sdj-59th day
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTIETH LEGISLATURE
REGULAR SESSION, 2011
FIFTY-NINTH DAY
____________
Charleston, W. Va., Friday, March 11, 2011
The Senate met at 11 a.m.
(Senator Kessler, Acting President, in the Chair.)
Prayer was offered by the Reverend Bob Sizemore, Former Pastor
of Elkview Baptist Church, Elkview, West Virginia.
Pending the reading of the Journal of Thursday, March 11,
2011,
On motion of Senator Snyder, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Eng. Senate Joint Resolution No. 10, Proposing amendment to
Constitution designated Repeal The Two Consecutive Term Limitation
for Sheriffs Amendment.
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. 93, Relating to escape from
custody of Division of Juvenile Services.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect July 1,
2011, of
Eng. Com. Sub. for Senate Bill No. 96, Relating generally to
certain county officials.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 186, Relating to issuing
subpoena to aid in criminal investigations involving certain crimes
against minors.
On motion of Senator Unger, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On pages three through eight, by striking out all of section
two and inserting in lieu thereof a new section two, to read as
follows:
§62-1G-2. Subpoenas for criminal investigations relating to
certain offenses against minors for records concerning an electronic communications system or
service or remote computing service; content; fee
for providing information; and limiting liability.
(a) As used in this section:
(1) (A) "Electronic communication" means any transfer of
signs, signals, writing, images, sounds, data or intelligence of
any nature transmitted, in whole or in part, by a wire, radio,
electromagnetic, photoelectronic or photooptical system.
(B) "Electronic communication" does not include:
(i) Any oral communication;
(ii) Any communication made through a tone-only paging device;
(iii) Any communication from a tracking device; or
(iv) Electronic funds transfer information stored by a
financial institution in a communications system used for the
electronic storage and transfer of funds.
(2) "Electronic communications service" means any service
which provides for users the ability to send or receive wire or
electronic communications.
(3) "Electronic communications system" means any wire, radio,
electromagnetic, photooptical or photoelectronic facilities for the
transmission of wire or electronic communications, and any computer
facilities or related electronic equipment for the electronic
storage of the communication.
(4) (A) "Electronic service provider" means a person or entity engaged in the business of providing computer communications
through which a consumer may obtain access to the internet.
(B) "Electronic service provider" does not include a common
carrier if it provides only telecommunications service.
(5) "Sexual offense against a minor" means:
(A) A violation or attempted violation of section five,
article eight-d, chapter sixty-one of this code;
(B) A sexual offense or attempted sexual offense committed
against a minor in violation of article eight-b, chapter sixty-one
of this code;
(C) The distribution and display or attempted distribution and
display of obscene materials to a minor in violation of section
two, article eight-a, chapter sixty-one of this code;
(D) The use or attempted use of obscene matter with the intent
to seduce a minor in violation of section four, article eight-a,
chapter sixty-one of this code;
(E) The employment or use or the attempted employment or use
of a minor to produce obscene materials in violation of section
five, article eight-a, chapter sixty-one of this code;
(F) The solicitation of a minor by use of a computer in
violation of section fourteen-b, article three-c, chapter sixty-one
of this code; or
(G) The use of a minor in filming sexually explicit conduct in
violation of sections two and three, article eight-c, chapter sixty-one of this code.
(6) "Remote computing service" means the provision to the
public of computer storage or processing services by means of an
electronic communications system.
(b) When a law-enforcement agency is investigating a sexual
offense against a minor, an offense of stalking under section nine-
a, article two, chapter sixty-one of this code when the victim is
a minor or an offense of child kidnapping under section fourteen,
article two, chapter sixty-one of this code, and has reasonable
suspicion that an electronic communications system or service or
remote computing service has been used in the commission of a
sexual offense against a minor as defined in this section, an
offense of stalking when the victim is a minor or an offense of
child kidnapping, a magistrate or a circuit court judge may issue
a subpoena, upon written application on a form approved by the West
Virginia Supreme Court of Appeals, to the electronic communications
system or service or remote computing service provider that owns or
controls the internet protocol address, websites, electronic mail
address or service to a specific telephone number, requiring the
production of the following information, if available, upon
providing in the subpoena the internet protocol address, electronic
mail address, telephone number or other identifier, and the dates
and times the address, telephone number or other identifier
suspected of being used in the commission of the offense:
(1) Names;
(2) Addresses;
(3) Local and long distance telephone connections;
(4) Records of session times and durations;
(5) Length of service, including the start date and types of
service utilized;
(6) Telephone or other instrument subscriber numbers or other
subscriber identifiers, including any temporarily assigned network
address; and
(7) Means and sources of payment for the service, including
any credit card or bank account numbers.
(c) A subpoena issued under this section shall state that the
electronic communications system or service or remote computing
service provider shall produce only those records listed in
subdivisions (1) through (7), inclusive, subsection (b) of this
section, that are reasonably necessary to the investigation of the
suspected criminal activity or offense as described in the
subpoena:
Provided, That the law-enforcement agency may not
examine the contents of electronic communications without a
warrant.
(d) (1) An electronic communications system or service or
remote computing service provider that provides information in
response to a subpoena issued under this section may charge a fee,
not to exceed the actual cost for providing the information.
(2) The law-enforcement agency conducting the investigation
shall pay the fee.
(e) The electronic communications system or service or remote
computing service provider served with or responding to the
subpoena shall not disclose the existence of the subpoena or its
response to the subpoena to the account holder identified in the
subpoena.
(f) If the electronic communications system or service or
remote computing service provider served with the subpoena does not
own or control the internet protocol address, websites or
electronic mail address or provide service for the telephone number
that is a subject of the subpoena, the provider shall:
(1) Notify the investigating law-enforcement agency that it is
not the provider of the service; and
(2) Provide to the investigating law-enforcement agency any
information the provider knows, through reasonable effort, that it
has regarding how to locate the electronic service provider that
does own or control the internet protocol address, websites or
electronic mail address, or provides service for the telephone
number.
(g) There shall be no cause of action against any electronic
communication system or service, remote computing service provider,
electronic service provider or telecommunications carrier or its
officers, employees, agents or other specified persons for providing information, facilities or assistance in accordance with
the terms of the subpoena issued under this section.
(h) Applications for subpoenas authorized by this section may
be transmitted to the appropriate court by any means permitted by
rules promulgated by the West Virginia Supreme Court of Appeals.
(j) The West Virginia Supreme Court of Appeals shall prescribe
a form to be used by law-enforcement agencies applying for a
subpoena authorized by this section.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 186--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §62-1G-1 and §62-1G-2, all relating to issuing
a subpoena in aid of criminal investigations involving certain
crimes against minors; providing legislative declaration of
necessity; providing definitions; authorizing issuance of a
subpoena upon reasonable suspicion that an electronic
communications system or service or remote computing service has
been used in the commission of a criminal offense of a sexual
nature against a minor upon written application therefor by law
enforcement; providing definitions; requiring that certain
information be provided in the subpoena; providing what information
is to be disclosed in response to a subpoena; authorizing a fee for information provided in response to subpoena; providing for
nondisclosure of subpoena or response to subpoena to account
holder; and limiting liability of electronic communication systems
or services, remote computing service providers, electronic service
providers and telecommunications carriers.
On motion of Senator Unger, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 186, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for S. B. No. 186) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 213, Relating to crimes
using computers, telephones and electronic devices.
On motion of Senator Unger, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 3C. WEST VIRGINIA COMPUTER AND ELECTRONIC COMMUNICATIONS
DEVICE CRIME AND ABUSE ACT.
§61-3C-14a. Obscene, anonymous, harassing and threatening
communications by computer, cell phones and
electronic communication devices; penalty.
(a) It is unlawful for any person, with the intent to harass
or abuse another person, to use a computer,
mobile phone, personal
digital assistant or other electronic communication device to:
(1) Make contact with another without disclosing his or her
identity with the intent to harass or abuse;
(2) Make contact with a person after being requested by the
person to desist from contacting them;
(3) Threaten to commit a crime against any person or property; or
(4) Cause obscene material to be delivered or transmitted to
a specific person after being requested to desist from sending such
material.
(b) For purposes of this section:
(1) "Electronic communication device" means and includes a
telephone, wireless phone, computer, pager or any other electronic
or wireless device which is capable of transmitting a document,
image, voice, e-mail or text message using such device in an
electronic, digital or analog form from one person or location so
it may be viewed or received by another person or persons at other
locations.
(2) "Use of a computer, mobile phone, personal digital
assistant or other electronic communication device" includes, but
is not limited to, the transmission of text messages, electronic
mail, photographs, videos, images or other nonvoice data by means
of an electronic communication system, and includes the
transmission of such data, documents, messages and images to
another's computer, e-mail account, mobile phone, personal digital
assistant or other electronic communication device.
(3) "Obscene material" means material that:
(A) An average person, applying contemporary adult community
standards, would find, taken as a whole, appeals to the prurient
interest, is intended to appeal to the prurient interest, or is pandered to a prurient interest;
(B) An average person, applying contemporary adult community
standards, would find, depicts or describes, in a patently
offensive way, sexually explicit conduct consisting of an ultimate
sexual act, normal or perverted, actual or simulated, an excretory
function, masturbation, lewd exhibition of the genitals, or
sadomasochistic sexual abuse; and
(C) A reasonable person would find, taken as a whole, lacks
literary, artistic, political or scientific value.
(b) (c) It is unlawful for any person to knowingly permit a
computer,
mobile phone or personal digital assistant or other
electronic communication device under his or her control to be used
for any purpose prohibited by this section.
(c) (d) Any offense committed under this section may be
determined to have occurred at the place at which the contact
originated or the place at which the contact was received or
intended to be received.
(d) (e) Any person who violates a provision of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $500 or confined in
a county or regional jail
not more than six months, or both
fined and confined. For a second
or subsequent offense, the person is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not more than $1,000 or
confined in
a county or regional jail for not more than one year, or both
fined and confined.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-16. Obscene, anonymous, harassing, repeated and threatening
telephone calls; penalty.
(a) It
shall be is unlawful for any person with intent to
harass or abuse another by means of telephone to:
(1) Make any comment, request, suggestion or proposal which is
obscene; or
(2) Make a telephone call, whether or not conversation ensues,
without disclosing his
or her identity and with intent to harass
any person at the called number; or
(3) Make or cause the telephone of another repeatedly or
continuously to ring, with intent to harass any person at the
called number; or
(4) Make repeated telephone calls, during which conversation
ensues, with intent to harass any person at the called number; or
(5) Threaten to commit a crime against any person or property.
(b) It shall be unlawful for any person to knowingly permit
any telephone under his
or her control to be used for any purpose
prohibited by this section.
(c) Any offense committed under this section may be deemed to
have occurred at the place at which the telephone call was made, or
the place at which the telephone call was received.
(d) Any person who violates any provision of this section
shall be is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than $500, or
imprisoned confined in
the
county jail not more than six months, or both fined and
imprisoned
confined.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 213--A Bill to amend and
reenact §61-3C-14a of the Code of West Virginia, 1931, as amended;
and to amend and reenact §61-8-16 of said code, all relating to
crimes using computers, telephones and electronic communications
devices; creating offenses for the unlawful transmission of
obscene, anonymous, harassing and threatening communications and
data by mobile phone, personal digital assistant or other
electronic communications device; clarifying provisions pertaining
to the unlawful obscene, anonymous, harassing and threatening
communications by traditional voice communication by telephone;
creating a felony offense for certain repeat offenses using a
computer, mobile phone or other electronic communications device;
definitions; and establishing criminal penalties.
On motion of Senator Unger, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 213, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for S. B. No. 213) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 222, Relating to Municipal Police
Officers and Firefighters Retirement System.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 328, Relating to issuance,
disqualification, suspension and revocation of driver's licenses.
On motion of Senator Unger, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 328--A Bill to amend and reenact §17E-1-
3, §17E-1-6, §17E-1-9, §17E-1-10, §17E-1-11, §17E-1-12, §17E-1-13,
§17E-1-17 and §17E-1-20 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto a new section,
designated §17E-1-14a, all relating to the issuance,
disqualification, suspension and revocation of driver's licenses
and privilege to operate a commercial motor vehicle; adding
definitions; creating the offense of operating a commercial motor
vehicle while texting; providing penalties and exceptions;
establishing disqualification penalties for 2nd, 3rd or subsequent
offenses; providing civil penalties for motor carriers who require
or allow a driver to operate a commercial motor vehicle while
texting; providing that a driver is disqualified from operating a
commercial motor vehicle upon conviction for operating a commercial
motor vehicle when texting; clarifying that out-of-service orders
may pertain to a driver, commercial motor vehicle or a motor
carrier operation; providing that the licensed driver accompanying
a driver holding an instruction permit must be alert and unimpaired; adding additional certifications to the application and
the face of a commercial driver's license; providing for additional
requirements related to maintenance and verification of medical
certification status; including the United Mexican States as an
entity that the commissioner is required to provide driving record
information; and prohibiting the division from issuing or renewing
a commercial driver's license to a person who does not possess a
valid medical certification status.
On motion of Senator Unger, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 328, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. S. B. No. 328) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 331, Correcting invalid code reference in
definition of "eligible taxpayer".
On motion of Senator Unger, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-11b. Credit for utility taxpayers with net operating loss
carryovers that existed as of December 31, 2006.
(a)
General. -- There shall be allowed to every eligible
taxpayer a nonrefundable credit against its primary tax liability
imposed under this article for any net operating loss carryovers
that exist as of December 31, 2006.
(b) (1) "Eligible taxpayer" means any person subject to the
business and occupation taxes prescribed by article thirteen of
this chapter and exercising any privilege taxable under section two-o, article thirteen of this chapter.
(2) "Eligible taxpayer" also includes
an affiliated group of
taxpayers if:
(A) For tax years beginning on or before December 31, 2008, an
affiliated group of taxpayers if the group elects to file a
consolidated corporation net income tax return under this article
if one or more affiliates included in the affiliated group would
qualify as an eligible taxpayer under subdivision (1) of this
subsection;
or
(B) For tax years beginning on or after January 1, 2009, any
taxpayer otherwise eligible under this section that is engaged in
a unitary business with one or more other taxpayers and is required
to file a combined report under this article.
(c)
Amount of credit. -- The amount of credit allowed shall be
equal to one-quarter percent of the eligible taxpayer's West
Virginia net operating loss carryovers allowed by subsection (d),
section six of this article that
exist existed as of December 31,
2006.
Effective for tax years beginning on or after January 1,
2009, the credit is an amount equal to the following subtraction:
(1) The product of the amount of net operating loss accrued
before January 1, 2007, that is taken in the current tax year,
multiplied by nine percent, minus
(2) The product of the amount of net operating loss accrued
before January 1, 2007, that is taken in the current tax year multiplied by the tax rate for the current year.
(d)
Application of credit. -- The amount of credit allowed
shall be taken against the tax liabilities of the eligible taxpayer
under this article as shown on its annual return for the
taxable
tax year in which its net operating loss carryovers are utilized,
as provided in subsection (d), section six of this article. Any
credit remaining after application against the eligible taxpayer's
tax liabilities for the current year may be carried forward to
subsequent tax years until
used the fifth taxable year following
the tax year when the remaining current balance of the eligible
taxpayer's West Virginia net operating loss carryovers allowed by
subsection (d), section six of this article that existed as of
December 3l, 2006, decreased by net operating loss used or applied
in each tax year beginning on or after January 1, 2007, is zero.
For purposes of determining the remaining current balance of the
eligible taxpayer's West Virginia net operating loss allowed by
subsection (d), section six of this article that existed as of
December 31, 2006, decreased by net operating loss used or applied
in each tax year beginning on or after January 1, 2007, under this
section, a first in, first out, net operating loss usage
computation shall apply.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 331--A Bill to amend and reenact §11-24-
11b of the Code of West Virginia, 1931, as amended, relating to
creating a permanent method for determining the allowance for
certain utilities of tax credits for the remainder of their net
operating loss carryovers that existed as of December 31, 2006.
On motion of Senator Unger, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. S. B. No. 331) 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, to take effect July 1,
2011, of
Eng. Com. Sub. for Senate Bill No. 356, Making captive
insurance company organized as risk retention group subject to
certain insurance code provisions.
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. 357, Relating to reporting
beaver and river otter taken, tagged and checked.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 371, Updating list of jurisdictions identified as tax havens.
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. 460, Relating to clarifying
supervision of Division of Forestry natural resources police
officers.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect July 1,
2011, of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 492, Relating
to maximizing federal funding for state Medicaid program.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 495, Relating generally to
use of electronic voting systems.
On motion of Senator Unger, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-2. Definitions.
As used in this article, unless otherwise specified:
(1) "Automatic tabulating equipment" means all apparatus
necessary to electronically count votes recorded on ballots and
tabulate the results;
(2) "Ballot" means
a tabulating card an electronic image or
paper on which votes may be recorded by means of perforating or
marking with electronically sensible ink or pencil or a screen upon
which votes may be recorded by means of a stylus or by means of
touch;
(3) "Central counting center" means a facility equipped with
suitable and necessary automatic tabulating equipment, selected by
the county commission, for the electronic counting of votes
recorded on ballots;
(4) "Electronic poll book" means an electronic device
containing the same voter registration information maintained by
the county clerk in a printed poll book.
(5) "Electronic voting system" is a means of conducting an
election whereby votes are recorded on ballots by means of an
electronically sensible marking ink, by perforating or are recorded
on equipment that registers votes on a computer disk, or by
touching a screen with a stylus or by means of touch, and votes are
subsequently counted by automatic tabulating equipment at the
central counting center;
(6) "Program deck" means the actual punch card deck or decks,
or a computer program disk, diskette, tape or other programming
media, containing the program for counting and tabulating the
votes, including the "application program deck";
(7) "Application program deck" means the punch card deck or
equivalent capacity in other program medias as provided, containing
specific options used and necessary to modify the program of
general application, to conduct and tabulate a specific election
according to applicable law;
(8) (6) "Standard validation test deck" means a group of
ballots wherein all voting possibilities which can occur in an
election are represented; and
(9) (7) "Vote-recording device" means equipment in which
ballot labels and ballots are placed to allow a voter to record his
or her vote by
perforating or equipment with electronically
sensible ink, or pencil, or a screen upon which votes may be
recorded by means of a stylus or by means of touch.
§3-4A-3. Procedure for adopting electronic voting systems.
An electronic voting system that has been approved in
accordance with section eight of this article may be adopted for
use in general, primary and special elections in any county by the
following procedure and not otherwise:
By a majority of the members of the county commission voting
to adopt the same at a public meeting
regularly called for that purpose:
Provided, That the meeting be held not less than six
months prior to the next scheduled primary or general election,
with notice
thereof published as a Class II-0 legal advertisement
in compliance with the provisions of article three, chapter
fifty-nine of this code. The publication area for such publication
shall be the county involved.
§3-4A-4. Procedure for terminating use of electronic voting
systems.
The use of an electronic voting system may be terminated:
(1) By a majority of the members of the county commission
voting to terminate use of the system
and replace it with a
different voting system meeting the requirements of the Help
America Vote Act of 2002, 42 U. S. C. §15301, et seq., at a special
public meeting called for the purpose of said termination, with due
notice thereof published as a Class II-0 legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code, and the publication area for such publication shall
be the county involved:
Provided, That such meeting shall be held
not less than six months prior to a general election or six months
prior to a primary election. If at such meeting, such county
commission shall enter an order of its intention to terminate use
of an electronic voting system, it shall thereafter forthwith cause
to be published a certified copy of such order as a Class II-0
legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area
for such publication shall be the county involved. The first
publication of such order shall not be less than twenty days after
the entry of such order. Such county commission shall not
terminate the use of an electronic voting system until ninety days
after the entry of such order of its intention to terminate the
same. Promptly after the expiration of ninety days after the entry
of such order of intention to terminate the use of an electronic
voting system, if no petition has theretofore been filed with such
county commission requesting a referendum on the question of
termination of the electronic voting system as hereinafter
provided, such county commission shall enter a final order
terminating the use of the electronic voting system, and the use of
electronic voting system shall thereby be terminated. If a petition
has been submitted as provided in this subdivision, the county
commission shall not terminate the use of the system but shall
proceed as provided in this subdivision.
If five percent or more of the registered voters of such
county shall sign a petition requesting that the use of an
electronic voting system be terminated in such county and such
petition be filed with the county commission of such county within
ninety days after the entry of such order of intention to terminate
the use of an electronic voting system, such county commission
shall submit to the voters of such county at the next general or primary election, whichever shall first occur, the question:
"Shall the use of an electronic voting system be terminated in
.................. County?" If this question be answered in the
affirmative by a majority of the voters in such election upon the
question, the use of an electronic voting system shall thereby be
terminated. If such question shall not be answered in the
affirmative by such majority, the use of an electronic voting
system shall continue.
(2) By the affirmative vote of a majority of the voters of
such county voting upon the question of termination of the use of
an electronic voting system in such county. If five percent or
more of the registered voters of such county shall sign a petition
requesting the termination of the use of an electronic voting
system in such county, and such petition be filed with the county
commission of such county, such county commission shall submit to
the voters of such county at the next general or primary election,
following by not less than ninety days the date of the filing of
such petition, the question: "Shall the use of an electronic
voting system be terminated in ................ County?" If this
question be answered in the affirmative by a majority of the voters
of such county voting upon the question, the use of an electronic
voting system shall thereby be terminated. If such question shall
not be answered in the affirmative by a majority of the voters of
such county voting upon the question, the use of an electronic voting system shall thereby continue.
§3-4A-6. Acquisition of vote-recording devices by purchase or
lease; acquisition of use of automatic tabulating
equipment; counting centers.
(a) A county commission may acquire vote-recording devices by
any one or any combination of the following methods:
(1) By purchasing the same and paying the purchase price
in
cash from funds available from the maximum general levy or from any
other lawful source; and
(2) By leasing the same under written contract of lease and
paying the rentals
in cash from funds available from the maximum
general levy or any other lawful source.
(b) A county commission may acquire the use of automatic
tabulating equipment by leasing or renting the same under written
contract of lease or rental and paying the rentals therefor
in cash
from funds available from the maximum general levy or other lawful
source.
(c) A county commission may enter into an agreement with
another county commission to share automatic tabulating equipment
if the automatic tabulating equipment may be transported to the
appropriate central counting centers. No ballots may be
transported for counting in any county other than the county in
which the votes were cast.
(d) A county commission is authorized to accept as a gift the use of suitable automatic tabulating equipment.
(e) The county commission may also secure a counting center.
§3-4A-9. Minimum requirements of electronic voting systems.
An electronic voting system of particular make and design may
not be approved by the State Election Commission or be purchased,
leased or used by any county commission unless it meets the
following requirements:
(1) It secures or ensures the voter absolute secrecy in the
act of voting or, at the voter's election, provides for open
voting;
(2) It is constructed to ensure that
no person, except in
instances of open voting as provided in this section,
can see or
know for whom any the contents of a marked ballot may not be seen
or known by anyone other than the voter
who has voted or is voting;
(3) It permits each voter to vote at any election for all
persons and offices for whom and which he or she is lawfully
entitled to vote, whether or not the name of any person appears on
a ballot
or ballot label as a candidate; and it permits each voter
to vote for as many persons for an office as he or she is lawfully
entitled to vote for; and to vote for or against any question upon
which he or she is lawfully entitled to vote. The automatic
tabulating equipment used in electronic voting systems is to reject
choices recorded on any ballot if the number of choices exceeds the
number to which a voter is entitled;
(4) It permits each voter to
deposit, write in
affix upon a
ballot, card, envelope or other medium to be provided for that
purpose, ballots containing the names of persons for whom he or she
desires to vote whose names do not appear upon the ballots;
or
ballot labels;
(5) It permits each voter to change his or her vote for any
candidate and upon any question appearing upon the ballots or
ballot labels up to the time when his or her ballot is deposited in
the ballot box or his or her ballot is cast by electronic means;
(6) It contains
a program deck consisting of cards that are
sequentially numbered or consisting of a computer program disk,
diskette, tape or other programming media containing sequentially
numbered program instructions and coded or otherwise protected from
tampering or substitution of the media or program instructions by
unauthorized persons and capable of tabulating all votes cast in
each election;
(7) It contains two standard validation test decks approved as
to form and testing capabilities by the State Election Commission;
(8) It correctly records and counts accurately all votes cast
for each candidate and for and against each question appearing upon
the ballots;
or ballot labels;
(9) It permits each voter at any election, other than
a
primary
elections by one mark or punch election, to vote a straight
party ticket, as provided in section five, article six of this chapter
, by one mark or punch;
(10) It permits
each a voter in
a primary
elections election
to
: (A) Vote only for the candidates of the party for which
he or
she the voter is legally permitted to vote
; (B) vote for the
candidates, if any, for nonpartisan nominations or election; and
(C) vote on public questions; and precludes
him or her the voter
from voting for any candidate seeking nomination by any other
political party
permits him or her to vote for the candidates, if
any, for nonpartisan nomination or election and permits him or her
to vote on public questions unless that political party has
determined that the voter may participate in its primary election;
(11) It, where applicable, is provided with means for sealing
or electronically securing the vote-recording device to prevent its
use and to prevent tampering with
ballot labels the device, both
before the polls are open or before the operation of the vote-
recording device for an election is begun and immediately after the
polls are closed or after the operation of the vote-recording
device for an election is completed;
(12) It has the capacity to contain the names of candidates
constituting the tickets of at least nine political parties and
accommodates the wording of at least fifteen questions;
(13) (A) Direct recording electronic voting machines must
generate a paper copy of each voter's
votes vote that will be
automatically kept within a storage container, that is locked, closely attached to the direct recording electronic voting machine,
and inaccessible to all but authorized voting officials, who will
handle such storage containers and such paper copies contained
therein in accordance with section nineteen of this article.
(B) The paper copy of the voter's vote shall be generated at
the time the voter is at the voting station using the direct
recording electronic voting machine.
(C) The voter may examine the paper copy visually or through
headphone readout, and may accept or reject the printed copy.
(D) The voter may not touch, handle or manipulate the printed
copy manually in any way.
(E) Once the printed copy of the voter's votes is accepted by
the voter as correctly reflecting the voter's intent, but not
before, it will automatically be stored for recounts or random
checks and the electronic vote will be cast within the computer
mechanism of the direct recording electronic voting machine.
(F) Direct recording electronic voting machines with a
mandatory paper copy shall be approved by the Secretary of State.
The Secretary of State may promulgate rules and emergency rules to
implement or enforce this subsection pursuant to the provisions of
section five, article three, chapter twenty-nine-a of this code.
(14) Where vote-recording devices are used, they shall:
(A) Be durably constructed of material of good quality and in
a workmanlike manner and in a form which makes it safely transportable;
(B) Be constructed with frames for the placing of ballot
labels that the labels upon which are printed the names of
candidates and their respective parties, titles of offices and
wording of questions are reasonably protected from mutilation,
disfigurement or disarrangement or are constructed to ensure that
the screens upon which appear the names of the candidates and their
respective parties, titles of offices and wording of questions are
reasonably protected from any modification;
(C) (B) Bear a number that will identify it or distinguish it
from any other machine;
(D) (C) Be constructed to ensure that a voter may easily learn
the method of operating it and may expeditiously cast his or her
vote for all candidates of his or her choice and upon any public
question;
(E) (D) Be accompanied by a mechanically or electronically
operated instruction model which shows the arrangement of
the
ballot
labels, party columns or rows, and questions;
(F) (15) For electronic voting systems that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch:
(A) Be constructed to provide for the direct electronic
recording and tabulating of votes cast in a system specifically
designed and engineered for the election application;
(G) (B) For electronic voting systems that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, Be constructed to prevent any voter from voting for more
than the allowable number of candidates for any office, to include
an audible or visual signal, or both, warning any voter who
attempts to vote for more than the allowable number of candidates
for any office or who attempts to cast his or her ballot prior to
its completion and are constructed to include a visual or audible
confirmation, or both, to the voter upon completion and casting of
the ballot;
(H) (C) For electronic voting systems that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, Be constructed to present the entire ballot to the voter,
in a series of sequential pages, and to ensure that the voter sees
all of the ballot options on all pages before completing his or her
vote and to allow the voter to review and change all ballot choices
prior to completing and casting his or her ballot;
(I) (D) For electronic voting systems that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, Be constructed to allow election commissioners to spoil
a ballot where a voter fails to properly cast his or her ballot,
has departed the polling place and cannot be recalled by a poll
clerk to complete his or her ballot;
(J) (E) For electronic voting systems that utilize a screen upon which votes may be recorded by means of a stylus or by means
of touch, Be constructed to allow election commissioners, poll
clerks, or both, to designate, mark or otherwise record provisional
ballots;
(K) (F) For electronic voting systems that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, Consist of devices which are independent, nonnetworked
voting systems in which each vote is recorded and retained within
each device's internal nonvolatile electronic memory and contain an
internal security, the absence of which prevents substitution of
any other device;
(L) (G) For electronic voting systems that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, Store each vote in no fewer than three separate,
independent, nonvolatile electronic memory components and that each
device contains comprehensive diagnostics to ensure that failures
do not go undetected;
(M) (H) For electronic voting systems that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, Contain a unique, embedded internal serial number for
auditing purposes for each device used to activate, retain and
record votes;
(N) (I) For electronic voting systems that utilize a screen
upon which votes may be recorded by means of a stylus or by means of touch, Be constructed to record all preelection, election and
post-election activities, including all ballot images and system
anomalies, in each device's internal electronic memory and are to
be accessible in electronic or printed form;
(O) (J) For electronic voting systems that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, Be constructed with a battery backup system in each
device to, at a minimum, prevent the loss of any votes, as well as
all preelection, election and post-election activities, including
all ballot images and system anomalies, stored in the device's
internal electronic memory and to allow voting to continue for two
hours of uninterrupted operation in case of an electrical power
failure; and
(P) (K) For electronic voting systems that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, Be constructed to prevent the loss of any votes, as well
as all preelection, election and post-election activities,
including all ballot images and system anomalies, stored in each
device's internal electronic memory even in case of an electrical
and battery power failure.
§3-4A-9a. Authorization for ballot-marking voting systems; minimum
requirements.
(a) For purposes of this section, "ballot-marking accessible
voting system" means a device which allows voters, including voters with disabilities, to mark an optical scanning or mark-sensing
voting system ballot, privately and independently. The
ballot-marking device is capable of marking voter selections on an
optically readable or mark-sensing ballot which shall be
subsequently read and tallied on state certified optically readable
or mark-sensing ballot tabulating and reporting systems. Counties
are hereby permitted to obtain and employ ballot-marking accessible
voting systems that are approved by the State Election Commission.
(b) The ballot-marking accessible voting device shall be a
completely integrated ballot-marking device that is designed to
allow voters to either view ballot choices through a high
resolution visual display or listen to ballot choices with
headphones and then enter ballot selections directly through
specially designed, integrated accessibility
keys devices.
(c) Ballot-marking accessible voting systems may be used for
the purpose of marking or scanning optically readable or
mark-sensing ballots cast in all general, special and primary
elections and shall meet the following specific requirements:
(1) The ballot-marking accessible voting system, system
firmware and programming software must be certified by an
independent testing authority, according to current federal voting
system standards and be approved by the State Election Commission
prior to entering into any contract.
(2) The ballot-marking accessible voting system shall, additionally:
(A) Alert the voter if the voter has made more ballot
selections than the law allows for an individual office or ballot
issue;
(B) Alert the voter if the voter has made fewer ballot
selections than the law allows for an individual office or ballot
issue;
(C) Allow the voter to independently review all ballot choices
and make any corrections, before the ballot is marked;
(D) Provide the voter with the opportunity to make a write-in
ballot choice, where allowed by state law;
(E) Allow voters with disabilities to mark their ballots, in
complete independence, and in conformity with both federal and
state law concerning mandatory accessibility for disabled persons;
(F) Allow blind or visually impaired voters to vote in
complete privacy;
(G) Provide voters with an opportunity to change ballot
selections, or correct errors, before the ballot is marked for
voting, including the opportunity to correct the error through the
issuance of a replacement ballot if the voter was otherwise unable
to change the ballot or correct the error;
(H) Provide voters with the ability to view all ballot
selections through a high resolution visual display or to have all
ballot selections read to the voter through headphones;
(I) Ensure complete ballot privacy, while employing the
ballot-marking audio system and providing the voter with the option
to turn off the visual ballot display;
(J) Include a completely integrated voter input keypad, using
commonly accepted voter accessibility keys with Braille markings;
(K) Include the ability for a voter to employ a sip/puff
device to enter ballot choices;
(L) Allow the voter to magnify all ballot choices and to
adjust both the volume of the audio feature and the speed of ballot
presentation;
(M) Allow the voter to employ his or her own headset as well
as the headset provided with the ballot-marking device while being
equipped with multiple output connections to accommodate different
headsets;
(N) Have multiple-language capability; and
(O) Allow the voter to verify that:
(i) An optical scan ballot inserted into the device at the
start of voting is blank; and
(ii) The voted optical scan ballot that is produced by the
device is voted as the voter intended.
(d) The Secretary of State is hereby directed to propose rules
and emergency rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
designed to ensure that any system employed by a county under the provisions of this section is publicly tested prior to use in
election.
§3-4A-9b. Authorization for precinct ballot-scanning device;
minimum requirements.
(a) For purposes of this section, "precinct ballot-scanning
device" means a device used by the voter at the precinct on
election day or during early voting for the purpose of scanning the
voter's ballot after the ballot has been voted but prior to
depositing the ballot into the ballot box.
(b) The precinct ballot-scanning device may be used for the
purpose of scanning optically readable ballots cast in all primary,
general and special elections.
(c) The precinct ballot-scanning device, firmware and
programming software must be certified by an independent testing
authority, according to current federal standards and be approved
by the State Election Commission. No election official may enter
into any contract to purchase, rent, lease or otherwise acquire any
precinct ballot-scanning device, firmware or software not approved
by the State Election Commission.
(d) The precinct ballot-scanning device shall additionally:
(1) Alert the voter if the voter has made more ballot
selections than the law allows for an individual office or ballot
issue;
(2) Alert the voter if the voter has made fewer ballot selections than the law allows for an individual office or ballot
issue; and
(3) Allow voters an opportunity to change ballot selections,
or correct errors, including the opportunity to correct the error
through the issuance of a replacement ballot if the voter was
otherwise unable to change the ballot or correct the error.
(e) The precinct ballot-scanning device may be used for
tabulating election results only under the following conditions:
(1) The county has at least one precinct ballot-scanning
device in each precinct;
(2) No
print out or tabulation of results is done at the
precinct;
(3) The "tabulation memory device" may be removed from the
ballot-scanning device only after the polls close and the votes may
only be counted at the central counting center on the night of the
election; and
(4) All voters at the precinct are required to use the ballot
scanning device as a condition of completing their vote.
(f) If the optical scan ballots from each of the precincts
are counted at the central counting center on election night in
accordance with section twenty-seven of this article, and the
results from that count are the results finally published on
election night, then any county meeting each of the requirements in
paragraphs (1) through (4), inclusive, of subsection (e), may turn off the over vote switch on the central counting device since every
ballot will have been evaluated for over votes by the precinct
scanning device.
