing House amendments to the bill (Eng. S. B. No. 655) and requested the House of Delegates to recede therefrom.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of

Senate Concurrent Resolution No. 44, Requesting DOH name portion of I-79 in Monongalia County "Charles J. Whiston Interchange".

A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of

Eng. Com. Sub. for House Bill No. 4338, Raising the maximum value amount of an abandoned motor vehicle.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of

Eng. Com. Sub. for House Bill No. 4345, Prohibiting the unauthorized sale of railroad scrap metal.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, to take effect from passage, of

Eng. Com. Sub. for House Bill No. 4530, Authorizing the Public Service Commission to consider and issue a financing order to certain regulated electric utilities to permit the recovery of expanded net energy costs.

A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to

Eng. House Bill No. 4648, Implementing a domestic violence court pilot project.

On motion of Senator Unger, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.

Whereupon, Senator Kessler (Mr. President) appointed the following conferees on the part of the Senate:

Senators Wills, Kirkendoll and Nohe.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, to take effect from passage, of

Eng. House Bill No. 4654, Relating to the provision of mailing services by the CPRB to certain retiree organizations.

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

Eng. House Bill No. 4656--A Bill making a supplementary appropriation of federal funds out of the Treasury from the balance of federal moneys remaining unappropriated for the fiscal year ending June 30, 2012, to the Division of Human Services - Temporary Assistance for Needy Families, fund 8816, fiscal year 2012, organization 0511, by supplementing and amending the appropriation for the fiscal year ending June 30, 2012.

Referred to the Committee on Finance.

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

Eng. House Bill No. 4657--A Bill making a supplementary appropriation from the balance of moneys remaining unappropriated for the fiscal year ending June 30, 2012, to the Department of Administration, Department of Administration - Office of the Secretary - Employee Pension and Health Care Benefit Fund, fund 2044, fiscal year 2012, organization 0201, to the Department of Administration - Division of Purchasing - Purchasing Improvement Fund, fund 2264, fiscal year 2012, organization 0213, to the Department of Environmental Protection - Division of Environmental Protection - Oil and Gas Operating Permit and Processing Fund, fund 3323, fiscal year 2012, organization 0313, to the Department of Environmental Protection - Division of Environmental Protection - Stream Restoration Fund, fund 3349, fiscal year 2012, organization 0313, to the Department of Environmental Protection - Division of Environmental Protection - Mountaintop Removal Fund, fund 3490, fiscal year 2012, organization 0313, to the Department of Health and Human Resources - Division of Human Services - West Virginia Works Separate State Two-Parent Program Fund, fund 5468, fiscal year 2012, organization 0511, to a new item of appropriation designated to the to the Department of Military Affairs and Public Safety - West Virginia State Police - State Police Academy Post Exchange, fund 6544, fiscal year 2012, organization 0612, to the Department of Revenue - Racing Commission - General Administration, fund 7305, fiscal year 2012, organization 0707, to the Miscellaneous Boards and Commissions - WV State Board of Examiners for Licensed Practical Nurses, fund 8517, fiscal year 2012, organization 0906, and to the Miscellaneous Boards and Commissions - Public Service Commission - Consumer Advocate, fund 8627, fiscal year 2012, organization 0926, by supplementing and amending chapter 11, Acts of the Legislature, regular session, 2011, known as the Budget Bill.

Referred to the Committee on Finance.

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

Eng. House Bill No. 4658--A Bill supplementing, amending, decreasing and increasing items of the existing appropriations from the State Road Fund to the Department of Transportation - Division of Highways, fund 9017, fiscal year 2012, organization 0803, for the fiscal year ending June 30, 2012.

Referred to the Committee on Finance.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the adoption as amended, of

House Concurrent Resolution No. 75, The "McCellan Highway and Jerry Lee Richards Memorial Highway".

The Senate proceeded to the fourth order of business.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Concurrent Resolution No. 53, Requesting Joint Committee on Government and Finance study drivers' license suspensions.

And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.

Respectfully submitted,

Corey Palumbo,

Chair.

The resolution, under the original double committee reference, was then referred to the Committee on Rules.

Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:

Your Committee on Government Organization has had under consideration

Senate Concurrent Resolution No. 68, Requesting Joint Committee on Government and finance study complete streets policy.

And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.

Respectfully submitted,

Herb Snyder,

Chair.

The resolution, under the original double committee reference, was then referred to the Committee on Rules.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Concurrent Resolution No. 69, Requesting Joint Committee on Government and Finance study independent redistricting commission.

And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.

Respectfully submitted,

Corey Palumbo,

Chair.

The resolution, under the original double committee reference, was then referred to the Committee on Rules.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Concurrent Resolution No. 86 (originating in the Committee on the Judiciary)--Requesting the Joint Committee on Government and Finance to study senatorial candidate residency requirements, other requirements for holding public office and certification of all elected officials to be determined by the Secretary of State.

Whereas, If a senatorial district is comprised of more than one county, then the West Virginia Constitution states that both senators in that district may not reside in the same county; and

Whereas, If a candidate’s county of residence is located in the same county as a sitting senator whose term would run concurrently, then the Secretary of State may refuse the candidate’s application; and

Whereas, Any person that is eligible and seeks to hold an office or political party position shall file a certificate of announcement declaring his or her candidacy for the nomination; and

Whereas, When a certificate of announcement is filed, the filing is to be with the Secretary of State to a proper officer not earlier than the second Monday in January next preceding the primary election day, and not later than the last Saturday in January next preceding the primary election day, and must be received before midnight, eastern standard time, of that day, or if mailed, has to be post marked by the United States Postal Service before that hour; and

Whereas, Compilation of a new application for candidacy in order for every candidate filing to meet all of the guidelines that have already been determined by the Secretary of State may be an appropriate way to address eligibility determinations; and

Whereas, The new application for candidacy may cover all necessary guidelines for the Secretary of State to know more clearly whether or not a candidate is eligible to run for office; and

Whereas, Requiring the candidate seeking election to submit a portfolio of him or herself that would reveal proof of age, education, residency, and other information required to show why the candidate believes they are eligible for office may be an appropriate way to address eligibility determinations; and

Whereas, If in the event questions of the validation arise after reviewing the filing, a process must be put in place to resolve disputes; and

Whereas, When a candidate has filed the certification, truthfully, then the Secretary of State will be aware of whether or not a candidate is eligible upon the review of the application; and

Whereas, The Secretary of State can further process out all ineligible candidates once the application for ballot has been submitted; and

Whereas, The Legislature believes that it is in the State’s best interest to study ways to improve the determination as to eligibility of candidates for office; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study senatorial candidate residency requirements, other requirements for holding public office and certification of all elected officials to be determined by the Secretary of State; and, be it

Further Resolved, That the study should address the most effective means for confirming the eligibility of candidates for public office and the measures, if any, that the Secretary of State should take to ensure eligible candidates are on the ballot and ineligible candidates are not; and, be it

Further Resolved, That the Joint Committee on Government and Finance study the legislative changes that may be necessary to update West Virginia law relating to ensuring the proper candidates are on the election ballot; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2013, on its findings, conclusions and recommendations together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Corey Palumbo,

Chair.

On motion of Senator Palumbo, the resolution (S. C. R. No. 86) contained in the foregoing report from the Committee on the Judiciary was referred to the Committee on Rules.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Concurrent Resolution No. 87 (originating in the Committee on the Judiciary)--Requesting the Joint Committee on Government and Finance to study the need, benefits and costs of additional legislation or regulation needed to foster cooperation between telecommunications providers, purchasers of scrap copper and other persons interested in deterring the illegal theft of scrap copper.

Whereas, The Legislature finds that the theft of scrap copper can interrupt communication services, disrupt public utilities, and harm public infrastructure; and

Whereas, The Legislature finds that it has worked diligently to create new law to deter persons from unlawfully stealing copper; and

Whereas, The Legislature finds that the interested parties have worked diligently to assist the Legislature in crafting effective legislation addressing the unlawful theft of copper; and

Whereas, The Legislature acknowledges that this is a difficult and complex issue that may require additional legislation or other action in order to more fully address the situation; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the need, benefits and costs of additional legislation or regulation needed to foster cooperation between telecommunications providers, purchasers of scrap copper and other persons interested in deterring the illegal theft of scrap copper; and, be it

Further Resolved, That the Joint Committee on Government and Finance study the legislative changes or other actions that may be necessary to further address this pressing issue; and, be it

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Corey Palumbo,

Chair.

On motion of Senator Palumbo, the resolution (S. C. R. No. 87) contained in the foregoing report from the Committee on the Judiciary was referred to the Committee on Rules.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Concurrent Resolution No. 88 (originating in the Committee on the Judiciary)--Requesting the Joint Committee on Government and Finance to study the need for additional magistrates throughout the state.

Whereas, The Legislature finds that there has not been a study regarding the need for additional magistrates based on the caseload of each magistrate throughout the state in the same way as there has been for circuit court judges; and

Whereas, The Legislature finds that there may be a need for additional magistrates based on the amount of cases filed in magistrate courts throughout the state; and

Whereas, The Legislature finds that it is in the best interest of the State for magistrates to be located appropriately throughout the State in order to afford the most effective and efficient resolution of cases in magistrate court; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the need for additional magistrates throughout the state; and, be it

Further Resolved, That the Joint Committee on Government and Finance study the specific counties that may be in greater need of an additional magistrate; and, be it

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Corey Palumbo,

Chair.

On motion of Senator Palumbo, the resolution (S. C. R. No. 88) contained in the foregoing report from the Committee on the Judiciary was referred to the Committee on Rules.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Concurrent Resolution No. 89 (originating in the Committee on the Judiciary)--Requesting the Joint Committee on Government and Finance to study the need and benefits of implementing a transfer on death deed and the best process for doing so.

Whereas, The Legislature finds that a death in the family is an event that is often difficult to plan for and there is often confusion as to how to best plan and prepare for a death in the family; and

Whereas, The Legislature finds that creating a mechanism commonly known as a transfer on death deed may be an effective and efficient tool for transferring property upon death; and

Whereas, The Legislature finds that the specific requirements in the transfer on death deed are of great importance and a clear statute from the Legislature is crucial to creating a functional process for transfer on death deeds; and

Whereas, The Legislature finds verifying and keeping record of all transfer on death deeds is of great importance and must be done in a manner that allows for easily finding the documents; and

Whereas, The Legislature finds that in finalizing a death deed certain requirements may be necessary to properly effectuate the transfer; and

Whereas, The Legislature finds that truthfulness in a transfer on death deed is crucial and, therefore, it may be necessary to create punishment for dishonesty on such documents; and

Whereas, The Legislature finds that a study is necessary to craft the most comprehensive and successful tool to finalize a transfer on death deed; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the need and benefits of implementing a transfer on death deed and the best process for doing so; and, be it

Further Resolved, That the Joint Committee on Government and Finance study the creation of a transfer on death deed and the best way to implement the requirements, details, recordkeeping, revocation process, transfer, finalization, other necessary standards, characteristics and ramifications of the transfer on death deed; and, be it

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Corey Palumbo,

Chair.

On motion of Senator Palumbo, the resolution (S. C. R. No. 89) contained in the foregoing report from the Committee on the Judiciary was referred to the Committee on Rules.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Concurrent Resolution No. 90 (originating in the Committee on the Judiciary)--Requesting the Joint Committee on Government and Finance to study the approaches taken by other states and the constitutional and other concerns associated with restricting the time, place or manner in which elected officials can raise funds.

Whereas, The Legislature finds that political campaign financing questions are complex issues that often contain constitutional concerns and lead to litigations; and

Whereas, The Legislature finds that other states have restricted the time, place or manner in which certain elected officials and candidates may raise money; and

Whereas, The Legislature finds that other states have specifically precluded members of their state legislature from raising funds during the legislative session; and

Whereas, The Legislature finds that certain other states have specifically precluded elected officials from raising funds from certain persons during the legislative session; and

Whereas, The Legislature finds that it would benefit from a study of all decisions made with regard to this topic by other states and an overview of any litigation that followed before determining the best approach for West Virginia to follow; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the approaches taken by other states and the constitutional and other concerns associated with restricting the time, place or manner in which elected officials can raise funds; and, be it

Further Resolved, That the Joint Committee on Government and Finance study the need for creating any restrictions on the time, place or manner in which elected officials in this state can raise funds; and, be it

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Corey Palumbo,

Chair.

On motion of Senator Palumbo, the resolution (S. C. R. No. 90) contained in the foregoing report from the Committee on the Judiciary was referred to the Committee on Rules.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Concurrent Resolution No. 91 (originating in the Committee on the Judiciary)--Requesting the Joint Committee on Government and Finance to study the West Virginia Freedom of Information Act, its definitions and exemptions to ensure that the definitions and exemptions are just and appropriate to further the purpose of the act.

Whereas, The Legislature finds that the West Virginia Freedom of Information Act has a clear purpose that the Legislature intended to be the effect of the original Act; and

Whereas, The Legislature finds that the definitions in the West Virginia Freedom of Information Act have been the subject of much debate; and

Whereas, The Legislature finds that the West Virginia Freedom of Information Act contains exemptions for certain documents that may be applied incorrectly or could be interpreted incorrectly; and

Whereas, The Legislature finds that the West Virginia Freedom of Information Act was based on the Federal Freedom of Information Act; and

Whereas, The Legislature finds that it is in the best interest of the people of the State of West Virginia that the West Virginia Freedom of Information Act be interpreted consistently and properly to effectuate the purpose of the Act; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the West Virginia Freedom of Information Act, its definitions and exemptions to ensure that the definitions and exemptions are just and appropriate to further the purpose of the act; and, be it

Further Resolved, That the Joint Committee on Government and Finance study the need for amending, expanding or limiting the exemptions contained in the West Virginia Freedom of Information Act to ensure that the act is interpreted consistently with its stated purpose; and, be it

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Corey Palumbo,

Chair.

On motion of Senator Palumbo, the resolution (S. C. R. No. 91) contained in the foregoing report from the Committee on the Judiciary was referred to the Committee on Rules.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Concurrent Resolution No. 92 (originating in the Committee on the Judiciary)--Requesting the Joint Committee on Government and Finance to study the need for, potential effect of and concerns associated with legislation addressing mold remediation in residential rental properties.

Whereas, The Legislature finds that it is imperative that residential tenants live in a fit and habitable residence; and

Whereas, The Legislature finds that certain molds may cause health problems for persons when the molds are growing in a residential rental property; and

Whereas, The Legislature finds that the tenant has certain duties of cleanliness and reporting of issues to the landlord; and

Whereas, The Legislature finds that the landlord has certain responsibilities to keep a rental property in good condition and in a manner that does not create health problems for the tenants; and

Whereas, The Legislature finds that the best approach in resolving such matters requires further study and deliberation; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the need for, potential effect of and concerns associated with legislation addressing mold remediation in residential rental properties; and, be it

Further Resolved, That the study include a comprehensive assessment of all of the potential effects of legislation addressing the topic of mold remediation in residential rental properties; and, be it

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Corey Palumbo,

Chair.

On motion of Senator Palumbo, the resolution (S. C. R. No. 92) contained in the foregoing report from the Committee on the Judiciary was referred to the Committee on Rules.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Eng. Com. Sub. for House Bill No. 4030, Prioritizing the payment of fees, costs, bonds, fines or other sums charged or assessed in magistrate courts in civil and criminal matters.

And has amended same.

And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.

Respectfully submitted,

Corey Palumbo,

Chair.

At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4030) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance, with an amendment from the Committee on the Judiciary pending.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Eng. House Bill No. 4322, Adding coyote and fox to the list of species in which any color artificial light is permitted for hunting at night.

And reports the same back with the recommendation that it do pass.

Respectfully submitted,

Corey Palumbo,

Chair.

At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. H. B. No. 4322) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

House Concurrent Resolution No. 59, Expressing support for improvement in the collection, processing and consumption of recyclable materials throughout the State.

And reports the same back with the recommendation that it be adopted.

Respectfully submitted,

Corey Palumbo,

Chair.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

House Concurrent Resolution No. 74, Requesting the state congressional delegation to ask the US Department of State to make certain demands on the government of the United Arab Emirates.

And reports the same back with the recommendation that it be adopted.

Respectfully submitted,

Corey Palumbo,

Chair.

Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:

Your Committee on Government Organization has had under consideration

House Concurrent Resolution No. 77, Declaring that the month of September be proclaimed as Take Pride in America Month beginning with September, 2012.

And reports the same back with the recommendation that it be adopted.

Respectfully submitted,

Herb Snyder,

Chair.

The Senate proceeded to the sixth order of business.

Senators Palumbo, Plymale, Kessler (Mr. President), Laird, Foster, Klempa, Wills, Stollings, Prezioso and Chafin offered the following resolution:

Senate Resolution No. 55--Designating the month of March as “American Red Cross Month”.

Whereas, Founded in 1881 and chartered by Congress in 1905, the American Red Cross acts in times of need in this country and around the world; and

Whereas, The American Red Cross is one of the most recognized humanitarian organizations and provides compassionate care to those who suffer disasters; and

Whereas, American Red Cross volunteers have provided food, clothing, shelter and mental health support to victims of disasters in recent years; and

Whereas, Nearly 44,000 people in West Virginia were trained in 2011 by the American Red Cross in CPR, first aid, lifeguard techniques, water safety and HIV/AIDS education; and

Whereas, Recruitment of West Virginians by the American Red Cross is continuous in seeking blood donations and blood products for critical medical treatments in our state; and

Whereas, The generosity of contributions of time and money by the American people help the American Red Cross restore vital services to families in times of need; therefore, be it

Resolved by the Senate:

That the Senate hereby designates the month of March as “American Red Cross Month”; and, be it

Further Resolved, That the Senate hereby recognizes the American Red Cross for its contributions to this state, the United States and the world; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representatives of the American Red Cross.

At the request of Senator Palumbo, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.

On motion of Senator Unger, the Senate recessed for one minute.

Upon expiration of the recess, the Senate reconvened and, at the request of Senator Chafin, and by unanimous consent, returned to the second order of business and the introduction of guests.

The Senate again proceeded to the sixth order of business.

Senators McCabe, Foster, Wells, Palumbo, Plymale, Kessler (Mr. President), Klempa, Chafin, Stollings and Unger offered the following resolution:

Senate Resolution No. 56--Recognizing Andy Ridenour and Linda McSparin for their many years of dedicated service to Mountain Stage.

Whereas, Mountain Stage is a two-hour music radio show, which first aired in 1983, is co-created and hosted by Larry Groce, and is produced by West Virginia Public Broadcasting and distributed worldwide by National Public Radio (NPR), Public Radio International, and the Voice of America; and

Whereas, Since its inception in the West Virginia Culture Center Theater on the State Capitol grounds, Mountain Stage has aired more than 760 shows; and

Whereas, Mountain Stage has produced most of its shows in Charleston and other West Virginia cities and counties such as Morgantown, Huntington, Beckley, Parkersburg, Montgomery, Bluefield, Princeton, Elkins, Buckhannon, Fairmont, Clarksburg, Franklin, Martinsburg, Shepherdstown, Pocahontas County and Putnam County, and has been invited to mount live productions in 17 other states of the union, as well as in Canada and Scotland; and

Whereas, Over the 29 years of producing live music in its finest form, Mountain Stage has featured over 200 West Virginian musicians including the likes of Kathy Mattea, Tim O’Brien, Hazel Dickens, Billy Edd Wheeler, Brad Paisley, Charlie McCoy, Louise MacNeill Pease and Irene McKinney; and

Whereas, In addition to featuring homegrown artists, Mountain Stage has provided the first national exposure for artists such as Sheryl Crow, Mary Chapin Carpenter, Lyle Lovett, Counting Crows, Tori Amos, Sarah McLachlan, Alison Krauss, and Phish; and

Whereas, The success of Mountain Stage could not be possible without the efforts of many dedicated people, including co-creator and producer Andy Ridenour and assistant producer Linda McSparin; and

Whereas, Andy Ridenour, a native of Washington, DC, who came to West Virginia to study at Concord College, worked at WCIR-FM radio station in Beckley, and went on to work at West Virginia Public Radio, and helped to create and name the radio program Mountain Stage; and

Whereas, Linda McSparin, a native of Missouri, moved to the Mountain State in 1984, and became the assistant producer of Mountain Stage in 1986; and

Whereas, With nearly 30 years of hard work, dedication, and commitment, Andy Ridenour and Linda McSparin have helped guide Mountain Stage from its infancy in Charleston, West Virginia, to an international success in the world of music radio; therefore, be it

Resolved by the Senate:

That the Senate hereby recognizes Andy Ridenour and Linda McSparin for their many years of dedicated service to Mountain Stage; and, be it

Further Resolved, That the Senate acknowledges the contributions of Andy Ridenour and Linda McSparin for their roles in creating the state’s greatest cultural export; and, be it

Further Resolved, That on the occasion of their retirements, the Senate expresses its sincere appreciation to Andy Ridenour and Linda McSparin and wishes them well with whatever they choose to pursue in the future; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Andy Ridenour and Linda McSparin.

At the request of Senator McCabe, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.

On motion of Senator Unger, the Senate recessed for one minute.

Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.

Senators Chafin, Plymale, Kessler (Mr. President), Klempa, Wills, Stollings and Prezioso offered the following resolution:

Senate Resolution No. 57--Congratulating the Wayne County High School Career Technical Education programs in Spring Valley, Tolsia and Wayne High Schools for receiving Exemplary Accreditation Status for the third year in a row.

