Senate Daily Journal

sdj-59th day WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-NINTH LEGISLATURE
REGULAR SESSION, 2010
FIFTY-NINTH DAY
____________

Charleston, W. Va., Friday, March 12, 2010

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Pastor Matthew J. Watts, Grace Bible Church, Charleston, West Virginia.
Pending the reading of the Journal of Thursday, March 11, 2010,
On motion of Senator Browning, 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.
At the request of Senator Chafin, and by unanimous consent, the Senate proceeded to the sixth order of business.
Senators Wells, Tomblin (Mr. President), Jenkins, Minard, Oliverio, Williams, Browning, Yost, Foster, Laird, Stollings, McCabe, Plymale, Prezioso, Green, Kessler, Fanning, Bowman, Unger, Palumbo and Deem offered the following resolution:
Senate Resolution No. 53--Honoring the West Virginia National Guard for its dedicated service to our communities, state and country.
Whereas, The West Virginia National Guard has a three-fold mission: (a) Federal Mission - As a Reserve Component of the Army and the Air Force, maintain combat ready units, soldiers and airmen who are ready to deploy in support of the National Military Strategy; (b) State Mission - Provide organized, trained and equipment units to protect life and property and to preserve peace, order and public safety when ordered by the governor; and (c) Community Mission - To add value to the communities in which we live, work and serve; and
Whereas, The West Virginia National Guard plays a vital role in defending our homeland and contributing to world stability; and
Whereas, The West Virginia National Guard currently has units supporting operations in Iraq, Afghanistan, and Kosovo; and
Whereas, The West Virginia National Guard plays a key role during floods, fires and other natural disasters; and
Whereas, The West Virginia National Guard recently performed a successful search and rescue mission for a Navy helicopter and its 17 crew members that crashed in the rugged and snow covered mountains of Pocahontas County; and
Whereas, The West Virginia National Guard executed a remarkable rescue of a mother and four-week old premature baby who were stranded in a home with no heat in Morgan County, after back-to-back snowstorms in February of 2010; and
Whereas, It is fitting, to salute and pay tribute to the men and women of the West Virginia National Guard for their unyielding commitment to serving and protecting our communities, state and country; therefore, be it
Resolved by the Senate:
That the Senate hereby honors the West Virginia National Guard for its dedicated service to our communities, state and country; and, be it
Further Resolved, That the Senate is grateful for the opportunity to honor the extraordinary men and women of the West Virginia National Guard; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representatives from the West Virginia National Guard.
At the request of Senator Wells, 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 Oliverio, and by unanimous consent, the remarks by Senator Wells regarding the adoption of Senate Resolution No. 53 were ordered printed in the Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
At the request of Senator Kessler, unanimous consent being granted, Senator Kessler offered the following resolution from the floor:
Senate Resolution No. 54-- Honoring Mike Carey, head coach of the West Virginia University Women's basketball team.
Whereas, Mike Carey, a Clarksburg, West Virginia, native, has led the West Virginia University Women's basketball team since 2001 ; and
Whereas, Mike Carey's achievements as head coach speak volumes: four 21-win seasons in six years (a school record); three consecutive postseason appearances (a school record); the second- best four-year span in school history amassing 82 wins (2005-08); 10 career victories over ranked opponents including the highest- ranked team in school history; the highest ranked road team in school history; victories over two eventual national runner-ups; the school's first-ever BIG EAST championship game appearance; consecutive NCAA tournament appearances (2007, 2008) and three trips in five years (2004, 2007, 2008) ; and
Whereas, During the 2009-2010 season, Mike Carey coached the West Virginia University Women's basketball team to a second place finish in the Big East regular season and conference tournament; and
Whereas, Under Mike Carey's leadership, the West Virginia University Women's basketball team has been ranked in the top 10 nationally for much of the 2009-2010 season ; and
Whereas, For his dedication and commitment to the West Virginia University Women's basketball team , Mike Carey was named the 2009-2010 Big East Coach of the Year; therefore, be it
Resolved by the Senate:
That the Senate hereby honors Mike Carey, head coach of the West Virginia University Women's basketball team ; and, be it
Further Resolved, That the Senate wishes Mike Carey and the West Virginia University Women's basketball team the best of luck in the upcoming 2010 NCAA Tournament; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Mike Carey.
At the request of Senator Kessler, 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 Oliverio, and by unanimous consent, the remarks by Senator Kessler regarding the adoption of Senate Resolution No. 54 were ordered printed in the Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and proceeded to the seventh order of business.
Senate Concurrent Resolution No. 61, Urging EPA not veto Spruce Mine permit.
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.
Senate Concurrent Resolution No. 71, Requesting Joint Committee on Government and Finance study certain impact of landfills and monofills.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on the Judiciary; and then to the Committee on Rules.
Senate Concurrent Resolution No. 72, Requesting Joint Committee on Government and Finance study economic impact of industrial traffic.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure; and then to the Committee on Rules.
Senate Resolution No. 52, Honoring Gen. Louis L. Wilson, Jr.
On unfinished, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the resolution was laid over one day, retaining its place on the calendar.
Senator Chafin 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 removed from the Senate third reading calendar, Engrossed Committee Substitute for House Bill No. 4652.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2663, Expanding the power of municipal parking authority officers.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--32.
The nays were: Chafin--1.
Absent: Caruth--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. 2663) 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. 4018, Establishing that possession of a mixture or preparation intended for human consumption containing salvia divinorum is unlawful.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4018) 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. 4034, Authorizing any municipality to enact by ordinance a vacant property registration program.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4034) 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. 4039, Increasing the number of persons that may be appointed to the Marshall County Park and Recreation Board.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4039) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4039) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4130, Creating the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bowman, Browning, Deem, Edgell, D. Facemire, Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--26.
The nays were: Barnes, Boley, Chafin, K. Facemyer, Fanning, Hall and Sypolt--7.
Absent: Caruth--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.
At the request of Senator Kessler, as chair of the Committee on the Judiciary, and by unanimous consent, the unreported Judiciary committee amendment to the title of the bill was withdrawn.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4130--A Bill to amend and reenact §3-1A-1, §3-1A-4 and §3-1A-5 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §3-12-1, §3-12-2, §3-12-3, §3-12-4, §3-12-5, §3-12-6, §3-12-7, §3-12-8, §3-12-9, §3-12-10, §3-12-11, §3-12-12, §3-12-13, §3-12-14, §3-12-15, §3-12-16 and §3-12-17, all relating to creating the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program; giving additional duties and per diem pay to the State Election Commission; authorizing the State Election Commission to use video, telephone and Internet conferencing; providing alternative public campaign financing option for candidates for the West Virginia Supreme Court of Appeals in 2012; setting forth short title and certain legislative findings and declarations; defining terms; specifying that the provisions of the act are applicable to candidates for the West Virginia Supreme Court of Appeals in the 2012 primary and general elections; establishing the Supreme Court of Appeals Public Campaign Financing Fund and sources of revenue for the fund; authorizing transfer from the Purchasing Card Administration Fund to the fund for three years; requiring an applicant for public campaign financing to complete a declaration of intent and setting forth the manner in which an application for funding may be made; setting forth eligibility criteria for qualifying candidates; allowing participating candidates to raise funds from private sources and spend exploratory contributions; requiring candidates seeking public campaign funds to collect a required number of qualifying contributions; requiring candidates to provide detailed receipts to contributors and to the State Election Commission for exploratory and qualifying contributions; requiring participating candidates to comply with all provisions of the act; requiring the State Election Commission to certify eligible candidates and setting forth the procedure for certification; providing for challenges to certification; providing for revocation of certification; providing for withdrawal from program; providing for distribution of funds from the Public Campaign Financing Fund to qualified candidates for funding election campaigns; specifying the amount of funds available for each candidate and when the funds become available; setting forth restrictions on participating candidates' contributions and spending; prohibiting participating candidates from accepting private contributions other than as specifically set forth in the act; providing for repayment of funds under certain circumstances; prohibiting the use of personal funds for certain purposes; permitting qualified candidates to raise funds from private sources when there is insufficient money in the Public Campaign Financing Fund to make a complete distribution to all qualified candidates; requiring certain disclosures; requiring candidates to keep records and report to the State Election Commission; providing for additional funds when independent expenditures or opponent expenditures exceed certain limits; setting forth certain duties of the State Election Commission and the Secretary of State; authorizing emergency and legislative rules; authorizing the creation of a voters' guide; providing for the deposit of certain revenue into the fund; requiring repayment of excessive expenditures by candidates; providing both civil and criminal penalties for violations of the act; and expiring the act in 2013.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 4138, Relating to the practice of medical imaging and radiation therapy.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4138) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4138) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4145, Providing services and facilities to assist student veterans at state institutions of higher education.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4145) passed.
The following amendment to the title of the bill, from the Committee on Military, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4145--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18B-4-9, relating to requiring the Commission and Council to establish and implement measures to provide services and facilities to assist student veterans at state institutions of higher education; and providing for annual reports to the Legislature.
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. 4172, Authorizing the Division of Motor Vehicles to issue special license plates for members of certain organizations upon approval of the commissioner.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4172) 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. 4194, Codifying the Division of Criminal Justice Services being incorporated into the Department of Military Affairs and Public Safety.
On third reading, coming up in regular order, with the unreported Government Organization amendment pending, and with the right having been granted on yesterday, Thursday, March 11, 2010, for other amendments to be received on third reading, was reported by the Clerk.
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 §5F-2-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto three new sections, designated §15-9A-1, §15-9A-2 and §15-9A-3, all to read as follows:
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Administration:
(1) Building Commission provided in article six, chapter five of this code;
(2) Public Employees Insurance Agency provided in article sixteen, chapter five of this code;
(3) Governor's Mansion Advisory Committee provided in article five, chapter five-a of this code;
(4) Commission on Uniform State Laws provided in article one-a, chapter twenty-nine of this code;
(5) West Virginia Public Employees Grievance Board provided in article three, chapter six-c of this code;
(6) Board of Risk and Insurance Management provided in article twelve, chapter twenty-nine of this code;
(7) Boundary Commission provided in article twenty-three, chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one, chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article two, chapter six-b of this code;
(11) Consolidated Public Retirement Board provided in article ten-d, chapter five of this code; and
(12) Real Estate Division provided in article ten, chapter five-a of this code.
(b) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in article one, chapter twenty-two-a of this code. The following boards are transferred to the Office of Miners' Health, Safety and Training for purposes of administrative support and liaison with the office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review Committee provided in article six, chapter twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine, chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the Division of Tourism and the Tourism Commission provided in article two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter nineteen of this code;
(6) Geological and Economic Survey provided in article two, chapter twenty-nine of this code; and
(7) Workforce West Virginia provided in chapter twenty-one-a of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Services;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article two-f, chapter five-b of this code.
(c) The Economic Development Authority provided in article fifteen, chapter thirty-one of this code is continued as an independent agency within the executive branch.
(d) The Water Development Authority and Board provided in article one, chapter twenty-two-c of this code is continued as an independent agency within the executive branch.
(e) The following agencies and boards, including all of the allied, advisory and affiliated entities, are transferred to the Department of Environmental Protection for purposes of administrative support and liaison with the office of the Governor:
(1) Air Quality Board provided in article two, chapter twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three, chapter twenty-two-c of this code;
(3) Environmental Quality Board, or its successor board, provided in article three, chapter twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in article seven, chapter twenty-two-c of this code;
(6) Shallow Gas Well Review Board provided in article eight, chapter twenty-two-c of this code; and
(7) Oil and Gas Conservation Commission provided in article nine, chapter twenty-two-c of this code.
(f) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Education and the Arts:
(1) Library Commission provided in article one, chapter ten of this code;
(2) Educational Broadcasting Authority provided in article five, chapter ten of this code;
(3) Division of Culture and History provided in article one, chapter twenty-nine of this code;
(4) Division of Rehabilitation Services provided in section two, article ten-a, chapter eighteen of this code.
(g) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Health and Human Resources:
(1) Human Rights Commission provided in article eleven, chapter five of this code;
(2) Division of Human Services provided in article two, chapter nine of this code;
(3) Bureau for Public Health provided in article one, chapter sixteen of this code;
(4) Office of Emergency Medical Services and Advisory Council provided in article four-c, chapter sixteen of this code;
(5) Health Care Authority provided in article twenty-nine-b, chapter sixteen of this code;
(6) Commission on Mental Retardation provided in article fifteen, chapter twenty-nine of this code;
(7) Women's Commission provided in article twenty, chapter twenty-nine of this code; and
(8) The Child Support Enforcement Division provided in chapter forty-eight of this code.
(h) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Military Affairs and Public Safety:
(1) Adjutant General's Department provided in article one-a, chapter fifteen of this code;
(2) Armory Board provided in article six, chapter fifteen of this code;
(3) Military Awards Board provided in article one-g, chapter fifteen of this code;
(4) West Virginia State Police provided in article two, chapter fifteen of this code;
(5) Division of Homeland Security and Emergency Management and Disaster Recovery Board provided in article five, chapter fifteen of this code and Emergency Response Commission provided in article five-a of said chapter;
(6) Sheriffs' Bureau provided in article eight, chapter fifteen of this code;
(7) Division of Justice and Community Services provided in article nine a, chapter fifteen of this code;
~~(7)~~ (8) Division of Corrections provided in chapter twenty-five of this code;
~~(8)~~ (9) Fire Commission provided in article three, chapter twenty-nine of this code;
~~(9)~~ (10) Regional Jail and Correctional Facility Authority provided in article twenty, chapter thirty-one of this code;
~~(10)~~ (11) Board of Probation and Parole provided in article twelve, chapter sixty-two of this code; and
~~(11)~~ (12) Division of Veterans' Affairs and Veterans' Council provided in article one, chapter nine-a of this code.
(i) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Revenue:
(1) Tax Division provided in article one, chapter eleven of this code;
(2) Racing Commission provided in article twenty-three, chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director provided in article twenty-two, chapter twenty-nine of this code;
(4) Agency of Insurance Commissioner provided in article two, chapter thirty-three of this code;
(5) Office of Alcohol Beverage Control Commissioner provided in article sixteen, chapter eleven of this code and article two, chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided in article three, chapter thirty-one-a of this code;
(7) Lending and Credit Rate Board provided in chapter forty-seven-a of this code;
(8) Division of Banking provided in article two, chapter thirty-one-a of this code;
(9) The State Budget Office provided in article two of this chapter;
(10) The Municipal Bond Commission provided in article three, chapter thirteen of this code;
(11) The Office of Tax Appeals provided in article ten-a, chapter eleven of this code; and
(12) The State Athletic Commission provided in article five-a, chapter twenty-nine of this code.
(j) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Transportation:
(1) Division of Highways provided in article two-a, chapter seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority provided in article sixteen-a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided in article two, chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided in article two, chapter seventeen-b of this code;
(5) Aeronautics Commission provided in article two-a, chapter twenty-nine of this code;
(6) State Rail Authority provided in article eighteen, chapter twenty-nine of this code; and
(7) Port Authority provided in article sixteen-b, chapter seventeen of this code.
(k) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the position of administrator and the powers, authority and duties of each administrator and agency are not affected by the enactment of this chapter.
(l) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the existence, powers, authority and duties of boards and the membership, terms and qualifications of members of the boards are not affected by the enactment of this chapter. All boards that are appellate bodies or are independent decision makers shall not have their appellate or independent decision-making status affected by the enactment of this chapter.
(m) Any department previously transferred to and incorporated in a department by prior enactment of this section means a division of the appropriate department. Wherever reference is made to any department transferred to and incorporated in a department created in section two, article one of this chapter, the reference means a division of the appropriate department and any reference to a division of a department so transferred and incorporated means a section of the appropriate division of the department.
(n) When an agency, board or commission is transferred under a bureau or agency other than a department headed by a secretary pursuant to this section, that transfer is solely for purposes of administrative support and liaison with the Office of the Governor, a department secretary or a bureau. Nothing in this section extends the powers of department secretaries under section two of this article to any person other than a department secretary and nothing limits or abridges the statutory powers and duties of statutory commissioners or officers pursuant to this code.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 9A. Division of Justice and Community Services.
§15-9A-1. Legislative findings.
The West Virginia Division of Justice and Community Services is required to perform certain administrative and executive functions related to the improvement of the criminal justice and juvenile justice systems, and various component agencies of state and local government with research and performance data, planning, funding and managing programs supported by federal and state granted funds, and through its staff activities on behalf of the Governor's Committee on Crime, Delinquency and Correction, to provide regulatory oversight of law enforcement training and certification, community corrections programs established under the provisions of article eleven-c, chapter sixty-two of this code, and the monitoring of facilities for compliance with juvenile detention facilities standards established by state and federal law. These administrative and executive staffing functions are necessary to provide for planning and coordination of services among the components of the criminal and juvenile justice systems; program development and implementation; and administration of grant funded programs emphasizing safety, prevention, coordination and the general enhancement of the criminal justice system as a whole, as well as such other federal grant funded activities as the Governor may from time to time designate for administration by the Division.
§15-9A-2. Division established; appointment of director.
(a) The Division of Justice and Community Services is created. The purpose of the division is to provide executive and administrative support to the Governor's Committee on Crime Delinquency and Correction in the coordination of planning for the criminal justice system, to administer federal and state grant programs assigned to it by the actions of the Governor or Legislature, and to perform such other duties as the legislature may from time to time assign to the Division.
(b) The director of the division shall be named by the Governor to serve at his will and pleasure.
(c) The director of the division shall take and subscribe to an oath of office in conformity with article IV, section five of the Constitution of the State of West Virginia.
§15-9A-3 Duties and powers of the director.
(a) The director is responsible for the control and supervision of the division.
(b) The director shall be charged with executive and administrative responsibility to (i) carry out the specific duties imposed on the Governor's Committee on Crime, Delinquency and Correction under the provisions of article nine, chapter fifteen; article twenty-nine, chapter thirty; and article eleven-c, chapter sixty-two of this code; (ii) maintain appropriate liaison with federal, state and local agencies and units of government, or combinations thereof, in order that all programs, projects and activities for strengthening and improving law enforcement and the administration of criminal justice may function effectively at all levels of government, and (iii) seek sources of federal grant assistance programs that may benefit the state when authorized by the Governor and manage the dispersal of those funds through grant contracts to sub-grantees in a manner consistent with state and federal law, and with sound and accountable management practices for the efficient and effective use of public funds.
(c) The director may:
(1) Employ necessary personnel, assign them the duties necessary for the efficient management and operation of the division;
(2) Work to bridge gaps between federal, state and local units of government, as well as private/non-profit organizations and the general public;
(3) Provide staff assistance in the coordination of all facets of the criminal and juvenile justice systems on behalf of the Governor's Committee on Crime Delinquency and Correction, including but not limited to law enforcement, jails, corrections, community corrections and victim services;
(4) Acquire criminal justice resources and coordinate the allocation of these resources to state, local and not-for-profit agencies;
(5) Maintain a web based data base for all community correction programs;
(6) Through the Criminal Justice Statistical Analysis Center, collect, compile, and analyze crime and justice data in the state, generating statistical and analytical products for criminal justice professionals professional and policy makers to establish a basis for sound policy and practical considerations for the criminal justice system and make such recommendations for system improvement as may be warranted by such research;
(7) Receive and disburse federal and state grants.
Nothing in this chapter shall be construed as authorizing the division to undertake direct operational responsibilities in law enforcement or the administration of criminal justice.
There being no further amendments offered,
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4194) was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4194) passed.
The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4194--A Bill to amend and reenact §5F-2-1 of the Code of West Virginia, 1931, as amended, and that said code be amended by adding thereto three new sections designated §15-9A-1, §15-9A-2 and §15-9A-3, all relating to codifying the Division of Justice and Community Services being incorporated in and administered as a part of the Department of Military Affairs and Public Safety.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4194) takes effect July 1, 2010.
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. 4207, Making it unlawful to send obscene, anonymous, harassing and threatening communications by computer, mobile phone, personal digital assistant or other mobile device.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4207) 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. 4207--A Bill to amend and reenact §61-3C-14a of the Code of West Virginia, 1931; and to amend and reenact §61-8-16 of said code, all relating to crimes using computers and electronic devices; creating offenses for the unlawful transmission of obscene, anonymous, harassing and threatening communications and data by mobile phone, personal digital assistant or other mobile device; clarifying provisions pertaining to the unlawful obscene, anonymous, harassing and threatening communications by traditional voice communication by telephone; prohibiting using computers or electronic devices to cause eavesdropping and data interception programs onto mobile phones and similar devices of another without that person's knowledge and consent; creating the misdemeanor offense of unlawful impersonation of another by computer or other electronic means; creating a felony offense for certain repeat offenses using a computer, mobile phone or other mobile device; and establishing penalties.
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. 4248, Relating to the solicitation of charitable funds.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4248) 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. 4285, Relating to the licensing of residential mortgage brokers, lenders and loan originators by the Division of Banking.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4285) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 4373, Eliminating the twelve-month look-back period for certain children who have had employer sponsored insurance.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4373) 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. 4504, Adopting the Uniform State Military Code of Justice into West Virginia law.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4504) passed.
On motion of Senator Kessler, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4504--A Bill to amend and reenact §15-1E-1, §15-1E-2, §15-1E-3, §15-1E-4, §15-1E-5, §15-1E-6, §15-1E-7, §15-1E-8, §15-1E-9, §15-1E-10, §15-1E-11, §15-1E-12, §15- 1E-13, §15-1E-14, §15-1E-15, §15-1E-16, §15-1E-17, §15-1E-18, §15- 1E-19, §15-1E-20, §15-1E-21, §15-1E-22, §15-1E-23, §15-1E-24, §15- 1E-25, §15-1E-26, §15-1E-27, §15-1E-28, §15-1E-29, §15-1E-30, §15- 1E-31, §15-1E-32, §15-1E-33, §15-1E-34, §15-1E-35, §15-1E-36, §15- 1E-37, §15-1E-38, §15-1E-39, §15-1E-40, §15-1E-41, §15-1E-42, §15- 1E-43, §15-1E-44, §15-1E-45, §15-1E-46, §15-1E-47, §15-1E-48, §15- 1E-49, §15-1E-50, §15-1E-51, §15-1E-52, §15-1E-53, §15-1E-54, §15- 1E-55, §15-1E-56, §15-1E-57, §15-1E-58, §15-1E-59, §15-1E-60, §15- 1E-61, §15-1E-62, §15-1E-63, §15-1E-64, §15-1E-65, §15-1E-66, §15- 1E-67, §15-1E-68, §15-1E-69, §15-1E-70, §15-1E-71, §15-1E-72, §15- 1E-73, §15-1E-74, §15-1E-75, §15-1E-76, §15-1E-77, §15-1E-78, §15- 1E-79, §15-1E-80, §15-1E-81, §15-1E-82, §15-1E-83, §15-1E-84, §15- 1E-85, §15-1E-86, §15-1E-87, §15-1E-88, §15-1E-89, §15-1E-90, §15-1E-91, §15-1E-92, §15-1E-93, §15-1E-94, §15-1E-95, §15-1E-96, §15- 1E-97, §15-1E-98, §15-1E-99, §15-1E-100, §15-1E-101, §15-1E-102, §15-1E-103, §15-1E-104, §15-1E-105, §15-1E-106, §15-1E-107, §15-1E- 108, §15-1E-109, §15-1E-110, §15-1E-111, §15-1E-112, §15-1E-113, §15-1E-114, §15-1E-115, §15-1E-116, §15-1E-117, §15-1E-118, §15-1E- 119, §15-1E-120, §15-1E-121, §15-1E-122, §15-1E-123, §15-1E-124, §15-1E-125, §15-1E-126, §15-1E-127, §15-1E-128, §15-1E-129, §15-1E- 130, §15-1E-131, §15-1E-132, §15-1E-133, §15-1E-134, §15-1E-135, §15-1E-136, §15-1E-137 and §15-1E-138, of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto eighteen new sections, designated §15-1E-50a, §15-1E-57a, §15-1E-58a, §15-1E-58b, §15-1E-67a, §15-1E-76a, §15-1E-76b, §15-1E- 112a, §15-1E-139, §15-1E-140, §15-1E-141, §15-1E-142, §15-1E-143, §15-1E-144, §15-1E-145, §15-1E-146, §15-1E-147 and §15-1E-148, all relating to adopting the Uniform State Military Code of Justice; defining terms; designating persons subject to this code and jurisdiction; noting the territorial applicability of the code; detailing apprehension and restraint procedures; establishing nonjudicial punishment authority; stating court-martial jurisdiction; prescribing appointment and composition of courts- martial; describing pretrial and trial procedure; specifying sentences after conviction; delineating post-trial procedure and review of courts-martial; establishing punitive articles; and creating miscellaneous provisions.
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. 4557, Reviewing all of the Department of Health and Human Resources requests for proposals or change orders valued at over $500,000 prior to their release.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4557) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 4559, Relating to the requirements to be certified as a registered forester.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4559) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4559) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4615, Authorizing political subdivisions to establish risk pools to insure their workers' compensation risks.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4615) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4615) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4630, Relating to refunding of appraisal fees.
On third reading, coming up in regular order, was read a third time and put upon its passage.
Prior to the call of the roll, Senator Williams moved to be excused from voting under rule number forty-three of the Rules of the Senate, which motion prevailed.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Yost and Tomblin (Mr. President)--30.
The nays were: Edgell and D. Facemire--2.
Absent: Caruth--1.
Excused from voting: Williams--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. 4630) 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. 4652, Establishing a school calendar committee for each county.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2773, Increasing the monetary penalties for selling tobacco products to minors.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on the Judiciary, were reported by the Clerk, considered simultaneously, and adopted:
On page three, section two, line fourteen, by striking out "$100" and inserting in lieu thereof "$50";
On page five, section three, line eleven, by striking out "$100" and inserting in lieu thereof "$50";
And,
On page five, section three, line thirteen, by striking out "$150" and inserting in lieu thereof "$100".
The bill (Eng. Com. Sub. for H. B. No. 2773), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2773) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 2773) 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. 2773--A Bill to amend and reenact §16-9A-2 of the Code of West Virginia, 1931, as amended, all relating to prohibited access and usage of tobacco products by minors; increasing the monetary penalties for selling tobacco products to minors; providing that the sale or furnishing of tobacco products to minors may constitute grounds for dismissal as an act of misconduct; and clarifying the impact of such a dismissal on the discharged employees' eligibility to receive unemployment benefits.
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. 3152, Athletic Trainers Registration Act.
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:
The Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §30-20A-1, §30-20A-2, §30- 20A-3, §30-20A-4, §30-20A-5, §30-20A-6 and §30-20A-7 all to read as follows:
ARTICLE 20A. ATHLETIC TRAINERS.
§30-20A-1. Definitions.
As used in this article:
(1) "Applicant" means any person making application for an original or renewal registration to act as an athletic trainer under the provisions of this article.
(2) "Board" means the West Virginia Board of Physical Therapy established under article twenty of this chapter.
(3) "Registrant" means a person registered as an athletic trainer under the provisions of this article.
(4) "Registration" means a registration issued by the board to practice athletic training.
§30-20A-2. Title protection.
(a) A person may not advertise or represent himself or herself as an athletic trainer in this state and may not use the initials "AT", the words "registered athletic trainer" or "athletic trainer", or any other words, abbreviations, titles or insignia that indicates, implies or represents that he or she is an athletic trainer, unless he or she is registered by the board.
(b) Nothing contained in this article shall be construed as preventing any person, firm, partnership or corporation from practicing athletic training, in any manner desired.
(c) Nothing in this article may be construed to prohibit or otherwise limit the use of the term "athletic trainer" in secondary school settings by persons who were practicing athletic training under a West Virginia Board of Education Athletic Certification, provided the practice is in accordance with Board of Education policy in effect prior to July 1, 2011.
§30-20A-3. Powers and duties of the board.
The board has the following powers and duties:
(1) Establish procedures for submitting, approving and denying applications for registration;
(2) Investigate alleged violations of the provisions of this article;
(3) Establish a fee schedule;
(4) Issue, renew, deny, suspend, revoke or reinstate a registration;
(5) Determine disciplinary action and issue orders;
(6) Institute appropriate legal action for the enforcement of the provisions of this article; and
(7) Maintain an accurate registry of the names and addresses of registrants.
§30-20A-4. Rulemaking authority.
The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty- nine-a of this code, to implement the provisions of this article, including:
(1) Procedures for the issuance and renewal of a registration;
(2) A fee schedule;
(3) Procedures for denying, suspending, revoking, reinstating or limiting the registration of a registrant; and
(4) Any other rules necessary to effectuate the provisions of this article.
§30-20A-5. Requirements for registration.
(a) To be eligible for registration by the board as an athletic trainer, an applicant shall:
(1) Submit an application in the form prescribed by the board;
(2) Submit a current certification from the National Athletic Trainers' Association Board of Certification or successor organization; and
(3) Pay the required fee.
(b) The board shall issue a registration to an applicant satisfying all the requirements in subsection (a) of this section: Provided, That the board may deny an application for registration if the applicant:
(1) Has been convicted of a felony or other crime involving moral turpitude;
(2) Is an alcohol or drug abuser as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code: Provided, That the board may take into consideration that an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve- step program or other similar group or process;
(3) Has been convicted of fraudulent, false, misleading or deceptive advertising;
(4) Has been convicted for wrongfully prescribing medicines or drugs, or practicing any licensed profession without legal authority;
(5) Has had a registration or other authorization revoked, suspended, restricted or other disciplinary action taken by the proper authorities of another jurisdiction;
(6) Is incapacitated by a physical or mental disability which is determined by a physician to render further practice by the applicant inconsistent with competency and ethic requirements; or
(7) Has been convicted of sexual abuse or sexual misconduct.
(c) In determining whether an application should be denied for any of the reasons set forth in subsection (b), the board may consider:
(1) How recently the conduct occurred;
(2) The nature of the conduct and the context in which it occurred; and
(3) Any other relevant conduct of the applicant.
(d) A registration issued by the board is valid for two years from the date it was issued.
§30-20A-6. Renewal requirements.
(a) A registrant may apply to renew his or her registration by submitting an application for renewal in the form prescribed by the board and paying the renewal fee. The renewal application must be signed by the applicant.
(b) A renewal of registration issued by the board is valid for two years from the date it was issued.
(c) The board may deny an application for renewal for any reason which would justify the denial of an original application for a registration.
§30-20A-7. Due process procedures; grounds for disciplinary action.
(a) The board may, after notice and opportunity for hearing, suspend, restrict or revoke a registration of, impose probationary conditions upon or take disciplinary action against, any registrant if the board determines the registrant:
(1) Is grossly negligent in the practice of athletic training;
(2) Obtained a registration by fraud, misrepresentation or concealment of material facts; engaged in the practice of athletic training under a false or assumed name; or impersonated another registrant of a like or different name; or
(3) Has violated any of the provisions of subsection (b), section five of this article.
(b) For purposes of subsection (a) of this section, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fines;
(4) Practicing under supervision or other restriction;
(5) Requiring the registrant to report to the board for periodic interviews for a specified period of time; or
(6) Other corrective action as determined by the board.
The bill (Eng. Com. Sub. for H. B. No. 3152), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Caruth and Hall--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 3152) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 3152) passed.
The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3152--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §30-20A-1, §30-20A-2, §30-20A-3, §30-20A-4, §30-20A-5, §30-20A-6 and §30-20A-7 all relating to athletic trainers; providing definitions; restricting the use of certain titles; setting forth powers and duties of the board; setting forth rulemaking authority; providing for registration of athletic trainers; establishing registration criteria; establishing renewal requirements; and allowing for disciplinary actions.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 4036, Establishing the Judicial Vacancy Advisory Commission.
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. 4140, Relating to the board of physical therapy.
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 §30-20-8a of the Code of West Virginia, 1931, as amended, be repealed; that §30-20-1, §30-20-2, §30-20-3, §30-20-4, §30-20-5, §30-20-6, §30-20-7, §30-20-8, §30-20-9, §30-20-10, §30-20-11, §30- 20-12, §30-20-13, §30-20-14 and §30-20-15 be amended and reenacted; and that said code be amended by adding thereto seven new sections, designated §30-20-16, §30-20-17, §30-20-18, §30-20-19, §30-20-20, §30-20-21 and §30-20-22 all to read as follows:
ARTICLE 20. PHYSICAL THERAPISTS.
§30-20-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice physical therapy in this state without a license or permit issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that they are a physical therapist or a physical therapist assistant unless the person has been duly licensed or permitted under the provisions of this article, and the license or permit has not expired, been suspended or revoked.
(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of physical therapy, except through a licensee or permittee.
(c) A person who is not licensed under this article as a physical therapist may not characterize himself or herself as a "physical therapist", "physiotherapist", or "doctor of physical therapy", nor may a person use the designation "PT", "DPT", "LPT", "CPT", or "RPT".
(d) A person who is not licensed under this article as a physical therapist assistant may not characterize himself or herself as a "physical therapist assistant", nor may a person use the designation "PTA".
§30-20-2. Applicable law.
The practices licensed under the provisions of this article and the Board of Physical Therapy are subject to article one of this chapter, the provisions of this article, and any rules promulgated hereunder.
§30-20-3. Definitions.
As used in this article:
(1) "Applicant" means any person making application for an original or renewal license or a temporary permit under the provisions of this article.
(2) "Board" means the West Virginia Board of Physical Therapy.
(3) "Business entity" means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity providing physical therapy services.
(4) "Consultation" means a physical therapist renders an opinion or advice to another physical therapist or health care provider through telecommunications.
(5) "Direct supervision" means the actual physical presence of the physical therapist in the immediate treatment area where the treatment is being rendered.
(6) "General supervision" means the physical therapist must be available at least by telecommunications.
(7) "License" means a physical therapist license or license to act as a physical therapist assistant issued under the provisions of this article.
(8) "Licensee" means a person holding a license under the provisions of this article.
(9) "On-site supervision" means the supervising physical therapist is continuously on-site and present in the building where services are provided, is immediately available to the person being supervised, and maintains continued involvement in appropriate aspects of each treatment session.
(10) "Permit" or "temporary permit" means a temporary permit issued under the provisions of this article.
(11) "Permittee" means any person holding a temporary permit issued pursuant to the provisions of this article.
(12) "Physical therapy aide" means a person trained under the direction of a physical therapist who performs designated and routine tasks related to physical therapy services under the direction supervision of a physical therapist.
(13) "Physical therapist" means a person engaging in the practice of physical therapy who holds a license or permit issued under the provisions of this article.
(14) "Physical therapist assistant" means a person holding a license or permit issued under the provisions of this article who assists in the practice of physical therapy by performing patient related activities delegated to him or her by a physical therapist and performs under the supervision of a physical therapist and which patient related activities commensurate with his or her education and training, including physical therapy procedures, but not the performance of evaluative procedures or determination and modification of the patient plan of care.
(15) "Practice of physical therapy" or "physiotherapy" means the care and services as described in section nine of this article.
(16) "Telecommunication" means audio, video or data communication.
§30-20-4. West Virginia Board of Physical Therapy.
(a) The West Virginia Board of Physical Therapy is continued. The members of the board in office on July 1, 2010, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.
(b) To be effective July 1, 2010, the Governor shall appoint, by and with the advice and consent of the Senate:
(1) One person who is a physical therapist assistant for a term of five years; and
(2) One citizen member, who is not licensed under the provisions of this article and who does not perform any services related to the practice of the professions regulated under the provisions of this article or have a financial interest in any health care profession, for a term of three years.
(c) Commencing July 1, 2010, the board shall consist of the following seven members:
(1) Five physical therapists;
(2) One physical therapist assistant; and
(3) One citizen member.
(d) After the initial appointment term, the term shall be for five years. All appointments to the board shall be made by the Governor by and with the advice and consent of the Senate.
(e) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than five years immediately preceding the appointment.
(f) Each member of the board must be a resident of this state during the appointment term.
(g) A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified.
(h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.
(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(j) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked.
(k) Any member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.
(l) The board shall elect annually one of its members as chairperson who serves at the will of the board.
(m) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.
(n) A majority of the members of the board constitutes a quorum.
(o) The board shall hold at least two annual meetings. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.
(p) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-20-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for licenses and permits;
(3) Establish procedures for submitting, approving and rejecting applications for licenses and permits;
(4) Determine the qualifications of any applicant for licenses and permits;
(5) Prepare, conduct, administer and grade examinations for licenses;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix the compensation of the executive secretary;
(9) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees, investigators and contracted employees necessary to enforce the provisions of this article;
(10) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;
(11) Conduct disciplinary hearings of persons regulated by the board;
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of the provisions of this article;
(14) Maintain an accurate registry of names and addresses of all persons regulated by the board;
(15) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;
(16) Establish the continuing education requirements for licensees;
(17) Issue, renew, combine, deny, suspend, restrict, revoke or reinstate licenses and permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and
(20) Take all other actions necessary and proper to effectuate the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer examinations required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this state; and
(3) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.
§30-20-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty- nine-a of this code, to implement the provisions of this article, including:
(1) Standards and requirements for licenses and permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare or administer, or both, examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses and permits;
(8) A fee schedule;
(9) The scope of practice and supervision of physical therapist assistants;
(10) Responsibilities of a physical therapist and physical therapist assistant concerning the practice and supervision of physical therapy aides;
(11) Continuing education requirements for licensees;
(12) Establishing a maximum ratio of physical therapist assistants, or physical therapy aides involved in the practice of physical therapy, or any combinations that can be supervised by a physical therapist at any one time;
(13) Exceptions to the ratio of physical therapist assistants a physical therapist may supervise including emergencies, safety and temporary situations;
(14) Permitting a physical therapist assistant to directly supervise a physical therapy aide in an emergency situation;
(15) The procedures for denying, suspending, restricting, revoking, reinstating or limiting the practice of licensees and permittees;
(16) Adopt a standard for ethics;
(17) Requirements for inactive or revoked licenses or permits; and
(18) Any other rules necessary to effectuate the provisions of this article.
(b) The board shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code, to establish a maximum ratio of physical therapist assistants, or physical therapy aides involved in the practice of physical therapy, or any combinations that can be supervised by a physical therapist at any one time.
(c) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are amended or repealed and references to provisions of former enactments of this article are interpreted to mean provisions of this article.
§30-20-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "West Virginia Board of Physical Therapy Fund", which is continued. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.
(b) Any amounts received as fines pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.
§30-20-8. License to practice physical therapy.
(a) To be eligible for a license to engage in the practice of physical therapy, the applicant must:
(1) Submit an application to the board;
(2) Be at least eighteen years of age;
(3) Be of good moral character;
(4) Have graduated from an accredited school of physical therapy approved by the Commission on Accreditation in Physical Therapy Education or a successor organization;
(5) Pass a national examination as approved by the board;
(6) Not be an alcohol or drug abuser, as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-step program or other similar group or process, may be considered;
(7) Not have been convicted of a felony in any jurisdiction within ten years preceding the date of application for license which conviction remains unreversed;
(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted related to the practice of physical therapy, which conviction remains unreversed; and
(9) Has fulfilled any other requirement specified by the board.
(b) A physical therapist shall use the letters "PT" immediately following his or her name to designate licensure under this article.
(c) A license to practice physical therapy issued by the board prior to July 1, 2010, is considered a license issued under this article: Provided, That a person holding a license issued prior to July 1, 2010, must renew the license pursuant to the provisions of this article.
§30-20-9. Scope of practice of a physical therapist.
A physical therapist may:
(1) Examine, evaluate and test patients or clients with mechanical, physiological and developmental impairments, functional limitations, and disabilities or other health and movement related conditions in order to determine a diagnosis, prognosis and plan of treatment intervention, and to assess the ongoing effects of intervention: Provided, That electromyography examination and electrodiagnostic studies other than the determination of chronaxia and strength duration curves shall not be performed except under the supervision of a physician electromyographer and electrodiagnostician;
(2) Alleviate impairments, functional limitations and disabilities by designing, implementing and modifying treatment interventions that may include, but are not limited to: therapeutic exercise; functional training in self-care in relation to motor control function; mobility; in home, community or work integration or reintegration; manual therapy techniques including mobilization of the joints; therapeutic massage; fabrication of assistive, adaptive, orthothic, prosthetic, protective and supportive devices and equipment; airway clearance techniques; integumentary protection and repair techniques; patient-related instruction; mechanical and electrotherapeutic modalities; and physical agent or modalities including, but not limited to, heat, cold, light, air, water and sound;
(3) Reduce the risk of injury, impairment, functional limitation and disability, including the promotion and maintenance of fitness, health and wellness in populations of all ages; and
(4) Engage in administration, consultation and research.
§30-20-10. License to act as a physical therapist assistant.
(a) To be eligible for a license to act as a physical therapist assistant, the applicant must:
(1) Submit an application to the board;
(2) Be at least eighteen years of age;
(3) Be of good moral character;
(4) Have graduated from a two-year college level education program for physical therapist assistants which meets the standards established by the Commission on Accreditation in Physical Therapy Education and the board;
(5) Have passed the examination approved by the board for a license to act as a physical therapist assistant;
(6) Not be an alcohol or drug abuser, as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-step program or other similar group or process, may be considered;
(7) Not have been convicted of a felony in any jurisdiction within ten years preceding the date of application for license which conviction remains unreversed;
(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted related to the practice of physical therapy, which conviction remains unreversed; and
(10) Meet any other requirements established by the board.
(b) A physical therapist assistant shall use the letters "PTA" immediately following his or her name to designate licensure under this article.
(c) A license to act as a physical therapist assistant issued by the board prior to July 1, 2010, is considered a license issued under this article: Provided, That a person holding a license issued prior to July 1, 2010, must renew the license pursuant to the provisions of this article.

§30-20-11. License to practice physical therapy from another jurisdiction.

(a) The board may issue a license to practice physical therapy to an applicant who holds a valid license or other authorization to practice physical therapy from another state, if the applicant:
(1) Holds a license or other authorization to practice physical therapy in another state which was granted after completion of educational requirements substantially equivalent to those required in this state;
(2) Passed an examination that is substantially equivalent to the examination required in this state;
(3) Does not have charges pending against his or her license or other authorization to practice, and has never had a license or other authorization to practice revoked;
(4) Has not previously failed an examination for a license to practice physical therapy in this state;
(5) Has paid the applicable fee;
(6) Is a citizen of the United States or is eligible for employment in the United States; and
(7) Has fulfilled any other requirement specified by the board.
(b) The board may issue a license to practice physical therapy to an applicant who has been educated outside of the United States, if the applicant:
(1) Provides satisfactory evidence that the applicant's education is substantially equivalent to the educational requirements for physical therapists under the provisions of this article;
(2) Provides written proof that the applicant's school of physical therapy is recognized by its own ministry of education;
(3) Has undergone a credentials evaluation as directed by the board that determines that the candidate has met uniform criteria for educational requirements as further established by rule;
(4) Has paid the applicable fee;
(5) Is eligible for employment in the United States; and
(6) Complete any additional requirements as required by the board.
(c) The board may issue a restricted license to an applicant who substantially meets the criteria established in subsection (b) of this section.
§30-20-12. Temporary permits.
(a) Upon completion of the application and payment of the nonrefundable fees, the board may issue a temporary permit, for a period not to exceed 90 days, to an applicant to practice as a physical therapist in this state or act as a physical therapist assistant in this state, if the applicant has completed the educational requirements set out in this article, pending the examination and who works under a supervising physical therapist with the scope of the supervision to be defined by legislative rule.
(b) The temporary permit expires thirty days after the board gives written notice to the permittee of the results of the first examination held following the issuance of the temporary permit, if the permittee receives a passing score on the examination. The permit shall expire immediately if the permittee receives a failing score on the examination.
(c) A temporary permit may be revoked by a majority vote of the board.
(d) An applicant may be issued only one temporary permit, and upon the expiration of the temporary permit, may not practice as a physical therapist or act as physical therapist assistant until he or she is fully licensed under the provisions of this article.