(g) The Secretary of State is hereby directed to propose
rules and emergency rules for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of this
code in accordance with the provisions of this section.
§3-4A-10. County clerk to be custodian of vote-recording devices,
tabulating equipment and electronic poll books;
duties.
(a) When an electronic voting system is acquired by any county
commission, the vote-recording devices, where applicable, and the
tabulating equipment shall be immediately placed in the custody of
the county clerk and shall remain in his or her custody at all
times except when in use at an election or when in custody of a
court or court officers during contest proceedings. The clerk
shall see that the vote-recording devices and the tabulating
equipment are properly protected and preserved from damage or
unnecessary deterioration and shall not permit any unauthorized
person to tamper with them. The clerk shall also keep the
vote-recording devices and tabulating equipment in repair and
of
preparing prepare the same for voting.
(b) When a county commission elects to acquire and use
electronic poll books in lieu of printed poll books, the clerk of the county commission shall immediately take custody of the
electronic poll books, which shall remain in his or her custody at
all times except when in use at an election or when in the custody
of a court or court officers during contest proceedings. The clerk
shall ensure that the electronic poll books are properly protected
and preserved from damage or unnecessary deteriorations and the
clerk shall not permit any unauthorized person to tamper with the
electronic poll books. The clerk shall also keep the electronic
poll books in good repair and the clerk shall prepare the
electronic poll books for election day.
§3-4A-10a. Proportional distribution of vote-recording devices.
Where vote-recording devices are used, the county commission
of each county shall, upon the close of registration, review the
total number of
active registered voters and the number of
registered voters of each party in each precinct. Prior to each
election, the commission shall determine the number of voting
devices needed to accommodate voters without long delays and shall
assign an appropriate number to each precinct. For the purposes of
the primary election, the commission shall assign the number of
vote-recording devices in each precinct to be prepared for each
party based as nearly as practicable on the proportion of
registered voters of each party to the total:
Provided, That a
minimum of
one vote recording device per party be provided, except
for "independent" voters, which shall be determined under section twenty of this article two vote-recording devices be provided.
§3-4A-13. Inspection of ballots, electronic poll books and
vote-recording devices; duties of county commission,
ballot commissioners and election commissioners;
records relating to ballots and vote-recording
devices; receipt of election materials by ballot
commissioners.
(a) When the clerk of the county commission has completed the
preparation of the ballots and of any electronic poll books and
vote-recording devices as provided in sections eleven-a and
twelve-a of this article and as provided in section twenty-one,
article one of this chapter, and not later than seven days before
the day of the election, he or she shall notify the members of the
county commission and the ballot commissioners that the ballots and
any electronic poll books and devices are ready for use.
(b) The members of the county commission and the ballot
commissioners shall convene at the office of the clerk or at such
other place at which any vote-recording devices or electronic poll
books and the ballots are stored, not later than five days before
the day of the election, and shall inspect the devices, electronic
poll books and the ballots to determine whether the requirements of
this article have been met. Notice of the place and time of the
inspection shall be published, no less than three days in advance,
as a Class I-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. The
publication area is the county involved.
(c) Any candidate and one representative of each political
party on the ballot may be present during the examination. If the
devices and electronic poll books and ballots are found to be in
proper order, the members of the county commission and the ballot
commissioners shall endorse their approval in the book in which the
clerk entered the numbers of the devices opposite the numbers of
the precincts.
(d) The vote-recording devices, the electronic poll books and
the ballots shall then be secured in double lock rooms. The clerk
and the president or president pro tempore of the county commission
shall each have a key. The rooms shall be unlocked only in their
presence and only for the removal of the devices, electronic poll
books and the ballots for transportation to the polls. Upon
removal of the devices, the electronic poll books and the ballots,
the clerk and president or president pro tempore of the county
commission shall certify in writing signed by them that the
devices, the electronic poll books and packages of ballots were
found to be sealed when removed for transportation to the polls.
(e) Vote-recording devices used during the early voting period
may be used on election day if retested in accordance with all the
provisions of this section, including public notice between the
close of early voting and prior to precinct placement for election day. Vote-recording devices
containing a personal electronic
ballot (PEB), a programable memory chip and a printed paper trail
must comply with the applicable requirements of section twenty-six
of this article.
(f) Not later than one day before the election, the election
commissioner of each precinct previously designated by the ballot
commissioners shall attend at the office of the clerk of the county
commission to receive the necessary election records, books and
supplies required by law. The election commissioners shall receive
the per diem mileage rate prescribed by law for this service. The
election commissioners shall give the ballot commissioners a
sequentially numbered written receipt, on a printed form, provided
by the clerk of the county commission, for such records, books and
supplies. The receipt shall be prepared in duplicate. One copy of
the receipt shall remain with the clerk of the county commission
and one copy shall be delivered to the president or president pro
tempore of the county commission.
§3-4A-17. Check of vote-recording devices and electronic poll
books before use; corrections; reserve vote-recording
devices.
(a) In counties utilizing an electronic voting system where
votes are to be recorded by means of perforating or by touching a
screen with a stylus or by means of touch before permitting the
first voter to vote, the election commissioners shall examine the vote-recording devices to ascertain whether the ballot labels are
arranged as specified on the facsimile diagram furnished to the
precinct. If the ballot labels are arranged incorrectly, the
commissioners shall immediately notify the clerk of the county
commission of the foregoing facts in writing, indicating the number
of the device, and obtain from the clerk a reserve vote-recording
device and thereafter proceed to conduct the election.
(b) (a) Any reserve vote-recording device
so used is to be
prepared for use by the clerk or his or her duly appointed deputy
and the reserve vote-recording device is to be prepared, inspected
and sealed and delivered to the polling place wherein the seal is
to be broken and the device opened in the presence of the precinct
election commissioners who shall certify in writing signed by them
to the clerk of the county commission, that the reserve
vote-recording device was found to be sealed upon delivery to the
polling place, that the seal was broken and the device opened in
their presence at the polling place.
The vote-recording device
found to have been with incorrect ballot labels is to be returned
immediately to the custody of the clerk who shall then promptly
cause the vote-recording device to be repaired, prepared and
resealed in order that it may be used as a reserve vote-recording
device if needed.
(c) (b) In counties using electronic poll books, the election
commissioners shall examine the electronic poll books to ascertain whether the poll books are in working order before allowing any
voters to enter the polling location. If the electronic poll books
are not in working order, the election commissioners shall contact
the county clerk who shall immediately authorize a printed poll
book to serve in place of the electronic poll book for that
election. A printed poll book may accompany the electronic poll
book to each precinct.
§3-4A-19. Conducting electronic voting system elections
generally; duties of election officers; penalties.
(a) The election officers shall constantly and diligently
maintain a watch in order to see that no person votes more than
once and to prevent any voter from occupying the voting booth for
more than five minutes.
(b) In primary elections, before a voter is permitted to
occupy the voting booth, the election commissioner representing the
party to which the voter belongs shall direct the voter to the
vote-recording device or supply the voter with a ballot, as may be
appropriate, which will allow the voter to vote only for the
candidates who are seeking nomination on the ticket of the party
with which the voter is affiliated or for unaffiliated voters in
accordance with section thirty-one, article two of this chapter.
(c) The poll clerk shall issue to each voter when he or she
signs the poll book a printed card or ticket numbered to correspond
to the number on the poll book of the voter and in the case of a primary election, indicating the party affiliation of the voter,
which numbered card or ticket is to be presented to the election
commissioner in charge of the voting booth.
(d) One hour before the opening of the polls the precinct
election commissioners shall arrive at the polling place and set up
the voting booths in clear view of the election commissioners.
Where applicable, they shall open the vote-recording devices, place
them in the voting booths, examine them to see that they have the
correct ballots
or ballot labels, where applicable by comparing
them with the sample ballots, and determine whether they are in
proper working order. They shall open and check the ballots, the
electronic poll books, if applicable, supplies, records and forms
and post the sample ballots
or ballot labels and instructions to
voters. Upon ascertaining that all ballots, supplies, electronic
poll books, if applicable, records and forms arrived intact, the
election commissioners shall certify their findings in writing upon
forms provided and collected by the clerk of the county commission
over their signatures to the clerk of the county commission. Any
discrepancies are to be noted and reported immediately to the clerk
of the county commission. The election commissioners shall then
number in sequential order the ballot stub of each ballot in their
possession and report in writing to the clerk of the county
commission the number of ballots received. They shall issue the
ballots in sequential order to each voter.
(e) Upon entering a precinct which is using an electronic poll
book, each voter shall be verified by use of the electronic poll
book to be a registered voter. If the voter is not registered
according to the electronic poll book within that precinct, the
poll clerk is to inform the voter of the proper precinct in which
the voter is registered.
(f) Where applicable, each voter shall be instructed how to
operate the vote-recording device before he or she enters the
voting booth.
(g) Where applicable, any voter who spoils, defaces or
mutilates the ballot delivered to him or her, on returning the
ballot to the poll clerks, shall receive another in its place.
Every person who does not vote any ballot delivered to him or her
shall, before leaving the election room, return the ballot to the
poll clerks. When a spoiled or defaced ballot is returned, the
poll clerks shall make a minute of the fact on the poll books, at
the time, write the word "spoiled" across the face of the ballot
and place it in an envelope for spoiled ballots.
Immediately on closing the polls, the election commissioners
shall ascertain the number of spoiled ballots during the election
and the number of ballots remaining not voted. The election
commissioners shall also ascertain from the poll books the number
of persons who voted and shall report, in writing signed by them to
the clerk of the county commission, any irregularities in the ballot boxes, the number of ballots cast, the number of ballots
spoiled during the election and the number of ballots unused. All
unused ballots are to be returned at the same time to the clerk of
the county commission who shall count them and record the number.
All unused ballots shall be stored with the other election
materials and destroyed at the expiration of twenty-two months.
(h) Each commissioner who is a member of an election board
which fails to account for every ballot delivered to it is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
more than $1,000 or confined in jail for not more than one year, or
both.
(i) The board of ballot commissioners of each county, or the
chair of the board, shall preserve the ballots that are left over
in their hands, after supplying the precincts as provided, until
the close of the polls on the day of election and shall deliver
them to the clerk of the county commission who shall store them
with the other election materials and destroy them at the
expiration of twenty-two months.
(j) Where ballots are used, the voter, after he or she has
marked his or her ballot, shall, before leaving the voting booth,
place the ballot inside the envelope or sleeve provided for this
purpose, with the stub extending outside the envelope, and return
it to an election commissioner who shall remove the stub and
deposit the envelope, if applicable, with the ballot inside in the ballot box. No ballot from which the stub has been detached may be
accepted by the officer in charge of the ballot box, but the ballot
shall be marked "spoiled" and placed with the spoiled ballots. If
an electronic voting system is used that utilizes a screen on which
votes may be recorded by means of a stylus or by means of touch and
the signal warning that a voter has attempted to cast his or her
ballot has failed to do so properly has been activated and the
voter has departed the polling place and cannot be recalled by a
poll clerk to complete his or her ballot while the voter remains
physically present in the polling place, then two election
commissioners of different registered party affiliations, two poll
clerks of different registered party affiliations or an election
commissioner and a poll clerk of different registered party
affiliations shall spoil the ballot.
(k) The precinct election commissioners shall prepare a report
in quadruplicate of the number of voters who have voted and, where
electronic voting systems are used that utilize a screen on which
votes may be recorded by means of a stylus or by means of touch,
the number of ballots that were spoiled, as indicated by the poll
books, and shall place two copies of this report in the ballot box
or where electronic voting systems are used that utilize a screen
upon which votes may be recorded by means of a stylus or by means
of touch, shall place two copies of this report and the electronic
ballot devices in a container provided by the clerk of the county commission, which thereupon is to be sealed with a paper seal
signed by the election commissioners to ensure that no additional
ballots may be deposited or removed from the ballot box. Two
election commissioners of different registered party affiliations
or two special messengers of different registered party
affiliations appointed by the clerk of the county commission, shall
forthwith deliver the ballot box or container to the clerk of the
county commission at the central counting center and receive a
signed numbered receipt therefor. The receipt must carefully set
forth in detail any and all irregularities pertaining to the ballot
boxes or containers and noted by the precinct election officers.
The receipt is to be prepared in duplicate, a copy of which
remains with the clerk of the county commission who shall have any
and all irregularities noted. The time of their departure from the
polling place is to be noted on the two remaining copies of the
report, which are to be immediately mailed to the clerk of the
county commission.
(l) The poll books, register of voters, unused ballots,
spoiled ballots and other records and supplies are to be delivered
to the clerk of the county commission, all in conformity with the
provisions of this section.
§3-4A-20. Nonaffiliated voters in primary elections.
If at any primary elections, nonpartisan candidates for office
and public questions are submitted to the voters on which persons registered as "independent" are entitled to vote, as provided in
section eighteen article two of this chapter, the Unless a voter,
not affiliated with a party, is permitted to participate in the
primary election of a political party, the following provisions
apply to voters, not affiliated with a party, in primary elections
that include non-partisan candidates or public questions:
(1) Election officers shall provide a vote-recording device,
where applicable, or the appropriate ballot to be marked by an
electronically sensible pen or ink, or by means of a stylus or by
means of touch
or by other electronic means, so that
independent
voters
not affiliated with a party may vote only those portions of
the ballot relating to the nonpartisan candidates and the public
questions submitted, or shall provide a ballot containing only
provisions for voting for those candidates and upon those issues
submitted common to the ballots provided to all voters regardless
of political party affiliation, or both.
(2) In counties utilizing electronic voting systems in which
votes are recorded by perforating, if vote-recording devices are
not available for the
independent voters
not affiliated with a
party, provisions are to be made for sealing the partisan section
or sections of the ballot or ballot labels on a vote-recording
device using temporary seals, thus permitting the
independent voter
not affiliated with a party to vote for the nonpartisan section or
sections of the ballot or ballot labels.
(3) After
the independent a voter
not affiliated with a party
has voted,
the temporary seals may be removed and the device may
then be used by partisan voters.
§3-4A-27. Proceedings at the central counting center.
(a) All proceedings at the central counting center are to be
under the supervision of the clerk of the county commission and are
to be conducted under circumstances which allow observation from a
designated area by all persons entitled to be present. The
proceedings shall take place in a room of sufficient size and
satisfactory arrangement to permit observation. Those persons
entitled to be present include all candidates whose names appear on
the ballots being counted or if a candidate is absent, a
representative of the candidate who presents a written
authorization signed by the candidate for the purpose and two
representatives of each political party on the ballot who are
chosen by the county executive committee chairperson. A reasonable
number of the general public is also freely admitted to the room.
In the event all members of the general public desiring admission
to the room cannot be admitted at one time, the county commission
shall provide for a periodic and convenient rotation of admission
to the room for observation, to the end that each member of the
general public desiring admission, during the proceedings at the
central counting center, is to be granted admission for reasonable
periods of time for observation:
Provided, That no person except those authorized for the purpose may touch any ballot or ballot
card or other official records and papers utilized in the election
during observation.
(b) All persons who are engaged in processing and counting the
ballots are to work in teams consisting of two persons of opposite
political parties, and are to be deputized in writing and take an
oath that they will faithfully perform their assigned duties.
These deputies are to be issued an official badge or identification
card which is assigned an identity control number and the deputies
are to prominently wear on his or her outer garments the issued
badge or identification card. Upon completion of the deputies'
duties, the badges or identification cards are to be returned to
the county clerk.
(c) Ballots are to be handled and tabulated and the write-in
votes tallied according to procedures established by the Secretary
of State, subject to the following requirements:
(1) In systems using punch card ballots, the ballot cards and
secrecy envelopes for a precinct are to be removed from the box and
examined for write-in votes before being separated and stacked for
delivery to the tabulator. Immediately after valid write-in votes
are tallied, the ballot cards are to be delivered to the tabulator.
No write-in vote may be counted for an office unless the voter has
entered the name of that office and the name of an official
write-in candidate for that office on the inside of the secrecy envelope, either by writing, affixing a sticker or label or placing
an ink-stamped impression thereon;
(2) (1) In systems using ballots marked with electronically
sensible ink, ballots are to be removed from the boxes and stacked
for the tabulator which separates ballots containing marks for a
write-in position. Immediately after tabulation, the valid
write-in votes are to be tallied. No write-in vote may be counted
for an office unless the voter has entered the name of an official
write-in candidate for that office on the line provided, either by
writing, affixing a sticker or placing an ink-stamped impression
thereon;
(3) (2) In systems using ballots in which votes are recorded
upon screens with a stylus or by means of touch, the personalized
electronic ballots are to be removed from the containers and
stacked for the tabulator. Systems using ballots in which votes
are recorded upon screens with a stylus or by means of touch are to
tally write-in ballots simultaneously with the other ballots;
(4) (3) When more than one person is to be elected to an
office and the voter desires to cast write-in votes for more than
one official write-in candidate for that office, a single punch or
mark, as appropriate for the voting system, in the write-in
location for that office is sufficient for all write-in choices.
When there are multiple write-in votes for the same office and the
combination of choices for candidates on the ballot and write-in choices for the same office exceed the number of candidates to be
elected, the ballot is to be duplicated or hand counted, with all
votes for that office rejected;
(5) (4) Write-in votes for nomination for any office and
write-in votes for any person other than an official write-in
candidate are to be disregarded;
(6) (5) When a voter casts a straight ticket vote and also
punches or marks the location for a write-in vote for an office,
the straight ticket vote for that office is to be rejected, whether
or not a vote can be counted for a write-in candidate; and
(7) (6) Official write-in candidates are those who have filed
a write-in candidate's certificate of announcement and have been
certified according to the provisions of section four-a, article
six of this chapter.
(d) If any ballot card is damaged or defective so that it
cannot properly be counted by the automatic tabulating equipment,
a true duplicate copy is to be made of the damaged ballot card in
the presence of representatives of each political party on the
ballot and substituted for the damaged ballot card. All duplicate
ballot cards are to be clearly labeled "duplicate" and are to bear
a serial number which is recorded on the damaged or defective
ballot card and on the replacement ballot card.
(e) The returns printed by the automatic tabulating equipment
at the central counting center, to which have been added write-in and other valid votes, are, when certified by the clerk of the
county commission, to constitute the official preliminary returns
of each precinct or election district. Further, all the returns
are to be printed on a precinct basis. Periodically throughout and
upon completion of the count, the returns are to be open to the
public by posting the returns as have been tabulated precinct by
precinct at the central counting center. Upon completion of the
canvass, the returns are to be posted in the same manner.
(f) If for any reason it becomes impracticable to count all or
a part of the ballots with tabulating equipment, the county
commission may direct that they be counted manually, following as
far as practicable the provisions governing the counting of paper
ballots.
(g) As soon as possible after the completion of the count, the
clerk of the county commission shall have the vote-recording
devices properly boxed or securely covered and removed to a proper
and secure place of storage.
On motion of Senator Unger, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 495, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for S. B. No. 495) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for S. B. No. 495) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 544, Relating to municipal
policemen's and firemen's pension and relief funds.
On motion of Senator Unger, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
The Committee on Finance moved to amend the bill on pages
twenty through twenty-seven, by striking out all of section
fourteen-d;
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §8-22-16 and §8-22-20 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that §8-22A-28 of said
code be amended and reenacted, all to read as follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 544-A Bill to amend and
reenact §8-22-16 and §8-22-20 of the Code of West Virginia, 1931,
as amended; and to amend and reenact §8-22A-28 of said code, all
relating to municipal policemen's and firemen's pension and relief funds and Municipal Police Officers and Fire Fighters Retirement
System; providing additional method for municipalities to finance
policemen's and firemen's pension and relief funds; authorizing
Municipal Pensions Oversight Board to contract for actuarial
services without certain statutory restrictions; requiring certain
information in certain actuarial reports; and extending time to
submit plan to extend Social Security benefits to certain
individuals.
On motion of Senator Unger, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 544, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for S. B. No. 544) passed with its House of
Delegates amended title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for S. B. No. 544) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 592, Requiring schools have
crisis response plans.
On motion of Senator Unger, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §18-9F-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 §18-9F-9; and that §18-28-2 of
said code be amended and reenacted, all to read as follows:
ARTICLE 9F. SCHOOL ACCESS SAFETY AND CRISIS RESPONSE ACT.
§18-9F-1. Legislative findings and intent.
(a) The Legislature finds that:
(1) Establishing and maintaining safe and secure schools is
critical to fostering a healthy learning environment and maximizing
student achievement;
(2) All school facilities in the state should be designed,
constructed, furnished and maintained in a manner that enhances a
healthy learning environment and provides necessary safeguards for
the health, safety and security of persons who enter and use the
facilities;
(3) Adequate safeguards for the ingress to and egress from
school facilities of pupils, school employees, parents, visitors
and emergency personnel are critical to the overall safety of the
public schools in this state;
(4) Safety upgrades to the means of ingress to and egress from
school facilities for pupils, school employees, parents, visitors
and emergency personnel must be part of a comprehensive analysis of overall school safety issues that takes into consideration the
input of local law-enforcement agencies, local emergency services
agencies, community leaders, parents, pupils, teachers,
administrators and other school employees interested in the
prevention of school crime and violence;
(5) In order to help ensure safety in all schools within the
state and to be prepared to adequately respond to potential crises,
including any traumatic event or emergency condition that creates
distress, hardship, fear or grief, each school must have an up-to-
date comprehensive crisis response plan as detailed in section nine
of this article.
(b) It is the intent of the Legislature to empower the School
Building Authority to facilitate and provide state funds for the
design, construction, renovation, repair and upgrading of
facilities so as to enhance school access safety and provide secure
ingress to and egress from school facilities to pupils, school
employees, parents, visitors and emergency personnel.
§18-9F-9. Crisis Response Plan.
(a) The state board in conjunction with the Division of
Homeland Security and Emergency Management shall promulgate by
December 31, 2011, a legislative rule in accordance with article
three-b, chapter twenty-nine-a of this code, and if necessary may
promulgate an emergency rule in accordance with said article, for
the establishment of an up-to-date, school specific crisis response plan at every school in the state. In developing the rule, the
state board shall consider plans currently being developed as part
of the safe schools initiative currently underway by the School
Building Authority and the Division of Homeland Security and
Emergency Management. In addition, those portions of a school's
access safety plan created pursuant to section three of this
article may be used as a portion of the school's school specific
crisis response plan if there are any overlapping requirements.
The rule shall provide for at least the following:
(1) A model school crisis response plan for use by each school
in the state, including a uniform template which shall be used by
each school to file the plan, including at least the following
information, in a secure electronic system identified by the
Division of Homeland Security and Emergency Management:
(A) The school employee in charge during a crisis and a
designated substitute;
(B) A communication plan to be used during a crisis;
(C) Protocols for responding to immediate physical harm of
students, faculty or staff and to traumatic events, including the
period after the events have concluded;
(D) Disaster and emergency procedures to respond to
earthquakes, fire, flood, other natural disasters, explosions or
other events or conditions in which death or serious injury is
likely;
(E) Crisis procedures for safe entrance to and exit from the
school by students, parents and employees, including an evacuation
and lock down plan; and
(F) Policies and procedures for enforcing school discipline
and maintaining a safe and orderly environment during the crisis.
(2) A requirement that each school's school specific crisis
response plan shall be in place and filed with that school's county
board, and included in a secure electronic system identified by the
Division of Homeland Security and Emergency Management, no later
than August 1, 2013, or soon after completion by the school,
whichever occurs first;
(3) The necessary safeguards to protect information contained
in each school specific crisis response plan that may be considered
protected critical infrastructure information, law enforcement
sensitive information or for official use only. These safeguards
must have the approval the Division of Homeland Security and
Emergency Management. County boards shall provide the same
necessary safeguards for the information in the plan;
(4) The annual review and necessary update of the model plan
and uniform template by state board in conjunction with the
Division of Homeland Security and Emergency Management by December
31 of each year after 2011;
(5) The development by each school of a school specific crisis
response plan by using the state board's model plan as an example and with consultation from local social services agencies, local
first response agencies including police, fire, emergency medical
services (EMS), emergency management and any other local entities
that the school's crisis response planning team determines should
be consulted;
(6) Procedures for the annual review and update if necessary
by each school of its school specific crisis response planning
plan. Each school shall file either an updated crisis response
plan or a memorandum stating that no update to the crisis response
plan was necessary with its county board and the Division of
Homeland Security and Emergency Management no later than August 1
of each year after 2013.
(7) Procedures for each school within the state to form a
crisis response planning team, which team may consist of the
school's Local School Improvement Council or a separate team
consisting of the principal, two teachers, one service person and
two parents of children attending the school. In addition the
school may include on the team one member of the county board, a
school counselor, a member from local law-enforcement authorities,
the local county emergency services director and one student in
grade ten or higher if the school has those grades;
(8) Procedures for informing and training school personnel on
any actions required of them to effectuate the school's school
specific crisis response plan;
(9) A model template for redacted copies of the school crisis
response plan for the public inspection and for the release and
notice to parents of information related to the plan; and
(10) Procedures for nonpublic schools to establish, file and
update school crisis response plans consistent with subdivision
(1), subsection (a) of this section.
(b) The county board shall keep the current crisis response
plan of each school in the county on file and, unless otherwise
provided for, provide a copy of each school's crisis response plan
to each local emergency response agency that has a role in the
plan. Local emergency response agencies that maintain a copy of
the plan shall provide the necessary safeguards for the information
in the plan established pursuant to the state board rule
promulgated pursuant to subsection (a) of this section. Upon
request, a redacted copy of a school crisis response plan shall be
made available for inspection by the public with any information
removed that is necessary for compliance with the necessary
safeguards. Starting with the 2012-2013 school year, each school
shall annually send notice home to all parents and guardians of
students at the school alerting the parents and guardians to the
existence of the crisis response plan and the ability to review a
redacted copy at the offices of the county board.
ARTICLE 28. PRIVATE, PAROCHIAL OR CHURCH SCHOOLS OR SCHOOLS OF A
RELIGIOUS ORDER.
§18-28-2. Attendance; health and safety regulations.
The following is applicable to each private, parochial or
church
school schools or
school schools of a religious order:
(a) Each school shall observe a minimum instructional term of
one hundred eighty days with an average of five hours of
instruction per day;
and
(b) Each school shall make and maintain annual attendance and
disease immunization records for each pupil enrolled and regularly
attending classes.
Such The attendance records shall be made
available to the parents or legal guardians;
(c) Upon the request of the county superintendent,
of schools
any a school
to which this applies (or a parents organization
composed of the parents or guardians of children enrolled in
said
the school) shall furnish to the county board
of education a list
of the names and addresses of all children enrolled in
such the
school between the ages of seven and sixteen years;
(d) Attendance by a child at any school
to which this article
relates and which complies with this article
shall satisfy
satisfies the requirements of compulsory school attendance;
(e) Each
such school
shall be is subject to reasonable fire,
health and safety inspections by state, county and municipal
authorities as required by law, and
shall further be is required to
comply with the West Virginia school bus safety regulations;
and
(f) Each school shall establish, file and update a school specific crisis response plan which complies with the requirements
established for it by the state board and the Division of Homeland
Security and Emergency Management pursuant to section nine, article
nine-f of this chapter.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 592--A Bill to amend and
reenact §18-9F-1 of the Code of West Virginia, 1931, as amended; to
amend said code by adding thereto a new section, designated §18-9F-
9; and to amend and reenact §18-28-2 of said code, all relating to
requiring crisis response plans for all schools; updating
legislative findings and intent; requiring the state board in
conjunction with the Division of Homeland Security and Emergency
Management promulgate legislative rule by certain date for school
specific crisis response plan establishment, minimum content,
safeguards, updating, filing, informing and training school
personnel, release of information to public; procedures for non
public schools; authorizing emergency rule; considerations in
developing rule; minimum contents of rule; requiring plan filing
with county boards and certain disposition including public
inspection of redacted copies and notice to parents; and requiring
private, parochial and religious schools to establish, file and
update school specific crisis response plan that complies with certain rule requirements.
On motion of Senator Unger, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 592, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for S. B. No. 592) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 612, Exempting certain schools and school districts from certain statutory provisions.
On motion of Senator Unger, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
By striking out the title of the bill and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 612--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §18-5A-3a; and to amend and reenact §18-5B-10 of said
code, all relating to exempting certain schools and school
districts from certain statutory provisions pursuant to certain
statutory approval and recommendation processes.
On motion of Senator Unger, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 612, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. S. B. No. 612) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 10, Designating March 30
annually "West Virginia Vietnam Veterans Recognition Day".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 11, Authorizing placement of
statue of Honorable Francis Harrison Pierpont in Independence Hall
in Wheeling.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 16, Requesting DOH name WV
54, from intersection with CR 54/4 to intersection with WV 16,
"C.C. 'Sonnie' Phillips Bypass".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 20, Requesting DOH name bridge at I-64, Exit 11, near 16th Street and Hal Greer Boulevard,
"Jeffrey P. Ball Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 21, Requesting DOH name
bridge on I-79, spanning WV 114, "Hodges Brothers Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 24, Requesting DOH name
bridge in Monongalia County "Joseph C. Bartolo Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 28, Requesting DOH name
intersection of Stoney Ridge and King Coal Highway in Mercer County
"Christine West Interchange".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 29, Requesting DOH name King
Coal Highway Interchange, at intersection of U. S. Route 52 and U.
S. Route 460 in Mercer County "The K. A. Ammar, Jr. Interchange".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 32, Requesting DOH name
bridge on U. S. Route 60 in Gauley Bridge "Sgt. Scott Angel Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 37, Urging WV Delegation to
Congress oppose any action by Congress or President to reduce
funding for Community Service Block Grants.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 39, Requesting DOH name WV 20
between Cowen and Webster and Nicholas County lines "Chief Samuel
'Ed' Plummer Memorial Highway".
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. 2479, Relating to dental
anesthesia.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 2532, Zipline Responsibility
Act.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Fleischauer, Frazier and Hamilton.
A message from The Clerk of the House of Delegates announced
that that body refuses to agree to the appointment of a committee
of conference and insists upon its position as to the amendments of
the Senate and requests the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2555, Establishing the
offense of operating a motor vehicle while sending, reading or
receiving a text message.
On motion of Senator Unger, the Senate further insisted and
refused to recede from its amendments to the bill and requested the
appointment of a committee of conference of three from each house
on the disagreeing votes of the two houses.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2818, Increasing the
allowable expense that may be paid for the clean-up of real
property damage by a meth lab.
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. 3145, Providing a one-time bonus to certain annuitants of the Public Employees Retirement
System and the State Teachers Retirement System.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
adoption as amended, of
House Concurrent Resolution No. 32, The "Ensign Melvin G.
Livesay Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 45--Requesting the Joint
Committee on Government and Finance to conduct a study on the
educational and communication barriers facing children in West
Virginia who are deaf or hard of hearing and their families, and on
the adequacy and enforcement of current laws that address these
barriers.
Referred to the Committee on Health and Human Resources; and
then to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 54--Requesting the Joint
Committee on the Judiciary to study the feasibility and potential
effectiveness of justice reinvestment strategies as a mechanism to better direct our expenditures in criminal justice to help prevent
crimes, not merely to punish them.
Referred to the Committee on the Judiciary; and then to the
Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 66--Requesting the Joint
Committee on Government and Finance to conduct a study regarding
the various learning disabilities that affect many students in West
Virginia; the barriers faced, services provided, accommodations
furnished, and specially designed instruction delivered to meet
such students' unique needs; and the level of awareness regarding
available services, accommodations and specialized instruction that
exists among parents of students with learning disabilities.
Referred to the Committee on Education; and then to the
Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 80--Requesting the Joint
Committee on Government and Finance study requiring the
Consolidated Public Retirement Board to deduct from monthly
benefits to retirees sums to pay retiree association dues.
Referred to the Committee on Pensions; and then to the
Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 81--Requesting County Route
26, beginning from the intersection with State Route 15 then
proceeding through 26/1 to the Randolph County line, be named the
"Eli 'Rimfire' Hamrick Trail".
Referred to the Committee on Transportation and
Infrastructure.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 94--Supporting the "Honor and
Remember" Flag as an official emblem of the service and sacrifice
by the brave men and women of the United States Armed Forces who
have given their lives in the line of duty.
Referred to the Committee on Military.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 97--Requesting that the Joint
Committee on Government and Finance authorize a broad study of budgeting, including budget formats, approaches, processes,
procedures and controls; administration of fiscal notes; revenue
estimating; performance accountability and incentives; mechanisms
for proposing a legislative budget; and additional resources for
budget analysis, research and oversight.
Referred to the Committee on Finance; and then to the
Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 98--Recognizing the Mighty
Wurlitzer Pipe Organ in the Keith-Albee Theatre as the Official
Theatre Pipe Organ in the State.
Referred to the Committee on Government Organization.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 100--Requesting the Joint
Committee on Government and Finance to study the need for
legislation to clarify the law relating to the right of disposition
of a deceased person's remains.
Referred to the Committee on the Judiciary; and then to the
Committee on Rules.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 115--The West Virginia
Legislature supports raising the pay of state mine inspectors to
federal levels to keep those highly qualified and skilled
inspectors working in the State of West Virginia.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 116--Requesting the Division
of Highways that bridge number 51-20-7.19 on Route 20 near Glade
View in Webster County be named the "Honorary and Memorial
Firefighters Bridge".
Referred to the Committee on Transportation and
Infrastructure.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 118--Requesting the Joint
Committee on Government and Finance to conduct a feasibility study
for a proposed multi-county ATV trail system in Central West
Virginia.
Referred to the Committee on Natural Resources; and then to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 120--Requesting the Joint
Committee on Government and Finance study the effect of
transferring supervisory and jurisdictional responsibilities of all
or part of Coopers Rock State Forest from the Division of Forestry
to the Division of Natural Resources and prohibiting the sale of
timber in all or part of Coopers Rock State Forest.
Referred to the Committee on Natural Resources; and then to
the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 127--Requesting that bridge
number 50-52-27.66 on Route 52 near the intersection of Routes 52
and 37 in Fort Gay, Wayne County, West Virginia be named the "Staff
Sergeant Chester Arthur Winchell Memorial Bridge".
Referred to the Committee on Transportation and
Infrastructure.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 137--Requesting the Division
of Highways to erect free-standing signs on Interstate 64, within
four miles of exit 169 to Lewisburg, in both west and east bound
directions of Interstate 64, in Greenbrier County, stating
"Lewisburg, Coolest Small Town U.S.A., 2011" and to place similar
smaller signs on each road sign on U.S. Route 60 and U.S. Route
219, that designates the city limits of Lewisburg.
Referred to the Committee on Transportation and
Infrastructure.
The Senate proceeded to the fourth order of business.
Senator Kessler (Acting President), from the Committee on
Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 36, Requesting Joint
Committee on Government and Finance study educational and
communication barriers facing children deaf or hard of hearing.
Senate Concurrent Resolution No. 42, Requesting Joint
Committee on Government and Finance study opportunities to adopt
model legislation and/or COMPAC to facilitate sharing of
prescription data with other states.
Senate Concurrent Resolution No. 46, Requesting Joint
Committee on Government and Finance study procurement of services
and goods by agencies and departments.
Senate Concurrent Resolution No. 59, Requesting Joint Committee on Government and Finance study whether state should
increase funding to Matching Advertising Partnership Program.