Whereas, Spring Valley, Tolsia and Wayne High Schools have received Exemplary Accreditation Status for the third year in a row, with Spring Valley receiving this status for the fourth straight year. The West Virginia Department of Education and the Office of Performance Audits have declared that Wayne County has made state history by being the only county to ever have all three of its Career and Technical Education centers achieve such a level of achievement; and

Whereas, The Exemplary Status Accreditation is achieved by meeting the Career and Technical proficiency standards, which are a minimum of seventy percent of proficiency standards across all concentrations; having a ninety percent placement rate; and a sixty -five percent in-field job placement and continuing education rate, among other requirements. Additionally, this status concludes that Wayne County schools not only met this criteria, but they were also noted as being in the top ten percent of Career and Technical Schools in the state; and

Whereas, Sandra Pertee, Career Technical Education Director received a "Shining Star" Award for all of the hard work, dedication and leadership she has provided to Career and Technical Education since becoming Career Technical Education Director. She, along with all of the following deserve recognition for this outstanding achievement: Director Gary Adkins, Superintendent of Wayne County Schools, Mike Rutherford, Assistant Superintendent of Wayne County Schools, Dr. Kevin Smith, Director of Wayne County Secondary Schools, Mary Lou Perry, Director of Wayne County Middle Schools, Kim Hensley, Wayne County Career and Technical Administrative Professional, Clinton Burch, Assistant Principal of Spring Valley High School, Velvet Kelly, Assistant Principal of Wayne High School, Jim Hensley & Hugh Roberts, Wayne County Career and Technical Center Coaches, Matt Stanley, Principal of Tolsia High School, and Wayne Williamson, Career and Technical Education Parent Booster; therefore, be it

Resolved by the Senate:

That the Senate congratulates the Wayne County High School Career Technical Education programs in Spring Valley, Tolsia and Wayne High Schools for receiving Exemplary Accreditation Status for the third year in a row; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to each of the three high schools, together with copies to each of the individuals named in this resolution.

At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.

Thereafter, at the request of Senator Stollings, and by unanimous consent, the remarks by Senators Chafin and Plymale regarding the adoption of Senate Resolution No. 57 were ordered printed in the Appendix to the Journal.

On motion of Senator Unger, the Senate recessed for one minute.

Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.

Petitions

Senator Browning presented a petition from Jay Smith and nineteen West Virginia residents, opposing Senate Bill No. 586 (Increasing excise tax on cigarettes and tobacco products).

Referred to the Committee on Health and Human Resources.

Senator Unger announced that in the meeting of the Committee on Rules previously held, the committee, in accordance with rule number seventeen of the Rules of the Senate, had returned to the Senate calendar on third reading, Engrossed House Bill No. 4119.

The Senate proceeded to the seventh order of business.

Senate Concurrent Resolution No. 83, Requesting DOH name bridge in McDowell County, “Charles H. 'Charlie' Spencer Memorial Bridge”.

On unfinished business, coming up in regular order, was reported by the Clerk.

The question being on the adoption of the resolution, the same was put and prevailed.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

The Senate proceeded to the eighth order of business.

Eng. Com. Sub. for House Bill No. 4063, Relating to civil service commissions in political subdivisions.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Green--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4063) passed.

The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4063--A Bill to amend and reenact §7-14-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §7-14B-3 of said code; to amend and reenact §8-14-7 of said code; and to amend and reenact §8-15-12 of said code, all relating to certain county and municipal civil service commissions; continuing the commissions as previously established; composition of the commissions; removing requirement that a simple majority of members of commissions be of same political party; eligible qualifications for commissioners; appointment procedure for commissioners; terms of commissioners; grounds and procedures for removal from the commission; and procedures for replacement of vacancies.

Senator Unger moved that the bill take effect from passage.

On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--33.

The nays were: None.

Absent: Green--1.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4063) takes effect from passage.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Eng. House Bill No. 4119, Providing a definition for an athletic director who is employed by a county board of education.

On third reading, coming up in regular order, was reported by the Clerk.

At the request of Senator Plymale, unanimous consent was granted to offer an amendment to the bill on third reading.

Thereupon, on motion of Senator Plymale, the following amendment to the bill was reported by the Clerk and adopted:

By striking out everything after the enacting clause and inserting in lieu thereof the following:

That §18-1-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §18A-2-1a, all to read as follows:

CHAPTER 18. EDUCATION.

ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS FOR EDUCATION.

§18-1-1. Definitions.

The following words used in this chapter and in any proceedings pursuant thereto have the meanings ascribed to them unless the context clearly indicates a different meaning:

(a) “School” means the students and teachers assembled in one or more buildings, organized as a unit;

(b) “District” means county school district;

(d) “County board” or “board” means a county board of education;

(e) “State superintendent” means the state superintendent of free Schools;

(f) “County superintendent” or “superintendent” means a county superintendent of schools;

(g) “Teacher” means a teacher, supervisor, principal, superintendent, public school librarian or any other person regularly employed for instructional purposes in a public school in this state;

(h) “Service person” or “service personnel,” whether singular or plural, means any nonteaching school employee who is not included in the meaning of “teacher” as defined in this section, and who serves the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch and aides. Any reference to “service employee” or “service employees” in this chapter or chapter eighteen-a of this code means service person or service personnel as defined in this section;

(i) “Social worker” means a nonteaching school employee who, at a minimum, possesses an undergraduate degree in social work from an accredited institution of higher learning and who provides various professional social work services, activities or methods as defined by the state board for the benefit of students;

(j) “Regular full-time employee” means any person employed by a county board who has a regular position or job throughout his or her employment term, without regard to hours or method of pay;

(k) “Career clusters” means broad groupings of related occupations;

(l) “Work-based learning” means a structured activity that correlates with and is mutually supportive of the school-based learning of the student and includes specific objectives to be learned by the student as a result of the activity;

(m) “School-age juvenile” means any individual who is entitled to attend or who, if not placed in a residential facility, would be entitled to attend public schools in accordance with: (1) Section five, article two of this chapter; (2) sections fifteen and eighteen, article five of this chapter; or (3) section one, article twenty of this chapter;

(n) “Student with a disability” means an exceptional child, other than gifted, pursuant to section one, article twenty of this chapter;

(o) “Casual deficit” means a deficit of not more than three percent of the approved levy estimate or a deficit that is nonrecurring from year to year; and

(p) “Athletic director” means a person employed by a county board to work in a school’s athletic program pursuant to section one-a, article two, chapter eighteen-a of this code.

CHAPTER 18A. SCHOOL PERSONNEL.

§18A-2-1a. Employment of other personnel.

A county board is authorized to employ athletic directors to work in the public schools in accordance with the rules of the county board.

(a) The athletic director is responsible for planning, management, operation and evaluation of the athletic program for the school or schools to which he or she is assigned.

(b) The responsibilities of an athletic director may include, but are not limited to the following:

(1) Supervising athletic games;

(2) Overseeing the athletic budget;

(3) Hiring game officials;

(4) Scheduling athletic contests;

(5) Knowing and upholding all county, West Virginia Secondary Schools Activities Commission (WVSSAC) and league rules;

(6) Maintaining proper records as required by West Virginia Secondary Schools Activities Commission (WVSSAC) for school participation;

(7) Scheduling transportation for athletic teams;

(8) Preparing and verifying athletic eligibility lists;

(9) Supervising coaches and, if appropriately certified, observing and evaluating coaches;

(10) Securing all needed personnel for basic athletic event operations;

(11) Procuring and caring for athletic equipment; and

(12) Performing other duties involving athletics in accordance with the rules adopted by the board.

Having been engrossed, the bill (Eng. H. B. No. 4119), as just amended, was then read a third time and put upon its passage.

The nays were: None.

Absent: Green--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4119) passed.

At the request of Senator Plymale, as chair of the Committee on Education, and by unanimous consent, the unreported Education committee amendment to the title of the bill was withdrawn.

On motion of Senator Plymale, the following amendment to the title of the bill was reported by the Clerk and adopted:

Eng. House Bill No. 4119--A Bill to amend and reenact §18-1-1 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §18A-2-1a, all relating to providing definition of school athletic director; authorizing employment in the public schools; and designating responsibilities of the position.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Eng. Com. Sub. for House Bill No. 4130, Creating the felony criminal offense of sale or purchase of a child.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Green--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4130) passed with its title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

Eng. Com. Sub. for House Bill No. 4307, Clarifying that the practice and procedure for domestic violence civil proceedings are governed by court rule.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Green--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4307) passed with its title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

Eng. Com. Sub. for House Bill No. 4332, Relating to transfer of service credit from Public Employees Retirement System to Emergency Medical Services Retirement System.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Green--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4332) passed with its title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

Eng. Com. Sub. for House Bill No. 4376, Licensing wine sales at certain professional baseball stadiums.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: Barnes, Boley and Nohe--3.

Absent: Green--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4376) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: Barnes, Boley and Nohe--3.

Absent: Green--1.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4376) takes effect from passage.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

Eng. House Bill No. 4403, Changing the filing deadline for certified write-in candidates.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Green--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4403) passed.

The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

Eng. House Bill No. 4403--A Bill to amend and reenact §3-6-4a of the Code of West Virginia, 1931, as amended, relating to changing the filing deadline for certified write-in candidates; and removing language that conflicts with other sections of the code relating to the filling of vacancies.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Eng. Com. Sub. for House Bill No. 4433, Modifying the criteria for awarding high school diplomas to certain veterans.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Green--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4433) passed with its title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Eng. Com. Sub. for House Bill No. 4489, Strengthening authority of the West Virginia Municipal Pensions Oversight Board.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Green--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4489) passed with its title.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Eng. House Bill No. 4567, Permitting the Harrison county commission to levy a special district tax.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Green--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4567) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: Green--1.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4567) takes effect from passage.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.

The Senate proceeded to the ninth order of business.

Com. Sub. for Senate Bill No. 160, Budget Bill.

On second reading, coming up in regular order, was read a second time.

On motion of Senator Prezioso, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:

On page fifty-two, section one, item number fifty, by striking out all of line eleven and inserting in lieu thereof a new line eleven, to read as follows:

11 Basic Foundation Allowances. . . . . . . . . . 1,595,909,261;

On page fifty-two, section one, item number fifty, by striking out all of line thirteen and inserting in lieu thereof a new line thirteen, to read as follows:

13 Total Basic State Aid. . . . . . . . . . . . . 1,201,083,363;

On page fifty-three, section one, item number fifty, by striking out all of line eighteen and inserting in lieu thereof a new line eighteen, to read as follows:

18 Total. . . . . . . . . . . . . . . . . . . . 1,881,550,710;

On page seventy-one, section one, item number sixty-seven, by striking out all of line nine and inserting in lieu thereof a new line nine, to read as follows:

9 Medical Services (R). . . . . . . . 189 230,870,150;

And,

On page seventy-three, section one, item number sixty-seven, by striking out all of line forty-four and inserting in lieu thereof a new line forty-four, to read as follows:

44 Total. . . . . . . . . . . . . . . . . . . . . . 603,446,955.

The bill (Com. Sub. for S. B. No. 160), as amended, was then ordered to engrossment and third reading.

On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.

On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--33.

The nays were: None.

Absent: Green--1.

Engrossed Committee Substitute for Senate Bill No. 160 was then read a third time and put upon its passage.

The nays were: None.

Absent: Green--1.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 160) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: Green--1.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 160) takes effect from passage.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Eng. Com. Sub. for House Bill No. 2740, Making covenants that restrict the installation or use of solar energy systems unenforceable.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4006, Relating to elevator workers' licensure exemptions.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

By striking out everything after the enacting clause and inserting in lieu thereof the following:

That §21-3C-1, §21-3C-10a and §21-3C-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §21-3C-10b, all to read as follows:

ARTICLE 3C. ELEVATOR SAFETY.

§21-3C-1. Definitions.

(1) “Accessibility equipment” means lifting devices designated to remove access barriers in public buildings and private residences for persons with physical challenges, including residential elevators, and limited use/limited application elevators, vertical platforms, inclined platform lifts and stairway chairlifts.

(2) “Certificate of acceptance” means a certificate issued by the Division of Labor certifying that a newly installed elevator has been inspected and was found to be installed in compliance with the safety standards set forth in the American Society of Mechanical Engineers Safety Code for Elevators and Escalators (ASME) A17.1-3, “Safety Code for Elevators” and ASME A18.1, “Safety Code for Platform Lifts and Stairway Chairlifts”.

(3) “Certificate of competency” means a certificate issued by the Division of Labor certifying that an individual is qualified to inspect elevators.

(4) “Certificate of operation” means a certificate issued by the Division of Labor certifying that an elevator has been inspected and is safe for operation.

(5) “Commissioner” means the Commissioner of the Division of Labor.

(6) “Division” means the Division of Labor.

(7) “Division inspector” means an employee or contractor of the division who has been examined and issued a certificate of competency and who only inspects elevators in state owned buildings.

(8) “Elevator” means all the machinery, construction, apparatus and equipment used in raising and lowering a car, cage or platform vertically between permanent rails or guides and includes all elevators, power dumbwaiters, escalators, gravity elevators and other lifting or lowering apparatus permanently installed between rails or guides, but does not include hand operated dumbwaiters, platform lifts for loading docks, manlifts of the platform type with a platform area not exceeding nine hundred square inches, construction hoists or other similar temporary lifting or lowering apparatus.

(9) “Elevator apprentice” means a person who meets the requirements set forth in legislative rule promulgated pursuant to this article.

(10) “Elevator mechanic” means a person who possesses an elevator mechanic’s license in accordance with the provisions of this article and who is engaged in the business of erecting, constructing, installing, altering, servicing, repairing or maintaining elevators or related conveyances covered by this article.

(11) “Freight elevator” means an elevator used for carrying freight and on which only the operator, by the permission of the employer, is allowed to ride.

(12) “Inspector” means both a division inspector and a private inspector.

(13) “License” means a license issued to an elevator mechanic, accessibility technician or limited technician pursuant to this article.

(14) “Private residence elevator” means a passenger elevator of which use is limited by size, capacity, rise and speed, and access is limited by its location, by the requirement of a key for its operation or by other restriction.

(15) “Passenger elevator” means an elevator that is designed to carry persons to its contract capacity.

(16) “Limited Use/Limited Application elevator” means a power elevator in which the use and application is limited by size, capacity, speed and rise.

(17) “Private inspector” means a person who has been examined and issued a certificate of competency to inspect elevators within this state.

§21-3C-10a. License requirements for elevator mechanics, accessibility technicians, limited technicians; contractors license requirements; supervision of elevator apprentices requirements.

(a) A person may not engage or offer to engage in the business of erecting, constructing, installing, altering, servicing, repairing or maintaining elevators or related conveyances covered by this article in this state, unless he or she has a license issued by the commissioner of Labor in accordance with this article.

(b) A person licensed under this article must shall:

(1) Have in his or her possession a copy of the license issued pursuant to this article on any job on which he or she is performing elevator mechanic work; and

(2) Be, or be employed by, a contractor licensed pursuant to the provisions of article eleven, chapter twenty-one of this code unless the work is performed by a historic resort hotel’s regular employees, for which the employees are paid regular wages and not a contract price, on property owned or leased by the historic resort hotel which is not intended for speculative sale or lease;

(1) Complete a four-year apprenticeship program, registered by the United States Department of Labor, qualifying for a commercial license;

(2) Complete a two-year apprenticeship program, registered by the United States Department of Labor, qualifying for an accessibility license.

(3)Complete a certified apprenticeship program, registered by the United States Department of Labor established at a historic resort hotel, qualifying for a limited technician license. A person holding a limited technician license may only perform work at a historic resort hotel.

(d) For the purposes of this section, “historic resort hotel” has the same meaning ascribed to it in section two [§ 29-25-2], article twenty-five, chapter twenty-nine of this code.

(1) To obtain an elevator mechanic’s license, a person shall:

(A) Successfully complete educational programs that are registered with the Bureau of Apprenticeship and Training of the United States Department of Labor, including all required examinations and work experience: Provided, That if an applicant successfully completes such educational program prior to being registered with the Bureau of Apprenticeship and Training of the United States Department of Labor, the division may grant a license to the applicant after he or she demonstrates to the commissioner that he or she has successfully completed all the test and work experience requirements; or

(B) (i) Provide to the commissioner an acceptable combination of documented experience and educational credits of not less than four years of recent and active experience in the elevator industry in construction, maintenance, or service/repair or any combination thereof, as verified by current and previous employers listed to do business in this state, on a sworn affidavit; and

(ii) Obtain a score of 70% or better on a written competency examination approved or provided by the division.

(2) A licensed elevator mechanic may work on all elevators covered by this article.

(d) Accessibility technician license. --

(1) To obtain an accessibility technician’s license a person shall:

(A) Provide to the commissioner a certificate of completion of an accessibility training program for the elevator industry such as the Certified Accessibility Training (CAT) program by the National Association of Elevator Contractors, or an equivalent nationally recognized training program; or

(B) (i) Have at least eighteen months experience in the construction, maintenance, service and repair, or any combination thereof, as verified by current and previous employers, licensed to do business in this state, on a sworn affidavit, of accessibility lifts;

(ii) Have at least one year of documented vocational training and/or an associate degree in a related field; and

(iii) Obtain a score of 70% or better on a written competency examination approved or provided by the commissioner.

(2) A person holding an accessibility technician license may only perform work on accessibility equipment.. . . . . . . . . .

(3) A person holding an accessibility technician license may obtain a limited use/limited application (LULA) elevator endorsement. To obtain the LULA elevator endorsement, such person shall:

(A) (i) Hold a current accessibility technician license;

(ii) Provide the commissioner with a certificate of LULA manufacturer’s training; and

(iii) Provide at least one year of documented work experience to the commissioner, on a sworn affidavit, in the construction, maintenance, service and repair of LULA elevators and comparable equipment, which was completed under the supervision of a licensed accessibility technician; or

(B) As of July 1, 2012, have at least eighteen months of accessibility technician’s experience in construction, maintenance, service and repair, or any combination thereof, as verified by current and previous employers, licensed to do business in this state, on a sworn affidavit: Provided, That an additional one year of documented work as an accessibility technician with certification of manufacturer's factory training, is required before a LULA endorsement may be obtained.

(4) Any person carrying an accessibility license as of July 1, 2012, shall receive the required endorsement to continue to work on this type of equipment, and will be qualified to supervise future applicants as described in this section.

(e) Limited technician license. --

(1) To obtain a limited technician’s license an applicant shall:

(A) Complete a certified apprenticeship program, registered by the United States Department of Labor established at a historic resort hotel, qualifying for a limited technician license; or

(B) Provide an acceptable combination of documented experience, and educational credits of not less than three years of recent and active experience in the elevator industry, in maintenance, or service/repair or any combination thereof, as verified by current and previous employers authorized to do business in this state, on a sworn affidavit; and obtain a score of 70% or better on a written competency examination approved or provided by the division.

(2) A person holding a limited technician license may only perform work at a historic resort hotel: Provided; That for purposes of this section, “historic resort hotel” has the same meaning ascribed to it in section two, article twenty-five, chapter twenty-nine of this code.

(f) Elevator apprentice. --

(e) (1) An elevator apprentice who is enrolled in a an apprenticeship program approved by the commissioner, and who is in good standing in the program, may work under the supervision of a licensed elevator mechanic, as follows:

(1) (A) An apprentice who has not successfully completed the equivalent of at least one year of the program may work only under the direct supervision of a licensed elevator mechanic who is present on the premises and available to the apprentice at all times;.

(1) (B) An apprentice who has successfully completed the equivalent of at least one year of the program may:

(A) (i) Work under the direct supervision of a licensed elevator mechanic as set forth in subdivision (1) of this subsection; and

(B) (ii) Perform the tasks set forth in this paragraph, only if delegated by and performed under the general supervision of a licensed elevator mechanic, who must, at a minimum, meet the apprentice on the job at the beginning of each day to delegate the specific tasks, and who remains responsible for the delegated tasks:

(I) Oiling, cleaning, greasing and painting;

(II) Replacing of combplate teeth;

(III) Reclamping Relamping and fixture maintenance;

(iv) Inspection, cleaning and lubricating of hoistway doors, car tops, bottoms and pits; and

(IV) Observing operation of equipment.

§21-3C-10b. Issuance and renewal of licenses.

(a) Upon approval of a properly completed application for licensure, the commissioner may issue a person a license under the provisions of this article.

(b) The licenses issued under the provisions of this article shall be renewed biennially upon application for renewal on a form prescribed by the commissioner and payment of a fee established by legislative rule.

(c) Upon a proper application for renewal, the commissioner shall renew a license, even if the license holder is unemployed or not working in the industry at the time of renewal: Provided, That before the license holder may engage or offer to engage in the business of erecting, constructing, installing, altering, servicing, repairing, or maintaining an elevator or related conveyance covered by this article, the license holder shall be a contractor, or be employed by a contractor licensed pursuant to the provisions of section ten-a, article eleven, chapter twenty-one of the code.

§21-3C-11. Disposition of fees; legislative rules.

(a) The division shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, for the implementation and enforcement of the provisions of this article, which shall provide:

(1) Standards, qualifications and procedures for submitting applications, taking examinations, and issuing and renewing licenses, certificates of competency and certificates of operation of the three licensure classifications set forth in section ten-a of this article;

(2) For the renewal of a license, even if the licensee is unemployed or not working in the industry: Provided, That to engage or offer to engage in the business of erecting, constructing, installing, altering, servicing, repairing, or maintaining an elevator or related conveyance covered by this article, the licensee shall be a contractor, or be employed by a contractor licensed pursuant to the provisions of section ten-a, article eleven, chapter twenty-one of the code;

(2) (3) Qualifications and supervision requirements for elevator apprentices;

(3) (4) Provisions for the granting of licenses without examination, to applicants who present satisfactory evidence of having the expertise required to perform work as defined in this article and who apply for licensure on or before July 1, 2010: Provided, That if a license issued under the authority of this subsection subsequently lapses, the applicant may, at the discretion of the commissioner, be subject to all licensure requirements, including the examination;

(4) (5) Provisions for the granting of emergency licenses in the event of an emergency due to disaster, act of God or work stoppage when the number of persons in the state holding licenses issued pursuant to this article is insufficient to cope with the emergency;

(5) (6) Provisions for the granting of temporary licenses in the event that there are no elevator mechanics available to engage in the work of an elevator mechanic as defined by this article;

(6) (7) Continuing education requirements;

(7) Reciprocity provisions;

(8) (8) Procedures for investigating complaints and revoking or suspending licenses, certificates of competency and certificates of operation, including appeal procedures;

(9) (9) Fees for testing, issuance and renewal of licenses, certificates of competency and certificates of operation, and other costs necessary to administer the provisions of this article;

(10) (10) Enforcement procedures; and

(11) (11) Any other rules necessary to effectuate the purposes of this article.