§30-20-13. Special volunteer physical therapist license, physical therapist assistant license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer license for physical therapists or physical therapist assistants, as the case may be, retired or retiring from active practice who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer license provided by this section shall be issued by the West Virginia Board of Physical Therapy to physical therapists or physical therapist assistants licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements. The board shall develop application forms for the special volunteer license provided in this section which shall contain the applicant's acknowledgment that:
(1) The applicant's practice under the special volunteer license will be exclusively devoted to providing physical therapy care to needy and indigent persons in West Virginia;
(2) The applicant may not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any physical therapy services rendered under the special volunteer license;
(3) The applicant shall supply any supporting documentation that the board may reasonably require; and
(4) The applicant shall continue to participate in continuing education as required by the board for special volunteer physical therapists or physical therapist assistants license, as the case may be.
(b) Any physical therapist or physical therapist assistant who renders any physical therapy service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the physical therapy service at the clinic unless the act or omission was the result of gross negligence or willful misconduct on the part of the physical therapist or physical therapist assistant. In order for the immunity under this subsection to apply, there must be a written agreement between the physical therapist or physical therapist assistant and the clinic stating that the physical therapist or physical therapist assistant will provide voluntary uncompensated physical therapy services under the control of the clinic to patients of the clinic before the rendering of any services by the physical therapist or physical therapist assistant at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of a physical therapist or physical therapist assistant rendering voluntary physical therapy services at or for the clinic under a special volunteer license authorized under this section.
(d) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure for a physical therapist or physical therapist assistant, as the case may be, except the fee requirements.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer license to any physical therapist or physical therapist assistant whose license is or has been subject to any disciplinary action or to any physical therapist or physical therapist assistant who has surrendered a license or caused a license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a license in inactive status in lieu of having a complaint initiated or other action taken against his or her license or who has been denied a license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physical therapist or physical therapist assistant covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policy holder or any beneficiary there of the policy, to any claim covered by the terms of the policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a physical therapist or physical therapist assistant who holds a special volunteer license.
§30-20-14. Renewal requirements.
(a) All persons regulated by this article shall annually or biannually before January 1, renew his or her license by completing a form prescribed by the board and submitting any other information required by the board.
(b) The board shall charge a fee for each renewal of a license and shall charge a late fee for any renewal not paid by the due date.
(c) The board shall require as a condition of renewal that each licensee complete continuing education.
(d) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license.
§30-20-15. Delinquent and expired license requirements.
(a) If a license is not renewed when due, then the board shall automatically place the licensee on delinquent status.
(b) The fee for a person on delinquent status shall increase at a rate, determined by the board, for each month or fraction thereof that the renewal fee is not paid, up to a maximum of thirty-six months.
(c) Within thirty-six months of being placed on delinquent status, if a licensee wants to return to active practice, he or she must complete all the continuing education requirements and pay all the applicable fees as set by rule.
(d) After thirty-six months of being placed on delinquent status, a license is automatically placed on expired status and cannot be renewed. A person whose license has expired must reapply for a new license.
§30-20-16. Inactive license requirements.
(a) A licensee who does not want to continue an active practice shall notify the board in writing and be granted inactive status.
(b) A person granted inactive status is not subject to the payment of any fee and may not practice physical therapy or act as a physical therapist assistant in this state.
(c) When the person wants to return to the practice of physical therapy or act as a physical therapist assistant, the person shall submit an application for renewal along with all applicable fees as set by rule.
§30-20-17. Exemptions from licensure.
(a) The following persons are exempt from licensing requirements under the provisions of this article:
(1) A person who practices physical therapy pursuant to a course of study at an institution of higher learning, including, but not limited to, activities conducted at the institution of higher learning and activities conducted outside the institution if under the on-site supervision of a physical therapist;
(2) A person who practices physical therapy in the United States Armed Services, United States Public Health Service or Veterans Administration pursuant to federal regulations for state licensure of health care providers;
(3) A physical therapist who is licensed in another jurisdiction of the United States or credentialed to practice physical therapy in another country if that person is teaching, demonstrating or providing physical therapy services in connection with teaching or participating in an educational seminar of no more than sixty calendar days in a calendar year;
(4) A physical therapist who is licensed in another state if that person is consulting;
(5) A physical therapist who is licensed in another jurisdiction, if that person by contract or employment is providing physical therapy to individuals affiliated with or employed by established athletic teams, athletic organizations or performing arts companies temporarily practicing, competing or performing in the state for no more than sixty calendar days in a calendar year;
(6) A physical therapist who is licensed in another jurisdiction who enters this state to provide physical therapy during a declared local, state or national disaster or emergency. This exemption applies for no longer than sixty calendar days in a calendar year following the declaration of the emergency. The physical therapist shall notify the board of their intent to practice;
(7) A physical therapist licensed in another jurisdiction who is forced to leave his or her residence or place of employment due to a declared local, state or national disaster or emergency and due to the displacement seeks to practice physical therapy. This exemption applies for no longer than sixty calendar days in a calendar year following the declaration of the emergency. The physical therapist shall notify the board of their intent to practice; and
(8) A person administering simple massages and the operation of health clubs so long as not intended to constitute or represent the practice of physical therapy.
(9) A physical therapist assistant assisting an exempt physical therapist.
(10) Nothing contained in this article prohibits a person from practicing within his or her scope of practice as authorized by law.
§30-20-18. Display of license.
(a) The board shall prescribe the form for a license and permit, and may issue a duplicate license or permit upon payment of a fee.
(b) Any person regulated by the article shall conspicuously display his or her license or permit at his or her principal business location.

§30-20-19. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules promulgated pursuant to this article.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee or permittee.
(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license or permit or the imposition of sanctions against the licensee or permittee. Any hearing shall be held in accordance with the provisions of this article.
(e) Any member of the board or the executive secretary of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.
(f) Any member of the board or its executive secretary may sign a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend, restrict or revoke the license or permit of, or impose probationary conditions upon or take disciplinary action against, any licensee or permittee for any of the following reasons once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a license or permit by fraud, misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the board;
(4) Intentional violation of a lawful order or legislative rule of the board;
(5) Having had a license or other authorization revoked or suspended, other disciplinary action taken, or an application for licensure or other authorization revoked or suspended by the proper authorities of another jurisdiction;
(6) Aiding or abetting unlicensed practice; or
(7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public.
(h) For the purposes of subsection (g) of this section, effective July 1, 2010, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Restrictions;
(4) Administrative fine, not to exceed $1,000 per day per violation;
(5) Mandatory attendance at continuing education seminars or other training;
(6) Practicing under supervision or other restriction; or
(7) Requiring the licensee or permittee to report to the board for periodic interviews for a specified period of time.
(i) In addition to any other sanction imposed, the board may require a licensee or permittee to pay the costs of the proceeding.
§30-20-20. Procedures for hearing; right of appeal.
(a) Hearings are governed by the provisions of section eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.
(d) Any member or the executive secretary of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee or permittee has violated provisions of this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.
§30-20-21. Judicial review.
Any licensee or permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.
§30-20-22. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee or permittee has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.
(b) A person violating section one of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $5,000 or confined in jail not more than six months, or both fined and confined.
The bill (Eng. Com. Sub. for H. B. No. 4140), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4140) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--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. 4140) passed.
The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4140--A Bill to repeal §30- 20-8a of the Code of West Virginia, 1931, as amended; to amend and reenact §30-20-1, §30-20-2, §30-20-3, §30-20-4, §30-20-5, §30-20-6, §30-20-7, §30-20-8, §30-20-9, §30-20-10, §30-20-11, §30-20-12, §30- 20-13, §30-20-14 and §30-20-15; and to amend said code by adding thereto seven new sections, designated §30-20-16, §30-20-17, §30-20-18, §30-20-19, §30-20-20, §30-20-21 and §30-20-22 all relating to the Board of Physical Therapy; prohibiting the practice of physical therapy without a license; providing other applicable sections; providing definitions; providing for board composition; setting forth the powers and duties of the board; clarifying rulemaking authority; continuing a special revenue account; establishing license requirements; clarifying a scope of practice; providing for licensure for persons licensed in another state; establishing renewal requirements; providing permit requirements; establishing a special volunteer license; clarifying requirements for a license that is delinquent, expired or inactive; providing exemptions from licensure; requiring display of license; setting forth grounds for disciplinary actions; allowing for specific disciplinary actions; providing procedures for investigation of complaints; providing for judicial review and appeals of decisions; setting forth hearing and notice requirements; providing for civil causes of action and providing criminal penalties.
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. 4143, Relating to emergency medical services.
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 4C. EMERGENCY MEDICAL SERVICES ACT.

§16-4C-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(a) "Ambulance" means any privately or publicly-owned vehicle or aircraft which is designed, constructed or modified; equipped or maintained; and operated for the transportation of patients, including, but not limited to, emergency medical services vehicles; rotary and fixed wing air ambulances; gsa kkk-A-1822 federal standard type I, type II and type III vehicles; and specialized multipatient medical transport vehicles operated by an emergency medical services agency;
(b) "Commissioner" means the Commissioner of the Bureau of for Public Health;
(c) "Council" means the Emergency Medical Service Advisory Council created pursuant to ~~section five of~~ this article;
(d) "Director" means the Director of the Office of Emergency Medical Service in the Bureau for Public Health.
~~(d)~~ (e) "Emergency Medical Services" means all services which are set forth in Public Law 93-154 "The Emergency Medical Services Systems Act of 1973" and those included in and made a part of the emergency medical services plan of the Department of Health and Human Resources inclusive of, but not limited to, responding to the medical needs of an individual to prevent the loss of life or aggravation of illness or injury;
~~(e)~~ (f) "Emergency medical service agency" means any agency licensed under section six-a of this article to provide emergency medical services;
(f) "Emergency medical service attendant" means a person certified by the commissioner pursuant to the provisions of section eight of this article to render the services authorized pursuant to the provisions of section fourteen of this article;
(g) "Emergency medical service personnel" means any person certified by the commissioner to provide emergency medical services ~~authorized in section eight of this article and includes, but is not limited to, emergency medical service attendant, emergency medical technician-basic and emergency medical technician-paramedic~~ as set forth by legislative rule;
(h) "Emergency medical service provider" means any authority, person, corporation, partnership or other entity, public or private, which owns or operates a licensed emergency medical services agency providing emergency medical service in this state;
(i) "Emergency medical technician-basic" means a person certified by the commissioner pursuant to the provisions of section eight of this article to render the services authorized pursuant to the provisions of section fourteen of this article;
(j) "Emergency medical technician-paramedic" means a person certified by the commissioner pursuant to the provisions of section eight of this article to render services as authorized pursuant to the provisions of section fourteen of this article;
~~(k)~~ (i) "Governing body" has the meanings ascribed to it as applied to a municipality in subdivision (1), subsection (b), section two, article one, chapter eight of this code;
~~(l)~~ (j) "Line officer" means the emergency medical service personnel, present at the scene of an accident, injury or illness, who has taken the responsibility for patient care;
~~(m)~~ (k) "Medical command" means the issuing of orders by a physician from a medical facility to emergency medical service personnel for the purpose of providing appropriate patient care;
~~(n)~~ (l) "Municipality" has the meaning ascribed to it in subdivision (1), subsection (a), section two, article one, chapter eight of this code;
~~(o)~~ (m) "Patient" means any person who is a recipient of the services provided by emergency medical services;
~~(p)~~ (n) "Service reciprocity" means the provision of emergency medical services to citizens of this state by emergency medical service personnel certified to render those services by a neighboring state;
~~(q)~~ (o) "Small emergency medical service provider" means any emergency medical service provider which is made up of less than twenty emergency medical service personnel; and
~~(r)~~ (p) "Specialized multipatient medical transport" means a type of ambulance transport provided for patients with medical needs greater than those of the average population, which may require the presence of a trained emergency medical technician during the transport of the patient: Provided, That the requirement of "greater medical need" may not prohibit the transportation of a patient whose need is preventive in nature.
§16-4C-6. Powers and duties of commissioner.
The commissioner ~~shall have~~ has the following powers and duties:
(a) In accordance with chapter twenty-nine-a of this code, to propose rules regarding the age, training, retraining, testing, certification and recertification, and fees for the certification and recertification, of emergency medical service personnel. However, the commissioner may not propose any rule required by this article until it has been submitted for review to the emergency medical services advisory council and this council has had at least thirty days to review such proposed rule. The council may take no action unless a quorum is present; To propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided, That the rules have been submitted at least thirty days in advance for review by the Emergency Medical Services Advisory Council, who may act only in the presence of a quorum. The rules may include:
(1) Standards and requirements for certification and recertification of emergency medical service personnel, including, but not limited to:
(A) Age, training, testing and continuing education;
(B) Procedures for certification and recertification, and for denying, suspending, revoking, reinstating and limiting a certification or recertification;
(C) Levels of certification and the scopes of practice for each level;
(D) Standards of conduct; and,
(E) Causes for disciplinary action and sanctions which may be imposed.
(2) Standards and requirements for licensure and licensure renewals of emergency medical service agencies, including:
(A) Operational standards, levels of service, personnel qualifications and training, communications, public access, records management, reporting requirements, medical direction, quality assurance and review, and other requirements necessary for safe and efficient operation;
(B) Inspection standards and establishment of improvement periods to ensure maintenance of the standards;
(C) Fee schedules for licensure, renewal of licensure and other necessary costs;
(D) Procedures for denying, suspending, revoking, reinstating or limiting an agency licensure;
(E) Causes for disciplinary action against agencies; and
(F) Administrative penalties, fines and other disciplinary sanctions which may be imposed on agencies;
(3) Standards and requirements for emergency medical service vehicles, including classifications and specifications;
(4) Standards and requirements for training institutions, including approval or accreditation of sponsors of continuing education, course curricula and personnel;
(5) Standards and requirements for a State Medical Direction System, including qualifications for a State Emergency Medical Services Medical Director and Regional Medical Directors, the establishment of a State Medical Policy and Care Committee and the designation of Regional Medical Command Centers;
(6) Provision of services by emergency medical services personnel in hospital emergency rooms; and
(7) Any other rules necessary to carry out the provisions of this article.
(b) To apply for, receive and expend advances, grants, contributions and other forms of assistance from the state or federal government or from any private or public agencies or foundations to carry out the provisions of this article;.
(c) To design, develop and ~~annually~~ review a Statewide Emergency Medical Services Implementation Plan. The plan shall recommend aid and assistance and all other acts necessary to carry out the purposes of this article:
(1) To encourage local participation by area, county and community officials and regional emergency medical services boards of directors; and
(2) To develop a system for monitoring and evaluating emergency medical services programs throughout the state;.
(d) To provide professional and technical assistance and to make information available to Regional Emergency Medical Services Boards of Directors and other potential applicants or program sponsors of emergency medical services for purposes of developing and maintaining a statewide system of services;.
(e) To assist local government agencies, Regional Emergency Medical Services Boards of Directors and other public or private entities in obtaining federal, state or other available funds and services;.
(f) To cooperate and work with federal, state and local governmental agencies, private organizations and other entities as may be necessary to carry out the purposes of this article;.
(g) To acquire in the name of the state by grant, purchase, gift, devise or any other methods appropriate real and personal property as may be reasonable and necessary to carry out the purposes of this article;.
(h) To make grants and allocations of funds and property so acquired or which may have been appropriated to the agency to other agencies of state and local government as may be appropriate to carry out the purposes of this article;.
(i) To expend and distribute by grant or bailment funds and property to all state and local agencies for the purpose of performing the duties and responsibilities of the agency all funds which it may have so acquired or which may have been appropriated by the Legislature of this state;.
(j) To develop a program to inform the public concerning emergency medical services;.
(k) To review and disseminate information regarding federal grant assistance relating to emergency medical services;.
(l) To prepare and submit to the Governor and Legislature recommendations for legislation in the area of emergency medical services;.
(m) To review, make recommendations for and assist in all projects and programs that provide for emergency medical services whether or not the projects or programs are funded through the Office of Emergency Medical Services. A review and approval shall be required for all emergency medical services projects, programs or services for which application is made to receive state or federal funds for their operation after the effective date of this act; and
(n) To take all necessary and appropriate action to encourage and foster the cooperation of all emergency medical service providers and facilities within this state.
(o) Nothing in this article may be construed to allow the commissioner to dissolve, invalidate or eliminate any existing emergency medical service program or ambulance providers in service at the time of adoption of the amendment to this article in the regular session of the Legislature in the year 1984, or to deny them fair access to federal and state funding, medical facilities and training programs.
§16-4C-6a. Emergency medical services agency licensure.
(a) Any person who proposes to establish or maintain an emergency medical services agency shall file an application with the commissioner ~~The application is to include~~ which includes the identity of the applicant, any parent or affiliated entity, the proposed level of service and the number of emergency medical service response vehicles of the agency or proposed agency. The commissioner may require that additional information be included on each application.
(b) Upon receipt and review of the application the commissioner shall issue a license if he or she finds that the applicant meets the requirements and quality standards, to be established by the commissioner, for an emergency medical services agency license, and if the applicant has certified under penalty of perjury that he or she is current with all lawful obligations owed the State of West Virginia, excluding obligations owed in the current quarter, including, but not limited to, payment of taxes and workers' compensation premiums: Provided, That the certification set forth in this ~~paragraph shall be~~ paragraph is required for the original application and subsequent ~~renewal thereof~~ renewals.
Upon review and consultation with the advisory council the commissioner may, pursuant to the provisions of article three, chapter twenty-nine-a of this code, establish reasonable fee schedules for application and licensure.
§16-4C-8. Standards for emergency medical service personnel.
(a) Every ambulance operated by an emergency medical service agency shall carry at least two personnel. At least one person shall be certified in cardiopulmonary resuscitation or first aid and the person in the patient compartment shall be certified as an emergency medical technician-basic at a minimum except that in the case of a specialized multipatient medical transport, only one staff person is required and that person shall be certified, at a minimum, at the level of an emergency medical technician-basic. The requirements of this subsection will remain in effect until revised by the legislative rule to be promulgated pursuant to subsection (b) of this section.
~~(b) As a minimum the training for each class of emergency medical service personnel shall include:~~
~~(1) Emergency medical service attendant: Shall have earned and possess valid certificates from the department or by authorities recognized and approved by the commissioner;~~
(2) Emergency medical technician-basic: Shall have successfully completed the course for certification as an emergency medical technician-basic as established by the commissioner or authorities recognized and approved by the commissioner; and
(3) Emergency medical technician-paramedic: Shall have successfully completed the course for certification as an emergency medical technician-paramedic established by the commissioner or authorities recognized and approved by the commissioner.
~~(c) Subsection (b) of this section may not be considered to limit the power of the commissioner to prescribe training, certification and recertification standards.~~
(b) On or before May 28, 2010, the commissioner shall submit a proposed legislative rule to the Emergency Medical Services Advisory Council for review, and on or before June 30, 2010, shall file the proposed legislative rule with the office of the Secretary of State, in accordance with the provisions of chapter twenty-nine-a, article three of this code, to establish certification standards for emergency medical vehicle operators and to revise the requirements for emergency medical service personnel.
(c) As of the effective date of the legislative rule to be promulgated pursuant to subsection (b) of this section, emergency medical service personnel who operate ambulances shall meet the requirements set forth in the legislative rule.
(d) Any person desiring emergency medical service personnel certification shall apply to the commissioner using forms and procedures prescribed by the commissioner. Upon receipt of the application, the commissioner shall determine whether the applicant meets the certification requirements and may examine the applicant, if necessary to make that determination.
(e) The applicant shall submit to a national criminal background check, the requirement of which is declared to be not against public policy.
(1) The applicant shall meet all requirements necessary to accomplish the national criminal background check, including submitting fingerprints, and authorizing the West Virginia Office of Emergency Medical Services, the West Virginia State Police and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for certification.
(2) The results of the national criminal background check may not be released to or by a private entity.
(3) The applicant shall submit a fee of $75 for initial certification and a fee of $50 for recertification. The fees set forth in this subsection remain in effect until modified by legislative rule.
(f) If the Commissioner determines that the applicant meets all of the requirements, he or she shall issue an appropriate emergency medical service personnel certificate which shall be valid for a period as determined by the Commissioner.
(g) State and county continuing education and recertification programs for all levels of emergency medical service providers shall be available to emergency medical service providers at a convenient site within one hundred miles of the provider's primary place of operation at sites determined by the regional emergency medical services offices. The continuing education program shall be provided at a cost specified in a fee schedule to be promulgated by legislative rule in accordance with article three, chapter twenty-nine-a of this code by the Secretary of the Department of Health and Human Resources to all nonprofit emergency medical service personnel.
(f) An application for an original, renewal or temporary emergency medical service personnel certificate or emergency medical services agency license, shall be acted upon by the commissioner and the certificate or license delivered or mailed, or a copy of any order of the commissioner denying any such application delivered or mailed to the applicant, within fifteen days after the date upon which the complete application including test scores and background checks, if applicable, was received by the commissioner.
(g) Any person may report to the commissioner or the Director of the Office of Emergency Medical Services information he or she may have that appears to show that a person certified by the commissioner may have violated the provisions of this article or legislative rules promulgated pursuant to this article. A person who is certified by the commissioner, who knows of or observes another person certified by the commissioner violating the provisions of this article or legislative rules promulgated pursuant to this article, has a duty to report the violation to the commissioner or director. Any person who reports or provides information in good faith is immune from civil liability.
(h) The commissioner may issue a temporary emergency medical service personnel certificate to an applicant, with or without examination of the applicant, when he or she finds that issuance to be in the public interest. Unless suspended or revoked, a temporary certificate shall be valid initially for a period not exceeding one hundred twenty days and may not be renewed unless the commissioner finds the renewal to be in the public interest. The expiration date of a temporary certificate shall be extended until the holder is afforded at least one opportunity to take an emergency medical service personnel training course within the general area where he or she serves as an emergency medical service personnel, but the expiration date may not be extended for any longer period of time or for any other reason.

§16-4C-9. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The commissioner may at any time upon his or her own motion, and shall, upon the ~~verified~~ written complaint of any person, cause an investigation to be conducted to determine whether ~~there are any~~ grounds exist for ~~the suspension or revocation of a certificate, temporary certificate or license issued~~ disciplinary action under ~~the provisions of~~ this article or legislative rules promulgated pursuant to this article.
(b) An investigator or other person who, under the direction of the commissioner or the director, gathers or reports information in good faith to the commissioner or the director, is immune from civil liability.
(c) After reviewing any information obtained through an investigation, the commissioner or director shall determine if probable cause exists that the licensee or certificate holder has violated any provision of this article or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee or certificate holder has violated any provision of this article or rules promulgated pursuant to this article, the commissioner or director shall provide a copy of the complaint to the licensee or certificate holder.
(e) The commissioner or the director may enter into a consent decree or hold a hearing for the suspension or revocation of the license or certification or the imposition of sanctions against the licensee or certificate holder.
(f) The commissioner or the director issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person or agency regulated by the article.
(g) The commissioner or the director may sign a consent decree or other legal document related to the complaint.
~~(b)~~ (h) The commissioner shall suspend or revoke any certificate, temporary certificate or license when he or she finds the holder ~~thereof~~ has:
(1) Obtained a certificate, temporary certificate or license by means of fraud or deceit; or
(2) Been grossly incompetent, and/or grossly negligent as defined by the commissioner in accordance with rules or by prevailing standards of emergency medical services care; or
(3) Failed or refused to comply with the provisions of this article or any ~~reasonable~~ legislative rule promulgated by the commissioner ~~hereunder~~ or any order or final decision of the commissioner; or
(4) Engaged in any act during the course of duty which has endangered or is likely to endanger the health, welfare or safety of the public.
(i) The commissioner or the director may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license or certification of, impose probationary conditions upon or take disciplinary action against, any licensee or certificate holder for any violation of this article or any rule promulgated pursuant to this article, once a violation has been proven by a preponderance of the evidence.
(j) Disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative penalties and fines;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or holder of a certificate to report to the commissioner or director for periodic interviews for a specified period of time;
(7) Other disciplinary action considered by the commissioner or director to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk; or
(8) Other sanctions as set forth by legislative rule promulgated pursuant to this article.
~~(c)~~ (k) The commissioner shall suspend or revoke any certificate or, temporary certificate or license if he or she finds the existence of any grounds which would justify the denial of an application for the certificate, temporary ~~permit or license~~ certificate or license if application were then being made for it.
§16-4C-10. Procedures for hearing; right of appeal; judicial review.

An application for an original, renewal or temporary emergency medical service personnel certificate or emergency medical services agency license, shall be acted upon by the commissioner and the certificate delivered or mailed, or a copy of any order of the commissioner denying any such application delivered or mailed to the applicant, within fifteen days after the date upon which the application including test scores, if applicable, was received by the commissioner.
Whenever the commissioner refuses to issue an emergency medical service personnel certificate or a temporary emergency medical service personnel certificate or emergency medical services agency license, or suspends or revokes an emergency medical service personnel certificate, or a temporary emergency medical service personnel certificate, he or she shall make and enter an order to that effect, which shall specify the reasons for the denial, suspension or revocation, and shall cause a copy of the order to be served in person or by certified mail, return receipt requested, on the applicant or certificate or license holder, as the case may be.
Whenever a certificate or license is suspended or revoked, the commissioner shall in the order of suspension or revocation direct the holder thereof to return his or her certificate to the commissioner. It shall be the duty of the certificate or license holder to comply with any such order following expiration of the period provided for an appeal to the commissioner.
Any applicant or certificate or license holder, adversely affected by an order made and entered by the commissioner may appeal to the commissioner for an order vacating or modifying the order or for such order as the commissioner should have entered. The person so appealing shall be known as the appellant. An appeal shall be perfected by filing a notice of appeal with the commissioner within ten days after the date upon which the appellant received the copy of the order. The notice of appeal shall be in a form and contain the information prescribed by the commissioner, but in all cases shall contain a description of any order appealed from and the grounds for the appeal. The filing of the notice of appeal shall operate to stay or suspend execution of any order which is the subject matter of the appeal. All of the pertinent provisions of article five, chapter twenty-nine-a of this code apply to and govern the hearing on appeal and the administrative procedures in connection with and following the hearing, with like effect as if the provisions of said article were set forth in extenso herein.
The commissioner shall set a hearing date which shall be not less than ten days after he or she received the notice of appeal unless there is a postponement or continuance. The commissioner may postpone or continue any hearing on his or her own motion, or for good cause shown upon the application of the appellant. The appellant shall be given notice of the hearing in person or by certified mail, return receipt requested. Any such hearing shall be held in Charleston, Kanawha County, West Virginia, unless another place is specified by the commissioner.
After the hearing and consideration of all of the testimony, evidence and record in the case, the commissioner shall make and enter an order affirming, modifying or vacating his or her initial order or shall make and enter any new order. The order shall be accompanied by findings of fact and conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code, and a copy of the order and accompanying findings and conclusions shall be served upon the appellant, in person or by certified mail, return receipt requested.
(a) Hearings are governed by the provisions of article five, chapter twenty-nine a of this code.
(b) The commissioner or director may conduct the hearing or elect to have an Administrative Law Judge conduct the hearing.
(c) If the hearing is conducted by an Administrative Law Judge, the Administrative Law Judge shall prepare a proposed written order at the conclusion of a hearing containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the commissioner or director so directs. The commissioner may accept, reject or modify the decision of the Administrative Law Judge.
(d) The commissioner or director has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the commissioner or director determines the licensee or holder of a certificate has violated any provision of this article or the legislative rules promulgated pursuant to this article, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.
(f) The order of the Commissioner or director is final unless vacated or modified upon judicial review. ~~thereof~~
(g) Any ~~appellant~~ licensee or certificate holder adversely affected by a final order made and entered by the commissioner or director is entitled to judicial review. ~~thereof~~ All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code ~~shall~~ apply to and govern the review with like effect as if the provisions of ~~said~~ the section were set forth ~~in extenso~~ herein.
(h) The judgment of the circuit court ~~shall be~~ is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
§16-4C-12. Violations; criminal penalties.
(a) When, as a result of an investigation under this article or otherwise, the commissioner or director has reason to believe that a licensee or certificate holder has committed a criminal offense, the commissioner or director may bring the information to the attention of an appropriate law-enforcement official.
(b) Any person who violates any ~~condition of licensure~~ law or rule or operates an ambulance with an insufficient number of emergency medical service personnel aboard when not lawfully permitted to do so, or who represents himself or herself as a certified emergency medical service personnel knowing the representation to be untrue, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than ~~one thousand dollars~~ $5,000.
§16-4C-16. Limitation of liability; mandatory errors and omissions insurance.

~~(1)~~ (a) Every person, corporation, ambulance service, emergency medical service provider, emergency ambulance authority, emergency ambulance service or other person which employs emergency medical service personnel with or without wages for ambulance service or provides ambulance service in any manner, shall obtain a policy of insurance insuring the person or entity and every employee, agent or servant ~~thereof~~, against loss from the liability imposed by law for damages arising from any error or omission in the provision of emergency medical services as enumerated by this article, in an amount no less than $1,000,000 per incident. ~~Provided,~~ That each emergency medical services agency having less than this amount on the first day of January, one thousand nine hundred ninety-six, shall obtain the policy of insurance required in this section in the amount of one million dollars on or before the first day of March, one thousand nine hundred ninety-seven. New applicants shall obtain the insurance required in this section in the amount of one million dollars
~~(2)~~ (b) No emergency medical service personnel or emergency medical service provider ~~may be~~ is liable for civil damages or injuries in excess of the amounts for which the person or entity is actually insured, unless the damages or injuries are intentionally or maliciously inflicted.
~~(3)~~ (c) Every person or entity required by this section to obtain a policy of insurance ~~as contemplated by this section~~ shall furnish proof of the existence of the policy to the commissioner on or before January 1 of each calendar year. ~~proof of the existence of the policy of insurance required by this section~~
~~(4)~~ (d) ~~In the event that~~ Any person or entity who fails to secure a policy of insurance before ~~the person or entity undertakes the provision of~~ providing emergency medical services ~~or emergency medical service agency, whichever occurs last, and keeps the policy of insurance in force thereafter, that person or entity~~ is not entitled to the limited ~~immunity~~ liability created by subsection ~~(2)~~ (b) of this section: Provided, That any physician, who gives instructions to emergency medical service personnel without being compensated, ~~therefor~~ or who treats any patient transported in an ambulance or treats any patient prior to the transport, without being compensated, ~~therefor~~ is entitled to the limited ~~immunity~~ liability provided in subsection ~~(2)~~ (b) of this section.
On motion of Senator Kessler, the following amendment to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4143) was reported by the Clerk and adopted:
On page twenty-two, section twelve, subsection (b), by striking out "$5,000" and inserting in lieu thereof the following: "$1,000: Provided, That after July 1, 2010, the fine shall not be more than $5,000".
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. 4143), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4143) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4143) 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. 4143--A Bill to repeal §16- 4C-5a of the Code of West Virginia, 1931, as amended; to amend and reenact §16-4C-3, §16-4C-6, §16-4C-6a, §16-4C-8, §16-4C-9, §16-4C- 10, §16-4C-12 and §16-4C-16 of said code, all relating to emergency medical services; revising definitions; revising powers and duties of the commissioner; revising rulemaking authority; revising requirement to review statewide emergency medical services implementation plan; revising requirements to operate emergency medical vehicle; revising standards for emergency medical service personnel; requiring applicants to allow the State Police access to personal background information; removing nonutilized code sections; requiring certified persons to report violations; providing immunity from civil liability for reporting violations; clarifying procedures for complaint investigation, hearings, rights of appeal and judicial review; removing automatic stay on appeal; increasing criminal penalties; clarifying limitations on immunity in the absence of required insurance policy; and removing antiquated language.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4143) 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. 4177, Dedicating five percent of coal severance tax to the county of origin.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Finance, were reported by the Clerk, considered simultaneously, and adopted:
On page one, after the article heading by inserting the following:

§11-13A-4a. Measure of tax on integrated producer and processor of timber products.

For purposes of this section, the term "green lumber" means boards of wood, that have been sawed from various species of logs in various lengths, widths and thicknesses, but that have not undergone any further processing, including, but not limited to, drying, in a dry kiln, or otherwise.
A person who produces timber and further saws, mills or otherwise manufactures the same into green lumber or other wood products excluding manufacturing by-products for sale, profit or commercial use, shall report twenty-five percent of his gross proceeds from the sale thereof as the gross value of the timber be produced for purposes of the tax imposed under section three-b of this article. Where no sale is made of such saw, milled or otherwise manufactured green lumber or other wood products by such a producer, the amount of the gross value of the same shall be determined according to the provisions of section two of this article used in determining the gross value of similar natural resource products, after application of post severance processing that is generally applied by the industry to obtain commercially marketable or usable natural resource products, which determination may be based on data contained in regularly published independent market reports of the current, arms-length sale of similar products in the vicinity where such post severance processing occurs and twenty-five percent of the amount so determined shall be reported as the gross value of the timber produced for purposes of the tax imposed under section three-b of this article: Provided, That in the case of green lumber that, before its sale, has undergone subsequent processing in a dry kiln, the gross value of such green lumber, before it was transported to the dry kiln for such processing, shall be the gross value, twenty-five percent of which is reported as the gross value of the timber produced for purposes of the tax imposed under section three-b of this article.;
And,
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section designated §11-13A-4a; and that §11-13A-5a of said code be amended and reenacted, all to read as follows:.
The bill (Eng. H. B. No. 4177), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 4177) was then read a third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed House Bill No. 4177 pass?"
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4177) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 4177--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section designated §11-13A-4a; and to amend and reenact §11-13A-5a of said code, all relating to the severance and business privilege tax act; clarifying the measure of tax on integrated producer and processor of timber products; and dedicating five percent of coal severance tax to the county of origin and specifying permissible uses for the money.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Unger, and by unanimous consent, the remarks by Senator Stollings regarding the passage of Engrossed House Bill No. 4177 were ordered printed in the Appendix to the Journal.
Eng. Com. Sub. for House Bill No. 4188, Anti-Criminal Street Gang Act.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Kessler, as chair of the Committee on the Judiciary, and by unanimous consent, the unreported Judiciary 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 clause and inserting in lieu thereof the following:
That §30-29-3 and §30-29-10 of the Code of West Virginia, 1931, as amended, be amended and reenacted, and that said code be further amended by adding thereto a new article, designated article §61-13-1, §61-13-2, §61-13-3, §61-13-4, §61-13-5 and §61-13-6, all to read as follows:
§30-29-3. Duties of the Governor's committee and the subcommittee.
Upon recommendation of the subcommittee, the Governor's committee shall, by or pursuant to ~~rule or regulation~~ rules proposed for legislative approval in accordance with article three, chapter twenty-nine-a of this code:
(a) Provide funding for the establishment and support of law- enforcement training academies in the state;
(b) Establish standards governing the establishment and operation of the law-enforcement training academies, including regional locations throughout the state, in order to provide access to each law-enforcement agency in the state in accordance with available funds;
(c) Establish minimum law-enforcement instructor qualifications;
(d) Certify qualified law-enforcement instructors;
(e) Maintain a list of approved law-enforcement instructors;
(f) Promulgate standards governing the qualification of law- enforcement officers and the entry-level law-enforcement training curricula. These standards shall require satisfactory completion of a minimum of four hundred classroom hours, shall provide for credit to be given for relevant classroom hours earned pursuant to training other than training at an established law-enforcement training academy if earned within five years immediately preceding the date of application for certification, and shall provide that the required classroom hours can be accumulated on the basis of a part-time curricula spanning no more than twelve months, or a full- time curricula;
(g) Establish standards governing in-service law-enforcement officer training curricula and in-service supervisory level training curricula;
(h) Certify organized criminal enterprise investigation techniques with a qualified anti-racial profiling training course or module;
(i) Establish standards governing mandatory training to effectively investigate organized criminal enterprises as defined in article thirteen, chapter sixty-one of this code, while preventing racial profiling, as defined in section ten of this article, for entry level training curricula and for law-enforcement officers who have not received such training as certified by the Governor's committee as required in this section;
(j) Establish, no later than July 1, 2011, procedures for implementation of a course in investigation of organized criminal enterprises which includes an anti-racial training module to be available on the internet or otherwise to all law-enforcement officers. The procedures shall include the frequency with which a law-enforcement officer shall receive training in investigation of organized criminal enterprises and anti-racial profiling, and a time frame for which all law-enforcement officers must receive such training: Provided, That all law-enforcement officers in this state shall receive such training no later than July 1, 2012. In order to implement and carry out the intent of this section, the Governor's committee may promulgate emergency rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code;
~~(i)~~ (k) Certify law-enforcement officers, as provided in section five of this article;
~~(j)~~ (l) Seek supplemental funding for law-enforcement training academies from sources other than the fees collected pursuant to section four of this article;
~~(k)~~ (m) Any responsibilities and duties as the Legislature may, from time to time, see fit to direct to the committee; and
~~(l)~~ (n) Submit, on or before September 30 of each year, to the Governor, and upon request to individual members of the Legislature, a report on its activities during the previous year and an accounting of funds paid into and disbursed from the special revenue account establish pursuant to section four of this article.
§30-29-10. Prohibition of racial profiling.
(a) The Legislature finds that the use by a law-enforcement officer of race, ethnicity, or national origin in deciding which persons should be subject to traffic stops, stops and frisks, questioning, searches, and seizures is a problematic law- enforcement tactic. The reality or public perception of racial profiling alienates people from police, hinders community policing efforts, and causes law-enforcement officers and law-enforcement agencies to lose credibility and trust among the people law- enforcement is sworn to protect and serve. Therefore, the West Virginia Legislature declares that racial profiling is contrary to public policy and should not be used as a law-enforcement investigative tactic.
(b) For purposes of this section:
(1) The term "law-enforcement officer" means any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof.
(2) The term "municipality" means any incorporated town or city whose boundaries lie within the geographic boundaries of the state.
(3) The term "racial profiling" means the practice of a law- enforcement officer relying, to any degree, on race, ethnicity, or national origin in selecting which individuals to subject to routine investigatory activities, or in deciding upon the scope and substance of law-enforcement activity following the initial routine investigatory activity. Racial profiling does not include reliance on race, ethnicity, or national origin in combination with other identifying factors when the law-enforcement officer is seeking to apprehend a specific suspect whose race, ethnicity, or national origin is part of the description of the suspect.
(4) The term "state and local law-enforcement agencies" means any duly authorized state, county or municipal organization employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality thereof.
(c) No law-enforcement officer shall engage in racial profiling.
(d) All state and local law-enforcement agencies shall establish and maintain policies and procedures designed to eliminate racial profiling. Policies and procedures shall include the following:
(1) A prohibition on racial profiling;
(2) Independent procedures for receiving, investigating, and responding to complaints alleging racial profiling by law- enforcement officers;
(3) Procedures to discipline law-enforcement officers who engage in racial profiling;
(4) Procedures to insure the inclusion of training in the investigation of organized criminal enterprises and anti-racial profiling training in new officer training and to law-enforcement officers who have not received such training as certified by the Governor's committee; and
~~(4)~~ (5) Any other policies and procedures deemed necessary by state and local law-enforcement agencies to eliminate racial profiling.
ARTICLE 13. ANTI-ORGANIZED CRIMINAL ENTERPRISE ACT.
§61-13-1. Findings.
(a) The Legislature hereby finds that there is evidence of an increasing incidence of larger scale organized criminal activity in various parts of this State and that new statutes are necessary to protect the lives and property of the overwhelming majority of West Virginians who are law-abiding citizens. The evidence presented to the Legislature reflects that persons engaged in larger scale ongoing criminal enterprises are of all ages, multiple racial and ethnic origin and all pose a rising threat.
(b) The Legislature further finds that there is a tendency among certain of these enterprises to actively recruit, sometimes coercively, people into joining such organizations as well as organized efforts to intimidate witnesses who may be in a position to offer testimony regarding the organized criminal enterprises and that such behavior cannot be tolerated.
(c) The Legislature further finds that lawful use of public nuisance and forfeiture laws can substantially aid in a reduction of larger scale organized criminal enterprises.
(d) The Legislature further finds that criminal statutes tailored to the particular problems represented by such organized criminal enterprises combined with community education and existing alternative sentencing laws can aid in reducing this new threat.
§61-13-2. Definitions.
As used in this article:
"Organized criminal enterprise" means a combination of five or more persons engaging over a period of not less than six months in one or more of the qualifying offenses set forth in this section.
"Qualifying offense" means a violation of the felony provisions of section eleven, article forty-one, chapter thirty- three of this code; the felony provisions of chapter 60A of this code; the felony provisions of article two of this chapter; the provisions of sections one, two, three, four, five, eleven, twelve, thirteen, fourteen, eighteen, nineteen, twenty-four, twenty-four-a, twenty-four-b and twenty-four-d, article three of this chapter; the felony provisions of sections article three-c of this chapter; the felony provisions of article three-e of this chapter; the felony provisions of article four of this chapter; the provisions of section eight, article eight of this chapter; the felony provisions of article eight-a of this chapter and the felony provisions of article eight-c of this chapter.
§61-13-3. Offenses.
(a) Any person who knowingly and willfully becomes a member of an organized criminal enterprise and who knowingly promotes, furthers or assists in the commission of any qualifying offense himself or herself or in combination with another member of an organized criminal enterprise shall be guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not more than ten years or fined not more than $25,000, or both. The offense set forth in this subsection is separate and distinct from that of any qualifying offense and may be punished separately.
(b) Any person who knowingly solicits, invites, recruits, encourages or causes another to become a member of an organized criminal enterprise or to assist members of an organized criminal enterprise to aid or assist in the commission of a qualifying offense by one or more members of an organized criminal enterprise shall be guilty of a felony and, upon conviction, be confined in a state correctional facility for not more than five years or fined not more than $10,000, or both.
(c) Any person who shall, by threats, menaces, or otherwise, intimidate, or attempt to intimidate, a witness for the state in any prosecution under the provisions of this article, for the purpose of preventing the attendance of such witness at the trial of such case or to change testimony, or shall in any way or manner prevent, or attempt to prevent, the attendance of any such witness at such trial, shall be guilty of a felony, and, upon conviction, shall be confined not more than ten years.

§61-13-4. Premises used by organized criminal enterprises; nuisances; actions for injunction, abatement and damages; other remedies for unlawful use; exceptions.

(a) Every private building or place used by members of an organized criminal enterprise for the commission of qualifying offenses is a nuisance and may be the subject of an injunction or cause of action for damages or for abatement of the nuisance as provided for an article nine of this chapter.
(b) Any person may file a petition for injunctive relief with the appropriate court seeking eviction from or closure of any premises used for the operation of an organized criminal enterprise. Upon proof by the plaintiff that the premises are being used by members of an organized criminal enterprise for the commission of a qualifying offense or offenses, the court may order the owner of record or the lessee of the premises to remove or evict the persons from the premises and order the premises sealed, prohibit further use of the premises, or enter such order as may be necessary to prohibit the premises from being used for the commission of a pattern of criminal gang activity and to abate the nuisance.
§61-13-5. Forfeiture.
(a) The following are declared to be contraband and no person shall have a property interest in them:
(1) All property which is directly or indirectly used or intended for use in any manner to facilitate a violation of this article; and
(2) Any property constituting or derived from gross profits or other proceeds obtained from a violation of this article.
(b) In any action under this section, the court may enter such restraining orders or take other appropriate action, including acceptance of performance bonds, in connection with any interest that is subject to forfeiture.
(c) Forfeiture actions under this section shall use the procedures set forth in article seven, chapter sixty-A of this code.
§61-13-6. Exempted activities; limitations on scope.
Nothing in this section shall be construed to prevent lawful assembly and petition for the lawful redress of grievances, including, but not limited to: any labor or employment relations issue; demonstration at the seat of federal, state, county, or municipal government; or activities protected by the West Virginia Constitution or the United States Constitution or any statute of this state or the United States.
The bill (Eng. Com. Sub. for H. B. No. 4188), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4188) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4188) 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. 4188--A Bill to amend and reenact §30-29-3 and §30-29-10 of the Code of West Virginia, 1931, as amended, and to further amend said code by adding thereto a new article, designated §61-13-1, §61-13-2, §61-3-3, §61-3-4, §61-3-5 and §61-3-6, all relating to requiring an organized criminal organization investigation component with accompanying anti-racial profiling education and training for law enforcement; creating anti-organized criminal enterprise act; authorizing rulemaking, including emergency rules; creating timetable for developing procedures and rules; creating offenses of being a member of an organized criminal enterprise; criminalizing witness intimidation in organized criminal enterprise prosecutions; establish qualifying offenses; creating the offense of soliciting or inviting membership in an organized criminal enterprise; making premises used by organized criminal enterprises subject to public nuisance laws; allowing for forfeiture of property used for or obtained through organized criminal enterprises; establishing exempted activities; offenses; and penalties.
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. 4201, Creating the Livestock Care Standards Board.
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 1C. CARE OF LIVESTOCK.
§19-1C-1. Legislative findings.
(a) The Legislature finds that the following are important to protect the health and welfare of the citizens of West Virginia:
(1) Establishing standards governing the care and well-being of livestock in this state;
(2) Maintaining food safety;
(3) Encouraging locally grown and raised food; and
(4) Protecting West Virginia farms and families.
(b) Therefore, to protect the public interest, the Legislature finds that it is necessary to create a Livestock Care Standards Board.
§19-1C-2. Definitions.
For the purposes of this article:
(1) "Board" means the Livestock Care Standards Board.
(2) "Livestock" has the same definition as set out in subsection (d), section two, article ten-b of this chapter.
§19-1C-3. Livestock Care Standards Board.
(a) On July 1, 2010, there is hereby created the Livestock Care Standards Board.
(b) Prior to July 1, 2010, the Governor shall appoint, by and with the advice and consent of the Senate, the following eleven members:
(1) One member who is a veterinarian licensed in this state engaging in large animal practice, for a term of two years;
(2) The dean of the agriculture department of a college or university located in this state, for a term of three years;
(3) One member representing a county humane society that is organized under state law, for a term of four years;
(4) One member who is knowledgeable about food safety in this state, for a term of five years;
(5) Two members of the public representing West Virginia consumers, one for a term of two years and one for a term of four years;
(6) Two members representing state agricultural organizations that represent farmers, one of whom must be a member of the largest organization in the state representing farmers for a term of three years, and the other must be a member of a statewide livestock organization, for a term of five years; and
(7) Three members representing family farms engaged in animal production, at least two of whom are family farmers, for the following terms: one for three years, one for four years and one for five years.
(c) After the initial appointment terms, the appointment term is five years. Appointed members may be reappointed for additional terms.
(d) Commencing July 1, 2010, the board consists of the following thirteen members:
(1) The Commissioner of the Department of Agriculture or his or her designee, ex officio non-voting, who is the chairperson of the board;
(2) The Director of the Animal Health Division, ex officio non-voting;
(3) One member who is a veterinarian licensed in this state engaging in large animal practice;
(4) The dean of the agriculture department of a college or university located in this state;
(5) One member representing a county humane society that is organized under state law;
(6) One member who is knowledgeable about food safety in this state;
(7) Two members of the public representing West Virginia consumers;
(8) Two members representing state agricultural organizations that represent farmers, one of whom must be a member of the largest organization in the state representing farmers, and the other must be a member of a statewide livestock organization; and
(9) Three members representing family farms engaged in animal production, at least two of whom are family farmers.
(e) All members must be residents of this state during their terms. No more than seven members of the board may be of the same political party and no more than five may be from the same congressional district at any given time.
(f) All appointed members serve until their successor has been appointed and qualified. Vacancies shall be filled in the same manner as the original appointment for the remainder of the unexpired term.
§19-1C-4. Powers and duties of the board.
(a) The board has the following powers and duties to:
(1) Establish standards governing the care and well-being of livestock in this state;
(2) Maintain food safety;
(3) Encourage locally grown and raised food; and
(4) Protect West Virginia farms and families.
(b) The board is also authorized to establish standards by legislative rule, pursuant to the provisions of article three, chapter twenty-nine-a of this code, governing the care and well- being of livestock in this state, including:
(1) The agricultural best management practices for the care and well-being of livestock and poultry in this state;
(2) Biosecurity, disease prevention, animal morbidity and mortality data;
(3) Food safety practices; and
(4) The protection of local, affordable food supplies for consumers.
(c) The Department of Agriculture shall administer and enforce the standards established by the board that are approved by the Legislature.