Senate Concurrent Resolution No. 61, Requesting Joint
Committee on Government and Finance study methods for assessing
state's narrative water quality standards.
Senate Concurrent Resolution No. 64, Requesting Joint
Committee on Government and Finance study legislation encouraging
development of small businesses.
Senate Concurrent Resolution No. 65, Requesting study on
creation of Fiscal and Policy Division under Joint Committee on
Government and Finance.
Senate Concurrent Resolution No. 66, Requesting Joint
Committee on Government and Finance study implementation of
procedures by DEP relating to environmental sampling.
And,
Senate Concurrent Resolution No. 72, Requesting Joint
Committee on Government and Finance study funding of fairs and
festivals.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair ex officio.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Senate Concurrent Resolution No. 63, Requesting DOH name
bridge in Mingo County "Reverend Arnold and Nell Mollette Memorial
Bridge".
House Concurrent Resolution No. 113, The "PFC Darrell Lee
Cabell Memorial Highway".
And,
House Concurrent Resolution No. 117, The Larry K. Conley
Memorial Bridge".
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Robert D. Beach,
Chair.
At the request of Senator Beach, unanimous consent being
granted, Senate Concurrent Resolution No. 63 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
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.
At the request of Senator Beach, and by unanimous consent,
House Concurrent Resolution No. 113 contained in the preceding
report from the Committee on Transportation and Infrastructure was
taken up for immediate consideration.
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.
At the request of Senator Beach, and by unanimous consent,
House Concurrent Resolution No. 117 contained in the preceding
report from the Committee on Transportation and Infrastructure was
taken up for immediate consideration.
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.
Senator Prezioso, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2096, Relating to arts,
entertainment and enterprise districts.
With amendments from the Committee on Government Organization
pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 9, 2011;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on Finance.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Prezioso, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2958, Allowing the West
Virginia Racing Commission to use certain permit and registration
fees to pay salaries and other budgeted expenses.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2958) 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 Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2959, Providing additional
funds to the West Virginia Racing Commission.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 4, 2011;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2959) 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.
The Senate proceeded to the sixth order of business.
Senators Hall, Minard, McCabe and Browning offered the
following resolution:
Senate Concurrent Resolution No. 73--Urging the United States
Environmental Protection Agency to interpret the West Virginia
Water Pollution Act in a manner that will faithfully balance the
protection of the environment with the need to maintain and expand
opportunities for employment, agriculture and industry as set forth in the Legislature's statement of public policy as contained in the
West Virginia Water Pollution Control Act.
Whereas, In enacting the Federal Water Pollution Control Act
Congress declared that "it is the policy of Congress to recognize,
preserve and protect the primary responsibilities and rights of
states to prevent, reduce and eliminate pollution, to plan the
development and use of land and water resources"; and
Whereas, As an exercise of its sovereign and primary right to
plan the development and use of its lands and water resources the
West Virginia Legislature previously enacted Chapter 22 ,Article 11
of the 1931 Code of West Virginia as amended, the West Virginia
Water Pollution Control Act, and in that enactment declared it to
be "the public policy of the State of West Virginia to maintain
reasonable standards of purity and quality of the water of the
state consistent with: (1) Public health and enjoyment thereof; (2)
the propagation and protection of animal, bird, fish, aquatic and
plant life; and (3) the expansion of employment opportunities,
maintenance and expansion of agriculture and the provision of a
permanent foundation for healthy industrial development"; and
Whereas, The State of West Virginia has developed and
implemented environmental protection performance and permitting
standards to adequately protect the waters of the state consistent
with this statement of public policy; and
Whereas, Such standards have been promulgated by the West Virginia Department of Environmental Protection and the Legislature
and submitted to and approved by the United States Environmental
Protection Agency pursuant to the federal Clean Water Act; and
Whereas, These environmental protections and permitting
measures include narrative water quality standards codified at 47
CSR 2-3; and
Whereas, West Virginia's narrative standards must be
implemented and interpreted in a manner that is protective of
aquatic communities consistent with the Legislature's statement of
public policy and applicable laws; and
Whereas, The State of West Virginia has not adopted
subcategories of special use to protect a certain species of mayfly
but protects the aquatic community consistent with the
Legislature's statement of public policy; and
Whereas, West Virginia's economic stability relies on the
accurate implementation of applicable laws as enacted by the
Legislature; and
Whereas, The current method in which the United States
Environmental Protection Agency is interpreting the West Virginia
Water Pollution Control Act is hindering economic development
within the state which directly affects the employment
opportunities available to all West Virginians; and
Whereas, The West Virginia Legislature would not enact
legislation that would have a detrimental effect on the industrial progression of the state and cause or contribute to environmental
degradation; therefore, be it
Resolved by the Legislature of West Virginia:
That the United States Environmental Protection Agency is
urged to interpret the West Virginia Water Pollution Act in a
manner that will faithfully balance the protection of the
environment with the need to maintain and expand opportunities for
employment, agriculture and industry as set forth in the
Legislature's statement of public policy as contained in the West
Virginia Water Pollution Control Act; and, be it
Further Resolved, That any interpretation and implementation
of West Virginia's narrative water quality standards is the
responsibility of the West Virginia Department of Environmental
Protection; and, be it
Further Resolved, That the requirements of the narrative
criteria are met when a stream: (a) Supports a balanced aquatic
community that is diverse in species composition; (b) contains
appropriate trophic levels of fish (in streams with sufficient
flows to support fish populations); and (c) the aquatic community
is not composed only of pollution-tolerant species, or the aquatic
community is composed of benthic invertebrate assemblages
sufficient to perform the biological functions necessary to support
fish communities within the assessed reach (or, if the assessed
reach has insufficient flows to support a fish community, in those downstream reaches where fish are present); and, be it
Further Resolved, That interpretation of West Virginia's
narrative water quality standards must faithfully balance the
protection of the environment with the need to maintain and expand
opportunities for employment, agriculture and industry as set forth
in the Legislature's statement of public policy as contained in the
West Virginia Water Pollution Control Act; and, be it
Further Resolved, That the West Virginia Legislature
encourages the United States Environment Protection Agency to
change their current interpretation of the West Virginia Water
Pollution Control Act to include the intent of the 72nd and
subsequent Legislatures and the policy issued by the WVDEP in
August 2010; and, be it
.
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the West Virginia
Department of Environmental Protection, the United States
Environmental Protection Agency, the Huntington District of the
United States Army Corps of Engineers and other appropriate state
and federal agencies; and, be it
Further Resolved, That the EPA is encouraged to accept the
narrative water quality standards interpretive guidance issued in
August, 2010, by the West Virginia Department of Environmental
Protection which was developed by the agency consistent with the
will and intent of the Legislature.
Which, under the rules, lies over one day.
Senators Stollings, Unger, Minard, Kessler (Acting President),
Klempa and Browning offered the following resolution:
Senate Resolution No. 53--Honoring Fred Pace for his heroic
and selfless act, in saving the lives of four young automobile
accident victims.
Whereas, On the cold and wintry evening of February 24, 2011,
Fred Pace heard a loud crash just outside the home he was visiting
and went outside to investigate; and
Whereas, With a flashlight in the darkness, Fred Pace
discovered an overturned automobile in a nearby creek; and
Whereas, Upon closer inspection, there appeared to be four
young female passengers hanging upside down inside the automobile,
still restrained by their safety belts; and
Whereas, After quickly assessing the imminent danger and
without regard for himself, Fred Pace entered the icy waters to
attempt to save these young and precious lives; and
Whereas, In the face of extreme danger, Fred Pace extricated
the four young woman from the wreckage, one by one, and guided them
up the bank to safety; and
Whereas, Fred Pace is a shining example to all West Virginians
of what it means to be a genuine hero; therefore, be it
Resolved by the Senate:
That the Senate hereby honors Fred Pace for his heroic and selfless act, in saving the lives of four young automobile accident
victims; and, be it
Further Resolved, That the Senate commends Fred Pace for
saving the lives of these four young women and considers him a
genuine hero; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Fred Pace.
At the request of Senator Stollings, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
At the request of Senator Unger, and by unanimous consent, the
remarks by Senator Stollings regarding the adoption of Senate
Resolution No. 53 were ordered printed in the Appendix to the
Journal.
On motion of Senator Unger, the Senate recessed for one
minute.
At the expiration of the recess, the Senate reconvened and
resumed business under the sixth order.
Senators Nohe, Boley, K. Facemyer, Sypolt, Snyder, Kessler
(Acting President), Fanning, Wills, Miller, Beach, Foster, Jenkins,
Wells, Prezioso, Browning, Hall, Chafin, Yost, Klempa, Palumbo, D.
Facemire, Unger, McCabe, Laird, Helmick, Edgell, Green, Williams,
Tucker, Barnes, Minard, Plymale and Stollings offered the following
resolution:
Senate Resolution No. 54--Urging the United States Navy to
continue the Parkersburg High School NJROTC Program.
Whereas, The Parkersburg High School NJROTC Program was
founded in 1986, and has been instrumental in obtaining more than
$2,000,000.00 in scholarships and military academy appointments;
and
Whereas, During the past five years, the Parkersburg High
School NJROTC Program has averaged between 500 and 600 hours of
community service per year, assisting a variety charitable
organizations; and
Whereas, During the past five years, the Parkersburg High
School NJROTC Program has averaged 1,150 hours of school support
including Gate Guard and stadium clean up after football games,
Awards Night traffic control, 9-11 Ceremonies traffic control and
escort duty, as well as providing a singer for the national anthem
at sporting events; and
Whereas, The Parkersburg High School NJROTC Program supports
the community by providing color guards, passing of the flag
ceremonies and participation in parades; and
Whereas, West Virginia is one of the leading states in the
nation for recruitment for all military services, especially the
Navy; and
Whereas, The Parkersburg High School NJROTC Program has a
valued and proud history that has provided their community and this nation with positive leadership in all walks of life; and
Whereas, Closing the Parkersburg High School NJROTC Program
would be devastating to the leadership development program for our
cadets and detrimental to the education and advancement of our
youth; therefore, be it
Resolved by the Senate:
That the Senate hereby urges the United States Navy to
continue the Parkersburg High School NJROTC Program; and, be it
Further Resolved, That the Senate recognizes the importance of
the Parkersburg High School NJROTC Program and extends its full
support in helping it continue its service to the community, state
and country; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the Parkersburg High School NJROTC and
Ray Mabus, Secretary of the United States Navy.
At the request of Senator Boley, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
At the request of Senator Unger, and by unanimous consent, the
remarks by Senator Nohe regarding the adoption of Senate Resolution
No. 54 were ordered printed in the Appendix to the Journal.
On motion of Senator Unger, the Senate recessed for one
minute.
At the expiration of the recess, the Senate reconvened and resumed business under the sixth order.
On motion of Senator Unger, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2885, Allowing a guardian or
conservator to be employed or in an employment contract with a
behavioral health provider.
Passed by the Senate on yesterday, Thursday, March 10, 2011,
The bill now being in the possession of the Senate,
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2885) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, the Senate returned to the fourth order of business.
Senator Stollings, 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
Senate Concurrent Resolution No. 74 (originating in the
Committee on Health and Human Resources)--Requesting the Joint
Committee on Government and Finance to study the need to improve
the awareness and public availability of and access to epinephrine
auto-injectors to better protect and prevent against the threat of
death resulting from anaphylaxis emergencies.
Whereas, Anaphylaxis is a serious allergic reaction, a medical
emergency that is rapid in onset and may cause death; and
Whereas, Statistics suggest that up to 43 million Americans
suffer from allergies that could put them at risk of anaphylaxis;
and
Whereas, A history of anaphylaxis is usually a predictor of
future reactions, studies indicate that at least 25% of adult
patients who present with anaphylaxis have no prior history. More
importantly, up to 65% of children with anaphylaxis have no history
of prior allergies; and
Whereas, According to a 2006 presentation at the annual
meeting of the American Academy of Asthma, Allergy and Immunology,
more than one million emergency room visits each year - 2,700 each
day - are allergy-related; and
Whereas, Food allergies affect approximately one in 25 school-
aged children, an 18% increase from 1997 to 2007; and
Whereas, Anaphylaxis can cause death in a matter of minutes,
rendering immediate access to and use of epinephrine critical to
survival; and
Whereas, At least 12 states and the District of Columbia have
enacted laws that enhance public access to epinephrine auto-
injectors and this life-saving treatment; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the need to improve the awareness and public
availability of and access to epinephrine auto-injectors to better
protect and prevent against the threat of death resulting from
anaphylaxis emergencies; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2012, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Ron Stollings,
Chair.
At the request of Senator Stollings, unanimous consent being
granted, the resolution (S. C. R. No. 74) contained in the
preceding report from the Committee on Health and Human Resources
was taken up for immediate consideration.
On motion of Senator Stollings, the resolution was then
referred to the Committee on Rules.
Senator Stollings, 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
Senate Concurrent Resolution No. 75 (originating in the
Committee on Health and Human Resources)--Requesting the Joint
Committee on Government and Finance authorize a study of the rate
review process established by the West Virginia Health Care
Authority.
Whereas, The rate review process was enacted by the West
Virginia Legislature in 1983 and became a function of the Health
Care Authority at that time; and
Whereas, Unless specifically exempted, all acute care
hospitals in West Virginia must obtain approval from the Health Care Authority to amend their rates; and
Whereas, Rate controls were a tool to constrain health costs
prior to implementation of prospective payment systems; and
Whereas, The rate review process was intended to be a
regulatory tool under a federal waiver which was never approved;
and
Whereas, Rate controls impede development of integrated health
models to manage patient outcomes and control costs; and
Whereas, The Patient Protection and Affordable Care Act
(PPACA) was signed into United States law in March 2010, and
thereby amending all health care financing and insurance market
assumptions underlying the rate review statute; and
Whereas, Rate review does not exist in many states; and
Whereas, Restructuring the rate review process may be
appropriate; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the rate review process within the Health Care
Authority in the context of federal statute changes; and, be it
Further Resolved, That the Joint Committee on Government and
Finance consult with the Health Care Authority, representatives in
health care financing, payers, the West Virginia Hospital
Association, and other interested parties who may offer insight
into the rate review process; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2012 on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Ron Stollings,
Chair.
At the request of Senator Stollings, unanimous consent being
granted, the resolution (S. C. R. No. 75) contained in the
preceding report from the Committee on Health and Human Resources
was taken up for immediate consideration.
On motion of Senator Stollings, the resolution was then
referred to the Committee on Rules.
Senator Stollings, 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
Senate Concurrent Resolution No. 76 (originating in the
Committee on Health and Human Resources)--Requesting the Joint
Committee on Government and Finance to study how tobacco related
taxes can be used for innovative research and discovery needed to
address West Virginia's tobacco problem and increase the WVU Mary
Babb Randolph Cancer Center's competitiveness for National Cancer
Institute designation.
Whereas, West Virginia has the highest consumption of tobacco
in the United States and the fourth highest cancer mortality in the
nation, including 3,800 smoking-related deaths and over 9,000
residents diagnosed with cancer annually; and
Whereas, It is estimated that a tobacco tax increase from West
Virginia's current levels to the national average for state excise
taxes will generate over $100 million in additional annual revenue
for several years. Every state that increases tobacco taxes has
experienced increases in revenue with simultaneous reductions in
tobacco use. West Virginia spends $7 million on smoking prevention
and cessation, while less than one percent is used for cancer-
related research. West Virginia can optimize effective tobacco
prevention while discovering and testing new therapies for those
already stricken by tobacco related cancers; and
Whereas, Every state bordering West Virginia, except Kentucky,
has at least two National Cancer Institute designated centers.
Funding of efforts to further prevention discovery, diagnosis and treatment discovery, and innovative tobacco cessation clinics will
increase the WVU Mary Babb Randolph Cancer Center's competitiveness
for National Cancer Institute designation. The WVU Mary Babb
Randolph Cancer Center is the only nationally recognized tobacco
cessation research program in West Virginia. National Cancer
Institute centers attract high quality researchers and clinicians.
Research grants and economic development and investment in research
will expedite a National Cancer Institute designation assuring that
West Virginia will benefit from cancer prevention, improved health
outcomes and a lowered economic burden of health care for our
state; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study how tobacco related taxes can be used for
innovative research and discovery needed to address West Virginia's
tobacco problem and increase the WVU Mary Babb Randolph Cancer
Center's competitiveness for National Cancer Institute designation;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2011, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Ron Stollings,
Chair.
At the request of Senator Stollings, unanimous consent being
granted, the resolution (S. C. R. No. 76) contained in the
preceding report from the Committee on Health and Human Resources
was taken up for immediate consideration.
On motion of Senator Stollings, the resolution was then
referred to the Committee on Rules.
Senator Stollings, 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
Senate Concurrent Resolution No. 77 (originating in the
Committee on Health and Human Resources)--Requesting the Joint
Committee on Government and Finance to conduct a study on ensuring
transparency regarding the education, training and licensure of
healthcare providers.
Whereas, With the escalating cost of healthcare and an ever growing variety of healthcare choices, West Virginia's patients
deserve to know who provides their care and exactly what their
providers are qualified and licensed to perform; and
Whereas, There is a multitude of professional academic degrees
using the term "doctor," including Medical Doctor (M.D.); Doctor of
Osteopathic Medicine (D.O); Doctor of Dental Surgery (D.D.S.)
Doctor of Podiatric Medicine (D.P.M.); Doctor of Optometry (O.D.);
Doctor of Chiropractic (D.C.); and other designations which may be
used by health care practitioners; and
Whereas, There are widespread differences regarding the
training and qualifications required to earn the professional
degrees described, and these differences often concern the training
and skills necessary to correctly detect, diagnose, prevent and
treat serious health care conditions; and
Whereas, Studies conducted in 2008 and 2010 found that
patients are confused about the health care education and training
among different types of health care professionals; and
Whereas, Confusion among patients about who is and who is not
qualified to provide specific patient care undermines the
reliability of the healthcare system and can put patients at risk;
and
Whereas, There is a compelling state interest in patients
being promptly and clearly informed of the training and
qualifications of the health care practitioners who provide health care services; and
Whereas, There is a compelling state interest in the public
being protected from potentially misleading and deceptive health
care advertising that might cause patients to have undue
expectations regarding their treatment and outcome; and
Whereas, Confusing and misleading ads undermine the
reliability of our healthcare system, and patients do not have
confidence that healthcare professionals advertise and provide
services for which they are properly trained; and
Whereas, A recent survey revealed that 96 percent of the
public believes that healthcare providers should be required to
display their level of training and legal licensure; and
Whereas, There is compelling state interest to require
healthcare providers to clearly and honestly state their level of
training, licensing and what procedures they may legally perform in
all advertising and marketing materials; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study whether to require all healthcare professionals
wear a name tag during all patient encounters that clearly
identifies they type of license they hold; and, be it
Further Resolved, That the Joint Committee on Government and
Finance study whether to require healthcare professionals to
display their education, training and licensure in his or her office; and, be it
Further Resolved, that the Joint Committee on Government and
Finance study whether to regulate any advertisements or
professional Web sites healthcare providers may have that promote
services beyond what the healthcare provider is legally permitted
to provide; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the Legislature, on the first day of the regular
session, 2012, on its findings, conclusions and recommendations,
together with drafts of legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That the expense necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Ron Stollings,
Chair.
At the request of Senator Stollings, unanimous consent being
granted, the resolution (S. C. R. No. 77) contained in the
preceding report from the Committee on Health and Human Resources
was taken up for immediate consideration.
On motion of Senator Stollings, the resolution was then
referred to the Committee on Rules.
Senator Palumbo, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Concurrent Resolution No. 78 (originating in the
Committee on the Judiciary)--Requesting the Joint Committee on
Government and Finance study the need for legislation regarding the
negative social and economic costs to the citizens and State of
West Virginia due to the abuse of prescription medication.
Whereas, Prescription drug abuse is a serious problem in this
state and country; and
Whereas, The serious impact prescription drug abuse has on the
criminal justice system, i.e. jails, prisons, public defender
costs, or "direct costs" to the state are known or can be
ascertained; and
Whereas, There are serious additional costs that have not been
considered such as theft, violence and other serious crimes that
are tied directly to prescription drug abuse that have not been
calculated into the costs to the state; and
Whereas, Approximately 80% of child abuse and neglect cases
have prescription drug abuse as one of the core issues; and
Whereas, According to the office of the United State's
Attorney lost time on the job in terms of productivity and loss of job opportunities because of prescription drug abuse are
significant; and
Whereas, Prescription drug abuse even effects truancy which
has shown an increase in recent years; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study legislation regarding the negative social and
economic costs to the citizens and State of West Virginia due to
the abuse of prescription medication; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the Legislature on the first day of the regular
session, 2012, on its findings, conclusions and recommendations
together with drafts of any legislation to effectuate its
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the resolution (S. C. R. No. 78) contained in the
preceding report from the Committee on the Judiciary was taken up
for immediate consideration.
On motion of Senator Palumbo, the resolution was then referred
to the Committee on Rules.
Senator Palumbo, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Concurrent Resolution No. 79 (originating in the
Committee on the Judiciary)--Requesting the Joint Committee on
Government and Finance to study the need for establishing a program
authorizing the executive director of Public Defender Services to
manage and otherwise have central authority and control over public
defender corporations.
Whereas, Article twenty-one of Chapter twenty-nine of the Code
of West Virginia, 1931, as amended, currently permits public
defender corporations of all the judicial circuits to be
centralized under the Executive Director of Public Defender
Services; and
Whereas, The Legislature believes that it is in the State's
best interest to study ways to improve the quality of legal
representation for indigent criminal defendants and in child abuse
and neglect matters; and
Whereas, It being in the State's best interest to assure the prudent expenditure of state funds; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance to study
the need for establishing a program authorizing the executive
director of Public Defender Services to manage and otherwise have
central authority and control over public defender corporations;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance shall report to the regular session of the Legislature,
2012, in its findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being
granted, the resolution (S. C. R. No. 79) contained in the
preceding report from the Committee on the Judiciary was taken up for immediate consideration.
On motion of Senator Palumbo, the resolution was then referred
to the Committee on Rules.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 80 (originating in the
Committee on Education)--Requesting the Joint Committee on
Government and Finance study the feasibility and potential methods
of making the WESTEST2 results count as part of students' grades in
order to better motivate student performance on the test.
Whereas, Some students are not fully motivated to perform
their best on the WESTEST2; and
Whereas, The WESTEST2 would be a more accurate measure of
students' performance and progress if students were more motivated
to perform on the test; and
Whereas, Making the WESTEST2 results count as part of
students' grades would be one method of motivating students to
perform on the WESTEST2; and
Whereas, Obstacles to counting the WESTEST2 results as part of
students' grades must be addressed; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the feasibility and potential methods of making the WESTEST2 results count as part of students' grades in order to
better motivate student performance on the test. The study at
least shall consider such issues as the time it takes to obtain the
test results, which grades the WESTTEST2 should count toward and
how to address the logistics of student promotion and retention if
the WESTTEST2 results count toward the final grades of the school
year and the WESTTEST2 results are not obtained until late in the
summer; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2012, on
its findings, conclusions and recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted; but with the further recommendation that it first be
referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the resolution (S. C. R. No. 80) contained in the
preceding report from the Committee on Education was taken up for immediate consideration.
On motion of Senator Plymale, the resolution was then referred
to the Committee on Rules.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 81 (originating in the
Committee on Education)--Requesting the Joint Committee on
Government and Finance study methods of improving the fairness of
competition between public and nonpublic schools.
Whereas, Private schools with no zoning limitations can draw
students from wider areas than public schools that draw students
mostly from attendance zones defined by the county board; and
Whereas, This puts public schools that are currently combined
with private schools in the same classification at a disadvantage
when competing in interscholastic activities; and
Whereas, One option would be to completely separate all
private schools into one classification so that they would compete
with other private schools with similar student bodies; and
Whereas, Another option would be to allow private schools to
compete with public schools in the existing three classifications
with the assigned classification for the private school being based
on the private school's current geographical pull area and
recruitment ability rather than numbers in attendance; and
Whereas, Other options should be sought for consideration as
well; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study methods of improving the fairness of competition
between public and nonpublic schools in West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2012, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted; but with the further recommendation that it first be
referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the resolution (S. C. R. No. 81) contained in the
preceding report from the Committee on Education was taken up for immediate consideration.
On motion of Senator Plymale, the resolution was then referred
to the Committee on Rules.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 82 (originating in the
Committee on Education)--Requesting the Joint Committee on
Government and Finance conduct a study to determine alternative
paths for teachers and principals to become certified.
Whereas, While the Legislature has created a provision for
alternative certification routes for educators; and the
institutions of higher education, to a limited extent, have created
alternative route programs; the programs at the institutions of
higher education closely mirror their traditional programs; and
Whereas, While approximately half of the pool of new teacher
graduates do find employment in West Virginia, and some counties
and some content areas do not have teacher shortages, each year
there remains a need for educators; and
Whereas, For the school year 2009-2010, approximately 1,500
teachers held less than a full credential for the content they were
assigned to teach; and
Whereas, There is a need for a mechanism to better support and
prepare educators who are in teaching positions with less than a full credential; and
Whereas, Although there currently is no shortage of applicants
for administrative positions, support for beginning administrators
is an essential component for their success; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to conduct a study to determine alternative routes of
certification that will assist in maintaining a sufficient,
competent staff of qualified and certified teachers and principals
in West Virginia. The study should include a comparison of West
Virginia's alternative certification laws and policies with those
of other states and also should include a comprehensive review of
the alternative certification programs of public teacher
preparation programs in the state. In order to ensure that the
study is conducted in as thorough of a manner as possible, it is
also requested that an outside consultant be hired to conduct the
study; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2012, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted; but with the further recommendation that it first be
referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the resolution (S. C. R. No. 82) contained in the
preceding report from the Committee on Education was taken up for
immediate consideration.
On motion of Senator Plymale, the resolution was then referred
to the Committee on Rules.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 83 (originating in the
Committee on Education)--Requesting the Joint Committee on
Government and Finance conduct a study to determine the value of
implementing a professional career ladder program for teachers tied
to a student growth formula.
Whereas, The Legislature recognizes the need to offer career
opportunities and advancement for teachers outside the current model; and
Whereas, The Legislature also recognizes the need to encourage
student growth and develop student potentiality; and
Whereas, Historically, little emphasis has been placed on
compensating teachers based on student performance; and
Whereas, Several states have recently implemented career
ladder programs that tie teacher professional advancement to
student achievement; therefore, be it
Resolved by the Legislature of West Virginia:
That a study be conducted to determine the value of
implementing a professional career ladder program for teachers tied
to student growth; including research of existing, relevant and
timely data on national and state initiatives that purport similar
objectives; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2012, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be
referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the resolution (S. C. R. No. 83) contained in the
preceding report from the Committee on Education was taken up for
immediate consideration.
On motion of Senator Plymale, the resolution was then referred
to the Committee on Rules.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 84 (originating in the
Committee on Education)--Requesting the Joint Committee on
Government and Finance study the implementation of the 10 elements
of high quality digital learning and the implementation of the
State Board of Education's Middle School Global 21 initiative.
Whereas, Former Governor of West Virginia, Bob Wise, and
former Governor of Florida, Jeb Bush, created the Digital Learning
Council to identify policies that would integrate current and
future technological innovations into public education; and
Whereas, This Council included more than 100 leaders from education, government, philanthropy, business, technology and think
tanks; and
Whereas, The Council has identified 10 elements of high-
quality digital learning; and
Whereas, Digital learning can customize and personalize
education allowing students to learn in their own style and at
their own pace; and
Whereas, Digital learning breaks down geographic barriers
allowing every student to enroll in courses they would not
otherwise have access to; and
Whereas, The State Board of Education is seeking state funding
to implement its Middle School Global 21 initiative. This includes
funding for the development of a digital platform for all middle
schools and funding to pilot schools who sign a memorandum of
understanding to implement additional career modules and to be
evaluated; and
Whereas, The goals of this initiative are to increase student
achievement in all core subject areas in order to enhance career
and college readiness and to increase student "informed" decisions
and establishment of realistic career goals; and
Whereas, The State Board of Education has identified several
objectives for the initiative. One of these identified objectives
is the preparation of all students to make informed decisions and
set realistic career goals, as reflected in an Individual Student Transition Plan that leads to a positive post-secondary outcome;
and
Whereas, The State Board of Education has identified the
process to accomplish its stated goals and objectives. One part of
the process includes the creation of a functional, digital platform
to support the content delivery and documentation of individual
student learning. Another part of the process is to design and/or
procure engaging and relevant middle school career-focused modules
that transform students' core courses to have a career focus and a
hands-on project-based curriculum. Another part of the process is
to establish a memorandum of understanding with each county and
school to implement all elements of the initiative and establish
defined supports; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the implementation of the 10 elements of high
quality digital learning and the implementation of the State Board
of Education's Middle School Global 21 initiative; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2012, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted; but with the further recommendation that it first be
referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the resolution (S. C. R. No. 84) contained in the
preceding report from the Committee on Education was taken up for
immediate consideration.
On motion of Senator Plymale, the resolution was then referred
to the Committee on Rules.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 85 (originating in the
Committee on Education)--Requesting the Joint Committee on
Government and Finance conduct a study of multiple topics all
related to teacher salaries; including salary linking, formulas,
and caps; and analyzing the language limitations of school levies.
Whereas, The Legislature recognizes the need provide adequate and fair salaries for delivery of public education; and
Whereas, The disparity between teacher salaries and the
salaries of the State Superintendent, county superintendents, and
central office employees has not been analyzed in the past; and
Whereas, It is found that, currently, levy monies may be used
to pay employees outside of a levy's original intention; and
Whereas, The misdirection of funds can be prevented with
appropriate legislation; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the following:
(1) The possible need of establishing a formula or ratio that
ties classroom teachers' salaries to that of central office
employees;
(2) The disparity between teacher salaries and the salaries of
the State Superintendent and School Board Superintendents in the
State of West Virginia. The study should consider the potential of
salary caps, salary formulas and linking further salary increases
for Superintendents to teacher salaries; and
(3) The language limitations of school levies; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2012, on
its findings, conclusions and recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted; but with the further recommendation that it first be
referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the resolution (S. C. R. No. 85) contained in the
preceding report from the Committee on Education was taken up for
immediate consideration.
On motion of Senator Plymale, the resolution was then referred
to the Committee on Rules.
Senator Prezioso, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Concurrent Resolution No. 86 (originating in the
Committee on Finance)--Requesting the Joint Committee on Government
and Finance to study general revenue funding of community and
technical colleges in this state.
Whereas, There are ten community and technical colleges
throughout this state which are funded from General Revenue in the Budget Bill; and
Whereas, Over $69 million is appropriated and expended through
Higher Education- West Virginia Council for Community and Technical
Education; and
Whereas, There exists a great disparity in the funding levels
of said community and technical colleges; and
Whereas, There has been no justification presented to the
Legislature explaining this disparity; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study general revenue funding of community and
technical colleges in this state; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2012, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the resolution (S. C. R. No. 86) contained in the
preceding report from the Committee on Finance was taken up for
immediate consideration.
On motion of Senator Prezioso, the resolution was then
referred to the Committee on Rules.
Senator Unger announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had removed from the
Senate third reading calendar, Engrossed Committee Substitute for
House Bill No. 3054.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 67, Requesting Joint
Committee on Government and Finance conduct study relating to
circuit court filing fees.
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. 68, Requesting Joint
Committee on Government and Finance study cost-effectiveness of
transporting excess animal population to other states.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Natural
Resources; and then to the Committee on Rules.
Senate Concurrent Resolution No. 69, Requesting DOH name
bridge in Wayne County "Staff Sergeant Sidney H. Blankenship
Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on
Transportation and Infrastructure.
Senate Concurrent Resolution No. 70, Requesting DOH name
bridge in Boone County "Fred York Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on
Transportation and Infrastructure.
Senate Concurrent Resolution No. 71, Requesting Joint
Committee on Government and Finance study impacts of cost sharing,
coinsurance and specialty tier pricing for prescription
medications.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Health and
Human Resources; and then to the Committee on Rules.
Senate Resolution No. 50, Requesting Congress withhold funding
for Office of Surface Mining, Reclamation and Enforcement for
stream protection rule until agency justifies need for new rules.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Energy,
Industry and Mining.
Senate Resolution No. 52, Urging members of WV's Congressional
delegation modify EPA regulations.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on the
Judiciary.
House Concurrent Resolution No. 2, The "James Paul Harrison
WWII Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
House Concurrent Resolution No. 63, The "Alan B. Mollohan
Gateway".
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.
House Concurrent Resolution No. 70, Naming the bridge on US Route 220 in the city of Keyser the "Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
House Concurrent Resolution No. 74, The "Larkin Ours Memorial
Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
House Concurrent Resolution No. 75, Urging the Governor of
Florida and the Florida State Senate Legislature not to repeal
Florida's prescription tracking system.
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.
House Concurrent Resolution No. 78, The "Sergeant Robert Dewey
Thompson Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
House Concurrent Resolution No. 79, The "PFC Abraham G. Sams
Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
House Concurrent Resolution No. 89, The "Ten Mile Creek
Veteran's Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
House Concurrent Resolution No. 101, The "PFC Ralph Lewis
Boone Memorial Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2013, Requiring the West
Virginia Enhanced 911 Council to propose Emergency Medical Dispatch
procedures.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2013) 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. 2248, Expanding the list of
federal law-enforcement officers who are extended the authority of
state and local law-enforcement officers to enforce the laws of
this state.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2248) 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. 2517, Allowing Correctional
Industries to directly purchase workers' compensation coverage for inmates.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2517) 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. 2539, Authorizing the West
Virginia State Police to enter into agreements for certain forensic
services with the Marshall University Forensic Science Center.
On third reading, coming up in regular order, with the right
having been granted on yesterday, Thursday, March 10, 2011, for
amendments to be received on third reading, was reported by the
Clerk.
On motion of Senator Palumbo, the following amendment to the bill was reported by the Clerk and adopted:
On pages two and three, by striking out all of section three
and inserting in lieu thereof a new section three, to read as
follows:
§15-2B-3. Definitions.
As used in this article:
the following terms mean:
(1) "CODIS" means the Federal Bureau of Investigation's
Combined DNA Index System that allows the storage and exchange of
DNA records submitted by federal, state and local forensic DNA
laboratories. The term "CODIS" includes the National DNA Index
System administered and operated by the Federal Bureau of
Investigation.
(2) "Conviction" includes convictions by a jury or court,
guilty plea, or plea of nolo contendere.
(3) "Criminal justice agency" means an agency or institution
of a federal, state or local government, other than the office of
public defender, which performs as part of its principal function,
relating to the apprehension, investigation, prosecution,
adjudication, incarceration, supervision or rehabilitation of
criminal offenders.
(4) "Division" means the West Virginia State Police."
(a) (5) "DNA" means deoxyribonucleic acid. DNA is located in
the nucleus of cells and provides an individual's personal genetic
blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification.
(b) (6) "DNA record" means DNA identification information
stored in any state DNA database pursuant to this article. The DNA
record is the result obtained from DNA typing tests. The DNA
record is comprised of the characteristics of a DNA sample which
are of value in establishing the identity of individuals. The
results of all DNA identification tests on an individual's DNA
sample are also included as a "DNA record".