(b) The rules proposed for promulgation pursuant to subsection (a) of this section shall establish the amount of any fee authorized pursuant to the provisions of this article: Provided, That in no event may the fees established for the issuance of certificates of operation exceed $50.

(c) All fees collected pursuant to the provisions of this article shall be deposited in an appropriated special revenue account hereby created in the State Treasury known as the “Elevator Safety Fund” and expended for the implementation and enforcement of this article: Provided, That amounts collected which are found from time to time to exceed funds needed for the purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature.

(d) The division may enter into agreements with counties and municipalities whereby such counties and municipalities be permitted to retain the inspection fees collected to support the enforcement activities at the local level.

(e) The commissioner and his or her deputy commissioner or any compliance officer of the division as authorized by the commissioner may consult with engineering authorities and organizations concerned with standard safety codes, rules and regulations governing the operation, maintenance, servicing, construction, alteration, installation and the qualifications which are adequate, reasonable and necessary for the elevator mechanic and inspector.

The bill (Eng. Com. Sub. for H. B. No. 4006), as amended, was then ordered to third reading.

Eng. House Bill No. 4007, Relating to unemployment benefits for certain spouses of military personnel.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4015, Creating the Herbert Henderson Office of Minority Affairs.

On second reading, coming up in regular order, was read a second time.

At the request of Senator Snyder, as chair of the Committee on Government Organization, and by unanimous consent, the unreported Government Organization committee amendment to the bill was withdrawn.

The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:

By striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 26. HERBERT HENDERSON OFFICE OF MINORITY AFFAIRS.

§5-26-1. Herbert Henderson Office of Minority Affairs created; duties and responsibilities.

(a) There is hereby created the Herbert Henderson Office of Minority Affairs within the office of the Governor. The office shall be charged with the following responsibilities and duties:

(1) Provide a forum for discussion of issues that affect the state’s minorities;

(2) Identify and promote best practices in the provision of programs and services to minorities;

(3) Review information and research that can inform state policy as to the delivery of programs and services to minorities;

(4) Make recommendations in areas of policy and allocation of resources;

(5) Apply for grants, and accept gifts from private and public sources for research to improve and enhance minority affairs;

(6) Integrate and coordinate state grant and loan programs established specifically for minority related issues;

(7) Award grants, loans and loan guaranties for minority affairs programs and activities in this state if such funds are available from grants or gifts from public or private sources;

(8) Identify other state and local agencies and programs that provide services or assistance to minorities;

(9) Establish the appropriate program linkages with related federal, state and local agencies and programs including, but not limited to, the Office of Minority Health located within the Department of Health and Human Resources and the Economic Development Authority established pursuant to article fifteen, chapter 31 of this Code; and

(10) Provide recommendations to the Governor and the Legislature regarding the most appropriate means to provide programs and services to support minority groups in the state.

(b) On or before the first day of January of each year, the office shall submit a report to the Governor and the Joint Committee on Government and Finance. The report may include, but is not limited to, findings and recommendations regarding:

(1) The extent to which programs and services for minorities are available in the state, and to which funding for providing those programs and services is available;

(2) The most appropriate means for the planning, delivery and evaluation of existing and needed programs and services for minority groups in the manner that best promotes diversity and regional, cultural and ethnic sensitivity;

(3) Recommendations for the coordination of programs and services to minority groups throughout the state and with those of other states and the federal government;

(4) Identifications of governmental and private agencies, offices, departments or other entities in existence or recommended for creation that would, alone or in concert, most effectively improve the delivery of programs and services to minority groups throughout the state;

(5) Recommendations for changes to law that would facilitate the achievement of the objectives of the office; and

(6) Such other matters as the office may determine appropriate to its purposes.

(c) The Governor shall appoint an executive director of the office to carry out its functions, and shall provide funding and offices for those purposes. The executive director shall serve at the will and pleasure of the Governor.

(d) The executive director may hire one administrative assistant to assist in carrying out the functions of the office.

§5-26-2. Minority Affairs Fund created; purpose.

There is hereby created in the State Treasury a Special Revenue Fund to be known as the “Minority Affairs Fund,” which shall consist of all gifts, grants, bequests, transfers, appropriations or other donations or payments received by the Herbert Henderson Office of Minority Affairs from any governmental entity or unit or any person, firm, foundation or corporation for the purposes of this article and all interest or other return earned from investment of the fund. Expenditures from the fund shall be made by the Executive Director of the Herbert Henderson Office of Minority Affairs to provide matching funds to obtain federal funds for the delivery of programs and services to minorities in this state, to award grants, loans and loan guaranties for minority affairs programs and activities and for performance of the duties of the office prescribed in this article. Expenditures from the fund shall be for the purposes set forth in this article and 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 two, chapter twelve of this code and upon the fulfillment of the provisions of article two, chapter eleven-b of this code.

The bill (Eng. Com. Sub. for H. B. No. 4015), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4053, Relating to abduction, kidnapping and human trafficking.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

By striking out everything after the enacting clause and inserting in lieu thereof the following:

That §30-29-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding a new section, designated §61-2-17, all to read as follows:

CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 29. LAW-ENFORCEMENT TRAINING AND CERTIFICATION.

§30-29-3. Duties of the Governor's committee and the subcommittee.

(a) Upon recommendation of the subcommittee, the Governor's committee shall, by or pursuant to rules proposed for legislative approval in accordance with article three, chapter twenty-nine-a of this code:

(a) (1) Provide funding for the establishment and support of law-enforcement training academies in the state;

(b) (2) Establish standards governing the establishment and operation of the law-enforcement training academies, including regional locations throughout the state, in order to provide access to each law-enforcement agency in the state in accordance with available funds;

(d) (4) Certify qualified law-enforcement instructors;

(e) (5) Maintain a list of approved law-enforcement instructors;

(f) (6) Promulgate standards governing the qualification of law-enforcement officers and the entry-level law-enforcement training curricula. These standards shall require satisfactory completion of a minimum of four hundred classroom hours, shall provide for credit to be given for relevant classroom hours earned pursuant to training other than training at an established law-enforcement training academy if earned within five years immediately preceding the date of application for certification, and shall provide that the required classroom hours can be accumulated on the basis of a part-time curricula spanning no more than twelve months, or a full-time curricula;

(g) (7) Establish standards governing in-service law-enforcement officer training curricula and in-service supervisory level training curricula;

(h) (8) Certify organized criminal enterprise investigation techniques with a qualified anti-racial profiling training course or module;

(I) (9) Establish standards governing mandatory training to effectively investigate organized criminal enterprises as defined in article thirteen, chapter sixty-one of this code, while preventing racial profiling, as defined in section ten of this article, for entry level training curricula and for law-enforcement officers who have not received such training as certified by the Governor's committee as required in this section;

(j) (10) Establish, no later than July 1, 2011, procedures for implementation of a course in investigation of organized criminal enterprises which includes an anti-racial training module to be available on the Internet or otherwise to all law-enforcement officers. The procedures shall include the frequency with which a law-enforcement officer shall receive training in investigation of organized criminal enterprises and anti-racial profiling, and a time frame for which all law-enforcement officers must receive such training: Provided, That all law-enforcement officers in this state shall receive such training no later than July 1, 2012. In order to implement and carry out the intent of this section, the Governor's committee may promulgate emergency rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code;

(k) (11) Certify or decertify or reactivate law-enforcement officers, as provided in sections five and eleven of this article;

(l) (12) Establish standards and procedures for the reporting of complaints and certain disciplinary matters concerning law-enforcement officers and for reviewing the certification of law-enforcement officers. These standards and procedures shall provide for preservation of records and access to records by law-enforcement agencies and conditions as to how the information in those records is to be used regarding an officer’s law-enforcement employment by another law enforcement agency;

(1) (A) The subcommittee shall establish and manage a database that is available to all law-enforcement agencies in the state concerning the status of any person’s certification.

(2) (B) Personnel or personal information not resulting in a criminal conviction is exempt from disclosure pursuant to the provisions of chapter twenty-nine-b of this code.

(m) (13) Seek supplemental funding for law-enforcement training academies from sources other than the fees collected pursuant to section four of this article;

(n) (14) Any responsibilities and duties as the Legislature may, from time to time, see fit to direct to the committee; and

(o) (15) Submit, on or before September 30 of each year, to the Governor, and upon request to individual members of the Legislature, a report on its activities during the previous year and an accounting of funds paid into and disbursed from the special revenue account established pursuant to section four of this article.

(b) In addition to the duties authorized and established by this section, the Governor’s committee may:

(1) Establish training to effectively investigate human trafficking offenses as defined in article two, chapter sixty of this code, for entry level training curricula and for law-enforcement officers who have not received such training as certified by the committee as required by this section; and

(2) Establish procedures for the implementation of a course in investigation of human trafficking offenses. The course may include methods of identifying and investigating human trafficking and methods for assisting trafficking victims. In order to implement and carry out the intent of this subdivision, the committee may promulgate emergency rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-17. Human Trafficking; Criminal penalties

(a) As used in this section:

(1) "Debt bondage" means the status or condition of a debtor arising from a pledge by the debtor of the debtor's personal services or those of a person under the debtor's control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined.

(2) "Forced labor or services" means labor or services that are performed or provided by another person and are obtained or maintained through a person’s:

(A) Threat, either implicit or explicit, deception or fraud, scheme, plan, or pattern, or other action intended to cause a person to believe that, if the person did not perform or provide the labor or services that person or another person would suffer serious bodily harm or physical restraint; Provided, That, this does not include work or services provided by a minor to the minor’s parent or legal guardian so long as the legal guardianship or custody of the minor was not obtained for the purpose compelling the minor to participate in commercial sex acts or sexually explicit performance, or perform forced labor or services.

(B) Physically restraining or threatening to physically restrain a person;

(D) Knowingly destroying, concealing, removing, confiscating, or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person.

“Forced labor or services" does not mean labor or services required to be performed by a person in compliance with a court order or as a required condition of probation, parole, or imprisonment.

(3) “Human trafficking” means the labor trafficking or sex trafficking involving adults or minors where two or more persons are trafficked within any one year period.

(4) “Labor trafficking” means the promotion, recruitment, transportation, transfer, harboring, enticement, provision, obtaining, or receipt of a person by any means, whether a United States citizen or foreign national, for the purpose of:

(A) Debt bondage or forced labor or services;

(B) Slavery or practices similar to slavery.

(5) “Sex trafficking of minors” means the promotion, recruitment, transportation, transfer, harboring, enticement, provision, obtaining, or receipt of a person under the age of eighteen by any means, whether a United States citizen or foreign national, for the purpose of causing the minor to engage in sexual acts, or in sexual conduct violating the provisions of subsection (b), section five, article eight of this chapter or article eight-c of this chapter.

(6) “Sex trafficking of adults” means the promotion, recruitment, transportation, transfer, harboring, enticement, provision, obtaining, receipt of a person eighteen years of age or older, whether a United States citizen or foreign national for the purposes of engaging in violations of subsection (b), section five, article eight of this chapter by means of force, threat or deception.

(b) Any person who knowingly and wilfully engages in human trafficking is guilty of a felony and upon conviction shall be incarcerated in a state correctional facility for a determinate sentence of not less than one nor more than fifteen years or fined not more than $200,000, or both.

The bill (Eng. Com. Sub. for H. B. No. 4053), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4070, Changing the basis for paying the county salary supplement equivalent pay rate for division of rehabilitation teachers.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4077, Relating to activities that may be performed by a dental hygienist without a prior exam by a dentist.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Health and Human Resources, was reported by the Clerk and adopted:

On page two, section seventeen, line thirteen, by striking out the word “under” and inserting in lieu thereof the words “subject to”.

The bill (Eng. Com. Sub. for H. B. No. 4077), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4101, Authorizing teacher-in-residence programs for certain prospective teachers in lieu of student teaching.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:

By striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL DEVELOPMENT.

§18A-3-1. Teacher preparation programs; program approval and standards; authority to issue teaching certificates.

(a) The education of professional educators in the state is under the general direction and control of the state board after consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education who shall represent the interests of educator preparation programs within the institutions of higher education in this state as those institutions are defined in section two, article one, chapter eighteen-b of this code.

The education of professional educators in the state includes all programs leading to certification to teach or serve in the public schools including:. The programs include the following:

(1) Those programs Programs in all institutions of higher education, including student teaching and teacher-in-residence programs as provided in this section;

(2) Beginning teacher internship and induction programs;

(3) The granting of Granting West Virginia certification to persons who received their preparation to teach outside the boundaries of this state, except as provided in subsection (b) of this section;

(4) Any alternative Alternative preparation programs in this state leading to certification, including programs established pursuant to the provisions of section one-a of this article and programs which are in effect on the effective date of this section; and

(5) Any continuing Continuing professional education, professional development and in-service training programs for professional educators employed in the public schools in the state.

(b) The state board, after After consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education, the state board shall adopt standards for the education of professional educators in the state and for awarding certificates valid in the public schools of this state. The standards shall include, but are not be limited to the following:

(1) A provision for the study of multicultural education. As used in this section, multicultural education means the study of the pluralistic nature of American society including its values, institutions, organizations, groups, status positions and social roles;

(2) A provision for the study of classroom management techniques, including methods of effective management of disruptive behavior which shall include including societal factors and their impact on student behavior; and

(3) Subject to the provisions of section ten of this article, a A teacher from another state shall be awarded a teaching certificate for a comparable grade level and subject area valid in the public schools of this state, subject to section ten of this article, if he or she has met the following requirements:

(A) Holds a valid teaching certificate or a certificate of eligibility issued by another state;

(B) Has graduated from an educator preparation program at a regionally accredited institution of higher education;

(D) Meets all of the requirements of the state for full certification except employment.

(c) To give prospective teachers the teaching experience needed to demonstrate competence as a prerequisite to certification to teach in the West Virginia public schools, The state board may enter into an agreement with county boards for the use of the public schools in order to give prospective teachers the teaching experience needed to demonstrate competence as a prerequisite to certification to teach in the West Virginia public schools.

(d) An agreement established pursuant to subsection (c) of this section shall recognize student teaching as a joint responsibility of the educator preparation institution and the cooperating public schools. and The agreement shall include the following items:

(1) The minimum qualifications for the employment of public school teachers selected as supervising teachers, including the requirement that field-based and clinical experiences be supervised by a teacher fully certified in the state in which that teacher is supervising;

(2) The remuneration to be paid to public school teachers by the state board, in addition to their contractual salaries, for supervising student teachers;

(3) Minimum standards to guarantee the adequacy of the facilities and program of the public school selected for student teaching;

(4) Assurance that the student teacher, under the direction and supervision of the supervising teacher, shall exercise the authority of a substitute teacher; and

(5) A provision requiring any higher education institution with an educator preparation program to document that the student teacher’s field-based and clinical experiences include participation and instruction with multicultural, at-risk and exceptional children at each programmatic level for which the student teacher seeks certification;

(6) A provision authorizing a school or school district that has implemented a comprehensive beginning teacher induction program, to enter into an agreement that provides for the training and supervision of student teachers consistent with the educational objectives of this subsection by using an alternate structure implemented for the support, supervision and mentoring of beginning teachers. The agreement is in lieu of any specific provisions of this subsection and is subject to the approval of the state board.

(e) Teacher-in-residence programs. --

(1) In lieu of the provisions of subsections (c) and (d) of this section and subject to approval of the state board, an institution of higher education with a program for the education of professional educators in the state approved by the state board may enter into an agreement with county boards for the use of teacher-in-residence programs in the public schools.

(2) A “teacher-in-residence program” means an intensively supervised and mentored residency program for prospective teachers during their senior year that refines their professional practice skills and helps them gain the teaching experience needed to demonstrate competence as a prerequisite to certification to teach in the West Virginia public schools.

(3) The authorization for the higher education institution and the county board to implement a teacher-in-residence program is subject to state board approval. The provisions of the agreement include, but are not limited to, the following items:

(A) A requirement that the prospective teacher in a teacher-in-residence program shall have completed the content area preparation courses and shall have passed the appropriate basic skills and subject matter test or tests required by the state board for teachers to become certified in the area for which licensure is sought;

(B) A requirement that the teacher-in-residence serve only in a teaching position in the county which has been posted and for which no other teacher fully certified for the position has been employed;

(C) Specifics regarding the program of instruction for the teacher-in-residence setting forth the responsibilities for supervision and mentoring by the higher education institution’s educator preparation program, the school principal, and peer teachers and mentors, and the responsibilities for the formal instruction or professional development necessary for the teacher-in-residence to perfect his or her professional practice skills. The program also may include other instructional items as considered appropriate.

(D) A requirement that the teacher-in-residence hold a teacher-in-residence permit qualifying the individual to teach in his or her assigned position as the teacher of record;

(E) A requirement that the salary and benefit costs for the position to which the teacher-in-residence is assigned shall be used for program support and to pay a stipend to the teacher-in-residence as specified in the agreement.

(i) The total salary and benefit costs are calculated based on the state minimum salary schedule established in section two, article four of this chapter at the rate for a teacher with a bachelor’s degree and zero years of experience; and

(ii) The stipend paid to the teacher-in-residence shall be no less than eighty-five percent of the amount calculated pursuant to this paragraph.

(4) Other provisions that may be required by the state board.

(e) (f) Beginning in the fall, two thousand six, – two thousand seven academic term, in In lieu of the student teaching experience in a public school setting required by this section, an institution of higher education may provide an alternate student teaching experience in a nonpublic school setting if the institution of higher education meets the following criteria:

(1) Complies with the provisions of this section;

(2) Has a state board approved educator preparation program; and

(3) Enters into an agreement pursuant to subdivisions (f) and (g) and (h) of this section.

(f) (g) At the discretion of the higher education institution, an agreement for an alternate student teaching experience between an institution of higher education and a nonpublic school shall require that either one of the following:

(1) The student teacher shall complete at least one half of the clinical experience in a public school; or

(2) The educator preparation program shall include a requirement that any student performing student teaching in a nonpublic school shall complete the following:

(A) At least (A) two hundred clock hours of field-based training in a public school; and

(B) A course, which is a component of the institution’s state board approved educator preparation program, that provides information to prospective teachers information that is equivalent to the teaching experience needed to demonstrate competence as a prerequisite to certification to teach in the public schools in West Virginia. The course also shall include instruction on at least the following elements:

(i) State board policy and provisions of this code governing public education;

(ii) Requirements for federal and state accountability, including the mandatory reporting of child abuse;

(iii) Federal and state mandated curriculum and assessment requirements, including multicultural education, safe schools and student code of conduct;

(iv) Federal and state regulations for the instruction of exceptional students as defined by the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq.; and

(v) Varied approaches for effective instruction for students who are at-risk.

(g) (h) In addition to the requirements set forth in subsection (f) (g) of this section, an agreement for an alternate student teaching experience between an institution of higher education and a nonpublic school shall include the following:

(1) Require that A requirement that the higher education institution with an educator preparation program shall document that the student teacher’s field-based and clinical experiences include participation and instruction with multicultural, at-risk and exceptional children at each programmatic level for which the student teacher seeks certification; and

(2) Include the The minimum qualifications for the employment of school teachers selected as supervising teachers, including the requirement that field-based and clinical experiences be supervised by a teacher fully certified in the state in which that teacher is supervising.

(h) (i) The state superintendent may issue certificates as provided in section two-a of this article to graduates of educator preparation programs and alternative educator preparation programs approved by the state board. The certificates are issued in accordance with this section and rules adopted by the state board after consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education.

(1) A certificate to teach may be granted only to any a person who is meets the following criteria:

(A) Is a citizen of the United States, except as provided in subdivision (2) of this subsection;

(B) Is of good moral character;

(D) Is at least eighteen years of age on or before October 1, of the year in which his or her certificate is issued.

(2) A permit to teach in the public schools of this state may be granted to a person who is an exchange teacher from a foreign country or an alien person who meets the requirements to teach.

(i) (j) In consultation with the Secretary of Education and the Arts and the Chancellor for Higher Education, institutions of higher education approved for educator preparation may cooperate with each other, with the center for professional development and with one or more county boards to organize and operate centers to provide selected phases of the educator preparation program. The phases include, but are not limited to the following:

(1) Student teaching and teacher-in-residence programs;

(2) Beginning teacher internship and induction programs;

(3) Instruction in methodology; and

(4) Seminar programs for college students, teachers with provisional certification, professional support team members and supervising teachers.

The By mutual agreement, the institutions of higher education, the center for professional development and county boards may, by mutual agreement, budget and expend funds to operate the centers through payments to the appropriate fiscal office of the participating institutions, the center for professional development and the county boards.

(j) (k) The provisions of this section do not require discontinuation of an existing student teacher training center or school which meets the standards of the state board.

(k) (l) All institutions of higher education approved for educator preparation in the 1962-63 school year shall continue to hold that distinction so long as they meet the minimum standards for educator preparation. Nothing in this section infringes upon the rights granted to any institution by charter given according to law previous to the adoption of this code.