§19-1C-5. Compensation of board members.

(a) The ex officio members of the board may not receive compensation for serving on the board.
(b) The appointed members of the board shall receive compensation for each day or portion of a day engaged in the discharge of official duties, which compensation may not exceed the amount paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law.
(c) Each member of the board shall be reimbursed actual and necessary expenses incurred for each day or portion of a day engaged in the discharge of official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.
§19-1C-6. Meetings of the board.
The board shall meet at least annually, and the chairperson may call additional meetings of the board upon the written request of three members.
The bill (Eng. Com. Sub. for H. B. No. 4201), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4201) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4201) 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. 4223, Increasing the safety of school children that use school buses.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Plymale, as chair of the Committee on Education, and by unanimous consent, the unreported Education committee amendment to the bill was withdrawn.
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 §17C-12-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 12. SPECIAL STOPS REQUIRED.

§17C-12-7. Overtaking and passing school bus; penalties; signs and warning lights upon buses; requirements for sale of buses; mounting of cameras; educational information campaign; limitation on idling.

(a) The driver of a vehicle, upon meeting or overtaking from either direction any school bus which has stopped for the purpose of receiving or discharging any school children, shall stop the vehicle before reaching the school bus when there is in operation on the school bus flashing warning signal lights, as referred to in section eight of this article, and the driver ~~shall~~ may not proceed until the school bus resumes motion, or is signaled by the school bus driver to proceed or the visual signals are no longer actuated. This section applies wherever the school bus is receiving or discharging children including, but not limited to, any street, highway, parking lot, private road or driveway: Provided, That the driver of a vehicle upon a controlled access highway need not stop upon meeting or passing a school bus which is on a different roadway or adjacent to the highway and where pedestrians are not permitted to cross the roadway.
(b) Any driver acting in violation of ~~this~~ subsection (a) of this section is guilty of a misdemeanor and, upon conviction for a first offense, shall be fined not less than ~~fifty dollars~~ $150 or more than ~~two hundred dollars~~ $500, or ~~imprisoned~~ confined in ~~the county~~ jail not more than six months, or both fined and ~~imprisoned~~ confined. Upon conviction of a second violation of subsection (a), the driver shall be fined $500, or confined in jail not more than six months, or both fined and confined. Upon conviction of a third or subsequent violation of subsection (a), the driver shall be fined $500, and confined not less than twenty-four hours in jail but not more than six months.
(c) In addition to the penalties prescribed in subsections (b) of this section, the Commissioner of Motor Vehicles shall, upon conviction, suspend the driver's license of the person so convicted:
(1) Of a first offense under subsection (b) of this section, for a period of thirty days;
(2) Of a second offense under subsection (b) of this section, for a period of ninety days; or
(3) Of a third or subsequent offense under subsection (b) of this section, for a period of one hundred and eighty days.
(d) Any driver of a vehicle who willfully violates the provisions of subsection (a) of this section and the violation causes serious bodily injury to any person other than the driver, is guilty of a felony and, upon conviction, shall be confined in a state correctional facility not less than one year nor more than three years and fined not less than $500 nor more than $2,000.
(e) Any driver of a vehicle who willfully violates the provisions of subsection (a) of this section, and the violation causes death, is guilty of a felony and, upon conviction, shall be confined in a state correctional facility not less than one year nor more than ten years and fined not less than $1,000 nor more than $3,000.
If the identity of the driver cannot be ascertained, then any owner or lessee of the vehicle in violation of this subsection is guilty of a misdemeanor and, upon conviction shall be fined of not less than twenty-five dollars nor more than one hundred dollars. The conviction shall not subject the owner or lessee to further administrative or other penalties for the offense, notwithstanding other provisions of this code to the contrary.
~~(b)~~ (f) Every bus used for the transportation of school children shall bear upon the front and rear of the bus a plainly visible sign containing the words "school bus" in letters not less than eight inches in height. When a contract school bus is being operated upon a highway for purposes other than the actual transportation of children either to or from school, all markings on the contract school bus indicating "school bus" shall be covered or concealed. Any school bus sold or transferred to another owner by a county board of education, agency or individual shall have all flashing warning lights disconnected and all lettering removed or permanently obscured, except when sold or transferred for the transportation of school children.
(g) Every county board of education is hereby authorized to mount a camera on any school bus for the purpose of enforcing this section or for any other lawful purpose.
(h) To the extent that state, federal or other funds are available, the State Police shall conduct an information campaign to educate drivers concerning the provisions of this section and the importance of school bus safety.
~~(c)~~ (i) The State Board of Education shall ~~write a policy~~ promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code governing the idling of school buses.
The bill (Eng. Com. Sub. for H. B. No. 4223), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4223) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4223) 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.
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. 4223--A Bill to amend and reenact §17C-12-7 of the Code of West Virginia, 1931, as amended, relating generally to increasing the safety of school children that use school buses; increasing the penalties for overtaking and passing a school bus stopped for the purpose of receiving and discharging children; authorizing the mounting of cameras on school buses; and requesting an educational information campaign on school bus safety.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 4247, Providing counties the discretion to accompany an electronic poll book with a printed poll book.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
At the request of Senator Chafin, unanimous consent being granted, the Senate proceeded to the consideration of
Eng. House Bill No. 4593, Relating to high school graduation improvement.
On second reading, coming up out of regular order, was read a second time.
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 clause and inserting in lieu thereof the following:
That §18-8-1 and §18-8-4 the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §18-8-6; that §18-9A-21 of said code be amended and reenacted; and that §62-15-4 of said code be amended and reenacted, all to read as follows:

ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.

§18-8-1. Compulsory school attendance; exemptions.

(a) Compulsory school attendance shall begin with the school year in which the sixth birthday is reached prior to September 1, or upon enrolling in a publicly supported kindergarten program and continue to the sixteenth birthday. Exemption from the ~~foregoing~~ requirements of compulsory public school attendance established in section one-a of this article shall be made on behalf of any child for the causes or conditions set forth in this section. Each cause or condition set forth in this section ~~shall be~~ is subject to confirmation by the attendance authority of the county.
(b) A child ~~shall be~~ is exempt from the compulsory school attendance requirement set forth in ~~subsection (a) of this section~~ section one-a of this article if the requirements of this subsection, relating to instruction in a private, parochial or other approved school, are met. The instruction shall be in a school approved by the county board and for a time equal to the instructional term set forth in section forty-five, article five of this chapter. In all private, parochial or other schools approved pursuant to this subsection it ~~shall be~~ is the duty of the principal or other person in control, upon the request of the county superintendent, to furnish to the county board such information and records as may be required with respect to attendance, instruction and progress of ~~pupils~~ students enrolled. ~~between the entrance age and sixteen years~~
(c) A child ~~shall be~~ is exempt from the compulsory school attendance requirement set forth in ~~subsection (a) of this section~~ section one-a of this article if the requirements of either subdivision (1) ~~of this subsection~~ or subdivision (2) of this subsection, both relating to home instruction, are met.
(1) The instruction shall be in the home of the child or children or at some other place approved by the county board and for a time equal to the instructional term set forth in section forty-five, article five of this chapter. If the request for home instruction is denied by the county board, good and reasonable justification for the denial shall be furnished in writing to the applicant by the county board. The instruction shall be conducted by a person or persons who, in the judgment of the county superintendent and county board, are qualified to give instruction in subjects required to be taught in public elementary schools in the state. The person or persons providing the instruction, upon request of the county superintendent, shall furnish to the county board information and records as may be required ~~from time to time~~ periodically with respect to attendance, instruction and progress of ~~pupils enrolled between the entrance age and sixteen years~~ students receiving the instruction. The state board shall develop guidelines for the home schooling of special education students including alternative assessment measures to assure that satisfactory academic progress is achieved.
(2) The child meets the requirements set forth in this subdivision: Provided, That the county superintendent may seek from the circuit court of the county an order denying home instruction of the child. The order may be granted upon a showing of clear and convincing evidence that the child will suffer neglect in ~~the child's~~ his or her education or that there are other compelling reasons to deny home instruction.
(A) Annually, the person or persons providing home instruction shall present to the county superintendent or county board a notice of intent to provide home instruction and the name, address, age and grade level of any child of compulsory school age to be instructed: Provided, That if a child is enrolled in a public school, notice of intent to provide home instruction shall be given at least two weeks prior to withdrawing ~~such~~ the child from public school;
(B) The person or persons providing home instruction shall submit satisfactory evidence of a high school diploma or equivalent;
(C) The person or persons providing home instruction shall outline a plan of instruction for the ensuing school year; and
(D) On or before June 30 ~~of each year~~ annually, the person or persons providing home instruction shall obtain an academic assessment of the child for the previous school year and submit the results to the county superintendent. When the academic assessment takes place outside of a public school, the parent or legal guardian shall pay the cost. The requirement of an academic assessment ~~shall be~~ is satisfied in one of the following ways:
(i) The child receiving home instruction takes a nationally normed standardized achievement test to be administered under standardized conditions as set forth by the published instructions of the selected test in the subjects of reading, language, mathematics, science and social studies. ~~Provided,~~ ~~That in no event may~~ The child's parent or legal guardian may not administer the test in any event. The publication date of the chosen test ~~shall~~ may not be more than ten years from the date ~~of the administration of~~ the test is administered. The child ~~shall be~~ is considered to have made acceptable progress when the mean of the child's test results in the required subject areas for any single year meets or exceeds the fiftieth percentile or, if below the fiftieth percentile, shows improvement from the previous year's results;
(ii) The child participates in the testing program currently in use in the state's public schools. The test shall be administered to the child at a public school in the county of residence. Determination of acceptable progress ~~will~~ shall be based on current guidelines of the state testing program;
(iii) The county superintendent is provided with a written narrative indicating that a portfolio of samples of the child's work has been reviewed and that the child's academic progress for the year is in accordance with the child's abilities. If the narrative indicates that the child's academic progress for the year is in accordance with the child's abilities, the child ~~shall be~~ is considered to have made acceptable progress. This narrative shall be prepared by a certified teacher whose certification number shall be provided. The narrative shall include a statement about the child's progress in the areas of reading, language, mathematics, science and social studies and shall note any areas which, in the professional opinion of the reviewer, show need for improvement or remediation; or
(iv) The child completes an alternative academic assessment of proficiency that is mutually agreed upon by the parent or legal guardian and the county superintendent. Criteria for acceptable progress shall be mutually agreed upon by the same parties; and
(E) When the annual assessment fails to show acceptable progress as defined under the appropriate assessment option set forth in paragraph (D) of this subdivision, the person or persons providing home instruction shall initiate a remedial program to foster acceptable progress. ~~and~~ The county board shall notify the parents or legal guardian of the child, in writing, of the services available to assist in the assessment of the child's eligibility for special education services. ~~Provided,~~ ~~That the~~ Identification of a disability ~~shall~~ does not preclude the continuation of home schooling. In the event that the child does not achieve acceptable progress as defined under the appropriate assessment option set forth in paragraph (D) of this subdivision for a second consecutive year, the person or persons providing instruction shall submit to the county superintendent additional evidence that appropriate instruction is being provided.
(3) This subdivision applies to both home instruction exemptions set forth in subdivisions (1) and (2) of this subsection. The county superintendent or a designee shall offer such assistance, including textbooks, other teaching materials and available resources, all subject to availability, as may assist the person or persons providing home instruction. ~~subject to their availability~~ Any child receiving home instruction may upon approval of the county board exercise the option to attend any class offered by the county board as the person or persons providing home instruction may consider appropriate subject to normal registration and attendance requirements.
(d) A child ~~shall be~~ is exempt from the compulsory school attendance requirement set forth in ~~subsection (a) of this section~~ section one-a of this article if the requirements of this subsection, relating to physical or mental incapacity, are met. Physical or mental incapacity consists of incapacity for school attendance and the performance of school work. In all cases of prolonged absence from school due to incapacity of the child to attend, the written statement of a licensed physician or authorized school nurse is required. ~~shall be required under the provisions of this article:~~ ~~Provided,~~ ~~That in all cases~~, Incapacity shall be narrowly defined and in no any case ~~shall~~ the provisions of this article may not allow for the exclusion of the mentally, physically, emotionally or behaviorally handicapped child otherwise entitled to a free appropriate education.
(e) A child ~~shall be~~ is exempt from the compulsory school attendance requirement set forth in ~~subsection (a) of this section~~ section one-a of this article if conditions rendering school attendance impossible or hazardous to the life, health or safety of the child exist.
(f) A child ~~shall be~~ is exempt from the compulsory school attendance requirement set forth in ~~subsection (a) of this section~~ section one-a of this article upon regular graduation from a standard senior high school or alternate secondary program completion as determined by the state board.
(g) A child ~~shall be~~ is exempt from the compulsory school attendance requirement set forth in ~~subsection (a) of this section~~ section one-a of this article if the child is granted a work permit pursuant to this subsection. After due investigation the county superintendent may ~~after due investigation~~ grant work permits to youths under sixteen years of age, subject to state and federal labor laws and regulations. ~~Provided,~~ ~~That~~ A work permit may not be granted on behalf of any youth who has not completed the eighth grade of school.
(h) A child ~~shall be~~ is exempt from the compulsory school attendance requirement set forth in ~~subsection (a) of this section~~ section one-a of this article if a serious illness or death in the immediate family of the ~~pupil~~ child has occurred. It is expected that the county attendance director will ascertain the facts in all cases of such absences about which information is inadequate and report the facts to the county superintendent.
(i) A child ~~shall be~~ is exempt from the compulsory school attendance requirement set forth in ~~subsection (a) of this section~~ section one-a of this article if the requirements of this subsection, relating to destitution in the home, are met. Exemption based on a condition of extreme destitution in the home may be granted only upon the written recommendation of the county attendance director to the county superintendent following careful investigation of the case. A copy of the report confirming the condition and school exemption shall be placed with the county director of public assistance. This enactment contemplates every reasonable effort that may properly be taken on the part of both school and public assistance authorities for the relief of home conditions officially recognized as being so destitute as to deprive children of the privilege of school attendance. Exemption for this cause ~~shall not be~~ is not allowed when the destitution is relieved through public or private means.
(j) A child ~~shall be~~ is exempt from the compulsory school attendance requirement set forth in ~~subsection (a) of this section~~ section one-a of this article if the requirements of this subsection, relating to church ordinances and observances of regular church ordinances, are met. The county board may approve exemption for religious instruction upon written request of the person having legal or actual charge of a child or children. ~~Provided,~~ ~~That the exemption shall be~~ This exemption is subject to the rules prescribed by the county superintendent and approved by the county board.
(k) A child ~~shall be~~ is exempt from the compulsory school attendance requirement set forth in ~~subsection (a) of this section~~ section one-a of this article if the requirements of this subsection, relating to alternative private, parochial, church or religious school instruction, are met. Exemption shall be made for any child attending any private school, parochial school, church school, school operated by a religious order or other nonpublic school which elects to comply with the provisions of article twenty-eight of this chapter.
(l) ~~The~~ Completion of the eighth grade ~~shall~~ does not exempt any child under ~~sixteen years of age~~ the termination age designated in section one-a of this article from the compulsory attendance provision of this article.

§18-8-4. Duties of attendance director and assistant directors; complaints, warrants and hearings.

(a) The county attendance director and the assistants shall diligently promote regular school attendance. ~~They~~ The director and assistants shall:
(1) Ascertain reasons for inexcusable absences from school of ~~pupils~~ students of compulsory school age and students who remain enrolled beyond the ~~sixteenth birthday~~ the compulsory school age as defined under section one-a of this article; and ~~shall~~
(2) Take such steps as are, in their discretion, best calculated to correct attitudes of parents and ~~pupils~~ students which result in absences from school even though not clearly in violation of law.
(b) In the case of five ~~consecutive or ten~~ total unexcused absences of a ~~child~~ student during a school year, the attendance director or assistant shall:
(1) Serve written notice to the parent, guardian or custodian of ~~such child~~ the student that the attendance of ~~such child~~ the student at school is required and that within ten days of receipt of the notice the parent, guardian or custodian, accompanied by the ~~child~~ student, shall report in person to the school the ~~child~~ student attends for a conference with the principal or other designated representative of the school in order to discuss and correct the circumstances causing the inexcusable absences of the ~~child~~ student; and if the parent, guardian or custodian does not comply with the provisions of this article, then the attendance director or assistant shall make complaint against the parent, guardian or custodian before a magistrate of the county. If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the accused has committed it, a summons or a warrant for the arrest of the accused shall issue to any officer authorized by law to serve the summons or to arrest persons charged with offenses against the state. More than one parent, guardian or custodian may be charged in a complaint. Initial service of a summons or warrant issued pursuant to the provisions of this section shall be attempted within ten calendar days of receipt of the summons or warrant and subsequent attempts at service shall continue until the summons or warrant is executed or until the end of the school term during which the complaint is made, whichever is later.
(c) The magistrate court clerk, or the clerk of the circuit court performing the duties of the magistrate court as authorized in section eight, article one, chapter fifty of this code, shall assign the case to a magistrate within ten days of execution of the summons or warrant. The hearing shall be held within twenty days of the assignment to the magistrate, subject to lawful continuance. The magistrate shall provide to the accused at least ten days' advance notice of the date, time and place of the hearing.
(d) When any doubt exists as to the age of a ~~child~~ student absent from school, the attendance director ~~shall have~~ has authority to require a properly attested birth certificate or an affidavit from the parent, guardian or custodian of ~~such child~~ the student, stating age of the ~~child. The county attendance director or assistant, shall have~~ student. In the performance of his or her duties, the county attendance director has authority to take without warrant any ~~child~~ student absent from school in violation of the provisions of this article and to place ~~such child~~ the student in the school in which ~~such child~~ he or she is or should be enrolled.
(e) The county attendance director shall devote such time as is required by section three of this article to the duties of attendance director in accordance with this section during the instructional term and at such other times as the duties of an attendance director are required. All attendance directors hired for more than two hundred days may be assigned other duties determined by the superintendent during the period in excess of two hundred days. The county attendance director ~~shall be~~ is responsible under direction of the county superintendent for ~~the efficient administration of~~ efficiently administering school attendance in the county.
(f) In addition to those duties directly relating to the administration of attendance, the county attendance director and assistant directors ~~shall~~ also shall perform the following duties:
(1) Assist in directing the taking of the school census to see that it is taken at the time and in the manner provided by law;
(2) Confer with principals and teachers on the comparison of school census and enrollment for the detection of possible nonenrollees;
(3) Cooperate with existing state and federal agencies charged with ~~enforcement of~~ enforcing child labor laws;
(4) Prepare a report for submission by the county superintendent to the State Superintendent of Schools on school attendance, at such times and in such detail as may be required. The state board shall promulgate a legislative rule pursuant to article three-b, chapter twenty-nine-a of this code that sets forth student absences that ~~shall be~~ are excluded for accountability purposes. The absences that ~~shall be~~ are excluded by the rule ~~shall~~ include, but are not be limited to, excused student absences, students not in attendance due to disciplinary measures and absent students for whom the attendance director has pursued judicial remedies to compel attendance to the extent of his or her authority. The attendance director shall file with the county superintendent and county board ~~of education~~ at the close of each month a report showing activities of the school attendance office and the status of attendance in the county at the time;
(5) Promote attendance in the county by ~~the compilation of~~ compiling data for schools and by furnishing suggestions and recommendations for publication through school bulletins and the press, or in such manner as the county superintendent may direct;
(6) Participate in school teachers' conferences with parents and students;
(7) Assist in such other ways as the county superintendent may direct for improving school attendance;
(8) Make home visits of students who have excessive unexcused absences, as provided above, or if requested by the chief administrator, principal or assistant principal; and
(9) Serve as the liaison for homeless children and youth.
§18-8-6. The High School Graduation Improvement Act.

(a) This section is known and may be cited as "The High School Graduation Improvement Act."
(b) The Legislature makes the following findings:
(1) West Virginia has a dire need to implement a comprehensive approach to addressing the high school drop-out crisis, and to develop policies and strategies that successfully assist at-risk students to stay in school, earn a high school diploma, and ultimately become productively contributing members of society;
(2) The current demands for a highly skilled workforce require a high school diploma at the very minimum;
(3) The state has several dynamic programs that are capable of actively engaging students in learning, providing students with a sense of relevancy in academics, and motivating students to succeed in school and ultimately earn a high school diploma;
(4) Raising the compulsory school attendance age alone will neither increase the graduation rate nor decrease the drop-out rate. It is imperative that the state shift the focus from merely compelling students to attend school to instead providing vibrant and engaging programs that allow students to recognize the value of a high school diploma or workforce credential and inspire students to graduate from high school, especially those students who are at risk of dropping out of school;
(5) Investing financially in this focus shift will result in the need for fewer resources to be committed to enforcing compulsory attendance laws and fewer incidents of disruptive student behavior;
(6) Absenteeism is proven to be the highest predictor of course failure. Truant students face low self-confidence in their ability to succeed in school because their absences cause them to fall behind their classmates, and the students find dropping out easier than catching up;
(7) There is a strong relationship between truancy and dropping out of high school. Frequent absences are one of the most common indicators that a student is disengaging from the learning process and likely to drop out of school early. Intervention after fewer absences is likely to have a positive impact on a student's persistence to graduation;
(8) Students cite many reasons for dropping out of school, some of which include engaging in drug culture, lack of positive influence, role model or parental involvement, absence of boundaries and direction, lack of a positive home environment, peer pressure, and poor community expectations;
(9) Dropping out of school has a profound negative impact on an individual's future, resulting in limited job choices, substantially lower wages and less earned over a life-time than high school graduates, and a greater likelihood of depending on public assistance and engaging in criminal activity;
(10) Career-technical education is a dynamic system in West Virginia which offers numerous concentrations that provide students with industry-recognized credentials, while also preparing them for post-secondary education;
(11) All career-technical education students in the state have an opportunity to earn free college credit through the Earn a Degree-Graduate Early (EDGE) program;
(12) The current high school graduation rate for secondary career-technical education completers is significantly higher than the state graduation rate;
(13) Students involved in career-technical education learn a marketable skill, are likely to find jobs, and become prepared for post-secondary education;
(14) A significant number of students who could benefit from participating in a career-technical program are denied access due to a number of factors, such as dropping out of high school prior to enrolling in career-technical education, requirements that students repeat academic courses that they have failed, and scheduling conflicts with the high schools;
(15) There has been a dramatic change over the years from vocational education, which was very basic and lacked high level skills, to the career-technical programs of today which are computer based, require national tests and certification, and often result in jobs with high salaries;
(16) West Virginia's employers and technical education job placement rates show that the state needs graduates with technical skills to compete in the current and future job markets;
(17) The job placement rate for students graduating from career-technical programs statewide is greater than ninety-five percent;
(18) Among the reasons students cite for dropping out of school are feelings of hopelessness when they have failed classes and can not recover credits in order to graduate;
(19) The state offers full-day programs consisting of credit recovery, hands on experiences in career-technical programs and basic education, which are valuable resources for re-engaging students who have dropped out of school, or have a potential for or are at risk of dropping out;
(20) A student is significantly more likely to graduate from high school if he or she completes four units of training in technical education;
(21) Learning is increased and retained at a higher level if the content is taught through a relevant and applied experience, and students who are able to experience academics through real life projects have a higher probability of mastering the appropriate concepts;
(22) Programs such as "GED Option" and "Techademics" are valuable resources for providing relevant and applied experience for students;
(23) The Techademics programs administered by the department of education has embedded math competencies in career-technical program curricula whereby students simultaneously earn credit for mastery of math competencies and career-technical courses;
(24) Students would greatly benefit if West Virginia were designated as a "GED Option" state. Currently a student is ineligible to take the General Educational Development (GED) exam if he or she is enrolled in school, which requires the student to drop out of high school in order to participate in a GED preparation program or take the exam, even if the student desires to remain enrolled;
(25) A GED Option state designation by the American Council on Education would allow students in this state to remain enrolled in school and continue acquiring academic and career-technical credits while pursuing a GED diploma. The GED Option would be blended with the West Virginia virtual schools or a career-technical education pathway. Upon completion, rather than being a dropout, the student would have a GED diploma and a certification in the chosen career- technical or virtual school pathway;
(26) The Mountaineer Challenge Academy is a positive option for students at risk of dropping out of school, as it provides students with structure, stability, and a focus on positive change, all in an environment where negative influences and distractions can be left behind;
(27) Students attending the Mountaineer Challenge Academy would greatly benefit if the GED Option were implemented at the Academy;
(28) The Health Sciences and Technology Academy (HSTA) program prepares rural, minority and economically disadvantaged students for college and careers in the health sciences, and demonstrates tremendous success in its high percentage of students who graduate from high school and participate in post-secondary education.
(29) The West Virginia GEAR UP (Gaining Early Awareness and Readiness for Undergraduate Programs) program is aimed at increasing the academic performance and rigorous preparation of students, increasing the number of high-poverty, at-risk students who are prepared to enter and succeed in post-secondary education, and increasing the high school graduation rate;
(30) The GEAR UP program successfully aids students in planning, applying and paying for education and training beyond high school;
(31) Each dropout involved in drugs or crime or dependent on public assistance creates a huge fiscal burden on society;
(32) The intense treatment and individual monitoring provided through the state's juvenile drug courts have proven to be highly effective in treating drug addictions, and rehabilitating drug addicted youth and improving their educational outcomes;
(33) Services provided by juvenile drug courts include substance abuse treatment, intervention, assessment, juvenile and family counseling, heavy supervision by probation officers including school-based probation officers who provide early intervention and diversion services, and addressing some of the underlying reasons why students are not successful in school;
(34) School participation and attendance are required for students participating in juvenile drug courts, and along with academic progress are closely monitored by the courts;
(35) Juvenile drug courts are an important strategy to improve substance abuse treatment outcomes, and serve to save the state significant cost on incarceration of the juveniles, along with the future costs to society of individuals who remain substance abusers;
(36) Juvenile drug courts produce greater cost benefits than other strategies that address criminal activity related to substance abuse and addiction that bring individuals into the criminal justice system;
(37) Funding for the increased number of students enrolled in school during the 2010-2011 school year due to the compulsory school attendance age increase established by this act will not be reflected in the state aid formula allocation until the 2011-2012 school year, which will require additional funds to be provided to county boards for the 2010-2011 school year to accommodate the increased enrollment;
(38) The state will benefit both fiscally and through improved quality of life if scarce state resources are targeted toward programs that result in providing a competitive advantage as adults for those students who are at risk of dropping out of school;
(39) Funds invested toward education and ensuring that students complete high school pay tremendous dividends through the moneys saved on incarceration, unemployment and underemployment as those students reach adulthood; and
(40) Increasing the compulsory school attendance age will have little effect in aiding students to complete high school if additional resources, both fiscal and programmatic, are not dedicated to supporting student achievement, providing real-life relevancy in curriculum, and engaging students in learning, particularly for those students who have become so disengaged from school and learning that they are at risk of dropping out of school.
(c) The Legislature intends as follows:
(1) The state will continue to explore diverse instructional delivery strategies to accommodate various learning styles and will focus on a state-wide dropout intervention and prevention program to provide support for students having academic difficulty;
(2) A general credit recovery program shall be implemented statewide, including delivery through West Virginia virtual schools;
(3) The state board will continue to improve the way career- technical education is offered, including expansion of the Techademics program;
(4) Up to five additional juvenile drug courts shall be established by January 1, 2012;
(5) The state will invest additional state funds and other resources in strategies and programs that engage disconnected and discouraged students in a positive learning environment as a critical first step to ensuring that students persist and graduate; and
(6) County boards will develop plans to demonstrate how they will use available funds to implement the intent of this section.
(d) Each county board shall include in its alternative education program plan required by section six, article two, of this chapter a plan to improve student retention and increase the graduation rate in the county. The plan is subject to approval of the state board, and shall include strategies the county board will implement to achieve the following goals:
(1) Increasing the graduation rate for the county;
(2) Identifying at the earliest age possible those students who are at risk of dropping out of school prior to graduation; and
(3) Providing additional options for delivering to at-risk students academic credentials and career-technical training if appropriate or desired by the student. The options may include such programs as Techademics, Earn a Degree-Graduate Early (EDGE), Health Sciences and Technology Academy (HSTA), Gaining Early Awareness and Readiness for Undergraduate Programs (GEAR UP), truancy diversion, early intervention, dropout prevention, prevention resource officers, GED option, credit recovery, alternative learning environments, or any other program or strategy approved by the state board.
(e) As soon as is practicable the state superintendent or his or her designee shall pursue designation of West Virginia as a "GED Option" state by the American Council on Education. If so designated, the state board shall:
(1) Develop and implement a program whereby a student may pursue a GED diploma while remaining enrolled in high school; and
(2) Ensure that the GED Option is offered to students attending the Mountaineer Challenge Academy.
(f) The state board shall continue to expand:
(1) The Techademics program to include each major academic subject and increase the academic credit available through the program to students; and
(2) The Health Sciences and Technology Academy to ensure that the program is available for any school containing any of the grade levels of eligible students.
(g) The state board shall ensure that the dropout information required by section twenty-four, article one-b, chapter fifteen of this code is provided annually to the Mountaineer Challenge Academy.
(h) Some career and technical education programs only except students in certain upper high school grade levels due to lack of capacity to accept the students in the lower high school grade levels. This can be detrimental to efforts to keep students identified as at risk of dropping out of school prior to graduation in school. Therefore, those career and technical education programs that only students in certain upper high school grade levels to enroll may make exceptions for those at risk students and enroll any of those at risk students who are in grades nine and above.

ARTICLE 9A. PUBLIC SCHOOL SUPPORT.

§18-9A-21. Funding for alternative education programs.
(a) An appropriation may be made to the state department to be distributed to county boards for the operation of alternative education and prevention programs established in accordance with policies and procedures adopted by the state board under section six, article two of this chapter. The appropriation shall be an amount equal to ~~twelve~~ eighteen dollars per student in net enrollment, subject to appropriation by the Legislature. The state board shall distribute ~~ninety-seven~~ ninety-eight percent of the total appropriation to the county boards proportionate to each county's net enrollment. The remaining ~~three~~ two percent of the appropriation shall be retained by the state department to support the provision of services to the county boards in administering programs established in accordance with policies and procedures adopted by the state board under section six, article two of this chapter. ~~Provided,~~ ~~That~~
(b) Nothing in this section ~~shall~~ may be construed to require any specific level of funding by the Legislature.
(c) The increase from $12 per student in net enrollment to $18 per student in net enrollment pursuant to the amendment and enactment of this section during the 2010 regular session of the Legislature is not subject to the provisions of section three-a.
ARTICLE 15. DRUG OFFENDER ACCOUNTABILITY AND TREATMENT ACT.
§62-15-4. Court authorization and structure.
(a) Each judicial circuit or two or more adjoining judicial circuits may establish a drug court or regional drug court program under which drug offenders will be processed to address appropriately, the identified substance abuse problem as a condition of pretrial release, probation, incarceration, parole or other release from a correctional facility.
(b) The structure, method, and operation of each drug court program may differ and should be based upon the specific needs of and resources available to the judicial circuit or circuits where the drug court program is located.
(c) A drug court program may be preadjudication or post- adjudication for an adult offender.
(d) Participation in drug court, with the consent of the prosecution and the court, shall be pursuant to a written agreement.
(e) A drug court may grant reasonable incentives under the written agreement if it finds that the drug offender:
(1) Is performing satisfactorily in drug court;
(2) Is benefitting from education, treatment and rehabilitation;
(3) Has not engaged in criminal conduct; or
(4) Has not violated the terms and conditions of the agreement.
(f) A drug court may impose reasonable sanctions on the drug offender, including incarceration for the underlying offense or expulsion from the program, pursuant to the written agreement, if it finds that the drug offender:
(1) Is not performing satisfactorily in drug court;
(2) Is not benefitting from education, treatment or rehabilitation;
(3) Has engaged in conduct rendering him or her unsuitable for the program;
(4) Has otherwise violated the terms and conditions of the agreement; or
(5) Is for any reason unable to participate.
(g) Upon successful completion of drug court, a drug offender's case shall be disposed of by the judge in the manner prescribed by the agreement and by the applicable policies and procedures adopted by the drug court. This may include, but is not limited to, withholding criminal charges, dismissal of charges, probation, deferred sentencing, suspended sentencing, split sentencing, or a reduced period of incarceration.
(h) Drug court shall include the Ten Key Components and the drug court team shall act to ensure compliance with them.
(i) Nothing contained in this article ~~shall confer~~ confers a right or an expectation of a right to participate in a drug court nor does it obligate a drug court to accept every drug offender.
(j) Neither the establishment of a drug court nor anything herein ~~shall~~ may be construed as limiting the discretion of the jurisdiction's prosecutor to act on any criminal case which he or she deems advisable to prosecute.
(k) Each drug court judge may establish rules and may make special orders as necessary that do not conflict with rules and orders promulgated by the Supreme Court of Appeals which has administrative authority over the courts. The Supreme Court of Appeals shall provide uniform referral, procedure and order forms that shall be used in all drug courts in this state.
(l) In addition to the number of juvenile drug courts operating on the effective date of this section, up to five additional juvenile drug courts or regional juvenile drug court programs may be established by January 1, 2012, as determined by the Supreme Court of Appeals.
The bill (Eng. H. B. No. 4593), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 4593) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4593) 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.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 4593--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-8-6; to amend and reenact §18-8-1 and §18-8-4 of said code; to amend and reenact §18-9A-21 of said code; and to amend and reenact §62-15-4 of said code, all relating to improving student participation, success and high school graduation rates; reducing the number of days of unexcused absences at which proceedings to enforce attendance begin; establishing the "High School Graduation Improvement Act"; establishing legislative findings and intent; requiring county board of education plan for improving student retention and increasing graduation rate; requiring state board of education to develop, expand and assist certain programs; explicitly allowing career and technical education programs only accepting students in certain upper high school grades to make exceptions for certain at risk students who are in grade nine and above; increasing funding for alternative education programs; and authorizing establishment of additional juvenile drug courts.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 5 p.m. today.
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.
Senator Chafin 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 Committee Substitute for House Bill No. 4652.
The Senate again proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 4652, Establishing a school calendar committee for each county.
On third reading, coming up in regular order, was read a third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for House Bill No. 4652 pass?"
On the passage of the bill, the yeas were: Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--27.
The nays were: Barnes, Boley, Caruth, Guills, Hall, Oliverio and Sypolt--7.
Absent: None.
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. 4652) passed.
On motions of Senators Wells, Plymale and Edgell, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4652--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-5-45a, relating to school calendars; requiring each county superintendent to create a county school calendar committee; providing for designation and election of members; requiring the committee to develop multiple school calendar options for presentation to all employees for vote; requiring the generation of new calendar options if the county board or state board rejects the selected calendar; requiring the process to continue until a school calendar is approved by the county board and state board; requiring county board approval of school calendar prior to June 1 of each year; and establishing process for school districts served by a multi-county career and technical education center.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--27.
The nays were: Barnes, Boley, Caruth, Guills, Hall, Oliverio and Sypolt--7.
Absent: None.
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. 4652) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Sypolt, and by unanimous consent, the remarks by Senator Barnes regarding the passage of Engrossed Committee Substitute for House Bill No. 4652 were ordered printed in the Appendix to the Journal.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 4281, Replacing references to "mental retardation" with "intellectual disability".
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 §27-1A-12 of the Code of West Virginia, 1931, as amended, be repealed; that §27-2-1a and §27-2-1b of said code be repealed; that §9-4C-1 and §9-4C-5 of said code be amended and reenacted; that §9-5-11c of said code be amended and reenacted; that §11-27-10 and §11-27-11 of said code be amended and reenacted; that §16-1-4 of said code be amended and reenacted; that §16-2D-2 and §16-2D-5 of said code be amended and reenacted; that §16-5F-2 of said code be emended and reenacted; that §16-5O-2 of said code be amended and reenacted; that §16-22-1 and §16-22-2 of said code be amended and reenacted; that §16-29A-3 of said code be amended and reenacted; that §16-30-7 and §16-30-24 of said code be amended and reenacted; that §27-1-3, §27-1-6, §27-1-7 and §27-1-9 of said code be amended and reenacted; that §27-1A-1, §27-1A-4 and §27-1A-6 of said code be amended and reenacted; that §27-2-1 of said code be amended and reenacted; that §27-2A-1 of said code be amended and reenacted; that §27-5-9 of said code be amended and reenacted; that §27-9-1 of said code be amended and reenacted; that §27-12-1 of said code be amended and reenacted; that §29-15-1, §29-15-5 and §29-15-6 of said code be amended and reenacted; that §44A-1-1 and §44A-1-2 of said code be amended and reenacted; and that §49-4A-6 be amended and reenacted, all to read as follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 4C. HEALTH CARE PROVIDER MEDICAID ENHANCEMENT ACT.
§9-4C-1. Definitions.
The following words when used in this article have the meanings ascribed to them in this section, except in those instances where the context clearly indicates a different meaning:
(a) "Ambulance service provider" means a person rendering ambulance services within this state and receiving reimbursement, directly as an individual provider or indirectly as an employee or agent of a medical clinic, partnership or other business entity.
(b) "General health care provider" means an audiologist, a behavioral health center, a chiropractor, a community care center, an independent laboratory, an independent X ray service, an occupational therapist, an optician, an optometrist, a physical therapist, a podiatrist, a private duty nurse, a psychologist, a rehabilitative specialist, a respiratory therapist and a speech therapist rendering services within this state and receiving reimbursement, directly as an individual provider or indirectly as an employee or agent of a medical clinic, partnership or other business entity.
(c) "Inpatient hospital services provider" means a provider of inpatient hospital services for purposes of Section 1903(w) of the Social Security Act.
(d) "Intermediate care facility for ~~the mentally retarded~~ individuals with an intellectual disability services provider" means a provider of intermediate care facility services for ~~the mentally retarded~~ individuals with an intellectual disability for purposes of Section 1903(w) of the Social Security Act.
(e) "Nursing facility services provider" means a provider of nursing facility services for purposes of Section 1903(w) of the Social Security Act.
(f) "Outpatient hospital service provider" means a hospital providing preventative, diagnostic, therapeutic, rehabilitative or palliative services that are furnished to outpatients.
(g) "Secretary" means the Secretary of the Department of Health and Human Resources.
(h) "Single state agency" means the single state agency for Medicaid in this state.
§9-4C-5. Facility providers' medicaid enhancement board.
(a) The outpatient hospital medicaid enhancement board created by this section shall cease to exist on the effective date of this article.
(b) There is hereby continued the facility providers' medicaid enhancement board to consist of seven members. In order to carry out the purpose of this article, the board shall represent ambulatory surgical centers, inpatient hospital service providers, outpatient hospital service providers, nursing facility service providers and intermediate care facility for ~~the mentally retarded~~ individuals with an intellectual disability service providers.
(c) The board shall consist of one representative from each of the aforementioned classes of health care providers, one lay person and the secretary, or his or her designee, who shall serve as an ex officio, nonvoting member. The governor shall make all appointments within thirty days after the effective date of this article.
(d) After initial appointment of the board, any appointment to fill a vacancy shall be for the unexpired term only, shall be made in the same manner as the initial appointment, and the terms of all members shall expire on the first day of July, one thousand nine hundred ninety-six.
ARTICLE 5. MISCELLANEOUS PROVISIONS.

§9-5-11c. Right of the Department of Health and Human Resources to recover medical assistance.

(a) Upon the death of a person who was fifty-five years of age or older at the time the person received welfare assistance consisting of nursing facility services, home and community-based services, and related hospital and prescription drug services, the Department of Health and Human Resources, in addition to any other available remedy, may file a claim or lien against the estate of the recipient for the total amount of medical assistance provided by Medicaid for nursing facility services, home and community-based services, and related hospital and prescription drug services provided for the benefit of the recipient. Claims so filed shall be classified as and included in the class of debts due the state.
(b) The department may recover pursuant to subsection (a) only after the death of the individual's surviving spouse, if any and only after such time as the individual has no surviving children under the age of twenty-one, or when the individual has no surviving children who meet the Social Security Act's definition of blindness or permanent and total disability.
(c) The state shall have the right to place a lien upon the property of individuals who are inpatients in a nursing facility, intermediate care facility for ~~the mentally retarded~~ individuals with an intellectual disability, or other medical institution who, after notice and an opportunity for a hearing, the state has deemed to be permanently institutionalized. This lien shall be in an amount equal to Medicaid expenditures for services provided by a nursing facility, intermediate care facility for ~~the mentally retarded~~ individuals with an intellectual disability or other medical institution, and shall be rendered against the proceeds of the sale of property except for a minimal amount reserved for the individual's personal needs. Any such lien ~~shall dissolve~~ dissolves upon that individual's discharge from the medical institution. The secretary has authority to compromise or otherwise reduce the amount of this lien in cases where enforcement would create a hardship.
(d) No lien may be imposed on such individual's home when the home is the lawful residence of: (1) The spouse of the individual; (2) The individual's child who is under the age of twenty-one; (3) The individual's child meets the Social Security Act's definition of blindness or permanent and total disability; or (4) The individual's sibling has an equity interest in the home and was residing in the home for a period of at least one year immediately before the date of the individual's admission to a medical institution.
(e) The filing of a claim, pursuant to this section, ~~shall~~ neither ~~reduce nor diminish~~ reduces or diminishes the general claims of the Department of Health and Human Resources, except that ~~such~~ the department ~~shall~~ may not receive double recovery for the same expenditure. The death of the recipient ~~shall~~ neither ~~extinguish nor diminish~~ extinguishes or diminishes any right of ~~such~~ the department to recover. Nothing in this section affects or prevents a proceeding to enforce a lien pursuant to this section or a proceeding to set aside a fraudulent conveyance.
(f) Any claim or lien imposed pursuant to this section is effective for the full amount of medical assistance provided by Medicaid for nursing facility services, home and community-based services, and related hospital and prescription drug services. ~~Said~~ The lien attaches and is perfected automatically as of the beginning date of medical assistance, the date when a recipient first receives treatment for which the Department of Health and Human Resources may be obligated to provide medical assistance. A claim may be waived by ~~such~~ the department, if ~~such~~ the department determines, pursuant to applicable federal law and rules and regulations, that the claim will cause substantial hardship to the surviving dependents of the deceased.
(g) Upon the effective date of this section, the Attorney General, on behalf of the State of West Virginia, shall commence an action in a court of competent jurisdiction to test the validity, constitutionality, and the ability of the Congress of the United States to mandate the implementation of this section. This subsection does not limit the right of others, including recipients, to intervene in any litigation, nor does it limit the discretion of the Attorney General or appropriate counsel to seek affected persons to act as parties to the litigation, either individually or as a class.
ARTICLE 6. SOCIAL SERVICES FOR ADULTS.
§9-6-1. Definitions.
The following words and terms, when used in this article, shall have the same meaning hereinafter ascribed to them unless the context clearly indicates a different meaning:
(1) "Adult protective services agency" means any public or nonprofit private agency, corporation, board or organization furnishing protective services to adults;
(2) "Abuse" means the infliction or threat to inflict physical pain or injury on or the imprisonment of any incapacitated adult or facility resident;
(3) "Neglect" means: (A) The failure to provide the necessities of life to an incapacitated adult or facility resident with intent to coerce or physically harm the incapacitated adult or resident; and (B) the unlawful expenditure or willful dissipation of the funds or other assets owned or paid to or for the benefit of an incapacitated adult or resident;
(4) "Incapacitated adult" means any person who by reason of physical, mental or other infirmity is unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health;
(5) "Emergency" or "emergency situation" means a situation or set of circumstances which presents a substantial and immediate risk of death or serious injury to an incapacitated adult;
(6) "Legal representative" means a person lawfully invested with the power and charged with the duty of taking care of another person or with managing the property and rights of another person, including, but not limited to, a guardian, conservator, medical power of attorney representative, trustee or other duly appointed person;
(7) "Nursing home" or "facility" means any institution, residence, intermediate care facility for ~~the mentally retarded~~ individuals with an intellectual disability, care home or any other adult residential facility, or any part or unit thereof, that is subject to the provisions of articles five-c, five-d, five-e or five-h, chapter sixteen of this code;
(8) "Regional long-term care ombudsman" means any paid staff of a designated regional long-term care ombudsman program who has obtained appropriate certification from the Bureau for Senior Services and meets the qualifications set forth in section seven, article five-l, chapter sixteen of this code;
(9) "Facility resident" means an individual living in a nursing home or other facility, as that term is defined in subdivision (7) of this section;
(10) "Responsible family member" means a member of a resident's family who has undertaken primary responsibility for the care of the resident and who has established a working relationship with the nursing home or other facility in which the resident resides. For purposes of this article, a responsible family member may include someone other than the resident's legal representative;
(11) "State long-term care ombudsman" means an individual who meets the qualifications of section five, article five-l, chapter sixteen of this code and who is employed by the State Bureau for Senior Services to implement the state long-term care ombudsman program;
(12) "Secretary" means the Secretary of the Department of Health and Human Resources.
CHAPTER 11. TAXATION.
ARTICLE 27. HEALTH CARE PROVIDER TAXES.

