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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
and to achieve content standards for courses required by the state board. The curriculum team shall submit the established assessments, instructional strategies and programs to the county board which shall approve the recommendations for implementation at the school or shall return them to the curriculum team for reconsideration.
(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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