(l) Notwithstanding any other provision of this section, nor any other provision of rule, law or this code to the contrary, an institution of higher education may enter into an agreement with a nonpublic school:

(1) For the purposes of this section regarding student teaching;

(2) For the spring, two thousand six academic term only;

(3) If the institution is approved for educator preparation by the state board; and

(4) If the institution had entered into the agreement for that academic term prior to the effective date of this section.

(m) As used in Definitions. – For the purposes of this section, the following words have the meanings ascribed to them unless the context clearly indicates a different meaning:

(1) “Nonpublic school” means a private school, parochial school, church school, school operated by a religious order or other nonpublic school that elects to meet the following conditions:

(A) Comply with the provisions of article twenty-eight, chapter eighteen of this code;

(B) Participate on a voluntary basis in a state operated or state sponsored program provided to such schools this type school pursuant to this section; and

(2) “At-risk” means having a student who has the potential for academic failure, including, but not limited to, the risk of dropping out of school, involvement in delinquent activity or poverty as indicated by free or reduced lunch status; and

(3) “Exceptional child” or “exceptional children” has the meaning ascribed to these terms pursuant to section one, article twenty, chapter eighteen of this code, but does, as used in this section, the terms do not include gifted students.

§18A-3-2a. Certificates valid in the public schools that may be issued by the state superintendent.

In accordance with state board of Education rules for the education of professional educators adopted after consultation with the secretary of education and the arts pursuant to section one of this article and subject to the limitations and conditions of that section, the state superintendent of Schools may issue the following certificates valid in the public schools of the state: Provided, That a certificate shall not be issued to any person who is not a citizen of the United States, is not of good moral character and physically, mentally and emotionally qualified to perform the duties for which the certification would be granted and who has not attained the age of eighteen years on or before October 1, of the year in which the certificate is issued: Provided, however, That an exchange teacher from a foreign country or an alien person who meets the requirements to teach may be granted a permit to teach within the public schools of the state.

Certificates authorized to be issued include:

(1) (a) Professional teaching certificates. --

(1) A professional teaching certificate for teaching in the public schools may be issued to a person who meets the following conditions:

(A) Has Holds at least a bachelor's degree from an accredited institution of higher education in this state, and

(i) Has completed a program for the education of teachers which meets the requirements approved by the state board; of Education or

(ii) Has met equivalent standards at institutions in other states and has passed appropriate state board approved basic skills and subject matter tests or has completed three years of successful experience within the last seven years in the area for which licensure is being sought; or

(B) Has Holds at least a bachelor's degree in a discipline taught in the public schools from an accredited institution of higher education, and

(i) Has passed appropriate state board approved basic skills and subject matter tests; or

(ii) Has completed three years of successful experience within the last seven years in the area for which licensure is being sought; and

(I) Has completed an alternative program for teacher education approved by the state board, and

(II) Is recommended for a certificate by the chairperson of the professional support team of the person's alternative program or in accordance with the provisions of sections one-a and one-b of this article relating to the program, or

(III) Is recommended by the state superintendent based on documentation submitted.

(2) The certificate shall be endorsed to indicate the grade level or levels or areas of specialization in which the person is certified to teach or to serve in the public schools.

(3) The initial professional certificate shall be is issued provisionally for a period of three years from the date of issuance: and

(A) The certificate may be converted to a professional certificate valid for five years subject to successful completion of a beginning teacher internship or induction program, if applicable; or

(B) The certificate may be renewed subject to rules adopted by the state board.

(b) Alternative program teacher certificate. -- An alternative program teacher certificate may be issued to a candidate who is enrolled in an alternative program for the education of teachers in accordance with the provisions of section one-a of this article.

(1) The certificate is valid only for the alternative program position in which the candidate is employed and is subject to enrollment in the program.

(2) The certificate is valid for one year and may be renewed for each of the following two consecutive years only.

(2) (c) Professional administrative certificate. --

(1) A professional administrative certificate, endorsed for serving in the public schools, with specific endorsement as a principal, vocational administrator, supervisor of instructions or superintendent, may be issued to a person who has completed requirements all to be approved by the state board as follows:

(A) For Holds at least a master's degree from an institution of higher education accredited to offer a master's degree; and

(i) Has successfully completed an approved program for administrative certification developed by the state board of Education in cooperation with the governing boards of the university of West Virginia system and the state college system chancellor for higher education, and

(ii) Has successfully completed education and training in evaluation skills through the center for professional development, or equivalent education and training in evaluation skills approved by the state board, and

(iii) Possesses three years of management level experience. Provided, That anyone having received a certificate during the period from August 30, 1990, until the effective date of this bill without having met the above requirements shall complete those requirements within five years after the effective date of this bill: Provided, however, That

(2) Any person serving in the position of dean of students on the effective date of this section shall not be June 4, 1992, is not required to hold a professional administrative certificate. Beginning September 1, 1992,

(3) The initial professional administrative certificate shall be is issued provisionally for a period of five years. This certificate may be converted to a professional administrative certificate valid for five years or renewed, subject to the regulations of the state board.

(3) (d) Paraprofessional certificate. -- A paraprofessional certificate may be issued to a person who meets the following conditions:

(1) Has completed thirty-six semester hours of post-secondary education or its equivalent in subjects directly related to performance of the job, all approved by the state board; and can demonstrate

(2) Demonstrates the proficiencies to perform duties as required of a paraprofessional as defined in section eight, article four of this chapter.

(4) (e) Other certificates; permits. --

(1) Other certificates and permits may be issued, subject to the approval of the state board, to persons who do not qualify for the professional or paraprofessional certificate.

(2) Such certificates or permits shall A certificate or permit may not be given permanent status and persons a person holding such one of these credentials shall meet renewal requirements provided by law and by regulation, unless the state board declares certain of these certificates to be the equivalent of the professional certificate.

(3) Within the category of other certificates and permits, the state superintendent may issue certificates for persons to serve in the public schools as athletic coaches or coaches of other extracurricular activities, coaches whose duties may include the supervision of students, subject to the following limitations:

(A) Such The person shall be is employed under a contract with the county board of education. which

(i) The contract specifies the duties to be performed, which specifies a rate of pay that is equivalent to the rate of pay for professional educators in the district who accept similar duties as extra duty assignments, and which provides for liability insurance associated with the activity; Provided, That such and

(ii) persons shall not be The person holding this certificate is not considered employees an employee of the board for salary and benefit purposes other than as specified in the contract.

(B) A currently employed certified professional educator has not applied for the position; and

(C) such The person completes an orientation program designed and approved in accordance with state board rules. which shall be adopted no later than January 1, 1991

(f) Teacher-In-Residence Permit. --

(1) A teacher-in-residence permit may be issued to a candidate who is enrolled in a teacher-in-residence program in accordance with an agreement between an institution of higher education and a county board. The agreement is developed pursuant to subsection (f), section one of this article and requires approval by the state board.

(2) The permit is valid only for the teacher-in-residence program position in which the candidate is enrolled and is subject to enrollment in the program. The permit is valid for no more than one school year and may not be renewed.

The bill (Eng. Com. Sub. for H. B. No. 4101), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4139, Authorizing miscellaneous agencies and boards to promulgate legislative rules.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

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 Dental Examiners.

The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section eighteen, article four-a, chapter thirty, of this code, modified by the Board of Dental Examiners to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-first day of October, two thousand eleven, relating to the Board of Dental Examiners (fees established by the Board, 5 CSR 3), 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. Dental Licensure Application $185.00;

On page one, subsection 2.8., by striking out all of subsection 2.8. and inserting in lieu thereof a new subsection 2.8. to read as follows:

2.8. Annual Information & Renewal fee for a Dentist $185.00;

On page one, subsection 4.1., by striking out all of subsection 4.1. and inserting in lieu thereof a new subsection 4.1. to read as follows:

4.1. Dental Hygiene Licensure Application $75.00;

On page two, subsection 4.7., by striking out all of subsection 4.7. and inserting in lieu thereof a new subsection 4.7. to read as follows:

4.7. Annual Information & Renewal fee for a Dental Hygienist $75.00;

On page two, subsections 4.8. through 4.15., by striking out all of subsections 4.8. through 4.15. and inserting in lieu thereof new subsections, designated subsections 4.8. through subsection 4.16. to read as follows:

4.8 Annual Information & Renewal fee for a Dental Hygienist employed by a public health agency $65.00

4.9. Local Anesthesia Certificate Application fee $50.00

4.10. Nitrous Oxide Monitoring Certificate Application fee $50.00

4.11. Bleaching Certificate Application fee $25.00

4.12. General Supervision Application fee $100.00

4.13. Public Health Practice Application fee $25.00

4.14. Annual Renewal fee of Local Anesthesia Certificate $25.00

4.15. Annual Renewal fee of General Supervision Certificate $50.00

4.16. Annual Renewal fee of Public Health Practice Certificate $25.00;

On page two, subsection 7.2., by striking out all of subsection 7.2. and inserting in lieu thereof a new subsection 7.2. to read as follows:

7.2. Class Two Certification Renewal Fee $15.00;

And,

On page two, subsection 7.6., by striking out all of subsection 7.6. and inserting in lieu thereof a new subsection 7.6. to read as follows:

7.6. Qualified Monitor Annual Renewal Fee $25.00;

§64-9-2. Board of Accountancy.

The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand eleven, authorized under the authority of section five, article nine, chapter thirty of this code, relating to the Board of Accountancy (the Board and rules of professional conduct, 1 CSR 1), is authorized.

§64-9-3. Massage Therapy Licensure Board.

(a) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section six, article thirty-seven, chapter thirty, of this code, relating to the Massage Therapy Licensure Board (general provisions, 194 CSR 1), is authorized.

(b) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section six, article thirty-seven, chapter thirty, of this code, relating to the Massage Therapy Licensure Board (schedule of fees, 194 CSR 4), is authorized, with the following amendment:

On page 1, at the end of the rule, by adding thereto a new section, designated section 3, to read as follows:

“§194-4-3. Expiration of fee increases.

The fee increases enacted by emergency rule in 2011 and by legislative rule in 2012 will expire as of July 1, 2014.”

§64-9-4. Board of Medicine.

The legislative rule filed in the State Register on the twelfth day of July, two thousand eleven, authorized under the authority of section fifteen, article three, chapter thirty, of this code, relating to the Board of Medicine (formation and approval of professional limited liability companies, 11 CSR 7), is authorized.

§64-9-5. Human Rights Commission.

The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section eight, article eleven, chapter five of this code, relating to the Human Rights Commission (housing discrimination against persons with disabilities who utilize assistance animals, 77 CSR 9), is authorized.

§64-9-6. Auditor.

The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section ten-c, article three, chapter twelve, of this code, relating to the State Auditor (transaction fee and rate structure, 155 CSR 4), is authorized, with the following amendment:

On page one, section three, by striking out all of subsection 3.1 and inserting in lieu thereof the following:

“3.1. The transaction fee structure and rate shall be in compliance with the following federal Office of Management and Budget Circulars and provisions of the Code of Federal Regulations: Circular No. A-21, “Cost Principles for Educational Institutions” as amended August 29, 1997 May 10, 2004; 2CFR Part 225: Circular No. A-87, “Cost Principles for State, Local, and Indian Tribal Governments” as amended August 29, 1997 August 31, 2005; and Circular A-110, “Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and other Non-Profit Organizations” as amended August 29, 1997 September 30, 1999”.

§64-9-7. Department of Agriculture.

(a) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand eleven, 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.

(b) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section four, article one, 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 the nineteenth day of October, two thousand eleven, relating to the Commissioner of Agriculture (labeling of imported honey, honey products or honey bee by-products and adulterated honey, honey products or honey bee by-products, 61 CSR 2A), is authorized.

(c) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section twelve, article fifteen, chapter nineteen, of this code, modified by the Department of Agriculture to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the nineteenth day of October, two thousand eleven, relating to the Commissioner of Agriculture (nutrient management certification, 61 CSR 6D), is authorized.

§64-9-8. Board of Barbers & Cosmetologists.

(a) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section six, article twenty-seven, chapter thirty, of this code, 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.

(b) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, 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 the twentieth day of September, two thousand eleven, relating to the Board of Barbers and Cosmetologists (licensing schools of barbering and beauty culture, 3 CSR 3), is authorized.

(c) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section eleven-a, article twenty-seven, chapter thirty, of this code, relating to the Board of Barbers and Cosmetologists (shampoo assistants, 3 CSR 8), is authorized.

§64-9-9. Courthouse Facilities Improvement Authority.

The legislative rule filed in the State Register on the first day of September, two thousand eleven, authorized under the authority of section three, article twenty-six, chapter twenty-nine, of this code, modified by the Courthouse Facilities Improvement Authority to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the eleventh day of January, two thousand twelve, relating to the Courthouse Facilities Improvement Authority (Courthouse Facilities Improvement Fund, 203 CSR 1), is authorized.

§64-9-10. Secretary of State.

(a) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section three, article three-a, chapter three, of this code, modified by the Secretary of State to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-third day of December, two thousand eleven, relating to the Secretary of State (Vote-by-Mail Pilot Project Phase 2: Voting by Mail, 153 CSR 39), is authorized.

(b) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of three, article three-a, chapter three, of this code, modified by the Secretary of State to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twelfth day of January, two thousand twelve, relating to the Secretary of State (general management and preservation of state records, 153 CSR 42), is authorized, with the following amendment:

On page one, subsection 1.5, line ten, following the words “record-keeping systems”, by inserting the words “for essential public records created or filed with the West Virginia Secretary of State”;

On page four, subsection 3.1, line twelve, following the words “Archives and History”, by striking out the word “division” and inserting in lieu thereof the word “section”;

On page four, subsection 3.2a, line fourteen, following the words “Culture and History”, by inserting a comma and the words “Archives and History section”;

And

On page four, subsection 3.2d, line twenty-five, following the words “Director of Archives”, by inserting the words “and History”.

§64-9-11. Board of Professional Surveyors.

The legislative rule filed in the State Register on the twelfth day of July, two thousand eleven, authorized under the authority of section six, article thirteen-a, chapter thirty, of this code, modified by the Board of Professional Surveyors to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-first day of November, two thousand eleven, relating to the Board of Professional Surveyors (examination and licensing of professional surveyors in West Virginia, 23 CSR 1), is authorized.

§64-9-12. Nursing Home Administrators Licensing Board.

The legislative rule filed in the State Register on the twenty-eighth day of March, two thousand eleven, authorized under the authority of section six, article twenty-five, chapter thirty, of this code, modified by the Nursing Home Administrators Licensing Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the eighteenth day of October, two thousand eleven, relating to the Nursing Home Administrators Licensing Board (nursing home administrators, 21 CSR 1), is authorized.

§64-9-13. Board of Occupational Therapy.

The legislative rule filed in the State Register on the fourteenth day of July, two thousand eleven, authorized under the authority of section seven, article twenty-eight, chapter thirty, of this code, relating to the Board of Occupational Therapy (fees for services rendered by the Board, 13 CSR 3), is authorized.

§64-9-14. Board of Osteopathy.

The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand eleven, authorized under the authority of section four, article one, chapter thirty, of this code, relating to the Board of Osteopathy (licensing procedures for osteopathic physicians, 24 CSR 1), is authorized.

§64-9-15. Board of Pharmacy.

(a) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section three hundred one, article three, chapter sixty-a, of this code, relating to the Board of Pharmacy (Uniform Controlled Substances Act, 15 CSR 2), is authorized with the following amendment:

On page twenty three, subdivision 7.10.1., by striking out the word “full” and inserting in lieu thereof the word “fill”.

(b) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section three-a, article five, chapter thirty, of this code, relating to the Board of Pharmacy (continuing education for licensure of pharmacists, 15 CSR 3), is authorized.

(c) The legislative rule filed in the State Register on the twenty-ninth day of July, two thousand eleven, authorized under the authority of section nine, article eight, chapter sixty-a, of this code, relating to the Board of Pharmacy (licensure of wholesale drug distributors, 15 CSR 5), is authorized with the following amendment:

On page three, subsection 3.1, after the words “prescription drugs.” by adding the following: Notwithstanding the provisions of W. Va. Code §60A-8-7, the fee for a license for the wholesale distribution of drugs is $750.00.

(d) The legislative rule filed in the State Register on the ninth day of December, two thousand eleven, authorized under the authority of section thirty, article five, chapter thirty, of this code, relating to the Board of Pharmacy (immunizations administered by pharmacists, 15 CSR 12), is authorized.

The bill (Eng. Com. Sub. for H. B. No. 4139), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4142, Authorizing the Department of Administration to promulgate legislative rules.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

By striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 2. AUTHORIZATION FOR DEPARTMENT OF ADMINISTRATION TO PROMULGATE LEGISLATIVE RULES.

§64-2-1. Department of Administration.

The legislative rule filed in the State Register on the fifteenth day of July, two thousand eleven, authorized under the authority of section fifty-nine, article three, chapter five-a, of this code, modified by the Department of Administration to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the nineteenth day of September, two thousand eleven, relating to the Department of Administration (certification for small, women and minority-owned businesses, 148 CSR 22), is authorized.

§64-2-2. Consolidated Public Retirement Board.

(a) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand eleven, authorized under the authority of section one, article ten-d, chapter five, of this code, modified by the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-third day of September, two thousand eleven, relating to the Consolidated Public Retirement Board (Public Employees Retirement System, 162 CSR 5), is authorized, with the following amendment:

On page three, section eight, subsection 8.1, after the words “fourteen and five-tenths (14.5%) of each compensation payment of all its employees who are members of the Public Employees Retirement System” by changing the period to a colon and inserting the following: “And provided further, that beginning July 1, 2012, each participating public employer shall contribute fourteen percent (14%) of each compensation payment of all its employees who are members of the Public Employees Retirement System.”

(b) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand eleven, authorized under the authority of section one, article ten-d, chapter five, of this code, relating to the Consolidated Public Retirement Board (refund, reinstatement, retroactive service, loan and employer error interest factors, 162 CSR 7), is authorized.

(c) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand eleven, authorized under the authority of section one, article ten-d, chapter five, of this code, relating to the Consolidated Public Retirement Board (West Virginia State Police, 162 CSR 9), is authorized, with the following amendment:

On page eight, section fourteen, subsection 14.1, line 10, after the words “seventeen and five-tenths (17.5%) of the monthly salary of each member of the West Virginia State Police Retirement System to the West Virginia State Police Retirement System” by changing the period to a colon and inserting the following: “And provided further, that beginning July 1, 2012, the West Virginia State Police shall contribute fifteen and five-tenths percent (15.5%) of the monthly salary of each member of the West Virginia State Police Retirement System to the West Virginia State Police Retirement System.”

§64-2-3. Division of Personnel.

(a) The legislative rule filed in the State Register on the twenty-second day of July, two thousand eleven, authorized under the authority of section ten, article six, chapter twenty-nine, of this code, modified by the Division of Personnel to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the eighteenth day of November, two thousand eleven, relating to the Division of Personnel(administrative rule of the West Virginia Division of Personnel, 143 CSR 1), is authorized, with the following amendments:

On page 10, line 3, by striking out the subsection designation “3.80” and inserting in lieu thereof the subsection designation “3.81”, and re-designating the remaining subsections accordingly;

On page forty-six, subdivision 12.4.(i), after the words “after layoff shall” by inserting the word “not”;

On page seventy, after subdivision 21.3.(b), by inserting a new section, designated section 22, to read as follows:

Section. Grievance Procedure

An employee hired for permanent employment may file a grievance with the West Virginia Public Employees Grievance Board as provided in W. Va. Code §6C-2-1 et seq.;

And,

By renumbering the remaining sections.

(b) The legislative rule filed in the State Register on the twenty-second day of July, two thousand eleven, authorized under the authority of section one, article four, chapter twenty-three, of this code, modified by the Division of Personnel to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the eighteenth day of November, two thousand eleven, relating to the Division of Personnel (Workers’ Compensation temporary total disability, 143 CSR 3), is authorized.

The bill (Eng. Com. Sub. for H. B. No. 4142), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4256, Relating to captive insurance.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4257, Providing late voter registration opportunities to individuals covered by the Uniformed and Overseas Citizens Act of 1986.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:

By striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 2. REGISTRATION OF VOTERS.

§3-2-6a. Extended time for certain persons to register in person.

(a) Notwithstanding the provisions of section six of this article, the following persons are entitled to register to vote, in person, at the office of the clerk of the county commission up to, but not including, the day of the election:

(1) Any member of a uniformed service of the United States, as defined in 42 U. S. C. §1973ff-6 (7), who is on active duty;

(2) Any member of a uniformed service of the United States, as defined in 42 U. S. C. §1973ff-6 (7), who is discharged from active duty during the sixty days immediately preceding the election;

(3) Any member of the Merchant Marine of the United States;

(4) Any person residing outside the country by virtue of his or her employment in support of our active duty armed services and presents appropriate documentation of such employment as prescribed by the Secretary of State; and

(5) Any spouse or dependent residing with a person listed in subdivisions (1), (2), (3) or (4) of this subsection.

(b) The provisions of subsection (a) apply only to those persons who are otherwise qualified to register and who, by reason of such active duty or temporary overseas residency:

(1) Are normally absent from the county in which they reside; or

(2) Have been absent from such county and returned to reside there during the twenty-one days immediately preceding the election.

(c) A person qualifying and registering to vote pursuant to this section, after the close of voter registration set forth in section six, article two of this chapter, shall be required to cast a provisional ballot and that provisional ballot shall be counted during the canvass of the election, unless the voter is determined by the Clerk of the County Commission to otherwise fail to meet the eligibility requirements for voter registration.

(d) The Secretary of State shall prescribe procedures for the addition of persons registered under this section to the lists of registered voters.

On motion of Senator Wells, the following amendment to the Judiciary committee amendment to the bill was reported by the Clerk and adopted:

On page one, section six-a, subsection (a), subdivision (4), by striking out the words “our active duty armed services” and inserting in lieu thereof the words “national security functions or purpose”.