(c) (7) "DNA sample" means a tissue, fluid or other bodily
sample, suitable for testing, provided pursuant to this article or
submitted to the division laboratory for analysis pursuant to a
criminal investigation.
(d) (8) "FBI" means the Federal Bureau of Investigation.
(9) "Interim plan" means the plan used currently by the
Federal Bureau of Investigation for Partial Match Protocol and to
be adopted under the management rules of this article.
(10) "Management rules" means the rules promulgated by the
West Virginia State Police that define all policy and procedures in
the administration of this article.
(11) "Partial match" means that two DNA profiles, while not an
exact match, share a sufficient number of characteristics to
indicate the possibility of a biological relationship.
(l2) "Qualifying offense" means any felony offense as
described in section six of this article or any offense requiring a person to register as a sex offender under this code or the
federal law. For the purpose of this article, a person found not
guilty of a qualifying offense by reason of insanity or mental
disease or defect shall be required to provide a DNA sample in
accordance with this article.
(13) "Registering Agency" means the West Virginia State
Police.
(e) (14) "State DNA database" means all DNA identification
records included in the system administered by the West Virginia
State Police.
(f) (15) "State DNA databank" means the repository of DNA
samples collected under the provisions of this article.
(g) "Division" means the West Virginia State Police.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2539), as just amended, was then read a third time and put upon its
passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2539) passed.
On motion of Senator Palumbo, the following amendment to the
title of the bill was reported by the Clerk:
Eng. Com. Sub. for House Bill No. 2539--A Bill
to amend and
reenact §15-2B-3 and §15-2B-5 of the Code of West Virginia, 1931,
as amended, all relating to authorizing the West Virginia State
Police to enter into agreements with the Marshall University
Forensic Science Center; and adding and amending definitions.
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. 2639, Authorizing
miscellaneous boards and agencies to promulgate legislative rules.
On third reading, coming up in regular order, with the
unreported Judiciary committee amendment pending, and with the
right having been granted on yesterday, Thursday, March 10, 2011,
for other amendments to be received on third reading, was reported
by the Clerk.
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 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO PROMULGATE LEGISLATIVE RULES.
§64-9-1. Board of Pharmacy.
(a) The legislative rule filed in the state register on July
29, 2010, authorized under the authority of section five, article
nine, chapter sixty-a, of this code, relating to the Board of
Pharmacy (licensure and the practice of pharmacy, 15 CSR 1), is
authorized with the following amendments:
On page thirty-seven, subsection 21.1, by striking out all of
subsection 21.1 and inserting in lieu thereof a new subsection 21.1
to read as follows:
"21.1. A prescription to be valid, shall be issued for a
legitimate medical purpose by a practitioner acting within the
course of legitimate professional practice, and shall bear the
preprinted, stamped, typed, or manually printed name, address and
telephone number of the prescribing practitioner. If it is a
prescription for a controlled substance listed in Schedules II
through V, then it shall also contain the prescriber's DEA
registration number, including any suffix. The National Provider
Identification (NPI) number shall be required on all valid
prescriptions beginning January 1, 2012."
And,
On page forty-seven, after subsection 26.1, by adding a new
section 27 to read as follows:
"15-1-27. West Virginia Official Prescription Paper Program Rules.
27.1. The purpose of this section is to establish rules for
the West Virginia Official Prescription Program Act set forth at
West Virginia Code Section §16-5W-1, et seq. for use in writing
prescriptions by practitioners.
27.2. Definitions. As used in this rule:
a. "Program Vendor" means the private contractor or
contractors selected to manage the production and delivery of
official state prescription paper.
b. "West Virginia Official Prescription Paper" means
prescription paper, which has been authorized by the state for use,
and meets the following criteria:
1. Prevention of unauthorized copying;
2. Prevention of erasure or modification;
3. An ability to prevent counterfeit prescription pads; and
4. Capable of supporting automated validation through pharmacy
claims processing systems using the official state prescription
control number.
27.3. Minimum Requirements of West Virginia Official
Prescription Paper. The prescription paper shall contain the
following security features:
a. Shall meet all requirements issued by the Center for
Medicare and Medicaid Services for a written prescription for
controlled substances as required by Section 2002(b) of PL. 110-28
of the Iraq War Supplemental Appropriations Bill enacted by the United States Congress in 2007;
b. shall contain six (6) quantity check-off boxes printed on
the form and in the following quantities shall appear:
1. 1-24;
2. 25-49;
3. 50-74;
4. 75-100;
5. 101-150; and
6. 151 and over:
Provided, That if the blank has the quantity prescribed
electronically printed in both numeric and word format, then the
quantity check-off boxes shall not be necessary;
c. Shall contain space for the prescriber to indicate number
of refills, if any, or to indicate no refills;
d. Shall provide space for the patient"s name and address, the
prescribing practitioner"s signature;
e. Shall provide space for the preprinted, stamped, typed, or
manually printed name, address and telephone number of the
prescribing practitioner, and the practitioner"s DEA registration
number and NPI number;
f. Shall contain the following statement printed on the bottom
of the prescription blank: "This prescription may be filled with a
generically equivalent drug product unless the words 'Brand
Medically Necessary' are written in the practitioner's own handwriting, on this prescription form."; and
g. Each blank must be numbered on the face with a unique
identifying control number in both human readable and barcode
format.
27.4. The Board will solicit open bids and select a vendor or
vendors to provide West Virginia Official Prescription Paper and
maintain appropriate records of such product supplied to
practitioners based on ability of proposed program to prevent
prescription fraud, price and ability to meet these requirements.
a. Practitioners licensed to practice in this State may
purchase West Virginia Official Prescription Paper as per
individual orders from the selected vendor(s). The cost of the
Official Prescription Paper will be borne by the ordering
practitioner/institution, unless the state is successful in
securing offsetting funds such as federal grants, risk/reward
programs or private funding applied for and received by the state
for the express purpose of partially or fully funding the West
Virginia Official Prescription Program.
b. Orders shall be placed through a vendor supplied secure on-
line order capture system or on an order form to be supplied by the
Vendor, and must contain the requesting practitioner's name,
specialty, primary address and other practice site address(s),
Federal DEA registration number, if any, National Provider
Identification number, the State professional practice license number, number of prescriptions requested, and shall be signed by
the requesting practitioner.
c. Records of West Virginia Official Prescription Paper
supplied to practitioners will be maintained by the vendor or
vendors and will be subject to random and regular audits.
Discrepancies shall be reported to the Board in a regular and
timely manner.
27.5. On and after January 1, 2012 every written prescription
written in West Virginia by a practitioner shall be written on West
Virginia Official Prescription Paper. A pharmacist may not fill a
written prescription from a West Virginia practitioner unless
issued upon an official state issued prescription form.
27.6. Practitioners; control and reporting of West Virginia
Official Prescription Paper.
a. Adequate safeguards and security measures shall be
undertaken by practitioners holding West Virginia Official
Prescription Paper to assure against the loss, destruction, theft
or unauthorized use of the forms. The forms may be used only by the
practitioner to whom they are issued and are not transferable.
b. The Practitioner must also notify the vendor of any failure
to receive Official Prescription Paper within a reasonable time
after ordering them. Further, practitioners must immediately notify
the Board and vendor in writing of the loss through destruction,
theft or loss, or unauthorized use of any Official Prescription Paper blanks, including:
1. Estimated number of blanks affected;
2. Control numbers if available; and
3. Suspected reason for destruction, theft, or loss.
c. The program vendor must provide annual SAS or SSAE16 third
party audits of the prescription paper printing/personalization
facility used in the preparation and distribution of West Virginia
Official Prescription Paper blanks upon request. The program vendor
must be able to provide such report for each year and for two years
prior to the term of the contract."
.
(b) The legislative rule filed in the state register on July
29, 2010, authorized under the authority of section five, article
nine, chapter sixty-a, of this code, relating to the Board of
Pharmacy (controlled substances monitoring, 15 CSR 8), is
authorized with the following amendments:
On page two, subsection 2.15, by striking out the words "15-1-
27 of the West Virginia Code of State Rules" and inserting in lieu
thereof the word "5";
On page six, subdivision 7.3(b), by striking out all of
subdivision 7.3(b) and inserting in lieu thereof a new subdivision
7.3(b) to read as follows:
"(b) members of the West Virginia State Police expressly
authorized by the superintendent of the West Virginia State Police
to have access to the information;";
On page six, subdivision 7.3(e), after the word "(e)", by
striking out the word "The" and inserting in lieu thereof the word
"the";
On page six, subdivision 7.3(f), after the word "(f)" by
striking out the word "A" and inserting in lieu thereof the word
"a";
On page six, subdivision 7.3(g), by striking out the word
"board" and inserting in lieu thereof the word "Board";
On page six, subdivision 7.3(j), by striking out the word
"date" and inserting in lieu thereof the word "data";
On page six, subsection 7.4, by striking out the word "board"
and inserting in lieu thereof the word "Board";
And,
On page six, subsection 7.4, after the words "subsection 7.3"
by inserting the words "(a) through (i)".
§64-9-2. Physical Therapy.
(a) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
twenty, chapter thirty, of this code, modified by the Board of
Physical Therapy to meet the objections of the Legislative Rule-
Making Review Committee and refiled in the state register on
December 21, 2010, relating to the Board of Physical Therapy
(general provisions, 16 CSR 1), is authorized with the following
amendments:
On page two, by striking 2.15a in its entirety and inserting
in lieu thereof the following:
"2.15.a. A physical therapy aide works under the direct
supervision of a physical therapist; Provided, That a physical
therapist assistant may directly supervise a physical therapy aide
in emergency situations necessary to provide patient safety."
On page 3, by striking out section 5 in its entirety and
inserting in lieu thereof the following:
§16-1-5. Issuance, Renewal or Reinstatement of License.
5.1. The Board reserves the right to evaluate the applicant
according to the testing, licensure, and procedural requirements as
initiated by the agency responsible for the ownership and
development of the National exam.
5.2. Licenses expiring on December 3l, of each particular year
must be renewed by payment of applicable fee along with completed
renewal application.
5.3. A license not renewed without specific request to place
it in "inactive" status will automatically be placed on delinquent
status.
5.4. Delinquent licensee is responsible for penalty fees
including but not limited to: application fee, delinquent license
fee, and the current year renewal fee. A licensee must also
complete and show proof of board approved continuing education
requirements.
5.5. To reinstate an "inactive" license, the licensee must
submit an application for renewal along with a non-refundable
application fee and license renewal fee.
5.6. A volunteer license will be marked as a "volunteer"
license and is restricted to practicing in accordance with §30-20-
13.
5.7. Any change in personal contact and employer/supervisor
information must be submitted in writing to the board as changes
occur."
On page 4, by striking out subsection 6.1 in its entirety and
inserting in lieu thereof the following:
"6.1. An individual possessing a temporary permit issued by
the Board to practice Physical Therapy or act as a physical
therapist assistant in the State of West Virginia shall practice
under the on-site supervision of a Physical Therapist. All progress
notes written by the Physical Therapist or physical therapist
assistant with a temporary permit shall be cosigned by a Physical
Therapist supervisor within twenty-four (24) hours."
On page six, by inserting a new subsection 7.7, to read as
follows:
"7.7. A licensee must report to the board any discipline
received in another jurisdiction within 30 days of that discipline.
The board reserves the right to discipline up to and including
revocation of a license until disciplinary process in the other jurisdiction is completed. If the licensee fails to report
discipline in another jurisdiction, they are subject to
disciplinary procedures in our jurisdiction determined by the
board."
On page seven, by striking subdivision 8.2.a in its entirety
and inserting in lieu thereof the following:
"8.2.a. When care is delivered in a hospital or other
acute-care center, free-standing, outpatient, or independent
practice setting, a Physical Therapist must provide on-site
supervision, with the exception that general supervision is
permitted in a hospital or other acute-care center, free-standing,
outpatient, or independent practice setting 40% of the time once
the physical therapist assistant performing treatment has at least
1000 hours of experience. The supervising physical therapist shall
document when general supervision is utilized under this
subdivision."
On page seven, by striking out subdivision 8.2.b. in its
entirety and inserting in lieu thereof the following:
"8.2.b. General supervision may be utilized when care is
delivered in a skilled/unskilled nursing facility, distinct part
skilled/unskilled nursing unit or swing-bed unit in an acute-care
hospital, home health, or school system setting, and the following
requirements must be observed and documented in the patient records
when general supervision is used:"
On page seven, by striking out subparagraph 8.2.b.1 in its
entirety and inserting in lieu thereof the following:
"8.2.b.1. A physical therapist must be accessible by
telecommunications to the physical therapist assistant at all times
that the physical therapist assistant is treating patients; and
available to make a joint onsite visit with the physical therapist
assistant within 24 hours as prudent practice indicates."
On page seven, by striking out subparagraph 8.2.b.2 in its
entirety and inserting in lieu thereof the following:
"8.2.b.2 The physical therapist must visit the patient at
least once every 10 physical therapist assistant visits, or within
30 calendar days, whichever occurs first."
On page seven, by striking out subparagraph 8.2.b.3 in its
entirety and inserting in lieu thereof the following:
"8.2.b.3. In the event that the supervising physical therapist
changes, the new supervising physical therapist must discuss the
patient's diagnosis and plan of care with the previous supervising
physical therapist before the next physical therapist assistant
visit is made. Either physical therapist must document such
communication."
On page 8, by striking out subsection 8.5 in its entirety and
inserting in lieu thereof the following:
"8.5. In an emergency situation, such as serious illness or
injury of the therapist or therapist's family member or death of a family member, which causes the unanticipated absence of the
supervising physical therapist for not more than three consecutive
days, and no more than twelve days per calender year, a licensed
physical therapist assistant may continue to render services, under
the supervision of another physical therapist, to only those
patients for which the licensed physical therapist assistant has
previously participated in the intervention for established plans
of care not to exceed the regularly scheduled operational hours of
the particular day or days the supervising physical therapist is
absent. When this provision is utilized, the ratio in subdivision
8.1.c. may be exceeded and the physical therapist shall document
the dates and the emergency situation."
On page 8, by striking out subsection 8.6 in its entirety and
inserting in lieu thereof the following:
"8.6. In a temporary situation, which causes the absence of
the supervising physical therapist up to one day, and no more than
eighty hours in a calender year, a licensed physical therapist
assistant may continue to render services, under general
supervision of the supervising physical therapist, to only those
patients for which the licensed physical therapist assistant has
previously participated in the intervention for established plans
of care not to exceed the regularly scheduled operational hours of
the particular day the supervising physical therapist is absent.
When this provision is utilized, the level of supervision in subdivision 8.2.a. may be exceeded and the physical therapist shall
document the hours, date and temporary situation."
On page 9, by inserting a new section 10 to read as follows:
§16-1-10. Continuing Education.
10.1. A "unit" is one clock hour spent in a continuing
education activity unless otherwise defined in this section.
10.2. All licensees desiring to remain "active" and in good
standing must complete 24 units of board approved continuing
education within the two year licensing period. If the licensee
does not complete the 24 units of board approved continuing
education within the license period, that licensee will be placed
on delinquent status and will be subject to all fees associated
with delinquent status.
10.2.a. For those applicants reinstating their license for a
period of 6 months or less, only 6 units are required for that
year.
10.2.b. Volunteer licensees need only to complete twenty (20)
units of board approved continuing education activities within a
two year renewal cycle.
10.2.c. Accumulated CEU's may not be carried over from one
renewal period to another.
10.2.d. A new graduate does not need continuing education
hours for the current year of graduation.
10.3. Completion of examinations, residencies, fellowships, tools, and courses for continuing education credit.
10.3.a. A maximum of 8 units per license period can be
obtained from any combination of clinical instruction or competency
tools.
10.3.b. Passing the following specialty examinations will
qualify for twenty-four contact hours of continuing education in
the year the examination is taken:
10.3.b.1 Specialty examinations and recertification
administered by the American board of physical therapy specialties
(ABPTS).
10.3.b.2. The hand therapy certification commission (HTCC)
certification examination.
10.3.b.3. Continuing education course instructors can receive
1 unit per hour of class instruction time will be awarded for board
approved continuing education courses in the year the course given.
Credit awarded to the instructor for said course will be granted
only one time.
10.3.c. The successful completion of an American physical
therapy association credentialed residency or fellowship program
will qualify for twenty-four contact hours of continuing education
in the year the residency or fellowship is completed.
10.3.d. The successful completion of a practice review tool of
the federation of state boards of physical therapy pertaining to
continued competence will qualify for continuing education.
10.3.d.1. Eight contact hours of continuing education will be
awarded for completion of a practice review tool.
10.3.d.2. Licensees may use a practice review tool identified
in paragraph 3.d.1 of this section no more than every other renewal
period.
10.3.e. Clinical instruction.
10.3.e.1. Providing clinical instruction to PT or PTA
student(s) enrolled in a CAPTE approved physical therapist or
physical therapist assistant program can qualify for up to a
maximum 8 units per year.
10.3.e.2. Four weeks of clinical instruction is equal to 1
unit of continuing education.
10.3.f. Continuing education courses are subject to board
approval.
10.3.f.1 One unit per hour of class instruction time will be
awarded for board approved continuing education courses in the year
the course is taken.
10.3.g. One unit per hour of class instruction time shall be
awarded and automatically approved for CAPTE College/University,
American Physical Therapy Association or West Virginia Physical
Therapy Association sponsored continuing education courses in the
year the course is taken.
10.3.h. One unit per hour of class instructions for CAPTE
college or university physical therapy or doctorate physical therapy programs.
10.4. The board may grant a waiver of the continuing education
requirements in the case of illness, disability or undue hardship.
10.4.a. A request for waiver form must be completed in full.
In the case of illness or disability, a physician's statement is
required.
10.4.b. All completed forms must be received by the Board for
consideration no later than the first day of October of the year
preceding the renewal date.
10.4.c. A waiver may be granted for any period of time not to
exceed one renewal cycle.
10.4.d. In the event that the illness, disability or hardship
continues to the next renewal cycle, then a new waiver request is
required.
10.4.e. Should a waiver be granted due to disability or
illness, the section may require the individual to provide
appropriate documentation from a physician or another qualified and
appropriate practitioner to verify the individual's competency and
ability to practice physical therapy in the state of West Virginia
prior to the return to active practice of physical therapy in West
Virginia.".
(b) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
twenty, chapter thirty, of this code, relating to the Board of Physical Therapy (fees for physical therapists and physical
therapist assistants, 16 CSR 4), is authorized.
(c) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section four, article
twenty-a, chapter thirty, of this code, modified by the Board of
Physical Therapy to meet the objections of the Legislative Rule-
Making Review Committee and refiled in the state register on
September 20, 2010, relating to the Board of Physical Therapy
(general provisions for athletic trainers, 16 CSR 5), is
authorized.
(d) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section four, article
twenty-a, chapter thirty, of this code, modified by the Board of
Physical Therapy to meet the objections of the Legislative Rule-
Making Review Committee and refiled in the state register on
September 20, 2010,
relating to the Board of Physical Therapy (fees
for athletic trainers, 16 CSR 6), is authorized.
§64-9-3. Sanitarians.
(a) The legislative rule filed in the state register on July
29, 2010, authorized under the authority of section six, article
seventeen, chapter thirty, of this code, relating to the of Board
of Sanitarians (interim fee schedule, 20 CSR 3), is authorized.
(b) The legislative rule filed in the state register on July
29, 2010, authorized under the authority of section six, article seventeen, chapter thirty, of this code, relating to the Board of
Sanitarians (practice of public health sanitation, 20 CSR 4), is
authorized, with the following amendments:
On page three, following subdivision 4.1.c, by inserting a new
subdivision 4.1.d. to read as follows:
"4.1.d. Has not previously failed an examination for licensure
in this state;";
And,
By re-designating the remaining subdivisions accordingly.
§64-9-4. Secretary of State.
The legislative rule filed in the state register on November
12, 2010, authorized under the authority of section twelve, article
two, chapter three, of this code, relating to the Secretary of
State (combined voter registration and driver licensing fund, 153
CSR 25), is authorized with the following amendments:
On page one, section two, following the words "For the
purposes of this rule:", by striking out subsection 2.1 in its
entirety and renumbering the following subsections of section two;
On page three, subdivision 4.2.2 following the words "under
this subsection on a", by striking out the word "quarterly" and
inserting in lieu thereof the word "annual";
On page three, subsection 4.3, following the words "collection
and transmission of the completed forms:", by striking out the
proviso in its entirety, and inserting in lieu thereof the following proviso "Provided, That the total reimbursement shall not
exceed sixty (60) percent of the total annual revenue of the Fund.
In any year in which the revenue is insufficient to pay the
reimbursement rate of $1.00 per completed registration as provided
in this subsection, the amount per registration application shall
be reduced proportionally.";
And,
On page four, by striking out subsection 4.4 and subdivisions
4.4.1, 4.4.2, 4.4.3 and 4.4.4 in their entirety and renumbering the
remaining sections of the rule.
§64-9-5. Board of Barbers and Cosmetologists.
(a) The legislative rule filed in the state register on July
30, 2010,authorized under the authority of section six, article
twenty-seven, chapter thirty, of this code, modified by the Board
of Barbers and Cosmetologists to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the state
register on October 18, 2010, relating to the Board of Barbers and
Cosmetologists (procedures, criteria and curricula for examinations
and licensure of barbers, cosmetologists, manicurists and
aestheticians, 3 CSR 1), is authorized with the following
amendments:
On page two, by striking out the words "43.1" and inserting in
lieu thereof the word "3.1.";
And,
On page three, subsection 4.2, after the word "obtain" by
inserting the word "a".
(b) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
twenty-seven, chapter thirty, of this code, modified by the Board
of Barbers and Cosmetologists to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the state
register on October 18, 2010, relating to the Board of Barbers and
Cosmetologists (qualifications, training, examination of licensure
of instructors, 3 CSR 2), is authorized, with the following
amendments:
On page one, by striking out subdivision 2.1.1 in its entirety
and inserting in lieu thereof the following:
"2.1.1 Have been licensed 5 years with 5 years of salon/shop
experience.";
On page one, subdivision 2.1.6 by striking out the percentage
amount "70%" and inserting in lieu thereof the percentage amount
"80%";
And,
On page one, by striking out all of subdivisions 2.1.7. and
2.1.8. and inserting in lieu new subdivisions 2.1.7. and 2.1.8. to
read as follows:
"2.1.7. Submit an application to the board;
2.1.8. Pay applicable certification, examination and registration fees.".
(c) The legislative rule filed in the state register on July
30, 2010,authorized under the authority of section six, article
twenty-seven, chapter thirty, of this code, modified by the Board
of Barbers and Cosmetologists to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the state
register on October 18, 2010, relating to the Board of Barbers and
Cosmetologists (operational standards for schools of barbering and
beauty culture, 3 CSR 4), is authorized with the following
amendments:
On page five, by striking out section caption "3-4-5.
Enrollment" and inserting in lieu thereof a new section caption to
read as follows:
"§3-4-5. Enrollment";
And,
On page six, by striking out the section caption "3-4-8.
Teaching Staff" and inserting in lieu thereof a new section caption
to read as follows:
"§3-4-8 Teaching Staff".
(d) The legislative rule filed in the state register on June
18, 2010, authorized under the authority of section six, article
twenty-seven, chapter thirty, of this code, relating to the Board
of Barbers and Cosmetologists (schedule of fees, 3 CSR 6), is
authorized with the following amendment:
On page one, subsection 2.1, by striking out the words
"$99.00" and inserting in lieu thereof the words "Based on the
National Interstate Council Index with a cap of $107.00".
§64-9-6. Commissioner of Agriculture.
(a) The legislative rule filed in the state register on July
26, 2010, authorized under the authority of section four, article
thirteen, chapter nineteen, of this code, modified by the
Commissioner of Agriculture to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the state
register on September 21, 2010, relating to the Commissioner of
Agriculture (West Virginia Apiary Rule, 61 CSR 2), is authorized.
(b) The legislative rule filed in the state register on July
12, 2010, authorized under the authority of section five-c, article
twelve, chapter twenty-two, of this code, relating to the
Commissioner of Agriculture (general groundwater protection rules
for fertilizers and manures, 61 CSR 6C), is authorized.
(c) The legislative rule filed in the state register on the
July 20, 2010, authorized under the authority of section three,
article two-B, chapter nineteen, of this code, relating to the
Commissioner of Agriculture (inspection of meat and poultry, 61 CSR
16), is authorized.
§64-9-7. Board of Veterinary Medicine.
The legislative rule filed in the state register on July 27,
2010, authorized under the authority of section six, article ten, chapter thirty, of this code, modified by the West Virginia, 1931,
as amended, relating to authorizing the Board of Veterinary
Medicine to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the West Virginia, 1931, as amended, relating to
the Board of Veterinary Medicine (organization and operation and
licensing of veterinarians, 26 CSR 1), is authorized with the
following amendments:
On page two, subdivision 2.4.4, by striking out the
subdivision in its entirety;
On page twelve, subsection 8.1, by striking out the words "the
supervision of a West Virginia licensed veterinarian" and inserting
in lieu thereof the words "the indirect or general supervision of
a West Virginia licensed supervising veterinarian. During the
period of supervision of a temporary permittee, the supervising
veterinarian must remain within one hour's physical access to the
location where the temporary permittee is rendering veterinary
care."
And,
On page twelve, subsection 8.2, in the last sentence of the
subsection, by striking out the word "supervisory" and inserting in
lieu thereof the word "supervising".
(b) The legislative rule filed in the state register on July
27, 2010, authorized under the authority of section six, article ten, chapter thirty of this code, modified by the Board of
Veterinary Medicine to meet the objections of the Legislative Rule-
Making Review Committee and refiled in the state register on
November 24, 2010, relating to the Board of Veterinary Medicine
(registration of veterinary technicians, 26 CSR 3), is authorized.
(c) The legislative rule filed in the state register on July
27, 2010, authorized under the authority of section six, article
ten, chapter thirty of this code, modified by the Board of
Veterinary Medicine to meet the objections of the Legislative Rule-
Making Review Committee and refiled in the state register on
November 24, 2010, relating to the Board of Veterinary Medicine
(standards of practice, 26 CSR 4), is authorized, with the
following amendments:
On page four, subsection 3.6, in the title to the subsection,
by striking out the words "position or trust" and inserting in lieu
thereof the words "position of trust".
(d) The legislative rule filed in the state register on July
27, 2010, authorized under the authority of section six, article
ten, chapter thirty of this code, modified by the Board of
Veterinary Medicine to meet the objections of the Legislative Rule-
Making Review Committee and refiled in the state register on
November 24, 2010, relating to the Board of Veterinary Medicine
(certified animal euthanasia technicians, 26 CSR 5), is authorized,
with the following amendment:
On page eight, subdivision 10.1.d., by striking out the words
"Section 10" and inserting in lieu thereof the words "Section 13".
(e) The legislative rule filed in the state register on July
27, 2010, authorized under the authority of section six, article
ten, chapter thirty of this code, modified by the Board of
Veterinary Medicine to meet the objections of the Legislative Rule-
Making Review Committee and refiled in the state register on
November 24, 2010, relating to the Board of Veterinary Medicine
(schedule of fees, 26 CSR 6), is authorized.
§64-9-8. Board of Optometry.
(a) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (rules of the West
Virginia Board of Optometry, 14 CSR 1), is authorized.
(b) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on January 3,
2011, relating to the Board of Optometry (oral pharmaceutical
prescriptive authority, 14 CSR 2), is authorized with the following amendments:
On page three, subsection 9.2., by replacing the period with
a comma and inserting the words "and include hands-on supervised
clinical training.";
On page four, subsection 10.2., after the words "standards of"
by inserting the words, "education and";
And,
On page four, after subsection 10.2., by adding new
subsections 10.3. and 10.4. to read as follows:
"10.3. A new oral drug used for a new indication may not be
started on a patient until discussed with the patient's osteopathic
or allopathic physician, and documented in the patient's record, in
order to identify and minimize potential adverse reactions and drug
interactions.
10.4 If the patient does not have a primary care provider or
refuses to provide written permission to report the oral drug(s) to
his or her primary care provider the certificate holder may provide
a written statement to the patient regarding the oral drug(s)
administered with instruction to the patient to give the listed
information to his or her current primary care provider or any
primary care provider they would choose to see in the future.".
(c) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (schedule of fees, 14 CSR
5), is authorized.
(d) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (examination and scoring
policy, 14 CSR 6), is authorized with the following amendments:
On page one, subsection 2.1., by striking out all of
subsection 2.1. and inserting in lieu thereof a new subsection 2.1.
to read as follows:
"2.1. The Board shall conduct the interview with a quorum of
the Board being present.";
On page one, subsection 3.2, after the word "The" by inserting
the word "Board";
And,
On page two, subsection 4.1., by striking out all of
subsection 4.1. and inserting a new subsection 4.1. to read as
follows:
"4.1. A Board quorum may evaluate the applicant's successful or unsuccessful completion of the interview by consesus.".
(e) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (licensure by endorsement,
14 CSR 8), is authorized with the following amendments:
On page one, after subdivision 2.2.5., by inserting a new
subdivision 2.2.6. to read as follows:
"2.2.6. At the option of the Board, an applicant for licensure
by reciprocity may be required to take the National Board
Examination.;
On page one, subsection 3.2., by striking out the word
"licensee" and inserting in lieu thereof the word "applicant";
On page two, subsection 3.7, by striking out the word "person"
and inserting in lieu thereof the word "applicant";
On page two, subsection 3.8, after the words "Code of", by
inserting the word "State";
And,
On page two, subsection 3.9., by striking out all of
subsection 3.9. and inserting in lieu thereof a new subsection 3.9.
to read as follows:
"3.9. The Board may require an applicant to interview with the
Board.".
(f) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (contact lenses that
contain and deliver pharmaceutical agents certificates, 14 CSR 9),
is authorized with the following amendment:
On page one, subsection 3.3., after the words "Code of", by
inserting the word "State".
(g) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (continuing education, 14
CSR 10), is authorized with the following amendments:
On page one, subsection 2.1., after the words "Code of" by
inserting the word "State";
On page one, subsection 3.2., after the word "hours" by
inserting the words "of continuing education";
On page one, subsection 3.6., after the word "outlined" by
inserting the word "in";
On page one, subsection 3.7., by striking out the word "hold"
and inserting in lieu thereof the word "holds";
On page two, subdivision 4.1(d), by striking out the word
"Postgraduate" and inserting in lieu thereof the word
"postgraduate";
On page two, subsection 5.1., after the words "Code of" by
inserting the word "State";
On page two, subsection 6.1., after the word "instruction" by
striking out the words "by correspondence, Internet or other
electronic means";
And,
On page two, subsection 6.1, after the word "attendance" by
changing the period to a comma and inserting the words "by
correspondence, Internet or other electronic means."
(h) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section fifteen,
article eight, chapter thirty, of this code, modified by the Board
of Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on December 23,
2010, relating to the Board of Optometry (injectable pharmaceutical
agents certificate, 14 CSR 11), is authorized with the following amendments:
On page two, after subsection 5.5. by inserting a new
subsection 5.6., to read as follows:
"5.6. The licensee must present proof of hands-on supervised
clinical training of a minimum of twenty-five patients for each
type of injection and each medication where the licensee actually
gave injections to patients under supervision. A log book with
dates, medications, route of injection, name of supervising doctor
and patient identification by number for review by the Board.";
On page five, subsection 10.1., by striking out the word
"not";
And,
On page five, by striking out all of subsection 11.1. and
inserting in lieu thereof new subsections 11.1. through 11.5. to
read as follows:
"11.1 A certificate holder may not establish a pharmacy in an
optometric office or sell injectable pharmaceutical agents
prescribed in treatment unless there is a licensed pharmacist on
staff or present when the prescription is filled. Nothing in this
rule shall prohibit the optometrist from charging a usual and
customary fee for performing the injection.
11.2 A certificate holder may not inject any medication into
a child under the age of 18.
11.3 An injection may not be given to a patient without consultation with the patient's osteopathic or allopathic physician
in order to identify and minimize potential adverse reactions and
drug interactions.
11.4 Retrobulbar and Periocular injections are
prohibited.
11.5 A certificate holder may not inject any of the
following drug categories:
11.5.1 Chemotherapy drugs;
11.5.2 Immunosuppressive drugs;
11.5.3 Intravenous steroids;
11.5.4 Intravenous dyes;
11.5.5 Controlled substances from Schedules II thru V;
11.5.6 Antivirals or Antifungal Agents;
11.5.7 Propofol (Diprivan);
11.5.8 Anesthesia drugs;
11.5.9 Edrophonium (Tensilon);
11.5.10 Neurotoxins;
11.5.11 Insulin or Diabetic drugs;
11.5.12 Cardiovascular drugs;
11.5.13 Dermatologic fillers;
11.5.14 Hyperosmotics;
11.5.15. Seizure drugs;
11.5.16 Hormones;
11.5.17 Antipsychotics;
11.5.18 Multiple Sclerosis drugs;
11.5.19 Blood thinners;
11.5.20 Flu shots;
11.5.21 Hepatitis Vaccines;
11.5.22 Pneumonia Vaccines;
11.5.23 Allergy drugs and testing.".
§64-9-9. Board of Osteopathy.
(a) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section one, article
fourteen-a, chapter thirty, of this code, modified by the Board of
Osteopathy to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 29,
2010, relating to the Board of Osteopathy (osteopathic physician
assistants, 24 CSR 2), is authorized with the following the
following amendments:
On page nine, subsection 6.6., after the words "Board and
the", by striking out the word "board" and inserting in lieu
thereof the word "Board";
And,
On page eleven, subsection 8.6., after the words "and expire
with, the", by inserting the word "osteopathic".
(b) The legislative rule filed in the state register on July
28, 2010, authorized under the authority of section three, article
fourteen-a, chapter thirty, of this code, modified by the Board of Osteopathy to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 29,
2010, relating to the Board of Osteopathy (fees for services
rendered by the Board, 24 CSR 5), is authorized.
§64-9-10. Treasurer's Office.
The legislative rule filed in the state register on July 30,
2010, authorized under the authority of section two, article two,
chapter twelve, of this code, modified by the Treasurer's Office to
meet the objections of the Legislative Rule-Making Review Committee
and refiled in the state register on July 30, 2010, relating to the
Treasurer's Office (establishment of imprest funds, 112 CSR 3), is
authorized.
§64-9-11. State Election Commission.
The legislative rule filed in the state register on the July
29, 2010, authorized under the authority of section fourteen,
article twelve, chapter three, of this code, modified by the State
Election Commission to meet the objections of the Legislative Rule-
Making Review Committee and refiled in the state register on
January 14, 2011, relating to the State Election Commission (West
Virginia Supreme Court of Appeals Public Campaign Financing Pilot
Program, 146 CSR 5), is authorized, with the following amendment:
On page nine, subdivision 6.9.a., by striking out "per W. Va.
Code §3-12-9(f)" and inserting in lieu thereof "as required by W.
Va. Code §3-12-9(g)".
On motion of Senator Williams, the following amendment to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 2639) was next reported by the Clerk:
On pages twenty-six through thirty-four, by striking out all
of section eight and inserting in lieu thereof a new section eight,
to read as follows:
§64-9-8. Board of Optometry.
(a) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (rules of the West
Virginia Board of Optometry, 14 CSR 1), is authorized.
(b) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on January 3,
2011, relating to the Board of Optometry (oral pharmaceutical
prescriptive authority, 14 CSR 2), is authorized.
(c) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (schedule of fees, 14 CSR
5), is authorized.
(d) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (examination and scoring
policy, 14 CSR 6), is authorized with the following amendments:
On page one, subsection 2.1., by striking out all of
subsection 2.1. and inserting in lieu thereof a new subsection 2.1.
to read as follows:
"2.1. The Board shall conduct the interview with a quorum of
the Board being present.";
On page one, subsection 3.2, after the word "The" by inserting
the word "Board";
And,
On page two, subsection 4.1., by striking out all of
subsection 4.1. and inserting a new subsection 4.1. to read as
follows:
"4.1. A Board quorum may evaluate the applicant's successful
or unsuccessful completion of the interview by consensus.".
(e) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (licensure by endorsement,
14 CSR 8), is authorized with the following amendments:
On page one, after subdivision 2.2.5., by inserting a new
subdivision 2.2.6. to read as follows:
"2.2.6. At the option of the Board, an applicant for licensure
by reciprocity may be required to take the National Board
Examination.;
On page one, subsection 3.2., by striking out the word
"licensee" and inserting in lieu thereof the word "applicant";
On page two, subsection 3.7, by striking out the word "person"
and inserting in lieu thereof the word "applicant";
On page two, subsection 3.8, after the words "Code of", by
inserting the word "State";
And,
On page two, subsection 3.9., by striking out all of
subsection 3.9. and inserting in lieu thereof a new subsection 3.9.
to read as follows:
"3.9. The Board may require an applicant to interview with the
Board.".
(f) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (contact lenses that
contain and deliver pharmaceutical agents certificates, 14 CSR 9),
is authorized with the following amendment:
On page one, subsection 3.3., after the words "Code of", by
inserting the word "State".
(g) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section six, article
eight, chapter thirty, of this code, modified by the Board of
Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on November 24,
2010, relating to the Board of Optometry (continuing education, 14
CSR 10), is authorized with the following amendments:
On page one, subsection 2.1., after the words "Code of" by
inserting the word "State";
On page one, subsection 3.2., after the word "hours" by
inserting the words "of continuing education";
On page one, subsection 3.6., after the word "outlined" by
inserting the word "in";
On page one, subsection 3.7., by striking out the word "hold" and inserting in lieu thereof the word "holds";
On page two, subdivision 4.1(d), by striking out the word
"Postgraduate" and inserting in lieu thereof the word
"postgraduate";
On page two, subsection 5.1., after the words "Code of" by
inserting the word "State";
On page two, subsection 6.1., after the word "instruction" by
striking out the words "by correspondence, Internet or other
electronic means";
And,
On page two, subsection 6.1, after the word "attendance" by
changing the period to a comma and inserting the words "by
correspondence, Internet or other electronic means."
(h) The legislative rule filed in the state register on July
30, 2010, authorized under the authority of section fifteen,
article eight, chapter thirty, of this code, modified by the Board
of Optometry to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the state register on December 23,
2010, relating to the Board of Optometry (injectable pharmaceutical
agents certificate, 14 CSR 11), is authorized with the following
amendments:
On page five, by striking out subsection 11.1 in its entirety
and inserting in lieu thereof by inserting the following:
"11.1 A certificate holder may not establish a pharmacy in an optometric office or sell injectable pharmaceutical agents
prescribed in treatment unless there is a licensed pharmacist on
staff or present when the prescription is filled. Nothing in this
rule shall prohibit the optometrist from charging a usual and
customary fee for performing the injection.
11.2 Retrobulbar and Peribulbar injections are prohibited.
11.3. The board shall establish a formulary of pharmaceutical
agents to be administered by injection.
11.3.1. The injection formulary shall be created from those
agents that certificate holders have been authorized previously to
administer or prescribe as topical agents or oral medication
categories listed in the oral formulary of the Board in the W.Va.
Code of State Rules, §14-2-7.2a through §14-2-7.2g.
11.3.2. New drugs or drug indications may be added to the
formulary by a decision of the Board based on any of the following
criteria:
11.3.2.1. A new or existing drug has been approved by the Food
and Drug Administration for the treatment of the eye or its
appendages.
11.3.2.2. A new drug or new drug indication has gained
accepted use in the eye care field. Such acceptance may be
indicated by its inclusion in the curriculum of an optometry school
accredited by the Accreditation Council on Optometric Education or
its successor approved by the U.S. Department of Education or approved post-graduate continuing education, through peer-reviewed,
evidence-based research and professional journal articles, or by
inclusion in established standards of practice and care published
by professional organizations.
Following discussion,
The question being on the adoption of the amendment offered by
Senator Williams to the Judiciary committee amendment to the bill,
the same was put.
The result of the voice vote being inconclusive, Senator
Jenkins demanded a division of the vote.
A standing vote being taken, there were nineteen "yeas" and
twelve "nays".
Whereupon, the Acting President declared the amendment offered
by Senator Williams to the Judiciary committee amendment to the
bill adopted.
The question now being on the adoption of the Judiciary
committee amendment to the bill, as amended, the same was put and
prevailed.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2639), as just amended, was then read a third time and put upon its
passage.
On the passage of the bill,
the yeas were: Boley, Browning,
Edgell, D. Facemire, K. Facemyer, Fanning, Green, Hall, Helmick,
Klempa, Laird, Miller, Minard, Palumbo, Snyder, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--23.
The nays were: Barnes, Beach, Chafin, Foster, Jenkins,
McCabe, Nohe, Plymale, Prezioso and Stollings--10.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2639) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question,
the yeas were: Boley, Browning, Edgell, D.
Facemire, K. Facemyer, Fanning, Green, Hall, Helmick, Klempa,
Laird, Miller, Minard, Palumbo, Snyder, Sypolt, Tucker, Unger,
Wells, Williams, Wills, Yost and Kessler (Acting President)--23.
The nays were: Barnes, Beach, Chafin, Foster, Jenkins,
McCabe, Nohe, Plymale, Prezioso and Stollings--10.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2639) 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. 2918, Relating to permanent business
registrations.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 2918) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3000, Making it lawful to hunt coyotes
with a green colored light.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 3000) 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. 3004, Relating to the
Greater Huntington Park and Recreation District.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3004) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3004) 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. 3054, Relating to DNA data
collection.
Having been removed from the Senate third reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3119, Increasing the expenditure limit on
public service district construction and purchase contracts.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 3119) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3137, Providing for additional
circumstances giving rise to "state 'on' indicators" for purposes
of extended unemployment compensation.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill (Eng. H. B. No. 3137) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 3137) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Unger, the Senate recessed until 3:30
p.m. today
.
At the expiration of the recess, the Senate reconvened and
proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 70, Budget Bill.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Prezioso, the following amendments to the
bill were reported by the Clerk, considered simultaneously, and
adopted:
On page forty-five, Account 49 - State Department of
Education - State Aid to Schools, Retirement Systems - Unfunded
Liability, by striking out "343,339,691" and inserting in lieu
thereof "340,042,647";
On page forty-five, Account 49 - State Department of Education
- State Aid to Schools, Total, by striking out "$1,850,777,243" and
inserting in lieu thereof "$1,853,321,243";
On page one hundred seventy-nine, Account 285 - State
Department of Education, Retirement Systems-Unfunded Liability, by
striking out "$42,659,309" and inserting in lieu thereof
"$45,956,353";
And,
On page one hundred eighty, Total TITLE II, Section 5 - Excess
Lottery Funds, by striking "$349,775,309" and inserting in lieu
"$353,072,353".
The bill (Com. Sub. for S. B. No. 70), as amended, was then
ordered to engrossment and third reading.
Senate Bill No. 620, Making supplementary appropriation to
various executive accounts.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Eng. Com. Sub. for House Bill No. 2159, Relating to
prohibiting members of the news media from being compelled to give
testimony.
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 two, section ten, line five, by striking out the word
"substantial";
On page two, section ten, lines five and six, by striking out
the words "or for substantial financial gain";
On page two, section ten, line fourteen, by striking out the
words "or serious bodily injury" and inserting in lieu thereof a
comma and the words "serious bodily injury or unjust
incarceration";
And,
On page three, section ten, line nineteen, by striking out the
words "or serious bodily injury" and inserting in lieu thereof a
comma and the words "serious bodily injury or unjust
incarceration".
On motion of Senator Palumbo, the following amendments to the
bill were next reported by the Clerk, considered simultaneously,
and adopted:
On page two, section ten, line ten, after the word "the" by
inserting the word "confidential";
On page two, section ten, line thirteen, after the words
"consent of the" by inserting the word "confidential";
And,
On page two, section ten, line seventeen, after the words
"consent of the" by inserting the word "confidential".
On motion of Senator Palumbo, the following amendment to the
bill was next reported by the Clerk and adopted:
On page two, section ten, line seven, after the word
"capacity" by changing the period to a colon and inserting the
following proviso: Provided, That a student reporter at an
accredited educational institution who meets all of the
requirements of this definition, except that his or her reporting
may not provide a portion of his or her livelihood, meets the
definition of reporter for purposes of this section.
The bill (Eng. Com. Sub. for H. B. No. 2159), as amended, was
then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Williams, Wills, Yost and Kessler
(Acting President)--31.
The nays were: None.
Absent: Helmick, Wells and Tomblin (Mr. President)--3.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2159) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Williams, Wills, Yost and Kessler (Acting
President)--31.
The nays were: None.
Absent: Helmick, Wells and Tomblin (Mr. President)--3.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2159) 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. 2161, Creating the Herbert
Henderson Office of Minority Affairs.
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 four, section one, lines forty-three through forty-
six, by striking out all of subsection (c);
And,
On page five, section two, lines fifty-six and fifty-seven, by
striking out the words "by the Executive Director of the Herbert
Henderson Office of Minority Affairs".
The bill (Eng. Com. Sub. for H. B. No. 2161), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2513, Relating to the
practice of pharmacy.
On second reading, coming up in regular order, was read a
second time.
Senator McCabe requested unanimous consent that the bill be
advanced to third reading with the unreported Government
Organization committee amendment pending and the right for further
amendments to be considered on that reading.
Which consent was not granted, Senator Plymale objecting.
Senator McCabe then moved that the bill be advanced to third
reading with the unreported Government Organization committee
amendment pending and the right for further amendments to be
considered on that reading.
The question being on the adoption of Senator McCabe's
aforestated motion, the same was put.
The result of the voice vote being inconclusive, Senator
Plymale demanded a division of the vote.
A standing vote being taken, there were ten "yeas" and twenty
"nays".
Whereupon, the Acting President declared Senator McCabe's
motion had not prevailed.
Senator Unger then requested unanimous consent that further
consideration of the bill be deferred until the conclusion of bills
on today's second reading calendar.
Which consent was not granted, Senator Plymale objecting.
Senator Unger then moved that further consideration of the
bill be deferred until the conclusion of bills on today's second
reading calendar.
The question being on the adoption of Senator Unger's
aforestated motion, the same was put.
The result of the voice vote being inconclusive, Senator Unger
demanded a division of the vote.
A standing vote being taken, there were eight "yeas" and
twenty-two "nays".
Whereupon, the Acting President declared Senator Unger's
motion had not prevailed.
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 §30-5-1a, §30-5-1b, §30-5-2a, §30-5-3a, §30-5-5a, §30-5-
5b, §30-5-6a, §30-5-7a, §30-5-7b, §30-5-7c, §30-5-9a, §30-5-10a,
§30-5-12b, §30-5-12c, §30-5-14a, §30-5-14b, §30-5-16a, §30-5-16b,
§30-5-16c and §30-5-22a of the Code of West Virginia, 1931, as
amended, be repealed; that §16-5A-9a of said code be amended and
reenacted; that §30-5-1, §30-5-2, §30-5-3, §30-5-4, §30-5-5, §30-5-
6, §30-5-7, §30-5-8, §30-5-9, §30-5-10, §30-5-11, §30-5-12, §30-5-
13, §30-5-14, §30-5-15, §30-5-16, §30-5-17, §30-5-18, §30-5-19,
§30-5-20, §30-5-21, §30-5-22, §30-5-23, §30-5-24, §30-5-26, §30-5-
27, §30-5-28 and §30-5-30 of said code be amended and reenacted;
that said code be amended by adding thereto new sections,
designated §30-5-25, §30-5-29, §30-5-31, §30-5-32, §30-5-33 and
§30-5-34; and that §60A-10-3 of said code be amended and reenacted,
all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5A. CANCER CONTROL.
§16-5A-9a. Laetrile use; informed consent.
A hospital or other health care facility may not interfere
with the physician-patient relationship by restricting or
forbidding the intravenous use of amygdalin (laetrile) as certified
in accordance with
section sixteen-a, article five, chapter thirty of this code, as an adjunct to recognized, customary or accepted
modes of therapy in the treatment of any malignancy for terminally
ill cancer patients when it is prescribed or administered by a
physician holding an unlimited license for the practice of medicine
in the State of West Virginia and the patient has signed the
"written informed request" therefor as set forth in this section:
Provided, That a parent or guardian may sign the "written informed
request" on a minor's behalf.
In the event that no recognized, customary or accepted mode of
therapy is available for the treatment of any malignancy for a
terminally ill cancer patient, the physician may prescribe or
administer intravenous amygdalin (laetrile), as certified in
accordance with
section sixteen-a, article five, chapter thirty of
this code, as the sole mode of therapy, providing further that said
patient executed the "written informed request" as set forth in
this section.
Any physician, hospital or other health care facility
participating in any act permitted or required by this section is
immune from any civil or criminal liability that otherwise might
result by reason of such actions. A physician may not be subjected
to disciplinary action by the State Board of Medicine of West
Virginia for prescribing or administering intravenous amygdalin
(laetrile), in compliance with the provisions of this section.
Nothing in this section shall be construed as constituting an endorsement of amygdalin (laetrile), as certified in accordance
with
section sixteen-a, article five, chapter thirty of this code,
for the treatment of any malignancy, disease, illness or physical
condition.
The "written informed request" referred to in this section
shall be on a form prepared by and obtained from the state
department of health and shall be in substance as follows:
"WRITTEN INFORMED REQUEST" FOR PRESCRIPTION OF
INTRAVENOUS AMYGDALIN (LAETRILE) FOR
MEDICAL TREATMENT
Patient's name: ____________________________________________
Address ____________________________________________________
Age _______________________ Sex ____________________________
Name and address of prescribing physician: ____________________________________________________________
Nature of malignancy diagnosed for medical treatment by
amygdalin (laetrile):
____________________________________________________________
____________________________________________________________
____________________________________________________________
My physician has explained to me:
(a) That the manufacture and distribution of amygdalin
(laetrile) has not been approved by the Federal Food and Drug
Administration.
(b) That neither the American Cancer Society, the American Medical Association nor the West Virginia State Medical Association
recommends use of amygdalin (laetrile) in the treatment of any
malignancy, disease, illness or physical condition.
(c) That there are alternative recognized treatments for the
malignancy, disease, illness or physical condition from which I
suffer which he or she has offered to provide for me including:
(here describe) (state "none" if applicable) _______________
________________________________________________________________
________________________________________________________________
(d) That I have the right to refuse or terminate the
intravenous use of laetrile at any time.
I understand that physicians, hospitals or health care
facilities are immune from civil and criminal liability for
prescribing or administering amygdalin (laetrile) in compliance
with state statutes.
That notwithstanding the foregoing, I hereby request
prescription and use of intravenous amygdalin (laetrile) in the
medical treatment of the malignancy from which I suffer.
____________________________________________________________
Patient or person signing for patient
Date of execution of request
_______________________________
ATTEST:
____________________________________________________
Prescribing physician
The prescribing physician shall forward a copy of the written informed request to the state registrar of vital statistics within
ten days of the execution of such request and shall retain a copy
of the request in the patient's medical file.
ARTICLE 5. PHARMACISTS, PHARMACY TECHNICIANS, PHARMACY INTERNS AND
PHARMACIES.
§30-5-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to
practice pharmacist care or practice or offer to assist in the
practice of pharmacist care in this state without a license or
registration, issued under the provisions of this article, or
advertise or use any title or description tending to convey or give
the impression that they are a pharmacist or pharmacy technician,
unless the person is licensed or registered under the provisions of
this article.
(b) A business entity may not render any service or engage in
any activity which, if rendered or engaged in by an individual,
would constitute the practice of pharmacist care, except through a
pharmacist.
(c) It is unlawful for the proprietor of a pharmacy or a
ambulatory health care facility to permit any person not a licensed
pharmacist to practice pharmacist care,
Provided, That a charitable
clinic pharmacy may permit a licensed practitioner to act in place
of the pharmacist when no pharmacist is present in the charitable
clinic.
§30-5-2. Applicable law.
The practices authorized under the provisions of this article
and the Board of Pharmacy are subject to article one of this
chapter, the provisions of this article, and any rules promulgated
hereunder.
§30-5-3. Definitions.
The following words and phrases have the following meaning:
(1) "Ambulatory health care facility" as defined in article
five-b, chapter sixteen of this code, that has a pharmacy, offers
pharmacist care, or is otherwise engaged in the practice of
pharmacist care.
(2) "Active ingredients" means chemicals, substances, or other
components of articles intended for use in the diagnosis, cure,
mitigation, treatment, or prevention of diseases in humans or
animals or for use as nutritional supplements.
(3) "Administer" means the direct application of a drug to the
body of a patient or research subject by injection, inhalation,
ingestion or any other means.
(4) "Board" means the West Virginia Board of Pharmacy.
(5) "Board authorization" means a license, registration or
permit issued under this article.
(6) "Brand name" means the proprietary or trade name selected
by the manufacturer and placed upon a drug or drug product, its
container, label or wrapping at the time of packaging.
(7) "Cash retail sales price" means the price paid by the
consumer which is not affected by contractual, governmental or
private third party payors.
(8) "Chain pharmacy warehouse" means a permanent physical
location for drugs and/or devices that acts as a central warehouse
and performs intracompany sales and transfers of prescription drugs
or devices to chain pharmacies, which are members of the same
affiliated group, under common ownership and control.
(9) "Charitable clinic pharmacy" means a clinic or facility
organized as a not-for-profit corporation that has a pharmacy,
offers pharmacist care, or is otherwise engaged in the practice of
pharmacist care and dispenses its prescriptions free of charge to
appropriately screened and qualified indigent patients.
(10) "Collaborative pharmacy practice" is that practice of
pharmacist care where one or more pharmacists have jointly agreed,
on a voluntary basis, to work in conjunction with one or more
physicians under written protocol where the pharmacist or
pharmacists may perform certain patient care functions authorized
by the physician or physicians under certain specified conditions
and limitations.
(11) "Collaborative pharmacy practice agreement" is a written
and signed agreement between a pharmacist, a physician and the
individual patient, or the patient's authorized representative who
has granted his or her informed consent, that provides for collaborative pharmacy practice for the purpose of drug therapy
management of a patient, which has been approved by the board, the
Board of Medicine in the case of an allopathic physician or the
West Virginia Board of Osteopathy in the case of an osteopathic
physician.
(12) "Common carrier" means any person or entity who
undertakes, whether directly or by any other arrangement, to
transport property including prescription drugs for compensation.
(13) "Component" means any active ingredient or added
substance intended for use in the compounding of a drug product,
including those that may not appear in such product.
(14) "Confidential information" means information maintained
by the pharmacist in the patient record or which is communicated to
the patient as part of patient counseling or which is communicated
by the patient to the pharmacist. This information is privileged
and may be released only to the patient or to other members of the
health care team and other pharmacists where, in the pharmacists'
professional judgment, the release is necessary to the patient's
health and well-being; to health plans, as that term is defined in
45 CFR §160.103, for payment; to other persons or governmental
agencies authorized by law to receive the privileged information;
as necessary for the limited purpose of peer review and utilization
review; as authorized by the patient or required by court order.
(15) "Deliver" or "delivery" means the actual, constructive or attempted transfer of a drug or device from one person to another,
whether or not for a consideration.
(16) "Device" means an instrument, apparatus, implement or
machine, contrivance, implant or other similar or related article,
including any component part or accessory, which is required under
federal law to bear the label: "Caution: Federal or state law
requires dispensing by or on the order of a physician".
(17) "Digital Signature" means an electronic signature based
upon cryptographic methods of originator authentication, and
computed by using a set of rules and a set of parameters so that
the identity of the signer and the integrity of the data can be
verified.
(18) "Dispense" or "dispensing" means the interpretation,
evaluation, and implementation of a prescription drug order,
including the preparation, verification and delivery of a drug or
device to a patient or patient's agent in a suitable container
appropriately labeled for subsequent administration to, or use by,
a patient.
(19) "Distribute" or "distribution" means to sell, offer to
sell, deliver, offer to deliver, broker, give away, or transfer a
drug, whether by passage of title, physical movement, or both. The
term does not include:
(A) To dispense or administer;
(B) (i) Delivering or offering to deliver a drug by a common carrier in the usual course of business as a common carrier; or
providing a drug sample to a patient by a practitioner licensed to
prescribe such drug; or
(ii) A health care professional acting at the direction and
under the supervision of a practitioner; or the pharmacy of a
hospital or of another health care entity that is acting at the
direction of such a practitioner and that received such sample in
accordance with the Prescription Drug Marketing Act and regulations
to administer or dispense.
(20) "Drop shipment" means the sale of a prescription drug to
a wholesale distributor by the manufacturer of the prescription
drug or by that manufacturer's co-licensed product partner, that
manufacturer's third party logistics provider, that manufacturer's
exclusive distributor, or by an authorized distributor of record
that purchased the product directly from the manufacturer or from
one of these entities whereby:
(A) The wholesale distributor takes title to but not physical
possession of such prescription drug;
(B) The wholesale distributor invoices the pharmacy, pharmacy
warehouse, or other person authorized by law to dispense or
administer such drug; and
(C) The pharmacy, pharmacy warehouse or other person
authorized by law to dispense or administer such drug receives
delivery of the prescription drug directly from the manufacturer or from that manufacturer's co-licensed product partner, that
manufacturer's third party logistics provider, that manufacturer's
exclusive distributor, or from an authorized distributor of record
that purchased the product directly from the manufacturer or from
one of these entities.
(21) "Drug" means:
(A) Articles recognized as drugs by the United States Food and
Drug Administration, or in any official compendium, or supplement
thereto, designated by the board for use in the diagnosis, cure,
mitigation, treatment, or prevention of disease in humans or other
animals;
(B) Articles, other than food, intended to affect the
structure or any function of the body of human or other animals;
and
(C) Articles intended for use as a component of any articles
specified in paragraph (A) or (B) of this subdivision.
(22) "Drug regimen review" includes, but is not limited to,
the following activities:
(A) Evaluation of the prescription drug orders and patient
records for:
(i) Known allergies;
(ii) Rational therapy-contraindications;
(iii) Reasonable dose and route of administration; and
(iv) Reasonable directions for use.
(B) Evaluation of the prescription drug orders and patient
records for duplication of therapy.
(C) Evaluation of the prescription drug for interactions
and/or adverse effects which may include, but are not limited to,
any of the following:
(i) Drug-drug;
(ii) Drug-food;
(iii) Drug-disease; and
(iv) Adverse drug reactions.
(D) Evaluation of the prescription drug orders and patient
records for proper use, including overuse and underuse and optimum
therapeutic outcomes.
(E) All drug regimen review activities according to
subdivision (22).
(23) "Drug therapy management" means the review of drug
therapy regimens of patients by a pharmacist for the purpose of
evaluating and rendering advice to a physician regarding adjustment
of the regimen in accordance with the collaborative pharmacy
practice agreement. Decisions involving drug therapy management
shall be made in the best interest of the patient. Drug therapy
management shall be limited to:
(A) Implementing, modifying and managing drug therapy
according to the terms of the collaborative pharmacy practice
agreement;
(B) Collecting and reviewing patient histories;
(C) Obtaining and checking vital signs, including pulse,
temperature, blood pressure and respiration; and
(D) Ordering screening laboratory tests that are dose related
and specific to the patient's medication or are protocol driven and
are also specifically set out in the collaborative pharmacy
practice agreement between the pharmacist and physician.
(24) "Electronic data intermediary" means an entity that
provides the infrastructure to connect a computer system, hand-held
electronic device or other electronic device used by a prescribing
practitioner with a computer system or other electronic device used
by a pharmacy to facilitate the secure transmission of:
(A) An electronic prescription order;
(B) A refill authorization request;
(C) A communication; or
(D) Other patient care information.
(25) "E-prescribing" means the transmission, using electronic
media, of prescription or prescription-related information between
a practitioner, pharmacist, pharmacy benefit manager or health plan
as defined in 45 CFR §160.103, either directly or through an
electronic data intermediary. E-prescribing includes, but is not
limited to, two-way transmissions between the point of care and the
pharmacist. E-prescribing may also be referenced by the terms
"electronic prescription" or "electronic order".
(26) "Electronic Signature" means an electronic sound, symbol,
or process attached to or logically associated with a record and
executed or adopted by a person with the intent to sign the record.
(27) "Electronic transmission" means transmission of
information in electronic form or the transmission of the exact
visual image of a document by way of electronic equipment.
(28) "Emergency medical reasons" include, but are not limited
to, transfers of a prescription drug by one pharmacy to another
pharmacy to alleviate a temporary shortage of a prescription drug;
sales to nearby emergency medical services, i.e., ambulance
companies and firefighting organizations in the same state or same
marketing or service area, or nearby licensed practitioners of
prescription drugs for use in the treatment of acutely ill or
injured persons; and provision of minimal emergency supplies of
prescription drugs to nearby nursing homes for use in emergencies
or during hours of the day when necessary prescription drugs cannot
be obtained.
(29) "Equivalent drug product" means a drug product which has
the same established name, active ingredient(s), strength or
concentration, dosage form, and route of administration and which
is formulated to contain the same amount of active ingredient(s) in
the same dosage form and to meet the same compendial or other
applicable standards (e.g., strength, quality, purity, and
identity) and is approved by the United States Food and Drug Administration, but which may differ in characteristics, such as
shape, scoring, configuration, packaging, excipients (including
colors, flavors, and preservatives), and expiration time.
Pharmacists may utilize as a basis for the determination of generic
equivalency Approved Drug Products with Therapeutic Equivalence
Evaluations and current supplements published by the Federal Food
and Drug Administration, within the limitations stipulated in that
publication.
(30) "Exclusive distributor" means an entity that:
(A) Contracts with a manufacturer to provide or coordinate
warehousing, wholesale distribution, or other services on behalf of
a manufacturer and who takes title to that manufacturer's
prescription drug, but who does not have general responsibility to
direct the sale or disposition of the manufacturer's prescription
drug; and
(B) Is licensed as a wholesale distributor under this chapter.
(31) "FDA" means the Food and Drug Administration, a federal
agency within the United States Department of Health and Human
Services.
(32) "Generic name" means the official title of a drug or drug
combination for which a new drug application, or an abbreviated new
drug application, has been approved by the FDA.
(33) "Health care entity" means any person that provides
diagnostic, medical, community pharmacies, surgical, dental treatment, or rehabilitative care but does not include any retail
pharmacy or wholesale distributor.
(34) "Health information" means any information, whether oral
or recorded in any form or medium, that:
(A) Is created or received by a health care provider, health
plan, public health authority, employer, life insurer, school or
university, or health care clearinghouse; and
(B) Relates to the past, present, or future physical or mental
health or condition of an individual; the provision of health care
to an individual; or the past, present, or future payment for the
provision of health care to an individual.
(35) "HIPAA" is the federal Health Insurance Portability and
Accountability Act of 1996 (Public Law 104-191).
(36) "Immediate container" means a container and does not
include package liners.
(37) "Individually identifiable health information" is
information that is a subset of health information, including
demographic information collected from an individual and is created
or received by a health care provider, health plan, employer, or
health care clearinghouse; and relates to the past, present, or
future physical or mental health or condition of an individual; the
provision of health care to an individual; or the past, present, or
future payment for the provision of health care to an individual;
and that identifies the individual; or with respect to which there is a reasonable basis to believe the information can be used to
identify the individual.
(38) "Intracompany transaction" means any transaction between
a division, subsidiary, parent, and/or affiliated or related
company under the common ownership and control of a corporate or
other legal business entity.
(39) "Label" means a display of written, printed, or graphic
matter upon the immediate container of any drug or device.
(40) "Labeling" means the process of preparing and affixing a
label to a drug container exclusive, however, of a labeling by a
manufacturer, packer or distributor of a nonprescription drug or
commercially packaged legend drug or device.
(41) "Long-term care facility" means a nursing home,
retirement care, mental care, or other facility or institution that
provides extended health care to resident patients.
(42) "Mail-order pharmacy" means a pharmacy, regardless of its
location, which dispenses greater than twenty-five percent
prescription drugs via the mail or other delivery services.
(43) "Manufacturer" means a person engaged in the manufacture
of drugs or devices.
(44) "Manufacturing" means the production, preparation,
propagation or processing of a drug or device, either directly or
indirectly, by extraction from substances of natural origin or
independently by means of chemical or biological synthesis and includes any packaging or repackaging of the substance or
substances or labeling or relabeling of its contents and the
promotion and marketing of the drugs or devices. Manufacturing
also includes the preparation and promotion of commercially
available products from bulk compounds for resale by pharmacies,
practitioners or other persons.
(45) "Medical order" means a lawful order of a practitioner
that may or may not include a prescription drug order.
(46) "Medication therapy management" is a distinct service or
group of services that optimize therapeutic outcomes for individual
patients. Medication therapy management services are independent
of, but can occur in conjunction with, the provision of a
medication or a medical device. Medication therapy management
encompasses a broad range of professional activities and
responsibilities within the licensed pharmacist's scope of
practice. These services may include, but are not limited to, the
following, according to the individual needs of the patient:
(A) Performing or obtaining necessary assessments of the
patient's health status;
(B) Formulating a medication treatment plan;
(C) Administering medications, or recommending to a prescriber
the selection, initiation or modification of medication therapy;
(D) Monitoring and evaluating the patient's response to
therapy, including safety and effectiveness;
(E) Performing a comprehensive medication review to identify,
resolve, and prevent medication-related problems, including adverse
drug events;
(F) Documenting the care delivered and communicating essential
information to the patient's primary care providers;
(G) Providing verbal education and training designed to
enhance patient understanding and appropriate use of his or her
medications;
(H) Providing information, support services and resources
designed to enhance patient adherence with his or her therapeutic
regimens;
(I) Coordinating and integrating medication therapy management
services within the broader health care management services being
provided to the patient; and
(J) Such other patient care services as may be allowed by law.
(47) "Misbranded" means a drug or device that has a label that
is false or misleading in any particular; or the label does not
bear the name and address of the manufacturer, packer, or
distributor and does not have an accurate statement of the
quantities of the active ingredients in the case of a drug; or the
label does not show an accurate monograph for prescription drugs.
(48) "Nonprescription drug" means a drug which may be sold
without a prescription and which is labeled for use by the consumer
in accordance with the requirements of the laws and rules of this state and the federal government.
(49) "Normal distribution channel" means a chain of custody
for a prescription drug that goes from a manufacturer of the
prescription drug, the manufacturer's third-party logistics
provider, or the manufacturer's exclusive distributor to:
(A) A wholesale distributor to a pharmacy to a patient or
other designated persons authorized by law to dispense or
administer such prescription drug to a patient;
(B) A wholesale distributor to a chain pharmacy warehouse to
that chain pharmacy warehouse's intracompany pharmacy to a patient
or other designated persons authorized by law to dispense or
administer such prescription drug to a patient;
(C) A chain pharmacy warehouse to that chain pharmacy
warehouse's intracompany pharmacy to a patient or other designated
persons authorized by law to dispense or administer such
prescription drug to a patient;
(D) A pharmacy or to other designated persons authorized by
law to dispense or administer such prescription drug to a patient;
or
(E) As prescribed by the board's rules.
(50) "Patient counseling" means the oral communication by the
pharmacist of information, as defined in the rules of the board, to
the patient to improve therapy by aiding in the proper use of drugs
and devices.
(51) "Pedigree" means a statement or record in a written form
or electronic form, approved by the board, that records each
wholesale distribution of any given prescription drug (excluding
veterinary prescription drugs), which leaves the normal
distribution channel.
(52) "Person" means an individual, corporation, partnership,
association or any other legal entity, including government.
(53) "Pharmacist" means an individual currently licensed by
this state to engage in the practice of pharmacist care.
(54) "Pharmacist care" is the provision of health care by a
pharmacist of medication therapy management services, with or
without the dispensing of drugs or devices, intended to achieve
outcomes related to the cure or prevention of a disease,
elimination or reduction of a patient's symptoms, or arresting or
slowing of a disease process, and as provided for in section nine.
(55) "Pharmacist-in-charge" means a pharmacist currently
licensed in this state who accepts responsibility for the operation
of a pharmacy in conformance with all laws and legislative rules
pertinent to the practice of pharmacist care and the distribution
of drugs and who is personally in full and actual charge of the
pharmacy and personnel.
(56) "Pharmacist's scope of practice pursuant to the
collaborative pharmacy practice agreement" means those duties and
limitations of duties placed upon the pharmacist by the collaborating physician, as jointly approved by the board and the
Board of Medicine or the Board of Osteopathy.
(57) "Pharmacy" means any place within this state where drugs
are dispensed and pharmacist care is provided and any place outside
of this state where drugs are dispensed and pharmacist care is
provided to residents of this state.
(58) "Pharmacy intern" or "intern" means an individual who is
currently licensed to engage in the practice of pharmacist care
while under the supervision of a pharmacist.
(59) "Pharmacy technician" means a person registered with the
board to practice certain tasks related to the practice of
pharmacist care as permitted by the board.
(60) "Physician" means an individual currently licensed, in
good standing and without restrictions, as an allopathic physician
by the West Virginia Board of Medicine or an osteopathic physician
by the West Virginia Board of Osteopathy.
(61) "Practice of telepharmacy" means the provision of
pharmacist care by properly licensed pharmacists located within
United States jurisdictions through the use of telecommunications
or other technologies to patients or their agents at a different
location that are located within United States jurisdictions.
(62) "Practitioner" means an individual authorized by a
jurisdiction of the United States to prescribe drugs in the course
of professional practices, as allowed by law.
(63) "Prescription drug" or "legend drug" means a drug which,
prior to being dispensed and delivered:
(A) Is required under Federal law to be labeled with one of
the following statements:
(i) "Rx Only";
(ii) "Caution: Federal law prohibits dispensing without
prescription";
(iii) "Caution: Federal law restricts this drug to use by, or
on the order of, a licensed veterinarian"; or
(B) Is required by any applicable federal or state law or rule
to be dispensed pursuant only to a prescription drug order or is
restricted to use by practitioners only.
(64) "Prescription or prescription drug order" means a lawful
order from a practitioner for a drug or device for a specific
patient, including orders derived from collaborative pharmacy
practice, where a valid patient-practitioner relationship exists,
that is communicated to a pharmacist in a pharmacy.
(65) "Product labeling" means all labels and other written,
printed, or graphic matter upon any article or any of its
containers or wrappers, or accompanying such article.
(66) "Repackage" means changing the container, wrapper,
quantity, or product labeling of a drug or device to further the
distribution of the drug or device.
(67) "Repackager" means a person who repackages.
(68) "Substitute" means to dispense without the prescriber's
express authorization a therapeutically equivalent generic drug
product in the place of the drug ordered or prescribed.
(69) "Therapeutic equivalence" means drug products classified
as therapeutically equivalent can be substituted with the full
expectation that the substituted product will produce the same
clinical effect and safety profile as the prescribed product which
contain the same active ingredient(s); dosage form and route of
administration; and strength.
(70) "Third-party logistics provider" means an entity that:
(A) Provides or coordinates warehousing, distribution, or
other services on behalf of a manufacturer, but does not take title
to the prescription drug or have general responsibility to direct
the prescription drug's sale or disposition; and
(B) Is licensed as a wholesale distributor under this article.
(71) "Valid patient-practitioner relationship" means the
following have been established:
(A) A patient has a medical complaint;
(B) A medical history has been taken;
(C) A face-to-face physical examination adequate to establish
the medical complaint has been performed by the prescribing
practitioner or in the instances of telemedicine through
telemedicine practice approved by the appropriate practitioner
board; and
(D) Some logical connection exists between the medical
complaint, the medical history, and the physical examination and
the drug prescribed.
(72) "Wholesale distribution" means the distribution of
prescription drugs or devices by wholesale distributors to persons
other than consumers or patients, and includes the transfer of
prescription drugs by a pharmacy to another pharmacy if the value
of the goods transferred exceeds 5% of total prescription drug
sales revenue of either the transferor or transferee pharmacy
during any consecutive 12 month period. Wholesale distribution does
not include:
(A) The sale, purchase, or trade of a prescription drug or
device, an offer to sell, purchase, or trade a prescription drug or
device, or the dispensing of a prescription drug or device pursuant
to a prescription;
(B) The sale, purchase, or trade of a prescription drug or
device or an offer to sell, purchase, or trade a prescription drug
or device for emergency medical reasons;
(C) Intracompany transactions, unless in violation of own use
provisions;
(D) The sale, purchase, or trade of a prescription drug or
device or an offer to sell, purchase, or trade a prescription drug
or device among hospitals, chain pharmacy warehouses, pharmacies,
or other health care entities that are under common control;
(E) The sale, purchase, or trade of a prescription drug or
device or the offer to sell, purchase, or trade a prescription drug
or device by a charitable organization described in 503(c)(3) of
the Internal Revenue Code of 1954 to a nonprofit affiliate of the
organization to the extent otherwise permitted by law;
(F) The purchase or other acquisition by a hospital or other
similar health care entity that is a member of a group purchasing
organization of a prescription drug or device for its own use from
the group purchasing organization or from other hospitals or
similar health care entities that are members of these
organizations;
(G) The sale, purchase, or trade of blood and blood components
intended for transfusion;
(H) The return of recalled, expired, damaged, or otherwise
non-salable prescription drugs, when conducted by a hospital,
health care entity, pharmacy, or charitable institution in
accordance with the board's rules; or
(I) The sale, transfer, merger, or consolidation of all or
part of the business of a pharmacy or pharmacies from or with
another pharmacy or pharmacies, whether accomplished as a purchase
and sale of stock or business assets, in accordance with the
board's legislative rules.
(73) "Wholesale distributor" means a person engaged in
wholesale distribution of drugs, including, but not limited to, manufacturers' and distributors' warehouses, chain drug warehouses
and wholesale drug warehouses, independent wholesale drug trader
and retail pharmacies that conduct wholesale distributions.
§30-5-4. West Virginia Board of Pharmacy.
(a) The West Virginia Board of Pharmacy is continued. The
members of the board in office on July 1, 2011, shall, unless
sooner removed, continue to serve until their respective terms
expire and until their successors have been appointed and
qualified.
(b) The Governor, by and with the advice and consent of the
Senate, shall appoint:
(1) Five members who are licensed to practice pharmacist care
in this state; and
(2) Two citizen members, who are not licensed under the
provisions of this article, and who do not perform any services
related to the practice of the pharmacist care regulated under the
provisions of this article.
(c) The appointment term is five years. A member may not
serve more than two consecutive terms. A member who has served two
consecutive full terms may not be reappointed for at least one year
after completion of his or her second full term. A member may
continue to serve until his or her successor has been appointed and
qualified.
(d) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a
period of not less than three years immediately preceding the
appointment.
(e) Each member of the board must be a resident of this state
during the appointment term.
(f) A vacancy on the board shall be filled by appointment by
the Governor for the unexpired term of the member whose office is
vacant and the appointment shall be made within 60 days of the
vacancy.
(g) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(h) A licensed member of the board immediately and
automatically forfeits membership to the board if his or her
license to practice is suspended or revoked in any jurisdiction.
(i) A member of the board immediately and automatically
forfeits membership to the board if he or she is convicted of a
felony under the laws of any jurisdiction or becomes a nonresident
of this state.
(j) The board shall elect annually one of its members as
president, one member as vice-president and one member as treasurer
who shall serve at the will and pleasure of the board.
(k) Each member of the board is entitled to receive
compensation and expense reimbursement in accordance with article
one of this chapter.
(l) A majority of the members of the board constitutes a
quorum.
(m) The board shall hold at least two meetings annually.
Other meetings shall be held at the call of the chairperson or upon
the written request of three members, at the time and place as
designated in the call or request.
(n) Prior to commencing his or her duties as a member of the
board, each member shall take and subscribe to the oath required by
section five, article four of the Constitution of this state.
§30-5-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this
article, by rule, in article one of this chapter and elsewhere in
law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer
examinations;
(2) Establish requirements for a license, permit and
registration;
(3) Establish procedures for submitting, approving and
rejecting applications for a license, permit and registration;
(4) Determine the qualifications of any applicant for a
license, permit and registration;
(5) Determine the passing grade for examinations;
(6) Establish a fee schedule;
(7) Issue, renew, deny, suspend, revoke or reinstate a
license, permit, and registration;
(8) Prepare, conduct, administer and grade written, oral or
written and oral examinations for a license and registration;
(9) Establish continuing education requirements;
(10) Maintain records of the examinations the board or a third
party administers, including the number of persons taking the
examination and the pass and fail rate;
(11) Maintain an office, and hire, discharge, establish the
job requirements and fix the compensation of employees and contract
with persons necessary to enforce the provisions of this article.
Inspectors shall be licensed pharmacists;
(12) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the
board;
(13) Conduct disciplinary hearings of persons regulated by the
board;
(14) Determine disciplinary action and issue orders;
(15) Institute appropriate legal action for the enforcement of
the provisions of this article;
(16) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
(17) Keep accurate and complete records of its proceedings,
and certify the same as may be necessary and appropriate;
(18) Propose rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code to implement the
provisions of this article; and
(19) Take all other actions necessary and proper to effectuate
the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer the examinations
required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this
state; and
(3) Confer with the Attorney General or his or her assistant
in connection with legal matters and questions.
§30-5-6. Rule-making authority.
(a) The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, to implement the provisions of this article,
and articles two, three, eight, nine and ten of chapter sixty-a
including:
(1) Standards and requirements for a license, permit and
registration;
(2) Educational and experience requirements;
(3) Procedures for examinations and reexaminations;
(4) Requirements for third parties to prepare, administer or
prepare and administer examinations and reexaminations;
(5) The passing grade on the examination;
(6) Procedures for the issuance and renewal of a license,
permit and registration;
(7) A fee schedule;
(8) Continuing education requirements;
(9) Set standards for professional conduct;
(10) Establish equipment and facility standards for
pharmacies;
(11) Approve courses and standards for training pharmacist
technicians;
(12) Regulation of charitable clinic pharmacies;
(13) Regulation of mail order pharmacies;
(14) Agreements with organizations to form pharmacist recovery
networks;
(15) Creating an alcohol or chemical dependency treatment
program;
(16) Establishing a ratio of pharmacy technicians to on-duty
pharmacist operating in any outpatient, mail order or institutional
pharmacy;
(17) Regulation of telepharmacy;
(18) Establishing the minimum standards for a charitable
clinic pharmacy and rules regarding the applicable definition of a
pharmacist-in-charge, who may be a volunteer, at charitable clinic
pharmacies:
Provided, That a charitable clinic pharmacy may not be charged any applicable licensing fees and such clinics may receive
donated drugs;
(19) Establish standards for substituted drug products;
(20) Establish the regulations for E-prescribing;
(21) Establish the proper use of the automated data processing
system;
(22) Registration and control of the manufacture and
distribution of controlled substances within this state;
(23) Regulation of pharmacies;
(24) Sanitation and equipment requirements for wholesalers,
distributers and pharmacies;
(25) Procedures for denying, suspending, revoking, reinstating
or limiting the practice of a pharmacist, pharmacy technician or
person holding a permit;
(26) Regulations on prescription paper as provided in article
five-w, chapter sixteen;
(27) Regulations on controlled substances as provided in
article two, chapter sixty-a;
(28) Regulations on manufacturing, distributing, or dispensing
any controlled substance as provided in article three, chapter
sixty-a;
(29) Regulations on wholesale drug distribution as provided in
article eight, chapter sixty-a;
(30) Regulations on controlled substances monitoring as provided in article nine, chapter sixty-a;
(31) Regulations on Methamphetamine Laboratory Eradication Act
as provided in article ten, chapter sixty-a; and
(32) Any other rules necessary to effectuate the provisions of
this article.
(b) The board may provide an exemption to the pharmacist-in-
charge requirement for the opening of a new retail pharmacy or
during a declared emergency.
(c) The board, the Board of Medicine and the Board of
Osteopathy shall jointly agree and propose rules concerning
collaborative pharmacy practice for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of the code.
(d) The Board with the advice of the Board of Medicine and the
Board of Osteopathy shall propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code to perform influenza and pneumonia
immunizations, on a person of eighteen years of age or older.
These rules shall provide, at a minimum, for the following:
(1) Establishment of a course, or provide a list of approved
courses, in immunization administration. The courses must be based
on the standards established for such courses by the Centers for
Disease Control and Prevention in the public health service of the
United States Department of Health and Human Services;
(2) Definitive treatment guidelines which shall include, but
not be limited to, appropriate observation for an adverse reaction
of an individual following an immunization;
(3) Prior to administration of immunizations, a pharmacist
shall have completed a board approved immunization administration
course and completed an American Red Cross or American Heart
Association basic life-support training, and maintain certification
in the same;
(4) Continuing education requirements for this area of
practice;
(5) Reporting requirements for pharmacists administering
immunizations to report to the primary care physician or other
licensed health care provider as identified by the person receiving
the immunization;
(6) Reporting requirements for pharmacists administering
immunizations to report to the West Virginia Statewide Immunization
Information (WVSII);
(7) That a pharmacist may not delegate the authority to
administer immunizations to any other person, unless administered
by a licensed pharmacy intern under the direct supervision of a
pharmacist of whom both pharmacist and intern have successfully
completed all board required training; and
(8) Any other provisions necessary to implement the provisions
of this section.
(e) The board, the Board of Medicine and the Board of
Osteopathy shall propose joint rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code to permit licensed pharmacists to administer
other immunizations any may include, but is not limited to,
Hepatitis A, Hepatitis B, Herpes Zoster and Tetanus. These rules
shall provide, at a minimum, the same provisions contained in
subsection (d) of this section.
(f) All of the board's rules in effect on July 1, 2011, shall
remain in effect until they are amended, modified, repealed or
replaced.
§30-5-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines,
received by the board shall be deposited in a separate special
revenue fund in the State Treasury designated the "Board of
Pharmacy Fund", which fund is continued. The fund is used by the
board for the administration of this article. Except as may be
provided in article one of this chapter, the board shall retain the
amounts in the special revenue account from year to year. Any
compensation or expense incurred under this article is not a charge
against the General Revenue Fund.
(b) The board shall deposit any amounts received as
administrative fines imposed pursuant to this article into the
General Revenue Fund of the State Treasury.
§30-5-8. Qualifications for licensure as pharmacist;
(a) To be eligible for a license to practice pharmacist care
under the provisions of this article, the applicant must:
(1) Submit a written application to the board;
(2) Be eighteen years of age or older;
(3) Pay all applicable fees;
(4) Graduate from a recognized school of pharmacy;
(5) Complete at least fifteen hundred hours of internship in
a pharmacy under the instruction and supervision of a pharmacist;
(6) Pass an examination or examinations approved by the board;
(7) Not be an alcohol or drug abuser, as these terms are
defined in section eleven, article one-a, chapter twenty-seven of
this code:
Provided, That an applicant in an active recovery
process, which may, in the discretion of the board, be evidenced by
participation in a twelve-step program or other similar group or
process, may be considered;
(8) Present to the board satisfactory evidence that he or she
is a person of good moral character, has not been convicted of a
felony involving controlled substances or violent crime;
(9) Not been convicted in any jurisdiction of a felony or any
crime which bears a rational nexus to the individual's ability to
practice pharmacist care; and
(10) Has fulfilled any other requirement specified by the
board in rule.
(b) An applicant from another jurisdiction shall comply with
all the requirements of this article.
§30-5-9. Scope practice for licensed pharmacist;
(a) A licensed pharmacist may:
(1) Provide care related to the interpretation, evaluation,
and implementation of medical orders;
(2) Dispense of prescription drug orders and participate in
drug and device selection;
(3) Provide drug administration;
(4) Provide drug regimen review;
(5) Provide drug or drug-related research;
(6) Perform patient counseling;
(7) Provide pharmacist care in all areas of patient care,
including collaborative pharmacy practice;
(8) Compound and label drugs and drug devices;
(9) Perform proper and safe storage of drugs and devices;
(10) Maintain proper records;
(11) Provide patient counseling concerning the therapeutic
value and proper use of drugs and devices;
(12) Order laboratory tests in accordance with drug therapy
management and medication therapy assessments management; and
(13) Provide medication therapy management.
(b) A pharmacist meeting the requirements as promulgated by
legislative rule may administer immunizations.
§30-5-10. Registration of pharmacy technicians;
(a) To be eligible for a registration as a pharmacy technician
to assist in the practice of pharmacist care, the applicant must:
(1) Submit a written application to the board;
(2) Be at least eighteen years of age;
(3) Pay the applicable fees;
(4) Have graduated from high school or obtained a Certificate
of General Educational Development (GED) or equivalent;
(5) Have:
(A) Graduated from a competency-based pharmacy technician
education and training program as approved the board; or
(B)Completed a pharmacy provided, competency-based education
and training program approved by the board;
(6) Commencing July 1, 2012, have successfully passed an
examination developed using nationally recognized and validated
psychometric and pharmacy practice standards approved by the board:
Provided, That any person registered as a pharmacy technician under
the provisions of this article prior to July 1, 2012 are exempt
from this requirement;
(7) Not be an alcohol or drug abuser, as these terms are
defined in section eleven, article one-a, chapter twenty-seven of
this code:
Provided, That an applicant in an active recovery
process, which may, in the discretion of the board, be evidenced by
participation in a twelve-step program or other similar group or process, may be considered;
(8) Not have been convicted of a felony in any jurisdiction
within ten years preceding the date of application for license
which conviction remains unreversed;
(9) Not have been convicted of a misdemeanor or felony in any
jurisdiction if the offense for which he or she was convicted
bearing a rational nexus to the practice of pharmacist care, which
conviction remains unreversed; and
(10) Have fulfilled any other requirement specified by the
board in rule.
(b) A person whose license to practice pharmacist care has
been denied, revoked, suspended, or restricted for disciplinary
purposes in any jurisdiction is not eligible to be registered as a
pharmacy technician.
(c) A person registered with the board to assist in the
practice of pharmacist care prior to July 1, 2011 shall for all
purposes be considered as registered under this article and may
renew pursuant to the provisions of this article.
§30-5-11. Scope practice for registered pharmacy technician;
(a) A pharmacy technician shall be under the direct
supervision of a pharmacist when:
(1) Assisting in the dispensing process;
(2) Receiving new, written or electronic prescription drug
orders;
(3) Compounding; and
(4) Stocking medications.
(b) A pharmacy technician may, under the indirect supervision
of a pharmacist, perform the following:
(1) Process medical coverage claims; and
(2) Cashier.
(c) A pharmacy technician shall not perform the following:
(1) Drug regimen review;
(2) Clinical conflict resolution;
(3) Contact a prescriber concerning prescription drug order
clarification or therapy modification;
(4) Patient counseling;
(5) Dispense process validation;
(6) Prescription transfer; and
(7) Receive new oral prescription drug orders.
(d) Indirect supervision of a pharmacy technician is permitted
to allow a pharmacist to take one break of no more than thirty
minutes during any contiguous eight hour period. The pharmacist may
leave the pharmacy area but may not leave the building during the
break. When a pharmacist is on break, a pharmacy technician may
continue to prepare prescriptions for the pharmacist's
verification. A prescription may not be delivered until the
pharmacist has verified the accuracy of the prescription, and
counseling, if required, has been provided to or refused by the patient.
(e) A pharmacy that permits indirect supervision of pharmacy
technician during a pharmacist's break shall have either an
interactive voice response system or a voice mail system installed
on the pharmacy phone line in order to receive new prescription
orders and refill authorizations during the break.
(f) The pharmacy shall establish protocols that require a
pharmacy technician to interrupt the pharmacist's break if an
emergency arises.
§30-5-12. Pharmacist interns.
(a) To be eligible for a license to assist in the practice of
pharmacist care as a pharmacy intern, the applicant must be:
(1) Enrolled in a professional degree program of a school or
college of pharmacy that has been approved by the board, is in good
standing and is satisfactorily progressing toward meeting the
requirements for licensure as a pharmacist;
(2) A graduate of an approved professional degree program of
a school or college of pharmacy or a graduate who has established
educational equivalency by obtaining a Foreign Pharmacy Graduate
Examination Committee Certificate, who is currently licensed by the
board for the purpose of obtaining practical experience as a
requirement for licensure as a pharmacist;
(3) A qualified applicant awaiting examination for licensure
or meeting board requirements for re-licensure; or
(4) An individual participating in a pharmacy residency or
fellowship program.
§30-5-13. Prohibiting the dispensing of prescription orders in
absence of practitioner-patient relationship.
(a) A pharmacist may not compound or dispense any prescription
order when the pharmacist has knowledge that the prescription was
issued by a practitioner without establishing an ongoing
practitioner-patient relationship. An online or telephonic
evaluation by questionnaire is inadequate to establish an
appropriate practitioner-patient relationship.
(b) The provisions of the section do not apply in the
following situations:
(1) A documented emergency;
(2) An on-call or cross-coverage situation; or
(3) Where patient care is rendered in consultation with
another practitioner who has an ongoing relationship with the
patient and who has agreed to supervise the patient's treatment,
including the use of any prescribed medications.
§30-5-14. License to practice pharmacist care from another
jurisdiction.
(a) The board may issue a license to practice pharmacist care
to an applicant who holds a valid license or other authorization to
practice pharmacist care from another state, if the applicant meets
the requirements of the rules for reciprocity promulgated by the board in accordance with the provisions of chapter twenty-nine-a of
this code;
Provided, That the board shall not issue a license to an
applicant that holds authorization to practice pharmacist care from
another state where that state does not permit reciprocity to
pharmacists licensed in West Virginia.
(b) The board may issue a license to practice pharmacist care
to an applicant who holds a valid license or other authorization to
practice pharmacist care from another country, if the applicant
meets the requirements of the rules for reciprocity for foreign
applicants promulgated by the board in accordance with the
provisions of chapter twenty-nine-a of this code.
§30-5-15. Renewal requirements.
(a) All persons regulated by this article shall annually or
biannually, renew his or her business authorization by completing
a form prescribed by the board and submitting any other information
required by the board.
(b) The board shall charge a fee for each renewal of a board
authorization and shall charge a late fee for any renewal not paid
by the due date.
(c) The board shall require as a condition of renewal that
each pharmacist or pharmacy technician complete continuing
education.
(d) The board may deny an application for renewal for any
reason which would justify the denial of an original application.
(e) Commencing July 1, 2013, a previously registered pharmacy
technician may renew his or her current registration without having
successfully completed subdivision (6), subsection (a), of section
ten. The previously registered pharmacy technician may continue to
renew his or her registration under this provision.
§30-5-16. Special volunteer pharmacist license; civil immunity for
voluntary services rendered to indigents.
(a) There is a special volunteer pharmacist license for
pharmacists retired or retiring from the active practice of
pharmacist care who wish to donate their expertise for the
pharmacist care and treatment of indigent and needy patients in the
clinic setting of clinics organized, in whole or in part, for the
delivery of health care services without charge. The special
volunteer pharmacist license shall be issued by the board to
pharmacists licensed or otherwise eligible for licensure under this
article and the legislative rules promulgated hereunder without the
payment of an application fee, license fee or renewal fee, and the
initial license shall be issued for the remainder of the licensing
period, and renewed consistent with the boards other licensing
requirements. The board shall develop application forms for the
special license provided in this subsection which shall contain the
pharmacist's acknowledgment that:
(1) The pharmacist's practice under the special volunteer
pharmacist license shall be exclusively devoted to providing pharmacist care to needy and indigent persons in West Virginia;
(2) The pharmacist may not receive any payment or
compensation, either direct or indirect, or have the expectation of
any payment or compensation, for any pharmacist care rendered under
the special volunteer pharmacist license;
(3) The pharmacist will supply any supporting documentation
that the board may reasonably require; and
(4) The pharmacist agrees to continue to participate in
continuing professional education as required by the board for the
special volunteer pharmacist license.
(b) Any pharmacist who renders any pharmaceutical service to
indigent and needy patients of a clinic organized, in whole or in
part, for the delivery of health care services without charge under
a special volunteer pharmacist license authorized under subsection
(a) of this section without payment or compensation or the
expectation or promise of payment or compensation is immune from
liability for any civil action arising out of any act or omission
resulting from the rendering of the pharmacist care at the clinic
unless the act or omission was the result of the pharmacist's gross
negligence or willful misconduct. In order for the immunity under
this subsection to apply, there must be a written agreement between
the pharmacist and the clinic pursuant to which the pharmacist
provides voluntary uncompensated pharmacist care under the control
of the clinic to patients of the clinic before the rendering of any services by the pharmacist at the clinic:
Provided, That any
clinic entering into such written agreement is required to maintain
liability coverage of not less than one million dollars per
occurrence.
(c) Notwithstanding the provisions of subsection (b) of this
section, a clinic organized, in whole or in part, for the delivery
of health care services without charge is not relieved from imputed
liability for the negligent acts of a pharmacist rendering
voluntary pharmaceutical services at or for the clinic under a
special volunteer pharmacist license authorized under subsection
(a) of this section.
(d) For purposes of this section, "otherwise eligible for
licensure" means the satisfaction of all the requirements for
licensure as listed in section eight of this article and in the
legislative rules promulgated thereunder, except the fee
requirements of that section and of the legislative rules
promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the
board to issue a special volunteer pharmacist license to any
pharmacist whose license is or has been subject to any disciplinary
action or to any pharmacist who has surrendered a license or caused
such license to lapse, expire and become invalid in lieu of having
a complaint initiated or other action taken against his or her
license, or who has elected to place a pharmacist license in inactive status in lieu of having a complaint initiated or other
action taken against his or her license, or who has been denied a
pharmacist license.
(f) Any policy or contract of liability insurance providing
coverage for liability sold, issued or delivered in this state to
any pharmacist covered under the provisions of this article shall
be read so as to contain a provision or endorsement whereby the
company issuing such policy waives or agrees not to assert as a
defense on behalf of the policyholder or any beneficiary thereof,
to any claim covered by the terms of such policy within the policy
limits, the immunity from liability of the insured by reason of the
care and treatment of needy and indigent patients by a pharmacist
who holds a special volunteer pharmacist license.
§30-5-17. Pharmacist requirements to participate in a collaborative
pharmacy practice agreement.
Before a pharmacist may participate in a collaborative
pharmacy practice agreement, the pharmacist shall:
(a) Have an unrestricted and current license to practice as a
pharmacist in West Virginia;
(b) Have at least one million dollars of professional
liability insurance coverage; and
(c) Meet one of the following qualifications, at a minimum:
(1) Earned a Certification from the Board of Pharmaceutical
Specialties, is a Certified Geriatric Practitioner, or has completed an American Society of Health System Pharmacists(ASHP)
accredited residency program, which includes two years of clinical
experience approved by the boards;
(2) Successfully completed the course of study and holds the
academic degree of Doctor of Pharmacy and has three years of
clinical experience approved by the board and has completed an
Accreditation Council for Pharmacy Education (ACPE) approved
certificate program in the area of practice covered by the
collaborative pharmacy practice agreement; or
(3) Successfully completed the course of study and hold the
academic degree of Bachelor of Science in Pharmacy and has five
years of clinical experience approved by the boards and has
completed two ACPE approved certificate programs with at least one
program in the area of practice covered by a collaborative pharmacy
practice agreement.
§30-5-18. Collaborative pharmacy practice agreement.
(a) A pharmacist engaging in collaborative pharmacy practice
shall have on file at his or her place of practice the
collaborative pharmacy practice agreement. The existence and
subsequent termination of the agreement and any additional
information the rules may require concerning the agreement,
including the agreement itself, shall be made available to the
appropriate licensing board for review upon request. The agreement
may allow the pharmacist, within the pharmacist's scope of practice pursuant to the collaborative pharmacy practice agreement, to
conduct drug therapy management activities approved by the
collaborating physician. The collaborative pharmacy practice
agreement must be a voluntary process, which is a physician
directed approach, that is entered into between an individual
physician, an individual pharmacist and an individual patient or
the patient's authorized representative who has given informed
consent.
(b) A collaborative pharmacy practice agreement may authorize
a pharmacist to provide drug therapy management. In instances
where drug therapy is discontinued, the pharmacist shall notify the
treating physician of the discontinuance in the time frame and in
the manner established by joint legislative rules. Each protocol
developed, pursuant to the collaborative pharmacy practice
agreement, shall contain detailed direction concerning the services
that the pharmacists may perform for that patient. The protocol
shall include, but is not be limited to:
(1) The specific drug or drugs to be managed by the
pharmacist;
(2) The terms and conditions under which drug therapy may be
implemented, modified or discontinued;
(3) The conditions and events upon which the pharmacist is
required to notify the physician; and
(4) The laboratory tests that may be ordered in accordance with drug therapy management.
(c) All activities performed by the pharmacist in conjunction
with the protocol shall be documented in the patient's medical
record. The pharmacists shall report at least every thirty days to
the physician regarding the patient's drug therapy management. The
collaborative pharmacy practice agreement and protocols shall be
available for inspection by the board, the West Virginia Board of
Medicine, or the West Virginia Board of Osteopathy, depending on
the licensing board of the participating physician. A copy of the
protocol shall be filed in the patient's medical record.
(d) Collaborative pharmacy agreements may not include the
management of controlled substances.
(e) A collaborative pharmacy practice agreement, meeting the
requirements herein established and in accordance with joint rules,
shall be allowed in the hospital setting, the nursing home setting,
the medical school setting and the hospital, community-based
pharmacy setting and ambulatory care clinics. The pharmacist shall
be employed by or under contract to provide services to the
hospital, pharmacy, nursing home or medical school, or hold a
faculty appointment with one of the schools of pharmacy or medicine
in this state.
(f) Nothing pertaining to collaborative pharmacy practice
shall be interpreted to permit a pharmacist to accept delegation of
a physician's authority outside the limits included in the appropriate board's statute and rules.
§30-5-19. Display of business authorization.
(a) The board shall prescribe the form for a business
authorization, and may issue a duplicate upon payment of a fee.
(b) Any person regulated by the article shall conspicuously
display his or her business authorization at his or her principal
business location.
§30-5-20. Responsibility for quality of drugs dispensed;
exception; falsification of labels; deviation from
prescription.
(a) All persons, whether pharmacists or not, shall be
responsible for the quality of all drugs, chemicals and medicines
they may sell or dispense, with the exception of those sold in or
dispensed unchanged from the original retail package of the
manufacturer, in which event the manufacturer shall be responsible.
(b) Except as provided in section twenty-one of this article,
the following acts shall be prohibited:
(1) The falsification of any label upon the immediate
container, box and/or package containing a drug;
(2) The substitution or the dispensing of a different drug in
lieu of any drug prescribed in a prescription without the approval
of the practitioner authorizing the original prescription:
Provided, That this may not be construed to interfere with the art
of prescription compounding which does not alter the therapeutic properties of the prescription or appropriate generic substitute;
(3) The filling or refilling of any controlled substance
prescription for a greater quantity of any drug or drug product
than that prescribed in the original prescription without a written
or electronic order or an oral order reduced to writing, or the
refilling of a prescription without the verbal, written or
electronic consent of the practitioner authorizing the original
prescription;
(4) The filling or refilling of any non-controlled substance
prescription for a greater quantity of any drug or drug product
than the total number or amount authorized in the original
prescription, including refills, without a written or electronic
order or an oral order reduced to writing, or the refilling of a
prescription without the verbal, written or electronic consent of
the practitioner authorizing the original prescription provided any
one fill may not exceed a 90 day supply unless otherwise approved
by the practitioner who authorized the original prescription.
§30-5-21. Generic drug products.
(a) A pharmacist who receives a prescription for a brand name
drug or drug product shall substitute the least expensive
therapeutic equivalent generic drug or drug product based on the
cash retail sales price of the respective products at the time it
is dispensed unless otherwise required by a third party payor, the
patient or in the exercise of his or her professional judgment the pharmacist affirmatively indicates that the least expensive
therapeutic equivalent drug is not suitable for the particular
patient: Provided, That no substitution may be made by the
pharmacist where the prescribing practitioner indicates that, in
his or her professional judgment, a specific brand name drug is
medically necessary for a particular patient.
(b) A written prescription order shall permit the pharmacist
to substitute an equivalent generic name drug or drug product
except where the prescribing practitioner has indicated in his or
her own handwriting, the words "Brand Necessary" or "Brand
Medically Necessary". The following sentence shall be printed on
the prescription form: "This prescription may be filled with a
generically equivalent drug product unless the words 'Brand
Necessary' or 'Brand Medically Necessary' are written, in the
practitioner's own handwriting, indicated by the prescribing
practitioner on this prescription form."
(c) A verbal prescription order shall permit the pharmacist to
substitute an equivalent generic name drug or drug product except
where the prescribing practitioner shall indicate to the pharmacist
that the prescription is "Brand Necessary" or "Brand Medically
Necessary". The pharmacist shall note the instructions on the file
copy of the prescription or electronic chart.
(d) An electronic prescription order shall permit the
pharmacist to substitute an equivalent generic name drug or drug product except where the prescribing practitioner shall indicate to
the pharmacist that the prescription is "Brand Necessary" or "Brand
Medically Necessary". The pharmacist shall note the instructions
on the file copy of the prescription or electronic chart.
(e) No person may by trade rule, work rule, contract or in any
other way prohibit, restrict, limit or attempt to prohibit,
restrict or limit the making of a generic name drug or other
product substitution under the provisions of this section. No
employer or his or her agent may use coercion or other means to
interfere with the professional judgment of the pharmacist in
deciding which generic name drugs or drug products shall be stocked
or substituted: Provided, That this section may not be construed
to permit the pharmacist to generally refuse to substitute less
expensive therapeutically equivalent generic drugs for brand name
drugs and that any pharmacist so refusing shall be subject to the
penalties prescribed in this article.
(f) A pharmacist may substitute a drug pursuant to the
provisions of this section only if the drug is a lower cash retail
sales price than the prescribed drug, unless otherwise required by
a third party payor. Where substitution is proper, pursuant to
this section, or where the practitioner prescribes the drug by
generic name, the pharmacist shall, consistent with his or her
professional judgment, dispense an equivalent generic drug product
with the lowest cash retail sales price which is available in the pharmacy at the time of dispensing: Provided, That all savings in
the retail price of the prescription shall be passed on to the
purchaser and shall be passed on to the cash paying consumer.
(g) Each pharmacy shall maintain a record of any substitution
of an equivalent generic name drug product for a prescribed brand
name drug product on the file copy of a written, electronic or
verbal prescription or chart order. The record shall include the
manufacturer and generic name of the drug product selected.
(h) All drugs shall be labeled in accordance with the
instructions of the practitioner.
(i) Unless the practitioner directs otherwise, the
prescription label on all drugs dispensed by the pharmacist shall
indicate the generic name using abbreviations, if necessary, and
either the name of the manufacturer or packager, whichever is
applicable in the pharmacist's discretion. The same notation will
be made on the original prescription retained by the pharmacist.
(j) A pharmacist may not dispense a product under the
provisions of this section unless the manufacturer has shown that
the drug has been manufactured with the following minimum good
manufacturing standards and practices by:
(1) Labeling products with the name of the original
manufacturer and control number;
(2) Maintaining quality control standards equal to or greater
than those of the FDA;
(3) Marking products with identification code or monogram; and
(4) Labeling products with an expiration date.
(k) A pharmacist may not substitute a generic-named
therapeutically equivalent drug product for a prescribed brand name
drug product if the brand name drug product or the generic drug
type is listed on the formulary established by the board pursuant
to this article or is found to be in violation of the requirements
of the FDA.
(l) A pharmacist who substitutes any drug shall, either
personally or through his or her agent, assistant or employee,
notify the person presenting the prescription of the substitution.
The person presenting the prescription shall have the right to
refuse the substitution. Upon request the pharmacist shall relate
the cash retail sales price difference between the brand name and
the drug substituted for it.
(m) A pharmacist complying with the provisions of this section
may not be liable in any way for the dispensing of a generic-named
therapeutically equivalent drug, substituted under the provisions
of this section, unless the generic-named therapeutically
equivalent drug was incorrectly substituted.
(n) In no event where the pharmacist substitutes a drug under
the provisions of this section shall the prescribing physician be
liable in any action for loss, damage, injury or death of any
person occasioned by or arising from the use of the substitute drug unless the original drug was incorrectly prescribed.
(o) Failure of a practitioner to specify that a specific brand
name is necessary for a particular patient does not constitute
evidence of negligence unless the practitioner had reasonable cause
to believe that the health of the patient required the use of a
certain product and no other.
§30-5-22. Pharmacies to be registered
.
(a) To be eligible for a permit to operate, maintain, open or
establish a pharmacy, the applicant shall:
(1) Submit a written application to the board;
(2) Pay all applicable fees;
(3) Designate a pharmacist-in-charge; and
(4) Successfully complete an inspection by the board.
(b) A pharmacy, an ambulatory health care facility, and a
charitable clinic pharmacy shall register with the board.
(c) A person desiring to operate, maintain, open or establish
a pharmacy shall register with the board.
(d) A separate application shall be made and separate permits
issued for each location.
(e) Permits issued under the provisions of this article are
not transferable.
(f) Permits shall be renewed annually. If a permit expires,
the pharmacy shall be reinspected and an inspection fee is
required.
(g) A holder of a permit issued pursuant to this section shall
employ a pharmacist-in-charge and operate in compliance with the
legislative rules governing the practice of pharmacist care and the
operation of a pharmacy.
(h) The provisions of this section do not apply to the sale of
nonprescription drugs which are not required to be dispensed
pursuant to a practitioner's prescription.
§30-5-23. Pharmacist-in-charge.
(a) A pharmacy shall be under the direction and supervision of
a pharmacist who shall be designated by the owner of the pharmacy
as the pharmacist-in-charge. This designation shall be filed with
the board within thirty days of the designation.
(b) The pharmacist-in-charge is responsible for the pharmacy's
compliance with state and federal pharmacy laws and regulations and
for maintaining records and inventory.
(c) A pharmacist-in-charge may not hold the designated
position at more than one pharmacy, whether within or outside the
state, except as provided in legislative rule.
(d) An interim pharmacist-in-charge may be designated for a
period not to exceed sixty days. The request for an interim
pharmacist-in-charge shall detail the circumstances which warrant
the change. This change in designation shall be filed with the
board within thirty days of the designation.
§30-5-24. Permits for mail-order pharmacy.
(a) A mail-order pharmacy which dispenses drugs shall register
with the board.
(b) A mail-order pharmacy shall submit an application for a
permit to the board: Provided, That this personnel supervision
requirement shall not apply to any person that manufactures, makes,
produces, packs, packages, prepares, offers for sale, or
distributes drugs if that person is registered and inspected by the
United States Food and Drug Administration pursuant to the
provisions of 21 U. S. C. Section 360. The application shall
require the following information:
(1) The owner of the mail-order pharmacy, whether an
individual, a partnership, or a corporation;
(2) The names and titles of all individual owners, partners or
corporate officers;
(3) The pharmacy manager;
(4) The pharmacist-in-charge; and
(5) The complete address, telephone number and fax number of
the mail-order pharmacy.
(c) This section does not apply to any mail-order pharmacy
which operates solely as a wholesale distributor.
§30-5-25. Permit for manufacture and packaging of drugs,
medicines, distribution of legend drugs.
(a) Drugs may not be manufactured, made, produced, packed,
packaged or prepared within the state, except under the personal supervision of a pharmacist or other qualified person as may be
approved by the board.
(b) A person may not manufacture, package or prepare a drug
without obtaining a permit from the board.
(c) A person, who offers for sale, sells, offers for sale
through the method of distribution any legend drugs is subject to
this article.
(d) The application for a permit shall be made on a form to be
prescribed and furnished by the board and shall be accompanied by
an application fee.
(e) The board shall promulgate rules on permit requirements
and sanitation requirements.
(f) Separate applications shall be made and separate permits
issued for each place of manufacture, distribution, making,
producing, packing, packaging or preparation.
§30-5-26. Filling of prescriptions more than one year after
issuance.
A prescription order may not be dispensed after twelve months
from the date of issuance by the practitioner. A pharmacist may
fill the prescription after twelve months if the prescriber
confirms to the pharmacist that he or she still wants the
prescription filled and the pharmacist documents upon the
prescription that the confirmation was obtained.
§30-5-27. Partial filling of prescriptions.
(a) The partial filling of a prescription is permissible for
any prescription if the pharmacist is unable to supply, or the
patient requests less than the full quantity called for in a
written, electronic, or oral prescription, provided the pharmacist
makes a notation of the quantity supplied on either the written
prescription or in the electronic record.
(b) The partial filling of a prescription for a controlled
substance listed in Schedule II is permissible if the pharmacist is
unable to supply or the patient requests less than the full
quantity called for in the prescription. The remaining portion of
the prescription may be filled within 72 hours of the first partial
filling: Provided, That if the remaining portion is not or cannot
be filled within the 72-hour period, the pharmacist shall notify
the prescribing individual practitioner. Further quantity may not
be supplied beyond 72 hours without a new prescription.
§30-5-28. Partial filling of prescriptions for long-term care
facility or terminally ill patients; requirements; records;
violations.
(a) As used in this section, "long-term care facility" or
"LTCF" means any nursing home, personal care home, or residential
board and care home as defined in section two, article five-c,
chapter sixteen of this code which provides extended health care to
resident patients: Provided, That the care or treatment in a
household, whether for compensation or not, of any person related by blood or marriage, within the degree of consanguinity of second
cousin to the head of the household, or his or her spouse, may not
be deemed to constitute a nursing home, personal care home or
residential board and care home within the meaning of this article.
This section does not apply to:
(1) Hospitals, as defined under section one, article five-b,
chapter sixteen of this article or to extended care facilities
operated in conjunction with a hospital;
(2) State institutions as defined in section six, article one,
chapter twenty-seven or in section three, article one, chapter
twenty-five, all of this code;
(3) Nursing homes operated by the federal government;
(4) Facilities owned or operated by the state government;
(5) Institutions operated for the treatment and care of
alcoholic patients;
(6) Offices of physicians; or
(7) Hotels, boarding homes or other similar places that
furnish to their guests only a room and board.
(b) As used in this section, "terminally ill" means that an
individual has a medical prognosis that his or her life expectancy
is six months or less.
(c) Schedule II prescriptions for patients in a LTCF and for
terminally ill patients shall be valid for a period of sixty days
from the date of issue unless terminated within a shorter period by the discontinuance of the medication.
(d) A prescription for a Schedule II controlled substance
written for a patient in a LTCF or for a terminally ill patient may
be filled in partial quantities, including, but not limited to,
individual dosage units and the total quantity of Schedule II
controlled substances dispensed in all partial filling may not
exceed the total quantity prescribed: Provided, That:
(1) If there is any question whether a patient may be
classified as having a terminal illness, the pharmacist shall
contact the prescribing practitioner prior to partially filling the
prescription; and
(2) Both the pharmacist and the prescribing practitioner have
a corresponding responsibility to assure that the controlled
substance is for a terminally ill patient.
(e) The pharmacist shall record on the prescription that the
patient is "terminally ill" or a "LTCF patient". A prescription
that is partially filled and does not contain the notation
"terminally ill" or "LTCF patient" shall be deemed to have been
filled in violation of section three hundred eight, article three,
chapter sixty-a of this code.
(f) For each partial filling, the dispensing pharmacist shall
record on the back of the prescription, or on another appropriate
record which is readily retrievable, the following information:
(1) The date of the partial filling;
(2) The quantity dispensed;
(3) The remaining quantity authorized to be dispensed; and
(4) The identification of the dispensing pharmacist.
(g) Information pertaining to current Schedule II
prescriptions for terminally ill and LTCF patients may be
maintained in a computerized system if such a system has the
capability to permit either by display or printout, for each
patient and each medication, all of the information required by
this section as well as the patient's name and address, the name of
each medication, original prescription number, date of issue, and
prescribing practitioner information. The system shall also allow
immediate updating of the prescription record each time a partial
filling of the prescription is performed and immediate retrieval of
all information required under this section.
§30-5-29. Limitations of article.
(a) This article may not be construed to prevent, restrict or
in any manner interfere with the sale of nonnarcotic
nonprescription drugs which may be lawfully sold without a
prescription in accordance with the United States Food, Drug and
Cosmetic Act or the laws of this state, nor may any legislative
rule be adopted by the board which shall require the sale of
nonprescription drugs by a licensed pharmacist or in a pharmacy or
which shall prevent, restrict or otherwise interfere with the sale
or distribution of such drugs by any retail merchant. The sale or distribution of nonprescription drugs may not be deemed to be
improperly engaging in the practice of pharmacist care.
(b) This article may not be construed to interfere with any
legally qualified practitioner of medicine, dentistry or veterinary
medicine, who is not the proprietor of the store for the dispensing
or retailing of drugs and who is not in the employ of such
proprietor, in the compounding of his or her own prescriptions or
to prevent him or her from supplying to his or her patients such
medicines as he or she may deem proper, if such supply is not made
as a sale.
(c) The exception provided in subsection (b) of this section
does not apply to an ambulatory health care facility: Provided,
That a legally licensed and qualified practitioner of medicine or
dentistry may supply medicines to patients that he or she treats in
a free clinic and that he or she deems appropriate.
§30-5-30. Actions to enjoin violations.
(a) If the board obtains information that any person has
engaged in or is engaging in any act which constitutes a violation
of the provisions of this article, the rules promulgated pursuant
to this article, or a final order or decision of the board, it may
issue a notice to the person to cease and desist in engaging in the
act and/or apply to the circuit court in the county of the alleged
violation for an order enjoining the act.
(b) The circuit court may issue a temporary injunction pending a decision on the merits, and may issue a permanent injunction
based on its findings in the case.
(c) The judgment of the circuit court on an application
permitted by the provisions of this section is final unless
reversed, vacated or modified on appeal to the West Virginia
Supreme Court of Appeals.
§30-5-31. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The board may initiate a complaint upon receipt of
credible information, and shall upon the receipt of a written
complaint of any person, cause an investigation to be made to
determine whether grounds exist for disciplinary action under this
article or the legislative rules promulgated pursuant to this
article.
(b) Upon initiation or receipt of the complaint, the board
shall provide a copy of the complaint to the pharmacist, pharmacy
technician or permit holder.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the pharmacist, pharmacy technician or person holding a permit
has violated subsection (g) of this section or rules promulgated
pursuant to this article.
(d) Upon a finding of probable cause exists that the
pharmacist, pharmacy technician or person holding a permit has violated subsection (g) of this section or rules promulgated
pursuant to this article, the board may enter into a consent decree
or hold a hearing for the suspension or revocation of the license,
registration or permit or the imposition of sanctions against the
pharmacist, pharmacy technician or person holding a permit. Any
hearing shall be held in accordance with the provisions of this
article.
(e) Any member of the board or the executive director of the
board may issue subpoenas and subpoenas duces tecum to obtain
testimony and documents to aid in the investigation of allegations
against any person regulated by the article.
(f) Any member of the board or its executive director may sign
a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend, restrict or revoke the license,
registration or permit of, or impose probationary conditions upon
or take disciplinary action against, any pharmacist, pharmacy
technician or person holding a permit for any of the following
reasons once a violation has been proven by a preponderance of the
evidence:
(1) Obtaining a business authorization by fraud,
misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving
drugs, violent crime, or moral turpitude;
(3) Being guilty of unprofessional conduct which placed the
public at risk, as defined by legislative rule of the board;
(4) Intentional violation of a lawful order or legislative
rule of the board;
(5) Having had a board authorization revoked or suspended,
other disciplinary action taken, or an application for a board
authorization revoked or suspended by the proper authorities of
another jurisdiction;
(6) Aiding or abetting unlicensed practice; or
(7) Engaging in an act while acting in a professional capacity
which has endangered or is likely to endanger the health, welfare
or safety of the public;
(h) For the purposes of subsection (g) of this section,
effective July 1, 2011, disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Restrictions;
(4) Administrative fine, not to exceed $1,000 per day per
violation;
(5) Mandatory attendance at continuing education seminars or
other training;
(6) Practicing under supervision or other restriction;
(7) Requiring the pharmacist, pharmacy technician or person
holding a permit to report to the board for periodic interviews for a specified period of time; or
(8) Other corrective action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
(i) In addition to any other sanction imposed, the board may
require a pharmacist, pharmacy technician or person holding a
permit to pay the costs of the proceeding.
(j) The board may defer disciplinary action with regard to an
impaired pharmacist or pharmacy technician who voluntarily signs an
agreement, in a form satisfactory to the board, agreeing not to
practice pharmacist care and to enter an approved treatment and
monitoring program in accordance with the board's legislative rule:
Provided, That this subsection does not apply to a pharmacist,
pharmacy technician or person holding a permit who has been
convicted of, pleads guilty to, or enters a plea of nolo contendere
or a conviction relating to a controlled substance in any
jurisdiction.
(k) Nothing shall be construed as barring criminal
prosecutions for violations of this article.
§30-5-32. Procedures for hearing; right of appeal.
(a) Hearings are governed by the provisions of section eight,
article one of this chapter.
(b) The board may conduct the hearing or elect to have an
administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law
judge, at the conclusion of a hearing he or she shall prepare a
proposed written order containing findings of fact and conclusions
of law. The proposed order may contain proposed disciplinary
actions if the board so directs. The board may accept, reject or
modify the decision of the administrative law judge.
(d) Any member or the executive director of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the pharmacist,
pharmacy technician or person holding a permit has violated
provisions of this article or the board's rules, a formal written
decision shall be prepared which contains findings of fact,
conclusions of law and a specific description of the disciplinary
actions imposed.
§30-5-33. Judicial review.
Any pharmacist, pharmacy technician or person holding a permit
adversely affected by a decision of the board entered after a
hearing may obtain judicial review of the decision in accordance
with section four, article five, chapter twenty-nine-a of this
code, and may appeal any ruling resulting from judicial review in
accordance with article six, chapter twenty-nine-a of this code.
§30-5-34. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person
authorized under this article has committed a criminal offense
under this article, the board may bring its information to the
attention of an appropriate law-enforcement official.
(b) Any person violating section one of this article is guilty
of a misdemeanor, and, upon conviction, shall be fined not to
exceed $50 for the first offense, and upon conviction of a second
offense shall be fined an amount not less than $50 nor more than
$500, or shall be imprisoned in the regional jail no more than
thirty days, or both fined and imprisoned. Each day that the
violation continues shall constitute a separate offense.
CHAPTER 60A. UNIFORM CONTROLLED SUBSTANCES ACT.
ARTICLE 10. METHAMPHETAMINE LABORATORY ERADICATION ACT.
§60A-10-3. Definitions.
In this article:
(a) "Board of Pharmacy" or "board" means the West Virginia
Board of Pharmacy established by the provisions of article five,
chapter thirty of this code.
(b) "Designated precursor" means any drug product made subject
to the requirements of this article by the provisions of section
seven of this article.
(c) "Distributor" means any person within this state or
another state, other than a manufacturer or wholesaler, who sells,
delivers, transfers or in any manner furnishes a drug product to any person who is not the ultimate user or consumer of the product;
(d) "Drug product" means a pharmaceutical product that
contains as its single active ingredient ephedrine, pseudoephedrine
or phenylpropanolamine or a substance identified on the
supplemental list provided for in section seven of this article
which may be sold without a prescription and which is labeled for
use by a consumer in accordance with the requirements of the laws
and rules of this state and the federal government.
(e) "Ephedrine " means ephedrine, its salts or optical isomers
or salts of optical isomers.
(f) "Manufacturer" means any person within this state who
produces, compounds, packages or in any manner initially prepares
for sale or use any drug product or any such person in another
state if they cause the products to be compounded, packaged or
transported into this state.
(g) "Phenylpropanolamine" means phenylpropanolamine, its
salts, optical isomers and salts of optical isomers.
(h) "Pseudoephedrine" means pseudoephedrine, its salts,
optical isomers and salts of optical isomers.
(i) "Precursor" means any substance which may be used along
with other substances as a component in the production and
distribution of illegal methamphetamine.
(j) "Pharmacist" means an individual currently licensed by
this state to engage in the practice of
pharmacy and pharmaceutical care pharmacist care as defined in
subsection (t), section one-b,
article
fifty five, chapter thirty of this code.
(k) "Pharmacy intern" has the same meaning as the term
"intern" as set forth in
section one-b, article five, chapter
thirty of this code.
(l) "Pharmacy" means any drugstore, apothecary or place within
this state where drugs are dispensed and sold at retail or display
for sale at retail and
pharmaceutical pharmacist care is provided
outside of this state where drugs are dispensed and
pharmaceutical
pharmacist care is provided to residents of this state.
(m) "Pharmacy counter" means an area in the pharmacy
restricted to the public where controlled substances are stored and
housed and where controlled substances may only be sold,
transferred or dispensed by a pharmacist or pharmacy technician.
(n) "Pharmacy technician" means a registered technician who
meets the requirements for registration as set forth in article
five, chapter thirty of this code.
(o) "Retail establishment" means any entity or person within
this state who sells, transfers or distributes goods, including
over-the-counter drug products, to an ultimate consumer.
(p) "Schedule V" means the schedule of controlled substances
set out in section two hundred twelve, section two of this chapter.
(q) "Single active ingredient" means those ingredients listed
on a drug product package as the only active ingredient in over-the-counter medication or identified on the Schedule
maintained by the Board of Pharmacy as being primarily used in the
illegal production and distribution of methamphetamine.
(r) "Superintendent of the State Police" or "Superintendent"
means the Superintendent of the West Virginia State Police as set
forth in section five, article two, chapter fifteen of this code.
(s) "Wholesaler" means any person within this state or another
state, other than a manufacturer, who sells, transfers or in any
manner furnishes a drug product to any other person in this state
for the purpose of being resold.
The bill (Eng. Com. Sub. for H. B. No. 2513), as amended, was
then ordered to third reading.
Eng. House Bill No. 2551, Relating generally to estates and
trusts and their administration.
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 eight, section thirteen, lines twenty-three and
twenty-four, after the word "obligation" by striking out the comma
and the words "and to the trustee or trustees";
And,
On page one hundred seven, section five hundred four, line sixteen, after the word "support" by inserting the word "of".
The bill (Eng. H. B. No. 2551), as amended, was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 2562, Relating to the State
Athletic Commission.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Snyder, as chair of the Committee on
Government Organization, and by unanimous consent, the unreported
Government Organization committee amendment to the bill was
withdrawn.
The following amendment to the bill, from the Committee on 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 the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §29-5A-3a, to read as
follows:
ARTICLE 5A. STATE ATHLETIC COMMISSION.
§29-5A-3a. Power to regulate mixed martial arts.
(a) The commission has sole power, direction, management and
control over all professional mixed martial arts contests, matches
and exhibitions, or any form thereof, to be promoted, conducted,
held or given within the state.
(b) As used in this article, the term "mixed martial arts"
means a combative sporting contest, the rules of which allow two
competitors to attempt to achieve dominance over one another by
utilizing a variety of techniques including, but not limited to,
striking, grappling and the application of submission holds.
(c) A mixed martial arts contest, match or exhibition
promoted, conducted, held or given within the state shall be under
the commission's authority and be in accordance with the provision
of this section. The provisions of this article that apply to
boxing shall also apply to mixed martial arts as appropriate.
(d) In exercising its jurisdiction over professional mixed
martial arts contests matches and exhibitions, the commission shall
follow the current unified rules of mixed martial arts as adopted
by the Association of Boxing Commissions, to enable the proper
licensing of all participants, referees and judges, and the
approval of contests, matches or exhibitions conducted under the
provisions of this section.
(e) The commission may issue and revoke a license to promote,
conduct, hold or give mixed martial arts contests, matches or
exhibitions and may issue and revoke a license to be a contestant.
Each license is subject to the provisions of this section and
article, and the rules of the commission.
(f) The commission shall propose rules for legislative
approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of
this section, including:
(1) Procedures and requirements for the issuance and renewal
of licenses: Provided, That the procedures and requirements shall
not:
(A) Limit or prohibit mixed martial arts contests, matches or
exhibitions; nor
(B) Include a provision that a licensee be a West Virginia
resident;
(2) Exemptions from licensure;
(3) Procedures for revoking licenses;
(4) Adopting the unified rules of mixed martial arts;
(5) A fee schedule;
(6) Limitations or restrictions necessary to guarantee the
safety of the participants;
(7) The requirements for fair and honest conducting of the
contests, matches or exhibitions; and
(8) Any other rules necessary to effectuate the provisions of
this section.
(g) Notwithstanding the provisions of this code to the
contrary, a municipality may not impose a municipal license tax
under section four, article thirteen, chapter eight of this code on
mixed martial arts clubs. The granting of a license to a club by
the commission, or the holding of a license by a club, individual, corporation or association, does not prevent the commission from
revoking the license to conduct an event, as provided in this
section: Provided, That nothing in this subsection limits the
authority of a municipality to impose any other taxes or fees on
mixed martial arts contests, matches or exhibitions, pursuant to
article thirteen, chapter eight of this code.
The bill (Eng. Com. Sub. for H. B. No. 2562), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2693, Requiring insurance
coverage for autism spectrum disorders.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL;
BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES,
COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-7. Authorization to establish group hospital and surgical
insurance plan, group major medical insurance plan,
group prescription drug plan and group life and accidental death insurance plan; rules for
administration of plans; mandated benefits; what plans
may provide; optional plans; separate rating for
claims experience purposes.
(a) The agency shall establish a group hospital and surgical
insurance plan or plans, a group prescription drug insurance plan
or plans, a group major medical insurance plan or plans and a group
life and accidental death insurance plan or plans for those
employees herein made eligible, and to establish and promulgate
rules for the administration of these plans, subject to the
limitations contained in this article. Those plans shall include:
(1) Coverages and benefits for X ray and laboratory services
in connection with mammograms when medically appropriate and
consistent with current guidelines from the United States
Preventive Services Task Force; pap smears, either conventional or
liquid-based cytology, whichever is medically appropriate and
consistent with the current guidelines from either the United
States Preventive Services Task Force or The American College of
Obstetricians and Gynecologists; and a test for the human papilloma
virus (HPV) when medically appropriate and consistent with current
guidelines from either the United States Preventive Services Task
Force or The American College of Obstetricians and Gynecologists,
when performed for cancer screening or diagnostic services on a
woman age eighteen or over;
(2) Annual checkups for prostate cancer in men age fifty and
over;
(3) Annual screening for kidney disease as determined to be
medically necessary by a physician using any combination of blood
pressure testing, urine albumin or urine protein testing and serum
creatinine testing as recommended by the National Kidney
Foundation;
(4) For plans that include maternity benefits, coverage for
inpatient care in a duly licensed health care facility for a mother
and her newly born infant for the length of time which the
attending physician considers medically necessary for the mother or
her newly born child:
Provided, That no plan may deny payment for
a mother or her newborn child prior to forty-eight hours following
a vaginal delivery, or prior to ninety-six hours following a
caesarean section delivery, if the attending physician considers
discharge medically inappropriate;
(5) For plans which provide coverages for post-delivery care
to a mother and her newly born child in the home, coverage for
inpatient care following childbirth as provided in subdivision (4)
of this subsection if inpatient care is determined to be medically
necessary by the attending physician. Those plans may also
include, among other things, medicines, medical equipment,
prosthetic appliances and any other inpatient and outpatient
services and expenses considered appropriate and desirable by the agency; and
(6) Coverage for treatment of serious mental illness.
(A) The coverage does not include custodial care, residential
care or schooling. For purposes of this section, "serious mental
illness" means an illness included in the American Psychiatric
Association's diagnostic and statistical manual of mental
disorders, as periodically revised, under the diagnostic categories
or subclassifications of: (i) Schizophrenia and other psychotic
disorders; (ii) bipolar disorders; (iii) depressive disorders; (iv)
substance-related disorders with the exception of caffeine-related
disorders and nicotine-related disorders; (v) anxiety disorders;
and (vi) anorexia and bulimia. With regard to any covered
individual who has not yet attained the age of nineteen years,
"serious mental illness" also includes attention deficit
hyperactivity disorder, separation anxiety disorder and conduct
disorder.
(B) Notwithstanding any other provision in this section to the
contrary, in the event that the agency can demonstrate that its
total costs for the treatment of mental illness for any plan
exceeded two percent of the total costs for such plan in any
experience period, then the agency may apply whatever additional
cost-containment measures may be necessary, including, but not
limited to, limitations on inpatient and outpatient benefits, to
maintain costs below two percent of the total costs for the plan for the next experience period.
(C) The agency shall not discriminate between medical-surgical
benefits and mental health benefits in the administration of its
plan. With regard to both medical-surgical and mental health
benefits, it may make determinations of medical necessity and
appropriateness, and it may use recognized health care quality and
cost management tools, including, but not limited to, limitations
on inpatient and outpatient benefits, utilization review,
implementation of cost-containment measures, preauthorization for
certain treatments, setting coverage levels, setting maximum number
of visits within certain time periods, using capitated benefit
arrangements, using fee-for-service arrangements, using third-party
administrators, using provider networks and using patient cost
sharing in the form of copayments, deductibles and coinsurance.
(7) Coverage for general anesthesia for dental procedures and
associated outpatient hospital or ambulatory facility charges
provided by appropriately licensed health care individuals in
conjunction with dental care if the covered person is:
(A) Seven years of age or younger or is developmentally
disabled, and is an individual for whom a successful result cannot
be expected from dental care provided under local anesthesia
because of a physical, intellectual or other medically compromising
condition of the individual and for whom a superior result can be
expected from dental care provided under general anesthesia;
(B) A child who is twelve years of age or younger with
documented phobias, or with documented mental illness, and with
dental needs of such magnitude that treatment should not be delayed
or deferred and for whom lack of treatment can be expected to
result in infection, loss of teeth or other increased oral or
dental morbidity and for whom a successful result cannot be
expected from dental care provided under local anesthesia because
of such condition and for whom a superior result can be expected
from dental care provided under general anesthesia.
(8)(A) Any plan issued or renewed after January 1, 2012, shall
include coverage for diagnosis and treatment of autism spectrum
disorder in individuals ages two through eighteen years. To be
eligible for coverage and benefits under this subdivision, the
individual must be diagnosed with autism spectrum disorder at age
8 or younger. Such policy shall provide coverage for treatments
that are medically necessary and ordered or prescribed by a
certified behavioral analyst for an individual diagnosed with
autism spectrum disorder, in accordance with a treatment plan
developed by a certified behavioral analyst pursuant to a
comprehensive evaluation or reevaluation of the individual, subject
to review by the agency every six months. Progress reports are
required to be filed with the agency semi-annually. In order for
treatment to continue, the agency must receive objective evidence
or a clinically supportable statement of expectation that:
(1) The individual's condition is improving in response to
treatment; and
(2) A maximum improvement is yet to be attained; and
(3) There is an expectation that the anticipated improvement
is attainable in a reasonable and generally predictable period of
time.
(B) Such coverage shall include, but not be limited to,
applied behavioral analysis provided or supervised by a certified
behavioral analyst
:
Provided,
That the annual maximum benefit for
treatment required by this subdivision shall be in amount not to
exceed $30,000 per individual, for three consecutive years from the
date treatment commences. At the conclusion of the third year,
required coverage shall be in an amount not to exceed $2000 per
month, until the individual reaches eighteen years of age, as long
as the treatment is medically necessary and in accordance with a
treatment plan developed by a certified behavioral analyst pursuant
to a comprehensive evaluation or reevaluation of the individual.
This section shall not be construed as limiting, replacing or
affecting any obligation to provide services to an individual under
the Individuals with Disabilities Education Act, 20 U. S. C. 1400
et seq., as amended from time to time or other publicly funded
programs. Nothing in this subdivision shall be construed as
requiring reimbursement for services provided by public school
personnel.
(C) On or before January 1 each year, the agency shall file an
annual report with the Joint Committee on Government and Finance
describing its implementation of the coverage provided pursuant to
this subdivision. The report shall include, but shall not be
limited to, the number of individuals in the plan utilizing the
coverage required by this subdivision, the fiscal and
administrative impact of the implementation, and any
recommendations the agency may have as to changes in law or policy
related to the coverage provided under this subdivision. In
addition, the agency shall provide such other information as may be
required by the Joint Committee on Government and Finance as it may
from time to time request.
(D) For purposes of this subdivision, the term:
(i) "Applied behavior analysis" means the design,
implementation, and evaluation of environmental modifications using
behavioral stimuli and consequences, to produce socially
significant improvement in human behavior, including the use of
direct observation, measurement, and functional analysis of the
relationship between environment and behavior.
(ii) "Autism spectrum disorder" means any pervasive
developmental disorder, including autistic disorder, Asperger's
Syndrome, Rett syndrome, childhood disintegrative disorder, or
Pervasive Development Disorder as defined in the most recent
edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.
(iii) "Certified behavior analyst" means a West Virginia
licensed psychologist or psychiatrist who is certified by the
Behavior Analyst Certification Board or certified by a similar
nationally recognized organization.
(iv) "Objective evidence" means standardized patient
assessment instruments, outcome measurements tools or measurable
assessments of functional outcome. Use of objective measures at
the beginning of treatment, during and/or after treatment is
recommended to quantify progress and support justifications for
continued treatment. Such tools are not required, but their use
will enhance the justification for continued treatment.
(E) To the extent that the application of this subdivision for
autism spectrum disorder causes an increase of at least one percent
of actual total costs of coverage for the plan year the agency may
apply additional cost containment measures.
(F) To the extent that the provisions of this subdivision
requires benefits that exceed the essential health benefits
specified under section 1302(b) of the Patient Protection and
Affordable Care Act, Pub. L. No. 111-148, as amended, the specific
benefits that exceed the specified essential health benefits shall
not be required of insurance plans offered by the public employees
insurance agency.
ARTICLE 16B. WEST VIRGINIA CHILDREN'S HEALTH INSURANCE PROGRAM.
§5-16B-6e. Coverage for treatment of autism spectrum disorders.
(a) To the extent that the diagnosis and treatment of autism
spectrum disorders are not already covered by this agency, after
January 1, 2012, a policy, plan or contract subject to this section
shall provide coverage for such diagnosis and treatment, for
individuals ages two through eighteen years. To be eligible for
coverage and benefits under this section, the individual must be
diagnosed with autism spectrum disorder at age eight or younger.
Such policy shall provide coverage for treatments that are
medically necessary and ordered or prescribed by a certified
behavioral analyst for an individual diagnosed with autism spectrum
disorder, in accordance with a treatment plan developed by a
certified behavioral analyst pursuant to a comprehensive evaluation
or reevaluation of the individual subject to review by the agency
every six months. Progress reports are required to be filed with
the agency semi-annually. In order for treatment to continue,
objective evidence or a clinically supportable statement of
expectation that:
(1) The individual's condition is improving in response to
treatment; and
(2) Maximum improvement is yet to be attained; and
(3) There is an expectation that the anticipated improvement
is attainable in a reasonable and generally predictable period of
time.
(b) Such coverage shall include, but not be limited to,
applied behavioral analysis provided or supervised by a certified
behavioral analyst
:
Provided,
That the annual maximum benefit for
treatment required by this section shall be in amount not to exceed
$30,000 per individual, for three consecutive years from the date
treatment commences. At the conclusion of the third year, required
coverage shall be in an amount not to exceed $2000 per month, until
the individual reaches eighteen years of age, as long as the
treatment is medically necessary and in accordance with a treatment
plan developed by a certified behavioral analyst pursuant to a
comprehensive evaluation or reevaluation of the individual. This
section shall not be construed as limiting, replacing or affecting
any obligation to provide services to an individual under the
Individuals with Disabilities Education Act, 20 U. S. C. 1400 et
seq., as amended from time to time or other publicly funded
programs. Nothing in this section shall be construed as requiring
reimbursement for services provided by public school personnel.
(c) On or before January 1 each year, the agency shall file an
annual report with the Joint Committee on Government and Finance
describing its implementation of the coverage provided pursuant to
this section. The report shall include, but shall not be limited to
the number of individuals in the plan utilizing the coverage
required by this section, the fiscal and administrative impact of
the implementation, and any recommendations the agency may have as to changes in law or policy related to the coverage provided under
this section. In addition, the agency shall provide such other
information as may be requested by the Joint Committee on
Government and Finance as it may from time to time request.
(d) For purposes of this section, the term:
(1) "Applied behavior analysis" means the design,
implementation, and evaluation of environmental modifications using
behavioral stimuli and consequences, to produce socially
significant improvement in human behavior, including the use of
direct observation, measurement, and functional analysis of the
relationship between environment and behavior.
(2) "Autism spectrum disorder" means any pervasive
developmental disorder, including autistic disorder, Asperger's
Syndrome, Rett syndrome, childhood disintegrative disorder, or
Pervasive Development Disorder as defined in the most recent
edition of the Diagnostic and Statistical Manual of Mental
Disorders of the American Psychiatric Association.
(3) "Certified behavioral analyst" means a West Virginia
licensed psychologist or psychiatrist who is certified by the
Behavior Analyst Certification Board or certified by a similar
nationally recognized organization.
(4) "Objective evidence" means standardized patient assessment
instruments, outcome measurements tools or measurable assessments
of functional outcome. Use of objective measures at the beginning of treatment, during and/or after treatment is recommended to
quantify progress and support justifications for continued
treatment. Such tools are not required, but their use will enhance
the justification for continued treatment.
(e) To the extent that the application of this section for
autism spectrum disorder causes an increase of at least one percent
of actual total costs of coverage for the plan year the agency may
apply additional cost containment measures.
(f) To the extent that the provisions of this section requires
benefits that exceed the essential health benefits specified under
section 1302(b) of the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, as amended, the specific benefits that exceed
the specified essential health benefits shall not be required of
the West Virginia Children's Health Insurance Program.
CHAPTER 9. HUMAN SERVICES.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-21. Annual report to Joint Committee on Government and Finance
regarding treatment for autism spectrum disorders provided by
the Bureau for Medical Services.
(a) On or before January 1 each year, the agency shall file an
annual report with the Joint Committee on Government and Finance
describing the number of enrolled individuals with autism spectrum
disorder, including the fiscal and administrative impact of
treatment of autism spectrum disorders, and any recommendations the agency may have as to changes in law or policy related to such
disorder. In addition, the agency shall provide such other
information as may be requested by the Joint Committee on
Government and Finance as it may from time to time request.
(b) For purposes of this section, the term "autism spectrum
disorder" means any pervasive developmental disorder, including
autistic disorder, Asperger's Syndrome, Rett syndrome, childhood
disintegrative disorder, or Pervasive Development Disorder as
defined in the most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders of the American Psychiatric
Association.
CHAPTER 33. INSURANCE.
ARTICLE 15. ACCIDENT AND SICKNESS INSURANCE.
§33-15-4k. Required coverage for treatment of autism spectrum
disorders.
(a) Notwithstanding any provision of any policy, provision,
contract, plan or agreement applicable to this article, any entity
regulated by this article shall, for policies issued or renewed on
or after January 1, 2012,
a policy, plan or contract subject to
this section shall provide coverage for diagnosis and treatment of
autism spectrum disorder for individuals ages two through eighteen
years. To be eligible for coverage and benefits under this
section, the individual must be diagnosed with autism spectrum
disorder at age eight or younger. Such policy shall provide coverage for treatments that are medically necessary and ordered or
prescribed by a certified behavioral analyst for an individual
diagnosed with autism spectrum disorder, in accordance with a
treatment plan developed by a certified behavioral analyst pursuant
to a comprehensive evaluation or reevaluation of the individual
subject to review by the agency every six months. Progress reports
are required to be filed with the agency semi-annually. In order
for treatment to continue, objective evidence or a clinically
supportable statement of expectation that:
(1) The individual's condition is improving in response to
treatment; and
(2) Maximum improvement is yet to be attained; and
(3) There is an expectation that the anticipated improvement
is attainable in a reasonable and generally predictable period of
time.
(b) Such coverage shall include, but not be limited to,
applied behavioral analysis provided or supervised by a certified
behavioral analyst
:
Provided,
That the annual maximum benefit for
treatment required by this section shall be in amount not to exceed
$30,000 per individual, for three consecutive years from the date
treatment commences. At the conclusion of the third year, required
coverage shall be in an amount not to exceed $2000 per month, until
the individual reaches eighteen years of age, as long as the
treatment is medically necessary and in accordance with a treatment plan developed by a certified behavioral analyst pursuant to a
comprehensive evaluation or reevaluation of the individual. This
section shall not be construed as limiting, replacing or affecting
any obligation to provide services to an individual under the
Individuals with Disabilities Education Act, 20 U. S. C. 1400 et
seq., as amended from time to time or other publicly funded
programs. Nothing in this section shall be construed as requiring
reimbursement for services provided by public school personnel.