§11-27-10. Imposition of tax on providers of intermediate care facility services for individuals with an intellectual disability.

(a) Imposition of tax. -- For the privilege of engaging or continuing within this state in the business of providing intermediate care facility services for ~~the mentally retarded~~ individuals with an intellectual disability, there is ~~hereby~~ levied and shall be collected from every person rendering such service an annual broad-based health care related tax.
(b) Rate and measure of tax. -- The tax imposed in subsection (a) of this section ~~shall be~~ is five and one-half percent of the gross receipts derived by the taxpayer from furnishing intermediate care facility services in this state to ~~the mentally retarded~~ individuals with an intellectual disability.
(c) Definitions. --
(1) "Gross receipts" means the amount received or receivable, whether in cash or in kind, from patients, third-party payors and others for intermediate care facility services furnished by the provider, including retroactive adjustments under reimbursement agreements with third-party payors, without any deduction for any expenses of any kind: Provided, That accrual basis providers ~~shall be~~ are allowed to reduce gross receipts by their contractual allowances, to the extent ~~such~~ those allowances are included therein, and by bad debts, to the extent the amount of ~~such~~ those bad debts was previously included in gross receipts upon which the tax imposed by this section was paid.
(2) "Contractual allowances" means the difference between revenue (gross receipts) at established rates and amounts realizable from third-party payors under contractual agreements.
(3) "Intermediate care facility services for ~~the mentally retarded~~ individuals with an intellectual disability" means those services that are intermediate care facility services for ~~the mentally retarded~~ individuals with an intellectual disability for purposes of Section 1903(w) of the Social Security Act.
(d) Effective date. -- The tax imposed by this section ~~shall apply~~ applies to gross receipts received or receivable by providers after May 31, 1993.

§11-27-11. Imposition of tax on providers of nursing facility services, other than services of intermediate care facilities for individuals with an intellectual disability.

(a) Imposition of tax. -- For the privilege of engaging or continuing within this state in the business of providing nursing facility services, other than those services of intermediate care facilities for ~~the mentally retarded~~ individuals with an intellectual disability, there is ~~hereby~~ levied and shall be collected from every person rendering such service an annual broad-based health care related tax: Provided, That hospitals which provide nursing facility services may adjust nursing facility rates to the extent necessary to compensate for the tax without first obtaining approval from the health care authority: Provided, however, That the rate adjustment is limited to a single adjustment during the initial year of the imposition of the tax which adjustment ~~shall be~~ is exempt from prospective review by the health care authority and further which is limited to an amount not to exceed the amount of the tax which is levied against the hospital for the provision of nursing facility services pursuant to this section. The health care authority shall retroactively review the rate increases implemented by the hospitals under this section during the regular rate review process. A hospital which fails to meet the criteria established by this section for a rate increase exempt from prospective review ~~shall be~~ is subject to the penalties imposed under article twenty-nine-b, chapter sixteen of the code.
(b) Rate and measure of tax. -- The tax imposed in subsection (a) of this section ~~shall be~~ is five and one-half percent of the gross receipts derived by the taxpayer from furnishing nursing facility services in this state, other than services of intermediate care facilities for ~~the mentally retarded~~ individuals with an intellectual disability. This rate shall be increased to five and ninety-five one hundredths percent of the gross receipts received or receivable by providers of nursing facility services after June 30, 2004 and shall again be decreased to five and one-half percent of the gross receipts received or receivable by providers of nursing services after October 31, 2007.
(c) Definitions. --
(1) "Gross receipts" means the amount received or receivable, whether in cash or in kind, from patients, third-party payors and others for nursing facility services furnished by the provider, including retroactive adjustments under reimbursement agreements with third-party payors, without any deduction for any expenses of any kind: Provided, That accrual basis providers ~~shall be~~ are allowed to reduce gross receipts by their bad debts, to the extent the amount of ~~such~~ those bad debts was previously included in gross receipts upon which the tax imposed by this section was paid.
(2) "Nursing facility services" means those services that are nursing facility services for purposes of Section 1903(w) of the Social Security Act.
(d) Effective date. -- The tax imposed by this section ~~shall apply~~ applies to gross receipts received or receivable by providers after May 31, 1993.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-4. Proposal of rules by the secretary.
The secretary may propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code that are necessary and proper to effectuate the purposes of this chapter. The secretary may appoint or designate advisory councils of professionals in the areas of hospitals, nursing homes, barbers and beauticians, postmortem examinations, mental health and ~~mental retardation~~ intellectual disability centers and any other areas necessary to advise the secretary on rules.
The rules may include, but are not limited to, the regulation of:
(a) Land usage endangering the public health: Provided, That no rules may be promulgated or enforced restricting the subdivision or development of any parcel of land within which the individual tracts, lots or parcels exceed two acres each in total surface area and which individual tracts, lots or parcels have an average frontage of not less than one hundred fifty feet even though the total surface area of the tract, lot or parcel equals or exceeds two acres in total surface area, and which tracts are sold, leased or utilized only as single-family dwelling units. Notwithstanding the provisions of this subsection, nothing in this section may be construed to abate the authority of the department to: (1) Restrict the subdivision or development of a tract for any more intense or higher density occupancy than a single-family dwelling unit; (2) propose or enforce rules applicable to single-family dwelling units for single-family dwelling unit sanitary sewerage disposal systems; or (3) restrict any subdivision or development which might endanger the public health, the sanitary condition of streams or sources of water supply;
(b) The sanitary condition of all institutions and schools, whether public or private, public conveyances, dairies, slaughterhouses, workshops, factories, labor camps, all other places open to the general public and inviting public patronage or public assembly, or tendering to the public any item for human consumption and places where trades or industries are conducted;
(c) Occupational and industrial health hazards, the sanitary conditions of streams, sources of water supply, sewerage facilities and plumbing systems and the qualifications of personnel connected with any of those facilities, without regard to whether the supplies or systems are publicly or privately owned; and the design of all water systems, plumbing systems, sewerage systems, sewage treatment plants, excreta disposal methods and swimming pools in this state, whether publicly or privately owned;
(d) Safe drinking water, including:
(1) The maximum contaminant levels to which all public water systems must conform in order to prevent adverse effects on the health of individuals and, if appropriate, treatment techniques that reduce the contaminant or contaminants to a level which will not adversely affect the health of the consumer. The rule shall contain provisions to protect and prevent contamination of wellheads and well fields used by public water supplies so that contaminants do not reach a level that would adversely affect the health of the consumer;
(2) The minimum requirements for: Sampling and testing; system operation; public notification by a public water system on being granted a variance or exemption or upon failure to comply with specific requirements of this section and rules promulgated under this section; record keeping; laboratory certification; as well as procedures and conditions for granting variances and exemptions to public water systems from state public water systems rules; and
(3) The requirements covering the production and distribution of bottled drinking water and may establish requirements governing the taste, odor, appearance and other consumer acceptability parameters of drinking water;
(e) Food and drug standards, including cleanliness, proscription of additives, proscription of sale and other requirements in accordance with article seven of this chapter as are necessary to protect the health of the citizens of this state;
(f) The training and examination requirements for emergency medical service attendants and emergency medical care technician-paramedics; the designation of the health care facilities, health care services and the industries and occupations in the state that must have emergency medical service attendants and emergency medical care technician-paramedics employed and the availability, communications and equipment requirements with respect to emergency medical service attendants and to emergency medical care technician-paramedics: Provided, That any regulation of emergency medical service attendants and emergency medical care technician-paramedics may not exceed the provisions of article four-c of this chapter;
(g) The health and sanitary conditions of establishments commonly referred to as bed and breakfast inns. For purposes of this article, "bed and breakfast inn" means an establishment providing sleeping accommodations and, at a minimum, a breakfast for a fee: Provided, That the secretary may not require an owner of a bed and breakfast providing sleeping accommodations of six or fewer rooms to install a restaurant-style or commercial food service facility: Provided, however, That the secretary may not require an owner of a bed and breakfast providing sleeping accommodations of more than six rooms to install a restaurant-type or commercial food service facility if the entire bed and breakfast inn or those rooms numbering above six are used on an aggregate of two weeks or less per year;
(h) Fees for services provided by the Bureau for Public Health including, but not limited to, laboratory service fees, environmental health service fees, health facility fees and permit fees;
(i) The collection of data on health status, the health system and the costs of health care;
(j) Opioid treatment programs duly licensed and operating under the requirements of chapter twenty-seven of this code. The health care authority shall develop new certificate of need standards, pursuant to the provisions of article two-d of this chapter, that are specific for opioid treatment program facilities. No applications for a certificate of need for opioid treatment programs shall be approved by the health care authority as of the effective date of the 2007 amendments to this subsection. The secretary shall promulgate revised emergency rules to govern licensed programs: Provided, That there is a moratorium on the licensure of new opioid treatment programs that do not have a certificate of need as of the effective date of the 2007 amendments to this subsection, which shall continue until the Legislature determines that there is a necessity for additional opioid treatment facilities in West Virginia. The secretary shall file revised emergency rules with the Secretary of State to regulate opioid programs in compliance with subsections (1) through (9), inclusive, of this section: Provided, however, That any opioid treatment program facility that has received a certificate of need pursuant to article two-d, of this chapter by the health care authority shall be permitted to proceed to license and operate the facility. All existing opioid treatment programs shall be in compliance within one hundred eighty days of the effective date of the revised emergency rules as required herein. The revised emergency rules shall provide at a minimum:
(1) That the initial assessment prior to admission for entry into the opioid treatment program shall include an initial drug test to determine whether an individual is either opioid addicted or presently receiving methadone for an opioid addiction from another opioid treatment program. The patient may be admitted to the program if there is a positive test for either opioids or methadone or there are objective symptoms of withdrawal, or both, and all other criteria set forth in the rule for admission into an opioid treatment program are met: Provided, That admission to the program may be allowed to the following groups with a high risk of relapse without the necessity of a positive test or the presence of objective symptoms: Pregnant women with a history of opioid abuse, prisoners or parolees recently released from correctional facilities, former clinic patients who have successfully completed treatment but who believe themselves to be at risk of imminent relapse and HIV patients with a history of intravenous drug use.
(2) That within seven days of the admission of a patient, the opioid treatment program shall complete an initial assessment and an initial plan of care. Subsequently, the opioid treatment program shall develop a treatment plan of care by the thirtieth day after admission and attach to the patient's chart no later than five days after such plan is developed. The treatment plan is to reflect that detoxification is an option for treatment and supported by the program.
(3) That each opioid treatment program shall report and provide statistics to the Department of Health and Human Resources at least semiannually which includes the total number of patients; the number of patients who have been continually receiving methadone treatment in excess of two years, including the total number of months of treatment for each such patient; the state residency of each patient; the number of patients discharged from the program, including the total months in the treatment program prior to discharge and whether the discharge was for:
(A) Termination or disqualification;
(B) Completion of a program of detoxification;
(C) Voluntary withdrawal prior to completion of all requirements of detoxification as determined by the opioid treatment program; or
(D) An unexplained reason.
(4) That random drug testing of patients be conducted during the course of treatment. For purposes of these rules, random drug testing shall mean that each patient of an opioid treatment program facility has a statistically equal chance of being selected for testing at random and at unscheduled times. Any refusal to participate in a random drug test shall be considered a positive test: Provided, That nothing contained in this section or the legislative rules promulgated in conformity herewith will preclude any opioid treatment program from administering such additional drug tests as determined necessary by the opioid treatment program.
(5) That all random drug tests conducted by an opioid treatment program shall, at a minimum, test for the following:
(A) Opiates, including oxycodone at common levels of dosing;
(B) Methadone and any other medication used by the program as an intervention;
(C) Benzodiazepine including diazepam, lorazepan, clonazepam and alprazolam;
(D) Cocaine;
(E) Methamphetamine or amphetamine; and
(F) Other drugs determined by community standards, regional variation or clinical indication.
A positive test is a test that results in the presence of any drug or substance listed in this schedule and any other drug or substance prohibited by the opioid treatment program;
(6) That a positive drug test result after the first six months in an opioid treatment program shall result in the following:
(A) Upon the first positive drug test result, the opioid treatment program shall:
(1) Provide mandatory and documented weekly counseling to the patient, which shall include weekly meetings with a counselor who is licensed, certified or enrolled in the process of obtaining licensure or certification in compliance with the rules and on staff at the opioid treatment program;
(2) Immediately revoke the take home methadone privilege for a minimum of thirty days; and
(B) Upon a second positive drug test result within six months of a previous positive drug test result, the opioid treatment program shall:
(1) Provide mandatory and documented weekly counseling, which shall include weekly meetings with a counselor who is licensed, certified or enrolled in the process of obtaining licensure or certification in compliance with the rules and on staff at the opioid treatment program;
(2) Immediately revoke the take-home methadone privilege for a minimum of sixty days; and
(3) Provide mandatory documented treatment team meetings with the patient.
(C) Upon a third positive drug test result within a period of six months the opioid treatment program shall:
(1) Provide mandatory and documented weekly counseling, which shall include weekly meetings with a counselor who is licensed, certified or enrolled in the process of obtaining licensure or certification in compliance with the rules and on staff at the opioid treatment program;
(2) Immediately revoke the take-home methadone privilege for a minimum of one hundred twenty days; and
(3) Provide mandatory and documented treatment team meetings with the patient which will include, at a minimum: The need for continuing treatment; a discussion of other treatment alternatives; and the execution of a contract with the patient advising the patient of discharge for continued positive drug tests.
(D) Upon a fourth positive drug test within a six-month period, the patient shall be immediately discharged from the opioid treatment program or, at the option of the patient, shall immediately be provided the opportunity to participate in a twenty-one day detoxification plan, followed by immediate discharge from the opioid treatment program.
(7) That the opioid treatment program must report and provide statistics to the Department of Health and Human Resources demonstrating compliance with the random drug test rules including confirmation that:
(A) The random drug tests were truly random in regard to both the patients tested and to the times random drug tests were administered by lottery or some other objective standard so as not to prejudice or protect any particular patient.
(B) The total number and the number of positive results; and
(C) The number of expulsions from the program.
(8) That all opioid treatment facilities be open for business seven days per week: Provided, That the opioid treatment center may be closed for eight holidays and two training days per year.
(9) That the Office of Health Facility Licensure and Certification develop policies and procedures in conjunction with the Board of Pharmacy that will allow access to the Prescription Drug Registry maintained by the Board of Pharmacy before administration of methadone or other treatment in an opioid treatment program, after any positive drug test, and at each ninety-day treatment review to ensure the patient is not seeking prescription medication from multiple sources.
(k) The secretary shall propose a rule for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a or of this code for the distribution of state aid to local health departments and basic public health services funds.
(1) The rule shall include the following provisions:
(A) Base allocation amount for each county;
(B) Establishment and administration of an emergency fund of no more than two percent of the total annual funds of which unused amounts are to be distributed back to local boards of health at the end of each fiscal year;
(C) A calculation of funds utilized for state support of local health departments;
(D) Distribution of remaining funds on a per capita weighted population approach which factors coefficients for poverty, health status, population density and health department interventions for each county and a coefficient which encourages counties to merge in the provision of public health services;
(E) A hold-harmless provision to provide that each local health department receives no less in state support for a period of three years beginning in the 2009 budget year.
(2) The Legislature finds that an emergency exists and, therefore, the secretary shall file an emergency rule to implement the provisions of this section pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code. The emergency rule is subject to the prior approval of the Legislative Oversight Commission on Health and Human Resources Accountability prior to filing with the Secretary of State.
(l) Other health-related matters which the department is authorized to supervise and for which the rule-making authority has
not been otherwise assigned.

ARTICLE 2D. CERTIFICATE OF NEED.

§16-2D-2. Definitions.
Definitions of words and terms defined in articles five-f and twenty-nine-b of this chapter are incorporated in this section unless this section has different definitions.
As used in this article, unless otherwise indicated by the context:
(a) "Affected person" means:
(1) The applicant;
(2) An agency or organization representing consumers;
(3) Any individual residing within the geographic area served or to be served by the applicant;
(4) Any individual who regularly uses the health care facilities within that geographic area;
(5) The health care facilities which provide services similar to the services of the facility under review and which will be significantly affected by the proposed project;
(6) The health care facilities which, ~~prior to~~ before receipt by the state agency of the proposal being reviewed, have formally indicated an intention to provide similar services in the future;
(7) Third-party payors who reimburse health care facilities similar to those proposed for services;
(8) Any agency that establishes rates for health care facilities similar to those proposed; or
(9) Organizations representing health care providers.
(b) "Ambulatory health care facility" means a free-standing facility that provides health care to noninstitutionalized and nonhomebound persons on an outpatient basis. For purposes of this definition, a free-standing facility is not located on the campus of an existing health care facility. This definition does not include any facility engaged solely in the provision of lithotripsy services or the private office practice of any one or more health professionals licensed to practice in this state pursuant to the provisions of chapter thirty of this code: Provided, That this exemption from review ~~shall~~ may not be construed to include practices where major medical equipment otherwise subject to review under the provisions of this article is acquired, offered or developed: Provided, however, That this exemption from review ~~shall~~ may not be construed to include certain health services otherwise subject to review under the provisions of subdivision (1), subsection (a), section four of this article.
(c) "Ambulatory surgical facility" means a free-standing facility that provides surgical treatment to patients not requiring hospitalization. For purposes of this definition, a free-standing facility is not physically attached to a health care facility. This definition does not include the private office practice of any one or more health professionals licensed to practice surgery in this state pursuant to the provisions of chapter thirty of this code: Provided, That this exemption from review ~~shall~~ may not be construed to include practices where major medical equipment otherwise subject to review under the provisions of this article is acquired, offered or developed: Provided, however, That this exemption from review ~~shall~~ may not be construed to include health services otherwise subject to review under the provisions of subdivision (1), subsection (a), section four of this article.
(d) "Applicant" means: (1) The governing body or the person proposing a new institutional health service who is, or will be, the health care facility licensee wherein the new institutional health service is proposed to be located; and (2) in the case of a proposed new institutional health service not to be located in a licensed health care facility, the governing body or the person proposing to provide the new institutional health service. Incorporators or promoters who will not constitute the governing body or persons responsible for the new institutional health service may not be an applicant.
(e) "Bed capacity" means the number of beds licensed to a health care facility or the number of adult and pediatric beds permanently staffed and maintained for immediate use by inpatients in patient rooms or wards in an unlicensed facility.
(f) "Campus" means the adjacent grounds and buildings, or grounds and buildings not separated by more than a public right-of-way, of a health care facility.
(g) "Capital expenditure" means:
(1) An expenditure made by or on behalf of a health care facility, which:
(A) (i) Under generally accepted accounting principles is not properly chargeable as an expense of operation and maintenance; or (ii) is made to obtain either by lease or comparable arrangement any facility or part thereof or any equipment for a facility or part; and
(B) (i) Exceeds the expenditure minimum; or (ii) is a substantial change to the bed capacity of the facility with respect to which the expenditure is made; or (iii) is a substantial change to the services of such facility;
(2) The donation of equipment or facilities to a health care facility, which if acquired directly by that facility would be subject to review;
(3) The transfer of equipment or facilities for less than fair market value if the transfer of the equipment or facilities at fair market value would be subject to review; or
(4) A series of expenditures, if the sum total exceeds the expenditure minimum and if determined by the state agency to be a single capital expenditure subject to review. In making this determination, the state agency shall consider: Whether the expenditures are for components of a system which is required to accomplish a single purpose; whether the expenditures are to be made over a two-year period and are directed towards the accomplishment of a single goal within the health care facility's long-range plan; or whether the expenditures are to be made within a two-year period within a single department such that they will constitute a significant modernization of the department.
(h) "Expenditure minimum" means $2,700,000 for the calendar year 2009. The state agency shall adjust the expenditure minimum annually and publish an update of the amount on or before December 31 of each year. The expenditure minimum adjustment shall be based on the DRI inflation index published in the Global Insight DRI/WEFA Health Care Cost Review, or its successor or appropriate replacement index. This amount shall include the cost of any studies, surveys, designs, plans, working drawings, specifications and other activities, including staff effort and consulting and other services essential to the acquisition, improvement, expansion or replacement of any plant or equipment.
(i) "Health", used as a term, includes physical and mental health.
(j) "Health care facility" means a publicly or privately owned facility, agency or entity that offers or provides health care services, whether a for-profit or nonprofit entity and whether or not licensed, or required to be licensed, in whole or in part, and includes, but is not limited to, hospitals; skilled nursing facilities; kidney disease treatment centers, including free-standing hemodialysis units; intermediate care facilities; ambulatory health care facilities; ambulatory surgical facilities; home health agencies; hospice agencies; rehabilitation facilities; health maintenance organizations; and community mental health and ~~mental retardation~~ intellectual disability facilities. For purposes of this definition, "community mental health and ~~mental retardation~~ intellectual disability facility" means a private facility which provides such comprehensive services and continuity of care as emergency, outpatient, partial hospitalization, inpatient or consultation and education for individuals with mental illness, ~~mental retardation~~ intellectual disability or drug or alcohol addiction.
(k) "Health care provider" means a person, partnership, corporation, facility, hospital or institution licensed or certified or authorized by law to provide professional health care service in this state to an individual during that individual's medical, remedial or behavioral health care, treatment or confinement.
(l) "Health maintenance organization" means a public or private organization which:
(1) Is required to have a certificate of authority to operate in this state pursuant to section three, article twenty-five-a, chapter thirty-three of this code; or
(2) (A) Provides or otherwise makes available to enrolled participants health care services, including substantially the following basic health care services: Usual physician services, hospitalization, laboratory, X ray, emergency and preventive services and out-of-area coverage;
(B) Is compensated except for copayments for the provision of the basic health care services listed in paragraph (A) of this subdivision to enrolled participants on a predetermined periodic rate basis without regard to the date the health care services are provided and which is fixed without regard to the frequency, extent or kind of health service actually provided; and
(C) Provides physicians' services: (i) Directly through physicians who are either employees or partners of the organization; or (ii) through arrangements with individual physicians or one or more groups of physicians organized on a group practice or individual practice basis.
(m) "Health services" means clinically related preventive, diagnostic, treatment or rehabilitative services, including alcohol, drug abuse and mental health services.
(n) "Home health agency" means an organization primarily engaged in providing professional nursing services either directly or through contract arrangements and at least one of the following services: Home health aide services, other therapeutic services, physical therapy, speech therapy, occupational therapy, nutritional services or medical social services to persons in their place of residence on a part-time or intermittent basis.
(o) "Hospice agency" means a private or public agency or organization licensed in West Virginia for the administration or provision of hospice care services to terminally ill persons in the persons' temporary or permanent residences by using an interdisciplinary team, including, at a minimum, persons qualified to perform nursing services; social work services; the general practice of medicine or osteopathy; and pastoral or spiritual counseling.
(p) "Hospital" means a facility licensed as such pursuant to the provisions of article five-b of this chapter, and any acute care facility operated by the state government, that primarily provides inpatient diagnostic, treatment or rehabilitative services to injured, disabled or sick persons under the supervision of physicians and includes psychiatric and tuberculosis hospitals.
(q) "Intermediate care facility" means an institution that provides health-related services to individuals with mental or physical conditions that require services above the level of room and board, but do not require the degree of services provided in a hospital or skilled-nursing facility.
(r) "Long-range plan" means a document formally adopted by the legally constituted governing body of an existing health care facility or by a person proposing a new institutional health service which contains the information required by the state agency in rules adopted pursuant to section eight of this article.
(s) "Major medical equipment" means a single unit of medical equipment or a single system of components with related functions which is used for the provision of medical and other health services and costs in excess of $2,700,000 in the calendar year 2009. The state agency shall adjust the dollar amount specified in this subsection annually and publish an update of the amount on or before December 31 of each year. The adjustment of the dollar amount shall be based on the DRI inflation index published in the Global Insight DRI/WEFA Health Care Cost Review or its successor or appropriate replacement index. This term does not include medical equipment acquired by or on behalf of a clinical laboratory to provide clinical laboratory services if the clinical laboratory is independent of a physician's office and a hospital and it has been determined under Title XVIII of the Social Security Act to meet the requirements of paragraphs ten and eleven, Section 1861(s) of such act, Title 42 U.S.C. §1395x. In determining whether medical equipment is major medical equipment, the cost of studies, surveys, designs, plans, working drawings, specifications and other activities essential to the acquisition of such equipment shall be included. If the equipment is acquired for less than fair market value, the term "cost" includes the fair market value.
(t) "Medically underserved population" means the population of an area designated by the state agency as having a shortage of personal health services. The state agency may consider unusual local conditions that are a barrier to accessibility or availability of health services. The designation shall be in rules adopted by the state agency pursuant to section eight of this article, and the population so designated may include the state's medically underserved population designated by the federal Secretary of Health and Human Services under Section 330(b)(3) of the Public Health Service Act, as amended, Title 42 U.S.C. §254.
(u) "New institutional health service" means any service as described in section three of this article.
(v) "Nonhealth-related project" means a capital expenditure for the benefit of patients, visitors, staff or employees of a health care facility and not directly related to preventive, diagnostic, treatment or rehabilitative services offered by the health care facility. This includes, but is not limited to, chapels, gift shops, news stands, computer and information technology systems, educational, conference and meeting facilities, but excluding medical school facilities, student housing, dining areas, administration and volunteer offices, modernization of structural components, boiler repair or replacement, vehicle maintenance and storage facilities, parking facilities, mechanical systems for heating, ventilation systems, air conditioning systems and loading docks.
(w) "Offer", when used in connection with health services, means that the health care facility or health maintenance organization holds itself out as capable of providing, or as having the means to provide, specified health services.
(x) "Person" means an individual, trust, estate, partnership, committee, corporation, association and other organizations such as joint-stock companies and insurance companies, a state or a political subdivision or instrumentality thereof or any legal entity recognized by the state.
(y) "Physician" means a doctor of medicine or osteopathy legally authorized to practice by the state.
(z) "Proposed new institutional health service" means any service as described in section three of this article.
(aa) "Psychiatric hospital" means an institution that primarily provides to inpatients, by or under the supervision of a physician, specialized services for the diagnosis, treatment and rehabilitation of mentally ill and emotionally disturbed persons.
(bb) "Rehabilitation facility" means an inpatient facility operated for the primary purpose of assisting in the rehabilitation of disabled persons through an integrated program of medical and other services which are provided under competent professional supervision.
(cc) "Review agency" means an agency of the state, designated by the Governor as the agency for the review of state agency decisions.
(dd) "Skilled nursing facility" means an institution, or a distinct part of an institution, that primarily provides inpatient skilled nursing care and related services, or rehabilitation services, to injured, disabled or sick persons.
(ee) "State agency" means the Health Care Authority created, established and continued pursuant to article twenty-nine-b of this chapter.
(ff) "State health plan" means the document approved by the Governor after preparation by the former statewide health coordinating council or that document as approved by the Governor after amendment by the former health care planning council or the state agency.
(gg) "Substantial change to the bed capacity" of a health care facility means any change, associated with a capital expenditure, that increases or decreases the bed capacity or relocates beds from one physical facility or site to another, but does not include a change by which a health care facility reassigns existing beds as swing beds between acute care and long-term care categories: Provided, That a decrease in bed capacity in response to federal rural health initiatives is excluded from this definition.
(hh) "Substantial change to the health services" of a health care facility means: (1) The addition of a health service offered by or on behalf of the health care facility which was not offered by or on behalf of the facility within the twelve-month period before the month in which the service is first offered; or (2) the termination of a health service offered by or on behalf of the facility: Provided, That "substantial change to the health services" does not include the providing of ambulance service, wellness centers or programs, adult day care or respite care by acute care facilities.
(ii) "To develop", when used in connection with health services, means to undertake those activities which upon their completion will result in the offer of a new institutional health service or the incurring of a financial obligation in relation to the offering of such a service.
§16-2D-5. Powers and duties of state agency.
(a) The state agency shall administer the certificate of need program as provided by this article.
(b) The state agency is responsible for coordinating and developing the health planning research efforts of the state and for amending and modifying the state health plan which includes the certificate of need standards. The state agency shall review the state health plan, including the certificate of need standards and make any necessary amendments and modifications. The state agency shall also review the cost effectiveness of the certificate of need program. The state agency may form task forces to assist it in addressing these issues. The task forces shall be composed of representatives of consumers, business, providers, payers and state agencies.
(c) The state agency may seek advice and assistance of other persons, organizations and other state agencies in the performance of the state agency's responsibilities under this article.
(d) For health services for which competition appropriately allocates supply consistent with the state health plan, the state agency shall, in the performance of its functions under this article, give priority, where appropriate to advance the purposes of quality assurance, cost effectiveness and access, to actions which would strengthen the effect of competition on the supply of the services.
(e) For health services for which competition does not or will not appropriately allocate supply consistent with the state health plan, the state agency shall, in the exercise of its functions under this article, take actions, where appropriate to advance the purposes of quality assurance, cost effectiveness and access and the other purposes of this article, to allocate the supply of the services.
(f) Notwithstanding the provisions of section seven of this article, the state agency may charge a fee for the filing of any application, the filing of any notice in lieu of an application, the filing of any exemption determination request or the filing of any request for a declaratory ruling. The fees charged may vary according to the type of matter involved, the type of health service or facility involved or the amount of capital expenditure involved: Provided, That any fee charged pursuant to this subsection may not exceed a dollar amount to be established by procedural rule. The state agency shall evaluate and amend any procedural rule promulgated prior to the amendments to this subsection made during the 2009 regular session of the Legislature. The fees charged shall be deposited into a special fund known as the Certificate of Need Program Fund to be expended for the purposes of this article.
(g) A hospital, nursing home or other health care facility may not add any intermediate care or skilled nursing beds to its current licensed bed complement. This prohibition also applies to the conversion of acute care or other types of beds to intermediate care or skilled nursing beds: Provided, That hospitals eligible under the provisions of section four-a of this article and subsection (I) of this section may convert acute care beds to skilled nursing beds in accordance with the provisions of these sections, upon approval by the state agency. Furthermore, a certificate of need may not be granted for the construction or addition of any intermediate care or skilled nursing beds except in the case of facilities designed to replace existing beds in unsafe existing facilities. A health care facility in receipt of a certificate of need for the construction or addition of intermediate care or skilled nursing beds which was approved prior to the effective date of this section shall incur an obligation for a capital expenditure within twelve months of the date of issuance of the certificate of need. Extensions may not be granted beyond the twelve-month period. The state agency shall establish a task force or utilize an existing task force to study the need for additional nursing facility beds in this state. The study shall include a review of the current moratorium on the development of nursing facility beds; the exemption for the conversion of acute care beds to skilled nursing facility beds; the development of a methodology to assess the need for additional nursing facility beds; and certification of new beds both by Medicare and Medicaid. The task force shall be composed of representatives of consumers, business, providers, payers and government agencies.
(h) No additional intermediate care facility for ~~the mentally retarded~~ individuals with an intellectual disability (ICF/MR ID) beds ~~shall~~ may be granted a certificate of need, except that prohibition does not apply to ICF/MR beds approved under the Kanawha County Circuit Court order of August 3, 1989, civil action number MISC-81-585 issued in the case of E.H. v. Matin, 168 W.V. 248, 284 S.E. 2d 232 (1981).
(I) Notwithstanding the provisions of subsection (g) of this section and further notwithstanding the provisions of subsection (b), section three of this article, an existing acute care hospital may apply to the Health Care Authority for a certificate of need to convert acute care beds to skilled nursing beds: Provided, That the proposed skilled nursing beds are Medicare-certified only: Provided, however, That any hospital which converts acute care beds to Medicare-certified only skilled nursing beds shall not bill for any Medicaid reimbursement for any converted beds. In converting beds, the hospital shall convert a minimum of one acute care bed into one Medicare-certified only skilled nursing bed. The Health Care Authority may require a hospital to convert up to and including three acute care beds for each Medicare-certified only skilled nursing bed: Provided further, That a hospital designated or provisionally designated by the state agency as a rural primary care hospital may convert up to thirty beds to a distinct-part nursing facility, including skilled nursing beds and intermediate care beds, on a one-for-one basis if the rural primary care hospital is located in a county without a certified freestanding nursing facility and the hospital may bill for Medicaid reimbursement for the converted beds: And provided further, That if the hospital rejects the designation as a rural primary care hospital, then the hospital may not bill for Medicaid reimbursement. The Health Care Authority shall adopt rules to implement this subsection which require that:
(1) All acute care beds converted shall be permanently deleted from the hospital's acute care bed complement and the hospital may not thereafter add, by conversion or otherwise, acute care beds to its bed complement without satisfying the requirements of subsection (b), section three of this article for which purposes an addition, whether by conversion or otherwise, shall be considered a substantial change to the bed capacity of the hospital notwithstanding the definition of that term found in subsection (ff), section two of this article.
(2) The hospital shall meet all federal and state licensing certification and operational requirements applicable to nursing homes including a requirement that all skilled care beds created under this subsection shall be located in distinct-part, long-term care units.
(3) The hospital shall demonstrate a need for the project.
(4) The hospital shall use existing space for the Medicare- certified only skilled nursing beds. Under no circumstances shall the hospital construct, lease or acquire additional space for purposes of this section.
(5) The hospital shall notify the acute care patient, prior to discharge, of facilities with skilled nursing beds which are located in or near the patient's county of residence. Nothing in this subsection negatively affects the rights of inspection and certification which are otherwise required by federal law or regulations or by this code or duly adopted rules of an authorized state entity.
(j) (1) Notwithstanding the provisions of subsection (g) of this section, a retirement life care center with no skilled nursing beds may apply to the Health Care Authority for a certificate of need for up to sixty skilled nursing beds provided the proposed skilled beds are Medicare-certified only. On a statewide basis, a maximum of one hundred eighty skilled beds which are Medicare- certified only may be developed pursuant to this subsection. The state health plan is not applicable to projects submitted under this subsection. The Health Care Authority shall adopt rules to implement this subsection which shall include a requirement that:
(A) The one hundred eighty beds are to be distributed on a statewide basis;
(B) There be a minimum of twenty beds and a maximum of sixty beds in each approved unit;
(C) The unit developed by the retirement life care center meets all federal and state licensing certification and operational requirements applicable to nursing homes;
(D) The retirement center demonstrates a need for the project;
(E) The retirement center offers personal care, home health services and other lower levels of care to its residents; and
(F) The retirement center demonstrates both short- and long-term financial feasibility.
(2) Nothing in this subsection negatively affects the rights of inspection and certification which are otherwise required by federal law or regulations or by this code or duly adopted rules of an authorized state entity.
(k) The state agency may order a moratorium upon the offering or development of a new institutional health service when criteria and guidelines for evaluating the need for the new institutional health service have not yet been adopted or are obsolete. The state agency may also order a moratorium on the offering or development of a health service, notwithstanding the provisions of subdivision (5), subsection (b), section three of this article, when it determines that the proliferation of the service may cause an adverse impact on the cost of health care or the health status of the public. A moratorium shall be declared by a written order which shall detail the circumstances requiring the moratorium. Upon the adoption of criteria for evaluating the need for the health service affected by the moratorium, or one hundred eighty days from the declaration of a moratorium, whichever is less, the moratorium shall be declared to be over and applications for certificates of need are processed pursuant to section six of this article.
(l) (1) The state agency shall coordinate the collection of information needed to allow the state agency to develop recommended modifications to certificate of need standards as required in this article. When the state agency proposes amendments or modifications to the certificate of need standards, it shall file with the Secretary of State, for publication in the State Register, a notice of proposed action, including the text of all proposed amendments and modifications, and a date, time and place for receipt of general public comment. To comply with the public comment requirement of this section, the state agency may hold a public hearing or schedule a public comment period for the receipt of written statements or documents.
(2) When amending and modifying the certificate of need standards, the state agency shall identify relevant criteria contained in section six of this article or rules adopted pursuant to section eight of this article and apply those relevant criteria to the proposed new institutional health service in a manner that promotes the public policy goals and legislative findings contained in section one of this article. In doing so, the state agency may consult with or rely upon learned treatises in health planning, recommendations and practices of other health planning agencies and organizations, recommendations from consumers, recommendations from health care providers, recommendations from third-party payors, materials reflecting the standard of care, the state agency's own developed expertise in health planning, data accumulated by the state agency or other local, state or federal agency or organization and any other source deemed relevant to the certificate of need standards proposed for amendment or modification.
(3) All proposed amendments and modifications to the certificate of need standards, with a record of the public hearing or written statements and documents received pursuant to a public comment period, shall be presented to the Governor. Within thirty days of receiving the proposed amendments or modifications, the Governor shall either approve or disapprove all or part of the amendments and modifications and, for any portion of amendments or modifications not approved, shall specify the reason or reasons for nonapproval. Any portions of the amendments or modifications not approved by the Governor may be revised and resubmitted.
(4) The certificate of need standards adopted pursuant to this section which are applicable to the provisions of this article are not subject to article three, chapter twenty-nine-a of this code. The state agency shall follow the provisions set forth in this subsection for giving notice to the public of its actions, holding hearings or receiving comments on the certificate of need standards. The certificate of need standards in effect on November 29, 2005, and all prior versions promulgated and adopted in accordance with the provisions of this section are and have been in full force and effect from each of their respective dates of approval by the Governor.
(m) The state agency may exempt from or expedite rate review, certificate of need and annual assessment requirements and issue grants and loans to financially vulnerable health care facilities located in underserved areas that the state agency and the Office of Community and Rural Health Services determine are collaborating with other providers in the service area to provide cost effective health care services.

ARTICLE 5F. HEALTH CARE FINANCIAL DISCLOSURE.

§16-5F-2. Definitions.
As used in this article:
(1) "Annual report" means an annual financial report for the covered facility's or related organization's fiscal year prepared by an accountant or the covered facility's or related organization's Auditor.
(2) "Board" means the West Virginia Health Care ~~cost review~~ Authority.
(3) "Covered facility" means any hospital, skilled nursing facility, kidney disease treatment center, including a free-standing hemodialysis unit; intermediate care facility; ambulatory health care facility; ambulatory surgical facility; home health agency; hospice agency; rehabilitation facility; health maintenance organization; or community mental health or ~~mental retardation~~ intellectual disability facility, whether under public or private ownership or as a profit or nonprofit organization and whether or not licensed or required to be licensed, in whole or in part, by the state: Provided, That nonprofit, community-based primary care centers providing primary care services without regard to ability to pay which provide the board with a year-end audited financial statement prepared in accordance with generally accepted auditing standards and with governmental auditing standards issued by the Comptroller General of the United States shall be deemed to have complied with the disclosure requirements of this section.
(4) "Related organization" means an organization, whether publicly owned, nonprofit, tax-exempt or for profit, related to a covered facility through common membership, governing bodies, trustees, officers, stock ownership, family members, partners or limited partners, including, but not limited to, subsidiaries, foundations, related corporations and joint ventures. For the purposes of this subdivision "family members" shall mean brothers and sisters whether by the whole or half blood, spouse, ancestors and lineal descendants.
(5) "Rates" means all rates, fees or charges imposed by any covered facility for health care services.
(6) "Records" includes accounts, books, charts, contracts, documents, files, maps, papers, profiles, reports, annual and otherwise, schedules and any other fiscal data, however recorded or stored.
ARTICLE 5O. MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL.
§16-5O-2. Definitions.
As used in this article, unless a different meaning appears from the context, the following definitions apply:
(a) "Administration of medication" means:
(1) Assisting a person in the ingestion, application or inhalation of medications, including prescription drugs, or in the use of universal precautions or rectal or vaginal insertion of medication, according to the legibly written or printed directions of the attending physician or authorized practitioner, or as written on the prescription label; and
(2) Making a written record of such assistance with regard to each medication administered, including the time, route and amount taken: Provided, That for purposes of this article, "administration" does not include judgment, evaluation, assessments, injections of medication, monitoring of medication or self-administration of medications, including prescription drugs and self-injection of medication by the resident.
(b) "Authorizing agency" means the department's Office of Health Facility Licensure and Certification.
(c) "Department" means the Department of Health and Human Resources.
(d) "Facility" means an ~~ICF/MR~~, ICF/ID a personal care home, residential board and care home, behavioral health group home, private residence in which health care services are provided under the supervision of a registered nurse or an adult family care home that is licensed by or approved by the department.
(e) "Facility staff member" means an individual employed by a facility but does not include a health care professional acting within the scope of a professional license or certificate.
(f) "Health care professional" means a medical doctor or doctor of osteopathy, a podiatrist, registered nurse, practical nurse, registered nurse practitioner, physician's assistant, dentist, optometrist or respiratory care professional licensed under chapter thirty of this code.
(g) ~~ICF/MR~~ "ICF-ID" means an intermediate care facility for ~~the mentally retarded~~ individuals with an intellectual disability which is certified by the department.
(h) "Medication" means a drug, as defined in section one hundred one, article one, chapter sixty-a of this code, which has been prescribed by a duly authorized health care professional to be ingested through the mouth, applied to the outer skin, eye or ear, or applied through nose drops, vaginal or rectal suppositories.
(i) "Registered professional nurse" means a person who holds a valid license pursuant to article seven, chapter thirty of this code.
(j) "Resident" means a resident of a facility.
(k) "Secretary" means the Secretary of the Department of Health and Human Resources or his or her designee.
(l) "Self-administration of medication" means the act of a resident, who is independently capable of reading and understanding the labels of drugs ordered by a physician, in opening and accessing prepackaged drug containers, accurately identifying and taking the correct dosage of the drugs as ordered by the physician, at the correct time and under the correct circumstances.
(m) "Supervision of self-administration of medication" means a personal service which includes reminding residents to take medications, opening medication containers for residents, reading the medication label to residents, observing residents while they take medication, checking the self administered dosage against the label on the container and reassuring residents that they have obtained and are taking the dosage as prescribed.

ARTICLE 22. DETECTION AND CONTROL OF PHENYLKETONURIA, GALACTOSEMIA, HYPOTHYROIDISM, AND CERTAIN OTHER DISEASES IN NEWBORN CHILDREN.

§16-22-1. Findings.

The Legislature finds that phenylketonuria, galactosemia, hypothyroidism, and certain other diseases are usually associated with ~~mental retardation~~ intellectual disability or other severe health hazards. Laboratory tests are readily available to aid in the detection of these diseases and hazards to the health of those suffering ~~thereof~~ from these diseases may be lessened or prevented by early detection and treatment. Damage from these diseases, if untreated in the early months of life, is usually rapid and not appreciably affected by treatment.

§16-22-2. Program to combat intellectual disability or other severe health hazards; rules; facilities for making tests.

The state Bureau of Public Health is ~~hereby~~ authorized to establish and carry out a program designed to combat ~~mental retardation~~ intellectual disability or other severe health hazards in our state's population due to phenylketonuria, galactosemia, hypothyroidism, and certain other diseases specified by the state Public Health Commissioner, and may adopt reasonable rules and regulations necessary to carry out such a program. The Bureau of Public Health shall establish and maintain facilities at its state hygienic laboratory for testing specimens for the detection of phenylketonuria, galactosemia, hypothyroidism, and certain other diseases specified by the state Public Health Commissioner. Tests shall be made by such laboratory of specimens upon request by physicians, hospital medical personnel and other individuals attending newborn infants. The state Bureau of Public Health is authorized to establish additional laboratories throughout the state to perform tests for the detection of phenylketonuria, galactosemia, hypothyroidism, and certain other diseases specified by the state Public Health Commissioner.

ARTICLE 29A. WEST VIRGINIA HOSPITAL FINANCE AUTHORITY ACT.