The question now being on the adoption of the Judiciary committee amendment to the bill, as amended, the same was put and prevailed.

The bill (Eng. Com. Sub. for H. B. No. 4257), as amended, was then ordered to third reading.

Eng. House Bill No. 4274, Expanding the authority of the Commissioner of Banking over regulated consumer lender licensees, and providing a penalty for violations.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4279, Permitting municipalities to stagger the terms of elected officers.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

On page four, section five, lines forty-two through forty-five, by striking out all of subsection (f) and inserting in lieu thereof a new subsection, designated subsection (f), to read as follows:

(f) Municipalities are authorized to stagger and/or change the terms of elected municipal officers. Prior to any changes being made to the terms of elected municipal officers, the procedure to stagger and/or change the terms shall be set by ordinance and must be approved by a majority of the voters.

The bill (Eng. Com. Sub. for H. B. No. 4279), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4281, Increasing the supplemental pay of members of the West Virginia State Police.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. House Bill No. 4315, Permitting a new class IV town or village to select a form of government.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

By striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 2. CREATION OF MUNICIPALITIES.

§8-2-6. Same -- Qualified electors; form of ballot or ballot label; election officials; certification; canvass; declaration of results; recount.

Class I, II, or III city

(a) On the date named in such the notice for the taking of the vote, each qualified elector of the territory sought to be incorporated as a Class I, II, or III city, shall have the right to may cast his or her vote for or against such incorporation at the precinct in which he or she resides, by depositing a ballot in a ballot box, or by use of a voting machine, to be provided by the county court commission for that purpose. Each ballot, or ballot label where voting machines are used, shall be without party designation and shall have written or printed thereon the following words:

□ For Incorporation

□ Against Incorporation

The ballot or ballot label shall be a separate, special ballot or ballot label.

(b) Such The election shall be held and conducted under the supervision of the commissioners and clerks of election appointed by the county court as aforesaid commission and shall be conducted as nearly as may be in accordance with the laws of this state governing general elections. The results of such the election shall be certified as in general elections, and the returns shall be canvassed and the results declared by the county court commission. In the event If any commissioner or clerk designated to serve in said the election shall fail or refuse to serve, such the vacancy may be filled in like manner as vacancies in such the positions are filled in general elections under the laws of this state governing general elections. A recount may be had, as in general elections, upon the party or parties desiring such a recount providing adequate assurance to the county court commission that he or they the party or parties will pay all costs of such the recount.

Class IV town or village

(c) Each qualified elector of the territory sought to be incorporated as a Class IV town or village may cast his or her vote for or against the incorporation at the precinct in which he or she resides, by depositing a ballot in a ballot box or by use of a voting machine to be provided by the county commission for that purpose, on the date named in the notice for the taking of the vote. Each ballot, or ballot label where voting machines are used, shall be without party designation and shall have written or printed thereon the following words:

□ For Incorporation

□ Against Incorporation

The form of governance:

□ Plan I -- “Mayor-Council Plan”

□ Plan II -- “Strong-Mayor Plan”

□ Plan III -- “Manager Plan”

□ Plan IV -- “Manager-Mayor Plan”

The ballot or ballot label shall be a separate, special ballot or ballot label.

(d) The election shall be held and conducted under the supervision of the commissioners and clerks of election appointed by the county commission and shall be conducted as nearly as may be in accordance with the laws of this state governing general elections. The results of the election shall be certified as in general elections, and the returns shall be canvassed and the results declared by the county commission. If any commissioner or clerk designated to serve in the election fails or refuses to serve, the vacancy may be filled in like manner as vacancies in such positions are filled in general elections under the laws of this state governing general elections. A recount may be had, as in general elections, upon the party or parties desiring the recount providing adequate assurance to the county commission that the party or parties will pay all costs of the recount.

§8-2-7. County commission order declaring boundaries of city; certificate of incorporation of town or village; dismissal of proceeding.

(a) Class I, II, or III city. -- If the proceeding be for the incorporation of a city, and it appears to the county court commission, upon the returns being canvassed, that a majority of the legal votes cast on the question of incorporation were in favor of such the incorporation and the court commission is satisfied that all of the applicable provisions of this article have been complied with, the court commission shall by order duly made and entered of record declare that the territory in question (reciting the boundaries) shall thereby become a body corporate, and shall thenceforth be known as the city of ......................, but that until a charter shall be is framed and adopted as provided in article three of this chapter, such the city shall have and exercise no powers of a municipality except the power to frame and adopt a charter as therein provided.

(b) Class IV town or village. -- If the proceeding be for the incorporation of a town or village, and it appears to the county court commission, upon the returns being canvassed, that a majority of the legal votes cast on the question of incorporation were in favor of such the incorporation and the court commission is satisfied that all of the applicable provisions of this article have been complied with, the court commission shall by order duly made and entered of record, direct the clerk of said court the commission to issue a certificate of incorporation in form or in substance as follows:

“It appearing to the court commission that under the provisions of article two, chapter eight of the Code of West Virginia, 1931, as amended, at an election duly held on the ............ day of .............., 19 20......., a majority of the legal votes cast on the question of incorporation by the qualified voters of the following territory, to wit: Beginning, etc. (here recite the boundaries), were cast in favor of the incorporation of the town or village of ............................, in the County of .................., bounded as herein set forth; adopting the ..................... form of government, and it appearing to the satisfaction of the court commission that all of the provisions of article two, chapter eight of the Code of West Virginia, as amended, have been complied with by the petitioners for said incorporation, said the town or village is hereby declared to be a body corporate, duly authorized to exercise all of the corporate powers conferred upon towns or villages by chapter eight of the Code of West Virginia, 1931, as amended, from and after the date of this certificate.

(Signed).........................., Clerk County Court Commission.”

(c) Thereupon, the first election of officers shall be held as provided in sections two, three and four, article five of this chapter.

(d) If, on the returns being canvassed on the question of incorporation, a majority of the legal votes cast be against incorporation, the proceeding shall be dismissed, and no subsequent proceeding for incorporation of the same or any portion of the territory or any portion thereof shall be considered or election thereon had within a period of three years. thereafter.

ARTICLE 3A. GOVERNMENT OF CLASS IV TOWNS OR VILLAGES.

§8-3A-1. Class IV town or village form of government.

In the absence of any charter or official declaration to the contrary, a Class IV town or village shall be the mayor-council form of government, as set out in section two, article three of this chapter. The Class IV town or village form of government may be changed pursuant to the provisions of section two of this article.

§8-3A-2. Changing Class IV town or village form of government.

(a) A Class IV town or village may change its form of government upon the submission of a petition containing the signatures of twenty-five percent of the qualified voters.

(b) After receipt and verification of the petition, the question shall be submitted to the voters of the Class IV town or village at the next general or primary election.

Plan I -- “Mayor-Council Plan”. Under this plan:

(1) There shall be a town or village council, elected at large or by wards, or both at large and by wards, by the qualified voters of the town or village; a mayor elected by the qualified voters of the town or village; and such other elective officers as set by ordinance; and

(2) The mayor and council shall be the governing body and administrative authority.

Plan II -- “Strong-Mayor Plan”. Under this plan:

(1) There shall be a mayor elected by the qualified voters of the town or village; and a town or village council elected at large or by wards, or both at large and by wards, by the qualified voters of the town or village;

(2) The council shall be the governing body;

(3) The mayor shall be the administrative authority; and

(4) Other officers and employees shall be appointed by the mayor or by his or her order in accordance with this chapter, but the appointments by the mayor or by his or her order may be made subject to the approval of the council.

Plan III -- “Manager Plan”. Under this plan:

(1) There shall be a council of not less than five nor more than eleven members, elected either at large or from the geographical districts as may be established by ordinance, or partly at large and partly from the geographical districts, and the ordinance may empower the council to change the geographical districts without amending the ordinance: Provided, That the change of these districts may not take effect during the terms of office of the members of the council making the change;

(2) There shall be a mayor elected by the council from among its membership who shall serve as the presiding officer of the council; and a town or village manager who shall be appointed by the council;

(3) The council shall be the governing body; and

(4) The manager shall be the administrative authority and shall manage the affairs of the town or village under the supervision of the council and shall be responsible to the council. The manager shall appoint or employ, in accordance with this chapter, all subordinates and employees for whose duties or work the manager is responsible to the council.

Plan IV -- “Manager-Mayor Plan”. Under this plan:

(1) There shall be a council of not less than five nor more than eleven members, elected either at large or from the geographical districts as may be established by ordinance, or partly at large and partly from the geographical districts, and the ordinance may empower the council to change these geographical districts without amending the ordinance: Provided, That the change of these geographical districts may not take effect during the terms of office of the members of the council making the change;

(2) There shall be a mayor elected at large by the qualified voters of the town or village as may be established by the ordinance, who shall serve as a member and the presiding officer of the council; and a town or village manager who shall be appointed by the council;

(3) The council shall be the governing body; and

The bill (Eng. H. B. No. 4315), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4327, Requiring pulse oximetry testing for newborns.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4390, Uniform Power of Attorney Act.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

By striking out everything after the enacting section and inserting in lieu thereof the following:

CHAPTER 39B. UNIFORM POWER OF ATTORNEY ACT.

ARTICLE 1. GENERAL PROVISIONS.

§39B-1-101. Short title.

This chapter may be cited as the Uniform Power of Attorney Act, and is cited in this chapter as “this act”.

§39B-1-102. Definitions.

In this act:

(1) “Agent” means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact or otherwise. The term includes an original agent, coagent, successor agent and a person to which an agent’s authority is delegated.

(2) “Durable”, with respect to a power of attorney means not terminated by the principal’s incapacity.

(3) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.

(4) “Good faith” means honesty in fact.

(5) “Incapacity” means inability of an individual to manage property or business affairs because the individual:

(A) Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or

(B) Is:

(i) Detained, including incarcerated in a penal system; or

(ii) Outside the United States and unable to return.

(6) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality or any other legal or commercial entity.

(7) “Power of attorney” means a writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used.

(8) “Presently exercisable general power of appointment”, with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal’s estate, the principal’s creditors or the creditors of the principal’s estate. The term includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard or the passage of the specified period. The term does not include a power exercisable in a fiduciary capacity or only by will.

(9) “Principal” means an individual who grants authority to an agent in a power of attorney.

(10) “Property” means anything that may be the subject of ownership, whether real or personal, or legal or equitable or any interest or right therein.

(11) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(12) “Sign” means, with present intent to authenticate or adopt a record:

(A) To execute or adopt a tangible symbol; or

(B) To attach to or logically associate with the record an electronic sound, symbol or process.

(13) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

(14) “Stocks and bonds” means stocks, bonds, mutual funds and all other types of securities and financial instruments, whether held directly, indirectly or in any other manner. The term does not include commodity futures contracts and call or put options on stocks or stock indexes.

§39B-1-103. Applicability.

This act applies to all powers of attorney except:

(1) A power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction;

(2) A power to make health-care decisions;

(3) A proxy or other delegation to exercise voting rights or management rights with respect to an entity; and

(4) A power created on a form prescribed by a government or governmental subdivision, agency or instrumentality for a governmental purpose.

§39B-1-104. Power of attorney is durable.

A power of attorney created under this act is durable unless it expressly provides that it is terminated by the incapacity of the principal.

§39B-1-105. Execution of power of attorney.

A power of attorney must be signed by the principal or in the principal’s conscious presence by another individual directed by the principal to sign the principal’s name on the power of attorney and must be acknowledged by the principal before a notary public or other individual authorized by law to take acknowledgments.

§39B-1-106. Validity of power of attorney.

(a) A power of attorney executed in this state on or after the effective date of this act, is valid if its execution complies with section one hundred five of this article.

(b) A power of attorney executed in this state before the effective date of this act, is valid if its execution complied with the law of this state as it existed at the time of execution.

(c) A power of attorney executed other than in this state is valid in this state if, when the power of attorney was executed, the execution complied with:

(1) The law of the jurisdiction that determines the meaning and effect of the power of attorney pursuant to section one hundred seven of this article; or

(2) The requirements for a military power of attorney pursuant to 10 U. S. C. §1044b.

(d) Except as otherwise provided by statute other than this act, a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original.

§39B-1-107. Meaning and effect of power of attorney.

The meaning and effect of a power of attorney is determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.

§39B-1-108. Nomination of conservator or guardian; relation of agent to court-appointed fiduciary.

(a) In a power of attorney, a principal may nominate a conservator of the principal’s estate or guardian of the principal’s person for consideration by the court if protective proceedings for the principal’s estate or person are begun after the principal executes the power of attorney. In the protective proceedings the court shall consider the nomination in accordance with the provisions of section eight, article two, chapter forty-four-a of this code.

(b) If, after a principal executes a power of attorney, a court appoints a conservator of the principal’s estate or other fiduciary charged with the management of some or all of the principal's property, the agent is accountable to the fiduciary as well as to the principal. Unless otherwise ordered by the court making the appointment, the power of attorney and the agent’s authority thereunder terminates upon the appointment.

§39B-1-109. When power of attorney effective.

(a) A power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.

(b) If a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.

(c) If a power of attorney becomes effective upon the principal’s incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney becomes effective upon a determination in a writing or other record by:

(1) A physician or licensed psychologist that the principal is incapacitated within the meaning of section one hundred two (5)(A) of this article; or

(2) An attorney at law, a judge or an appropriate governmental official that the principal is incapacitated within the meaning of section one hundred two (5)(B) of this article.

(d) A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal’s personal representative pursuant to the Health Insurance Portability and Accountability Act, §1171 through §1179 of the Social Security Act, 42 U. S. C. §1320d, and applicable regulations, to obtain access to the principal’s health-care information and communicate with the principal’s health-care provider.

§39B-1-110. Termination of power of attorney or agent’s authority.

(a) A power of attorney terminates when:

(1) The principal dies;

(2) The principal becomes incapacitated, if the power of attorney is not durable;

(3) The principal revokes the power of attorney;

(4) The power of attorney provides that it terminates;

(5) The purpose of the power of attorney is accomplished; or

(6) The principal revokes the agent’s authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.

(b) An agent’s authority terminates when:

(1) The principal revokes the authority;

(2) The agent dies, becomes incapacitated, or resigns;

(3) An action is filed for the dissolution or annulment of the agent’s marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or

(4) The power of attorney terminates.

(c) Unless the power of attorney otherwise provides, an agent’s authority is exercisable until the authority terminates pursuant to this section, notwithstanding a lapse of time since the execution of the power of attorney.

(d) Termination of an agent’s authority or of a power of attorney is not effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.

(e) Incapacity of the principal of a power of attorney that is not durable does not revoke or terminate the power of attorney as to an agent or other person who, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.

(f) The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.

§39B-1-111. Coagents and successor agents.

(a) A principal may designate two or more persons to act as coagents. Unless the power of attorney otherwise provides, each coagent may exercise his or her authority independently and the consent of all coagents is not necessary for the validity of an act or transaction.

(b) A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office or function. Unless the power of attorney otherwise provides, a successor agent:

(1) Has the same authority as that granted to the original agent; and

(2) May not act until all predecessor agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.

(c) Except as otherwise provided in the power of attorney and this act, an agent who does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, is not liable for the actions of the other agent.

(d) An agent who has actual knowledge of a breach or imminent breach of fiduciary duty by another agent has a duty to notify the principal and, if the principal is incapacitated, take any action reasonably appropriate in the circumstances to safeguard the principal’s best interest. An agent who fails to notify the principal or take action as required by this article is liable for the reasonably foreseeable damages that could have been avoided if the agent had notified the principal or taken such action.

§39B-1-112. Reimbursement and compensation of agent.

Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances: Provided, That an agent who is related to the principal as an ancestor, spouse or descendent is not entitled to compensation for services as agent, unless the power of attorney specifically provides for compensation.

§39B-1-113. Agent’s acceptance.

Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.

§39B-1-114. Agent’s duties.

(a) Notwithstanding provisions in the power of attorney, an agent who has accepted appointment shall:

(1) Act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest;

(2) Act in good faith; and

(3) Act only within the scope of authority granted in the power of attorney.

(b) Except as otherwise provided in the power of attorney, an agent who has accepted appointment shall:

(1) Act loyally for the principal’s benefit;

(2) Act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest;

(3) Act with the care, competence and diligence ordinarily exercised by agents in similar circumstances;

(4) Keep a record of all receipts, disbursements and transactions made on behalf of the principal;

(5) Cooperate with a person that has authority to make health-care decisions for the principal to carry out the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’s best interest; and

(6) Attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest based on all relevant factors, including:

(A) The value and nature of the principal’s property;

(B) The principal’s foreseeable obligations and need for maintenance;

(D) Eligibility for a benefit, a program or assistance under a statute or regulation.

(c) An agent that acts in good faith is not liable to any beneficiary of the principal’s estate plan for failure to preserve the plan.

(d) An agent that acts with care, competence and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.

(e) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent’s representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence and diligence under the circumstances.

(f) Absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines.

(g) An agent who exercises authority to delegate to another person the authority granted by the principal or who engages another person on behalf of the principal is not liable for an act, error of judgment or default of that person if the agent exercises care, competence and diligence in selecting and monitoring the person.

(h) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements or transactions conducted on behalf of the principal or provide an accounting unless: ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal or, upon the death of the principal, by the personal representative or successor in interest of the principal’s estate. If so requested, within thirty days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional thirty days. If an agent fails or refuses to comply with the provisions of this section, the court may award the principal or other authorized party requesting the disclosure reimbursement of reasonable attorneys fees and costs incurred.

§39B-1-115. Exoneration of agent.

(a) A provision in a power of attorney relieving an agent of liability for breach of duty is binding on the principal and the principal’s successors in interest except to the extent the provision:

(1) Relieves the agent of liability for breach of duty committed dishonestly, with an improper motive or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or

(2) Was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.

§39B-1-116. Judicial relief.

(a) The following persons may petition a court to construe a power of attorney or review the agent’s conduct and grant appropriate relief:

(1) The principal or the agent;

(2) A guardian, conservator or other fiduciary acting for the principal;

(3) A person authorized to make health-care decisions for the principal;

(4) The principal’s spouse, parent or descendant;

(5) An individual who would qualify as a presumptive heir of the principal;

(6) A person named as a beneficiary to receive any property, benefit or contractual right on the principal’s death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal’s estate;

(7) A governmental agency having regulatory authority to protect the welfare of the principal;

(8) The principal’s caregiver or another person that demonstrates sufficient interest in the principal’s welfare; and

(9) A person asked to accept the power of attorney.

(b) Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent’s authority or the power of attorney.

§39B-1-117. Agent’s liability.

(a) An agent that violates this act is liable to the principal or the principal’s successors in interest for the amount required to:

(1) Restore the value of the principal’s property to what it would have been had the violation not occurred;

(2) Reimburse the principal or the principal’s successors in interest for the attorney’s fees and costs paid on the agent’s behalf out of the principal’s assets;

(3) Reimburse the reasonable attorneys fees and costs incurred by the principal or the principal’s successors in interest in pursuing rectification of the violation by the agent; and

(4) Pay such other amounts, damages, costs or expenses as the court may award.

§39B-1-118. Agent’s resignation; notice.

(a) Unless the power of attorney provides a different method for an agent’s resignation, an agent may resign by giving notice to the principal and, if the principal is incapacitated:

(1) To the conservator or guardian, if one has been appointed for the principal, and a coagent or successor agent; or

(2) If there is no person described in paragraph (1), to:

(A) The principal’s caregiver;

(B) Another person reasonably believed by the agent to have sufficient interest in the principal’s welfare; or

§39B-1-119. Acceptance of and reliance upon acknowledged power of attorney.

(a) For purposes of this section and section one hundred five of this article, “acknowledged” means purportedly verified before a notary public or other individual authorized to take acknowledgments.

(b) A person who in good faith accepts an acknowledged power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under the provisions of section one hundred five of this article that the signature is genuine.

(c) A person who in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid or terminated, that the purported agent’s authority is void, invalid or terminated, or that the agent is exceeding or improperly exercising the agent’s authority may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the agent’s authority were genuine, valid and still in effect, and the agent had not exceeded and had properly exercised the authority except as to a conveyance of interests in real property where the principal has previously filed a notice of termination of the power of attorney in the office of the clerk of the county commission in the county in which the property is located.

(d) A person who is asked to accept an acknowledged power of attorney may request, and rely upon, without further investigation:

(1) An agent’s certification under penalty of perjury of any factual matter concerning the principal, agent or power of attorney;

(2) An English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English; and

(3) An opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.

(e) An English translation or an opinion of counsel requested under this section must be provided at the principal’s expense unless the request is made more than seven business days after the power of attorney is presented for acceptance.

(f) For purposes of this section and the act, a person who conducts activities through employees is without actual knowledge of a fact relating to a power of attorney, a principal or an agent if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact.

§39B-1-120. Liability for refusal to accept acknowledged statutory form power of attorney.

(a) In this section, “statutory form power of attorney” means a power of attorney substantially in the form provided in this act or that meets the requirements for a military power of attorney pursuant to 10 U. S. C. §1044b.

(b) Except as otherwise provided in this section:

(1) A person shall either accept an acknowledged statutory form power of attorney or request a certification, a translation or an opinion of counsel under section one hundred nineteen subsection (d) of this article no later than seven business days after presentation of the power of attorney for acceptance;

(2) If a person requests a certification, a translation, or an opinion of counsel under section one hundred nineteen subsection (d) of this article, the person shall accept the statutory form power of attorney no later than five business days after receipt of the certification, translation or opinion of counsel; and

(3) A person may not require an additional or different form of power of attorney for authority granted in the statutory form power of attorney presented.