(c) For purposes of this section, the term:
(1) "Applied behavior analysis" means the design,
implementation, and evaluation of environmental modifications using
behavioral stimuli and consequences, to produce socially
significant improvement in human behavior, including the use of
direct observation, measurement, and functional analysis of the
relationship between environment and behavior.
(2) "Autism spectrum disorder" means any pervasive
developmental disorder, including autistic disorder, Asperger's
Syndrome, Rett syndrome, childhood disintegrative disorder, or
Pervasive Development Disorder as defined in the most recent
edition of the Diagnostic and Statistical Manual of Mental
Disorders of the American Psychiatric Association.
(3)
"Certified behavioral analyst" means a West Virginia
licensed psychologist or psychiatrist who is certified by the Behavior Analyst Certification Board or certified by a similar
nationally recognized organization.
(4) "Objective evidence" means standardized patient assessment
instruments, outcome measurements tools or measurable assessments
of functional outcome. Use of objective measures at the beginning
of treatment, during and/or after treatment is recommended to
quantify progress and support justifications for continued
treatment. Such tools are not required, but their use will enhance
the justification for continued treatment.
(d) The provisions of this section do not apply to small
employers. For purposes of this section a small employer shall be
defined as any person, firm, corporation, partnership or
association actively engaged in business in the state of West
Virginia who, during the preceding calendar year, employed an
average of no more than twenty-five eligible employees.
(e) To the extent that the application of this section for
autism spectrum disorder causes an increase of at least one percent
of actual total costs of coverage for the plan year the agency may
apply additional cost containment measures.
(f) To the extent that the provisions of this section requires
benefits that exceed the essential health benefits specified under
section 1302(b) of the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, as amended, the specific benefits that exceed
the specified essential health benefits shall not be required of a health benefit plan when the plan is offered by a health care
insurer in this state.
CHAPTER 33. INSURANCE.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3v. Required coverage for treatment of autism spectrum
disorders.
(a) Any insurer who, on or after January 1, 2012, delivers,
renews or issues a policy of group accident and sickness insurance
in this State under the provisions of this article
shall include
coverage for diagnosis and treatment of autism spectrum disorder in
individuals ages two through eighteen years. To be eligible for
coverage and benefits under this section, the individual must be
diagnosed with autism spectrum disorder at age 8 or younger. Such
policy shall provide coverage for treatments that are medically
necessary and ordered or prescribed by a certified behavioral
analyst for an individual diagnosed with autism spectrum disorder,
in accordance with a treatment plan developed by a certified
behavioral analyst pursuant to a comprehensive evaluation or
reevaluation of the individual, subject to review by the agency
every six months. Progress reports are required to be filed with
the agency semi-annually. In order for treatment to continue, the
agency must receive objective evidence or a clinically supportable
statement of expectation that:
(1) The individual's condition is improving in response to
treatment; and
(2) A maximum improvement is yet to be attained; and
(3) There is an expectation that the anticipated improvement
is attainable in a reasonable and generally predictable period of
time.
(b) Such coverage shall include, but not be limited to,
applied behavioral analysis provided or supervised by a certified
behavioral analyst
:
Provided,
That the annual maximum benefit for
treatment required by this subdivision shall be in amount not to
exceed $30,000 per individual, for three consecutive years from the
date treatment commences. At the conclusion of the third year,
required coverage shall be in an amount not to exceed $2000 per
month, until the individual reaches eighteen years of age, as long
as the treatment is medically necessary and in accordance with a
treatment plan developed by a certified behavioral analyst pursuant
to a comprehensive evaluation or reevaluation of the individual.
This section shall not be construed as limiting, replacing or
affecting any obligation to provide services to an individual under
the Individuals with Disabilities Education Act, 20 U. S. C. 1400
et seq., as amended from time to time or other publicly funded
programs. Nothing in this section shall be construed as requiring
reimbursement for services provided by public school personnel.
(c) For purposes of this section, the term:
(1) "Applied behavior analysis" means the design,
implementation, and evaluation of environmental modifications using
behavioral stimuli and consequences, to produce socially
significant improvement in human behavior, including the use of
direct observation, measurement, and functional analysis of the
relationship between environment and behavior.
(2) "Autism spectrum disorder" means any pervasive
developmental disorder, including autistic disorder, Asperger's
Syndrome, Rett syndrome, childhood disintegrative disorder, or
Pervasive Development Disorder as defined in the most recent
edition of the Diagnostic and Statistical Manual of Mental
Disorders of the American Psychiatric Association.
(3)
"Certified behavioral analyst" means a West Virginia
licensed psychologist or psychiatrist who is certified by the
Behavior Analyst Certification Board or certified by a similar
nationally recognized organization.
(4) "Objective evidence" means standardized patient assessment
instruments, outcome measurements tools or measurable assessments
of functional outcome. Use of objective measures at the beginning
of treatment, during and/or after treatment is recommended to
quantify progress and support justifications for continued
treatment. Such tools are not required, but their use will enhance
the justification for continued treatment.
(d) The provisions of this section do not apply to small
employers. For purposes of this section a small employer shall be
defined as any person, firm, corporation, partnership or
association actively engaged in business in the state of West
Virginia who, during the preceding calendar year, employed an
average of no more than twenty-five eligible employees.
(e)
To the extent that the application of this section for
autism spectrum disorder causes an increase of at least one percent
of actual total costs of coverage for the plan year the agency may
apply additional cost containment measures.
(f) To the extent that the provisions of this section requires
benefits that exceed the essential health benefits specified under
section 1302(b) of the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, as amended, the specific benefits that exceed
the specified essential health benefits shall not be required of a
health benefit plan when the plan is offered by a health care
insurer in this state..
ARTICLE 24. HOSPITAL MEDICAL AND DENTAL CORPORATIONS.
§33-24-7k. Coverage for diagnosis and treatment of autism spectrum
disorders.
(a) Notwithstanding any provision of any policy, provision,
contract, plan or agreement to which this article applies, any
entity regulated by this article, for policies issued or renewed
on or after January 1, 2012, delivers, renews or issues a policy of group accident and sickness insurance in this State under the
provisions of this article
shall include coverage for diagnosis and
treatment of autism spectrum disorder in individuals ages two
through eighteen years. To be eligible for coverage and benefits
under this section, the individual must be diagnosed with autism
spectrum disorder at age 8 or younger. Such policy shall provide
coverage for treatments that are medically necessary and ordered or
prescribed by a certified behavioral analyst for an individual
diagnosed with autism spectrum disorder, in accordance with a
treatment plan developed by a certified behavioral analyst pursuant
to a comprehensive evaluation or reevaluation of the individual,
subject to review by the agency every six months. Progress reports
are required to be filed with the agency semi-annually. In order
for treatment to continue, the agency must receive objective
evidence or a clinically supportable statement of expectation that:
(1) The individual's condition is improving in response to
treatment; and
(2) A maximum improvement is yet to be attained; and
(3) There is an expectation that the anticipated improvement
is attainable in a reasonable and generally predictable period of
time.
(b) Such coverage shall include, but not be limited to,
applied behavioral analysis provided or supervised by a certified
behavioral analyst
:
Provided,
That the annual maximum benefit for treatment required by this section shall be in amount not to exceed
$30,000 per individual, for three consecutive years from the date
treatment commences. At the conclusion of the third year, required
coverage shall be in an amount not to exceed $2000 per month, until
the individual reaches eighteen years of age, as long as the
treatment is medically necessary and in accordance with a treatment
plan developed by a certified behavioral analyst pursuant to a
comprehensive evaluation or reevaluation of the individual. This
section shall not be construed as limiting, replacing or affecting
any obligation to provide services to an individual under the
Individuals with Disabilities Education Act, 20 U. S. C. 1400 et
seq., as amended from time to time or other publicly funded
programs. Nothing in this section shall be construed as requiring
reimbursement for services provided by public school personnel.
(c) For purposes of this section, the term:
(1) "Applied behavior analysis" means the design,
implementation, and evaluation of environmental modifications using
behavioral stimuli and consequences, to produce socially
significant improvement in human behavior, including the use of
direct observation, measurement, and functional analysis of the
relationship between environment and behavior.
(2) "Autism spectrum disorder" means any pervasive
developmental disorder, including autistic disorder, Asperger's
Syndrome, Rett syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent
edition of the Diagnostic and Statistical Manual of Mental
Disorders of the American Psychiatric Association.
(3)
"Certified behavioral analyst" means a West Virginia
licensed psychologist or psychiatrist who is certified by the
Behavior Analyst Certification Board or certified by a similar
nationally recognized organization.
(4) "Objective evidence" means standardized patient assessment
instruments, outcome measurements tools or measurable assessments
of functional outcome. Use of objective measures at the beginning
of treatment, during and/or after treatment is recommended to
quantify progress and support justifications for continued
treatment. Such tools are not required, but their use will enhance
the justification for continued treatment.
(d) The provisions of this section do not apply to small
employers. For purposes of this section a small employer shall be
defined as any person, firm, corporation, partnership or
association actively engaged in business in the state of West
Virginia who, during the preceding calendar year, employed an
average of no more than twenty-five eligible employees.
(e) To the extent that the application of this section for
autism spectrum disorder causes an increase of at least one percent
of actual total costs of coverage for the plan year the agency may
apply additional cost containment measures.
(f) To the extent that the provisions of this section requires
benefits that exceed the essential health benefits specified under
section 1302(b) of the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, as amended, the specific benefits that exceed
the specified essential health benefits shall not be required of
a health benefit plan when the plan is offered by a health care
insurer in this state.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-8j. Coverage for diagnosis and treatment of autism spectrum
disorders.
(a) Notwithstanding any provision of any policy, provision,
contract, plan or agreement to which this article applies, any
entity regulated by this article, for policies issued or renewed
on or after January 1, 2012, delivers, renews or issues a policy of
group accident and sickness insurance in this State under the
provisions of this article
shall include coverage for diagnosis and
treatment of autism spectrum disorder in individuals ages two
through eighteen years. To be eligible for coverage and benefits
under this section, the individual must be diagnosed with autism
spectrum disorder at age 8 or younger. Such policy shall provide
coverage for treatments that are medically necessary and ordered or
prescribed by a certified behavioral analyst for an individual
diagnosed with autism spectrum disorder, in accordance with a
treatment plan developed by a certified behavioral analyst pursuant to a comprehensive evaluation or reevaluation of the individual,
subject to review by the agency every six months. Progress reports
are required to be filed with the agency semi-annually. In order
for treatment to continue, the agency must receive objective
evidence or a clinically supportable statement of expectation that:
(1) The individual's condition is improving in response to
treatment; and
(2) A maximum improvement is yet to be attained; and
(3) There is an expectation that the anticipated improvement
is attainable in a reasonable and generally predictable period of
time.
(b) Such coverage shall include, but not be limited to,
applied behavioral analysis provided or supervised by a certified
behavioral analyst
:
Provided,
That the annual maximum benefit for
treatment required by this subdivision shall be in amount not to
exceed $30,000 per individual, for three consecutive years from the
date treatment commences. At the conclusion of the third year,
required coverage shall be in an amount not to exceed $2000 per
month, until the individual reaches eighteen years of age, as long
as the treatment is medically necessary and in accordance with a
treatment plan developed by a certified behavioral analyst pursuant
to a comprehensive evaluation or reevaluation of the individual.
This section shall not be construed as limiting, replacing or
affecting any obligation to provide services to an individual under the Individuals with Disabilities Education Act, 20 U. S. C. 1400
et seq., as amended from time to time or other publicly funded
programs. Nothing in this section shall be construed as requiring
reimbursement for services provided by public school personnel.
(c) For purposes of this section, the term:
(1) "Applied behavior analysis" means the design,
implementation, and evaluation of environmental modifications using
behavioral stimuli and consequences, to produce socially
significant improvement in human behavior, including the use of
direct observation, measurement, and functional analysis of the
relationship between environment and behavior.
(2) "Autism spectrum disorder" means any pervasive
developmental disorder, including autistic disorder, Asperger's
Syndrome, Rett syndrome, childhood disintegrative disorder, or
Pervasive Development Disorder as defined in the most recent
edition of the Diagnostic and Statistical Manual of Mental
Disorders of the American Psychiatric Association.
(3)
"Certified behavioral analyst" means a West Virginia
licensed psychologist or psychiatrist who is certified by the
Behavior Analyst Certification Board or certified by a similar
nationally recognized organization.
(4) "Objective evidence" means standardized patient assessment
instruments, outcome measurements tools or measurable assessments
of functional outcome. Use of objective measures at the beginning of treatment, during and/or after treatment is recommended to
quantify progress and support justifications for continued
treatment. Such tools are not required, but their use will enhance
the justification for continued treatment.
(d) The provisions of this section do not apply to small
employers. For purposes of this section a small employer shall be
defined as any person, firm, corporation, partnership or
association actively engaged in business in the state of West
Virginia who, during the preceding calendar year, employed an
average of no more than twenty-five eligible employees.
(e) To the extent that the application of this section for
autism spectrum disorder causes an increase of at least one percent
of actual total costs of coverage for the plan year the agency may
apply additional cost containment measures.
(f) To the extent that the provisions of this section requires
benefits that exceed the essential health benefits specified under
section 1302(b) of the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, as amended, the specific benefits that exceed
the specified essential health benefits shall not be required of a
health benefit plan when the plan is offered by a health care
insurer in this state.
On motion of Senator McCabe, the following amendment to the
Finance committee amendment to the bill
(Eng. Com. Sub. for H. B.
No. 2693)
was reported by the Clerk and adopted:
On pages fourteen through seventeen, by striking out all of
section four-k.
The question being on the adoption of the Finance committee
amendment to the bill (Eng. Com. Sub. for H. B. No. 2693), as
amended, the same was put and prevailed.
On motion of Senator McCabe, 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 §5-16-7 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 §5-16B-6e; that said code be
amended by adding thereto a new section, designated §9-5-21; that
said code be amended by adding thereto a new section, designated
§33-16-3v; that said code be amended by adding thereto a new
section, designated §33-24-7k; that said code be amended by adding
thereto a new section, designated §33-25A-8j, all to read as
follows:
.
The bill (Eng. Com. Sub. for H. B. No. 2693), as amended, was
then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2693) was then read a third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for
House Bill No. 2693 pass?"
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2693) passed.
At the request of Senator
Prezioso
, as chair of the Committee
on
Finance
, and by unanimous consent, the unreported
Finance
committee amendment to the title of the bill was withdrawn.
On motion of Senator McCabe, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2693--
A Bill to amend and
reenact §5-16-7 of the code of West Virginia, 1931, as amended; to
amend said code by adding thereto a new section, designated §5-16B-
6e; to amend said code by adding thereto a new section, designated
§9-5-21; to amend said code by adding thereto a new section,
designated §33-16-3v; to amend said code by adding thereto a new
section, designated §33-24-7k; and to amend said code by adding
thereto a new section, designated §33-25A-8j, all relating to
requiring insurance coverage for autism spectrum disorders;
providing for an effective date for coverage; providing
definitions; setting out age limitations; providing for coverage
amounts and time frames; setting forth who may provide appropriate
treatment; providing reporting requirements to determine if
treatment remains effective; allowing for cost saving measures in
specified instances; providing the provisions are only required to
the extent required by federal law; and providing reporting
requirements by state agencies.
Senator Unger moved that the bill take effect July 1, 2011.
On this question, the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2693) takes effect July 1, 2011.
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 Williams, and by
unanimous consent, the remarks by Senator Jenkins regarding the
passage of Engrossed Committee Substitute for House Bill No. 2693
were ordered printed in the Appendix to the Journal.
At the request of Senator Plymale, unanimous consent being
granted, Senator Plymale addressed the Senate regarding the
imminent meeting of the committee of conference as to
Eng. Com. Sub. for House Bill No. 2464, Adding additional
requirements to the Ethics Act.
Thereafter, on motion of Senator Unger, the Senate recessed
until 5 p.m. today.
Upon expiration of the recess, the Senate reconvened and
resumed business under the ninth order.
Eng. House Bill No. 2845, Creating a senior resident lifetime
hunting, fishing and trapping license that will cost $25.
On second reading, coming up in 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:
On page eleven, section forty-two-x, after line thirty-six, by
adding two new subsections, designated subsections (g) and (h), to
read as follows:
(g) The Division of Natural Resources shall coordinate with
the Department of Motor Vehicles to adopt and implement a program
whereby the senior hunting license provided for in this section
shall be identified by an appropriate decal, sticker or other
marking to be affixed to the drivers' or chauffeurs' license of
such person.
(h) On or before July 1 annually, the Division of Natural
Resources shall file an annual report with the joint committee on
government and finance describing its implementation of the senior
license program as set forth in this section. The report shall
include the number of licenses issued, any increase in state funds
as a result of the senior license created by this section, any
federal funds received as a result of the implementation of the senior license created by this section and the intended use of the
those funds.
The bill (Eng. H. B. No. 2845), as amended, was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 2969, Requiring the
disclosure of the number of stamps by brand name that have been
purchased from a nonparticipating tobacco product manufacturer.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster,
Green, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe,
Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger,
Wells, Williams, Wills, Yost and Kessler (Acting President)--28.
The nays were: Barnes, K. Facemyer, Hall and Sypolt--4.
Absent: Helmick and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2969) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2969) 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. 2981, Clarifying payment for
trade certifications and allowing use of tuition assistance for
West Virginia National Guard members enrolled in a doctor of
medicine or osteopathic medicine program.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2981) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2981) passed with its title.
Senator Unger moved that the bill take effect July 1, 2011.
On this question, the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2981) takes effect July 1, 2011.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, and by unanimous consent, the
Senaate returned to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 5:14 p.m. today:
Eng. Com. Sub. for House Bill No. 2879, Providing a one-time,
nonbase building, supplemental salary increase for all eligible
state employees.
The Senate again proceeded to the ninth order of business, the
next bill coming up in numerical sequence being
Eng. Com. Sub. for House Bill No. 3021, Adding two new members
to the Comprehensive Behavioral Health Commission.
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 42. COMPREHENSIVE BEHAVIORAL HEALTH COMMISSION.
§16-42-3. Comprehensive Behavioral Health Commission.
(a) Effective May 1, 2009 July 1, 2011, the Comprehensive
Behavioral Health Commission is reestablished within the Department
of Health and Human Resources to continue the study of the current
behavioral health system of care, including services to adults and
children, substance abuse and domestic violence when those
conditions have an effect upon or are impacted by the system.
(b) The commission consists of:
(1) A representative of the circuit and family court system,
appointed by the Chief Justice of the West Virginia Supreme Court
of Appeals;
(2) A representative of the Commissioner of the Division of
Corrections;
(3) The Commissioner of the Bureau of Senior Services or a
designee;
(4) The Secretary of the Department of Health and Human
Resources or a designee, who is a nonvoting member;
(5) The Commissioner of the Bureau for Behavioral Health and
Health Facilities or a designee, who is a nonvoting member;
(6) The Commissioner of the Bureau for Children and Families
or a designee, who is a nonvoting member
;
(7) The Executive Director of the West Virginia Chapter of the
National Alliance on Mental Illness or a designee;
(8) The Chancellor for Higher Education or a designee, who is
a nonvoting member
;
(9) One physician with a speciality specialty in psychiatry
appointed by the Governor from a list provided by the West Virginia
Medical Association;
(10) One physician with a specialty in child psychiatry,
appointed by the Governor from a list of names provided by the West
Virginia Medical Association;
(11) One member of the Advisory Board, selected by the
Advisory Board
, who shall serve as the vice chairperson of the
Commission;
(10) (12) One member of the House of Delegates, who is a
nonvoting member, appointed by the Speaker; and
(11) (13) One member of the Senate, who is a nonvoting member,
appointed by the President.
(c) The commission shall meet at times and places as it finds
necessary and shall be staffed by the Bureau for Behavioral Health
and Health Facilities. and the Health Care Authority
(d) The commission shall elect a chairperson from those who
are appointed. The chairperson's term shall be no longer than two
consecutive years whereupon the chairperson is to be replaced by a
vote of the membership.
(d) (e) Effective May 1, 2009 July 1, 2011, the Comprehensive
Behavioral Health Commission
Advisory Board is reestablished to
serve in a consulting role to the Commission with the following
members appointed by the Governor:
(1) One member from a list provided by the West Virginia
Chapter of the National Association of Social Workers;
(2) One member from a list provided by the West Virginia
Hospital Association;
(3) One member who is a psychologist from a list provided by
the West Virginia Psychological Association;
(4) One citizen member from a list of two nominees from each
medical school;
(5) One member from a list of five nominees provided by the
Primary Care Association who is an executive director of a
federally qualified health center in West Virginia
;
(6) One member from a list provided by the West Virginia
Behavioral Healthcare Providers Association who is the chief
executive officer of a comprehensive behavioral health center
;
(7) One member from a list provided by the West Virginia Child
Care Association Two members who are the chairperson or the chief
executive officer of a
not-for-profit corporation with its
principal headquarters in West Virginia
, that provides residential
or non-residential
care or treatment for children
; and
(8) One member from a list provided by the Council of
Churches.
(e) (f) Those persons serving on the commission and the
advisory board on January 1, 2009 July 1, 2011, may continue
serving on the reestablished commission and advisory board and the
person so designated as chairperson of the commission shall remain
as chairperson until an election occurs as provided in this
section.
(f) (g) Each member of the commission and advisory board is
entitled to receive compensation and expense reimbursement for
attending official meetings or engaging in official duties not to
exceed the amount paid to members of the Legislature for their
interim duties as recommended by the Citizens Legislative
Compensation Commission and authorized by law. A commission member
may not receive compensation for travel days that are not on the
same day as the official meeting or official duties.
§16-42-5. Report.
The commission shall submit a report on its study, including
recommendations, to the Governor and the Legislature by January 1,
2011 2012, and each January 1 thereafter.
§16-42-7. Termination of commission.
The commission and advisory board terminate on June 30, 2011
2014.
The bill (Eng. Com. Sub. for H. B. No. 3021), as amended, was
then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3021) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3021) 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. 3021--A Bill
to amend and
reenact §16-42-3, §16-42-5 and §16-42-7 of the Code of West
Virginia, 1931, as amended, all relating to the Comprehensive
Behavioral Health Commission; adding two members to the Commission;
designating non-voting members; requiring a chairperson be selected
by the appointed commission members; prohibiting a chairperson from
serving more than two consecutive years; changing the membership of
the advisory board; authorizing commission
and advisory board
members to continue to serve; requiring yearly reports to the
Governor and Legislature; and extending the commission three years.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3100, Permitting the sale of liquor on
election day.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3116, Relating to the authority of school
curriculum teams and local school collaborative processes.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
By
striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
§18-5A-6. Establishment of school curriculum teams; process for
teacher collaboration to improve learning.
(a) There shall be established at each school in the state a
school curriculum team composed of the school principal, the
counselor designated to serve that school and no fewer than three
teachers representative of the grades taught at the school and
chosen by the faculty senate: Provided, That for In instances
where the counselor is assigned to an elementary school or a
combination elementary and middle school on less than a one-half
time basis, a school curriculum team established at an elementary
school or a combination elementary and middle school, when the
counselor is not assigned to the school on at least a one-half time
basis, the curriculum team that school may meet on days when the
counselor is not at the school and the principal shall consult with
the counselor on the issues relevant to the meeting agenda.
(b) The purposes of this section are to implement the
following goals:
(1) Provide professional opportunities for teachers,
administrators and other school personnel that allow them to have
a direct voice in the operation of their schools and to create a
culture of shared decision-making focused on the ultimate goal of
raising student achievement;
(2) Encourage the use of different, high-quality models of
teaching, scheduling and other aspects of educational delivery that
meet a variety of student needs;
(3) Increase high-quality educational opportunities for all
students that close achievement gaps between high-performing and
low-performing groups of public school students; and
(4) Provide public schools with increased school-level freedom
and flexibility to achieve these purposes when they have achieved
exceptional levels of results-driven accountability.
(c) Powers and duties of the school curriculum team. -- shall
(1) Establish for use at the school the programs and methods
for implementing to be used to implement a curriculum based on
state-approved content standards based on that meet the needs of
students at the individual school. with a
(A) The curriculum shall focus on reading, composition,
mathematics, science and technology.
(B) The curriculum thus established shall be submitted to the
county board for approval which may approve for implementation at the school or for may return to the school curriculum team for
reconsideration.
(2) The school curriculum team shall Review the list of other,
non-required testing and assessment instruments provided by the
state board through the statewide assessment program as provided in
section five, article two-e of this chapter. and The curriculum
team may select one or more of them tests or assessment instruments
that are applicable to the grade levels at the school for use at
the school to improve student learning.
(3) The school has the discretion to use the Establish for use
at the school the assessments, and implement the instructional
strategies and programs, upon approval by the school curriculum
team, that it determines are best suited to promote student
achievement at the school. The school curriculum team may apply
for a waiver of any state or county policy requiring it to assess
students using any specific assessment except
(d) Notwithstanding subsection (c) of this section, the school
curriculum team established at a school that has achieved adequate
yearly progress or has achieved an accreditation status of distinction or exemplary in accordance with section five, article
two-e of this chapter, may use the assessments and implement the
instructional strategies and programs consistent with the approved
curriculum that it determines are best suited to promote student
achievement at the school.
(1) The school may not be required to assess students using
any specific assessment except the state summative assessment known
as the WESTEST2 or any successor tests, the Alternative Performance
Task Assessment, the Online Writing Assessment, and the National
Assessment of Educational Progress (NAEP); and
(2) The school may not be required to employ any specific
instructional strategy or program to achieve content standards for
courses required by the state board, except as approved by the
school curriculum team.
(e) If a school fails to achieve adequate yearly progress or
if it receives any school approval level other than distinction or
exemplary as set forth in section five, article two-e of this
chapter, the curriculum team may not exercise the options provided
in subsections (d) and (i) of this article until the school has
regained one or more of these credentials.
(f) Nothing in this section exempts a school from assessments
required by statute or state board policy including, but not
limited to, the state summative assessment known as the WESTEST2 or
any successor tests, the Alternative Performance Task Assessment, the Online Writing Assessment, and the National Assessment of
Educational Progress (NAEP). or to employ any specific
instructional strategy or program to achieve content standards for
courses required by the state board. Attainment by the school of
at least full accreditation status for the previous year shall be
the factor considered for granting the waiver request.
(g) The school curriculum team also may apply for a waiver for
instructional resources approved and adopted pursuant to article
two-a of this chapter if, in the judgment of the team, the
instructional resources necessary for the implementation of the
instructional strategies and programs best suited to teach the
school's curriculum are not available through the normal adoption
process.
School curriculum teams may request waivers of non-state
mandated tests listed in their county board policies. The
determination of whether to grant the request shall be based on the
school's accreditation status. Waivers are in effect for one year
only. School curriculum teams may resubmit the same or additional
waiver requests the following year.
(h) The school curriculum team may apply for a grant from the
state board for the development or implementation or both, of
to
develop and/or implement remedial and accelerated programs to meet
the needs of the students at the individual school.
(b) (i)Process for teacher collaboration. --
(1) Notwithstanding the application and approval process
established by article five-c of this chapter, at a school that has
achieved adequate yearly progress or has achieved a school
accreditation status of distinction or exemplary in accordance with
section five, article two-e of this chapter, the Each faculty
senate, with approval of the principal, may, in addition to or as
an alternative to the school curriculum team provided for in
subsection (a) of this section, establish a process for teacher
collaboration to improve instruction and learning.
(A) The collaborative process may be established in addition
to, or as an alternative to, the school curriculum team provided
for in subsection (a) of this section.
(B) The mission of the collaboration process is to review
student academic performance based on multiple measures, to
identify strategies to improve student performance and make
recommendations for improvement to be implemented subject to
approval of the principal.
(C) The teacher collaborative process shall include such
includes members as determined necessary by the faculty senate the
faculty senate determines are necessary to address the needed
improvements in the academic performance of students at the school.
and, If applicable, the collaborative may consist of multiple
subject area subcommittees which may meet independently.
(2) If a collaborative process is established as an
alternative to the school curriculum team, the teacher
collaborative has all the powers and duties assigned to school
curriculum teams.
(A) The collaborative process also may incorporate the
functions of the Strategic Planning Committee, the Technology Team,
and/or the School Support Team.
(B) When the functions of any or all of these committees are
incorporated into the collaborative process, the school is not
required to establish a separate committee for any one whose
functions have been assumed by the collaborative.
The bill (Eng. H. B. No. 3116), as amended, was then ordered
to third reading.
On motion of Senator Unger, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 3116) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 3116) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, and by unanimous consent the
Senate returned to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 5:20 p.m. today:
Eng. Com. Sub. for House Bill No. 2464, Adding additional
requirements to the Ethics Act
.
The Senate again proceeded to the ninth order of business, the
next bill coming up in numerical sequence being
Eng. Com. Sub. for House Bill No. 3143, Relating to penalties
for causing injury or death to certain animals used by law
enforcement.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Judiciary, was reported by the Clerk and adopted:
On page two, section twenty-four, line seventeen, by striking
out the word "the".
The bill (Eng. Com. Sub. for H. B. No. 3143), as amended, was
then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3143) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3143) passed.
On motion of Senator Palumbo, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3143--A Bill
to amend and
reenact §19-20-24 of the Code of West Virginia, 1931, as amended;
and to amend and reenact §61-3E-6 of said code; all relating to
increasing penalties for causing injury or death to certain animals
used by law enforcement or in law enforcement duties; and providing
for restitution to the agency or department that owns or owned the
animal.
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. 3144, Creating a criminal
offense and adding misdemeanor criminal penalties for picketing or
disrupting funerals.
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 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-15. Regulating disruptive behavior at or near funeral,
burial, cremation or memorial services.
(a) Any person who willfully engages in boisterous conduct or
makes unreasonably loud noise with the intent to disrupt the
conducting of a funeral, burial, cremation or memorial service of
a member or past member of the armed Forces of the United States
after being requested to desist by a law-enforcement officer acting
in his or her official capacity shall be guilty of a misdemeanor.
(b) Any person who without legal authority willfully hinders
and obstructs the ingress or egress of attendees at a funeral,
burial, cremation or memorial service of a member or past member of
the armed Forces of the United States shall be guilty of a
misdemeanor.
(c) The provisions of subsections (a) and (b) of this section
apply to behavior occurring sixty minutes before and sixty minutes
after the service and within three hundred feet of the property
line of the building or site where the
funeral, burial, cremation
or
memorial service is held.
(d) As used in this section, "armed forces of the United
States" means the United States Army, Navy, Marines, Coast Guard,
Army Reserve and National Guard.
(e) Any person who violates the provisions of subsection (a)
and (b) this section shall be guilty of a misdemeanor and, upon
conviction, shall be confined in jail for not more than six months
or fined not more than $1,000, or both.
The bill (Eng. Com. Sub. for H. B. No. 3144), as amended, was
then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3144) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3144) 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. 3144--A Bill
to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §61-8-15, relating to creating a criminal
offense and adding misdemeanor criminal penalties for willfully
disrupting military member's funeral, burial, cremation or memorial
services.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, and by unanimous consent, the
Senate returned to the fourth order of business.
Senator Foster, from the Committee on Pensions, submitted the
following report, which was received:
Your Committee on Pensions has had under consideration
House Concurrent Resolution No. 80, Requesting the Joint
Committee on Government and Finance study requiring the
Consolidated Public Retirement Board to deduct from monthly
benefits to retirees sums to pay retiree association dues.
And reports the same back with the recommendation that it be
adopted; but under the original double committee reference first be
referred to the Committee on Rules.
Respectfully submitted,
Dan Foster,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules.
Senator Wells, from the Committee on Military, submitted the
following report, which was received:
Your Committee on Military has had under consideration
House Concurrent Resolution No. 94, Supporting the "Honor and
Remember" Flag as an official emblem of the service and sacrifice
by the brave men and women who have given their lives in the line
of duty.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Erik P. Wells,
Chair.
At the request of Senator Wells, unanimous consent being
granted, the resolution (H. C. R. No. 94) contained in the
preceding report from the Committee on Military was taken up for
immediate consideration.
On motion of Senator Wells, the resolution was then referred
to the Committee on Rules.
The Senate proceeded to the sixth order of business, which
agenda includes the making of main motions.
On motion of Senator Unger, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2752, Increasing the maximum
age for persons applying for appointment for the police force in a
Class I or Class II city from thirty-five to forty years.
Passed by the Senate on yesterday, Thursday, March 10, 2011,
The bill now being in the possession of the Senate,
On motion of Senator Palumbo, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2752--A Bill to amend and
reenact §8-14-12 of the Code of West Virginia, 1931, as amended, relating to municipal police departments; increasing the maximum
age for persons applying for examination for original appointment
to an applicable municipal police civil system from thirty-five to
forty years; and removing an unconstitutional residency
requirement.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2752), as just amended, was then read a third time and put upon its
passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2752) 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 Unger, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 3204, Creating the West
Virginia Enterprise Resource Planning Board and Executive
Committee.
Passed by the Senate on yesterday, Thursday, March 10, 2011,
The bill now being in the possession of the Senate,
On motion of Senator Unger, the Senate reconsidered the vote
as to the effective date and passage.
The vote thereon having been reconsidered,
At the request of Senator Snyder, unanimous consent was
granted to offer amendments to the bill on third reading.
Thereupon, on motion of Senator Snyder, the following
amendments to the bill were reported by the Clerk, considered
simultaneously, and adopted:
On pages nine and ten, section five, lines one through thirty-
two, by striking out all of section five;
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 article, designated §12-6D-1, §12-6D-2,
§12-6D-3, §12-6D-4, §12-6D-5 and §12-6D-6, all to read as follows:.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3204), as just amended, was then read a third time and put upon its
passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3204) passed.
On motion of Senator Snyder, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. For House Bill No. 3204--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §12-6D-1, §12-6D-2, §12-6D-3, §12-6D-4, §12-6D-
5 and §12-6D-6, all relating to the West Virginia Enterprise
Resource Planning System; creating the Enterprise Resource Planning
Board; providing for composition, purpose, powers and duties of the
board; creating a steering committee; providing for composition,
purpose, powers and duties of the steering committee; providing for
expense reimbursement for members of the steering committee;
creating the Enterprise Resource Planning System Fund in the state treasury; and transferring funds allocated to the system to the
Enterprise Resource Planning System Fund.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3204) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Plymale, Minard and Laird.
The Senate then proceeded to the thirteenth order of business.
At the request of Senator Wells, unanimous consent being
granted, it was ordered that the Journal show had Senator Wells
been present in the chamber in earlier proceedings today, he would
have voted "yea" on the passage of Engrossed Committee Substitute
for House Bill No. 2159.
On motion of Senator Unger, a leave of absence for the day was
granted Senator Tomblin (Mr. President).
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Unger, the Senate adjourned until
tomorrow, Saturday, March 12, 2011, at 11 a.m.
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