§16-29A-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) "Authority" means the West Virginia Hospital Finance Authority created by section four of this article, the duties, powers, responsibilities and functions of which are specified in this article;
(2) "Board" means the West Virginia Hospital Finance Board created by section four of this article, which shall manage and control the authority;
(3) "Bond" means a revenue bond issued by the authority to effect the purposes of this article;
(4) "Construction" means and includes new construction, reconstruction, enlargement, improvement and providing furnishings or equipment;
(5) "Direct provider of health care" means a person or organization whose primary current activity is the provision of health care to individuals and includes a licensed or certified physician, osteopath, dentist, nurse, podiatrist or physician's assistant or an organization comprised of these health professionals or employing these health professionals;
(6) "Hospital" means a corporation, association, institution or establishment for the care of those who require medical treatment, which may be a public or private corporation or association, or state-owned or operated establishment and specifically includes nursing homes which are licensed under chapter sixteen of this code or those facilities certified under the Social Security Act as intermediate care facilities for ~~the mentally retarded~~ individuals with an intellectual disability;
(7) "Hospital facilities" means any real or personal property suitable and intended for, or incidental or ancillary to, use by a hospital and includes: Outpatient clinics; laboratories; laundries; nurses', doctors' or interns' residences; administration buildings; facilities for research directly involved with hospital care; maintenance, storage or utility facilities; parking lots and garages; and all necessary, useful or related equipment, furnishings and appurtenances and all lands necessary or convenient as a site for the foregoing and specifically includes any capital improvements to any of the foregoing. "Hospital facilities" specifically includes office facilities not less than eighty percent of which are intended for lease to direct providers of health care and which are geographically or functionally related to one or more other hospital facilities, if the authority determines that the financing of the office facilities is necessary to accomplish the purposes of this article;
(8) "Hospital loan" means a loan made by the authority to a hospital and specifically includes financings by the authority for hospital facilities pursuant to lease-purchase agreements, installment sale or other similar agreements;
(9) "Note" means a short-term promise to pay a specified amount of money, payable and secured as provided pursuant to this article and issued by the authority to effect the purposes of this article;
(10) "Project costs" means the total of the reasonable or necessary costs incurred for carrying out the works and undertakings for the acquisition or construction of hospital facilities under this article. "Project costs" includes, but is not limited to, all of the following costs: The costs of acquisition or construction of the hospital facilities; studies and surveys; plans, specifications, architectural and engineering services; legal, organization, marketing or other special services; financing, acquisition, demolition, construction, equipping and site development of new and rehabilitated buildings; rehabilitation, reconstruction, repair or remodeling of existing buildings; interest and carrying charges during construction and before full earnings are achieved and operating expenses before full earnings are achieved or a period of one year following the completion of construction, whichever occurs first; and a reasonable reserve for payment of principal of and interest on bonds or notes of the authority. "Project costs" shall also include reimbursement of a hospital for the foregoing costs expended by a hospital from its own funds or from money borrowed by the hospital for such purposes before issuance and delivery of bonds or notes by the authority for the purpose of providing funds to pay the project costs. "Project costs" also specifically includes the refinancing of any existing debt of a hospital necessary in order to permit the hospital to borrow from the authority and give adequate security for the hospital loan. The determination of the authority with respect to the necessity of refinancing and adequate security for a hospital loan is conclusive;
(11) "Revenue" means any money or thing of value collected by, or paid to, the authority as principal of or interest, charges or other fees on hospital loans or any other collections on hospital loans made by the authority to hospitals to finance, in whole or in part, the acquisition or construction of any hospital facilities or other money or property which is received and may be expended for or pledged as revenues pursuant to this article;
(12) "Veterans skilled nursing facility" means a skilled nursing care facility constructed and operated to serve the needs of veterans of the Armed Forces of the United States who are citizens of this state.
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-7. Determination of incapacity.
(a) For the purposes of this article, a person may not be presumed to be incapacitated merely by reason of advanced age or disability. With respect to a person who has a diagnosis of mental illness or ~~mental retardation~~ intellectual disability, such a diagnosis is not a presumption that the person is incapacitated. A determination that a person is incapacitated shall be made by the attending physician, a qualified physician, a qualified psychologist or an advanced nurse practitioner who has personally examined the person.
(b) The determination of incapacity shall be recorded contemporaneously in the person's medical record by the attending physician, a qualified physician, advanced nurse practitioner or a qualified psychologist. The recording shall state the basis for the determination of incapacity, including the cause, nature and expected duration of the person's incapacity, if these are known.
(c) If the person is conscious, the attending physician shall inform the person that he or she has been determined to be incapacitated and that a medical power of attorney representative or surrogate decisionmaker may be making decisions regarding life-prolonging intervention or mental health treatment for the person.

§16-30-24. Need for a second opinion regarding incapacity for persons with psychiatric mental illness, intellectual disability or addiction.

For persons with psychiatric mental illness, ~~mental retardation~~ intellectual disability or addiction who have been determined by their attending physician or a qualified physician to be incapacitated, a second opinion by a qualified physician or qualified psychologist that the person is incapacitated is required before the attending physician is authorized to select a surrogate. The requirement for a second opinion ~~shall~~ does not apply in those instances in which the medical treatment to be rendered is not for the person's psychiatric mental illness.
CHAPTER 27. MENTALLY ILL PERSONS.

ARTICLE 1. WORDS AND PHRASES DEFINED.

§27-1-3. Intellectual disability.

"~~Mental retardation~~ Intellectual disability" means significantly subaverage intellectual functioning which manifests itself in a person during his or her developmental period and which is characterized by his or her inadequacy in adaptive behavior. Notwithstanding any provision to the contrary, if any service provision or reimbursement is affected by the changes in terminology adopted in the 2010 Regular Session of the Legislature, the terms "intellectual disability" or "individuals with an intellectual disability" shall assume their previous terminology. It is not the intent of the Legislature to expand the class of individuals affected by this terminology change.
§27-1-6. State hospital.
"State hospital" means any hospital, center or institution, or part ~~thereof~~ of any hospital, center or institution, established, maintained and operated by the Department of Health, or by the Department of Health in conjunction with a political subdivision of the state, to provide inpatient or outpatient care and treatment for the mentally ill, ~~mentally retarded~~ intellectually disabled or addicted. The terms "hospital" and "state hospital" exclude correctional and regional jail facilities.

§27-1-7. Administrator and clinical director.

(a) The administrator of a state-operated treatment facility ~~shall be~~ is its chief executive officer and ~~shall have~~ has the authority to manage and administer the financial, business and personnel affairs of such facility. All other persons employed at the state-operated treatment facility ~~shall be~~ are under the jurisdiction and authority of the administrator of the treatment facility who need not be a physician.
(b) The clinical director ~~shall have~~ has the responsibility for decisions involving clinical and medical treatment of patients in a state-operated mental health facility. The clinical director must be a physician duly licensed to practice medicine in this state who has completed training in an accredited program of post-graduate education in psychiatry.
(c) In any facility designated by the Secretary of the Department of Health and Human Resources as a facility for ~~the mentally retarded~~ individuals with an intellectual disability in which programs and services are designed primarily to provide education, training and rehabilitation rather than medical or psychiatric treatment, the duties and responsibilities, other than those directly related to medical treatment services, assigned to the clinical director by this section or elsewhere in this chapter, ~~shall be~~ are assigned to and become the responsibility of the administrator of ~~such~~ that facility, or of a person with expertise in the field of ~~mental retardation~~ intellectual disability, who need not be a physician, designated by the administrator.
§27-1-9. Mental health facility.
"Mental health facility" means any inpatient, residential or outpatient facility for the care and treatment of the mentally ill, ~~mentally retarded~~ intellectually disabled or addicted which is operated, or licensed to operate, by the Department of Health and Human Resources and includes state hospitals as defined in section six of this article. The term also includes veterans administration hospitals, but does not include any regional jail, juvenile or adult correctional facility, or juvenile detention facility.
ARTICLE 1A. DEPARTMENT OF HEALTH.
§27-1A-1. Statement of policy.
The purpose of this article is to improve the administration of the state hospitals, raise the standards of treatment of the mentally ill and ~~mentally retarded~~ intellectually disabled in the state hospitals, encourage the further development of outpatient and diagnostic clinics, establish better research and training programs, and promote the development of mental health.
§27-1A-4. Powers and duties of the secretary.
~~The commissioner shall be the executive head of the department, and as such shall have~~ In addition to the powers and duties set forth in any other provision of this code, the Secretary of the Department of Health and Human Resources has the following powers and duties:
(a) To develop and maintain a state plan which sets forth needs of the state in the areas of mental health and ~~mental retardation~~ intellectual disability; goals and objectives for meeting those needs; plan of operation for achieving the stated goals and objectives, including organizational structure; and statement of requirements in personnel funds and authority for achieving the goals and objectives.
(b) To appoint deputies and assistants to supervise the departmental programs, including hospital and residential services, and such other assistants and employees as may be necessary for the efficient operation of the department and all its programs.
(c) To promulgate rules ~~and regulations~~ clearly specifying the respective duties and responsibilities of program directors and fiscal administrators, making a clear distinction between the respective functions of these officials.
(d) To delegate to any of his or her appointees, assistants or employees all powers and duties vested in the commissioner, including the power to execute contracts and agreements in the name of the department as provided in this article, but the commissioner shall be responsible for the acts of such appointees, assistants and employees.
(e) To supervise and coordinate the operation of the state hospitals named in article two of this chapter and any other state hospitals, centers or institutions hereafter created for the care and treatment of the mentally ill or ~~mentally retarded~~ intellectually disabled, or both.
(f) To transfer a patient from any state hospital to any other state hospital or clinic under his or her control and, by agreement with the state ~~Commissioner of public institutions~~ Division of Corrections, transfer a patient from a state hospital to an institution, other than correctional, under the supervision of the state ~~Commissioner of public institutions~~ Division of Corrections.
(g) To make periodic reports to the Governor and to the Legislature on the condition of the state hospitals, centers and institutions or on other matters within his or her authority, which shall include recommendations for improvement of any mental health facility and any other matters affecting the mental health of the people of the state.
The ~~Commissioner of mental health shall have~~ Secretary of the Department of Health and Human Resources has all of the authority vested in the divisions of the former Department of Mental Health, as hereinafter provided.
The ~~Commissioner~~ Secretary of the Department of Health and Human Resources is hereby authorized and empowered to accept and use for the benefit of a state hospital, center or institution, or for any other mental health purpose specified in this chapter, any gift or devise of any property or thing which lawfully may be given. If such a gift or devise is for a specific purpose or for a particular state hospital, center or institution, it shall be used as specified. Any gift or devise of any property or thing which lawfully may be given and whatever profit may arise from its use or investment shall be deposited in a special revenue fund with the State Treasurer, and shall be used only as specified by the donor or donors.
Whenever it shall become necessary, the department of mental health may condemn any interest, right or privilege, land or improvement, which in its opinion may be necessary, in the manner provided by law, for the acquisition by this state of property for public purposes.

§27-1A-6. Division of professional services; powers and duties of supervisor; liaison with other state agencies.

There ~~shall be~~ is a Division of Professional Services is hereby established in the Department of Mental Health. The supervisor of this division shall assist the director in the operation of the programs or services of the department and shall be a qualified psychiatrist.
The supervisor of this division ~~shall have~~ has the following powers and duties:
(1) To develop professional standards, provide supervision of state hospitals, analyze hospital programs and inspect individual hospitals.
(2) To assist in recruiting professional staff.
(3) To take primary responsibility for the education and training of professional and subprofessional personnel.
(4) To carry on or stimulate research activities related to medical and psychiatric facilities of the department, and render specialized assistance to hospital superintendents.
(5) To establish liaison with appropriate state agencies and with private groups interested in mental health, ~~such as~~ including the state ~~Department of~~ Bureau for Public Health, ~~the board of Probation and Parole~~ Division of Corrections, the Department of Education, the Board of Governors of West Virginia University, and the West Virginia Association for Mental Health, Incorporated.
(6) To license, supervise and inspect any hospital, center or institution, or part ~~thereof~~ of any hospital, center or institution, maintained and operated by any political subdivision or by any person, persons, association or corporation to provide inpatient care and treatment for the mentally ill, or ~~mentally retarded~~ individuals with an intellectual disability, or both.
(7) To perform any other duties assigned to the division by the ~~director of the department~~ Secretary of the Department of Health and Human Resources.

ARTICLE 2. MENTAL HEALTH FACILITIES.

§27-2-1. State hospitals and other facilities; transfer of control and property from Department of Mental Health to Department of Health and Human Resources; civil service coverage.

The state hospitals heretofore established at Weston, ~~Spencer~~ Huntington ~~Barboursville~~ and Lakin, ~~Guthrie, Roney's Point, St. Marys and Lewisburg~~ ~~shall be~~ are continued and known respectively as the ~~Weston Hospital, Spencer Hospital Huntington Hospital Barboursville Hospital~~ William R. Sharpe, Jr. Hospital, Mildred-Mitchell Bateman Hospital and Lakin Hospital. ~~Guthrie Center, Roney's Point Center, Colin Anderson Center and the Greenbrier School for Retarded Children. Said~~ These state hospitals and centers ~~shall be~~ are managed, directed and controlled by the Department of Health and Human Resources. Any person employed by the Department of Mental Health who on the effective date of this article is a classified civil service employee shall, within the limits contained in section two, article six of chapter twenty-nine of this code, remain in the civil service system as a covered employee. The ~~Director of the Department of Health~~ Secretary of the Department of Health and Human Resources is ~~hereby~~ authorized to bring ~~said~~ the state hospitals into structural compliance with appropriate fire and health standards. All references in this code or elsewhere in law to the "West Virginia Training School" shall be taken and construed to mean and refer to the "Colin Anderson Center."
The control of the property, records, and financial and other affairs of state mental hospitals and other state mental health facilities is ~~hereby~~ transferred from the Department of Mental Health to the Department of Health and Human Resources. ~~As the chief executive officer, the Director of Health~~ secretary shall, in respect to the control and management of ~~such~~ the state hospitals and other state mental health facilities, perform the same duties and functions as were heretofore exercised or performed by the ~~Department of Mental Health~~ Director of Health. The title to all property of ~~such~~ the state hospitals and other state facilities is ~~hereby~~ transferred to and vested in the Department of Health and Human Resources.
Notwithstanding any other provisions of this code to the contrary, whenever in this code there is a reference to the Department of Mental Health, it shall be construed to mean and ~~shall be~~ is a reference to the ~~Director of the Department of Health~~ Secretary of the Department of Health and Human Resources.

ARTICLE 2A. MENTAL HEALTH - INTELLECTUAL DISABILITY CENTERS.

§27-2A-1. Comprehensive community mental health-intellectual disability centers; establishment, operation and location; access to treatment.

(a) The ~~Director of Health~~ Department of Health and Human Resources is authorized and directed to establish, maintain and operate comprehensive community mental health centers and comprehensive ~~mental retardation~~ intellectual disability facilities, at ~~such~~ locations within the state ~~as may be~~ that are determined by the ~~director~~ secretary in accordance with the state's comprehensive mental health plan and the state's comprehensive ~~mental retardation~~ intellectual disability plan. Such facilities may be integrated with a general health care or other facility or remain separate as the ~~board of Health~~ Secretary of the Department of Health and Human Resources may by rules prescribe: Provided, That nothing contained herein ~~shall~~ may be construed to allow the Department of Health and Human Resources to assume the operation of comprehensive regional mental health centers or comprehensive ~~mental retardation~~ intellectual disability facilities which have been heretofore established according to law and which, as of the effective date of this article, are being operated by local nonprofit organizations.
(b) Any new mental health centers and comprehensive mental retardation facilities herein provided ~~for~~ may be operated and controlled by the Department of Health and Human Resources or operated, maintained and controlled by local nonprofit organizations and licensed according to rules ~~and regulations~~ promulgated by the ~~board of Health~~ Secretary of the Department of Health and Human Resources. All comprehensive regional mental health and ~~mental retardation~~ intellectual disability facilities licensed in the state shall:
(1) Have a written plan for the provision of diagnostic, treatment, supportive and aftercare services, and written policies and procedures for implementing these services;
(2) Have sufficient employees appropriately qualified to provide these services;
(3) Maintain accurate medical and other records for all patients receiving services;
(4) Render outpatient services in the aftercare of any patient discharged from an inpatient hospital, consistent with the needs of the individual. No person who can be treated as an outpatient at a community mental health center ~~shall~~ may be admitted involuntarily into a state hospital.
(5) Have a chief administrative officer directly responsible to a legally constituted board of directors of a comprehensive mental health or ~~mental retardation~~ intellectual disability facility operated by a local nonprofit organization, or to the ~~Director of the Department of Health~~ Secretary of the Department of Health and Human Resources if the comprehensive mental health or ~~mental retardation~~ intellectual disability center or facility is operated by the Department of Health and Human Resources; and
(6) Have a written plan for the referral of patients for evaluation and treatment for services not provided.
The state's share of costs of operating ~~such~~ the facilities may be provided from funds appropriated for this purpose within the budget of the Department of Health and Human Resources. The ~~director~~ secretary of that department shall administer these funds among all comprehensive mental health and ~~mental retardation~~ intellectual disability facilities ~~as may be~~ that are required to best provide comprehensive community mental health care and services to the citizens of the state.
After July 1, but not later than August 1 of each year, the chief administrative officer of each comprehensive regional mental health center and ~~mental retardation~~ intellectual disability facility shall submit a report to the ~~Director~~ Secretary of the Department of Health and Human Resources and to the Legislative Auditor containing a listing of:
(1) All funds received by the center or facility;
(2) All funds expended by the center or facility;
(3) All funds obligated by the center or facility;
(4) All services provided by the center or facility;
(5) The number of persons served by the center or facility; and
(6) Other information as the ~~Board of Health shall by regulation prescribe~~ Secretary of the Department of Health and Human Resources prescribes by regulation.

ARTICLE 4. VOLUNTARY HOSPITALIZATION.

§27-4-1. Authority to receive voluntary patients.

The chief medical officer of a mental health facility, subject to the availability of suitable accommodations and to the rules ~~and regulations~~ promulgated by the ~~board of Health~~ Secretary of the Department of Health and Human Resources, shall admit for diagnosis, care and treatment any individual:
(a) Over eighteen years of age who is mentally ill, ~~mentally retarded~~ intellectually disabled or addicted, or who has manifested symptoms of mental illness, ~~mental retardation~~ intellectual disability or addiction and who makes application for hospitalization; or
(b) Under eighteen years of age who is mentally ill, ~~mentally retarded~~ intellectually disabled or addicted or who has manifested symptoms of mental illness, ~~mental retardation~~ intellectual disability or addiction and there is application for hospitalization therefor in his or her behalf: (1) By the parents of such person, or (2) if only one parent is living, then by ~~such~~ that parent, or (3) if the parents are living separate and apart, by the parent who has the custody of ~~such~~ the person, or (4) if there is a guardian who has custody of ~~such~~ the person, then by ~~such~~ that guardian. Such admission shall be conditioned upon the consent of the prospective patient if he or she is twelve years of age or over.
(c) No person under eighteen years of age ~~shall~~ may be admitted under this section to any state hospital unless ~~said~~ that person has first been reviewed and evaluated by a local mental health facility and recommended for admission.

ARTICLE 5. INVOLUNTARY HOSPITALIZATION.

§27-5-9. Rights of patients.
(a) No person may be deprived of any civil right solely by reason of his or her receipt of services for mental illness, ~~mental retardation~~ intellectual disability or addiction, nor does the receipt of the services modify or vary any civil right of the person, including, but not limited to, civil service status and appointment, the right to register for and to vote at elections, the right to acquire and to dispose of property, the right to execute instruments or rights relating to the granting, forfeiture or denial of a license, permit, privilege or benefit pursuant to any law, but a person who has been adjudged incompetent pursuant to article eleven of this chapter and who has not been restored to legal competency may be deprived of such rights. Involuntary commitment pursuant to this article does not of itself relieve the patient of legal capacity.
(b) Each patient of a mental health facility receiving services from the facility shall receive care and treatment that is suited to his or her needs and administered in a skillful, safe and humane manner with full respect for his or her dignity and personal integrity.
(c) Every patient has the following rights regardless of adjudication of incompetency:
(1) Treatment by trained personnel;
(2) Careful and periodic psychiatric reevaluation no less frequently than once every three months;
(3) Periodic physical examination by a physician no less frequently than once every six months; and
(4) Treatment based on appropriate examination and diagnosis by a staff member operating within the scope of his or her professional license.
(d) The chief medical officer shall cause to be developed within the clinical record of each patient a written treatment plan based on initial medical and psychiatric examination not later than seven days after he or she is admitted for treatment. The treatment plan shall be updated periodically, consistent with reevaluation of the patient. Failure to accord the patient the requisite periodic examinations or treatment plan and reevaluations entitles the patient to release.
(e) A clinical record shall be maintained at a mental health facility for each patient treated by the facility. The record shall contain information on all matters relating to the admission, legal status, care and treatment of the patient and shall include all pertinent documents relating to the patient. Specifically, the record shall contain results of periodic examinations, individualized treatment programs, evaluations and reevaluations, orders for treatment, orders for application for mechanical restraint and accident reports, all signed by the personnel involved.
(f) Every patient, upon his or her admission to a hospital and at any other reasonable time, shall be given a copy of the rights afforded by this section.
(g) The Secretary of the Department of Health and Human Resources shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to protect the personal rights of patients not inconsistent with this section.

ARTICLE 9. LICENSING OF HOSPITALS.

§27-9-1. License from director of health; regulations.

No hospital, center or institution, or part ~~thereof~~ of any hospital, center or institution, to provide inpatient, outpatient or other service designed to contribute to the care and treatment of the mentally ill or ~~mentally retarded~~ intellectually disabled, or prevention of such disorders, ~~shall~~ may be established, maintained or operated by any political subdivision or by any person, persons, association or corporation unless a license therefor ~~shall be~~ is first obtained from the ~~Director of Health~~ Secretary of the Department of Health and Human Resources. The application for such license shall be accompanied by a plan of the premises to be occupied, and such other data and facts as the ~~director~~ commissioner may require. He The secretary may make such terms and regulations in regard to the conduct of ~~such~~ any licensed hospital, center or institution, or part ~~thereof~~ of any licensed hospital, center or institution, as he ~~may think~~ or she thinks proper and necessary. He The secretary, or any person authorized by ~~him, shall have~~ the secretary has authority to investigate and inspect ~~such~~ any licensed hospital, center or institution, or part ~~thereof~~ of any licensed hospital, center or institution; and the ~~Director of Health~~ secretary may revoke the license of any ~~such~~ hospital, center or institution, or part ~~thereof~~ of any hospital, center or institution, for good cause after reasonable notice to the superintendent or other person in charge ~~thereof~~ of the hospital, center or institution.

ARTICLE 12. OFFENSES.

§27-12-1. Malicious making of medical certificate or complaint as to mental condition.

Any physician who ~~shall sign~~ signs a certificate respecting the mental condition of any person without having made the examination as provided ~~for~~ by this chapter, or ~~shall make~~ makes any statement in any such certificate maliciously for the purpose of having such person declared mentally ill, ~~mentally retarded~~ intellectually disabled or an inebriate, and any person who ~~shall~~ maliciously ~~make~~ makes application to any circuit court or mental hygiene commission for the purpose of having another person declared mentally ill, ~~mentally retarded~~ intellectually disabled, or an inebriate, ~~shall be~~ is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not exceeding $500, or imprisoned not exceeding one year, or both fined and imprisoned at the discretion of the court.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 15. STATE COMMISSION ON INTELLECTUAL DISABILITY.

§29-15-1. Creation and composition.

There is ~~hereby~~ created the State Commission on ~~mental retardation~~ Intellectual Disability hereinafter referred to as the commission. The commission shall consist of seven members, who, ex officio, shall be the state Superintendent of Schools, the Director of Health, the Director of Mental Health, the Commissioner of Public Institutions, the Commissioner of Welfare the Director of the West Virginia Division of Vocational Rehabilitation and the Commissioner of the West Virginia Department of Employment Security.
Pursuant to subsection (f), section one, article two, chapter five-f of this code, the commission created by this section is now incorporated into and administered as part of the Department of Health and Human Resources. All references to the commission in this article shall be construed to mean the Department of Health and Human Resources.

§29-15-5. Purposes.

The ~~commission~~ Department of Health and Human Resources shall take action to carry out the following purposes:
(a) Plan for and take other steps leading to comprehensive state and community action to combat ~~mental retardation~~ intellectual disability.
(b) Determine what action is needed to combat ~~mental retardation~~ intellectual disability in the state and the resources available for this purpose.
(c) Develop public awareness of the ~~mental retardation~~ intellectual disability problem and of the need for combating it.
(d) Coordinate state and local activities relating to the various aspects of ~~mental retardation~~ intellectual disability and its prevention, treatment, or amelioration.
(e) Consult with and advise the Governor and Legislature on all aspects of ~~mental retardation~~ intellectual disability.
(f) Consult with and advise state agencies, boards or departments with ~~mental retardation~~ intellectual disability responsibilities relative to the effective discharge of such responsibilities.

§29-15-6. State agency for federal intellectual disability program.

The ~~commission~~ Department of Health and Human Resources is ~~hereby~~ designated and established as the sole state agency for receiving appropriations under and carrying out the purposes of section five of Public Law 88-156, eighty-eighth Congress approved October 24, 1963, and any law amending, revising, supplementing or superseding section five of said Public Law 88-156.
The ~~commission shall constitute~~ department constitutes the designated state agency for handling all programs of the federal government relating to ~~mental retardation~~ intellectual disability requiring action within the state which are not the specific responsibility of another state agency under the provisions of federal law, rules or regulations, or which have not been specifically entrusted to another state agency by the Legislature.
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND
CONSERVATORSHIP ACT.

ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.

§44A-1-1. Short title and legislative findings.
This chapter ~~shall be~~ is known and may be cited as the "West Virginia Guardianship and Conservatorship Act."
The Legislature finds that section six, article eight of the Constitution of the State of West Virginia gives it the discretionary authority to pass legislation which ". . . provides that all matters of probate, the appointment and qualification of personal representatives, guardians, committees and curators, and the settlements of their accounts . . ." be under the exclusive jurisdiction of circuit courts. The Legislature further finds and declares that the use of the word "all" does not require an interpretation that the Legislature must place every aspect of such matters with circuit courts, but, that because of the discretionary authority given, the Legislature may transfer, from time to time, only those matters which it believes would be better served under the jurisdiction of circuit courts.
The Legislature ~~hereby~~ further finds and declares that legal proceedings requiring a tribunal to determine whether persons should be appointed to manage the personal or financial affairs of individuals deemed mentally incompetent, ~~mentally retarded~~ intellectually disabled, mentally handicapped or missing involve considerations of constitutionally protected rights which can best be resolved within the circuit courts of this state.

§44A-1-2. Determinations and appointments under prior law.

(a) Any person determined to be "mentally incompetent", ~~"mentally retarded"~~ an "intellectually disabled" or "mentally handicapped" and for such reason deemed to be in need of a guardian or committee pursuant to any order entered and in effect ~~prior to~~ before the effective date of this chapter is deemed to be a "protected person" within the meaning of this chapter, ~~from and~~ after its effective date, unless any such determination be revoked or otherwise modified.
(b) Any person heretofore appointed to serve as a committee for an incompetent person and any person appointed to serve as a guardian for ~~a mentally retarded~~ an individual with an intellectual disability or for a mentally handicapped person, is, as of the effective date of this chapter, deemed to be: (1) A guardian, within the meaning of this chapter, if the order appointing such person provides that the person so appointed has responsibility only for the personal affairs of a mentally incompetent ~~mentally retarded~~, intellectually disabled or mentally handicapped person; (2) a conservator, within the meaning of this chapter, if the order appointing such person provides that the person so appointed had responsibility only for managing the estate and financial affairs of a mentally incompetent ~~mentally retarded~~ intellectually disabled or mentally handicapped person; or (3) a guardian and a conservator, within the meaning of this chapter, if the order appointing such person does not set forth limitations of responsibility for both the personal affairs and the financial affairs of a mentally incompetent ~~mentally retarded~~ intellectually disabled, or mentally handicapped person.
(c) ~~From and~~ After the effective date of this chapter, the circuit courts ~~shall~~ have exclusive jurisdiction of all matters involving determinations of mental incompetency, ~~mental retardation~~ intellectual disability or mental handicap, including the jurisdiction of any proceedings pending as of ~~such~~ that effective date. All orders entered ~~prior to~~ before the effective date of this chapter in ~~such~~ those cases shall remain in full force and effect until terminated, revoked or modified as provided herein.
(d) All persons heretofore appointed to serve as a committee or as a guardian ~~shall~~ retain their authority, powers and duties in ~~such~~ that capacity, except to the extent that their authority, powers and duties as ~~such~~ guardian or conservator under the provisions of this chapter are more specifically enumerated, in which event ~~such~~ the committee or guardian ~~shall have~~ has the authority, powers and duties so enumerated.
Wherever in the Constitution, the Code of West Virginia, acts of the Legislature or elsewhere in law a reference is made to a committee for an incompetent person, such reference shall be read, construed and understood to mean guardian and/or conservator as defined in this chapter.
(e) The provisions of this chapter providing for the presentation of reports by guardians and the presentation of accountings by conservators ~~shall~~ may not be retroactively applied, and applicable law in effect ~~prior to~~ before the effective date of this chapter ~~shall control~~ controls as to any reports or accountings to be made or filed for any period ~~prior to~~ before the effective date of this chapter.
(f) As used in this section, "prior law" refers to article eleven, chapter twenty-seven of this code, relating to the appointment of committees for mentally incompetent persons, and to article ten-a, chapter forty-four, relating to the appointment of guardians for ~~mentally retarded~~ individuals with an intellectual disability and mentally handicapped persons, as ~~such~~ those articles were in effect ~~prior to~~ before the effective date of this chapter.
CHAPTER 49. CHILD WELFARE.
ARTICLE 4A. WEST VIRGINIA FAMILY SUPPORT PROGRAM.
§49-4A-6. Regional and state family support councils.
(a) Each regional family support agency shall establish a regional family support council comprised of at least seven members, of whom at least a majority shall be persons with developmental disabilities or their parents or primary caregivers. Each regional family support council shall meet at least quarterly to advise the regional family support agency on matters related to local implementation of the family support program and to communicate information and recommendations regarding the family support program to the state Family Support Council.
(b) The Secretary of the Department of Health and Human Resources shall appoint a state Family Support Council comprised of at least twenty-two members, of whom at least a majority shall be persons with developmental disabilities or their parents or primary caregivers. A representative elected by each regional council shall serve on the state council. The state council shall also include a representative from each of the following agencies: The state Developmental Disabilities Planning Council, the state Protection and Advocacy Agency, the University Affiliated Center for Developmental Disabilities, the Office of Special Education, the Association of Community Mental Health/~~mental retardation~~ Intellectual Disability Programs and the Early Intervention Interagency Coordinating Council.
(c) The state council shall meet at least quarterly. The state council will participate in the development of program policies and procedures, annual contracts and perform such other duties as are necessary for statewide implementation of the family support program.
(d) Members of the state and regional councils who are a member of the family or the primary caregiver of a developmentally disabled person shall be reimbursed for travel and lodging expenses incurred in attending official meetings of their councils. Child care expenses related to the developmentally disabled person shall also be reimbursed. Members of regional councils who are eligible for expense reimbursement shall be reimbursed by their respective regional family support agencies.
On motion of Senator Kessler, the following amendment to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4281) was reported by the Clerk and adopted:
On pages sixty-five and sixty-six, by striking out all of section one.
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. 4281), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4281) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4281) 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. 4281--A Bill to repeal §27-1A-12 of the Code of West Virginia, 1931, as amended; to repeal §27-2-1a and §27-2-1b of said code; to amend and reenact §9-4C-1 and §9-4C-5 of said code; to amend and reenact §9-5-11c of said code; to amend and reenact §11-27-10 and §11-27-11 of said code; to amend and reenact §16-1-4 of said code; to amend and reenact §16-2D-2 and §16-2D-5 of said code; to amend and reenact §16-5F-2 of said code; to amend and reenact §16-5O-2 of said code; to amend and reenact §16-22-1 and §16-22-2 of said code; to amend and reenact §16-29A-3 of said code; to amend and reenact §16-30-7 and §16-30-24 of said code; to amend and reenact §27-1-3, §27-1-6, §27-1-7 and §27-1-9; to amend and reenact §27-1A-1, §27-1A-4 and §27-1A-6 of said code; to amend and reenact §27-2-1 of said code; to amend and reenact §27-2A-1 of said code; to amend and reenact §27-5-9 of said code; to amend and reenact §27-9-1 of said code; to amend and reenact §27-12-1 of said code; to amend and reenact §29-15-1, §29-15-5 and §29-15-6 of said code; to amend and reenact §44A-1-1 and §44A-1-2 of said code; and to amend and reenact §49-4A-6 of said code, all relating to updating code references relating to intellectually disabled persons; replacing the term "mentally retarded" with "intellectually disabled" or "individuals with an intellectual disability"; renaming an intermediate care facility for the mentally retarded (ICF-MR) to an intermediate care facility for individuals with an intellectual disability (ICF-ID); altering definitions of terms; providing that previous terminology will control in certain situations; clarifying the powers and duties of the Secretary of the Department of Health and Human Resources; and deleting obsolete references.
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. 4324, Extending the expiration date of employment of retired teachers beyond the post-retirement employment limit.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Chafin, and by unanimous consent, the bill was advanced to third reading with the right for amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 4339, Relating to collecting debts through the United States Treasury Offset Program.
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. 4354, Relating to conditions and arrests in domestic violence matters.
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. 4513, Establishing requirements for Marcellus gas well operations use of water resources.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Energy, Industry and Mining, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §22-6-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §22-6-42; that §22C-8-2 of said code be amended and reenacted; and that §22C-9-2 of said code be amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.

ARTICLE 6. OFFICE OF OIL AND GAS; OIL AND GAS WELLS; ADMINISTRATION; ENFORCEMENT.

§22-6-1. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:
(a) "Casing" means a string or strings of pipe commonly placed in wells drilled for natural gas or petroleum or both;
(b) "Cement" means hydraulic cement properly mixed with water;
(c) "Chair" means the chair of the West Virginia Shallow Gas Well Review Board as provided in section four, article eight, chapter twenty-two-c of this code;
(d) "Coal operator" means any person or persons, firm, partnership, partnership association or corporation that proposes to or does operate a coal mine;
(e) "Coal seam" and "workable coal bed" are interchangeable terms and mean any seam of coal twenty inches or more in thickness, unless a seam of less thickness is being commercially worked, or can in the judgment of the department foreseeably be commercially worked and will require protection if wells are drilled through it;
(f) "Director" means the director of the Division of Environmental Protection as established in article one of this chapter or such other person to whom the director has delegated authority or duties pursuant to sections six or eight, article one of this chapter.
~~(g)~~ (f) "Deep well" means any well other than a shallow well or coalbed methane well, drilled ~~and completed in~~ to a formation ~~at or~~ below the top of the uppermost member of the "Onondaga Group";
~~(h)~~ (g) "Expanding cement" means any cement approved by the office of oil and gas which expands during the hardening process, including, but not limited to, regular oil field cements with the proper additives;
~~(i)~~ (h) "Facility" means any facility utilized in the oil and gas industry in this state and specifically named or referred to in this article or in article eight or nine of this chapter, other than a well or well site;
~~(j)~~ (i) "Gas" means all natural gas and all other fluid hydrocarbons not defined as oil in this section;
~~(k)~~ (j) "Oil" means natural crude oil or petroleum and other hydrocarbons, regardless of gravity, which are produced at the well in liquid form by ordinary production methods and which are not the result of condensation of gas after it leaves the underground reservoirs;
~~(l)~~ (k) "Owner" when used with reference to any well, shall include any person or persons, firm, partnership, partnership association or corporation that owns, manages, operates, controls or possesses such well as principal, or as lessee or contractor, employee or agent of such principal;
~~(m)~~ (l) "Owner" when used with reference to any coal seam, shall include any person or persons who own, lease or operate such coal seam;
~~(n)~~ (m) "Person" means any natural person, corporation, firm, partnership, partnership association, venture, receiver, trustee, executor, administrator, guardian, fiduciary or other representative of any kind, and includes any government or any political subdivision or any agency thereof;
~~(o)~~ (n) "Plat" means a map, drawing or print showing the location of a well or wells as herein defined;
~~(p)~~ (o) "Review board" means the West Virginia shallow gas well review board as provided ~~for~~ in section four, article eight, chapter twenty-two-c of this code;
~~(q)~~ (p) "Safe mining through of a well" means the mining of coal in a workable coal bed up to a well which penetrates such workable coal bed and through such well so that the casing or plug in the well bore where the well penetrates the workable coal bed is severed;
(q) "Secretary" means the Secretary of the Department of Environmental Protection as established in article one of this chapter or such other person to whom the secretary has delegated authority or duties pursuant to sections six or eight, article one of this chapter;
(r) "Shallow well" means any gas well, other than a coalbed methane well, drilled ~~and completed in a formation above the top of the uppermost member of the "Onondaga Group"~~ no deeper than one hundred feet below the top of the "Onondaga Group": Provided, That ~~in drilling a shallow well the operator may penetrate into the "Onondaga Group" to a reasonable depth, not in excess of twenty feet, in order to allow for logging and completion operations, but~~ in no event may the "Onondaga Group" formation or any formation below the "Onondaga Group" be otherwise produced, perforated or stimulated in any manner;
(s) "Stimulate" means any action taken by a well operator to increase the inherent productivity of an oil or gas well, including, but not limited to, fracturing, shooting or acidizing, but excluding cleaning out, bailing or workover operations;
(t) "Waste" means: (i) Physical waste, as the term is generally understood in the oil and gas industry; (ii) the locating, drilling, equipping, operating or producing of any oil or gas well in a manner that causes, or tends to cause a substantial reduction in the quantity of oil or gas ultimately recoverable from a pool under prudent and proper operations, or that causes or tends to cause a substantial or unnecessary or excessive surface loss of oil or gas; or (iii) the drilling of more deep wells than are reasonably required to recover efficiently and economically the maximum amount of oil and gas from a pool; (iv) substantially inefficient, excessive or improper use, or the substantially unnecessary dissipation of, reservoir energy, it being understood that nothing in this chapter shall be construed to authorize any agency of the state to impose mandatory spacing of shallow wells except for the provisions of section eight, article nine, chapter twenty-two-c of this code and the provisions of article eight, chapter twenty-two-c of this code; (v) inefficient storing of oil or gas: Provided, That storage in accordance with a certificate of public convenience issued by the Federal Energy Regulatory Commission shall be conclusively presumed to be efficient and; (vi) other underground or surface waste in the production or storage of oil, gas or condensate, however caused. Waste does not include gas vented or released from any mine areas as defined in section two, article one, chapter twenty-two-a of this code or from adjacent coal seams which are the subject of a current permit issued under article two of chapter twenty-two-a of this code: Provided, however, That nothing in this exclusion is intended to address ownership of the gas;
(u) "Well" means any shaft or hole sunk, drilled, bored or dug into the earth or into underground strata for the extraction or injection or placement of any liquid or gas, or any shaft or hole sunk or used in conjunction with such extraction or injection or placement. The term "well" does not include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of core drilling or pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural or public use;
(v) "Well work" means the drilling, redrilling, deepening, stimulating, pressuring by injection of any fluid, converting from one type of well to another, combining or physically changing to allow the migration of fluid from one formation to another or plugging or replugging of any well;
(w) "Well operator" or "operator" means any person or persons, firm, partnership, partnership association or corporation that proposes to or does locate, drill, operate or abandon any well as herein defined;
(x) "Pollutant" shall have the same meaning as provided in subsection (17), section three, article eleven, chapter twenty-two of this code; and
(y) "Waters of this state" shall have the same meaning as the term "waters" as provided in subsection (23), section three, article eleven, chapter twenty-two of this code.

§22-6-42. Additional permitting requirements for gas wells withdrawing more than two hundred ten thousand gallons of water from waters of this state in a calendar month for fracturing or stimulating gas production; rule-making authority.

(a) When a gas well operator applies for a well work permit under section six of this article, and it is reasonably ascertainable that the operator is likely to withdraw more than two hundred ten thousand gallons of water in a calendar month from any waters of this State for use in drilling and completing the well, the Secretary shall require the operator to submit a water resources management plan with its application for a well work permit in addition to any other information required to be submitted under this article. The water resources management plan shall include the following information:
(1) The type of water source from which withdrawals will be made and the planned percentage of water withdrawals that will be made from surface water or groundwater;
(2) The location of each water source from which withdrawals are planned, including the name of the water source, if any, the county in which the water withdrawal will occur, and the latitude and longitude of the planned water withdrawal location and identification of any public water supply intakes within one mile downstream of the withdrawal location;
(3) The planned volume of water withdrawals from each water source based on the best information available at the time;
(4) The months when water withdrawals are planned; and
(5) The planned methods of disposing or reusing any water associated with drilling and completing the well, would include but not be limited to, disposing of water into oil and gas wells in which the fresh water casing has been cemented to the surface: Provided, That such wells are approved as disposal wells by the Director of the Oil and Gas Division of the Department of Environmental Protection.
(b) Withdrawal of water for purposes of this section by an operator shall comply with water quality standards promulgated pursuant to section seven-b, article eleven, chapter twenty-two of this code.
(c) The operator shall provide the information required by subsection (a) of this section based on the information available and reasonable planning efforts by operators at the time the well work permit application is submitted.
(d) The Secretary may prescribe forms on which the information in subsection (a) of this section is to be reported.
(e) The Secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty- nine-a of this code addressing records that must be kept regarding the management and disposal of water from any well covered by a well work permit issued pursuant to an application that is subject to subsection (a) of this section which shall include records containing: a listing of the additives as presented on material safety data sheets that are used in water used for fracturing or stimulating wells; quantities of water utilized and disposed of by operators; methods for water management or disposal; location of water disposal site or facility; and a name and address of the water hauler and the producer for which the water was hauled.
(f) This section is intended to be consistent with and shall not supersede, revise, repeal or otherwise modify, articles eleven and twenty-six, of this chapter, and shall not revise, repeal or otherwise modify the common law doctrine of riparian rights under West Virginia law.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.

ARTICLE 8. SHALLOW GAS WELL REVIEW BOARD.

§22C-8-2. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:
(1) "Board" means the Shallow Gas Well Review Board provided ~~for~~ in section four of this article;
(2) "Chair" means the chair of the Shallow Gas Well Review Board provided ~~for~~ in section four of this article;
(3) "Coal operator" means any person who proposes to or does operate a coal mine;
(4) "Coal seam" and "workable coal bed" are interchangeable terms and mean any seam of coal twenty inches or more in thickness, unless a seam of less thickness is being commercially worked, or can in the judgment of the ~~division~~ department foreseeably be commercially worked and will require protection if wells are drilled through it;
(5) "Commission" means the oil and gas conservation commission provided ~~for~~ in section four, article nine of this chapter;
(6) "Commissioner" means the oil and gas conservation commissioner provided ~~for~~ in section four, article nine of this chapter;
(7) "Correlative rights" means the reasonable opportunity of each person entitled thereto to recover and receive without waste the gas in and under a tract or tracts, or the equivalent thereof;
(8) "Deep well" means any well other than a shallow well or coalbed methane well, drilled ~~and completed in~~ to a formation ~~at or~~ below the top of the uppermost member of the "Onondaga Group";
(9) ~~"Division"~~ Department means the state ~~Division~~ Department of Environmental Protection provided ~~for~~ in chapter twenty-two of this code;
(10) "Director" means the director of the Division of Environmental Protection as established in article one, chapter twenty-two of this code or such other person to whom the director delegates authority or duties pursuant to sections six or eight, article one, chapter twenty-two of this code;
~~(11)~~ (10) "Drilling unit" means the acreage on which the board decides one well may be drilled under section ten of this article;
~~(12)~~ (11) "Gas" means all natural gas and all other fluid hydrocarbons not defined as oil in subdivision (15) of this section;
~~(13)~~ (12) "Gas operator" means any person who owns or has the right to develop, operate and produce gas from a pool and to appropriate the gas produced therefrom either for such person or for such person and others. In the event that there is no gas lease in existence with respect to the tract in question, the person who owns or has the gas rights therein shall be considered a "gas operator" to the extent of seven eighths of the gas in that portion of the pool underlying the tract owned by such person, and a "royalty owner" to the extent of one eighth of such gas;
~~(14)~~ (13) "Just and equitable share of production" means, as to each person, an amount of gas in the same proportion to the total gas production from a well as that person's acreage bears to the total acreage in the drilling unit;
~~(15)~~ (14) "Oil" means natural crude oil or petroleum and other hydrocarbons, regardless of gravity, which are produced at the well in liquid form by ordinary production methods and which are not the result of condensation of gas after it leaves the underground reservoir;
~~(16)~~ (15) "Owner" when used with reference to any coal seam, shall include any person or persons who own, lease or operate such coal seam;
~~(17)~~ (16) "Person" means any natural person, corporation, firm, partnership, partnership association, venture, receiver, trustee, executor, administrator, guardian, fiduciary or other representative of any kind, and includes any government or any political subdivision or any agency thereof;
~~(18)~~ (17) "Plat" means a map, drawing or print showing the location of one or more wells or a drilling unit;
~~(19)~~ (18) "Pool" means an underground accumulation of gas in a single and separate natural reservoir (ordinarily a porous sandstone or limestone). It is characterized by a single natural- pressure system so that production of gas from one part of the pool tends to or does affect the reservoir pressure throughout its extent. A pool is bounded by geologic barriers in all directions, such as geologic structural conditions, impermeable strata, and water in the formation, so that it is effectively separated from any other pools which may be present in the same district or in the same geologic structure;
~~(20)~~ (19) "Royalty owner" means any owner of gas in place, or gas rights, to the extent that such owner is not a gas operator as defined in subdivision (13) of this section;
(20) "Secretary" means the Secretary of the Department of Environmental Protection as established in article one, chapter twenty-two of this code or such other person to whom the secretary delegates authority or duties pursuant to section six or eight, article one, chapter twenty-two of this code;
(21) "Shallow well" means any gas well other than a coalbed methane well, drilled ~~and completed in a formation above the top of the uppermost member of the "Onondaga Group"~~ no deeper than one hundred feet below the top of the "Onondaga Group": Provided, That ~~in drilling a shallow well the well operator may penetrate into the "Onondaga Group" to a reasonable depth, not in excess of twenty feet, in order to allow for logging and completion operations, but~~ in no event may the "Onondaga Group" formation or formation below the Onondaga Group" be ~~otherwise~~ produced, perforated or stimulated in any manner;
(22) "Tracts comprising a drilling unit" means that all separately owned tracts or portions thereof which are included within the boundary of a drilling unit;
(23) "Well" means any shaft or hole sunk, drilled, bored or dug into the earth or into underground strata for the extraction, injection or placement of any liquid or gas, or any shaft or hole sunk or used in conjunction with such extraction, injection or placement. The term "well" does not include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of core drilling or pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural or public use; and
(24) "Well operator" means any person who proposes to or does locate, drill, operate or abandon any well.

ARTICLE 9. OIL AND GAS CONSERVATION.

§22C-9-2. Definitions.
(a) Unless the context in which used clearly requires a different meaning, as used in this article:
(1) "Commission" means the Oil and Gas Conservation Commission and "commissioner" means the Oil and Gas Conservation Commissioner as provided ~~for~~ in section four of this article;
(2) ~~"Director"~~ "Secretary" means the ~~director~~ Secretary of the ~~division~~ Department of Environmental Protection and "chief" means the chief of the office of oil and gas;
(3) "Person" means any natural person, corporation, partnership, receiver, trustee, executor, administrator, guardian, fiduciary or other representative of any kind, and includes any government or any political subdivision or any agency thereof;
(4) "Operator" means any owner of the right to develop, operate and produce oil and gas from a pool and to appropriate the oil and gas produced therefrom, either for such person or for such person and others; in the event that there is no oil and gas lease in existence with respect to the tract in question, the owner of the oil and gas rights therein shall be considered as "operator" to the extent of seven eighths of the oil and gas in that portion of the pool underlying the tract owned by such owner, and as "royalty owner" as to one-eighth interest in such oil and gas; and in the event the oil is owned separately from the gas, the owner of the substance being produced or sought to be produced from the pool shall be considered as "operator" as to such pool;
(5) "Royalty owner" means any owner of oil and gas in place, or oil and gas rights, to the extent that such owner is not an operator as defined in subdivision (4) of this section;
(6) "Independent producer" means a producer of crude oil or natural gas whose allowance for depletion is determined under Section 613A of the federal Internal Revenue Code in effect on July 1, 1997;
(7) "Oil" means natural crude oil or petroleum and other hydrocarbons, regardless of gravity, which are produced at the well in liquid form by ordinary production methods and which are not the result of condensation of gas after it leaves the underground reservoir;
(8) "Gas" means all natural gas and all other fluid hydrocarbons not defined as oil in subdivision (7) of this section;
(9) "Pool" means an underground accumulation of petroleum or gas in a single and separate natural reservoir (ordinarily a porous sandstone or limestone). It is characterized by a single natural- pressure system so that production of petroleum or gas from one part of the pool affects the reservoir pressure throughout its extent. A pool is bounded by geologic barriers in all directions, such as geologic structural conditions, impermeable strata, and water in the formations, so that it is effectively separated from any other pools that may be presented in the same district or on the same geologic structure;
(10) "Well" means any shaft or hole sunk, drilled, bored or dug into the earth or underground strata for the extraction of oil or gas;
(11) "Shallow well" means any well other than coalbed methane well, drilled ~~and completed in a formation above the top of the uppermost member of the "Onondaga Group"~~ no deeper than one hundred feet below the top of the "Onondaga Group": Provided, That ~~in drilling a shallow well the operator may penetrate into the "Onondaga Group" to a reasonable depth, not in excess of twenty feet, in order to allow for logging and completion operations, but~~ in no event may the "Onondaga Group" formation or any formation below the "Onondaga Group" be ~~otherwise~~ produced, perforated or stimulated in any manner;
(12) "Deep well" means any well or coalbed methane well, other than a shallow well, drilled ~~and completed~~ to in a formation ~~at or~~ below the top of the uppermost member of the "Onondaga Group";
(13) "Drilling unit" means the acreage on which one well may be drilled;
(14) "Waste" means and includes:
(A) Physical waste, as that term is generally understood in the oil and gas industry;
(B) The locating, drilling, equipping, operating or producing of any oil or gas well in a manner that causes, or tends to cause, a reduction in the quantity of oil or gas ultimately recoverable from a pool under prudent and proper operations, or that causes or tends to cause unnecessary or excessive surface loss of oil or gas; or
(C) The drilling of more deep wells than are reasonably required to recover efficiently and economically the maximum amount of oil and gas from a pool. Waste does not include gas vented or released from any mine areas as defined in section two, article one, chapter twenty-two-a of this code or from adjacent coal seams which are the subject of a current permit issued under article two of chapter twenty-two-a of this code: Provided, That nothing in this exclusion is intended to address ownership of the gas;
(15) "Correlative rights" means the reasonable opportunity of each person entitled thereto to recover and receive without waste the oil and gas in and under his or her tract or tracts, or the equivalent thereof; and
(16) "Just and equitable share of production" means, as to each person, an amount of oil or gas or both substantially equal to the amount of recoverable oil and gas in that part of a pool underlying such person's tract or tracts.
(b) Unless the context clearly indicates otherwise, the use of the word "and" and the word "or" shall be interchangeable, as, for example, "oil and gas" shall mean oil or gas or both.
The bill (Eng. Com. Sub. for H. B. No. 4513), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4513) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4513) passed.
The following amendment to the title of the bill, from the Committee on Energy, Industry and Mining, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4513--A Bill to amend and reenact §22-6-1 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §22-6- 42; to amend and reenact §22C-8-2 of said code; and to amend and reenact §22C-9-2 of said code, all relating to environmental regulation of the development of shallow gas well operations; clarifying the definitions of "shallow well" and "deep well"; establishing gas well operator water resource reporting requirements; and authorizing the Department of Environmental Protection to promulgate legislative rules.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 4521, Creating a sales tax holiday for purchases of guns and ammunition.
On second reading, coming up in regular order, was read a second time.
On motion of Senator Wells, the following amendment to the bill was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-9n. Annual exemption for purchase of goods in West Virginia.
There is established an annual sales tax holiday on the purchase of all items as defined in the Streamlined Sales Tax Agreement in West Virginia, imposed by this article, beginning the first weekend in July at 12:01 a. m. on that Friday and ending at midnight on Sunday of the same weekend of every calendar year. This section shall be known as the West Virginia Patriotism Act and the purchase of goods shall be available only to active duty, reserve and National Guard military personnel and retired military personnel.
Following discussion,
Senator Snyder moved that the amendment offered by Senator Wells to the bill be tabled.
Following a point of inquiry to the President, with resultant response thereto,
The question being on the adoption of Senator Snyder's aforestated motion, the same was put and did not prevail.
Senator K. Facemyer arose to a point of order that the amendment offered by Senator Wells to Engrossed House Bill No. 4521 was not germane to the bill.
Which point of order, the President ruled not well taken.
The question being on the adoption of the amendment offered by Senator Wells to the bill, and on this question, Senator Wells demanded the yeas and nays.
The roll being taken, the yeas were: Barnes, Boley, D. Facemire, Foster, Guills, Snyder and Wells--7.
The nays were: Bowman, Browning, Caruth, Chafin, Deem, Edgell, K. Facemyer, Fanning, Green, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Stollings, Sypolt, Unger, White, Williams, Yost and Tomblin (Mr. President)--27.
Absent: None.
So, a majority of those present and voting not having voted in the affirmative, the President declared the amendment offered by Senator Wells to the bill (Eng. H. B. No. 4521) rejected.
The bill was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4525, Changing the composition, powers and responsibilities of the board of Coal Mine Health and Safety.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Green, as chair of the Committee on Energy, Industry and Mining, and by unanimous consent, the unreported Energy, Industry and Mining committee amendment to the bill was withdrawn.
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 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING; ADMINISTRATION; ENFORCEMENT.

§22A-1-21. Penalties.
(a) (1) Any operator of a coal mine in which a violation occurs of any health or safety rule or who violates any other provisions of this chapter shall be assessed a civil penalty by the director under subdivision (3) of this subsection, which shall be not more than $3,000, for each violation, unless the director determines that it is appropriate to impose a special assessment for said violation, pursuant to the provisions of subdivision (2), subsection (b) of this section. Each violation constitutes a separate offense. In determining the amount of the penalty, the director shall consider the operator's history of previous violations, whether the operator was negligent, the appropriateness of the penalty to the size of the business of the operator charged, the gravity of the violation and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation. Not later than June 1, 2002, the director shall promulgate as a rule the procedure for assessing such civil penalties. This rule will be in effect upon filing, without regard to the provisions of chapter twenty-nine-a of this code.
(2) ~~Any~~ Revisions ~~to rules relating~~ to the assessment of civil penalties shall be proposed ~~for promulgation~~ as legislative rules in accordance with the provisions of article three, chapter twenty- nine-a of this code.
(3) Any miner who knowingly violates any health or safety provision of this chapter or health or safety rule promulgated pursuant to this chapter is subject to a civil penalty assessed by the director under subdivision (4) of this subsection which shall not be more than $250 for each occurrence of the violation.
(4) A civil penalty under subdivision (1) or (2) of subsection (a) of this section or subdivision (1) or (2) of subsection (b) of this section shall be assessed by the director only after the person charged with a violation under this chapter or rule promulgated pursuant to this chapter has been given an opportunity for a public hearing and the director has determined, by a decision incorporating the director's findings of fact in the decision, that a violation did occur and the amount of the penalty which is warranted and incorporating, when appropriate, an order in the decision requiring that the penalty be paid. Any hearing under this section shall be of record.
(5) If the person against whom a civil penalty is assessed fails to pay the penalty within the time prescribed in the order, the director may file a petition for enforcement of the order in any appropriate circuit court. The petition shall designate the person against whom the order is sought to be enforced as the respondent. A copy of the petition shall immediately be sent by certified mail, return receipt requested, to the respondent and to the representative of the miners at the affected mine or the operator, as the case may be. The director shall certify and file in the court the record upon which the order sought to be enforced was issued. The court has jurisdiction to enter a judgment enforcing, modifying and enforcing as modified, or setting aside, in whole or in part, the order and decision of the director or it may remand the proceedings to the director for any further action it may direct. The court shall consider and determine de novo all relevant issues, except issues of fact which were or could have been litigated in review proceedings before a circuit court under section twenty of this article and, upon the request of the respondent, those issues of fact which are in dispute shall be submitted to a jury. On the basis of the jury's findings the court shall determine the amount of the penalty to be imposed. Subject to the direction and control of the Attorney General, attorneys appointed for the director may appear for and represent the director in any action to enforce an order assessing civil penalties under this subdivision.
(b) (1) Any operator who knowingly violates a health or safety provision of this chapter or health or safety rule promulgated pursuant to this chapter, or knowingly violates or fails or refuses to comply with any order issued under section fifteen of this article, or any order incorporated in a final decision issued under this article, except an order incorporated in a decision under subsection (a) of this section or subsection (b), section twenty- two of this article, shall be assessed a civil penalty by the director under subdivision (5), subsection (a) of this section of not more than $5,000 and for a second or subsequent violation assessed a civil penalty of not more than $10,000, unless the director determines that it is appropriate to impose a special assessment for said violation, pursuant to the provisions of subdivision (2) of this subsection.
(2) In lieu of imposing a civil penalty pursuant to the provisions of subsection (a) of this section or subdivision (1) of this subsection, the director may impose a special assessment if an operator violates a health or safety provision of this chapter or health or safety rule promulgated pursuant to this chapter and the violation is of serious nature and involves one or more of the following by the operator:
(A) Violations involving fatalities and serious injuries;
(B) Failure or refusal to comply with any order issued under section fifteen of this article;
(C) Operation of a mine in the face of a closure order;
(D) Violations involving an imminent danger;
(E) Violations involving an extraordinarily high degree of negligence or gravity or other unique aggravating circumstances; or
(F) A discrimination violation under section twenty-two of this article.
In situations in which the director determines that there are factors present which would make it appropriate to impose a special assessment, the director shall assess a civil penalty of at least $5,000 and of not more than $10,000.
(c) Whenever a corporate operator knowingly violates a health or safety provision of this chapter or health or safety rules promulgated pursuant to this chapter, or knowingly violates or fails or refuses to comply with any order issued under this law or any order incorporated in a final decision issued under this law, except an order incorporated in a decision issued under subsection (a) of this section or subsection (b), section twenty-two of this article, any director, officer or agent of the corporation who knowingly authorized, ordered or carried out the violation, failure or refusal is subject to the same civil penalties that may be imposed upon a person under subsections (a) and (b) of this section.
(d) Whoever knowingly makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this law or any order or decision issued under this law is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000 or imprisoned in the ~~county~~ jail not more than six months, or both fined and imprisoned. The conviction of any person under this subsection shall result in the revocation of any certifications held by the person under this chapter which certified or authorized the person to direct other persons in coal mining by operation of law and bars that person from being issued any license under this chapter, except a miner's certification, for a period of not less than one year or for a longer period as may be determined by the director.
(e) Whoever willfully distributes, sells, offers for sale, introduces or delivers in commerce any equipment for use in a coal mine, including, but not limited to, components and accessories of the equipment, who willfully misrepresents the equipment as complying with the provisions of this law, or with any specification or rule of the director applicable to the equipment, and which does not comply with the law, specification or rule, is guilty of a misdemeanor and, upon conviction thereof, is subject to the same fine and imprisonment that may be imposed upon a person under subsection (d) of this section.
(f) There is ~~created~~ continued in the Treasury of the State of West Virginia a Special Health, Safety and Training Fund. All civil penalty assessments collected under this section shall be collected by the director and deposited with the Treasurer of the State of West Virginia to the credit of the Special Health, Safety and Training Fund. The fund shall be used by the director who is authorized to expend the moneys in the fund for the administration of this chapter.

ARTICLE 2A. USE OF DIESEL-POWERED EQUIPMENT IN UNDERGROUND COAL MINES.

PART 3. WEST VIRGINIA DIESEL EQUIPMENT COMMISSION.
§22A-2A-301. The West Virginia Diesel Equipment Commission.
The West Virginia Diesel Equipment Commission, consisting of six members, is ~~hereby created in the Office of Miners' Health, Safety and Training of the bureau of commerce~~ continued, and commencing July 1, 2010, is a separate independent commission within the Department of Commerce.
§22A-2A-304. Nomination and appointment of members.
(a) Prior to the appointment of a person to the commission, the Governor shall request the nomination of a candidate for the appointment. If the position is to be filled by a person who can reasonably be expected to represent the viewpoint or interests of underground coal operators in this state, the Governor shall request the nomination from the major trade association representing underground coal operators in this state. If the position is to be filled by a person who can reasonably be expected to represent the viewpoint or interests of working miners in this state, the Governor shall request the nomination from the highest ranking officer of the major employee organization representing coal miners in this state. The Director of the Office of Miner's Health, Safety and Training or his or her designee and the Health Safety Administrator shall serve as a nonvoting ex officio member.
(b) The Governor shall appoint a member to serve for the term for which the person was nominated, and until his or her successor has been nominated and appointed: Provided, That if a successor is not appointed within one hundred twenty days after the expiration of a member's term, a vacancy is deemed to exist. The Governor may reject a nomination and decline to appoint a nominee only if the person does not have the qualifications, integrity and responsibility necessary to enable the person to perform his or her duties as a member of the commission.
(c) Appointments to fill vacancies on the commission shall be for the unexpired term of the member to be replaced.

§22A-2A-310. Duties of commission following promulgation of initial rules.

(a) After the promulgation of the initial rules, the commission shall have as its primary duties the implementation of this article and the evaluation and adoption of state of the art technology and methods, reflected in engines and engine components, emission control equipment and procedures, that when applied to diesel-powered underground mining machinery shall reasonably reduce or eliminate diesel exhaust emissions and enhance protections of the health and safety of miners. The technology and methods adopted by the commission shall have been demonstrated to be reliable. In making a decision to adopt new technology and methods, the commission shall consider the highest achievable measures of protection for miners' health and safety through available technology, engineering controls and performance requirements and shall further consider the cost, availability, adaptability and suitability of any available technology, engineering controls and performance requirements as they relate to the use of diesel equipment in underground coal mines. Any state of the art technology or methods adopted by the commission shall not reduce or compromise the level of health and safety protection of miners.
(b) Upon application of a coal mine operator, the commission shall consider site-specific requests for the use of diesel equipment in underground coal mines and for the use of alternative diesel-related health and safety technologies and methods. The commission's action on applications submitted under this subsection shall be on a mine-by-mine basis. Upon receipt of a site-specific application, the commission shall conduct an investigation, which investigation shall include consultation with the mine operator and the authorized representatives of the miners at the mine. Authorized representatives of the miners shall include a Mine Health and Safety Committee elected by miners at the mine, a person or persons employed by an employee organization representing miners at the mine or a person or persons authorized as the representative or representatives of miners of the mine in accordance with MSHA regulations at 30 C.F.R. Pt. 40 (relating to representative of miners). Where there is no authorized representative of the miners, the commission shall consult with a reasonable number of miners at the mine. Upon completion of the investigation, the commission may approve the application for the site-specific request: Provided, That an application for a site-specific request under this subsection may be approved only upon a majority vote of all six members of the commission. All six members must be present when a vote is taken.
(1) Within one hundred eighty days of receipt of an application for use of alternative technologies or methods, the commission shall complete its investigation. The time period may be extended with the consent of the applicant.
(2) The commission shall have thirty days in which to render a final decision approving or rejecting the application.
(3) The commission members shall not approve an application made under this section if, at the conclusion of the investigation, the commission members have made a determination that the use of the alternative technology or method will reduce or compromise the level of health and safety protection of miners.
(4) The written approval of an application for the use of alternative technologies or methods shall include the results of the commission's investigation and describe the specific conditions of use for the alternative technology or method.
(5) The written decision to reject an application for the use of alternative technologies or methods shall include the results of the commission's investigation and shall outline in detail the basis for the rejection.
(c) The commission shall establish conditions for the use of diesel-powered equipment in shaft and slope construction operations at coal mines.
(d) In performing its functions, the commission shall have access to the services of the Board of Coal Mine Health and Safety. The board shall ~~make clerical available~~ provide administrative support and assistance pursuant to section six, article six of this chapter, to enable the commission to carry out its duties.
(e) Any action taken by the commission to either approve or reject the use of an alternative technology or method, or establish conditions under subsection (c) of this section, shall be final and binding and not subject to further review except where a decision by the commission may be deemed to be an abuse of discretion or contrary to law. If any party affected by a decision of the commission believes that the decision is an abuse of discretion or contrary to law, that party may file a petition for review with the circuit court of Kanawha County in accordance with the provisions of the administrative procedures act relating to judicial review of governmental determinations. The court, in finding that any decision made by the commission is an abuse of discretion or contrary to law, shall vacate and, if appropriate, remand the case.
(f) The powers and duties of the commission shall be limited to the matters regarding the use of diesel-powered equipment in underground coal mines.
(g) Appropriations for the funding of the commission and to effectuate the purposes of this article shall be made to a budget account hereby established for that purpose in the General Revenue Fund. Expenditures from this fund are provided for in section six, article six of this chapter.
(h) The commission may issue a clarifying resolution about the initial rules and other matters consistent with the powers and duties of the commission under this article. A unanimous vote is required for any clarifying resolution by the commission.

ARTICLE 6. Board of Coal Mine Health and Safety.

§22A-6-3. Board continued; membership; method of nomination and appointment; meetings; vacancies; quorum.

(a) The Board of Coal Mine Health and Safety ~~heretofore established,~~ is continued, ~~as provided by this article.~~ and commencing July 1, 2010, is a separate independent board within the Department of Commerce. The board consists of ~~seven~~ six voting members and one ex officio, nonvoting member who are residents of this state, and who are appointed as follows: ~~hereinafter specified in this section:~~
(1) The Governor shall appoint, by and with the advice and consent of the Senate, three members to represent the viewpoint of those operators in this state. When such members are to be appointed, the Governor shall request from the major trade association representing operators in this state a list of three nominees for each such position on the board. All such nominees shall be persons with special experience and competence in health and safety. There shall be submitted with such list a summary of the qualifications of each nominee. If the full lists of nominees are submitted in accordance with the provisions of this subdivision, the Governor shall make the appointments from the persons so nominated. For purposes of this subdivision, the major trade association representing operators in this state is that association which represents operators accounting for over one half of the coal produced in mines in this state in the year prior to the year in which the appointment is to be made.
(2) The Governor shall appoint, by and with the advice and consent of the Senate, three members who can reasonably be expected to represent the viewpoint of the working miners of this state. When members are to be appointed, the Governor shall request from the major employee organization representing coal miners within this state a list of three nominees for each position on the board. The highest ranking official within the major employee organization representing coal miners within this state shall submit a list of three nominees for each such position on the board. The nominees shall have a background in health and safety. The Governor shall make the appointments from the requested list of nominees.
(3) All appointments made by the Governor under the provisions of subdivisions (1) and (2) of this subsection shall be with the advice and consent of the Senate; and,
(4) The seventh member of the board is the director of the office of miners' health, safety and training, or his or her designee, who serves as chair of the board as an ex officio nonvoting member, except that the director may vote if there is a tie vote when the board is acting pursuant to subsection (e), section four of this article or subdivision (3), subsection (f), section seven of this article. The Director shall furnish to the board such secretarial, clerical, technical, research and other services as are necessary to the conduct of the business of the board, not otherwise furnished by the board; and,
~~(5)~~ (4) The Director of the Office of Miner's Health, Safety and Training or his or her designee shall serve as an ex officio, nonvoting member.
(b) Members serving on the board on ~~the effective date of this article~~ July 1, 2010, may continue to serve until the expiration of their terms. ~~Thereafter, members shall be nominated and appointed in the manner provided for in this section and shall serve for a~~ The term of is three years. Members are eligible for reappointment.
(c) ~~On or after January 1, 2002,~~ The Governor shall appoint, subject to the approval of a majority of the members of the board appointed under subdivisions (1) and (2), subsection (a) of this section, a Health and Safety Administrator in accordance with the provisions of section six of this article, who shall certify all official records of the board. The Health and Safety Administrator shall be a full-time officer of the Board of Coal Mine Health and Safety with the duties provided for in section six of this article. The Health and Safety Administrator shall have such education and experience as the Governor deems necessary to properly investigate areas of concern to the board in the development of rules governing mine health and safety. The Governor shall appoint as Health and Safety Administrator a person who has an independent and impartial viewpoint on issues involving mine safety. The Health and Safety Administrator shall be a person who has not been during the two years immediately preceding appointment, and is not during his or her term, an officer, trustee, director, substantial shareholder, contractor, consultant or employee of any coal operator, or an employee or officer of an employee organization or a spouse of any such person. The Health and Safety Administrator shall have the expertise to draft proposed rules and shall prepare such rules as are required by this code and on such other areas as will improve coal mine health and safety.
(d) The board shall meet at least once during each calendar month, or more often as may be necessary, and at other times upon the call of the chair, or upon the request of any three members of the board. Under the direction of the board, the Health and Safety Administrator shall prepare an agenda for each board meeting giving priority to the promulgation of rules as may be required from time to time by this code, and as may be required to improve coal mine health and safety. The Health and Safety Administrator shall provide each member of the board with notice of the meeting and the agenda as far in advance of the meeting as practical, but in any event, at least five days prior thereto. No meeting of the board shall be conducted unless said notice and agenda are given to the board members at least five days in advance, as provided herein, except in cases of emergency, as declared by the ~~chair~~ director, in which event members shall be notified of the board meeting and the agenda: ~~in a manner to be determined by the chair:~~ Provided, That upon agreement of a majority of the quorum present, any scheduled meeting may be ordered recessed to another day certain without further notice of additional agenda.
When proposed rules are to be finally adopted by the board, copies of such proposed rules shall be delivered to members not less than five days before the meeting at which such action is to be taken. If not so delivered, any final adoption or rejection of rules shall be considered on the second day of a meeting of the board held on two consecutive days, except that by the concurrence of at least four members of the board, the board may suspend this rule of procedure and proceed immediately to the consideration of final adoption or rejection of rules. When a member fails to appear at three consecutive meetings of the board or at one half of the meetings held during a one-year period, the Health and Safety Administrator shall notify the member and the Governor of such fact. Such member shall be removed by the Governor unless good cause for absences is shown.
(e) Whenever a vacancy on the board occurs, nominations and appointments shall be made in the manner prescribed in this section: Provided, That in the case of an appointment to fill a vacancy, nominations of three persons for each such vacancy shall be requested by and submitted to the Governor within thirty days after the vacancy occurs by the major trade association or major employee organization, if any, which nominated the person whose seat on the board is vacant. The vacancy shall be filled by the Governor within thirty days of his or her receipt of the list of nominations.
(f) A quorum of the board is ~~five~~ four members which shall include ~~the director of the office of miners' health, safety and training, or his or her designee,~~ at least two members representing the viewpoint of operators and at least two members representing the viewpoint of the working miners, and the board may act officially by a majority of those members who are present, except that no vote of the board may be taken unless all ~~seven~~ six voting members are present.

§22A-6-4. Board powers and duties.

(a) The board shall adopt as standard rules the "coal mine health and safety provisions of this chapter". Such standard rules and any other rules shall be adopted by the board without regard to the provisions of chapter twenty-nine-a of this code. The Board of Coal Mine Health and Safety shall devote its time toward promulgating rules in those areas specifically directed by this chapter and those necessary to prevent fatal accidents and injuries.
(b) The board shall review such standard rules and, when deemed appropriate to improve or enhance coal mine health and safety, revise the same or develop and promulgate new rules dealing with coal mine health and safety.
(c) The board shall develop, promulgate and revise, as may be appropriate, rules as are necessary and proper to effectuate the purposes of article two of this chapter and to prevent the circumvention and evasion thereof, all without regard to the provisions of chapter twenty-nine-a of this code:
(1) Upon consideration of the latest available scientific data in the field, the technical feasibility of standards, and experience gained under this and other safety statutes, such rules may expand protections afforded by this chapter notwithstanding specific language therein, and such rules may deal with subject areas not covered by this chapter to the end of affording the maximum possible protection to the health and safety of miners.
(2) No rules promulgated by the board shall reduce or compromise the level of safety or protection afforded miners below the level of safety or protection afforded by this chapter.
(3) Any miner or representative of any miner, or any coal operator has the power to petition the circuit court of Kanawha County for a determination as to whether any rule promulgated or revised reduces the protection afforded miners below that provided by this chapter, or is otherwise contrary to law: Provided, That any rule properly promulgated by the board pursuant to the terms and conditions of this chapter creates a rebuttable presumption that said rule does not reduce the protection afforded miners below that provided by this chapter.
(4) The director shall cause proposed rules and a notice thereof to be posted as provided in section eighteen, article one of this chapter. The director shall deliver a copy of such proposed rules and accompanying notice to each operator affected. A copy of such proposed rules shall be provided to any individual by the director's request. The notice of proposed rules shall contain a summary in plain language explaining the effect of the proposed rules.
(5) The board shall afford interested persons a period of not less than thirty days after releasing proposed rules to submit written data or comments. The board may, upon the expiration of such period and after consideration of all relevant matters presented, promulgate such rules with such modifications as it may deem appropriate.
(6) On or before the last day of any period fixed for the submission of written data or comments under subdivision (5) of this section, any interested person may file with the board written objections to a proposed rule, stating the grounds therefor and requesting a public hearing on such objections. As soon as practicable after the period for filing such objections has expired, the board shall release a notice specifying the proposed rules to which objections have been filed and a hearing requested.
(7) Promptly after any such notice is released by the board under subdivision (6) of this section, the board shall issue notice of, and hold a public hearing for the purpose of receiving relevant evidence. Within sixty days after completion of the hearings, the board shall make findings of fact which shall be public, and may promulgate such rules with such modifications as it deems appropriate. In the event the board determines that a proposed rule should not be promulgated or should be modified, it shall within a reasonable time publish the reasons for its determination.
(8) All rules promulgated by the board shall be published in the state register and continue in effect until modified or superseded in accordance with the provisions of this chapter.
(d) To carry out its duties and responsibilities, the board is authorized to employ such personnel, including legal counsel, experts and consultants, as it deems necessary. In addition, the board, within the appropriations provided for by the Legislature, may conduct or contract for research and studies and is entitled to the use of the services, facilities and personnel of any agency, institution, school, college or university of this state.
(e) The director shall within sixty days of a coal mining fatality or fatalities provide the board with all available reports regarding such fatality or fatalities.
The board shall review all ~~such~~ reports and any recommended rules submitted by the director, receive any additional information, and may, on its own initiative, ascertain the cause or causes of such coal mining fatality or fatalities. Within ~~one hundred twenty~~ ninety days of the receipt of the Federal Mine Safety and Health Administration's fatal accident report and the director's report and recommended rules, the board shall review and consider the presentation of said report and rules and, ~~such review of each such fatality the board shall promulgate such of said report or rules as are necessary to prevent the recurrence of such fatality,~~ if a majority of ~~the quorum present~~ of all voting board members determines that no additional rules can assist in the prevention of the specific type of fatality, the board shall either accept and promulgate the director's recommended rules, amend the director's recommended rules or draft new rules, as are necessary to prevent the recurrence of such fatality. If the board chooses to amend the director's recommended rules or draft its own rules, a vote is required within one hundred twenty days as to whether to promulgate the amended rule or the rule drafted by the board: Provided, That the board may, by majority vote, find that exceptional circumstances exist and the deadline cannot be met: Provided, however, That under no circumstances shall such deadline be extended by more than a total of ninety days. A majority vote of the board is required to promulgate any such rule.
~~Likewise,~~ The board shall annually, not later than July 1, review the major causes of coal mining injuries during the previous calendar year, reviewing the causes in detail, and shall promulgate such rules as may be necessary to prevent the recurrence of such injuries.
Further, the board shall, on or before January 10, of each year, submit a report to the Governor, President of the Senate and Speaker of the House, which report shall include, but is not limited to:
(1) The number of fatalities during the previous calendar year, the apparent reason for each fatality as determined by the office of miners' health, safety and training and the action, if any, taken by the board to prevent such fatality;
(2) Any rules promulgated by the board during the last year;
(3) What rules the board intends to promulgate during the current calendar year;
(4) Any problem the board is having in its effort to promulgate rules to enhance health and safety in the mining industry;
(5) Recommendations, if any, for the enactment, repeal or amendment of any statute which would cause the enhancement of health and safety in the mining industry;
(6) Any other information the board deems appropriate;
(7) In addition to the report by the board, as herein contained, each individual member of said board has right to submit a separate report, setting forth any views contrary to the report of the board, and the separate report, if any, shall be appended to the report of the board and be considered a part thereof.

§22A-6-6. Health and Safety Administrator; qualifications; duties; employees; compensation.

(a) The Governor shall appoint the Health and Safety Administrator of the board for a term of employment of one year. The Health and Safety Administrator shall be entitled to have his or her contract of employment renewed on an annual basis except where such renewal is denied for cause: Provided, That the Governor has the power at any time to remove the Health and Safety Administrator for misfeasance, malfeasance or nonfeasance: Provided, however, That the board has the power to remove the Health and Safety Administrator without cause upon the concurrence of five members of the board.
(b) The Health and Safety Administrator shall work at the direction of the board, independently of the director of the office of miners' health, safety and training and has such authority and shall perform such duties as may be required or necessary to effectuate this article.
(c) In addition to the Health and Safety Administrator, there shall be such other ~~research~~ employees hired by the Health and Safety Administrator as the board determines to be necessary. The health and safety administrator shall provide supervision and direction to the other ~~research~~ employees of the board in the performance of their duties.
(d) The employees of the board shall be compensated at rates determined by the board. The salary of the Health and Safety Administrator shall be fixed by the Governor: Provided, That the salary of the Health and Safety Administrator shall not be reduced during his or her annual term of employment or upon the renewal of his or her contract for an additional term. Such salary shall be fixed for any renewed term at least ninety days before the commencement thereof.
(e) (1) Appropriations for the salaries of the Health and Safety Administrator and any other employees of the board and for necessary office and operating expenses shall be made to a budget account ~~hereby~~ established for those purposes in the General Revenue Fund. Such account shall be separate from any accounts or appropriations for the Office of Miners' Health, Safety and Training.
(2) Expenditures from the funds established in section three hundred ten, article two-A; section seven, article six; section four, article seven; section three, article eleven of this chapter shall be by the Health and Safety Administrator for administrative and operating expenses, such operating expenses include mine health and safety, research, education and training programs as determined by the entities.
(f) The Health and Safety Administrator shall review all coal mining fatalities and major causes of injuries as mandated by section four of this article. An analysis of such fatalities and major causes of injuries shall be prepared for consideration by the board within ninety days of the occurrence of the accident.
(g) At the direction of the board, the administrator shall also conduct an annual study of occupational health issues relating to employment in and around coal mines of this state and submit a report to the board with findings and proposals to address the issues raised in such study. The administrator is responsible for preparing the annual reports required by subsection (e), section four of this article and section nine of this article.
(h) The administrator shall provide administrative assistance to the West Virginia Diesel Commission, The State Coal Mine Safety and Technical Review Committee, Board of Coal Mine Health and Safety, Board of Miner Training, Education and Certification, and the Mine Safety Technology Task Force, and serve as the legislative liaison for budgetary issues. The Administrator shall serve as an ex officio, nonvoting member on the West Virginia Diesel Commission, The State Coal Mine Safety and Technical Review Committee, Board of Miner Training, Education and Certification, and the Mine Safety Technology Task Force.
(i) The administrator shall submit to each board or commission for its approval, the proposed budget of the board or commission before submitting it to the Secretary of Revenue.

§22A-6-7. Coal Mine Safety and Technical Review Committee; membership; method of nomination and appointment; meetings; quorum; powers and duties of the committee; powers and duties of the Board of Coal Mine Health and Safety.

(a) ~~There is hereby continued~~ The State Coal Mine Safety and Technical Review Committee is continued, and commencing July 1, 2010, is a separate independent committee within the Department of Commerce. The purposes of this committee are to:
(1) Assist the Board of Coal Mine Health and Safety in the development of technical data relating to mine safety issues, including related mining technology;
(2) Provide suggestions and technical data to the board and propose rules with general mining industry application;
(3) Accept and consider petitions submitted by individual mine operators or miners seeking site-specific rule making pertaining to individual mines and make recommendations to the board concerning such rule making; and
(4) Provide a forum for the resolution of technical issues encountered by the board, safety education and coal advocacy programs.
(b) The committee shall consist of two members who shall be residents of this state, and who shall be appointed as hereinafter specified in this section:
(1) The Governor shall appoint one member to represent the viewpoint of the coal operators in this state from a list containing one or more nominees submitted by the major trade association representing coal operators in this state within thirty days of submission of such nominee or nominees.
(2) The Governor shall appoint one member to represent the viewpoint of the working miners of this state from a list containing one or more nominees submitted by the highest ranking official within the major employee organization representing coal mines within this state within thirty days of submission of the nominee or the nominees.
(3) The members appointed in accordance with the provisions of subdivisions (1) and (2) of this subsection shall be initially appointed to serve a term of three years. The members serving on the effective date of this article may continue to serve until their terms expire.
(4) The members appointed in accordance with the provisions of subdivisions (1) and (2) of this subsection may be, but are not required to be, members of the Board of Coal Mine Health and Safety, and shall be compensated on a per diem basis in the same amount as provided in section ten of this article, plus all reasonable expenses.
(c)The committee shall meet at least once during each calendar month, or more often as may be necessary.
(d) A quorum of the committee shall require both members, and the committee may only act officially by a quorum.
(e) The committee may review any matter relative to mine safety and mining technology, and may pursue development and resolution of issues related thereto. The committee may make recommendations to the board for the promulgation of rules with general mining industry application. Upon receipt of a unanimous recommendation for rule making from the committee and only thereon, the board may adopt or reject such rule, without modification except as approved by the committee: Provided, That any adopted rule shall not reduce or compromise the level of safety or protection below the level of safety or protection afforded by applicable statutes and rules. When so promulgated, such rules shall be effective, notwithstanding the provisions of applicable statutes.
(f) (1) Upon application of a coal mine operator, or on its own motion, the committee has the authority to accept requests for site-specific rule making on a mine-by-mine basis, and make unanimous recommendations to the board for site-specific rules thereon. The committee has authority to approve a request if it concludes that the request does not reduce or compromise the level of safety or protection afforded miners below the level of safety or protection afforded by any applicable statutes or rules. Upon receipt of a request for site-specific rule making, the committee may conduct an investigation of the conditions in the specific mine in question, which investigation shall include consultation with the mine operator and authorized representatives of the miners. Such authorized representatives of the miners shall include any person designated by the employees at the mine, persons employed by an employee organization representing one or more miners at the mine, or a person designated as a representative by one or more persons at the mine.
(2) If the committee determines to recommend a request made pursuant to subdivision (1) of this subsection, the committee shall provide the results of its investigation to the Board of Coal Mine Health and Safety along with recommendations for the development of the site-specific rules applicable to the individual mine, which recommendations may include a written proposal containing draft rules.
(3) Within thirty days of receipt of the committee's recommendation, the board shall adopt or reject, without modification, except as approved by the committee, the committee's recommendation to promulgate site-specific rules applicable to an individual mine adopting such site-specific rules only if it determines that the application of the requested rule to such mine will not reduce or compromise the level of safety or protection afforded miners below that level of safety or protection afforded by any applicable statutes. When so promulgated, such rules shall be effective notwithstanding the provisions of applicable statutes.
(g) The board shall consider all rules proposed by the Coal Mine Safety and Technical Review Committee and adopt or reject, without modification, except as approved by the committee, such rules, dispensing with the preliminary procedures set forth in subdivisions (1) through (7), subsection (a), section five; and, in addition, with respect to site-specific rules also dispensing with the procedures set forth in subdivisions (4) through (8), subsection (c), section four of this article.
(h) In performing its functions, the committee has access to the services of the coal mine Health and Safety Administrator appointed under section six of this article. The director shall make clerical support and assistance available in order that the committee can carry out its duties. Upon the request of both members of the committee, the Health and Safety Administrator shall draft proposed rules and reports or make investigations.
(i) The powers and duties provided for in this section for the committee are not intended to replace or precondition the authority of the Board of Coal Mine Health and Safety to act in accordance with sections one through six and eight through ten of this article.
(j) Appropriations for the funding of the committee and to effectuate this section shall be made to a budget account hereby established for that purpose in the General Revenue Fund. Such account shall be separate from any accounts or appropriations for the office of miners' health, safety and training.

ARTICLE 7. BOARD OF MINER TRAINING, EDUCATION AND CERTIFICATION.

§22A-7-4. Board of Miner Training, Education and Certification continued; membership; method of appointment; terms.

(a) ~~There is hereby continued a~~ The Board of Miner Training, Education and Certification ~~which~~ is continued, and commencing July 1, 2010, is a separate independent board within the Department of Commerce. The board consists of ~~seven~~ six voting members and two ex officio, nonvoting members, who are selected in the following manner:
(1) One member shall be appointed by the Governor to represent the viewpoint of surface mine operators in this state. When such member is to be appointed, the Governor shall request from the major association representing surface coal operators in this state a list of three nominees to the board. The Governor shall select from said nominees one person to serve on the board. For purposes of this subsection, the major association representing the surface coal operators in this state is that association, if any, which represents surface mine operators accounting for over one half of the coal produced in surface mines in this state in the year prior to that year in which the appointment is made.
(2) Two members shall be appointed by the Governor to represent the interests of the underground operators of this state. When said members are to be appointed, the Governor shall request from the major association representing the underground coal operators in this state a list of six nominees to the board. The Governor shall select from said nominees two persons to serve on the board. For purposes of this subsection, the major association representing the underground operators in this state is that association, if any, which represents underground operators accounting for over one half of the coal produced in underground mines in this state in the year prior to that year in which the appointments are made.
(3) Three members shall be appointed by the Governor who can reasonably be expected to represent the interests of the working miners in this state. If the major employee organization representing coal miners in this state is divided into administrative districts, the employee organization of each district shall, upon request by the Governor, submit a list of three nominees for membership on the board. If such major employee organization is not so divided into administrative districts, such employee organization shall, upon request by the Governor, submit a list of twelve nominees for membership on the board. The Governor shall make such appointments from the persons so nominated: Provided, That in the event nominations are made by administrative districts, not more than one member shall be appointed from the nominees of any one district unless there are less than three such districts in this state.
(4) ~~The seventh member of the board, who serves as chair, shall be the director of the office of miners' health, safety and training~~ The Director of the Office of Miner's Health, Safety and Training or his or her designee, and the Health and Safety Administrator of the Board of Coal Mine Health and Safety shall serve as ex officio, nonvoting members.
(5) All appointments made by the Governor under this section shall be with the advice and consent of the Senate: Provided, That persons so appointed while the Senate of this state is not in session are permitted to serve up to one year in an acting capacity, or until the next session of the Legislature, whichever is less.
(b) The board shall be appointed by the Governor. Members serving on the effective date of this article may continue on the board until their terms expire. Appointed members serve for a term of three years. The board shall meet at the call of the chair, at the call of the director, or upon the request of any two members of the board: Provided, That no meeting of the board for any purpose shall be conducted unless the board members are notified at least five days in advance of a proposed meeting. In cases of an emergency, members may be notified of a board meeting by the most appropriate means of communication available.
(c) Whenever a vacancy on the board occurs, appointments shall be made in the manner prescribed in this section: Provided, That in the case of an appointment to fill a vacancy nominations shall be submitted to the Governor within thirty days after the vacancy occurs. The vacancy shall be filled by the Governor within thirty days of receipt of the list of nominations.
(d) Each appointed member of the board shall be paid the same compensation, and each member of the board shall be paid the expense reimbursement, as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law for each day or portion thereof engaged in the discharge of official duties. Any such amounts shall be paid out of the State Treasury upon a requisition upon the State Auditor, properly certified by such members of the board.
(e) A quorum of the board is four members, with two representing the viewpoint of the operators and two representing the viewpoint of the labor organization. The board may act officially by a majority of those members who are present. No vote of the board may be taken unless all six voting members are present.
(f) ~~The chair of the board shall be a nonvoting member.~~ In performing its functions, the board shall have access to the services of the Board of Coal Mine Health and Safety. The Board of Coal Mine Health and Safety shall provide administrative support and assistance, pursuant to section six, article six of this chapter, to enable the board to carry out its duties. ~~Provided,~~ ~~That in cases of a tie, the chair shall cast the deciding vote on the issue or issues under consideration~~
(g) The director of the office of miners' health, safety and training shall select a member of the office's staff to serve as the secretary to the board and the secretary shall be present or send an authorized representative to all meetings of the board.
Appropriations to the board to effectuate the purposes of this article shall be made to a budget account established for that purpose.

§22A-7-6. Duties of the director and office.

The director shall ~~be empowered to promulgate~~ propose rules for legislative approval, pursuant to chapter twenty-nine-a of this code, ~~such reasonable rules as~~ that are necessary to establish a program to implement the provisions of this article. Such program shall include, but not be limited to, implementation of a program of instruction in each of the miner occupational specialties and the conduct of examinations to test each applicant's knowledge and understanding of the training and instruction which he or she is required to have prior to the receipt of a certificate.
The director is authorized and directed to utilize state mine inspectors, mine safety instructors, the state mine foreman examiner, private and public institutions of education and such other persons as may be available in implementing the program of instruction and examinations.
The director may, at any time, make such recommendations ~~or supply such information~~ to the board as he or she may deem appropriate.
The director shall supply any information upon request of the board as long as the information is not in violation of any other laws.
The director is authorized and directed to utilize such state and federal moneys and personnel as may be available to the office for educational and training purposes in the implementation of the provisions of this article.
ARTICLE 11. MINE SAFETY TECHNOLOGY.

§22A-11-2. Mine Safety Technology Task Force continued; membership; method of nomination and appointment.

(a) The Mine Safety Technology Task Force ~~created and existing under the authority of the director pursuant to the provisions of section six, article one of this chapter~~ is continued, ~~as provided by this article~~ and commencing July 1, 2010, is a separate independent task force within the Department of Commerce.
(b) The task force shall consist of ~~nine~~ seven voting members and two ex officio, nonvoting members who are appointed as specified in this section:
(1) The Governor shall appoint, by and with the advice and consent of the Senate, three members to represent the viewpoint of operators in this state. When these members are to be appointed, the Governor shall request from the major trade association representing operators in this state a list of three nominees for each position on the task force. All nominees shall be persons with special experience and competence in coal mine health and safety. There shall be submitted with the list, a summary of the qualifications of each nominee. For purposes of this subdivision, the major trade association representing operators in this state is that association which represents operators accounting for over one half of the coal produced in mines in this state in the year prior to the year in which the appointment is to be made.
(2) The Governor shall appoint, by and with the advice and consent of the Senate, three members who can reasonably be expected to represent the viewpoint of the working miners of this state. When members are to be appointed, the Governor shall request from the major employee organization representing coal miners within this state a list of three nominees for each position on the task force. The highest ranking official within the major employee organization representing coal miners within this state shall submit a list of three nominees for each position on the board. The nominees shall have a background in coal mine health and safety.
(3) The Governor shall appoint, by and with the advice and consent of the Senate, one certified mine safety professional from the College of Engineering and Mineral Resources at West Virginia University;
(4) ~~The Governor shall appoint, by and with the advice and consent of the Senate, one attorney with experience in issues relating to coal mine health and safety; and~~ The Health and Safety Administrator, pursuant to section six, article six of this chapter, shall serve as a member of the task force as an ex officio, nonvoting member; and
(5) The ninth member of the task force is the director, or his or her designee, who shall serve as chair of the task force. The director shall furnish to the task force any secretarial, clerical, technical, research and other services that are necessary to the conduct of the business of the task force. The Director of the Office of Miner's Health, Safety and Training or his or her designee, shall serve as a ex officio, nonvoting member.
(c) Each appointed member of the task force shall serve at the will and pleasure of the Governor.
(d) Whenever a vacancy on the task force occurs, nominations and appointments shall be made in the manner prescribed in this section: Provided, That in the case of an appointment to fill a vacancy, nominations of three persons for each vacancy shall be requested by and submitted to the Governor within thirty days after the vacancy occurs by the major trade association or major employee organization, if any, which nominated the person whose seat on the task force is vacant.
(e) Each member of the task force shall be paid the expense reimbursement, as is paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law for each day or portion thereof engaged in the discharge of official duties. In the event the expenses are paid by a third party, the member shall not be reimbursed by the state. The reimbursement shall be paid out of the State Treasury upon a requisition upon the State Auditor, properly certified by the Office of Miners' Health, Safety and Training. An employer shall not prohibit a member of the task force from exercising leave of absence from his or her place of employment in order to attend a meeting of the task force or a meeting of a subcommittee of the task force, or to prepare for a meeting of the task force, any contract of employment to the contrary notwithstanding.
§22A-11-3. Task force powers and duties.
(a) The task force shall provide technical and other assistance to the office related to the implementation of the new technological requirements set forth in the provisions of section fifty-five, article two, of this chapter, as amended and reenacted during the regular session of the Legislature in the year 2006, and requirements for other mine safety technologies.
(b) The task force, working in conjunction with the director, shall continue to study issues regarding the commercial availability, the functional and operational capability and the implementation, compliance and enforcement of the following protective equipment:
(1) Self-contained self-rescue devices, as provided in subsection (f), section fifty-five, article two of this chapter;
(2) Wireless emergency communication devices, as provided in subsection (g), section fifty-five, article two of this chapter;
(3) Wireless emergency tracking devices, as provided in subsection (h), section fifty-five, article two of this chapter; and
(4) Any other protective equipment required by this chapter or rules promulgated in accordance with the law that the director determines would benefit from the expertise of the task force.
(c) The task force shall on a continuous basis study, monitor and evaluate:
(1) The potential for enhancing coal mine health and safety through the application of existing technologies and techniques;
(2) Opportunities for improving the integration of technologies and procedures to increase the performance and survivability of coal mine health and safety systems;
(3) Emerging technological advances in coal mine health and safety; and
(4) Market forces impacting the development of new technologies, including issues regarding the costs of research and development, regulatory certification and incentives designed to stimulate the marketplace.
(d) On or before July 1 of each year, the task force shall submit a report to the Governor and the Board of Coal Mine Health and Safety that shall include, but not be limited to:
(1) A comprehensive overview of issues regarding the implementation of the new technological requirements set forth in the provisions of section fifty-five, article two of this chapter, or rules promulgated in accordance with the law;
(2) A summary of any emerging technological advances that would improve coal mine health and safety;
(3) Recommendations, if any, for the enactment, repeal or amendment of any statute which would enhance technological advancement in coal mine health and safety; and
(4) Any other information the task force considers appropriate.
(e) In performing its duties, the task force shall, where possible, consult with, among others, mine engineering and mine safety experts, radiocommunication and telemetry experts and relevant state and federal regulatory personnel.
(f) Appropriations to the task force commission and to effectuate the purposes of this article shall be made to one or more budget accounts established for that purpose.
The bill (Eng. Com. Sub. for H. B. No. 4525), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4525) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4525) 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. 4527, Limiting the liability of apiary owners and operators.
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 13. INSPECTION AND PROTECTION OF AGRICULTURE.

§19-13-4. Registration of bees; identification of apiaries; limitation on liability.

(a) All persons keeping bees in this state shall apply for a certificate of registration for bee keeping from the commissioner, within ten days of the date that bees are acquired, by notifying the commissioner, in writing, of the number and location of colonies they own or rent, or which they keep for someone else, whether the bees are located on their own property or someone else's property. All apiary certificates of registration expire on December 31, of each year and must be renewed annually.
(b) All persons owning or operating an apiary which is not located on their own property must post the name and address of the owner or operator in a conspicuous place in the apiary.
(c) A person who:
(1) Owns and operates an apiary;
(2) Is registered with the Commissioner; and
(3) Operates the apiary in a reasonable manner and in conformance with the West Virginia Department of Agriculture's written best management practices provided by rule, is not liable for any personal injury or property damage that occurs in connection with the keeping and maintaining of bees, bee equipment, queen breeding equipment, apiaries and appliances. The limitation of liability established by this section does not apply to intentional tortious conduct or acts or omissions constituting gross negligence.
The limitation on liability in this subsection shall not take effect until legislative rules promulgated by the Commissioner of Agriculture are authorized by the Legislature. However, the Commissioner of Agriculture shall have the authority to promulgate emergency rules under this subsection.
The bill (Eng. Com. Sub. for H. B. No. 4527), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4527) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4527) 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. 4527--A Bill to amend and reenact §19-13-4 of the Code of West Virginia, 1931, as amended, relating to limiting the liability of apiary owners and operators; requiring the Department of Agriculture to promulgate best practices rules; and authorizing emergency rulemaking power.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4527) 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. 4531, Mandating that shackling of pregnant women who are incarcerated is not allowed except in extraordinary circumstances.
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 25. DIVISION OF CORRECTIONS.
ARTICLE 1. ORGANIZATION, INSTITUTIONS AND CORRECTIONS MANAGEMENT.
§25-1-16. Transfer of inmates of state institutions or facilities.
The State Commissioner of Corrections ~~Public Institutions~~ shall have authority to cause the transfer of any ~~patient or~~ inmate from any ~~state institution or~~ correctional facility to any other state or federal institution or facility which is better ~~fitted~~ equipped for the care or treatment of such ~~patient or~~ inmate, or for other good cause or reason.
Whenever ~~a convict in a state prison~~ an inmate committed to the custody of corrections becomes mentally ill and his or her needs cannot be properly met within the correctional facility, the ~~warden~~ commissioner shall proceed in accordance with section thirty-one, article five, chapter twenty-eight of this code.
Whenever ~~a convict in a state prison~~ an inmate committed to the custody of corrections needs medical attention, other than mental health care, not available at said prison, the warden or ~~superintendent~~ administrator of said ~~prison~~ correctional facility shall immediately notify the Commissioner of ~~Public Institutions,~~ Corrections who, after proper investigation, shall cause the transfer of said ~~convict~~ inmate to a ~~hospital within the State of West Virginia~~ facility properly equipped to render the medical attention necessary. Such ~~a convict,~~ inmate, while receiving treatment in said hospital, shall be under ~~guard~~ an appropriate level of supervision at all times and shall forthwith be returned to ~~prison~~ his or her correctional facility upon ~~his recovery~~ release from said facility.
In providing or arranging for the necessary medical and other care and treatment of a pregnant inmate, the warden or administrator of the correctional facility shall take reasonable measures to assure that pregnant inmates will not be restrained after reaching the second trimester of pregnancy until the end of the pregnancy: Provided, That if the inmate, based upon her classification, discipline history, or other factors deemed relevant by the warden or administrator poses a threat of escape, or to the safety of herself, the public, staff or the fetus, the inmate may be restrained in a manner reasonably necessary: Provided, however, That prior to directing the application of restraints and where there is no threat to the safety of the inmate, the public, staff or the fetus, the warden, administrator or designee shall consult with an appropriate health care professional to assure that the manner of restraint will not pose an unreasonable risk of harm to the inmate or the fetus.
CHAPTER 31. CORPORATIONS.

ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY.

§31-20-30a. Mechanical restraints during pregnancy.
In providing or arranging for the necessary medical and other care and treatment of inmates committed to the Regional Jail Authority's custody, the authority shall assure that pregnant inmates will not be restrained after reaching the second trimester of pregnancy until the end of the pregnancy: Provided, That if the inmate, based upon her classification, discipline history, or other factors deemed relevant by the authority poses a threat of escape, or to the safety of herself, the public, staff or the fetus, the inmate may be restrained in a manner reasonably necessary. Provided, however, That prior to directing the application of restraints and where there is no threat to the safety of the inmate, the public, staff or the fetus, the director or designee shall consult with an appropriate health care professional to assure that the manner of restraint will not pose an unreasonable risk of harm to the inmate or the fetus.
CHAPTER 49. CHILD WELFARE.
ARTICLE 5E. DIVISION OF JUVENILE SERVICES.

§49-5E-6. Medical and other treatment of juveniles in custody of the division; coordination of care and claims processing and administration by the department; authorization of certain cooperative agreements.

(a) Notwithstanding any other provision of law to the contrary, the director, or his or her designee, is hereby authorized to consent to the medical or other treatment of any juvenile in the legal or physical custody of the director or the division.
(b) In providing or arranging for the necessary medical and other care and treatment of juveniles committed to the division's custody, the director shall utilize service providers who provide the same or similar services to juveniles under existing contracts with the Department of Health and Human Resources. In order to obtain the most advantageous reimbursement rates, to capitalize on an economy of scale and to avoid duplicative systems and procedures, the department shall administer and process all claims for medical or other treatment of juveniles committed to the division's custody.
(c) In providing or arranging for the necessary medical and other care and treatment of juveniles committed to the division's custody, the director shall assure that pregnant inmates will not be restrained after reaching the second trimester of pregnancy until the end of the pregnancy: Provided, That if the inmate, based upon her classification, discipline history or other factors deemed relevant by the director poses a threat of escape, or to the safety of herself, the public, staff, or the unborn child, the inmate may be restrained in a manner reasonably necessary: Provided, however, That prior to directing the application of restraints and where there is no threat to the safety of the inmate, the public, staff or the fetus, the director or designee shall consult with an appropriate health care professional to assure that the manner of restraint will not pose an unreasonable risk of harm to the inmate or the fetus.
~~(c)~~ (d) For purposes of implementing the mandates of this section, the director is hereby authorized and directed to enter into any necessary agreements with the Department of Health and Human Resources. Any such agreement shall specify, at a minimum, for the direct and incidental costs associated with such care and treatment to be paid by the Division of Juvenile Services.
The bill (Eng. Com. Sub. for H. B. No. 4531), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4531) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4531) 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. 4604, Increasing the criminal penalties for persons who obstruct, flee from or make false statements to law-enforcement officers.
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. CRIMES AGAINST PUBLIC JUSTICE.

§61-5-17. Obstructing officer; fleeing from officer; making false statements to officer; penalties; definitions.

(a) Any person who by threats, menaces, acts or otherwise, forcibly or illegally hinders or obstructs, or attempts to hinder or obstruct, any law-enforcement officer, probation officer or parole officer acting in his or her official capacity is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in ~~the county or regional~~ jail not more than one year, or both fined and confined.
(b) Any person who intentionally disarms or attempts to disarm any law-enforcement officer, probation officer or parole officer, acting in his or her official capacity, is guilty of a felony and, upon conviction thereof, shall be imprisoned in ~~the~~ a state correctional facility not less than one nor more than five years.
(c) Any person who, with intent to impede or obstruct a law-enforcement officer in the conduct of an investigation of a felony offense, knowingly and willfully makes a materially false statement, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25 and not more than $200, or confined in ~~the county or regional~~ jail for five days, or both ~~Provided,~~ ~~That~~ fined or confined. However, the provisions of this section ~~shall~~ do not apply to statements made by a spouse, parent, stepparent, grandparent, sibling, half-sibling, child, stepchild or grandchild, whether related by blood or marriage, of the person under investigation. Statements made by the person under investigation may not be used as the basis for prosecution under this subsection. For the purposes of this subsection, "law- enforcement officer" ~~shall~~ does not include a watchman, a member of the West Virginia State Police or college security personnel who is not a certified law-enforcement officer.
(d) Any person who intentionally flees or attempts to flee by any means other than the use of a vehicle from any law-enforcement officer, probation officer or parole officer acting in his or her official capacity who is attempting to make a lawful arrest of the person, and who knows or reasonably believes that the officer is attempting to arrest him or her, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in ~~the county or regional~~ jail not more than one year, or both.
(e) Any person who intentionally flees or attempts to flee in a vehicle from any law-enforcement officer, probation officer or parole officer acting in his or her official capacity, after the officer has given a clear visual or audible signal directing the person to stop, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 and shall be ~~confined~~ imprisoned in ~~the county or regional jail not more than~~ a state correctional facility less than one year nor more than five years, or both.
(f) Any person who intentionally flees or attempts to flee in a vehicle from any law-enforcement officer, probation officer or parole officer acting in his or her official capacity, after the officer has given a clear visual or audible signal directing the person to stop, and who operates the vehicle in a manner showing a reckless indifference to the safety of others, is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $2,000, and shall be imprisoned in a state correctional facility not less than one nor more than five years.
(g) Any person who intentionally flees or attempts to flee in a vehicle from any law-enforcement officer, probation officer or parole officer acting in his or her official capacity, after the officer has given a clear visual or audible signal directing the person to stop, and who causes damage to the real or personal property of any person during or resulting from his or her flight, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $3,000 and shall be confined in the county or regional jail for not less than six months nor more than one year.
(h) Any person who intentionally flees or attempts to flee in a vehicle from any law-enforcement officer, probation officer or parole officer acting in his or her official capacity, after the officer has given a clear visual or audible signal directing the person to stop, and who causes bodily injury to any person during or resulting from his or her flight, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than ~~one~~ three nor more than ~~five~~ ten years.
(i) Any person who intentionally flees or attempts to flee in a vehicle from any law-enforcement officer, probation officer or parole officer acting in his or her official capacity, after the officer has given a clear visual or audible signal directing the person to stop, and who causes death to any person during or resulting from his or her flight, is guilty of a felony and, upon conviction thereof, shall be punished by a definite term of imprisonment in a state correctional facility which is not less than ~~three~~ five nor more than fifteen years. A person imprisoned pursuant to the provisions of this subsection is not eligible for parole prior to having served a minimum of three years of his or her sentence or the minimum period required by the provisions of section thirteen, article twelve, chapter sixty-two of this code, whichever is greater.
(j) Any person who intentionally flees or attempts to flee in a vehicle from any law-enforcement officer, probation officer or parole officer acting in his or her official capacity, after the officer has given a clear visual or audible signal directing the person to stop, and who is under the influence of alcohol, controlled substances or drugs at the time, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than ~~one~~ three nor more than ~~five~~ ten years.
(k) For purposes of this section, the term "vehicle" includes any motor vehicle, motorcycle, motorboat, all-terrain vehicle or snowmobile, as those terms are defined in section one, article one, chapter seventeen-a of this code, whether or not it is being operated on a public highway at the time and whether or not it is licensed by the state.
(l) For purposes of this section, the terms "flee," "fleeing" and "flight" do not include any person's reasonable attempt to travel to a safe place, allowing the pursuing law-enforcement officer to maintain appropriate surveillance, for the purpose of complying with the officer's direction to stop.
(m) The revisions to subsections (e), (f), (g) and (h) of this article enacted during the Regular Session of the 2010 Regular Legislative Session shall be known as the "Jerry Alan Jones Act."
The bill (Eng. Com. Sub. for H. B. No. 4604), as amended, was then ordered to third reading.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4604) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4604) 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. 4604--A Bill to amend and reenact §61-5-17 of the Code of West Virginia, 1931, as amended, relating to increasing the criminal penalties for crimes against law enforcement, probation and parole officers; establishing crime for disarming or attempting to disarm probation and parole officers; establishing new crime for reckless fleeing from law enforcement officers and parole and probation officers; increasing penalties for fleeing or attempting to flee in a vehicle; increasing penalties for fleeing or attempting to flee in a vehicle causing property damage; increasing penalties for fleeing or attempting to flee in a vehicle causing injury; increasing penalties for fleeing or attempting to flee in a vehicle causing death; and designating this act as the "Jerry Alan Jones Act."
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. 4647, Relating to the regulation and control of elections.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Kessler, as chair of the Committee on the Judiciary, and by unanimous consent, the unreported Judiciary committee amendment to the bill was withdrawn.
Thereafter, at the request of Senator Chafin, and by unanimous consent, the bill was advanced to third reading with the right for amendments to be considered on that reading.
At the request of Senator Kessler, and by unanimous consent, the Senate returned to the sixth order of business, which agenda includes the making of main motions.
On motion of Senator Kessler, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2773, Increasing the monetary penalties for selling tobacco products to minors.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Kessler, the Senate reconsidered its action by which in earlier proceedings today it adopted the Judiciary committee amendment to the title of the bill (shown in the Senate Journal of today, page 45).
The vote thereon being reconsidered,
The question again being on the adoption of the Judiciary committee amendment to the title of the bill.
At the request of Senator Kessler, as chair of the Committee on the Judiciary, unanimous consent was granted to withdraw the Judiciary committee amendment to the title of the bill.
The bill was read a third time and put upon its passage.
Om the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of those present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2773) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
On motion of Senator Minard, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for House Bill No. 4260, Relating to insurance adjusters.
Passed by the Senate on yesterday, Thursday, March 11, 2010,
The bill now being in the possession of the Senate,
On motion of Senator Minard, the Senate reconsidered its action by which on yesterday, Thursday, March 11, 2010, it adopted the Banking and Insurance committee amendment to the title of the bill (shown in the Senate Journal of yesterday, Thursday, March 11, 2010, page 38).
The vote thereon being reconsidered,
The question again being on the adoption of the Banking and Insurance committee amendment to the title of the bill.
At the request of Senator Minard, as chair of the Committee on the Banking and Insurance, unanimous consent was granted to withdraw the Banking and Insurance committee amendment to the title of the bill.
On motion of Senator Minard, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4260--A Bill to repeal §33-12B-2 and §33-12B-13 of the Code of West Virginia, 1931, as amended; to amend and reenact §33-12B-1, §33-12B-3, §33-12B-5, §33-12B-9, §33-12B-10 and §33-12B-11 of said code; to amend said code by adding thereto a new section, designated §33-12B-10a, all relating to insurance adjusters; providing definitions; permitting an adjuster to designate a home state; establishing a new crop adjuster license and its qualifications; revising the requirements for nonresident adjusters; revising licensing renewal requirements; requiring notification by adjusters of legal actions taken against them; granting the Insurance Commissioner the authority to examine the business practices of persons holding or applying for adjuster licenses; clarifying the hearing process to be used concerning adverse administrative actions; providing for placing an adjuster on probation for violation of the provisions of the chapter or rules; providing for suspension or revocation of license for failure to pay administrative penalty; increasing maximum administrative penalty for violations; and providing for judicial review.
The bill, as just amended, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of those present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4260) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
On motion of Senator Bowman, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for House Bill No. 4577, Relating to elevator inspections and classifications of licensure .
Passed by the Senate on yesterday, Thursday, March 11, 2010,
The bill now being in the possession of the Senate,
On motion of Senator Bowman, the Senate reconsidered the vote as to the effective date, title amendment and passage of the bill.
The vote thereon having been reconsidered,
At the request of Senator Bowman, unanimous consent was granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Bowman, the following amendment to the bill (Eng. Com. Sub. for H. B. No. 4577) was reported by the Clerk and adopted:
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §21-3C-1, §21-3C-2a, §21-3C-10a and §21-3C-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:.
The bill, as just amended, was again ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4577) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4577) passed.
The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4577-- A Bill to amend and reenact §21-3C-1, §21-3C-2a, §21-3C-10a and §21-3C-11 of the Code of West Virginia, 1931, as amended, all relating to elevators; exempting platform lifts from the definition of elevator; prohibiting certain elevators from being installed in certain settings; requiring inspections on certain elevators; creating different classifications of licensure; and providing rule-making authority to the division of labor.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
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. 4577) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order 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, Creating WV Commercial Patent Incentives Tax Act.
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. Com. Sub. for Senate Bill No. 230, Relating to Board of Optometry.
On motion of Senator Chafin, 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:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 8. OPTOMETRISTS.
§30-8-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice optometry in this state without a license or permit issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that they are an optometrist unless the person has been duly licensed or permitted under the provisions of this article.
(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of optometry, except through a licensee or ~~permitee~~ permittee.
(c) A licensee may not practice optometry as an employee of any commercial or mercantile establishment.
(d) A licensee may not practice optometry on premises not separate from premises whereon eyeglasses, lenses, eyeglass frames or any other merchandise or products are sold by any other person. For the purposes of this section, any room or suite of rooms in which optometry is practiced shall be considered separate premises if it has a separate and direct entrance from a street or public hallway or corridor within a building, which corridor is partitioned off by partitions from floor to ceiling.
(e) A person who is not licensed under this article as an optometrist may not characterize himself or herself as an "optometrist," "doctor of optometry," or ~~"optometric physician," nor may a person use the designation~~ or as an "OD".
§30-8-2. Applicable law.
The practice of optometry and the Board of Optometry are subject to the provisions of article one of this chapter, the provisions of this article and the board's rules.
§30-8-3. Definitions.
As used in this article:
(a) "Appendages" means the eyelids, the eyebrows, the conjunctiva and the lacrimal apparatus.
(b) "Applicant" means any person making application for a license, certificate or temporary permit under the provisions of this article.
(c) "Board" means the West Virginia Board of Optometry.
(d) "Business entity" means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity owned by licensees that practices optometry.
(e) "Certificate" means a prescription certificate issued under section fifteen of this article.
(f) "Certificate holder" means a person authorized to prescribe certain drugs under section fifteen of this article.
(g) "Collaborative arrangement" means a written protocol agreement for each patient to be executed between an optometrist and ophthalmologist, and filed with the appropriate licensing boards, for an optometrist meeting the criteria of this article. The ophthalmologist must be notified when the procedure takes place by the optometrist and be available within forty miles of the treatment site in case patient complications require a physician.
~~(h)~~ (g) "Examination, diagnosis and treatment" means a method compatible with accredited optometric education and professional competence pursuant to this article.
~~(i)~~ (h)"License" means a license to practice optometry.
~~(j)~~ (i) "Licensee" means an optometrist licensed under the provisions of this article.
~~(k)~~ (j) "Ophthalmologist" means a physician specializing in ophthalmology licenced in West Virginia to practice medicine and surgery under article thereof this chapter or osteopathy under article fourteen of this chapter.
~~(l)~~ (k) ~~"Permitee"~~ "Permittee" means a person holding a temporary permit.
~~(m)~~ (l) "Practice of optometry" means the examining, diagnosing and treating of any visual defect or abnormal condition of the human eye or its appendages within the scope established in this article or associated rules. For billing purposes only, an optometrist shall be viewed as a physician-level practitioner.
~~(n)~~ (m) "Temporary permit" or "permit" means a permit issued to a person who has graduated from an approved school, has taken the examination prescribed by the board, and is awaiting the results of the examination.
§30-8-4. Board of Optometry.
(a) The West Virginia Board of Optometry is continued. The members of the board in office on July 1, 2010, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.
(b) The board shall consist of the following members appointed by the Governor, by and with the advice and consent of the Senate:
(1) Five licensed optometrists; and
(2) Two citizen members, who are not licensed under the provisions of this article and who do not perform any services related to the practice of the profession regulated under the provisions of this article.
(c) Each licensed member of the board, at the time of his or her appointment, must have held a professional license in this state for a period of not less than three years immediately preceding the appointment.
(d) Each member of the board must be a resident of this state during the appointment term.
(e) The term shall be three years. A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified.
(f) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.
(g) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(h) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.
(i) The board shall elect annually a president and a secretary-treasurer from its members who serve at the will of the board.
(j) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.
(k) A majority of the members of the board constitutes a quorum.
(l) The board shall hold at least two meetings a year. Other meetings may be held at the call of the president or upon the written request of two members at the time and place as designated in the call or request.
(m) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-8-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for licenses, certificates and permits;
(3) Establish procedures for submitting, approving and rejecting applications for licenses, certificates and permits;
(4) Determine the qualifications of any applicant for licenses, certificates and permits;
(5) Prepare, conduct, administer and grade examinations for licenses;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations by the board or a third party administer, including the number of persons taking the examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix the compensation of the executive secretary;
(9) Maintain an office and hire, discharge, establish the job requirements and fix the compensation of employees, investigators and contracted employees necessary to enforce the provisions of this article;
(10) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;
(11) Conduct disciplinary hearings of persons regulated by the board;
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of the provisions of this article;
(14) Maintain an accurate registry of names and addresses of all licensees regulated by the board;
(15) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;
(16) Establish the continuing education requirements for licensees;
(17) Issue, renew, combine, deny, suspend, revoke or reinstate licenses, certificates and permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and
(20) Take all other actions necessary and proper to effectuate the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer the examinations required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this state; and
(3) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.
§30-8-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:
(1) Standards and requirements for licenses, certificates and permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses, certificates and permits;
(8) A fee schedule;
(9) A prescription drug formulary classifying those categories of oral drugs rational to the diagnosis and treatment of visual defects or abnormal conditions of the human eye and its appendages, which may be prescribed by licensees from Schedules III, IV and V of the Uniform Controlled Substances Act. The drug formulary may also include oral antibiotics, oral nonsteroidal anti-inflammatory drugs and oral carbonic anhydrase inhibitors.; ~~The board shall consult with the Board of Pharmacy and other appropriate boards before releasing these rules for public comment;~~
(10) Requirements~~, in addition to the requirements for obtaining a certificate,~~ for prescribing and dispensing contact lenses that contain and deliver pharmaceutical agents that have been approved by the Food and Drug Administration as a drug;
(11) Continuing education requirements for licensees;
(12) The procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees, certificate holders and ~~permitees~~ permittees;
(13) Requirements for inactive or revoked licenses, certificates or permits; ~~and~~
(14) Requirements for an expanded scope of practice for those procedures that are taught at 50% of all accredited optometry schools;
~~(14)~~ (15) Any other rules necessary to effectuate the provisions of this article.
(b) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.
(c) The board shall promulgate procedural and interpretive rules in accordance with section eight, article three, chapter twenty-nine-a of this code.
§30-8-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "West Virginia Board of Optometry Fund", which is continued. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.
§30-8-8. License to practice optometry.
(a) To be eligible for a license to engage in the practice of optometry, the applicant must:
(1) Be at least twenty-one years of age;
(2) Be of good moral character;
(3) Graduate from a school approved by the Accreditation Council on Optometric Education or successor organization;
(4) Pass an examination prescribed by the board;
(5) Complete an interview with the board;
(6) Not be addicted to the use of alcohol, drugs or other controlled substances;
(7) Not have been convicted of a felony in any jurisdiction within ten years preceding the date of application for license, which conviction has not been reversed; and
(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted related to the practice of optometry, which conviction has not been reversed.
(b) A registration to practice issued by the board prior to July 1, 2010, shall for all purposes be considered a license issued under this article: Provided, That a person holding a registration issued prior to July 1, 2010, must renew pursuant to the provisions of this article.
§30-8-9. Scope of Practice.
(a) An licensee may:
(1) Examine, diagnosis and treat diseases and conditions of the human eye and its appendages within the scope established in this article or associated rules;
(2) Administer or prescribe any drug for topical application to the anterior segment of the human eye for use in the examination, diagnosis or treatment of diseases and conditions of the human eye and its appendages: Provided, That the licensee has first obtained a certificate;
(3) (a) Administer or prescribe any drug from the drug formulary, as established by the board pursuant to section six of this article, for use in the examination, diagnosis or treatment of diseases and conditions of the human eye and its appendages: Provided, That the licensee has first obtained a certificate;
(b) New drugs and new drug indications may be added to the drug formulary by approval of the board;
(4) Administer epinephrine by injection to treat emergency cases of anaphylaxis or anaphylactic shock;
(5) Prescribe and dispense contact lenses that contain and deliver pharmaceutical agents and that have been approved by the Food and Drug Administration as a drug; ~~Provided,~~ ~~That the licensee has first obtained a certificate and satisfied all requirements as set out in legislative rule;~~
(6) Prescribe, fit, apply, replace, duplicate or alter lenses, prisms, contact lenses, orthoptics, vision training, vision rehabilitation;
(7) Perform the following procedures:
(A) Remove a foreign body from the ocular surface and adnexa utilizing a non-intrusive method;
(B) Remove a foreign body, external eye, conjunctival, superficial, using topical anesthesia;
(C) Remove embedded foreign bodies or concretions from conjunctiva, using topical anesthesia, not involving sclera;
(D) Remove corneal foreign body not through to the second layer of the cornea using topical anesthesia;
(E) Epilation of lashes by forceps;
(F) Closure of punctum by plug; and
(G) Dilation of the lacrimal puncta with or without irrigation;
(8) Furnish or provide any prosthetic device to correct or relieve any defects or abnormal conditions of the human eye and its appendages;
(9) Order laboratory tests rational to the examination, diagnosis, and treatment of a disease or condition of the human eye and its appendages;
(10) Use a diagnostic laser; and
(11) A licensee is also permitted to perform those procedures authorized by the board prior to January 1, 2010.
(b) An A licensee may not:
(1) Perform surgery except as provided in this article, by legislative rule or by joint written agreement between the board and the Board of Medicine;
(2) Use a therapeutic laser: ~~Provided~~, That a licensee, who has the proper training as determined by the board, may use Argon Laser Trabeculoplasty procedures, Selective Laser Trabeculoplasty procedures and Peripheral Iridotomy procedures in the treatment of glaucoma when such licensee is working in a collaborative arrangement with an ophthalmologist: ~~Provided, however,~~ ~~That a licensee who observes progressive vision loss in a patient shall refer that patient to an ophthalmologist~~;
(3) Use ~~Schedule I and~~ Schedule II controlled substances;
(4) Treat systemic disease; or
(5) Present to the public that he or she is a specialist in surgery of the eye.
§30-8-10. Exceptions.
The following persons are exempt from licensure under this article:
(1) Persons licensed to practice medicine and surgery under article three of this chapter or osteopathy under article fourteen of this chapter;
(2) Persons and business entities who sell or ~~manufacturer~~ manufacture ocular devices in a permanently established place of business, who neither practice nor attempt to practice optometry.

§30-8-11. Issuance of license; renewal of license; renewal fee; display of license.

(a) A licensee shall annually or biennially on or before July 1, renew his or her license by completing a form prescribed by the board, paying the renewal fee and submitting any other information required by the board.
(b) The board shall charge a fee for renewal of a license, and a late fee for any renewal not paid by the due date.
(c) The board shall require as a condition of renewal of a license that each licensee complete continuing education.
(d) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license.
§30-8-12. Temporary permits.
(a) Upon proper application and the payment of a fee, the board may issue, without examination, a temporary permit to engage in the practice of optometry in this state.
(b) If the ~~permitee~~ permittee receives a passing score on the examination, a temporary permit expires thirty days after the ~~permitee~~ permittee receives the results of the examination.
(c) If the ~~permitee~~ permittee receives a failing score on the examination, the temporary permit expires immediately.
(d) An applicant under this subsection may only be issued one temporary permit. Upon the expiration of a temporary permit, a person may not practice as an optometrist until he or she is fully licensed under the provisions of this article. In no event may a ~~permitee~~ permittee practice on a temporary permit beyond a period of ninety consecutive days.
(e) A temporary ~~permitee~~ permittee under this section shall work under the supervision of a licensee, with the scope of such supervision to be defined by the board by legislative rule.

§30-8-13. License from another jurisdiction; license to practice in this state.

(a) The board may issue a license to practice to an applicant of good moral character who holds a valid license or other authorization to practice optometry from another jurisdiction, if the applicant demonstrates that he or she:
(1) Holds a license or other authorization to practice optometry in another state which requirements are substantially equivalent to those required in this state;
(2) Does not have charges pending against his or her license or other authorization to practice, and has never had a license or other authorization to practice revoked;
(3) Has not previously failed an examination for professional licensure in this state;
(4) Has paid the applicable fee;
(5) Has passed the examination prescribed by the board; and
(6) Has fulfilled any other requirement specified by the board.
(b) In its discretion, the board may interview and examine an applicant for licensing under this section. The board may enter into agreements for reciprocal licensing with other jurisdictions having substantially similar requirements for licensure.
§30-8-14. Prescriptive authority.
(a) A licensee may prescribe: (1) topical pharmaceutical agents, (2) oral pharmaceutical agents that are included in the drug formulary established by the board pursuant to section six of this article or new drugs or new drug indications added by a decision of the board, and (3) contact lenses that contain and deliver pharmaceutical agents that have been approved by the Food and Drug Administration as a drug~~, only if~~ ~~the licensee has first obtained a certificate from the board~~.
(b) ~~To obtain a certificate from the board,~~ An applicant must:
(1) Submit a completed application;
(2) Pay the appropriate fee;
(3) Show proof of current liability insurance coverage;
(4) Complete the board required training;
(5) Pass an examination; and
(6) Complete any other criteria the board may establish by rule.
~~(c) Certificates shall be issued to coincide with the applicant's licensing period.~~
§30-8-15. Administration of injectable pharmaceutical agents.
(a) A licensee may not administer pharmaceutical agents by injection, other than epinephrine to treat emergency cases of anaphylaxis or anaphylactic shock, unless the provisions of this section, along with any legislative rule promulgated pursuant to this section, have been met.
(b) Additional pharmaceutical agents by injection may be included by agreement between the board and the Board of Medicine or the board may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty- nine-a of this code. These rules shall ~~provided~~ provide, at a minimum, for the following:
(1) Establishment of a course, or provide a list of approved courses, in administration of pharmaceutical agents by injection;
(2) Definitive treatment guidelines which shall include, but not be limited to, appropriate observation for an adverse reaction of an individual following the administration of a pharmaceutical agent by injection;
(3) A requirement that a licensee shall have completed a board approved injectable administration course and completed an American Red Cross or American Heart Association basic life-support training, and maintain certification in the same;
(4) Continuing education requirements for this area of practice;
(5) Reporting requirements for licensees administering pharmaceutical agents by injection to report to the primary care physician or other licensed health care provider as identified by the person receiving the pharmaceutical agent by injection;
(6) Reporting requirements for licensees administering pharmaceutical agents by injection to report to the appropriate entities;
(7) That a licensee may not delegate the authority to administer pharmaceutical agents by injection to any other person; and
(8) Any other provisions necessary to implement the provisions of this section.
(c) In no event may a licensee be granted authority under this section to administer a pharmaceutical agent by injection directly into the globe of the eye.

§30-8-16. Special volunteer license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer license for optometrists who are retired or are retiring from the active practice of optometry and wish to donate their expertise for the care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge.
(b) The special volunteer license shall be issued by the board to optometrists licensed or otherwise eligible for licensure under this article without the payment of an application fee, license fee or renewal fee, and shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements.
(c) The board shall develop application forms for the special volunteer license provided in this section which shall contain the optometrist's acknowledgment that:
(1) The optometrist's practice under the special volunteer license will be exclusively devoted to providing optometrical care to needy and indigent persons in West Virginia;
(2) The optometrist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any optometrical services rendered under the special volunteer license;
(3) The optometrist will supply any supporting documentation that the board may reasonably require; and
(4) The optometrist agrees to continue to participate in continuing education as required by the board for a special volunteer license.
(d) Any optometrist who renders any optometrical service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge, under a special volunteer license authorized under this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the optometrical service at the clinic unless the act or omission was the result of the optometrist's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, before the rendering of any services by the optometrist at the clinic, there must be a written agreement between the optometrist and the clinic stating that the optometrist will provide voluntary uncompensated optometrical services under the control of the clinic to patients of the clinic before the rendering of any services by the optometrist at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than $1 million per occurrence.
(e) Notwithstanding the provisions of subsection (d) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of an optometrist rendering voluntary optometrical services at or for the clinic under a special volunteer license under this section.
(f) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure in this article except the fee requirements.
(g) Nothing in this section may be construed as requiring the board to issue a special volunteer license to any optometrist whose license is or has been subject to any disciplinary action or to any optometrist who has surrendered a license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a license.
(h) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any optometrist covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by an optometrist who holds a special volunteer license.
§30-8-17. Optometric business entities.
(a) Only licensees may own a business entity that practices optometry.
(b) A licensee may be employed by the business entity.
(c) A business entity shall cease to engage in the practice of optometry when it is not wholly owned by licensees: Provided, That the personal representative of a deceased shareholder shall have a period, not to exceed eighteen months from the date of such shareholder's death, to dispose of such shares.

§30-8-18. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.
(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee, certificate holder or ~~permitee~~ permittee.
(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee or ~~permitee~~ permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee or ~~permitee~~ permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license, certificate or permit or the imposition of sanctions against the licensee, certificate holder or ~~permitee~~ permittee. Any hearing shall be held in accordance with the provisions of this article, and the provisions of articles five and six, chapter twenty-nine-a of this code.
(e) Any member of the board or the executive secretary of the board may issue subpoenas and subpoenas duces tecum on behalf of the board to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.
(f) Any member of the board or its executive secretary may sign a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license, certificate or permit of, impose probationary conditions upon or take disciplinary action against, any licensee, certificate holder or ~~permitee~~ permittee for any of the following reasons once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a license, certificate or permit by fraud, misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk;
(4) Intentional violation of a lawful order;
(5) Having had an authorization to practice optometry revoked, suspended, other disciplinary action taken, by the proper authorities of another jurisdiction;
(6) Having had an application to practice optometry denied by the proper authorities of another jurisdiction;
(7) Exceeded the scope of practice of optometry;
(8) Aiding or abetting unlicensed practice;
(9) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public; or
(10) False and deceptive advertising; this includes, but is not limited to, the following:
(A) Advertising "free examination of eyes," or words of similar import and meaning; or
(B) Advertising frames or mountings for glasses, contact lenses, or other optical devices which does not accurately describe the same in all its component parts.; or
(c) Advertising or marketing as an optometric physician if such term was not in the practice name prior to January 1, 2010.
(h) For the purposes of subsection (g) of this section disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per violation;
(4) Mandatory attendance at continuing education seminars or other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or certificate holders to report to the board for periodic interviews for a specified period of time; or
(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.
§30-8-19. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.
(d) Any member or the executive secretary of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee, certificate holder or ~~permitee~~ permittee has violated the provisions of this article or the board's legislative rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.
§30-8-20. Judicial review.
Any licensee, certificate holder or ~~permitee~~ permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.
§30-8-21. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee, certificate holder or ~~permitee~~ permittee has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.
(b) A person violating section one of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than ~~$500~~ $1,000 nor more than ~~$1000~~ $5,000 or confined in jail not more than six months, or both fined and confined.
§30-8-22. Single act evidence of practice.
In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.
On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendment to the bill (Eng. Com. Sub. for S. B. No. 230) 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 amendment by that body, passage as amended, 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. 480, Relating to public higher education personnel.
On motion of Senator Chafin, 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:
[CLERK'S NOTE: See the Journal of the House of Delegates for this day.}
On motion of Senator Chafin, the Senate refused to concur in the House amendments to the bill (Eng. Com. Sub. for S. B. No. 480) 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. 651, Providing state bid preference for certain current license or permit holders.
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. 2503, Requiring licensed tattoo artist to inform patrons, prior to performing the tattoo procedure, of the potential problems that a tattoo may cause in relation to the reading of magnetic resonance imaging.
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. House Bill No. 3110, Renaming conservation officers to be natural resources police officers.
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, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4081, Authorizing the Department of Military Affairs and Public Safety to promulgate legislative rules.
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, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4110, Authorizing the Department of Commerce to promulgate legislative rules.
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. 4176, Relating to credentialing of health care practitioners.
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, of
Eng. Com. Sub. for House Bill No. 4299, Providing that nonstate retired employees who have worked for their last nonstate employer for less than five years are responsible for their entire premium cost.
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. 4335, Relating to the business registration tax.
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. 4352, Authorizing the West Virginia Supreme Court of Appeals to create a Business Court Division within certain circuit court districts.
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. 4425, Developing a pilot program for unlicensed personnel to administer medication in a nursing home.
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. 4436, Providing discretion to schools that make AYP to use assessments and adopting instructional strategies and programs that promote student learning.
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, of
Eng. Com. Sub. for House Bill No. 4457, Relating to the access to and protection of cemeteries.
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. 4534, Increasing the criminal penalty for failing to stop and render aid after a motor vehicle accident; Erin's Law.
The Senate proceeded to the fourth order of business.
Senator Palumbo, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 12th day of March, 2010, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:
(Com. Sub. for S. B. No. 89), Relating to reinstating former police chiefs or deputy chiefs to previously held positions.
(Com. Sub. for Com. Sub. for S. B. No. 349), Requiring child care centers have written evacuation plan.
(S. B. No. 514), Clarifying certain language in Controlled Substances Monitoring Act.
(Com. Sub. for S. B. No. 543), Authorizing Energy and Water Savings Revolving Loan Fund Program and PROMISE rules for Higher Education Policy Commission.
(S. B. No. 553), Extending time to purchase full service credit in Teachers' Defined Contribution Retirement System.
And,
(Com. Sub. for S. B. No. 631), Updating process for adopting textbooks and other instructional material.
Respectfully submitted,
Corey Palumbo,
Chair, Senate Committee.
Danny Wells,
Chair, House Committee.
Senator Helmick, 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 Joint Resolution No. 101, Commercial and Industrial Tangible Personal Property Tax Exemption Amendment.
And has amended same.
Now on second reading, having been read a first time on March 10, 2010, and referred to the Committee on Finance on March 11, 2010;
And reports the same back with the recommendation that it be adopted, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the resolution (Eng. Com. Sub. for H. J. R. No. 101) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
The following amendment to the resolution, from the Committee on Finance, was reported by the Clerk and adopted:
On pages two and three, by striking out all of section one-d and inserting in lieu thereof a new section one-d, to read as follows:

§1d. Discretionary exemption from ad valorem taxation of tangible personal property directly used in commercial and industrial businesses.

Notwithstanding any other provision of this constitution, the Legislature may by law exempt tangible personal property directly used in commercial and industrial businesses, but not in public utility businesses, from ad valorem property tax. The Legislature may prescribe and limit by law the tangible personal property qualified for such exemption. Any exemption established pursuant to this section is limited to qualified tangible personal property newly entered on the property tax rolls as of a prospective date certain and thereafter. Notwithstanding section one, article ten of this constitution, taxation shall be equal and uniform throughout the state.
Resolved further, That in accordance with the provisions of article eleven, chapter three of the Code of West Virginia, 1931, as amended, such proposed amendment is hereby numbered "Amendment No. 1" and designated as the "Commercial and Industrial Tangible Personal Property Tax Exemption Amendment" and the purpose of the proposed amendment is summarized as follows: "The purpose of this amendment is to exempt from ad valorem taxation tangible personal property newly entered on the property tax rolls as of a prospective date certain and thereafter and directly used in commercial and industrial businesses, but not in public utility businesses, or such components thereof pursuant to legislative authorization.
The resolution (Eng. Com. Sub. for H. J. R. No. 101), as amended, was then ordered to third reading.
Senator Helmick, 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. 4031, Providing flexibility in the West Virginia public school support plan for funding regional education service agencies.
With amendments from the Committee on Education pending;
Now on second reading, having been read a first time and referred to the Committee on Finance on March 11, 2010;
And reports the same back with the recommendation that it do pass as amended by the Committee on Education to which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Kessler, 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. 4108, Authorizing miscellaneous agencies and boards to promulgate legislative rules.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4108) 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.
On motion of Senator Chafin, 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, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Green--1.
The bill (Eng. Com. Sub. for H. B. No. 4108) was then 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. State Board of Examiners for Licensed Practical Nurses.
The legislative rule filed in the state register on the July 9, 2009, authorized under the authority of section five, article seven-a, chapter thirty, of this code, modified by the State Board of Examiners for Licensed Practical Nurses to meet the objections of the legislative rule-making review committee and refiled in the state register on October 19, 2009, relating to the State Board of Examiners for Licensed Practical Nurses (policies and procedures for development and maintenance of educational programs in practical nursing, 10 CSR 1), is authorized.
§64-9-2. Board of Examiners in Counseling.
(a) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section six, article thirty-one, chapter thirty, of this code, modified by the Board of Examiners in Counseling to meet the objections of the legislative rule-making review committee and refiled in the state register on November 25, 2009, relating to the Board of Examiners in Counseling (licensed professional counselor fees, 27 CSR 2), is authorized.
(b) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section six, article thirty-one, chapter thirty, of this code, modified by the Board of Examiners in Counseling to meet the objections of the legislative rule-making review committee and refiled in the state register on October 19, 2009, relating to the Board of Examiners in Counseling (licensed professional counselor license renewal and continuing professional education requirements, 27 CSR 3), is authorized with the following amendment:
On page one, subsection 1.2., by striking out "§30-31- 5(b)(18)" and inserting in lieu thereof "§30-31-6".
(c) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section six, article thirty-one, chapter thirty, of this code, modified by the Board of Examiners in Counseling to meet the objections of the legislative rule-making review committee and refiled in the state register on November 25, 2009, relating to the Board of Examiners in Counseling (marriage and family therapists licensing, 27 CSR 8), is authorized.
(d) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section six, article thirty-one, chapter thirty, of this code, modified by the Board of Examiners in Counseling to meet the objections of the legislative rule-making review committee and refiled in the state register on November 25, 2009, relating to the Board of Examiners in Counseling (marriage and family therapists fees, 27 CSR 9), is authorized.
(e) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section six, article thirty-one, chapter thirty, of this code, modified by the Board of Examiners in Counseling to meet the objections of the legislative rule-making review committee and refiled in the state register on October 19, 2009, relating to the Board of Examiners in Counseling (marriage and family license renewal and continuing professional education, 27 CSR 10), is authorized with the following amendments:
On page one, subsection 1.2., by striking out "§30-31-5(b)" and inserting in lieu thereof "§30-31-6".
On page one section 2.1, by striking the words "of Marriage and Family Therapist and code of ethics." and inserting in lieu thereof the following words, "for Marriage and Family Therapy Code of Ethics.";
On page two section 2.7 by striking the words, "you attend" and inserting in lieu thereof the word, "attended";
On page three section 4.1, striking the word "Therapist" and inserting in lieu of the word, "Therapy";
On page four section 4.9 striking the word "therapist" and inserting in lieu of the following word, "therapy";
On page four section 4.10 striking the words, "of Marriage and Family Therapist" and inserting in lieu thereof the following words, "for Marriage and Family Therapy";
On page six, subparagraph (I) by striking the apostrophe;
On page seven, subparagraph (D) by striking the apostrophe;
On page eight paragraph 6 by striking the words, "of Marriage and Family Therapist" and inserting in lieu thereof the following words, "for Marriage and Family Therapy";
On page nine, subparagraph (C) by striking out the words, "of Marriage and Family Therapist" and inserting in lieu of the following words, "for Marriage and Family Therapy".

§64-9-3. Board of Medicine.

The legislative rule filed in the state register on July 30, 2009, authorized under the authority of section seven, article three, chapter thirty, of this code, relating to the Board of Medicine (fees for services rendered by the Board of Medicine including assistance to the Board-designated physician health program for physicians, podiatrists and physician assistants, 11 CSR 4), is authorized.
§64-9-4. Conservation Agency.
The legislative rule filed in the state register on July 29, 2009, authorized under the authority of section six, article twenty-one-a, chapter nineteen, of this code, modified by the Conservation Agency to meet the objections of the legislative rule- making review committee and refiled in the state register on October 23, 2009, relating to the Conservation Agency (operation of the West Virginia State Conservation Committee and conservation districts, 63 CSR 1), is authorized.
§64-9-5. Commissioner of Agriculture.
(a) The legislative rule filed in the state register on July 28, 2009, authorized under the authority of section two, article nine, chapter nineteen, of this code, modified by the Commissioner of Agriculture to meet the objections of the legislative rule- making review committee and refiled in the state register on September 22, 2009, relating to the Commissioner of Agriculture (animal disease control, 61 CSR 1), is authorized.
(b) The legislative rule filed in the state register on July 21, 2009, authorized under the authority of section four, article sixteen-a, chapter nineteen, of this code, modified by the Commissioner of Agriculture to meet the objections of the legislative rule-making review committee and refiled in the state register on September 4, 2009, relating to the Commissioner of Agriculture (integrated pest management programs in schools and child care centers and facilities, 61 CSR 12J), is authorized.
(c) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section one, article twenty-nine, chapter nineteen, of this code, modified by the Commissioner of Agriculture to meet the objections of the legislative rule-making review committee and refiled in the state register on September 23, 2009, relating to the Commissioner of Agriculture (West Virginia shellfish, 61 CSR 23B), is authorized with the following amendments:
On page 4, by striking out subdivision 4.1.i. in its entirety and inserting in lieu thereof a new subdivision 4.1.i. to read as follows:
"Refer violations to a court of competent jurisdiction for the violation of this rule as allowed under West Virginia laws. Nothing in this rule shall be construed as requiring the commissioner to report for prosecution or institute an embargo, detainment or quarantine for the violation of this rule when he or she believes that the public interest may best be served by a written notice of the violation."
On page 6, after subdivision 7.1.j. by adding a new subsection, designated 7.2 to read as follows:
"7.2. Any person who violates the provisions of this rule shall have his or her Shellfish Certificate suspended until the facility is in compliance with the provisions of this rule.";
On pages 6 and 7, by striking §61-23A-8 in its entirety ;
And, by renumbering the remaining section.
(d) The legislative rule filed in the state register on July 15, 2009, authorized under the authority of section six, article twenty-nine, chapter nineteen, of this code, modified by the Commissioner of Agriculture to meet the objections of the legislative rule-making review committee and refiled in the state register on January 14, 2010, relating to the Commissioner of Agriculture (best management practices for land application of waste products from aquaculture facilities, 61 CSR 27), is authorized.
§64-9-6. Board of Barbers and Cosmetologists.
(a) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section six, article twenty-seven, chapter thirty, of this code, modified by the Board of Barbers and Cosmetologists to meet the objections of the legislative rule-making review committee and refiled in the state register on December 14, 2009, relating to the Board of Barbers and Cosmetologists (qualifications, training, examination and licensure of instructors in barbering and beauty culture, 3 CSR 2), is authorized with the following amendments:
On page one, after the caption "SERIES 2", by striking out the word "Licensure" and inserting in lieu thereof the word "Certification";
On page one, subsection 1.1, by striking out the word "licensure" and inserting in lieu thereof the word "certification";
On page one, in the "§3-2-2" caption, by striking out the word "Licensure" and inserting in lieu thereof the word "Certification".
On page one, subsection 2.1, by striking out said subsection 2.1 in its entirety and inserting in lieu thereof a new subsection 2.1 to read as follows:
2.1. An individual seeking certification must: ;
On page one, subdivision 2.1.3, by striking out the word "offered" and inserting in lieu thereof the word "approved".
On page two, subdivision 2.1.9, by striking out said subdivision 2.1.9 in its entirety and inserting in lieu thereof a new subdivision 2.1.9 to read as follows:
"2.1.9. Submit a letter from a school owner or manager certifying that the applicant has completed 375 hours of instructor training and attesting to the applicant's professional capabilities."
On page two, subdivision 2.1.11, at the beginning of said subdivision, by striking out the word "Must";
On page two, subdivision 2.1.12, at the beginning of said subdivision, by striking out the word "Must";
On page two, subdivision 2.1.13, by striking out the word "license" and inserting in lieu thereof the word "certification";
On page two, subsection 3.1, by striking out the word "licensure" and inserting in lieu thereof the word "certification";
On page two, subdivision 3.1.1, by striking out the word "Licensure" and inserting in lieu thereof the word "Certification";
On page two, subdivision 3.1.6, by striking out said subdivision 3.1.6 in its entirety and inserting in lieu thereof a new subdivision 3.1.6 to read as follows:
"3.1.6. Submit a letter from a school owner or manager certifying that the applicant has completed 375 hours of instructor training and attesting to the applicant's professional capabilities and employment and instructing experience."
On page three, subdivision 3.1.8, at the beginning of said subdivision, by striking out the word "Must";
On page three, subdivision 3.1.9, at the beginning of said subdivision, by striking out the word "Must";
On page three, subdivision 3.1.10, by striking out the word "license" and inserting in lieu thereof the word "certification";
On page three, subsection 3.2, by striking out subsection 3.2 in its entirety and inserting in lieu thereof a new subsection 3.2 to read as follows:
3.2. An instructor certification must be renewed annually or biennially on or before January 1.;
On page three, subsection 3.3, by striking out the word "registered" and inserting in lieu thereof the word "certified";
On page three, subsection 3.3, by striking out the word "license" and inserting in lieu thereof the word "certificate";
On page three, in the "§3-2-4" caption, by striking out the word "Licensure" and inserting in lieu thereof the word "Certification";
On page three, subsection 4.1, by striking out the word "licensure" and inserting in lieu thereof the word "certification";
On page three, subsection 4.1, in the last sentence, by striking out the underlined word "student";
On page four, in the "§3-2-5" caption, by striking out the word "Licensure" and inserting in lieu thereof the word "Certification";
On page four, subsection 5.2, by striking out the last sentence that reads: "This ~~rule~~ section applies to only 1800 hour barber graduates.";
On page five, in the "§3-2-6" caption, by striking out the word "Licensure" and inserting in lieu thereof the word "Certification";
On page five, by striking out subsection 6.1 in its entirety and renumbering the remaining subsections;
On page five, subsection 6.2, by striking out the word "license" and inserting in lieu thereof the words "a certificate";
On page six, by striking out subsection 7.1 in its entirety and inserting in lieu thereof a new subsection 7.1 to read as follows:
7.1. An applicant from another state seeking certification as an instructor or master instructor is eligible for certification by reciprocity if the applicant has acquired training in another state equal to the requirements established in this rule for the respective certificate requested: Provided, that the state in which said applicant is certified extends the same privilege to certified instructors from this State.;
On page six, in the "§3-2-8" caption, by striking out the word "License" and inserting in lieu thereof the word "Certificate";
On page six, subsection 8.1, by striking out the word "license" and inserting in lieu thereof the word "certificate";
On page six, subsection 8.2, by striking out the word 'whose' and inserting in lieu thereof the words "who is";
On page six, subsection 8.2, by striking out the word "licensed" and inserting in lieu thereof the word "certified";
And,
On page six, subsection 9.1, by striking out the words "contested case".
(b) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section six, article twenty-seven, chapter thirty, of this code, modified by the Board of Barbers and Cosmetologists to meet the objections of the legislative rule-making review committee and refiled in the state register on December 14, 2009, relating to the Board of Barbers and Cosmetologists (licensing schools of barbering and beauty culture, 3 CSR 3), is authorized with the following amendments:
On page one, subdivision 2.1.d, by striking said subdivision 2.1.d in its entirety and inserting in lieu thereof a new subdivision 2.1.d to read as follows:
"The applicant has employed or contracted with at least 2 licensed master instructors, and such additional licensed instructors as necessary to meet the instructor-to-student ratio requirements of 3 CSR 4 (Title 3, Legislative Rule of the Board of Barbers and Cosmetologists, Series 4, Operational Standards for Schools of Barbering and Beauty Culture).";
On page two, subdivision 3.1.5, by striking out subdivision 3.1.5 in its entirety and inserting in lieu thereof a new subdivision 3.1.5 to read as follows:
3.1.5. A copy of a proposed floor plan of the school, which arrangement shall have at least two (2) classrooms for each profession taught and a room for clinical and demonstration work. On page three, subdivision 3.1.13, by striking said subdivision 3.1.13 in its entirety and inserting in lieu thereof a new subdivision 3.1.13 to read as follows:
"A statement by the applicant that the school is handicapped accessible.";
On page four, subsection 3.6, by striking said subsection 3.6 in its entirety and inserting in lieu thereof a new subsection 3.6 to read as follows:
"Applicants who acquire or relocate an existing school must meet the requirements set forth in this section.";
On page four, subsection 4.4, after the words "The Board" by striking the word "shall" and inserting in lieu thereof the word 'may', and after the words "general grounds" by inserting the word "suspend,"; and
On page four, subdivision 4.4.3, by striking said subdivision 4.4.3 in its entirety and inserting in lieu thereof a new subdivision 4.4.3 to read as follows:
"A licensee, owner, administrator, manager, director or other key interested party is convicted of a felony or misdemeanor relating to the school or its operation.".
(c) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section six, article twenty-seven, chapter thirty, of this code, modified by the Board of Barbers and Cosmetologists to meet the objections of the legislative rule-making review committee and refiled in the state register on December 14, 2009, relating to the Board of Barbers and Cosmetologists (operation of barber, beauty shops and schools of barbering and beauty culture, 3 CSR 5), is authorized with the following amendments:
On page one, subsection 1.1, by striking out the subsection and inserting in lieu thereof "Scope - This legislative rule governs the sanitary requirements for salons and schools licensed by the Board of Barbers and Cosmetologists.";
On page one, subsection 2.1, after the word "All", by striking out the words "barber, beauty, nail and aesthetic shops/salons or schools of barbering and beauty culture" and inserting in lieu thereof the words "salons or schools";
On page one, subsection 2.2, after the word "All", by striking out the words "shop's or school's" and inserting in lieu thereof the words "salons' and schools'";
On page one, subsection 2.2, after the word "such", by striking out the word "shop" and inserting in lieu thereof the word "salon";
On page one, subsection 2.2, after the word "such", by striking out the word "shops" and inserting in lieu thereof the word "salons";
On page one, subsection 2.3, after the word "Each", by striking out the words "barber, cosmetologist, aesthetician, nail technician/manicurist,";
On page two, subsection 2.6, by striking out the word "in" and inserting in lieu thereof the word "is";
On page two, subsection 2.8, after the word "All", by striking out the words "barber, beauty, nail and aesthetic shops/";
On page two, subsection 2.9, after the word "for", by striking out the words "barber, beauty, nail and aesthetic shops/";
On page two, subsection 2.9, after the word "in", by striking out the words "barber or beauty shops" and inserting in lieu thereof the word "salons";
On page two, subsection 2.9, by striking out the word "Shops" and inserting in lieu thereof the word "salons";
On page three, subsection 2.15, after the word "each", by striking out the word "shop" and inserting in lieu thereof the word "salon";
On page three, subsection 2.15, after the word "the", by striking out the word "shop" and inserting in lieu thereof the word "salon";
On page three, subsection 2.16, after the word "Each", by striking out the words "barber, aesthetician, nail technician/manicurist, or cosmetologist" and inserting in lieu thereof the word "licensee";
On page three, subsection 2.16, after the word "student", by striking out the words "barber, aesthetician, nail technician/manicurist, or cosmetologist";
On page three, subsection 2.16, after the word "such", by striking out the words "barber, aesthetician, nail technician/manicurist, or cosmetologist" and inserting in lieu thereof the word "licensee";
On page three, subsection 2.17, after the word "Every", by striking out the words "barber, aesthetician, nail technician/manicurist, or cosmetologist" and inserting in lieu thereof the word "licensee";
On page three, subsection 2.19, by striking out the words "marks and where possible" and inserting in lieu thereof the words "and, where possible";
On page three, subsection 2.20, by striking out subsection 2.20 in its entirety and inserting in lieu thereof a new subsection 2.20 to read as follows:
2.20. Any member of the Board, or it's inspectors may enter or inspect any barber, beauty, nail and aesthetic shops/salons or school of barbering or beauty culture during business hours to check any part of the premises in order to ascertain wether or not any part of these rules are being violated, and to take any other action necessary to properly enforce the law;
On page four, subsection 2.21, after the word "every", by striking out the words "barber, beauty, nail and aesthetic shops/salons" and inserting in lieu thereof the word "salon";
On page four, subsection 2.24, after the word "All", by striking out the words "barber, beauty, nail and aesthetic shops/salons and beauty shops or" and inserting in lieu thereof the words "salons and";
On page four, subsection 2.24, after the word "the", by striking out the word "shop" and inserting in lieu thereof the words "salon or school";
On page four, subsection 2.25, by striking out the word "have" and inserting in lieu thereof the word "operate";
On page four, subsection 2.25, after the word "the", by striking out the word "shop" and inserting in lieu thereof the word "salon";
On page four, subsection 2.26, after the word "All", by striking out the words "barber, beauty, nail and aesthetic shops/salons and shop" and inserting in lieu thereof the word "salon";
On page four, subsection 2.27, after the word "All", by striking out the words "barber, beauty, nail and aesthetic shops/salons and beauty shops" and inserting in lieu thereof the word "salons";
On page four, subsection 2.27, by striking out the words "water marks or stains,";
On page four, subsection 3.1, after the word "all", by striking out the words "barber, beauty, nail and aesthetic shops/salons, barber or beauty" and inserting in lieu thereof the words "salons and";
On page four, subsection 3.1, after the word "all", by striking out the words "licensed barbers, cosmetologists, aestheticians, nail technicians/manicurists" and inserting in lieu thereof the word "licensees";
And,
On page four, subsection 4.1, after the word "a" by striking out the words "contested case".
(d) The legislative rule filed in the state register on July 31, 2009 , authorized under the authority of section six, article twenty-seven, chapter thirty, of this code, relating to the Board of Barbers and Cosmetologists (schedule of fees, 3 CSR 6), is authorized with the following amendments:
On page one, subsection 1.1, after the word "Cosmetologists" by striking out the remainder of the sentence;
And,
On page one, subsection 1.2, by striking out "§30-27-1" and inserting in lieu thereof "§30-27-6".
(e) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section six, article twenty-seven, chapter thirty, of this code, modified by the Board of Barbers and Cosmetologists to meet the objections of the legislative rule-making review committee and refiled in the state register on December 14, 2009, relating to the Board of Barbers and Cosmetologists (schedule of fines, 3 CSR 7), is authorized with the following amendment:
On page one, section 2, after the words "any person licensed" by striking out the words "and/or licensed facility" and inserting in lieu thereof the following words "or holding a salon license";
On page ten, subsection 2.63, by striking out the word "Failure" and inserting in lieu thereof the word "Failing";
On page eleven, subsection 2.64, by striking out the word "Failure" and inserting in lieu thereof the word "Failing";
On page eleven, subsection 2.65, by striking out the words "Failure for a shop or shop owner" and inserting in lieu thereof the word "Failing";
On page eleven, subsection 2.66, by striking out the words "Failure for a shop or shop manger" and inserting in lieu thereof the word "Failing" ;
On page eleven, by striking out subsection 2.68 in its entirety and by renumbering the remaining subsections;
And,
On page twelve, by striking out subsections 2.71 and 2.72 in their entirety.
(f) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section six, article twenty-seven, chapter thirty, of this code, modified by the Board of Barbers and Cosmetologists to meet the objections of the legislative rule-making review committee and refiled in the state register on December 14, 2009, relating to the Board of Barbers and Cosmetologists (continuing education, 3 CSR 11), is authorized with the following amendments:
On page one, subsection 1.1, by striking out the words "barbering, cosmetology, manicuring/nail technology, and aesthetics" and inserting in lieu thereof the words "beauty culture in West Virginia";
On page one, subsection 1.2, by striking out "§30-.27-6-9" and inserting in lieu thereof "§30-27-6".
On page one, after the section heading "§3-11-2 Definitions" by striking out everything after the said section heading and inserting in lieu thereof the following, all to read as follows:
"2.1. 'Approved academic course' means a formal course of study offered by an accredited postsecondary educational institution as it relates to the barbering, cosmetology, manicuring/nail technology, and aesthetics.
2.2. 'Approved provider' means a local, state or national agency, organization or association recognized by the Board.
2.3. 'Audit' means the selection of licensees for verification of satisfactory completion of continuing education during a specified time period, or the selection of approved providers for verification of adherence to continuing education approved provider requirements during a specified time period.
2.4. 'Beauty Culture' means the act or practice of aesthetics, barbering, barbering crossover, barber permanent waving, cosmetology, cosmetology crossover and nail care.;
2.5. 'Contact person' means a person submitting a Request for Approval Form.
2.6. 'Continuing education' means planned, organized learning activities engaged in following initial licensure and designed to maintain, improve, or expand beauty knowledge and skills or to develop new knowledge and skills related to beauty culture practice, education, or theory development.
2.7. 'Continuing education activity' means a learning activity that is planned, organized and administered to enhance the professional knowledge and skills underlying the professional performance that the licensee uses to provide services the public. To qualify as continuing education, the activity must provide sufficient depth and scope of a subject area.
2.8. 'Continuing education credit' means credit earned for completing a continuing education activity, expressed in units as provided in section 3.1 of this rule.
2.9. 'Continuing Education Provider License' means a licensed provider of continuing education.
2.10. 'Documentation' means proof of participation in a continuing education activity.
2.11. 'Formal offering' means an extension course, independent study, or other course which is offered, for college credit, by a recognized educational institution.
2.12. 'Informal offering' means a workshop, seminar, institute, conference, lecture, or short term course, which is offered for credit in continuing education units.
2.13. 'Objectives' means an expression in measurable and observable terms of what the participant will learn as a result of the educational activity.
2.14. 'Sponsor' means an organization, including professional societies, academic institutions, individuals, corporations, or governmental agencies, which plans, organizes, supports, endorses, subsidizes and/or administers educational activities, and is responsible for the content, quality and integrity of the educational activity.
§3-11-3. Continuing Education.
3.1. Each applicant for renewal or reinstatement of a license shall verify that he or she has satisfactorily completed four (4) credits of continuing education during the prescribed year reporting period.
3.1.a. Units of measurement for continuing education credits are calculated as follows:
30 to 49 minutes = 0.5 CE credits
50 to 74 minutes = 1 CE credits
75 to 99 minutes = 1.5 CE credits
100 minutes = 2 CE credits
Activities lasting less than 30 minutes are not eligible for credit.
3.1.b. Writing an article which is published in a magazine directly related to the profession will qualify for 4 credits of continuing education within the continuing education reporting period. A copy of the article must be maintained by the licensee for a period of 3 years following the continuing education activity.
3.2. Credits may not be granted for identical continuing education activities submitted during any single year reporting period. Credits may not be accumulated for use in a future single year reporting period.
3.3. Documentation of continuing education credits must be submitted with applications for license renewal.
§3-11-4. Exceptions to Continuing Education Requirements.
4.1. Reciprocity applicants and newly licensed applicants are exempt from the continuing education requirements until the first renewal period after initial West Virginia licensure.
4.2. A licensee who resides outside of West Virginia and who holds a current license to practice in a state other than West Virginia shall satisfy the continuing education requirements for West Virginia in order to renew his or her license in this state.
4.3. The Board may grant a waiver to a licensee who has a physical or mental disability or illness or who is providing direct care to a member of his or her immediate family during all or a portion of the reporting period. A waiver provides for an extension of time or exception from some or all of the continuing education requirements. Any licensee may request an application for a waiver from the Board. The Board may approve or deny an application for waiver after review of the application. The Board may not grant a waiver of continuing education requirements for more than one (1) year reporting period.

§3-11-5. Failure to Meet Requirements or Exceptions to Requirements.

5.1. The Board may place the licensee on inactive status without penalty and may waive the continuing education requirements, providing that the licensee notifies the Board in writing of his or her desire to have the Board place his or her license on inactive status before the last day of the reporting period.
5.2. The Board may suspend the license of any person who fails to notify the Board, in writing, prior to the last day of the reporting period that he or she wishes to place his or her license on the inactive status.

§3-11-6. Reinstatement of a License on Inactive Status or Issuance of a Probational Temporary License.

6.1. A person wishing to reinstate a license from inactive status or from suspended status shall:
6.1.a. Make application for reinstatement of the license from inactive status or suspended status;
6.1.b. Meet the continuing education requirements as set forth in this rule; and
6.1.c. Pay the fee for reinstatement suspended license as specified in the Board's rule, Schedule of fees for services rendered.
§3-11-7. Audit of Licensee.
7.1 The Board may select any licensee who holds a current license to audit for compliance with continuing education requirements no fewer than 60 days prior to the expiration of the license.
7.2. To comply with the audit request from the Board, a licensee shall submit legible copies of certificates of attendance at continuing education activities.
7.3. The licensee shall submit the required documents within thirty (30) days of the date he or she receives notification of the audit. The Board may grant an extension of time for submission of the documents, on an individual basis in cases of hardship, if the licensee makes a written request for an extension of time and provides justification for such the request.
7.4. Licensees shall keep certificates of attendance at continuing education activities, letters verifying special approval for informal offerings from non-approved providers, transcripts of courses, and documentation of compliance with exceptions for a three (3) year period following the continuing education activities.
7.5. The Board shall complete the audit within 30 days of receipt of required documentation and shall notify the licensee of the satisfactory completion of the audit.
7.6. If a person fails to submit the audit information requested by the Board, the Board may not renew the license Board before the information is received and the audit is completed.
7.7. Licensees shall notify the Board of any changes of mailing address, and are not absolved from the audit requirements.
§3-11-8. Minimum Standards for Approved Provider.
8.1. All providers of continuing education shall complete an application, and pay the required fees, and obtain a Continuing Education Provider License, before offering to provide continuing education.
8.2. The Board shall maintain a current list of approved providers which is available to the public upon request.
8.3. The Board shall notify providers who fail to meet the minimum acceptable provider standards, in writing, of specific deficiencies and offer a reasonable period of time to correct deficiencies.
8.4. The Board may remove an approved provider who fails to meet the approved provider standards from the list of approved providers.
8.5. The providers shall provide a certificate to the licensee indicating the following information:
8.5.a. Name of licensee who attended the continuing education class;
8.5.b. The date attended;
8.5.c. The value of continuing education credits; and
8.5.d. Contact information for the continuing education provider.
8.6. The providers shall provide a list to the State Board in a Microsoft Excel format in paper and disc form within 30 days of the continuing education class. The list shall include:
8.6.a. Names of licensees;
8.6.b. License numbers of licensee;
8.6.c. Location of class;
8.6.d. The date held; and
8.6.e. Title of continuing education class or activity.
8.7. The application for a continuing education provider license shall provide detailed descriptions of the subject areas, sponsors, speakers, instructors, training courses, events, demonstrations or shows for which the applicant seeks approval.
§3-11-9. Continuing Education Subjects/Events.
9.1. Continued education offerings shall consist of one or more of the following subject areas or events:
9.1.a. Product information or training;
9.1.b. Events, speakers, or shows by third party administrators held at beauty schools/conventions;
9.1.c. Tax, business, or computer training or courses;
9.1.d. Styling or application demonstrations;
9.1.e. Sanitation courses;
9.1.f. HIV/AIDS awareness and other communicable disease awareness courses;
9.1.g. Training or courses on West Virginia state laws governing the practices licensed by the board; and
9.1.h. Continuing education activities sponsored by the National Cosmetology Association (NCA), National Interstate Council of State Boards of Cosmetology (NIC), National Cosmetology Seminar, Aesthetic International Association, National Association of Barbering and Hairstyling, National Association of Barber Boards of American approved courses, seminars, and demonstrations or any other national association approved by the Board.

§3-11-10. Activities Not Acceptable for Continuing Education Credit.

10.1. The following activities are not acceptable for continuing education credit:
10.1.a. Job related practice;
10.1.b. Development and presentation of programs as part of the licensee's on-going job responsibilities;
10.1.c. Orientation to and update of policies and procedures specific to the licensee's employing facility;
10.1.d. Activities which are part of a licensee's usual job responsibility; and/or
10.1.e. In-house training from a regular employee, manager or owner of the facility."

§64-9-7. Board of Examiners for Speech-Language Pathology and Audiology.

The legislative rule filed in the state register on the seventeenth day of June, two thousand nine, authorized under the authority of section ten, article thirty-two, chapter thirty, of this code, modified by the Board of Examiners for Speech-Language Pathology and Audiology to meet the objections of the legislative rule-making review committee and refiled in the state register on July 23, 2009, relating to the Board of Examiners for Speech- Language Pathology and Audiology (licensure of speech-pathology and audiology, 29 CSR 1), is authorized with the following amendment:
On page 6, subsection 12.2, by striking out the second sentence of the subsection "These continuing education hours may only be credited if they are acquired during the 2-year licensure period, unless the licensee falls under 12.1.a.' and inserting in lieu thereof a new second sentence 'Licensees who exceed the minimum continuing education requirement may carry a maximum of 6 hours forward to the next reporting period only."
§64-9-8. Real Estate Appraiser Licensing and Certification Board.
(a) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section nine, article thirty-eight, chapter thirty, of this code, modified by the Real Estate Appraiser Licensing and Certification Board to meet the objections of the legislative rule-making review committee and refiled in the state register on September 22, 2009, relating to the Real Estate Appraiser Licensing and Certification Board (requirements for licensure and certification, 190 CSR 2), is authorized.
(b)The legislative rule filed in the state register on March 23, 2009, authorized under the authority of section nine, article thirty-eight, chapter thirty, of this code, relating to the Real Estate Appraiser Licensing and Certification Board (renewal of licensure or certification, 190 CSR 3), is authorized.
§64-9-9. Board of Osteopathy.
(a) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section four, article fourteen, chapter thirty, of this code, modified by the Board of Osteopathy to meet the objections of the legislative rule-making review committee and refiled in the state register on October 3, 2009, relating to the Board of Osteopathy (licensing procedures for osteopathic physicians, 24 CSR 1), is authorized.
(b) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section nine-a, article fourteen, chapter thirty, of this code, modified by the Board of Osteopathy to meet the objections of the legislative rule-making review committee and refiled in the state register on November 24, 2009, relating to the Board of Osteopathy (formation and approval of professional limited liability companies, 24 CSR 4), is authorized.
(c) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of section four, article fourteen, chapter thirty, of this code, modified by the Board of Osteopathy to meet the objections of the legislative rule-making review committee and refiled in the state register on October 23, 2009, relating to the Board of Osteopathy (fees for services rendered by the Board, 24 CSR 5), is authorized.
§64-9-10. Secretary of State.
(a) The legislative rule filed in the state register on the July 31, 2009, authorized under the authority of two-a, article three, chapter three, of this code, modified by the Secretary of State to meet the objections of the legislative rule-making review committee and refiled in the state register on November 19, 2009, relating to the Secretary of State (early voting in person satellite precincts, 153 CSR 13), is authorized with the following amendment:
On page 5, section 7.3, after the word, "workers" by inserting a comma and the following words, "of differing political affiliation,".
(b) The legislative rule filed in the state register on July 31, 2009 , authorized under the authority of three, article three-a, chapter three, of this code, modified by the Secretary of State to meet the objections of the legislative rule-making review committee and refiled in the state register on November 5, 2009, relating to the Secretary of State (Vote-by-mail Pilot Project Phase 1: Class IV Early Voting by Mail, 153 CSR 38), is authorized.
(c) The legislative rule filed in the state register on July 31, 2009, authorized under the authority of three, article three-a, chapter three, of this code, modified by the Secretary of State to meet the objections of the legislative rule-making review committee and refiled in the state register on November 5, 2009, relating to the Secretary of State (Vote-by-mail Pilot Project Phase 2: Voting by Mail, 153 CSR 39), is authorized with the following amendments:
On page 2, by inserting a new subdivision designated, 3.1.e. to read as follows:
"3.1.e. A municipality shall submit the required information to the Office of the Secretary of State by November 11, 2010.";
On page 2, subparagraph 3.1.d.6, by striking the word, "pubic" and inserting the word, "public";
On page 3, subdivision 3.2.a, by striking the words, "an ordinance" and inserting the words, "a resolution".
§64-9-11. Board of Occupational Therapy.
(a) The legislative rule filed in the state register on July 7, 2009, authorized under the authority of section seven, article twenty-eight, chapter thirty, of this code, modified by the Board of Occupational Therapy to meet the objections of the legislative rule-making review committee and refiled in the state register on November 24, 2009, relating to the Board of Occupational Therapy (administrative rules of the Board of Occupational Therapy and licensure of occupational therapists and occupational therapy assistants, 13 CSR 1), is authorized with the following amendments:
On page five, subsection 9.1., after the colon, by inserting a new subdivision to read as follows:
9.1.a. Is of good moral character;;
And, by renumbering the remaining subdivisions;
On page twelve, after the words, 'are dependent upon the', by inserting a colon;
On page twelve, by striking subdivisions 12.5.b and 12.5.c their entirety and inserting in lieu thereof new subdivisions 12.5.b and 12.5.c to read as follows:
12.5.b. A licensed supervising occupational therapist or occupational therapy assistant must maintain direct continuous supervision over aides;
12.5.c. A licensed supervising occupational therapist must maintain direct continuous supervision over occupational therapy students. As the occupational therapy student demonstrates competency in performance, supervision can progress to direct close supervision at the discretion of the supervising occupational therapist;;
And,
On page twelve, by inserting two new subdivisions designated 12.5.d and 12.5.e to read as follows:
12.5.d. A licensed supervising occupational therapist or occupational therapy assistant must maintain direct continuous supervision over occupational therapy assistant students. As the occupational therapy assistant student demonstrates competency in performance, supervision can progress to direct close supervision at the discretion of the supervising occupational therapist / occupational therapy assistant;
12.5.e. Direct supervision is demonstrated through co- signatures on all paperwork or electronic notes pertaining to the practice of occupational therapy for the person requiring direct supervision. All paperwork or electronic notes pertaining to the practice of occupational therapy must be signed and dated, electronically or otherwise, by the supervising licensed occupational therapist.
(b) The legislative rule filed in the state register on July 7, 2009, authorized under the authority of section seven, article twenty-eight, chapter thirty, of this code, modified by the Board of Occupational Therapy to meet the objections of the legislative rule-making review committee and refiled in the state register on November 24, 2009, relating to the Board of Occupational Therapy (fees for services rendered by the Board, 13 CSR 3), is authorized with the following amendment:
On page one, subsection 1.2., by striking out "§30-28-6" and inserting "§30-28-7".
(c) The legislative rule filed in the state register on July 7, 2009, authorized under the authority of section seven, article twenty-eight, chapter thirty, of this code, modified by the Board of Occupational Therapy to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-fourth day of November 24, 2009, relating to the Board of Occupational Therapy (continuing education and competence, 13 CSR 4), is authorized with the following amendment:
On page one, subsection 1.2., by striking out "§30-28-6" and inserting in lieu thereof "§30-28-7".
(d) The legislative rule filed in the state register on July 7, 2009, authorized under the authority of section seven, article twenty-eight, chapter thirty, of this code, modified by the Board of Occupational Therapy to meet the objections of the legislative rule-making review committee and refiled in the state register on November 24, 2009, relating to the Board of Occupational Therapy (competency standards for advance practice by occupational therapists and occupational therapy assistants, 13 CSR 5), is authorized with the following amendments:
On page one, subsection 1.2, by striking out "§30-28-6" and inserting in lieu thereof "§30-28-7";
On page two, by striking subdivisions 4.5.a, 4.5.b, 4.5.c, and 4.5.d in their entirety and inserting in lieu thereof new subdivisions 4.5.a, 4.5.b, and 4.5.c to read as follows:
4.5.a. Accredited educational programs;
4.5.b. Specific certification as endorsed by the American Occupational Therapy Association or its successor, or as approved by the WVBOT;
4.5.c. Successful completion of an appropriate continuing education course which includes theory, indications, contra- indications and applications;
And,
On page two, by inserting a new subdivision 4.6.a to read as follows:
4.6.a. The Board shall conduct random audits of occupational therapy assistants to substantiate competency in physical agent modalities.
(e) The legislative rule filed in the state register on July 7, 2009, authorized under the authority of section seven, article twenty-eight, chapter thirty, of this code, modified by the Board of Occupational Therapy to meet the objections of the legislative rule-making review committee and refiled in the state register on November 24, 2009, relating to the Board of Occupational Therapy (ethical standards of practice, 13 CSR 6), is authorized with the following amendment:
On page one, subsection 1.2., by striking out "§30-28-6" and inserting in lieu thereof "§30-28-7".
§64-9-12. Board of Psychologists.
The legislative rule filed in the state register on July 27, 2009, authorized under the authority of section six, article twenty-one, chapter thirty, of this code, modified by the Board of Psychologists to meet the objections of the legislative rule-making review committee and refiled in the state register on January 14, 2010, relating to the Board of Psychologists (qualifications for licensure as a psychologist or a school psychologist, 17 CSR 3), is authorized with the following amendment:
On page 3, section 5.1, after the words "W.Va. Code §30-21- 2.", by adding the following:
"For the purposes of this rule, the supervised professionally oriented teaching, supervising and research activities of applicants who are full-time, university clinical faculty members may apply towards the required hours of supervised work experience."

§64-9-13. Governor's Office of Health Enhancement and Lifestyle Planning.

The legislative rule filed in the state register on October 30,2009, authorized under the authority of section eight, article twenty-nine-H, chapter sixteen, of this code, relating to the Governor's Office of Health Enhancement and Lifestyle Planning (prescription drug advertising expense reporting, 210 CSR 1), is authorized.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4108) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--29.
The nays were: Barnes, Guills, Hall and Sypolt--4.
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. 4108) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--29.
The nays were: Barnes, Guills, Hall and Sypolt--4.
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. 4108) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Bowman, 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. 4144, Relating to the board of veterinary medicine.
And has amended same.
And,
Eng. Com. Sub. for House Bill No. 4186, Relating to the practice of nursing home administration.
And has amended same.
And reports the same back with the recommendation that they each do pass, as amended.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being granted, the bills (Eng. H. B. No. 4144 and Eng. Com. Sub. for H. B. No. 4186) contained in the preceding report from the Committee on Government Organization were each taken up for immediate consideration, read a first time and ordered to second reading.
Senator Helmick, 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. 4164, Creating of a pilot program for the placement of children four to ten years of age in foster care which shall be known as Jacob's Law.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4164) 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.
Senator Kessler, 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. 4277, Authorizing the Secretary of the Department of Environmental Protection to issue National Pollutant Discharge Elimination System permits.
And has amended same.
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on March 10, 2010;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. H. B. No. 4277) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On pages two through thirteen, by striking out all of sections one and seven.
On motion of Senator Kessler, the following amendment to the bill was next reported by the Clerk and adopted:
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §22-11-3 and §22-11-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:.
The bill (Eng. H. B. No. 4277), as amended, was then ordered to third reading.
Senator Kessler, 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 tax tickets and other required notifications concerning property taxes.
And has amended same.
Now on second reading, having been read a first time and rereferred to the Committee on the Judiciary on March 11, 2010;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, 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 and 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 §11A-3-52 and 11A-3-55 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE AND UNAPPROPRIATED LANDS.

§11A-3-52. What purchaser must do before he can secure a deed.
(a) Within forty-five days following the approval of the sale by the auditor pursuant to section fifty-one of this article, the purchaser, his heirs or assigns, in order to secure a deed for the real estate purchased, shall:
(1) Prepare a list of those to be served with notice to redeem and request the deputy commissioner to prepare and serve the notice as provided in sections fifty-four and fifty-five of this article; ~~and~~
(2) When the real property subject to the tax lien was classified as Class II property, provide the deputy commissioner with the actual mailing address of the property that is subject to the tax lien or liens purchased; and,
~~(2)~~ (3) Deposit, or offer to deposit, with the deputy commissioner a sum sufficient to cover the costs of preparing and serving the notice.
(b) ~~For failure to meet these requirements~~ If the purchaser fails to fulfill the requirements set forth in paragraph (a) of this section, the purchaser shall lose all the benefits of his or her purchase.
(c) After the requirements of paragraph (a) of this section have been satisfied, the deputy commissioner may then sell the property in the same manner as he sells lands which have been offered for sale at public auction but which remain unsold after such auction, as provided in section forty-eight of this article.
~~(b)~~ (d) If the person requesting preparation and service of the notice is an assignee of the purchaser, he shall, at the time of the request, file with the deputy commissioner a written assignment to him of the purchaser's rights, executed, acknowledged and certified in the manner required to make a valid deed.
§11A-3-55. Service of notice.
As soon as the deputy commissioner has prepared the notice provided for in section fifty-four of this article, he shall cause it to be served upon all persons named on the list generated by the purchaser pursuant to the provisions of section fifty-two of this article. Such notice shall be mailed and, if necessary, published at least thirty days prior to the first day a deed may be issued following the deputy commissioner's sale.
The notice shall be served upon all such persons residing or found in the state in the manner provided for serving process commencing a civil action or by certified mail, return receipt requested. The notice shall be served on or before the thirtieth day following the request for such notice.
If any person entitled to notice is a nonresident of this state, whose address is known to the purchaser, he shall be served at such address by certified mail, return receipt requested.
If the address of any person entitled to notice, whether a resident or nonresident of this state, is unknown to the purchaser and cannot be discovered by due diligence on the part of the purchaser, the notice shall be served by publication as a Class III-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county in which such real estate is located. If service by publication is necessary, publication shall be commenced when personal service is required as set forth above, and a copy of the notice shall at the same time be sent by certified mail, return receipt requested, to the last known address of the person to be served. The return of service of such notice, and the affidavit of publication, if any, shall be in the manner provided for process generally and shall be filed and preserved by the auditor in his office, together with any return receipts for notices sent by certified mail.
In addition to the other notice requirements set forth in this section, if the real property subject to the tax lien was classified as Class II property at the time of the assessment, at the same time the deputy commissioner issues the required notices by certified mail, the deputy commissioner shall forward a copy of the notice sent to the delinquent taxpayer by first class mail, addressed to "Occupant", to the physical mailing address for the subject property. The physical mailing address for the subject property shall be supplied by the purchaser of the property, pursuant to the provisions of section fifty-two of this article.
The bill (Eng. Com. Sub. for H. B. No. 4486), as amended, was then ordered to third reading.
Senator McCabe, 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. 4541, Authorizing circuit court judges and magistrates to utilize county or municipal jails to detain persons charged with a crime up to ninety-six hours, or, to confine persons convicted of a crime for not more than fourteen days.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 10, 2010;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Brooks F. McCabe, Jr.,
Vice Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4541) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a second time and ordered to third reading.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4582, Creating reciprocity for West Virginia small, women and minority-owned businesses who receive such preferences in other states.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 4582) 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.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Eng. Com. Sub. for House Bill No. 4666, Establishing a grant program for substance abuse prevention.
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,
Roman W. Prezioso, Jr.,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance, with amendments from the Committee on Health and Human Resources pending.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Unger, the name of Senator Unger was removed as a sponsor of Senate Bill No. 274 (Authorizing DEP promulgate legislative rule relating to solid waste management), Senate Bill No. 275 (Authorizing DEP promulgate legislative rule relating to covered electronic devices takeback program), Senate Bill No. 276 (Authorizing DEP promulgate legislative rule relating to hazardous waste management systems), Senate Bill No. 277 (Authorizing DEP promulgate legislative rule relating to National Pollutant Discharge Elimination System Program), Senate Bill No. 279 (Authorizing DEP promulgate legislative rule relating to WV/NPDES rules for coal mining facilities), Senate Bill No. 280 (Authorizing DEP promulgate legislative rule relating to monitoring wells), Senate Bill No. 281 (Authorizing DEP promulgate legislative rule relating to monitoring well design standards), Senate Bill No. 282 (Authorizing Division of Energy promulgate legislative rule relating to community development assessment and real property valuation procedures for Office of Coalfield Community Development), Senate Bill No. 283 (Authorizing Fire Commission promulgate legislative rule relating to State Fire Code), Senate Bill No. 284 (Authorizing Fire Commission promulgate legislative rule relating to State Building Code), Senate Bill No. 285 (Authorizing Hatfield-McCoy Regional Recreation Authority promulgate legislative rule relating to rules for use of facilities), Senate Bill No. 288 (Authorizing DHHR promulgate legislative rule relating to distribution of state aid funds to local boards of health), Senate Bill No. 289 (Authorizing Health Care Authority promulgate legislative rule relating to hospital ambulatory health care facilities), Senate Bill No. 290 (Authorizing DHHR promulgate legislative rule relating to nurse aid abuse registry), Senate Bill No. 292 (Authorizing Commissioner of Highways promulgate legislative rule relating to transportation of hazardous wastes upon roads and highways), Senate Bill No. 293 (Authorizing Insurance Commissioner promulgate legislative rule relating to WV Life and Health Insurance Guaranty Association Act notice requirements), Senate Bill No. 294 (Authorizing Insurance Commissioner promulgate legislative rule relating to mental health parity), Senate Bill No. 295 (Authorizing Insurance Commissioner promulgate legislative rule relating to viatical settlements), Senate Bill No. 296 (Authorizing Insurance Commissioner promulgate legislative rule relating to use of senior-specific certifications and professional designations in sale of life insurance and annuities), Senate Bill No. 297 (Authorizing State Board of Examiners for Licensed Practical Nurses promulgate legislative rule relating to policies and procedures for development and maintenance of educational programs in practical nursing), Senate Bill No. 299 (Authorizing DMV promulgate legislative rule relating to denial, suspension, revocation, restriction or nonrenewal of driving privileges), Senate Bill No. 301 (Authorizing DNR promulgate legislative rule relating to commercial whitewater outfitters), Senate Bill No. 302 (Authorizing DNR promulgate legislative rule relating to deer hunting), Senate Bill No. 303 (Authorizing DNR promulgate legislative rule relating to special fishing), Senate Bill No. 304 (Authorizing Board of Occupational Therapy promulgate legislative rule relating to administrative rules of board and licensure of occupational therapists and occupational therapy assistants), Senate Bill No. 306 (Authorizing Board of Occupational Therapy promulgate legislative rule relating to continuing education and competence), Senate Bill No. 307 (Authorizing Board of Occupational Therapy promulgate legislative rule relating to competency standards for advance practice by occupational therapists and occupational therapy assistants) and Senate Bill No. 308 (Authorizing Board of Occupational Therapy promulgate legislative rule relating to ethical standards of practice).
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules.
On motion of Senator Chafin, the Senate adjourned until tomorrow, Saturday, March 13, 2010, at 11 a.m.
____________

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