(1) The person is not otherwise required to engage in a transaction with the principal in the same circumstances;

(2) Engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal law;

(3) The person has actual knowledge of the termination of the agent’s authority or of the power of attorney before exercise of the power;

(4) A request for a certification, a translation, or an opinion of counsel under section one hundred nineteen subsection (d) of this article is not timely provided;

(5) The person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation or an opinion of counsel under section one hundred nineteen subsection (d) of this article has been requested or provided; or

(6) The person makes, or has actual knowledge that another person has made, a report to the local adult protective services agency stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation or abandonment by the agent or a person acting for or with the agent.

(d) A person who refuses in violation of this section to accept an acknowledged statutory form power of attorney is subject to a court order mandating acceptance of the power of attorney. The court may at its discretion award to the principal or the principal’s agent reasonable attorney’s fees and costs incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of the power of attorney.

§39B-1-121. Principles of law and equity.

Unless displaced by a provision of this act, the principles of law and equity supplement this act.

§39B-1-122. Laws applicable to financial institutions and entities.

This act does not supersede any other law applicable to financial institutions or other entities, and the other law controls if inconsistent with this act.

§39B-1-123. Remedies under other law.

The remedies under this act are not exclusive and do not abrogate any right or remedy under the law of this state other than this act.

ARTICLE 2. AUTHORITY.

§39B-2-101. Authority that requires specific grant; grant of general authority.

(a) An agent under a power of attorney may do the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject to:

(1) Create, amend, revoke or terminate an inter vivos trust;

(2) Make a gift;

(3) Create or change rights of survivorship;

(4) Create or change a beneficiary designation;

(5) Delegate authority granted under the power of attorney;

(6) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;

(7) Exercise fiduciary powers that the principal has authority to delegate; or

(8) Disclaim property, including a power of appointment.

(b) Notwithstanding a grant of authority to do an act described in this section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse or descendant of the principal may not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer or otherwise.

(c) Subject to subsections (a), (b), (d) and (e) of this section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in section one hundred four through section one hundred sixteen of this article.

(d) Unless the power of attorney otherwise provides, a grant of authority to make a gift is subject to the provisions of section on hundred seventeen of this article.

(e) Subject to subsections (a), (b) and (d) of this section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.

(f) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.

(g) An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal had performed the act.

§39B-2-102. Incorporation of authority.

(a) An agent has authority described in this article if the power of attorney refers to general authority with respect to the descriptive term for the subjects stated in section one hundred four through section one hundred seventeen of this article or cites the section in this article in which the authority is described.

(b) A reference in a power of attorney to general authority with respect to the descriptive term for a subject in section one hundred four through section one hundred seventeen of this article or a citation to a section of section one hundred four through section one hundred seventeen of this article incorporates the entire section as if it were set out in full in the power of attorney.

§39B-2-103. Construction of authority generally.

Except as otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in sections one hundred four through one hundred seventeen of this article or that grants to an agent authority to do all acts that a principal could do pursuant to the provisions of section one hundred one subsection (c) of this article, a principal authorizes the agent, with respect to that subject, to:

(1) Demand, receive and obtain by litigation or otherwise, money or another thing of value to which the principal is, may become or claims to be entitled, and conserve, invest, disburse or use anything so received or obtained for the purposes intended;

(2) Contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate, release or modify the contract or another contract made by or on behalf of the principal;

(3) Execute, acknowledge, seal, deliver, file or record any instrument or communication the agent considers desirable to accomplish a purpose of a transaction, including creating at any time a schedule listing some or all of the principal’s property and attaching it to the power of attorney;

(4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in litigation relating to the claim;

(5) Seek on the principal’s behalf the assistance of a court or other governmental agency to carry out an act authorized in the power of attorney;

(6) Engage, compensate and discharge an attorney, accountant, discretionary investment manager, expert witness or other advisor;

(7) Prepare, execute and file a record, report or other document to safeguard or promote the principal’s interest under a statute or rule;

(8) Communicate with any representative or employee of a government or governmental subdivision, agency or instrumentality, on behalf of the principal;

(9) Access communications intended for, and communicate on behalf of the principal, whether by mail, electronic transmission, telephone or other means; and

(10) Do any lawful act with respect to the subject and all property related to the subject.

§39B-2-104. Real property.

(a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to real property authorizes the agent to:

(1) Demand, buy, lease, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject an interest in real property or a right incident to real property;

(2) Sell, exchange, convey with or without covenants, representations, or warranties, quitclaim, release, surrender, retain title for security, encumber, partition, consent to partitioning, subject to an easement or covenant, subdivide, apply for zoning or other governmental permits, plat or consent to platting; develop, grant an option concerning, lease, sublease, contribute to an entity in exchange for an interest in that entity or otherwise grant or dispose of an interest in real property or a right incident to real property;

(3) Pledge or mortgage an interest in real property or right incident to real property as security to borrow money or pay, renew or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

(4) Release, assign, satisfy or enforce by litigation or otherwise a mortgage, deed of trust, conditional sale contract, encumbrance, lien or other claim to real property which exists or is asserted;

(5) Manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:

(A) Insuring against liability or casualty or other loss;

(B) Obtaining or regaining possession of or protecting the interest or right by litigation or otherwise;

(C) Paying, assessing, compromising or contesting taxes or assessments or applying for and receiving refunds in connection with them; and

(D) Purchasing supplies, hiring assistance or labor and making repairs or alterations to the real property;

(6) Use, develop, alter, replace, remove, erect or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;

(7) Participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive, hold and act with respect to stocks and bonds or other property received in a plan of reorganization, including:

(A) Selling or otherwise disposing of them;

(B) Exercising or selling an option, right of conversion or similar right with respect to them; and

(8) Change the form of title of an interest in or right incident to real property; and

(9) Dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.

(b) In order to exercise the powers provided in subdivisions (2), (3), (8) and (9), subsection (a) of this section, or to release or assign an interest in real property as described in subdivision (4), subsection (a) of this section, the power of attorney must first be recorded in the office of the clerk of the county commission in the county in which the property is located.

§39B-2-105. Tangible personal property.

(a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to tangible personal property authorizes the agent to:

(1) Demand, buy, receive or accept as a gift or as security for an extension of credit, or otherwise acquire or reject ownership or possession of tangible personal property or an interest in tangible personal property;

(2) Sell, exchange, convey with or without covenants, representations, or warranties; quitclaim, release, surrender, create a security interest in, grant options concerning, lease, sublease or, otherwise dispose of tangible personal property or an interest in tangible personal property;

(3) Grant a security interest in tangible personal property or an interest in tangible personal property as security to borrow money or pay, renew or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

(4) Release, assign, satisfy or enforce by litigation or otherwise, a security interest, lien or other claim on behalf of the principal, with respect to tangible personal property or an interest in tangible personal property;

(5) Manage or conserve tangible personal property or an interest in tangible personal property on behalf of the principal, including:

(A) Insuring against liability or casualty or other loss;

(B) Obtaining or regaining possession of or protecting the property or interest, by litigation or otherwise;

(C) Paying, assessing, compromising or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments;

(D) Moving the property from place to place;

(E) Storing the property for hire or on a gratuitous bailment; and

(F) Using and making repairs, alterations or improvements to the property; and

(6) Change the form of title of an interest in tangible personal property.

§39B-2-106. Stocks and bonds.

(a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to stocks and bonds authorizes the agent to:

(1) Buy, sell and exchange stocks and bonds;

(2) Establish, continue, modify or terminate an account with respect to stocks and bonds;

(3) Pledge stocks and bonds as security to borrow, pay, renew or extend the time of payment of a debt of the principal;

(4) Receive certificates and other evidences of ownership with respect to stocks and bonds; and

(5) Exercise voting rights with respect to stocks and bonds in person or by proxy, enter into voting trusts and consent to limitations on the right to vote.

§39B-2-107. Commodities and options.

(a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to commodities and options authorizes the agent to:

(1) Buy, sell, exchange, assign, settle and exercise commodity futures contracts and call or put options on stocks or stock indexes traded on a regulated option exchange; and

(2) Establish, continue, modify and terminate option accounts.

§39B-2-108. Banks and other financial institutions.

(a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to banks and other financial institutions authorizes the agent to:

(1) Continue, modify and terminate an account or other banking arrangement made by or on behalf of the principal;

(2) Establish, modify and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm or other financial institution selected by the agent;

(3) Contract for services available from a financial institution, including renting a safe deposit box or space in a vault;

(4) Withdraw, by check, order, electronic funds transfer or otherwise, money or property of the principal deposited with or left in the custody of a financial institution;

(5) Receive statements of account, vouchers, notices and similar documents from a financial institution and act with respect to them;

(6) Enter a safe deposit box or vault and withdraw or add to the contents;

(7) Borrow money and pledge as security personal property of the principal necessary to borrow money or pay, renew or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

(8) Make, assign, draw, endorse, discount, guarantee and negotiate promissory notes, checks, drafts and other negotiable or nonnegotiable paper of the principal or payable to the principal or the principal’s order, transfer money, receive the cash or other proceeds of those transactions, and accept a draft drawn by a person upon the principal and pay it when due;

(9) Receive for the principal and act upon a sight draft, warehouse receipt or other document of title whether tangible or electronic or other negotiable or nonnegotiable instrument;

(10) Apply for, receive and use letters of credit, credit and debit cards, electronic transaction authorizations and traveler’s checks from a financial institution and give an indemnity or other agreement in connection with letters of credit; and

(11) Consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.

§39B-2-109. Operation of entity or business.

(a) Subject to the terms of a document or an agreement governing an entity or an entity ownership interest, and unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to operation of an entity or business authorizes the agent to:

(1) Operate, buy, sell, enlarge, reduce or terminate an ownership interest;

(2) Perform a duty or discharge a liability and exercise in person or by proxy a right, power, privilege or option that the principal has, may have, or claims to have;

(3) Enforce the terms of an ownership agreement;

(4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to litigation to which the principal is a party because of an ownership interest;

(5) Exercise in person or by proxy, or enforce by litigation or otherwise, a right, power, privilege or option the principal has or claims to have as the holder of stocks and bonds;

(6) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to litigation to which the principal is a party concerning stocks and bonds;

(7) With respect to an entity or business owned solely by the principal:

(A) Continue, modify, renegotiate, extend and terminate a contract made by or on behalf of the principal with respect to the entity or business before execution of the power of attorney;

(B) Determine:

(i) The location of its operation;

(ii) The nature and extent of its business;

(iii) The methods of manufacturing, selling, merchandising, financing, accounting and advertising employed in its operation;

(iv) The amount and types of insurance carried; and

(v) The mode of engaging, compensating and dealing with its employees and accountants, attorneys or other advisors;

(C) Change the name or form of organization under which the entity or business is operated and enter into an ownership agreement with other persons to take over all or part of the operation of the entity or business; and

(D) Demand and receive money due or claimed by the principal or on the principal’s behalf in the operation of the entity or business and control and disburse the money in the operation of the entity or business;

(8) Put additional capital into an entity or business in which the principal has an interest;

(9) Join in a plan of reorganization, consolidation, conversion, domestication, or merger of the entity or business;

(10) Sell or liquidate all or part of an entity or business;

(11) Establish the value of an entity or business under a buy-out agreement to which the principal is a party;

(12) Prepare, sign, file and deliver reports, compilations of information, returns or other papers with respect to an entity or business and make related payments; and

(13) Pay, compromise, or contest taxes, assessments, fines or penalties and perform any other act to protect the principal from illegal or unnecessary taxation, assessments, fines or penalties, with respect to an entity or business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney.

§39B-2-110. Insurance and annuities.

(a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to insurance and annuities authorizes the agent to:

(1) Continue, pay the premium or make a contribution on, modify, exchange, rescind, release or terminate a contract procured by or on behalf of the principal which insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract;

(2) Procure new, different and additional contracts of insurance and annuities for the principal and the principal’s spouse, children and other dependents, and select the amount, type of insurance or annuity and mode of payment;

(3) Pay the premium or make a contribution on, modify, exchange, rescind, release or terminate a contract of insurance or annuity procured by the agent;

(4) Apply for and receive a loan secured by a contract of insurance or annuity;

(5) Surrender and receive the cash surrender value on a contract of insurance or annuity;

(6) Exercise an election;

(7) Exercise investment powers available under a contract of insurance or annuity;

(8) Change the manner of paying premiums on a contract of insurance or annuity;

(9) Change or convert the type of insurance or annuity with respect to which the principal has or claims to have authority described in this section;

(10) Apply for and procure a benefit or assistance under a statute or regulation to guarantee or pay premiums of a contract of insurance on the life of the principal;

(11) Collect, sell, assign, hypothecate, borrow against or pledge the interest of the principal in a contract of insurance or annuity;

(12) Select the form and timing of the payment of proceeds from a contract of insurance or annuity; and

(13) Pay, from proceeds or otherwise, compromise or contest and apply for refunds in connection with, a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment.

§39B-2-111. Estates, trusts and other beneficial interests.

(a) In this section, “estate, trust, or other beneficial interest” means a trust, probate estate, guardianship, conservatorship, escrow, custodianship, or a fund from which the principal is, may become, or claims to be, entitled to a share or payment.

(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts and other beneficial interests authorizes the agent to:

(1) Accept, receive, receipt for, sell, assign, pledge or exchange a share in or payment from an estate, trust or other beneficial interest;

(2) Demand or obtain money or another thing of value to which the principal is, may become, or claims to be, entitled by reason of an estate, trust or other beneficial interest, by litigation or otherwise;

(3) Exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal;

(4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to litigation to ascertain the meaning, validity or effect of a deed, will, declaration of trust or other instrument or transaction affecting the interest of the principal;

(5) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to litigation to remove, substitute or surcharge a fiduciary;

(6) Conserve, invest, disburse or use anything received for an authorized purpose;

(7) Transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities and other property to the trustee of a revocable trust created by the principal as settler; and

(8) Reject, renounce, disclaim, release or consent to a reduction in or modification of a share in or payment from an estate, trust or other beneficial interest.

§39B-2-112. Claims and litigation.

(a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to claims and litigation authorizes the agent to:

(1) Assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment or defense, including an action to recover property or other thing of value, recover damages sustained by the principal, eliminate or modify tax liability, or seek an injunction, specific performance or other relief;

(2) Bring an action to determine adverse claims or intervene or otherwise participate in litigation;

(3) Seek an attachment, garnishment, order of arrest or other preliminary, provisional or intermediate relief and use an available procedure to effect or satisfy a judgment, order or decree;

(4) Make or accept a tender, offer of judgment or admission of facts, submit a controversy on an agreed statement of facts, consent to examination and bind the principal in litigation;

(5) Submit to alternative dispute resolution, settle and propose or accept a compromise;

(6) Waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon which process directed to the principal may be served, execute and file or deliver stipulations on the principal’s behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, receive, execute and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement or other instrument in connection with the prosecution, settlement or defense of a claim or litigation;

(7) Act for the principal with respect to bankruptcy or insolvency, whether voluntary or involuntary, concerning the principal or some other person, or with respect to a reorganization, receivership or application for the appointment of a receiver or trustee which affects an interest of the principal in property or other thing of value;

(8) Pay a judgment, award or order against the principal or a settlement made in connection with a claim or litigation; and

(9) Receive money or other thing of value paid in settlement of or as proceeds of a claim or litigation.

§39B-2-113. Personal and family maintenance.

(a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance authorizes the agent to:

(1) Perform the acts necessary to maintain the customary standard of living of the principal, the principal’s spouse and the following individuals, whether living when the power of attorney is executed or later born:

(A) The principal’s children;

(B) Other individuals legally entitled to be supported by the principal; and

(2) Make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party;

(3) Provide living quarters for the individuals described in subsection (1) of this section by:

(A) Purchase, lease or other contract; or

(B) Paying the operating costs, including interest, amortization payments, repairs, improvements and taxes, for premises owned by the principal or occupied by those individuals;

(4) Provide normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, including postsecondary and vocational education and other current living costs for the individuals described in subsection (1) of this section;

(5) Pay expenses for necessary health care and custodial care on behalf of the individuals described in subdivision (1) of this section;

(6) Act as the principal’s personal representative pursuant to the Health Insurance Portability and Accountability Act, §1171 through §1179 of the Social Security Act, §42 U. S. C. 1320d, and applicable regulations, in making decisions related to the past, present or future payment for the provision of health care consented to by the principal or anyone authorized under the law of this state to consent to health care on behalf of the principal;

(7) Continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring and replacing them, for the individuals described in subsection (1) of this section;

(8) Maintain credit and debit accounts for the convenience of the individuals described in subsection (1) of this section and open new accounts; and

(9) Continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order or other organization or to continue contributions to those organizations.

(b) Authority with respect to personal and family maintenance is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under this article.

§39B-2-114. Benefits from governmental programs or civil or military service.

(a) In this section, “benefits from governmental programs or civil or military service” means any benefit, program or assistance provided under a federal, state or local statute or regulation including Social Security, Medicare and Medicaid.

(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to benefits from governmental programs or civil or military service authorizes the agent to:

(1) Execute vouchers in the name of the principal for allowances and reimbursements payable by the United States or a foreign government or by a state or subdivision of a state to the principal, including allowances and reimbursements for transportation of the individuals described in section one hundred thirteen, subsection (a)(1) of this article, and for shipment of their household effects;

(2) Take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate or other instrument for that purpose;

(3) Enroll in, apply for, select, reject, change, amend or discontinue, on the principal’s behalf, a benefit or program;

(4) Prepare, file and maintain a claim of the principal for a benefit or assistance, financial or otherwise, to which the principal may be entitled under a statute or rule;

(5) Initiate, participate in, submit to alternative dispute resolution, settle, oppose or propose or accept a compromise with respect to litigation concerning any benefit or assistance the principal may be entitled to receive under a statute or rule; and

(6) Receive the financial proceeds of a claim described in subdivision(4) of this section and conserve, invest, disburse or use for a lawful purpose anything so received.

§39B-2-115. Retirement plans.

(a) In this section, “retirement plan” means a plan or account created by an employer, the principal or another individual to provide retirement benefits or deferred compensation of which the principal is a participant, beneficiary or owner, including a plan or account under the following sections of the Internal Revenue Code:

(1) An individual retirement account under Internal Revenue Code, 26 U. S. C. §408;

(2) A Roth individual retirement account under Internal Revenue Code, 26 U. S. C. §408A;

(3) A deemed individual retirement account under Internal Revenue Code, 26 U. S. C. §408(q);

(4) An annuity or mutual fund custodial account under Internal Revenue Code, 26 U. S. C. §403(b);

(5) A pension, profit-sharing, stock bonus or other retirement plan qualified under Internal Revenue Code, 26 U. S. C. §401(a);

(6) A plan under Internal Revenue Code, 26 U. S. C. §457(b); and

(7) A nonqualified deferred compensation plan under Internal Revenue Code, 26 U. S. C. §409A.

(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to retirement plans authorizes the agent to:

(1) Select the form and timing of payments under a retirement plan and withdraw benefits from a plan;

(2) Make a rollover, including a direct trustee-to-trustee rollover, of benefits from one retirement plan to another;

(3) Establish a retirement plan in the principal’s name;

(4) Make contributions to a retirement plan;

(5) Exercise investment powers available under a retirement plan; and

(6) Borrow from, sell assets to or purchase assets from a retirement plan.

§39B-2-116. Taxes.

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to taxes authorizes the agent to:

(1) Prepare, sign and file federal, state, local and foreign income, gift, payroll, property, Federal Insurance Contributions Act and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters and any other tax-related documents, including receipts, offers, waivers, consents, including consents and agreements under Internal Revenue Code, 26 U. S. C. §2032A, closing agreements and any power of attorney required by the Internal Revenue Service or other taxing authority with respect to a tax year upon which the statute of limitations has not run and the following twenty-five tax years;

(2) Pay taxes due, collect refunds, post bonds, receive confidential information and contest deficiencies determined by the Internal Revenue Service or other taxing authority;

(3) Exercise any election available to the principal under federal, state, local or foreign tax law; and

(4) Act for the principal in all tax matters for all periods before the Internal Revenue Service or other taxing authority.

§39B-2-117. Gifts.

(a) In this section, a gift “for the benefit of” a person includes a gift to a trust, an account under the Uniform Transfers to Minors Act and a tuition savings account or prepaid tuition plan as defined under Internal Revenue Code, 26 U. S. C. §529, as amended.

(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts authorizes the agent only to:

(1) Make outright to, or for the benefit of, a person, a gift of any of the principal’s property, including by the exercise of a presently exercisable general power of appointment held by the principal, in an amount per donee not to exceed the annual dollar limits of the federal gift tax exclusion under Internal Revenue Code, 26 U. S. C. §2503(b), without regard to whether the federal gift tax exclusion applies to the gift or if the principal’s spouse agrees to consent to a split gift pursuant to Internal Revenue Code, 26 U. S. C. §2513, as amended, in an amount per donee not to exceed twice the annual federal gift tax exclusion limit; and

(2) Consent, pursuant to Internal Revenue Code, 26 U. S. C. §2513, to the splitting of a gift made by the principal’s spouse in an amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses.

(c) An agent may make a gift of the principal’s property only as the agent determines is consistent with the principal’s objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal’s best interest based on all relevant factors, including:

(1) The value and nature of the principal’s property;

(2) The principal’s foreseeable obligations and need for maintenance;

(3) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes;

(4) Eligibility for a benefit, a program or assistance under a statute or regulation; and

(5) The principal’s personal history of making or joining in making gifts.

ARTICLE 3. STATUTORY FORMS.

§39B-3-101. Statutory form power of attorney.

A document substantially in the following form may be used to create a statutory form power of attorney that has the meaning and effect prescribed by this act.

State of West Virginia

STATUTORY FORM POWER OF ATTORNEY

IMPORTANT INFORMATION

This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in the Uniform Power of Attorney Act [insert citation].

This power of attorney does not authorize the agent to make health-care decisions for you.

You should select someone you trust to serve as your agent. Unless you specify otherwise, generally the agent’s authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you.

Your agent is entitled to reasonable compensation unless you state otherwise in the special instructions. This form provides for designation of one agent. If you wish to name more than one agent you may name a coagent in the Special Instructions. Coagents are not required to act together unless you include that requirement in the Special Instructions. If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent.

This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions.

If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form.

DESIGNATION OF AGENT

I __________________________ name the following person as my agent:

(Name of Principal)

Name of Agent:__________________________________________________

Agent’s Address:___________________________________________________

Agent’s Telephone Number:_________________________________________

If my agent is unable or unwilling to act for me, I name as my successor agent:

Name of Successor Agent:_________________________________________

Successor Agent’s Address:_________________________________________

Successor Agent’s Telephone Number:________________________________

If my successor agent is unable or unwilling to act for me, I name as my second successor agent:

Name of Second Successor Agent:____________________________________

Second Successor Agent’s Address:__________________________________

Second Successor Agent’s Telephone Number:________________________

GRANT OF GENERAL AUTHORITY

I grant my agent and any successor agent general authority to act for me with respect to the following subjects as defined in the Uniform Power of Attorney Act [insert citation]:

(INITIAL each subject you want to include in the agent’s general authority. If you wish to grant general authority over all of the subjects you may initial “All Preceding Subjects” instead of initialing each subject.)

(___) Real Property

(___) Tangible Personal Property

(___) Stocks and Bonds

(___) Commodities and Options

(___) Banks and Other Financial Institutions

(___) Operation of Entity or Business

(___) Insurance and Annuities

(___) Estates, Trusts, and Other Beneficial Interests

(___) Claims and Litigation

(___) Personal and Family Maintenance

(___) Benefits from Governmental Programs or Civil or Military Service

(___) Retirement Plans

(___) Taxes

(___) All Preceding Subjects

GRANT OF SPECIFIC AUTHORITY (OPTIONAL)

My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below:

(CAUTION: Granting any of the following will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death. INITIAL ONLY the specific authority you WANT to give your agent.)

(___) Create, amend, revoke, or terminate an inter vivos trust

(___) Make a gift, subject to the limitations of the West Virginia Uniform Power of Attorney Act and any special instructions in this power of attorney

(___) Create or change rights of survivorship

(___) Create or change a beneficiary designation

(___) Authorize another person to exercise the authority granted under this power of attorney

(___) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan

(___) Exercise fiduciary powers that the principal has authority to delegate

[(___) Disclaim or refuse an interest in property, including a power of appointment]

LIMITATION ON AGENT’S AUTHORITY

An agent that is not my ancestor, spouse or descendant MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions.

SPECIAL INSTRUCTIONS (OPTIONAL)

You may give special instructions on the following lines:

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

EFFECTIVE DATE

This power of attorney is effective immediately unless I have stated otherwise in the special instructions.

NOMINATION OF [CONSERVATOR OR GUARDIAN] (OPTIONAL)

If it becomes necessary for a court to appoint a [conservator or guardian] of my estate or [guardian] of my person, I nominate the following person(s) for appointment:

Name of Nominee for [conservator or guardian] of my estate:

_________________________________________________________________Nominee’s Address:_________________________________________________

Nominee’s Telephone Number:________________________________________

Name of Nominee for [guardian] of my person:_______________________

Nominee’s Address:_________________________________________________

Nominee’s Telephone Number:_______________________________________

RELIANCE ON THIS POWER OF ATTORNEY

Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knows it has terminated or is invalid.

SIGNATURE AND ACKNOWLEDGMENT

__________________________________ _________________________

Your Signature Date

Your Name Printed__________________________________________________

Your Address_____________________________________________________

Your Telephone Number____________________________________________

State of ___________________________________

[County] of_________________________________

This document was acknowledged before me on ________________,

(Date)

by______________________________________.

(Name of Principal)

_______________________________________________ (Seal, if any)

Signature of Notary

My commission expires: ________________________

[This document prepared by:_______________________________________]

IMPORTANT INFORMATION FOR AGENT

Agent’s Duties

When you accept the authority granted under this power of attorney, a special legal relationship is created between you and the principal. This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must:

(1) Do what you know the principal reasonably expects you to do with the principal’s property or, if you do not know the principal’s expectations, act in the principal’s best interest; act in good faith;

(2) Do nothing beyond the authority granted in this power of attorney; and

(3) Disclose your identity as an agent whenever you act for the principal by writing or printing the name of the principal and signing your own name as “agent” in the following manner:

____________________________ by ______________________________

(Principal’s Name) (Your Signature) as Agent

Unless the special instructions in this power of attorney state otherwise, you must also:

(1) Act loyally for the principal’s benefit;

(2) Avoid conflicts that would impair your ability to act in the principal’s best interest;

(3) Act with care, competence and diligence;

(4) Keep a record of all receipts, disbursements and transactions made on behalf of the principal;

(5) Cooperate with any person that has authority to make health-care decisions for the principal to do what you know the principal reasonably expects or, if you do not know the principal’s expectations, to act in the principal’s best interest; and

attempt to preserve the principal’s estate plan if you know the plan and preserving the plan is consistent with the principal’s best interest.

Termination of Agent’s Authority

You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate a power of attorney or your authority to act under a power of attorney include:

(1) Death of the principal;

(2) The principal’s revocation of the power of attorney or your authority;

(3) The occurrence of a termination event stated in the power of attorney;

(4) The purpose of the power of attorney is fully accomplished; or

(5) If you are married to the principal, a legal action is filed with a court to end your marriage or for your legal separation, unless the Special Instructions in this power of attorney state that such an action will not terminate your authority.

Liability of Agent

The meaning of the authority granted to you is defined in the Uniform Power of Attorney Act [insert citation]. If you violate the Uniform Power of Attorney Act [insert citation] or act outside the authority granted, you may be liable for any damages caused by your violation.

If there is anything about this document or your duties that you do not understand, you should seek legal advice.

§39B-3-102. Agent’s certification

The following optional form may be used by an agent to certify facts concerning a power of attorney:

AGENT’S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY AND AGENT’S AUTHORITY

State of _____________________________

[County] of___________________________]

I, _____________________________________________ (Name of Agent), [certify] under penalty of perjury that ______________________________(Name of Principal) granted me authority as an agent or successor agent in a power of attorney dated ______________.

I, further [certify] that to my knowledge:

(1) The Principal is alive and has not revoked the power of attorney or my authority to act under the power of attorney and the power of attorney and my authority to act under the power of attorney have not terminated;

(2) If the power of attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred;

(3) If I was named as a successor agent, the prior agent is no longer able or willing to serve; and

SIGNATURE AND ACKNOWLEDGMENT

____________________________________________

Agent’s Signature Date

Agent’s Name Printed ____________________________________________

Agent’s Address__________________________________________________

Agent’s Telephone Number_________________________________________

This document was acknowledged before me on _______________,

(Date)

by ______________________________________.

(Name of Agent)

_________________________________________ (Seal, if any)

Signature of Notary

My commission expires: ________________________

[This document prepared by:_____________________________________]

ARTICLE 4. MISCELLANEOUS PROVISIONS.

§39B-4-101. Uniformity of application and construction.

In applying and construing the provisions of this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

§39B-4-102. Relation to electronic signatures in Global and National Commerce Act.

This act modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act,15 U. S. C. §7001 et seq., but does not modify, limit or supersede 15 U. S. C. Section 7001(c), of that act, or authorize electronic delivery of any of the notices described in 15 U. S. C. Section §7003(b), of that act.

§39B-4-103. Effect on existing powers of attorney.

Except as otherwise provided in this act, on the effective date of this act its provisions apply to:

(1) A power of attorney created before, on, or after the effective date of this act;

(2) A judicial proceeding concerning a power of attorney commenced on or after the effective date of this act; and

(3) A judicial proceeding concerning a power of attorney commenced before the effective date of this act unless the court finds that application of a provision of this chapter would substantially interfere with the effective conduct of the judicial proceeding or prejudice the rights of a party, in which case that provision does not apply and the superseded law applies.

(b) An act done before the effective date of this act is not affected by this act.

CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP

AND CONSERVATORSHIP ACT.

ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.

§44A-3-3. Distributive duties and powers of the conservator of a protected person.

(a) A conservator of a protected person, without the necessity of seeking prior court authorization, shall apply the income and principal of the estate as needed for the protected person's support, care, health, and if applicable, habilitation, education or therapeutic needs. A conservator shall also apply the income and principal as needed for the support of any legal dependents who are unable to support themselves and who are in need of support.

(b) A conservator, when making distributions, shall exercise authority only to the extent necessitated by the protected person's limitations, and shall, where feasible, encourage the protected person to participate in decisions, to act on his or her own behalf, and to develop or regain the capacity to manage the estate and his or her financial affairs. A conservator shall also consider the size of the estate, the probable duration of the conservatorship, the protected person's accustomed manner of living, other resources known to the conservator to be available, and the recommendations of the guardian.

(c) A conservator shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence and prudence.

(d) A conservator may not revoke or amend a durable power of attorney which has been executed by the protected person without the prior approval of the court.

The bill (Eng. Com. Sub. for H. B. No. 4390), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4422, Relating to crane operator certification.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4424, Relating to modified mental hygiene procedures.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

By striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 5. INVOLUNTARY HOSPITALIZATION.

§27-5-11. Modified procedures for temporary compliance orders for certain medication dependent persons with prior hospitalizations or convictions; instituting modified mental hygiene procedures; establishing procedures; providing for forms and reports.

(a) The Supreme Court of Appeals shall, in consultation with the Secretary of the Department of Health and Human Resources and local mental health services consumers and providers, implement in at least four and no more than six judicial circuits, beginning on July 1, 2006, throughout the state modified mental hygiene procedures that are consistent with the requirements set forth in this section. The judicial circuits selected for implementing the modified procedures shall be circuits in which the Supreme Court of Appeals determines, after consultation with the Secretary of the Department of Health and Human Resources and local mental health consumers and service providers, that adequate resources will be available to implement the modified procedures. After July 1, 2012, the Supreme Court of Appeals and the Secretary of the Department of Health and Human Resources in consultation with local mental health consumers and providers may add programs for modified mental hygiene procedures in any judicial circuit that establishes a need for the same.

(b) The Secretary of the Department of Health and Human Resources, after consultation with the Supreme Court of Appeals and local mental health services consumers and service providers, shall prescribe appropriate forms to implement the modified procedures and shall annually prepare a report reports on the use efficacy of the modified procedures and transmit the report to the Legislature on or before the last first day of each calendar year the 2013 and 2014 regular sessions of the Legislature.

(c) The Supreme Court of Appeals may, after consultation with the Secretary of the Department of Health and Human Resources and local mental health services consumers and providers during the pilot program period, further modify any specific modified procedures that are implemented Provided, That pursuant to this section. The modified procedures must be consistent with the requirements of this chapter and this section. If the Secretary of the Department of Health and Human Resources determines that the use of any modified procedure in one or more judicial circuits is placing an unacceptable additional burden upon state mental health resources, the Supreme Court of Appeals shall, in consultation with the secretary, modify the procedures used in such a fashion as will address the concerns of the secretary, consistent with the requirements of this chapter. The provisions of this section and the modified procedures thereby authorized shall cease to have any force and effect on June 30, 2012 2014, unless extended by an act of the Legislature prior to that date.

(b) (1) The modified procedures shall authorize that a verified petition seeking a treatment compliance order may be filed by any person alleging:

(A) That an individual, on two or more occasions within a twenty-four month period prior to the filing of the petition, as a result of mental illness or addiction or both, has been hospitalized pursuant to the provisions of this chapter; or that the individual has been convicted of one or more crimes of violence against the person within a twenty-four month period prior to the filing of the petition and the individual’s failure to take prescribed medication or follow another prescribed regimen to treat a mental illness or addiction or both was a significant aggravating or contributing factor in the circumstances surrounding the crime;

(B) That the individual̓s previous hospitalizations due to mental illness or addiction or both or the individual’s crime of violence occurred after or as a result of the individual̓s failure to take medication or other treatment as prescribed by a physician to treat the individual̓s mental illness or addiction or both; and (C) That the individual, in the absence of a court order requiring him or her to take medication or other treatment as prescribed, is unlikely to do so and that his or her failure to take medication or follow other regimen or treatment as prescribed is likely to lead to further instances in the reasonably near future in which the individual becomes likely to cause serious harm or commit a crime of violence against the person.

(2) Upon the filing of a petition seeking a treatment compliance order and the petition̓s review by a circuit judge or mental hygiene commissioner, counsel shall be appointed for the individual if the individual does not already have counsel and a copy of the petition and all supporting evidence shall be furnished to the individual and their counsel. If the circuit judge or mental hygiene commissioner determines on the basis of the petition that it is necessary to protect the individual or to secure their examination, a detention order may be entered ordering that the individual be taken into custody and examined by a psychiatrist or licensed psychologist. A hearing on the allegations in the petition, which may be combined with a hearing on a probable cause petition conducted pursuant to the provisions of section two of this article or a final commitment hearing conducted pursuant to the provisions of section four of this article, shall be held before a circuit judge or mental hygiene commissioner. If the individual is taken into custody and remains in custody as a result of a detention order, the hearing shall be held within forty-eight hours of the time that the individual is taken into custody.

(3) If the allegations in the petition seeking a treatment compliance order are proved by the evidence adduced at the hearing, which must include expert testimony by a psychiatrist or licensed psychologist, the circuit judge or mental hygiene commissioner may enter a treatment compliance order for a period not to exceed six months upon making the following findings:

(A) That the individual is eighteen years of age or older;

(B) That on two or more occasions within a twenty-four month period prior to the filing of the petition an individual, as a result of mental illness, has been hospitalized pursuant to the provisions of this chapter; or that on at least one occasion within a twenty-four month period prior to the filing of the petition has been convicted of a crime of violence against any person;

(C) That the individual’s previous hospitalizations due to mental illness or addiction or both occurred as a result of the individual’s failure to take prescribed medication or follow a regimen or course of treatment as prescribed by a physician or psychiatrist to treat the individual’s mental illness or addiction; or that the individual has been convicted for crimes of violence against any person and the individual’s failure to take medication or follow a prescribed regimen or course of treatment of the individual’s mental illness or addiction or both was a significant aggravating or contributing factor in the commission of the crime;

(D) That a psychiatrist or licensed psychologist who has personally examined the individual within the preceding twenty-four months has issued a written opinion that the individual, without the aid of the medication or other prescribed treatment, is likely to cause serious harm to himself or herself or to others;

(E) That the individual, in the absence of a court order requiring him or her to take medication or other treatment as prescribed, is unlikely to do so and that his or her failure to take medication or other treatment as prescribed is likely to lead to further instances in the reasonably near future in which the individual becomes likely to cause serious harm or commit a crime of violence against any person;

(F) That, where necessary, a responsible entity or individual is available to assist and monitor the individual’s compliance with an order requiring the individual to take the medication or follow other prescribed regimen or course of treatment;

(G) That the individual can obtain and take the prescribed medication or follow other prescribed regimen or course of treatment without undue financial or other hardship; and

(H) That, if necessary, a medical provider is available to assess the individual within forty-eight hours of the entry of the treatment compliance order.

(4) The order may require an individual to take medication and treatment as prescribed and if appropriate to attend scheduled medication and treatment-related appointments: Provided, That a treatment compliance order shall be subject to termination or modification by a circuit judge or mental hygiene commissioner if a petition is filed seeking termination or modification of the order and it is shown in a hearing on the petition that there has been a material change in the circumstances that led to the entry of the original order that justifies the order̓s modification or termination: Provided, however, That a treatment compliance order may be extended by a circuit judge or mental hygiene commissioner for additional periods of time not to exceed six months, upon the filing of a petition seeking an extension and after a hearing on the petition or upon the agreement of the individual.

(5) (A) After the entry of a treatment compliance order in accordance with the provisions of subdivisions (3) and (4) of this subsection (b) of this section, if a verified petition is filed alleging that an individual has not complied with the terms of a medication and treatment compliance order and if a circuit judge or mental hygiene commissioner determines from the petition and any supporting evidence that there is probable cause to believe that the allegations in the petition are true, counsel shall be appointed for the individual and a copy of the petition and all supporting evidence shall be furnished to the individual and his or her counsel. If the circuit judge or mental hygiene commissioner considers it necessary to protect the individual or to secure his or her examination, a detention order may be entered to require that the individual be examined by a psychiatrist or psychologist.

(A) A hearing on the allegations in the petition, which may be combined with a hearing on a probable cause petition conducted pursuant to section two of this article or a final commitment hearing conducted pursuant to section four of this article, shall be held before a circuit judge or mental hygiene commissioner. If the individual is taken and remains in custody as a result of a detention order, the hearing shall be held within forty-eight hours of the time that the individual is taken into custody.

(B) At a hearing on any petition filed pursuant to the provisions of paragraph (A) of this subdivision, (5), subsection (b) of this section, the circuit judge or mental hygiene commissioner shall determine whether the individual has complied with the terms of the medication and treatment compliance order. If the individual has complied with the order, the petition shall be dismissed. Provided, That If the evidence presented to the circuit judge or mental hygiene commissioner shows that the individual has complied with the terms of the existing order, but the individual’s prescribed medication, dosage or course of treatment needs to be modified, then the newly modified medication and treatment prescribed by a psychiatrist who personally examined the individual may be properly incorporated into a modified order. If the order has not been complied with, the circuit judge or mental hygiene commissioner, after inquiring into the reasons for noncompliance and whether any aspects of the order should be modified, may continue the individual upon the terms of the original order and direct the individual to comply with the order or may modify the order in light of the evidence presented at the hearing. If the evidence shows that the individual at the time of the hearing is likely to cause serious harm to himself or herself, herself or others as a result of the individual̓s mental illness, the circuit judge or mental hygiene commissioner may convert the proceeding into a probable cause proceeding and enter a probable cause order directing the involuntary admission of the individual to a mental health facility for examination and treatment. Provided, however, That Any procedures conducted pursuant to this subsection must comply with and satisfy all applicable due process and hearing requirements of contained in sections two and three of this article. have been fully satisfied

(c)(1) (d) The modified procedures may authorize that upon the certification of a qualified mental health professional, as described in subdivision (2) of this subsection (e) of this section, that there is probable cause to believe that an individual who has been hospitalized two or more times in the previous twenty-four months because of mental illness is likely to cause serious harm to himself or herself, herself or to others as a result of the mental illness if not immediately restrained and that the best interests of the individual would be served by immediate hospitalization, a circuit judge, mental hygiene commissioner or designated magistrate may enter a temporary probable cause order directing the involuntary hospitalization of the individual at a mental health facility for immediate examination and treatment.

(2) (e) The modified procedures may authorize the chief judge of a judicial circuit, or circuit judge if there is no chief judge, to enter orders authorizing specific psychiatrists or licensed psychologists, whose qualifications and training have been reviewed and approved by the Supreme Court of Appeals, to issue certifications that authorize and direct the involuntary admission of an individual subject to the provisions of this section on a temporary probable cause basis to a mental health facility for examination and treatment. Provided, That the The authorized psychiatrist or licensed psychologist must conclude and certify based on personal observation prior to certification that the individual is mentally ill and, because of such mental illness or addiction or both, is imminently likely to cause serious harm to himself or herself or to others if not immediately restrained and promotion of the best interests of the individual requires immediate hospitalization. Immediately upon certification, the psychiatrist or licensed psychologist shall provide notice of the certification to a circuit judge, mental hygiene commissioner or designated magistrate in the county where the individual resides.

(3) (f) No involuntary hospitalization pursuant to a temporary probable cause determination issued pursuant to the provisions of this section shall continue in effect for more than forty-eight hours without the filing of a petition for involuntary hospitalization and the occurrence of a probable cause hearing before a circuit judge, mental hygiene commissioner or designated magistrate. If at any time the chief medical officer of the mental health facility to which the individual is admitted determines that the individual is not likely to cause serious harm as a result of mental illness or addiction or both, the chief medical officer shall discharge the individual and immediately forward a copy of the individual̓s discharge to the circuit judge, mental hygiene commissioner or designated magistrate.

The bill (Eng. Com. Sub. for H. B. No. 4424), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4438, Provider Sponsored Network Act.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:

By striking out everything after the enacting clause and inserting in lieu thereof the following:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §16-2L-1, §16-2L-2, §16-2L-3, §16-2L-4, §16-2L-5, §16-2L-6 and §16-2L-7; and that said code be amended by adding thereto a new article, designated §33-25G-1, §33-25G-2, §33-25G-3, §33-25G-4 and §33-25G-5, all to read as follows:

CHAPTER 16. PUBLIC HEALTH

ARTICLE 2L. PROVIDER SPONSORED NETWORKS.

§16-2L-1. Legislative purpose.

The Legislature finds that it inures to the benefit of the state and its Medicaid populations to foster the development of care systems and Medicaid options that allow for the functional integration and participation of privately practicing physicians with provider sponsored networks who have patient-centered medical home resources and who are willing to share access and use of those resources; that privately practicing physicians provide indispensable and important health care services to Medicaid enrollees in West Virginia but many do not have the resources to develop patient-centered medical homes in their respective practices; that federally qualified health centers are deeply engaged with integrating behavioral health providers and other community services in their care of Medicaid beneficiaries and that such centers lead in the development and implementation of recognized medical homes in West Virginia; and that better health outcomes can be achieved and inappropriate utilization avoided through the integration and coordination of physical health care with mental health care. Therefore, in order to develop innovative means of meeting the health care needs of the state’s citizens and to address the impact on the state’s budget arising from the growing cost of Medicaid, and in recognition of the important role that federally qualified health centers play in providing health care services to Medicaid beneficiaries, the Legislature authorizes the secretary to enter into contracts with provider sponsored networks.

§16-2L-2. Definitions.

As used in this article, unless the context requires otherwise:

(1) “Continuity-of-care” means the clinical practice of a medical professional who provides care to patients in which:

(A) In addition to episodic or urgent care provided from time to time as needed, preventive care and counseling is provided and a patient’s overall health status is monitored even when illness is not present or not in crisis; and

(B) Without being limited to discrete episodes of care, medical records and care processes are used that track and manage health status over time and allow the medical professional to refer care to, and receive reports from, other medical professionals and other care team members responsible for a patient’s care.

(2) “Federally Qualified Health Center” means an entity as defined in 42 U. S. C. §1396d(l)(2)(B).

(3) “Medicaid beneficiary” means any person participating, through either a state plan amendment or waiver demonstration, in any Medicaid program administered by the West Virginia Department of Health and Human Resources or its Bureau for Medical Services. (4) “Medical home” means a team-based model of care in a patient-centered medical home.

(5) “Participating provider” means a licensed health care provider who has entered into a contract with a provider sponsored network to provide services to Medicaid enrollees.

(6) “Participating primary care provider” is a primary care provider who is also a participating provider.

(7) “Patient-centered medical home” means a health care setting as described in section nine, article twenty-nine-h of this chapter.

(8) “Primary care provider” means a licensed behavioral health professional or a person licensed as an allopathic or osteopathic physician primarily practicing internal medicine, family or general practice, obstetrics and gynecology, or pediatrics who provides continuity-of-care services to the majority of his or her patients.

(9) “Provider sponsored network” means an entity licensed by the West Virginia insurance commissioner in accordance with article twenty-five-g, chapter thirty-three of this code.

(10) “Secretary” means the Secretary of the West Virginia Department of Health and Human Resources.

§16-2L-3. Contracts with provider sponsored networks.

(a) The secretary is authorized to enter into contracts with any provider sponsored network licensed by the insurance commissioner in accordance with the provisions of article twenty-five-g, chapter thirty-three of this code, to arrange for the provision of health care, services and supplies for Medicaid beneficiaries. Such contract:

(1) Shall be subject to the same criteria and standards applied to other managed care organizations; and

(2) May provide that the provider sponsored network will share with the department up to 25% of any net profits realized during the period of the contract.

(b) The service, administrative and performance criteria to be met by provider sponsored networks shall be the same as required of other managed care organizations providing services to Medicaid beneficiaries in the state.

(c) A licensed provider sponsored network shall be deemed an HMO for the purposes of federal regulations governing the Medicaid program to the extent permitted by such regulations.

§16-2L-4. Options for Medicaid beneficiaries; assignment of enrollees.

(a) Notwithstanding the prior availability or utilization of other options, every licensed provider sponsored network available in a county shall be offered by the secretary as an enrollment option to that county’s Medicaid beneficiaries. A provider sponsored network is deemed to be “available in a county” if the secretary has entered into a contract with it to provide services to Medicaid beneficiaries in that county.

(b) The secretary shall require that each eligible Medicaid beneficiary be given the option to choose any available managed care plan, including a provider sponsored network, to arrange for and provide his or her medical services under the Medicaid program, and nothing in this article shall be construed to remove or diminish the right of Medicaid beneficiaries to choose among such available options.

(c) The secretary shall seek approval from the Centers for Medicare and Medicaid Services to permit the assignment to an available provider sponsored network of any Medicaid beneficiary who does not exercise the option to choose a managed care plan or provider sponsored network offered to him or her. The secretary shall promulgate emergency rules and shall propose for legislative approval legislative rules as may be necessary to implement such assignment process.

(d) A Medicaid beneficiary assigned to a provider sponsored network or another managed care organization may change enrollment to any other available provider sponsored network or managed care organization as such options may be available, and nothing in this article requires that a Medicaid beneficiary who is a patient of a participating provider must remain an enrollee in the provider sponsored network with which such participating provider has a contract.§16-2L-5. Anti-trust exemption.

Because agreement and coordination among health care providers, who may be potential competitors with each other, is required to establish and operate provider sponsored networks, an exemption from anti-trust laws for these activities will further the purposes of this article. Therefore, the West Virginia Anti-Trust Act, article eighteen, chapter forty-seven of this code, is inapplicable to the development of provider sponsored networks, activities necessary to operate provider sponsored networks or any arrangements or agreements between or among provider sponsored networks and participating providers that are performed or entered into consistent with and pursuant to the provisions of this article and the provisions of article twenty-five-g, chapter thirty-three of this code. It is the intent of the Legislature that the federal anti-trust statutes be interpreted in this manner as well.

16-2L-6. Rulemaking authority.

The secretary may promulgate emergency rules and shall propose for legislative approval legislative rules, in accordance with the provisions of article three, chapter twenty-nine-a of this code, as are necessary to provide for implementation and enforcement of the provisions of this article.

16-2L-7. Reports to the Legislature.

The secretary shall include in his or her annual report to the Legislature the status of the provider sponsored network programs operating during the previous fiscal year.CHAPTER 33. INSURANCE

ARTICLE 25G. PROVIDER SPONSORED NETWORKS.

§33-25G-1. Legislative findings.

The Legislature finds that, in light of the need to provide health care to a Medicaid population that is expected to rise dramatically in the near future, new models of managed care should be explored in order to enhance the state’s ability to improve health outcomes and to manage the financial risk associated with the provision of such care. This article provides a licensing and regulatory scheme for provider sponsored networks, an alternative managed care model recognized in federal law, that recognizes the unique features of such entities.

§33-25G-2. Definitions.

(a) “Federally Qualified Health Center” means an entity as defined in 42 U.S.C. §1396d(l)(2)(B).

(b) “Medicaid beneficiary” means any person participating, through either a state plan amendment or waiver demonstration, in any Medicaid program administered by the West Virginia Department of Health and Human Resources or its Bureau for Medical Services. (c) “Participating provider” means a licensed health care provider who has entered into a contract with a provider sponsored network to provide services to Medicaid enrollees.

(d) “Provider sponsored network” means an entity that satisfies the definition of a “Medicaid managed care organization” set forth in 42 U.S.C. §1396b(m)(1)(A), is controlled by one or more Federally Qualified Health Centers, as set forth in 42 U.S.C. §1396b(m)(1)(C)(ii)(IV), and provides or otherwise makes available health care services solely to Medicaid beneficiaries or beneficiaries of medicaid or medicare pursuant to contract with the secretary executed in accordance with article two-b, chapter sixteen of this code.

(e) “Secretary” means the Secretary of the West Virginia Department of Health and Human Resources.

§33-25G-3. Licensing of provider sponsored networks.

(a) Except to the extent provided otherwise in this article, a provider sponsored network is subject to the provisions of article twenty-five-a of this chapter to the same extent as an HMO.

(b) Notwithstanding the provisions of section four, article twenty-five-a of this chapter, in determining whether a provider sponsored network has demonstrated in its application for a certificate of authority or at a later time that it is financially responsible and may reasonably be expected to meet its obligations to Medicaid beneficiaries, the commissioner may, in his or her sole discretion and after consultation with the secretary, impose lower or different solvency requirements, including lower surplus and capital. In deciding whether to permit lower or different solvency standards, the commissioner shall consider actuarial evaluations and other qualified technical standards and may also consider factors such as a lower risk of insolvency, any transfer of risk to a third party, and the restriction of the provider sponsored network to the provision of Medicaid-related services; these same factors may also be considered in reviewing and acting upon a provider sponsored network’s RBC report.

(c) A provider sponsored network may at any time seek to convert its certificate of authority granted pursuant to this article to a certificate of authority to operate as an HMO by filing an application in accordance with the provisions of article twenty-five-a of this chapter.

§33-25G-4. Provider participation.

(a) Any willing physician or licensed behavioral health provider is entitled to participate in a provider sponsored network provided that he or she is willing to participate in the health care delivery approach designed by the provider sponsored network and such other applicable requirements of the Department of Health and Human Resources.

(b) As a condition of provider participation, including participation by hospitals, a provider sponsored network may require that its care management protocols be observed, including provisions for designations of certain services that may be provided only by designated providers or classes of providers, requirements that providers be credentialed before they may provide certain services, and requirements that providers comply with utilization management programs and referral systems as established by the provider sponsored network. A provider sponsored network may not require a participating physician provider to sell or transfer ownership of his, her or its assets or practice operations to the provider sponsored network or any of its participating providers as a condition of participation or of being permitted access or use of the provider sponsored network’s medical home resources and care management systems.

(c) A participating provider shall have the right to participate in, and contract with, other networks or other managed care organizations to provide services to Medicaid beneficiaries.

33-25G-5. Rules.

The commissioner may promulgate emergency rules and shall propose for legislative approval legislative rules, in accordance with the provisions of article three, chapter twenty-nine-a of this code, as are necessary to provide for implementation and enforcement of the provisions of this article.

On motion of Senator Palumbo, the following amendment to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4438) was reported by the Clerk and adopted:

On page eight, section two, subsection (d), by striking out the words “article two-b” and inserting in lieu thereof the words “article two-l”.

The question now being on the adoption of the Judiciary committee amendment to the bill, as amended, the same was put and prevailed.

The bill (Eng. Com. Sub. for H. B. No. 4438), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4504, Relating to development and operation of a nursing home on the grounds of a nonprofit community health care organization.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. House Bill No. 4521, Permitting the restructuring of child support payments of an inmate who is released under certain circumstances.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. House Bill No. 4522, Providing additional contempt powers for family court judges.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. House Bill No. 4549, Imposing a monetary penalty on unemployment compensation recipients for obtaining benefits through the use of fraudulent statements.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4601, Authorizing the West Virginia National Guard to participate in a federal asset forfeiture or sharing program.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Military, was reported by the Clerk and adopted:

On page three, section twenty-seven, lines thirty through thirty-two, by striking out all of subdivision (4).

The bill (Eng. Com. Sub. for H. B. No. 4601), as amended, was then ordered to third reading.

Eng. House Bill No. 4626, Increasing state police principal supervisors to nineteen.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. House Bill No. 4655, Relating to school service personnel certification.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:

On page eight, section eight-e, line one hundred forty-three, by striking out the word “may” and inserting in lieu thereof the word “shall”.

The bill (Eng. H. B. No. 4655), as amended, was then ordered to third reading.

The Senate proceeded to the tenth order of business.

The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:

Eng. Com. Sub. for House Bill No. 2278, Authorizing the use of additional medium for use in archiving government records.

Eng. Com. Sub. for House Bill No. 3174, Relating to liquor and beer sampling events.

Eng. Com. Sub. for House Bill No. 4012, Removing the Commissioner of the Bureau for Public Health from certain boards.

Eng. Com. Sub. for House Bill No. 4028, Authorizing the temporary suspension of certification of emergency medical service personnel or licensure of emergency medical service agencies without a hearing or prior notice if there is probable cause.

Eng. Com. Sub. for House Bill No. 4062, Creating an in-home direct care workforce registry.

Eng. Com. Sub. for House Bill No. 4118, Including the surviving spouse and a designated individual previously chosen by the deceased as a person who may designate the manner of disposition of a deceased person's body.

Eng. House Bill No. 4271, Reporting requirements for residential mortgage lenders and broker licensees.

Eng. Com. Sub. for House Bill No. 4310, Prohibiting sex offenders from living or working within one thousand feet of the outer perimeter of a school, child care facility, playground or a victim's home.

Eng. House Bill No. 4314, Relating to the appointment of magistrates.

Eng. House Bill No. 4328, Removing bobcats from the list of species requiring a field tag.

Eng. Com. Sub. for House Bill No. 4451, Ensuring that county executive committees have control of designating the persons who serve as ballot commissioner.

Eng. Com. Sub. for House Bill No. 4511, Creating the Shale Research, Education, Policy and Economic Development Center at West Virginia University.

Eng. Com. Sub. for House Bill No. 4605, Providing a premarital education option to applicants for marriage licenses.

And,

Eng. House Bill No. 4652, Making a supplementary appropriation to various agencies.

The Senate proceeded to the twelfth order of business.

Remarks were made by Senator Wells.

Thereafter, at the request of Senator Barnes, and by unanimous consent, the remarks by Senator Wells were ordered printed in the Appendix to the Journal.

Pending announcement of meetings of standing committees of the Senate,

On motion of Senator Unger, the Senate recessed until 5 p.m. today.

Upon expiration of the recess, the Senate reconvened and, at the request of Senator Unger, unanimous consent being granted, returned to the fourth order of business.

Senator Plymale, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration

Senate Concurrent Resolution No. 6, Encouraging cooperation in implementing Career and Technical Education College and Career Readiness Initiative.

And,

Senate Concurrent Resolution No. 63, Supporting Federal Pell Grant Program.

And reports the same back with the recommendation they each be adopted.

Respectfully submitted,

Robert H. Plymale,

Chair.

At the request of Senator Plymale, unanimous consent being granted, the resolutions (S. C. R. Nos. 6 and 63) contained in the preceding report from the Committee on Education were taken up for immediate consideration and considered simultaneously.

The question being on the adoption of the resolutions, the same was put and prevailed.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Senator Kessler (Mr. President), from the Committee on Rules, submitted the following report, which was received:

Your Committee on Rules has had under consideration

Senate Concurrent Resolution No. 52, Requesting Joint Committee on Government and Finance study future legislation relating to natural gas reserve development and recovery.

Senate Concurrent Resolution No. 60, Requesting Joint Committee on Government and Finance study compilation of birth parents' nonidentifying social and medical histories prior to adoption.

Senate Concurrent Resolution No. 64, Requesting Joint Committee on Government and Finance study Natural Resources Police.

Senate Concurrent Resolution No. 79, Requesting Joint Committee on Government and Finance study tax credits.

Senate Concurrent Resolution No. 80, Requesting Joint Committee on Government and Finance study Medicaid Program.

And,

Senate Concurrent Resolution No. 84, Requesting Joint Committee on Government and Finance study Religious Freedom Restoration Act.

And reports the same back with the recommendation that they each be adopted.

Respectfully submitted,

Jeffrey V. Kessler,

Chairman ex officio.

At the request of Senator Unger, unanimous consent being granted, the resolutions (S. C. R. Nos. 52, 60, 64, 79, 80 and 84) contained in the preceding report from the Committee on Rules were taken up for immediate consideration and considered simultaneously.

The question being on the adoption of the resolutions, the same was put and prevailed.

Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.

Senator Plymale, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration

Senate Concurrent Resolution No. 67, Requesting Joint Committee on Government and Finance study general revenue funding of community and technical colleges.

And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.

Respectfully submitted,

Robert H. Plymale,

Chair.

The resolution, under the original double committee reference, was then referred to the Committee on Rules.

Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:

Your Committee on Government Organization has had under consideration

Senate Concurrent Resolution No. 76, Requesting Joint Committee on Government and Finance study state governmental continuity.

And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.

Respectfully submitted,

Herb Snyder,

Chair.

The resolution, under the original double committee reference, was then referred to the Committee on Rules.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Eng. Com. Sub. for House Bill No. 4046, Repealing obsolete code provisions.

With amendments from the Committee on Government Organization pending;

And reports the same back with the recommendation that it do pass as amended by the Committee on Government Organization to which the bill was first referred.

Respectfully submitted,

Corey Palumbo,

Chair.

At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4046) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.

Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration

Eng. Com. Sub. for House Bill No. 4068, Providing that antique motor vehicles be valued at their salvage value for personal property tax purposes.

With amendments from the Committee on Transportation and Infrastructure pending;

And has also amended same.

Now on second reading, having been read a first time and referred to the Committee on Finance on March 5, 2012;

And reports the same back with the recommendation that it do pass as last amended by the Committee on Finance.

Respectfully submitted,

Roman W. Prezioso, Jr.,

Chair.

Senator Plymale, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration

Eng. House Bill No. 4072, Eliminating requirement for county boards of education to meet on the first Monday of July.

And reports the same back with the recommendation that it do pass.

Respectfully submitted,

Robert H. Plymale,

Chair.

At the request of Senator Plymale, unanimous consent being granted, the bill (Eng. H. B. No. 4072) contained in the preceding report from the Committee on Education was taken up for immediate consideration, read a first time and ordered to second reading.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Eng. Com. Sub. for House Bill No. 4245, Permitting certain auxiliary lighting on motorcycles.

With amendments from the Committee on Transportation and Infrastructure pending;

Now on second reading, having been read a first time and referred to the Committee on the Judiciary on March 5, 2012;

And reports the same back with the recommendation that it do pass as amended by the Committee on Transportation and Infrasturcture to which the bill was first referred.

Respectfully submitted,

Corey Palumbo,

Chair.

Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration

Eng. Com. Sub. for House Bill No. 4260, Relating to insurance coverage for autism spectrum disorders.

With amendments from the Committee on the Banking and Insurance pending;

Now on second reading, having been referred to the Committee on Finance on March 7, 2012;

And reports the same back with the recommendation that it do pass as amended by the Committee on Banking and Insurance to which the bill was first referred.

Respectfully submitted,

Roman W. Prezioso, Jr.,

Chair.

Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration

Eng. Com. Sub. for House Bill No. 4263, The West Virginia Buy American Act.

And reports the same back with the recommendation that it do pass.

Respectfully submitted,

Roman W. Prezioso, Jr.,

Chair.

At the request of Senator Prezioso, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4263) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.

On motion of Senator Prezioso, the bill was rereferred to the Committee on Finance.

Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration

Eng. Com. Sub. for House Bill No. 4396, West Virginia Fire, EMS and Law-Enforcement Officer Survivor Benefit Act.

With amendments from the Committee on the Judiciary pending;

Now on second reading, having been read a first time and referred to the Committee on Finance on March 7, 2012;

And reports the same back with the recommendation that it do pass as amended by the Committee on the Judiciary to which the bill was first referred.

Respectfully submitted,

Roman W. Prezioso, Jr.,

Chair.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Eng. Com. Sub. for House Bill No. 4486, Relating to the disclosure of insurance coverage.

And has amended same.

And reports the same back with the recommendation that it do pass, as amended.

Respectfully submitted,

Corey Palumbo,

Chair.

Senator Palumbo requested unanimous consent that the bill (Eng. Com. Sub. for H. B. No. 4486) contained in the preceding report from the Committee on the Judiciary be taken up for immediate consideration.

Which consent was not granted, Senator K. Facemyer objecting.

On motion of Senator Palumbo, the bill (Eng. Com. Sub. for H. B. No. 4486) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.

Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:

Your Committee on Government Organization has had under consideration

Eng. Com. Sub. for House Bill No. 4488, Reforming, altering or modifying a county commission.

And has amended same.

And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on the Judiciary.

Respectfully submitted,

Herb Snyder,

Chair.

At the request of Senator Snyder, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4488) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on the Judiciary, with amendments from the Committee on Government Organization pending.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Eng. House Bill No. 4542, Relating to unemployment compensation benefits.

And has amended same.

And reports the same back with the recommendation that it do pass, as amended.

Respectfully submitted,

Corey Palumbo,

Chair.

At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. H. B. No. 4542) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Eng. House Bill No. 4634, Removing the requirement for the Legislative Auditor to conduct certain fiscal audits of the Alcohol Beverage Control Commission and the Children's Trust Fund.

With amendments from the Committee on Government Organization pending;

Now on second reading, having been read a first time and referred to the Committee on the Judiciary on March 6, 2012;

And reports the same back with the recommendation that it do pass as amended by the Committee on Government Organization to which the bill was first referred.

Respectfully submitted,

Corey Palumbo,

Chair.

Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration

Eng. House Bill No. 4656, Making a supplementary appropriation to the Division of Human Services - Temporary Assistance for Needy Families.

Eng. House Bill No. 4657, Making a supplementary appropriation to the Department of Administration - Office of the Secretary - Employee Pension and Health Care Benefit Fund, Division of Purchasing, Department of Environmental Protection, etc..

And,

Eng. House Bill No. 4658, Supplementing, amending, decreasing and increasing items of the existing appropriations from the State Road Fund to the Department of Transportation - Division of Highways.

And reports the same back with the recommendation that they each do pass.

Respectfully submitted,

Roman W. Prezioso, Jr.,

Chair.

At the request of Senator Prezioso, unanimous consent being granted, the bills (Eng. H. B. Nos. 4656, 4657 and 4658) contained in the preceding report from the Committee on Finance were each taken up for immediate consideration, read a first time and ordered to second reading.

The Senate again proceeded to the sixth order of business, which agenda includes the making of main motions.

On motion of Senator Unger, the Senate requested the return from the House of Delegates of

Eng. House Bill No. 4119, Providing a definition for an athletic director who is employed by a county board of education.

Passed by the Senate in earlier proceedings today.

The bill still being in the possession of the Senate,

On motion of Senator Unger, the Senate reconsidered its action by which it adopted Senator Plymale's amendment to the title of the bill (shown in the Senate Journal of today, pages 74 and 75).

The question again being on the adoption of Senator Plymale's amendment to the title of the bill.

Thereafter, at the request of Senator Plymale, unanimous consent being granted, Senator Plymale's amendment to the title of the bill was withdrawn.

On motion of Senator Unger, the Senate reconsidered the vote as to the passage of the bill.

The vote thereon having been reconsidered,

On motion of Senator Unger, the Senate reconsidered its action by which in earlier proceedings today it adopted Senator Plymale's amendment to the bill (shown in the Senate Journal of today, pages 70 through 74, inclusive).

The vote thereon having been reconsidered,

The question again being on the adoption of Senator Plymale's amendment to the bill.

Thereafter, at the request of Senator Plymale, and by unanimous consent, Senator Plymale's amendment to the bill was withdrawn.

Thereupon, on motion of Senator Plymale, the following substitute amendment to the bill was reported by the Clerk and adopted: