sdj-60th day
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-NINTH LEGISLATURE
REGULAR SESSION, 2009
SIXTIETH DAY
____________
Charleston, W. Va., Saturday, April 11, 2009
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Joel R. Harshberger,
Retired United Methodist Clergy, Kingwood, West Virginia. Dennis
Harrison of Charleston, West Virginia, then proceeded in the
playing of "Scotland the Brave" and "Amazing Grace" on the
bagpipes.
Pending the reading of the Journal of Friday, April 10, 2009,
On motion of Senator Bowman, 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.
On motion of Senator Chafin, the Senate recessed for five
minutes to permit Emily Mervine to address the Senate on behalf of
the Walter Rollins Scholars, Stephen Schelling on behalf of the
Legislative Information Journalism Internship Program and Carlo Sciara on behalf of the Judith A. Herndon Fellowship Program.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, unanimous consent being granted,
proceeded to the sixth order of business.
Senators Chafin, Stollings, Helmick, Fanning, Kessler, Yost
and Foster offered the following resolution:
Senate Concurrent Resolution No. 82--Requesting the Joint
Committee on Government and Finance study the benefits of
dedicating a portion of revenue generated from coal, oil and gas
severance taxes for the benefit of counties and municipalities
where the revenue was generated.
Whereas, Counties that produce coal, oil and gas provide the
state with one of its primary sources of revenue in the form of
severance taxes; and
Whereas, The counties that produce coal, oil and gas bear
great burdens attendant to the production, extraction and
transportation of the materials that produce this irreplaceable
stream of revenue; and
Whereas, The producing counties do not receive a share of the
revenue generated from coal, oil and gas commensurate with the
burdens they bear and the value they provide; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the benefits of dedicating a portion of revenue
generated from coal, oil and gas severance taxes for the benefit of
counties and municipalities where the revenue was generated; and,
be it
Further Resolved, That the Joint Committee on Government and
Finance's study include creating a special revenue fund, providing
for the distribution of the moneys in the fund and providing
permissible uses for distributed moneys; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2010, 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.
Which, under the rules, lies over one day.
Senators Unger, Wells, Snyder, Kessler and Yost offered the
following resolution:
Senate Resolution No. 57--Congratulating the Martinsburg
Bulldogs boys' basketball team for winning the 2009 Class AAA state
championship.
Whereas, The Martinsburg Bulldogs boys' basketball team is led
by head coach Dave Rogers; and
Whereas, The Martinsburg Bulldogs boys' basketball team had a
dominant year, finishing with a record of 26-2 in route to winning
the AAA state championship; and
Whereas, The Martinsburg Bulldogs boys' basketball team
displayed its strong will and determination for an entire season
and will be remembered as one of the best teams ever assembled in
West Virginia boys' basketball history; and
Whereas, The Martinsburg Bulldogs boys' basketball team is a
shining example of what can be accomplished through teamwork,
dedication and spirit; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates the Martinsburg Bulldogs
boys' basketball team for winning the 2009 Class AAA state
championship; and, be it
Further Resolved, That the Senate commends each coach, team
member and staff member for their outstanding accomplishments; and,
be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the Martinsburg Bulldogs boys'
basketball team.
At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Senators Caruth, Fanning, Wells, McCabe, Kessler, Palumbo,
Yost and Foster offered the following resolution:
Senate Resolution No. 58--Memorializing the life of Glenn
Thomas "Tom" Searls, reporter, writer and dedicated West Virginian.
Whereas, Tom Searls was born in Marmet, Kanawha County, the
son of Glenn Cheetwood and Carol Canterberry Searls; and
Whereas, Tom Searls was a 1972 graduate of East Bank High
School and was the editor of the school newspaper; and
Whereas, Tom Searls was a graduate of Marshall University and
was twice elected president of the student body. He also worked as
a reporter and editor for the university's newspaper,
The
Parthenon. Throughout his life, he remained a loyal Thundering
Herd fan; and
Whereas, Tom Searls began his professional journalism career
with the
Welch Day News, Welch, West Virginia. He also worked for
the
Raleigh Register, Beckley, West Virginia, the
Johnson City
Press, Johnson City, Tennessee, the
Bluefield Daily Telegraph,
Bluefield, West Virginia, the
Dominion Post, Morgantown, West
Virginia, and United Press International (UPI) in West Virginia and
Ohio; and
Whereas, Tom Searls began working at the
Charleston Gazette in 1991 and was assigned to the state capitol as a correspondent. He
was well suited for the job because of his love of politics and
history; and
Whereas, Tom Searls was well respected by his peers and was
the recipient of a number of journalistic awards. He was
especially proud of the winning the Al Nakkula Award for police
reporting from the University of Colorado School of Journalism and
Mass Communication in 2000; and
Whereas, Sadly, Tom Searls passed away on August 14, 2008;
therefore, be it
Resolved by the Senate:
That the Senate hereby memorializes the life of Glenn Thomas
"Tom" Searls, reporter, writer and dedicated West Virginian; and,
be it
Further Resolved, That the Senate hereby expresses its sincere
sadness at the passing of Tom Searls; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the family of the late Tom Searls.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration
and reference to a committee dispensed with.
The question being on the adoption of the resolution (S. R.
No. 58), and on this question, Senator Wells demanded the yeas and nays.
The roll being taken, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Plymale--1.
So, a majority of those present and voting having voted in the
affirmative, the President declared the resolution (S. R. No. 58)
adopted.
Thereafter, at the request of Senator Sypolt, and by unanimous
consent, the remarks by Senators Caruth, Barnes and Wells regarding
the adoption of Senate Resolution No. 58 were ordered printed in
the Appendix to the Journal.
At the request of Senator Caruth, unanimous consent being
granted, the remarks by Senators McCabe, Foster and Palumbo
regarding the adoption of Senate Resolution No. 58 were ordered
printed in the Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Petitions
Senator Yost presented a petition from Kim White and numerous
West Virginia residents, requesting the Legislature to examine and
modify Child Protective Services' child placement guidelines.
Referred to the Committee on Health and Human Resources.
At the request of Senator Snyder, and by unanimous consent,
the Senate proceeded to the thirteenth order of business.
At the request of Senator Snyder, the name of Senator Snyder
was removed as a sponsor of
Engrossed Committee Substitute for
Senate Bill No. 461 (
Extending selenium effluent limits compliance
time) and
Senate Resolution No. 28 (
Urging Congress pass Employee
Free Choice Act).
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the fourth order of business.
Senator Stollings, from the Committee on Confirmations,
submitted the following report, which was received:
Your Committee on Confirmations has had under consideration
Senate Executive Message No. 2, dated February 24, 2009,
requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 2
is submitted:
1. For Member, West Virginia University Board of Governors, Dr. Charles Vest, Washington, D. C., for the term ending June 30,
2012.
2. For Member, West Virginia University Board of Governors,
Oliver Luck, Houston, Texas, for the term ending June 30, 2012.
3. For Member, West Virginia University Board of Governors,
Ray Lane, Atherton, California, for the term ending June 30, 2012.
4. For Member, Fairmont State University Board of Governors,
H. Skip Tarasuk, Jr., Fairmont, Marion County, for the term ending
June 30, 2012.
5. For Member, Fairmont State University Board of Governors,
James Kettering, Fairmont, Marion County, for the term ending June
30, 2011.
6. For Member, Fairmont State University Board of Governors,
Ron Tucker, Fairmont, Marion County, for the term ending June 30,
2012.
7. For Member, Fairmont State University Board of Governors,
Mark Pallotta, Fairmont, Marion County, for the term ending June
30, 2012.
8. For Member, Parkways, Economic Development and Tourism
Authority, Victor Grigoraci, Charleston, Kanawha County, for the
term ending May 31, 2011.
9. For Member, Public Port Authority, Mark Carroll,
Buckhannon, Upshur County, for the term ending June 30, 2011.
10. For Member, Clay Center Board of Directors, Jane Kopp,
Huntington, Cabell County, for the term ending June 30, 2010.
11. For Member, Clay Center Board of Directors, Laurance
Jones III, Looneyville, Roane County, for the term ending June 30,
2011.
12. For Member, Clay Center Board of Directors, Harry
Esbenshade, Vienna, Wood County, for the term ending June 30, 2010.
13. For Member, Clay Center Board of Directors, Bobby
Nicholas, Morgantown, Monongalia County, for the term ending June
30, 2009.
14. For Member, Clay Center Board of Directors, Diane
Dailey, Martinsburg, Berkeley County, for the term ending June 30,
2010.
15. For Member, Clay Center Board of Directors, Shirley
Phillips, Ghent, Raleigh County, for the term ending June 30, 2011.
16. For Member, Clay Center Board of Directors, Joan
Weisburg, Huntington, Cabell County, for the term ending June 30,
2011.
17. For Member, Board of Dental Examiners, Dr. Craig
Meadows, Shenandoah Junction, Jefferson County, for the term ending
June 30, 2013.
18. For Member, Real Estate Appraiser Licensing and
Certification Board, Charles Robilliard, Hepzibah, Harrison County, for the term ending June 30, 2011.
19. For Member, Marshall University Board of Governors,
Letitia Neese Chafin, Williamson, Mingo County, for the term ending
June 30, 2012.
20. For Member, Marshall University Board of Governors, John
G. Hess, Barboursville, Cabell County, for the term ending June 30,
2012.
21. For Member, Marshall University Board of Governors,
Verna Gibson, Sarasota, Florida, for the term ending June 30, 2012.
23. For Member, Public Employees Insurance Agency Finance
Board, Bill Ihlenfeld, Wheeling, Ohio County, for the term ending
June 30, 2012.
24. For Member, Public Employees Insurance Agency Finance
Board, The Honorable Joe Smith, Charleston, Kanawha County, for the
term ending June 30, 2012.
25. For Member, Manufactured Housing Construction and Safety
Board, Thomas Belasco, Bridgeport, Harrison County, for the term
ending June 30, 2012.
26. For Member, Manufactured Housing Construction and Safety
Board, Samuel L. Bonasso, Fairmont, Marion County, for the term
ending June 30, 2014.
27. For Member, Manufactured Housing Construction and Safety
Board, Jack Albert, Charleston, Kanawha County, for the term ending June 30, 2014.
28. For Member, Manufactured Housing Construction and Safety
Board, Robert F. Miller, Charleston, Kanawha County, for the term
ending June 30, 2012.
30. For Member, Commission on Holocaust Education, Brenda
Williams, Buckhannon, Upshur County, for the term ending June 30,
2011.
31. For Member, Pierpont Community and Technical College
Board of Governors, Earl McConnell, Fairmont, Marion County, for
the term ending June 30, 2012.
32. For Member, Pierpont Community and Technical College
Board of Governors, Dixie Copley, Fairmont, Marion County, for the
term ending June 30, 2010.
33. For Member, Pierpont Community and Technical College
Board of Governors, Linda Aman, Jane Lew, Lewis County, for the
term ending June 30, 2010.
34. For Member, Pierpont Community and Technical College
Board of Governors, James Griffin, Bridgeport, Harrison County, for
the term ending June 30, 2010.
35. For Member, Pierpont Community and Technical College
Board of Governors, Larry Mazza, Bridgeport, Harrison County, for
the term ending June 30, 2010.
36. For Member, Pierpont Community and Technical College Board of Governors, L. Eugene Weaver, Fairmont, Marion County, for
the term ending June 30, 2012.
37. For Member, Pierpont Community and Technical College
Board of Governors, Kyle Hamilton, Fairmont, Marion County, for the
term ending June 30, 2012.
38. For Member, Pierpont Community and Technical College
Board of Governors, Jeff Tucker, Bridgeport, Harrison County, for
the term ending June 30, 2012.
39. For Member, Pierpont Community and Technical College
Board of Governors, John P. Jones, Jr., Fairmont, Marion County,
for the term ending June 30, 2012.
40. For Member, Southern West Virginia Community and
Technical College Board of Governors, Glenn Yost, Logan, Logan
County, for the term ending June 30, 2012.
41. For Member, Southern West Virginia Community and
Technical College Board of Governors, Thomas A. Heywood,
Charleston, Kanawha County, for the term ending June 30, 2012.
42. For Member, Southern West Virginia Community and
Technical College Board of Governors, Jada Hunter, Williamson,
Mingo County, for the term ending June 30, 2012.
43. For Member, Shallow Gas Well Review Board, Randy
Hansford, Ghent, Raleigh County, to serve at the will and pleasure
of the Governor.
44. For Member, School Building Authority, Connie Perry,
Berkeley Springs, Morgan County, for the term ending July 31, 2010.
45. For Member, Board of Pharmacy, Lydia Main, Masontown,
Preston County, for the term ending June 30, 2013.
46. For Member, West Virginia University Parkersburg Board
of Governors, The Honorable Keith Burdette, Vienna, Wood County,
for the term ending June 30, 2012.
47. For Member, West Virginia University Parkersburg Board
of Governors, Joe Campbell, Parkersburg, Wood County, for the term
ending June 30, 2012.
48. For Member, West Virginia University Parkersburg Board
of Governors, Gerard El Chaar, Vienna, Wood County, for the term
ending June 30, 2010.
49. For Member, West Virginia University Parkersburg Board
of Governors, William H. Hopkins, Parkersburg, Wood County, for the
term ending June 30, 2012.
50. For Member, West Virginia University Parkersburg Board
of Governors, Curtis P. Miller, Vienna, Wood County, for the term
ending June 30, 2012.
51. For Member, West Virginia University Parkersburg Board
of Governors, The Honorable Gregory K. Smith, Vienna, Wood County,
for the term ending June 30, 2012.
52. For Member, West Virginia University Parkersburg Board of Governors, Rock Wilson, Pennsboro, Ritchie County, for the term
ending June 30, 2010.
53. For Member, West Virginia University Parkersburg Board
of Governors, Cindy Bullock, Vienna, Wood County, for the term
ending June 30, 2010.
54. For Member, Affordable Housing Trust Fund Board of
Directors, Kevin Wilfong, Fairmont, Marion County, for the term
ending June 30, 2011.
55. For Member, Affordable Housing Trust Fund Board of
Directors, Ray Joseph, Charleston, Kanawha County, for the term
ending June 30, 2011.
56. For Member, Affordable Housing Trust Fund Board of
Directors, Virginia Lewis, Charleston, Kanawha County, for the term
ending June 30, 2011.
57. For Member, Affordable Housing Trust Fund Board of
Directors, Mary Skeens, Charleston, Kanawha County, for the term
ending June 30, 2011.
58. For Member, Affordable Housing Trust Fund Board of
Directors, Fred McDonald, Bridgeport, Harrison County, for the term
ending June 30, 2011.
59. For Member, Affordable Housing Trust Fund Board of
Directors, Marlo Scruggs, St. Albans, Kanawha County, for the term
ending June 30, 2011.
60. For Member, Affordable Housing Trust Fund Board of
Directors, Al Means, Martinsburg, Berkeley County, for the term
ending June 30, 2011.
61. For Member, Marshall University Community and Technical
College Board of Governors, Ruth Cline, Huntington, Cabell County,
for the term ending June 30, 2012.
62. For Member, Marshall University Community and Technical
College Board of Governors, Mark George, Huntington, Cabell County,
for the term ending June 30, 2012.
63. For Member, Marshall University Community and Technical
College Board of Governors, Bob Bailey, Huntington, Cabell County,
for the term ending June 30, 2010.
64. For Member, Marshall University Community and Technical
College Board of Governors, Mark Bugher, Huntington, Cabell County,
for the term ending June 30, 2012.
65. For Member, Marshall University Community and Technical
College Board of Governors, Susan Richardson, Huntington, Cabell
County, for the term ending June 30, 2010.
66. For Member, Marshall University Community and Technical
College Board of Governors, Mike Herron, Hurricane, Putnam County,
for the term ending June 30, 2012.
67. For Member, Marshall University Community and Technical
College Board of Governors, Jeffrey Porter, Huntington, Cabell County, for the term ending June 30, 2010.
68. For Member, Marshall University Community and Technical
College Board of Governors, Jim Hale, Huntington, Cabell County,
for the term ending June 30, 2012.
69. For Member, Public Energy Authority, Dean Cordle,
Winfield, Putnam County, for the term ending June 30, 2011.
70. For Member, Board of Optometry, Dr. Gregory S. Moore,
South Charleston, Kanawha County, for the term ending June 30,
2010.
71. For Member, Board of Optometry, Dr. Matthew Berardi,
Fairmont, Marion County, for the term ending June 30, 2011.
72. For Member, Statewide Independent Living Council, Brenda
Lamkin, Buckhannon, Upshur County, for the term ending June 30,
2011.
73. For Member, Statewide Independent Living Council,
William C. Davis, Morgantown, Monongalia County, for the term
ending June 30, 2011.
74. For Member, Statewide Independent Living Council, Brenda
Goodfellow, Sistersville, Tyler County, for the term ending June
30, 2011.
75. For Member, Statewide Independent Living Council, David
Sanders, Belle, Kanawha County, for the term ending June 30, 2011.
76. For Member, Statewide Independent Living Council, David Stewart, Charleston, Kanawha County, for the term ending June 30,
2011.
77. For Member, Statewide Independent Living Council, Scott
Adkins, St. Albans, Kanawha County, for the term ending June 30,
2009.
78. For Member, Statewide Independent Living Council,
Beverly Jones, Hurricane, Putnam County, for the term ending June
30, 2011.
79. For Member, Statewide Independent Living Council, Colin
Mitchell, Harpers Ferry, Jefferson County, for the term ending June
30, 2011.
80. For Member, Statewide Independent Living Council, James
Qualls, Huntington, Cabell County, for the term ending June 30,
2011.
81. For Member, Statewide Independent Living Council, Kevin
Smith, Vienna, Wood County, for the term ending June 30, 2011.
82. For Member, Statewide Independent Living Council, Burl
Anderson, Weirton, Hancock County, for the term ending June 30,
2011.
83. For Member, Marshall University Community and Technical
College Board of Governors, Jason Moses, Huntington, Cabell County,
for the term ending June 30, 2010.
84. For Member, Bluefield State College Board of Governors, Larry Ratliff, Cedar Bluff, Virginia, for the term ending June 30,
2011.
85. For Member, Probable Cause Review Board, Reverend James
E. Shepherd II, Huntington, Cabell County, for the term ending June
30, 2010.
86. For Member, Ethics Commission, Joseph Trupo, Bridgeport,
Harrison County, for the term ending June 30, 2013.
87. For Member, Elections Commission, Gary Collias,
Charleston, Kanawha County, for the term ending June 30, 2014.
88. For Member, West Virginia University Parkersburg Board
of Governors, Kennad Lee Skeen II, Ripley, Jackson County, for the
term ending June 30, 2010.
89. For Member, Contractor Licensing Board, Jacob Meck,
Green Bank, Pocahontas County, for the term ending June 30, 2011.
90. For Member, West Liberty State College Board of
Governors, Richard Carter, Wheeling, Ohio County, for the term
ending June 30, 2012.
91. For Member, West Liberty State College Board of
Governors, Paul Limbert, Wheeling, Ohio County, for the term ending
June 30, 2009.
92. For Member, West Liberty State College Board of
Governors, Jim R. Stultz, Moundsville, Marshall County, for the
term ending June 30, 2012.
93. For Member, Emergency Services Advisory Council, Steven
McEntire, Clarksburg, Harrison County, for the term ending June 30,
2011.
94. For Member, Emergency Services Advisory Council, Richard
Rock, Clarksburg, Harrison County, for the term ending June 30,
2011.
95. For Member, Emergency Services Advisory Council, Joe
Coburn, Princeton, Mercer County, for the term ending June 30,
2011.
96. For Member, Emergency Services Advisory Council, John
Ashcraft, New Cumberland, Hancock County, for the term ending June
30, 2009.
97. For Member, Emergency Services Advisory Council, Jim
Kranz, Charleston, Kanawha County, for the term ending June 30,
2011.
98. For Member, Emergency Services Advisory Council, Connie
Hall, Coal City, Raleigh County, for the term ending June 30, 2011.
99. For Member, Emergency Services Advisory Council, George
Sovick III, Dunbar, Kanawha County, for the term ending June 30,
2011.
100. For Member, Emergency Services Advisory Council, Paul
Seamann, Beckley, Raleigh County, for the term ending June 30,
2011.
101. For Member, Emergency Services Advisory Council, Marcel
Malfregot, Jr., Clarksburg, Harrison County, for the term ending
June 30, 2011.
102. For Member, Emergency Services Advisory Council, A.
Gordon Merry, Huntington, Cabell County, for the term ending June
30, 2011.
103. For Member, Emergency Services Advisory Council, Scott
Edwards, Hurricane, Putnam County, for the term ending June 30,
2011.
104. For Member, Emergency Services Advisory Council, Roger
Curry, Fairmont, Marion County, for the term ending June 30, 2011.
105. For Member, Emergency Services Advisory Council, Donna
Steward, Springfield, Hampshire County, for the term ending June
30, 2011.
106. For Member, Emergency Services Advisory Council, Glen
Satterfield, Fairmont, Marion County, for the term ending June 30,
2011.
107. For Member, West Virginia State University Community and
Technical College Board of Governors, Robert Manley, Charleston,
Kanawha County, for the term ending June 30, 2010.
108. For Member, New River Community and Technical College
Board of Governors, Leslie Baker, Beckley, Raleigh County, for the
term ending June 30, 2009.
109. For Member, New River Community and Technical College
Board of Governors, Deborah A. Hill, Summersville, Nicholas County,
for the term ending June 30, 2009.
110. For Member, New River Community and Technical College
Board of Governors, Albert A. Martine, Daniels, Raleigh County, for
the term ending June 30, 2010.
111. For Member, New River Community and Technical College
Board of Governors, Robert Farley, Princeton, Mercer County, for
the term ending June 30, 2010.
112. For Member, New River Community and Technical College
Board of Governors, Edward Knight, Lewisburg, Greenbrier County,
for the term ending June 30, 2011.
113. For Member, New River Community and Technical College
Board of Governors, Marilyn Leftwich, White Sulphur Springs,
Greenbrier County, for the term ending June 30, 2011.
114. For Member, New River Community and Technical College
Board of Governors, David Nalker, Lewisburg, Greenbrier County, for
the term ending June 30, 2012.
115. For Member, New River Community and Technical College
Board of Governors, Vickie Nutter, Craigsville, Nicholas County,
for the term ending June 30, 2012.
116. For Member, New River Community and Technical College
Board of Governors, E. T. Smith, Princeton, Mercer County, for the term ending June 30, 2012.
117. For Member, Broadband Deployment Council, Michael
Kelemen, Hurricane, Putnam County, for the term ending December 31,
2011.
118. For Member, West Virginia State University Community and
Technical College Board of Governors, Ian Burdett, South
Charleston, Kanawha County, for the term ending June 30, 2010.
119. For Member, West Virginia State University Community and
Technical College Board of Governors, Janna Inghram, Charleston,
Kanawha County, for the term ending June 30, 2010.
120. For Member, West Virginia State University Community and
Technical College Board of Governors, Donna Atkinson, Charleston,
Kanawha County, for the term ending June 30, 2010.
121. For Member, West Virginia State University Community and
Technical College Board of Governors, Greg Barker, Leon, Mason
County, for the term ending June 30, 2012.
122. For Member, West Virginia State University Community and
Technical College Board of Governors, Mark Dempsey, Charleston,
Kanawha County, for the term ending June 30, 2012.
123. For Member, West Virginia State University Community and
Technical College Board of Governors, Jan Vineyard, Charleston,
Kanawha County, for the term ending June 30, 2012.
124. For Member, Marshall University Board of Governors, Dr. Joseph Touma, Huntington, Cabell County, for the term ending June
30, 2012.
125. For Member, Parole Board, Michael Trupo, Bridgeport,
Harrison County, for the term ending June 30, 2013.
126. For Member, Board of Education, Louis Wade Linger, Jr.,
Fairmont, Marion County, for the term ending November 4, 2017.
127. For Member, Natural Resources Commission, Peter L.
Cuffaro, Wheeling, Ohio County, for the term ending June 30, 2015.
128. For Interim Executive Officer, Center for Professional
Development Board, Dr. Dixie Billheimer, Huntington, Cabell County,
to serve at the will and pleasure of the Governor.
129. For Chief Administrative Law Judge, Workers'
Compensation Board of Review, Rebecca Roush, Mason, Mason County,
for the term ending December 1, 2011.
130. For Member, Board of Directors of the West Virginia
United Health System, Inc., Mark R. Nesselroad, Morgantown,
Monongalia County, for the term ending October 15, 2010.
131. For Superintendent, State Police, Timothy S. Pack, South
Charleston, Kanawha County, to serve at the will and pleasure of
the Governor.
132. For Member, Board of Accountancy, Lee Fisher, Little
Birch, Braxton County, for the term ending June 30, 2010.
133. For Member, Board of Accountancy, Robert S. Maust, Morgantown, Monongalia County, for the term ending June 30, 2011.
134. For Member, Board of Accountancy, Reed Spangler,
Charleston, Kanawha County, for the term ending June 30, 2011.
135. For Member, Board of Accountancy, James M. Sturgeon,
Charleston, Kanawha County, for the term ending June 30, 2010.
136. For Member, Board of Accountancy, John S. Bodkin, Jr.,
Wheeling, Ohio County, for the term ending June 30, 2009.
137. For Member, Board of Accountancy, Harold Davis, Lenore,
Mingo County, for the term ending June 30, 2009.
138. For Member, Board of Accountancy, Don Nestor,
Buckhannon, Upshur County, for the term ending June 30, 2010.
139. For Member, Board of Medicine, Reverend Richard Bowyer,
Fairmont, Marion County, for the term ending June 30, 2013.
140. For Chief Administrative Law Judge, Office of Tax
Appeals, Michele Duncan Bishop, Alum Creek, Kanawha County, for the
term ending June 30, 2012.
141. For Member, Concord University Board of Governors, Brace
R. Mullett, Charleston, Kanawha County, for the term ending June
30, 2010.
142. For Member, Water Development Board, John Miller III,
Gerrardstown, Berkeley County, for the term ending June 30, 2014.
143. For Member, Workers' Compensation Board of Review, Rita
F. Hedrick-Helmick, Charleston, Kanawha County, for the term ending December 31, 2014.
144. For Member, Blue Ridge Community and Technical College
Board of Governors, Taylor Perry, Martinsburg, Berkeley County, for
the term ending June 30, 2011.
145. For Member, Blue Ridge Community and Technical College
Board of Governors, Maria Lorensen, Martinsburg, Berkeley County,
for the term ending June 30, 2011.
146. For Member, Blue Ridge Community and Technical College
Board of Governors, Jane Peters, Charles Town, Jefferson County,
for the term ending June 30, 2012.
147. For Member, Blue Ridge Community and Technical College
Board of Governors, Jim Rodgers, Martinsburg, Berkeley County, for
the term ending June 30, 2013.
148. For Member, Blue Ridge Community and Technical College
Board of Governors, Teresa E. McCabe, Martinsburg, Berkeley County,
for the term ending June 30, 2010.
149. For Member, Blue Ridge Community and Technical College
Board of Governors, Tina Combs, Martinsburg, Berkeley County, for
the term ending June 30, 2009.
150. For Member, Blue Ridge Community and Technical College
Board of Governors, Albert T. Britton, Charles Town, Berkeley
County, for the term ending June 30, 2010.
151. For Member, Catastrophic Illness Commission, Frances Roberts-Buchanan, Lesage, Cabell County, for the term ending August
31, 2013.
152. For Member, Catastrophic Illness Commission, Jacques
Williams, Morgantown, Monongalia County, for the term ending August
31, 2012.
153. For Member, Catastrophic Illness Commission, Sandra
Cotton, Morgantown, Monongalia County, for the term ending August
31, 2013.
154. For Member, Catastrophic Illness Commission, John
Davidson, Charleston, Kanawha County, for the term ending August
31, 2009.
155. For Member, Catastrophic Illness Commission, Patricia
Davis, Romney, Hampshire County, for the term ending August 31,
2009.
156. For Acting Commissioner, Division of Motor Vehicles, Joe
E. Miller, Hurricane, Putnam County, to serve at the will and
pleasure of the Governor.
157. For Member, Workforce Investment Council, Joanne Jaeger
Tomblin, Chapmanville, Logan County, for the term ending June 30,
2012.
158. For Member, Workforce Investment Council, Bob Newell,
Parkersburg, Wood County, for the term ending June 30, 2012.
159. For Member, Workforce Investment Council, Jerry Berry, Hinton, Summers County, for the term ending June 30, 2012.
160. For Member, Workforce Investment Council, Roy Smith,
Charleston, Kanawha County, for the term ending June 30, 2012.
161. For Member, Workforce Investment Council, Bill Rock,
Snowshoe, Pocahontas County, for the term ending June 30, 2012.
162. For Member, Workforce Investment Council, Kenny Perdue,
Charleston, Kanawha County, for the term ending June 30, 2012.
163. For Member, Workforce Investment Council, David Bell,
Vienna, Wood County, for the term ending June 30, 2012.
164. For Member, Workforce Investment Council, Nancy
Kessinger, Beckley, Raleigh County, for the term ending June 30,
2012.
165. For Member, Workforce Investment Council, Bill Menke,
Belle, Kanawha County, for the term ending June 30, 2012.
166. For Member, Workforce Investment Council, Joe Chronley,
Williamstown, Wood County, for the term ending June 30, 2012.
167. For Member, Workforce Investment Council, Jim Rock, New
Martinsville, Wetzel County, for the term ending June 30, 2012.
168. For Member, Board of Medicine, Dr. Badshah J. Wazir,
Charleston, Kanawha County, for the term ending September 30, 2013.
169. For Member, Commission on the Arts, Susan Stevenson
Landis, Daniels, Raleigh County, for the term ending June 30, 2011.
170. For Member, Commission on the Arts, Selina Midkiff, Charleston, Kanawha County, for the term ending June 30, 2010.
171. For Member, Commission on the Arts, Penny Watkins,
Huntington, Cabell County, for the term ending June 30, 2010.
172. For Member, Commission on the Arts, Sam Winans,
Parkersburg, Wood County, for the term ending June 30, 2011.
173. For Member, Commission on the Arts, Dr. Bernie Schultz,
Morgantown, Monongalia County, for the term ending June 30, 2011.
174. For Member, Commission on the Arts, Stephen G. Skinner,
Shenandoah Junction, Berkeley County, for the term ending June 30,
2011.
175. For Member, Workforce Investment Council, Jason Parsons,
Morgantown, Monongalia County, for the term ending June 30, 2012.
176. For Member, Workforce Investment Council, Wayne Morgan,
Charleston, Kanawha County, for the term ending June 30, 2012.
177. For Member, Workforce Investment Council, John Sorrenti,
Weirton, Hancock County, for the term ending June 30, 2012.
178. For Member, Workforce Investment Council, Frank Ellis,
Wheeling, Ohio County, for the term ending June 30, 2012.
179. For Member, Workforce Investment Council, Kim Tieman,
Charleston, Kanawha County, for the term ending June 30, 2012.
180. For Member, Board of Medicine, Beth Hayes, Bluefield,
Mercer County, for the term ending September 30, 2012.
181. For Member, Committee for the Purchase of Commodities and Services from the Handicapped, Penney Hall, Winfield, Putnam
County, for the term ending January 31, 2011.
182. For Member, Committee for the Purchase of Commodities
and Services from the Handicapped, Jan Smith, Fairmont, Marion
County, for the term ending January 31, 2011.
183. For Member, Committee for the Purchase of Commodities
and Services from the Handicapped, Deborah Lovely, Charleston,
Kanawha County, for the term ending January 31, 2011.
184. For Member, Committee for the Purchase of Commodities
and Services from the Handicapped, Philip Mason, Fairmont, Marion
County, for the term ending January 31, 2011.
185. For Member, Committee for the Purchase of Commodities
and Services from the Handicapped, Jan Lilly Stewart, Dunbar,
Kanawha County, for the term ending January 31, 2011.
186. For Member, Committee for the Purchase of Commodities
and Services from the Handicapped, Everett Sullivan, Dunbar,
Kanawha County, for the term ending January 31, 2011.
187. For Member, West Virginia University Board of Governors,
Diane Lewis, Morgantown, Monongalia County, for the term ending
June 30, 2009.
188. For Member, Athletic Commission, Brian Simpson, Beckley,
Raleigh County, for the term ending June 30, 2009.
189. For Member, State Personnel Board, Elizabeth Walker, Charleston, Kanawha County, for the term ending June 30, 2013.
190. For Member, Parkways, Economic Development and Tourism
Authority, Douglas M. Epling, Beckley, Raleigh County, for the term
ending May 31, 2017.
191. For Member, Outdoor Heritage Conservation Fund Board of
Trustees, David Warner, Shanks, Hampshire County, for the term
ending June 30, 2012.
192. For Member, Outdoor Heritage Conservation Fund Board of
Trustees, Bob Baird, Gallipolis Ferry, Mason County, for the term
ending June 30, 2011.
193. For Member, Outdoor Heritage Conservation Fund Board of
Trustees, Rodney Bartgis, Elkins, Randolph County, for the term
ending June 30, 2012.
194. For Member, Outdoor Heritage Conservation Fund Board of
Trustees, Calvert Armbrecht, Charleston, Kanawha County, for the
term ending June 30, 2012.
195. For Member, Outdoor Heritage Conservation Fund Board of
Trustees, Terrell Ellis, Charleston, Kanawha County, for the term
ending June 30, 2011.
196. For Member, Outdoor Heritage Conservation Fund Board of
Trustees, George Constantz, High View, Hampshire County, for the
term ending June 30, 2011.
197. For Member, Outdoor Heritage Conservation Fund Board of Trustees, Jeffrey Lusk, Cyclone, Wyoming County, for the term
ending June 30, 2010.
198. For Member, Outdoor Heritage Conservation Fund Board of
Trustees, Thomas Pauley, Huntington, Cabell County, for the term
ending June 30, 2010.
199. For Member, Outdoor Heritage Conservation Fund Board of
Trustees, Jim Summers, Worthington, Marion County, for the term
ending June 30, 2010.
200. For Member, Board of Medicine, Dr. Khalid Hasan,
Beckley, Raleigh County, for the term ending September 30, 2014.
201. For Member, Board of Medicine, Dr. Vettivelu Maheswaran,
Charles Town, Jefferson County, for the term ending September 30,
2014.
202. For Member, Regional Jail and Correctional Facility
Authority, Jeff Sandy, Parkersburg, Wood County, for the term
ending June 30, 2013.
203. For Member, Higher Education Policy Commission, Dr. John
Leon, Fairmont, Marion County, for the term ending June 30, 2013.
204. For Member, Higher Education Policy Commission, Dr.
Bruce Berry, Morgantown, Monongalia County, for the term ending
June 30, 2013.
205. For Member, West Virginia Workforce Investment Council,
Diane W. Strong-Treister, Charleston, Kanawha County, for the term ending June 30, 2012.
206. For Member, Auctioneers Board of Review, James Frio,
Valley Grove, Ohio County, for the term ending January 1, 2011.
207. For Member, Board of Examiners in Counseling, Robert R.
Mays, Jr., Holden, Logan County, for the term ending June 30, 2014.
208. For Member, State Conservation Committee, Eli McCoy,
Charleston, Kanawha County, for the term ending June 30, 2011.
209. For Member, Workforce Investment Council, Ralph Baxter,
Wheeling, Ohio County, for the term ending June 30, 2012.
210. For Member, Workforce Investment Council, Reverend
Matthew Watts, Charleston, Kanawha County, for the term ending June
30, 2012.
211. For Member, Workforce Investment Council, Nelson
Robinson, Charleston, Kanawha County, for the term ending June 30,
2012.
212. For Member, Workforce Investment Council, Chris Kroger,
Morgantown, Monongalia County, for the term ending June 30, 2012.
213. For Member, Workforce Investment Council, Butch
Pennington, Martinsburg, Berkeley County, for the term ending June
30, 2012.
214. For Member, Workforce Investment Council, Jeff Moore,
Buffalo, Putnam County, for the term ending June 30, 2012.
215. For Member, Board of Hearing Aid Dealers, Marsha Mattingly, Huntington, Cabell County, for the term ending July 13,
2013.
216. For Member, Commission on the Arts, Elaine D'Alessandri,
Morgantown, Monongalia County, for the term ending June 30, 2010.
217. For Member, Commission on the Arts, Ralph Ballard,
Lewisburg, Greenbrier County, for the term ending June 30, 2011.
218. For Member, Commission on the Arts, Carol Templeton,
Milton, Cabell County, for the term ending June 30, 2010.
219. For Member, Workforce Investment Council, Homer Sweeney,
Cross Lanes, Kanawha County, for the term ending June 30, 2012.
220. For Member, Workforce Investment Council, Angela
Markham, South Charleston, Kanawha County, for the term ending June
30, 2012.
221. For Member, Workforce Investment Council, Mark Downs,
Fairmont, Marion County, for the term ending June 30, 2012.
222. For Member, Public Port Authority, Gerald Sites,
Petersburg, Grant County, for the term ending June 30, 2011.
223. For Member, Public Port Authority, The Honorable Charles
Lanham, Point Pleasant, Mason County, for the term ending June 30,
2011.
224. For Member, Public Port Authority, Robert E. Mayhew,
Romney, Hampshire County, for the term ending June 30, 2011.
225. For Member, Tourism Commission, The Honorable Oshel B. Craigo, Winfield, Putnam County, for the term ending May 1, 2011.
226. For Member, Tourism Commission, Clifford Sutherland,
Morgantown, Monongalia County, for the term ending May 1, 2012.
227. For Member, Tourism Commission, Patsy Hardy,
Parkersburg, Wood County, for the term ending May 1, 2011.
228. For Member, Ethics Commission, The Honorable Jon Blair
Hunter, Morgantown, Monongalia County, for the term ending June 30,
2012.
229. For Member, Capitol Building Commission, The Honorable
David McKinley, Wheeling, Ohio County, for the term ending June 30,
2010.
230. For Member, Records Management and Preservation Board,
Kenneth Lemaster, Martinsburg, Berkeley County, to serve at the
will and pleasure of the Governor.
231. For Executive Director, Jobs Investment Trust Board,
Andrew Zulauf, Charleston, Kanawha County, to serve at the will and
pleasure of the Governor.
232. For Member, Hospital Finance Board, Jack Gordon Roop,
Crab Orchard, Raleigh County, for the term ending January 9, 2012.
233. For Member, Board of the College Prepaid Tuition and
Savings Program, Andre Cummings, Morgantown, Monongalia County, for
the term ending June 30, 2013.
234. For Member, Board of the College Prepaid Tuition and Savings Program, Peggy Hawse, Moorefield, Hardy County, for the
term ending June 30, 2012.
235. For Member, Board of the College Prepaid Tuition and
Savings Program, Steve Davis, Cross Lanes, Kanawha County, for the
term ending June 30, 2010.
236. For Member, Broadband Deployment Council, Elaine Harris,
St. Albans, Kanawha County, for the term ending December 31, 2011.
237. For Member, Broadband Deployment Council, B. Keith
Fulton, Hurricane, Putnam County, for the term ending December 31,
2011.
238. For Member, Broadband Deployment Council, Jan I. Fox,
South Point, Ohio, for the term ending December 31, 2011.
239. For Member, Broadband Deployment Council, Lee Fisher,
Little Birch, Braxton County, for the term ending December 31,
2011.
240. For Member, Broadband Deployment Council, Mike Friloux,
Tulsa, Oklahoma, for the term ending December 31, 2011.
241. For Member, Broadband Deployment Council, Jamie
Sullivan, Powell, Ohio, for the term ending December 31, 2011.
242. For Member, West Virginia University Institute of
Technology Community and Technical College Board of Governors,
Sally Smith, Charleston, Kanawha County, for the term ending June
30, 2010.
243. For Member, West Virginia University Institute of
Technology Community and Technical College Board of Governors,
Barry Holstein, Sissonville, Kanawha County, for the term ending
June 30, 2012.
244. For Member, West Virginia University Institute of
Technology Community and Technical College Board of Governors,
Karen Price, Charleston, Kanawha County, for the term ending June
30, 2012.
245. For Member, West Virginia University Institute of
Technology Community and Technical College Board of Governors,
Thomas Dover, Charleston, Kanawha County, for the term ending June
30, 2012.
246. For Member, West Virginia University Institute of
Technology Community and Technical College Board of Governors,
David Lewia, Elkview, Kanawha County, for the term ending June 30,
2010.
247. For Member, West Virginia University Institute of
Technology Community and Technical College Board of Governors,
David Barnhart, Oak Hill, Fayette County, for the term ending June
30, 2010.
248. For Member, Women's Commission, Dr. Kathie Williams,
Huntington, Cabell County, for the term ending June 30, 2011.
249. For Member, Women's Commission, Diana Bell, Wheeling, Ohio County, for the term ending June 30, 2011.
250. For Member, Women's Commission, Robin Young, Charleston,
Kanawha County, for the term ending June 30, 2011.
251. For Member, Women's Commission, Kelly Davis, Ellamore,
Randolph County, for the term ending June 30, 2011.
252. For Member, Women's Commission, Judy Shepherd, Edmond,
Fayette County, for the term ending June 30, 2010.
253. For Member, Women's Commission, Stacy North, Morgantown,
Monongalia County, for the term ending June 30, 2009.
254. For Member, Board of Hearing Aid Dealers, William
Parrish, Parkersburg, Wood County, for the term ending July 13,
2013.
Senate Executive Message No. 4, dated March 12, 2009,
requesting confirmation by the Senate of the nomination mentioned
therein. The following name from Executive Message No. 4 is
submitted:
1. For Commissioner, Division of Banking, Sara Cline,
Charleston, Kanawha County, to serve at the will and pleasure of
the Governor.
And,
Senate Executive Message No. 8, dated April 8, 2009,
requesting confirmation by the Senate of the nomination mentioned
therein. The following name from Executive Message No. 8 is submitted:
1. For Member, Council for Community and Technical College
Education, Greg Wooten, Logan, Logan County, for the term ending
December 20, 2012.
And reports the same back with the recommendation that the
Senate do advise and consent to all of the nominations listed
above.
Respectfully submitted,
Ron Stollings,
Chair.
__________
The time having arrived for the special order of business to
consider the list of nominees for public office submitted by His
Excellency, the Governor, the special order thereon was called by
the President.
Thereupon, Senator Tomblin (Mr. President) laid before the
Senate the following executive messages:
Senate Executive Message No. 1, dated February 24, 2009 (
shown
in the Senate Journal of February 25, 2009, pages 2 to 27,
inclusive).
Senate Executive Message No. 4, dated March 12, 2009 (
shown in
the Senate Journal of March 13, 2009, pages 3 and 4).
And,
Senate Executive Message No. 8, dated April 8, 2009 (
shown in
the Senate Journal of that day, pages 33 and 34).
Senator Stollings then moved that the Senate advise and
consent to all of the executive nominations referred to in the
foregoing report from the Committee on Confirmations, except the
nominations of Letitia Neese Chafin to the Marshall University
Board of Governors (being nomination number 19 in Executive Message
No. 2), Rita F. Hedrick-Helmick to the Workers' Compensation Board
of Review (being nomination number 143 in Executive Message No. 2)
and Joanne Jaeger Tomblin to the Workforce Investment Council
(being nomination number 157 in Executive Message No. 2).
The question being on the adoption of the aforestated motion
by Senator Stollings,
The roll was then taken; and
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the motion by
Senator Stollings had prevailed and that all the executive
nominations referred to in the foregoing report from the Committee
on Confirmations, except the nominations of Letitia Neese Chafin to
the Marshall University Board of Governors (being nomination number
19 in Executive Message No. 2), Rita F. Hedrick-Helmick to the
Workers' Compensation Board of Review (being nomination number 143
in Executive Message No. 2) and Joanne Jaeger Tomblin to the
Workforce Investment Council (being nomination number 157 in
Executive Message No. 2) had been confirmed.
Senator Stollings then moved that the Senate advise and
consent to the nomination of Letitia Neese Chafin to the Marshall
University Board of Governors (being nomination number 19 in
Executive Message No. 2).
Prior to the call of the roll, Senator Chafin moved to be
excused from voting under rule number forty-three of the Rules of
the Senate, which motion prevailed.
The roll was then taken; and
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: None.
Excused from voting: Chafin--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the motion by
Senator Stollings had prevailed and the nomination of Letitia Neese
Chafin to the Marshall University Board of Governors had been
confirmed.
Senator Stollings then moved that the Senate advise and
consent to the nomination of Rita F. Hedrick-Helmick to the
Workers' Compensation Board of Review (being nomination number 143
in Executive Message No. 2).
Prior to the call of the roll, Senator Helmick moved to be
excused from voting under rule number forty-three of the Rules of
the Senate, which motion prevailed.
The roll was then taken; and
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: None.
Excused from voting: Helmick--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the motion by
Senator Stollings had prevailed and the nomination of Rita F.
Hedrick-Helmick to the Workers' Compensation Board of Review had
been confirmed.
(Senator Chafin in the Chair.)
Senator Stollings then moved that the Senate advise and
consent to the nomination of Joanne Jaeger Tomblin to the Workforce
Investment Council (being nomination number 157 in Executive
Message No. 2).
Prior to the call of the roll, Senator Tomblin (Mr. President)
moved to be excused from voting under rule number forty-three of
the Rules of the Senate, which motion prevailed.
The roll was then taken; and
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams and
Yost--33.
The nays were: None.
Absent: None.
Excused from voting: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the Chair declared the motion by Senator
Stollings had prevailed and the nomination of Joanne Jaeger Tomblin
to the Workforce Investment Council had been confirmed.
__________
Consideration of executive nominations having been concluded,
(Senator Tomblin, Mr. President, in the Chair.)
Without objection, the Senate returned to the third order of
business.
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. 227, Authorizing Department
of Revenue promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF TAX AND REVENUE TO
PROMULGATE LEGISLATIVE RULES.
§64-7-1. State Tax Department.
(a) The legislative rule filed in the State Register on August
29, 2008, authorized under the authority of section five, article
ten, chapter eleven of this code, relating to the State Tax
Department (Valuation of Intangible Personal Property Including
Stock Accounts Receivable and Stock in Banks and Capital of Savings
and Loan Associations, 110 CSR 1L), is authorized.
(b) The legislative rule filed in the State Register on August
29, 2008, authorized under the authority of section seven-d,
article ten, chapter eleven of this code, modified by the State Tax
Department to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on January 12,
2009, relating to the State Tax Department (Combined Returns
Pursuant to an Investigation by the Tax Commissioner, 110 CSR 10K),
is authorized.
(c) The legislative rule filed in the State Register on August
29, 2008, authorized under the authority of section nine, article
thirteen-x, chapter eleven of this code, modified by the State Tax
Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 12,
2009, relating to the State Tax Department (Film Industry
Investment Tax Credit, 110 CSR 13X), is authorized with the
following amendments:
On page five, paragraph 3.1.b.1. by striking out the words
"Tax Commissioner" and inserting in lieu thereof the words "Film
Office";
On page five, paragraph 3.1.b.2. by striking out the words
"this article" and inserting in lieu thereof "W.Va. Code, §11-13X-1
et seq.";
On page six, by striking out "4.1.d." and inserting in lieu
thereof "4.1.c.3.";
On page six, by striking out all of subdivision 4.1.e. and
inserting in lieu thereof a new subdivision, designated subdivision
4.1.d., to read as follows:
4.1.d. Upon approval of an eligibility application, the
eligible company shall begin production within one hundred twenty
(120) days of approval, or shall otherwise forfeit the right to
claim any tax credit for the approved qualified project. The
forfeiture does not preclude the eligible company from resubmitting
an eligibility application for the same project at a future date.
Upon written request by the eligible company, and prior to the
expiration of the one hundred twenty (120) day deadline, the reviewing committee may extend the deadline at its discretion.;
On page six, by striking out "4.2.c.1." and inserting in lieu
thereof "4.2.a.";
On page six, by striking out "4.2.c.2." and inserting in lieu
thereof "4.2.b.";
On page six, by striking out "4.2.c.3." and inserting in lieu
thereof "4.2.c.";
On page six, by striking out "4.2.c.4." and inserting in lieu
thereof "4.2.d.";
On page seven, by striking out "4.2.d" and inserting in lieu
thereof "4.2.e.";
On page nine, subsection 5.5, by striking out the words "be
considered" and inserting in lieu thereof the words "maintain its
initial position in the queue";
On page nine, by striking out all of subdivisions 5.5.a. and
5.5.b.;
On page nine, by inserting two new subsections, designated
subsections 5.6 and 5.7, to read as follows:
5.6. Requests for Increase in Tax Credit Allocation. - If an
eligible company seeks an increase in the amount of tax credits for
an approved qualified project, the eligible company shall submit an
application for modification to the Film Office, which shall be
submitted by and bear the same signature as the person who submitted the original eligibility application, or a duly
authorized representative. The reviewing committee shall place
requests for an increase in the order of receipt of all
applications, assign each request a new application number and
review each request separately from the original eligibility
application. The reviewing committee shall consider the
application at its next scheduled meeting, but within thirty (30)
days of receipt, and may request additional information from the
applicant to assist in its evaluation of the request. The
reviewing committee shall determine approval using the same
criteria of the review process and based on the availability of any
remaining credits for the fiscal year in which the request is
received. The Film Office shall notify the eligible company in
writing of the reviewing committee's decision.
5.7. Other Revisions to Application. - If an eligible company
seeks to revise its original eligibility application for a
qualified project for reasons other than those identified in
subsection 5.6 of this rule, the eligible company shall submit an
application for modification to the Film Office, which shall be
submitted by and bear the same signature as the person who
submitted the original eligibility application, or a duly
authorized representative. The reviewing committee shall consider
the application at its next scheduled meeting, but within thirty (30) days of receipt, and may request additional information from
the applicant to assist in its evaluation of the request. The
reviewing committee shall determine the approval using the same
criteria of the review process. The Film Office shall notify the
eligible company in writing of the reviewing committee's decision.;
And by renumbering the remaining subsections;
And,
On page ten, subsection 6.1., by striking out "4.1.e." and
inserting in lieu thereof "4.1.d.".
(d) The legislative rule filed in the State Register on August
29, 2008, authorized under the authority of section five, article
ten, chapter eleven of this code, modified by the State Tax
Department to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on January 12,
2009, relating to the State Tax Department (Electronic Filing and
Payment of Special District Excise Tax, 110 CSR 39), is authorized.
(e) The legislative rule filed in the State Register on August
29, 2008, authorized under the authority of section two-b, article
ten, chapter eight of this code, modified by the State Tax
Department to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on January 12,
2009, relating to the State Tax Department (Withholding or Denial
of Personal Income Tax Refunds from Taxpayers Who Owe Municipal Costs, Fines, Forfeitures or Penalties, 110 CSR 40), is authorized.
(f) The legislative rule filed in the State Register on August
29, 2008, authorized under the authority of section five-s, article
ten, chapter eleven of this code, modified by the State Tax
Department to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on January 12,
2009, relating to the State Tax Department (Exchange of Information
Agreement between the State Tax Division and the Department of
Health and Human Resources Office of the Inspector General Medicaid
Fraud Control Unit, 110 CSR 50E), is disapproved.
§64-7-2. Insurance Commissioner.
(a) The legislative rule filed in the State Register on August
29, 2008, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on February 20,
2009, relating to the Insurance Commissioner (Long-term Care
Insurance, 114 CSR 32), is authorized.
(b) The legislative rule filed in the State Register on August
29, 2008, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on February 20, 2009, relating to the Insurance Commissioner (Actuarial Opinion and
Memorandum, 114 CSR 41), is authorized.
(c) The legislative rule filed in the State Register on August
29, 2008, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on October 22,
2008, relating to the Insurance Commissioner (Continuing Education
for Individual Insurance Producers, 114 CSR 42), is authorized,
with the following amendment:
On page 11, subdivision 8.5.a., by striking out the words
"within fifteen (15) days of the date of hearing" and inserting in
lieu thereof the words "not less than fifteen (15) days prior to
the date of hearing".
(d) The legislative rule filed in the State Register on August
14, 2008, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on February 20,
2009, relating to the Insurance Commissioner (Viatical Settlements,
114 CSR 80), is authorized.
(e) The legislative rule filed in the State Register on August
14, 2008, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on February 20,
2009, relating to the Insurance Commissioner (Discount Medical Plan
Organizations and Discount Prescription Drug Plan Organizations,
114 CSR 83), is authorized.
(f) The legislative rule filed in the State Register on August
29, 2008, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on February 20,
2009, relating to the Insurance Commissioner (Professional Employer
Organizations, 114 CSR 85), is authorized with the following
amendments:
On page 1, subsection 2.1., after the words "voting stock" by
striking the word "or" and inserting in lieu thereof the word "of";
On page 1, subdivision 2.3.a, after the word "hiring" by
inserting the words "his, her or";
On page 2, subsection 3.1., after the words "itself out as
providing" by omitting the comma, and after the words "professional
employer" by inserting the word "organization";
On page 2, subdivision 3.2.b, after the words "fee of" by
striking the word "$300" and inserting in lieu thereof the words "$200, and an annual report fee of $100";
On page 2, subdivision 3.2.h., by striking out said
subdivision 3.2.h. in its entirety and inserting in lieu thereof a
new subdivision 3.2.h. to read as follows:
h. A statement of management which includes the name and
evidence of business experience of any person who serves as a
president, chief executive officer or otherwise has the authority
to act as a senior executive officer of the PEO.;
On page 3, subdivision 3.2.l., in the last sentence of the
subdivision, after the words "certificate of authority" by
inserting the words "to do business in the state, issued by the
Secretary of State,";
And,
On page 3, subsection 3.4 after the words "file for renewal
of" by striking the word "their" and inserting in lieu thereof the
word "its", and after the words "accompanied by a fee of" by
striking the word "$300" and inserting in lieu thereof the words
"$200 for the application fee and $100 for the annual report."
(g) The legislative rule filed in the State Register on August
29, 2008, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on October 22, 2008, relating to the Insurance Commissioner (Preneed Life
Insurance Minimum Standards for Determining Reserve Liabilities and
Nonforfeiture Values, 114 CSR 86), is authorized.
64-7-4. Racing Commission.
The legislative rule filed in the State Register on July 29,
2006, authorized under the authority of section six, article
twenty-three, chapter nineteen of this code, approved for
promulgation by the Legislature on March 11, 2006, and refiled in
the State Register on May 5, 2006, relating to the Racing
Commission (Greyhound Racing, 178 CSR 2) is authorized with the
following amendment:
"§178-2-53. Training Tracks.
2-53.1. General physical requirements.
53.1.a. Any public training track must be approved and
licensed by the commission. Only a public training track meeting
the following criteria shall be eligible to receive funds as
provided in WVC §19-23-10.
53.1.b. The state may own or operate or both own and operate
any training track built in this state, or a training track may be
on land leased at fair market value for a period of twenty years.
The state may contract operations to a private entity. Any lease
or contract for services will follow the requirements of article
three, chapter five-a of this code and the requirements of the Department of Administration regarding purchasing.
53.1.b.1. The track compound shall have (1) a minimum area of
twenty acres for development of the initial facility and an
additional ten acres available for future expansion, (2) a ten-
thousand-gallons-per-minute sewer plant, (3) adequate ingress and
egress for safety and accessability and (4) adequate public
parking.
53.1.b.2. The track shall be at least 1,320 feet in
circumference or 1/4 mile in length, and the track shall have
adequate in-ground heating elements to ensure year-round training.
53.1.b.3. The track shall have an approved racing surface,
rails, lure, timing equipment, and starting box. The track surface
shall consist of at least six inches of silt surface, followed by
at least six inches of fill sand, followed by two inches of rigid
insulation with an under-slab membrane.
53.2. Security requirements.
53.2.a. Security shall be adequate to ensure the safety of
persons and dogs. The training track must have the following
minimum security measures at a kennel compound.
53.2.b. The kennel compound must be surrounded by a perimeter
fence which will reduce the likelihood of unauthorized entry. The
perimeter fence must be approved by the commission's chief
investigator.
53.2.b.1. The training track must have an appropriate check in
and out system which will ensure that only those individuals who
are licensees or authorized visitors and whose duties clearly
require entry to the area will be allowed access.
53.2.b.2. No law-enforcement officer, employee of the
commission, or employee of a licensee, when in the performance of
official duties, may be denied entry to the kennel compound. All
visitors to the kennel compound will be accompanied by a commission
representative, the licensee sponsoring the visitor or the
licensee's security personnel.
53.2.b.3. Access records will be available to the commission,
its investigative personnel and the board of judges on request.
53.2.b.4. In a case of an emergency a veterinarian licensed by
the West Virginia State Board of Veterinarian Examiners may be
allowed in the kennel compound if accompanied by appropriate
personnel.
53.2.b.5. At least one fire extinguisher shall be installed on
the exterior wall of each kennel enclosure. The type and size of
fire extinguisher must meet the State Fire Marshal's standards.
53.2.b.6. A veterinarian licensed by West Virginia may
possess, transport or use any drug or medication which by federal
or state law requires a prescription within the confines of the
kennel compound.
53.2.b.6.A. A person having a legally valid prescription which
includes a complete statement of the uses and purposes of the
medication upon the medicine container may possess, transport or
use a drug or medication which by federal or state law requires a
prescription within the confines of the kennel compound if a copy
of the prescription has been filed with the commission veterinarian
and he or she has approved the use of the medication prior to its
use on a greyhound.
53.2.b.6.B. Over the counter drugs are allowed in the kennel
compound however, the medication must be in the original container
bearing the manufacturer's label with the serial or lot number.
53.2.b.6.C. While in the compound all medications must be
stored in locked cabinets in the kennel.
53.2.b.6.D. The trainer must provide a list of all drugs or
medications in the trainer's kennel to the commission veterinarian
on a form provided by the commission veterinarian. The trainer is
responsible for updating the list on a daily basis so that at all
times it reflects the current drugs or medications in the trainer's
kennel. A copy of the current list with the commission
veterinarian's initials or signature on it must be posted in the
trainer's kennel next to the medication cabinet.
53.3. Operation and Maintenance of Kennel Compound
53.3.a. No living quarters are provided and overnight stays will not be permitted except for emergencies. For emergency needs
that require 24 hour assistance to a sick or injured greyhound the
stay must first be approved by the training track's chief of
security.
53.3.b. The following restrictions apply to entry to the
compound during the race meet, beginning with the start of official
schooling. The kennel compound is a restricted area which requires
special security controls and identity verification by security for
all persons entering and leaving the compound:
53.3.b.1. The person is a race-meet licensee official, a
designated facility employee, or a West Virginia Racing Commission
official or employee, each of whom shall present proper
identification to the kennel compound security officer;
53.3.b.2. Designated service-company personnel such as a
licensed food vendor, electrical maintenance and repair, equipment
and building servicing, telephone and utilities service, or garbage
collection. These individuals do not require a kennel compound
pass, but they must properly identify themselves and their purpose
for entering and leaving the facility with the security officer
prior to entering and leaving the facility.
53.3.b.3. Visitors to the compound are discouraged; however,
the facility licensee may develop a visitor pass system subject to
the approval of the commission.
53.3.b.4. Alcoholic beverages are not allowed in the kennel
compound.
53.4.1. The facility licensee shall be responsible for
providing garbage and waste disposal;
53.4.2. Each kennel is responsible for the daily pick up of
all turn-out pen waste;
53.4.3. Each kennel is responsible for the regular watering of
turn-out pens to minimize odor;
53.4.4. A 5 mile per hour speed limit shall be posted in the
kennel compound."
§64-7-5. Lottery Commission.
The legislative rule filed in the State Register on April, 20,
2004, under the authority of section four hundred two, article
twenty-two-b, chapter twenty-nine of this code, approved for
promulgation by the Legislature on March 12, 2004, relating to the
lottery commission (Limited Video Lottery, 179 CSR 5), is
authorized with the following amendments:
"
§179-5-35. Prohibition Against Extending Credit.
35.1. A video lottery retailer shall not extend credit, in
any manner, to a player to enable the player to play a video
lottery game.
35.2. For purposes of this rule, the cashing of any check by
a video lottery retailer to enable a player to play a video lottery game shall constitute an extension of credit.";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 227--A Bill to amend and
reenact article 7, chapter 64 of the Code of West Virginia, 1931,
as amended, relating generally to the promulgation of
administrative rules by the Department of Revenue; legislative
mandate or authorization for the promulgation of certain
legislative rules; authorizing certain of the agencies to
promulgate certain legislative rules in the form that the rules
were filed in the State Register; authorizing certain of the
agencies to promulgate certain legislative rules with various
modifications presented to and recommended by the Legislative Rule-
Making Review Committee; authorizing certain of the agencies to
promulgate certain legislative rules as amended by the Legislature;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the Legislative Rule-Making Review Committee and as
amended by the Legislature; repealing certain legislative rules;
authorizing the State Tax Department to repeal a legislative rule
relating to valuation of intangible personal property, including
stock accounts receivable and stock in banks and capital of savings and loan associations; authorizing the State Tax Department to
promulgate a legislative rule relating to combined returns pursuant
to an investigation by the Tax Commissioner; authorizing the State
Tax Department to promulgate a legislative rule relating to the
film industry investment tax credit; authorizing the State Tax
Department to promulgate a legislative rule relating to electronic
filing and payment of special district excise tax; authorizing the
State Tax Department to promulgate a legislative rule relating to
the withholding or denial of personal income tax refunds from
taxpayers who owe municipal costs, fines, forfeitures or penalties;
disapproving the State Tax Department's proposed legislative rule
relating to an exchange of information agreement between the State
Tax Division and the Department of Health and Human Resources
Office of the Inspector General Medicaid Fraud Control Unit;
authorizing the Insurance Commissioner to promulgate a legislative
rule relating to coordination of health benefits; authorizing the
Insurance Commissioner to promulgate a legislative rule relating to
long-term care insurance; authorizing the Insurance Commissioner to
promulgate a legislative rule relating to actuarial opinion and
memorandum; authorizing the Insurance Commissioner to promulgate a
legislative rule relating to continuing education for individual
insurance producers; authorizing the Insurance Commissioner to
promulgate a legislative rule relating to viatical settlements; authorizing the Insurance Commissioner to promulgate a legislative
rule relating to discount medical plan organizations and discount
prescription drug plan organizations; authorizing the Insurance
Commissioner to promulgate a legislative rule relating to
professional employer organizations; authorizing the Insurance
Commissioner to promulgate a legislative rule relating to preneed
life insurance minimum standards for determining reserve
liabilities and nonforfeiture values; authorizing the Racing
Commission to promulgate a legislative rule relating to greyhound
racing; and authorizing the Lottery Commission to promulgate a
legislative rule relating to limited video lottery.
On motion of Senator Kessler, the following amendment to the
House of Delegates amendments to the bill was reported by the Clerk
and adopted:
On page fifteen, section five, by striking out all of
subsection 35.2 and inserting in lieu thereof a new subsection
35.2, to read as follows:
35.2. For purposes of this rule, a video lottery retailer
shall be deemed to be extending credit when he or she knows or has
reason to know that the proceeds of the check will be used solely
to play or continue to play a video lottery game.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 227, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 227) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 227) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2009, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 249, Relating
to annual school calendar.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §18-5-45 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §18-5A-5 of said code be amended
and reenacted, all to read as follows:
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-45. School calendar.
(a) As used in this section, the following terms have the
following meanings:
(1) "Instructional day" means a day within the instructional
term which meets the following criteria:
(A) Instruction is offered to students for at least the
minimum amounts of time provided by state board rule;
(B) Instructional time is used for instruction, cocurricular
activities and approved extracurricular activities and, pursuant to
the provisions of subdivision (12), subsection (b), section five,
article five-a of this chapter, faculty senates; and
(C) Such other criteria as the state board determines
appropriate.
(2) "Accrued instructional time" means instructional time
accruing during the instructional term from time added to the
instructional day beyond the time required by state board rule for
an instructional day.
Accrued instructional time may be
accumulated and used in larger blocks of time during the school
year for instructional or noninstructional activities as further
defined by the state board.
(3) "Extracurricular activities" are activities under the
supervision of the school such as athletics, noninstructional
assemblies, social programs, entertainment and other similar
activities as further defined by the state board.
(4) "Cocurricular activities" are activities that are closely
related to identifiable academic programs or areas of study that
serve to complement academic curricula as further defined by the
state board.
(b)
Findings. --
(1) The primary purpose of the school system is to provide
instruction for students.
(2) The school calendar, as defined in this section, is
designed to define the school term both for employees and for
instruction.
(3) The school calendar traditionally has provided for one
hundred eighty actual days of instruction but numerous
circumstances have combined to cause the actual number of
instructional days to be less than one hundred eighty.
(4) The quality and amount of instruction offered during the
instructional term is affected by the extracurricular and
cocurricular activities allowed to occur during scheduled
instructional time.
(5) Within reasonable guidelines, the school calendar should
be designed at least to guarantee that one hundred eighty actual
days of instruction are possible.
(6) School systems typically provide for instructional days
that exceed the number of minutes per day of instructional time required by the state board. As a result, the total instructional
time provided by these systems during their instructional terms
exceeds the total instructional time required by one hundred eighty
actual standard length days of instruction.
(c) The county board shall provide a school term for its
schools that contains the following:
(1)
An A minimum employment term for teachers of no less than
two hundred days, exclusive of Saturdays and Sundays.
The
beginning and ending dates of the minimum two hundred-day
employment term may not exceed forty-three weeks; and
(2) Within the employment term, an instructional term for
students of no less than one hundred eighty separate instructional
days.
(d) The instructional term for students shall include one
instructional day in each of the months of October, December,
February, April and June which is an instructional support and
enhancement day scheduled by the board to include both
instructional activities for students and professional activities
for teachers to improve student instruction. Instructional support
and enhancement days are subject to the following provisions:
(1) Two hours of the instructional support and enhancement day
shall be used for instructional activities for students. The
instructional activities for students are subject to the following provisions:
(A) The instructional activities for students require the
direct supervision or involvement by teachers;
(B) The instructional activities for students shall be limited
to two hours;
(C) The instructional activities for students shall be
determined and scheduled at the local school level;
(D) The instructional activities for students may include, but
are not limited to, both in-school and outside of school activities
such as student mentoring, tutoring, counseling, student research
and other projects or activities of an instructional nature,
community service, career exploration,
parent student/parent and
teacher conferences, visits to the homes of students, college and
financial aid workshops and college visits;
(E) To ensure that the students who attend are properly
supervised, the instructional activities for students shall be
arranged by appointment with the individual school through the
principal, a teacher or other professional personnel at the school;
and
(F) Each school shall establish a policy relating to the use
of the two-hour block scheduled for instructional activities for
students;
(2) The instructional support and enhancement day shall include a two-hour block of time for professional activities for
teachers during which the faculty senate shall have the opportunity
to meet;
(3) All time remaining in the school day after meeting the
requirements of subdivisions (1) and (2) of this subsection, not
including the duty-free lunch period, shall be used for other
professional activities for teachers to improve student instruction
which may include, but are not limited to, professional staff
development, curriculum team meetings, individualized education
plan meetings
, student assistance team meetings, local school
improvement council meetings and other meetings between teachers,
principals, aides
, and paraprofessionals
, parents and students to
improve student instruction as determined and scheduled at the
local school level;
(4) Notwithstanding any other provision of law or policy to
the contrary, the presence of any specific number of students in
attendance at the school for any specific period of time shall not
be required on instructional support and enhancement days and the
transportation of students to the school shall not be required;
(5) Instructional support and enhancement days are also a
scheduled work day for all service personnel and shall be used for
training or other tasks related to their job classification if
their normal duties are not required; and
(6) Nothing in this section may be construed to require that
the instructional activities for students, faculty senate meetings
and other professional activities for teachers be scheduled in any
certain order.
(e) The instructional term shall commence no earlier than
August 26 and terminate no later than June 8.
(f) Noninstructional days shall total twenty and shall be
comprised of the following:
(1) Seven holidays as specified in section two, article five,
chapter eighteen-a of this code;
(2) Election day as specified in section two, article five,
chapter eighteen-a of this code;
(3) Six days to be designated by the county board to be used
by the employees outside the school environment; and
(4) Six days to be designated by the county board for any of
the following purposes:
(A) Curriculum development;
(B) Preparation for opening and closing school;
(C) Professional development;
(D) Teacher-pupil-parent conferences;
(E) Professional meetings; and
(F) Making up days when instruction was scheduled but not
conducted.
(g)
At least three of the days described in subdivision (4),
subsection (f) of this section shall be scheduled prior to the
twenty-sixth day of August first day of the instructional term for
the purposes of preparing for the opening of school and staff
development.
At least one of these days shall be reserved solely
for the use of the teacher for classroom preparation.
(h) At least one of the days described in subdivision (4),
subsection (f) of this section shall be scheduled after June 8 for
the purpose of preparing for the closing of school. If one hundred
eighty separate instruction days occur prior to June 8, this day
may be scheduled on or before June 8.
(i) At least four of the days described in subdivision (3),
subsection (f) of this section shall be scheduled after March 1.
(j) At least two of the days described in subdivision (4),
subsection (f) of this section will be scheduled for professional
development. The professional development conducted on these days
will be consistent with the goals established by the state board
pursuant to the provisions of section twenty-three-a, article two
of this chapter.
(k) Subject to the provisions of subsection (h) of this
section, all noninstructional days will be scheduled prior to June
8.
(l) The state board may not schedule the primary statewide assessment program prior to the fifteenth day of May of the
instructional year unless the state board determines that the
nature of the test mandates an earlier testing date.
(m) If, on or after the first day of March, the county board
determines that it is not possible to complete one hundred eighty
separate days of instruction, the county board shall schedule
instruction on any available noninstructional day, regardless of
the purpose for which the day originally was scheduled, and the day
will be used for instruction, subject to the following:
(1) The noninstructional days scheduled for professional
development shall be the last available noninstructional days to be
rescheduled as instructional days;
(2) On or after the first day of March, the county board also
may require additional minutes of instruction in the school day to
make up for lost instructional days in excess of the days available
through rescheduling and, if in its judgment it is reasonable and
necessary to improve student performance, to avoid scheduling
instruction on noninstructional days previously scheduled for
professional development; and
(3) The provisions of this subsection do not apply to: (1)
Holidays; and (2) election day.
(n) (m) The following applies to accrued instructional time:
(1) Accrued instructional time may be accumulated and used in larger blocks of time, including full days, during the school year
for instructional or noninstructional activities as further defined
by the state board;
_____(1) (2) Except as provided in subsection (m) of this section,
Accrued instructional time may not be used to avoid
scheduling in
the initial approved school calendar one hundred eighty separate
days of instruction;
(2) (3) Accrued instructional time may not be used to lengthen
the time provided in law for faculty senates;
(3) (4) The use of accrued instructional time for
extracurricular activities will be limited by the state board;
(4) (5) Accrued instructional time may be used by schools and
counties to provide additional time for professional staff
development and continuing education as may be needed to improve
student performance and meet the requirements of the federal
mandates affecting elementary and secondary education. The amount
of accrued instructional time used for this purpose may not exceed
three
full instructional days;
(6) The minutes of accrued instructional time added per day
shall be totaled for each day on which they are accrued. The
total, less accrued instructional time used for noninstructional
purposes, shall be included along with the separate instructional
days for reporting the instructional days attained by the county. Accrued instructional time shall be considered as an instructional
day equivalent on the reporting as follows: For elementary schools,
three hundred fifteen minutes equals one day; for middle schools,
three hundred thirty minutes equals one day; and for high schools,
three hundred forty-five minutes equals one day;
_____(7) When accrued instructional time is used at a school with
grade levels for which a different number of instructional minutes
per day are required by the state board, the minutes of accrued
instructional time deducted shall be the minutes required for the
lowest grade level;
_____(8) When accrued instructional time is used at the countywide
level, such as accounting for the recovery of instructional time
lost due to cancellations, the amount of accrued instructional time
at the school in the county with the least amount of accrued
instructional time shall be used; and
(5) (9) Other requirements or restrictions the The state board
may provide in the rule required to be promulgated by this section
,
other requirements and restrictions on accrued instructional time
not inconsistent with this section.
(n) If, on or after February 1, the county board determines
that it is not possible within the school calendar as scheduled to
complete one hundred eighty separate days of instruction, the
county board shall schedule instruction on any available noninstructional day, beginning with the next available day,
including any day of accrued instructional time and any remaining
instructional support and enhancement day, and the day will be used
for instruction, subject to the following:
_____(1) A two-hour block of time shall be provided for the faculty
senate to meet on an instructional support and enhancement day
rescheduled for instruction; and
_____(2) The provisions of this subsection do not apply to: (A)
Holidays; and (B) election day.
_____The county board also may, on or after February 1, increase
the additional minutes of instruction required in the school day to
make up for lost instructional days in excess of the days available
through rescheduling and, if in its judgment it is reasonable and
necessary to improve student performance, to avoid scheduling
instruction on noninstructional days previously scheduled for
professional development.
(o) The following applies to cocurricular activities:
(1) The state board shall determine what activities may be
considered cocurricular;
(2) The state board shall determine the amount of
instructional time that may be consumed by cocurricular activities;
and
(3) Other requirements or restrictions the state board may provide in the rule required to be promulgated by this section.
(p) The following applies to extracurricular activities:
(1) Except as provided by subdivision (3) of this subsection,
extracurricular activities may not be scheduled during
instructional time;
(2) The use of accrued instructional time for extracurricular
activities will be limited by the state board; and
(3) The state board shall provide for the attendance by
students of certain activities sanctioned by the Secondary School
Activities Commission when those activities are related to
statewide tournaments or playoffs or are programs required for
Secondary School Activities Commission approval.
(q) Noninstructional interruptions to the instructional day
shall be minimized to allow the classroom teacher to teach.
(r) Nothing in this section prohibits establishing year-round
schools in accordance with rules to be established by the state
board.
(s) Prior to implementing the school calendar, the county
board shall secure approval of its proposed calendar from the state
board or, if so designated by the state board, from the state
superintendent.
(t) The county board may contract with all or part of the
personnel for a longer term.
(u) The minimum instructional term may be decreased by order
of the state superintendent in any county declared a federal
or
state disaster area and where the event causing the declaration is
substantially related to a reduction of instructional days.
(v) Where the employment term overlaps a teacher's or service
personnel's participation in a summer institute or institution of
higher education for the purpose of advancement or professional
growth, the teacher or service personnel may substitute, with the
approval of the county superintendent, the participation for up to
five of the noninstructional days of the employment term.
(w) The state board shall promulgate a rule in accordance with
the provisions of article three-b, chapter twenty-nine-a of this
code for the purpose of implementing the provisions of this
section.
(x) The provisions of this section in effect prior to July 1,
2009, are effective for the school year beginning on July 1, 2009.
The provisions of this section that become effective July 1, 2009,
are effective for the school year beginning on July 1, 2010, and
each school year thereafter.
ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
§18-5A-5. Public school faculty senates established; election of
officers; powers and duties.
(a) There is established at every public school in this state a faculty senate which is comprised of all permanent, full-time
professional educators employed at the school who shall all be
voting members. Professional educators, as used in this section,
means professional educators as defined in chapter eighteen-a of
this code. A quorum of more than one half of the voting members of
the faculty shall be present at any meeting of the faculty senate
at which official business is conducted. Prior to the beginning of
the instructional term each year, but within the employment term,
the principal shall convene a meeting of the faculty senate to
elect a chair, vice chair and secretary and discuss matters
relevant to the beginning of the school year. The vice chair shall
preside at meetings when the chair is absent. Meetings of the
faculty senate shall be held during the times provided in
accordance with subdivision (12), subsection (b) of this section as
determined by the faculty senate. Emergency meetings may be held
during noninstructional time at the call of the chair or a majority
of the voting members by petition submitted to the chair and vice
chair. An agenda of matters to be considered at a scheduled
meeting of the faculty senate shall be available to the members at
least two employment days prior to the meeting. For emergency
meetings the agenda shall be available as soon as possible prior to
the meeting. The chair of the faculty senate may appoint
such any
committees
as may be desirable necessary to study and submit recommendations to the full faculty senate, but the acts of the
faculty senate shall be voted upon by the full body.
(b) In addition to any other powers and duties conferred by
law, or authorized by policies adopted by the state or county board
of education or bylaws which may be adopted by the faculty senate
not inconsistent with law, the powers and duties listed in this
subsection are specifically reserved for the faculty senate. The
intent of these provisions is neither to restrict nor to require
the activities of every faculty senate to the enumerated items
except as otherwise stated. Each faculty senate shall organize its
activities as it
deems determines most effective and efficient
based on school size, departmental structure and other relevant
factors.
(1) Each faculty senate shall control funds allocated to the
school from legislative appropriations pursuant to section nine,
article nine-a of this chapter. From
such those funds, each
classroom teacher and librarian shall be allotted
fifty dollars at
least $100 for expenditure during the instructional year for
academic materials, supplies or equipment which, in the judgment of
the teacher or librarian, will assist him or her in providing
instruction in his or her assigned academic subjects or shall be
returned to the faculty senate:
Provided, That nothing contained
herein in this subdivision prohibits the funds from being used for programs and materials that, in the opinion of the teacher, enhance
student behavior, increase academic achievement, improve
self-esteem and address the problems of students at-risk. The
remainder of funds shall be expended for academic materials,
supplies or equipment in accordance with a budget approved by the
faculty senate. Notwithstanding any other provisions of the law to
the contrary, funds not expended in one school year are available
for expenditure in the next school year:
Provided, however, That
the amount of county funds budgeted in a fiscal year may not be
reduced throughout the year as a result of the faculty
appropriations in the same fiscal year for
such the materials,
supplies and equipment. Accounts shall be maintained of the
allocations and expenditures of
such the funds for the purpose of
financial audit. Academic materials, supplies or equipment shall
be interpreted broadly, but does not include materials, supplies or
equipment which will be used in or connected with interscholastic
athletic events.
(2) A faculty senate may establish a process for faculty
members to interview new prospective professional educators and
paraprofessional employees at the school and submit recommendations
regarding employment to the principal, who
also may
also make
independent recommendations, for submission to the county
superintendent:
Provided, That
such the process shall be chaired by the school principal and must permit the timely employment of
persons to perform necessary duties.
(3) A faculty senate may nominate teachers for recognition as
outstanding teachers under state and local teacher recognition
programs and other personnel at the school, including parents, for
recognition under other appropriate recognition programs and may
establish
such appropriate recognition programs for operation at
the school.
(4) A faculty senate may submit recommendations to the
principal regarding the assignment scheduling of secretaries,
clerks, aides and paraprofessionals at the school.
(5) A faculty senate may submit recommendations to the
principal regarding establishment of the master curriculum schedule
for the next
ensuing school year.
(6) A faculty senate may establish a process for the review
and comment on sabbatical leave requests submitted by employees at
the school pursuant to section eleven, article two of this chapter.
(7) Each faculty senate shall elect three faculty
representatives to the local school improvement council established
pursuant to section two of this article.
(8) Each faculty senate may nominate a member for election to
the county staff development council pursuant to section eight,
article three, chapter eighteen-a of this code.
(9) Each faculty senate shall have an opportunity to make
recommendations on the selection of faculty to serve as mentors for
beginning teachers under beginning teacher internship programs at
the school.
(10) A faculty senate may solicit, accept and expend any
grants, gifts, bequests, donations and any other funds made
available to the faculty senate:
Provided, That the faculty senate
shall select a member who has the duty of maintaining a record of
all funds received and expended by the faculty senate.
which The
record shall be kept in the school office and is subject to normal
auditing procedures.
(11) Any faculty senate may review the evaluation procedure as
conducted in
their its school to ascertain whether the evaluations
were conducted in accordance with the written system required
pursuant to section twelve, article, two, chapter eighteen-a of
this code and the general intent of this Legislature regarding
meaningful performance evaluations of school personnel. If a
majority of members of the faculty senate determine that
such the
evaluations were not so conducted, they shall submit a report in
writing to the state board:
of Education Provided, That nothing
herein in this subdivision creates any new right of access to or
review of any individual's evaluations.
(12) A
local board shall provide to each faculty senate a two-hour block of time for a faculty senate meeting on a day
scheduled for the opening of school prior to the beginning of the
instructional term, and a two-hour block of time on each
instructional support and enhancement day scheduled by the board
for instructional activities for students and professional
activities for teachers pursuant to section forty-five, article
five of this chapter. A faculty senate may meet for an unlimited
block of time per month during noninstructional days to discuss and
plan strategies to improve student instruction and to conduct other
faculty senate business. A faculty senate meeting scheduled on a
noninstructional day shall be considered as part of the purpose for
which the noninstructional day is scheduled. This time may be
utilized used and determined at the local school level and
includes, but is not limited to, faculty senate meetings.
(13) Each faculty senate shall develop a strategic plan to
manage the integration of special needs students into the regular
classroom at their respective schools and submit the strategic plan
to the superintendent of the county board
of education periodically
pursuant to guidelines developed by the State Department of
Education. Each faculty senate shall encourage the participation
of local school improvement councils, parents and the community at
large in developing the strategic plan for each school.
Each strategic plan developed by the faculty senate shall include at least: (A) A mission statement; (B) goals; (C) needs;
(D) objectives and activities to implement plans relating to each
goal; (E) work in progress to implement the strategic plan; (F)
guidelines for placing additional staff into integrated classrooms
to meet the needs of exceptional needs students without diminishing
the services rendered to the other students in integrated
classrooms; (G) guidelines for implementation of collaborative
planning and instruction; and (H) training for all regular
classroom teachers who serve students with exceptional needs in
integrated classrooms.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
End. Com. Sub. for Com. Sub. for Senate Bill No. 249--A Bill
to amend and reenact §18-5-45 of the Code of West Virginia, 1931,
as amended, relating to the annual school calendar; making
additional findings; providing forty-three week "window" for
employment term; adding additional specificity to types of meetings
and participants on instructional support and enhancement days;
providing noninstructional days for opening school are prior to the
first day of instructional term rather than certain date, allowing
additional days to be scheduled and reserving at least one day for
classroom preparation by teacher; consolidating provisions applicable to accrued instructional time and allowing use for full
days but not to avoid scheduling one hundred eighty days; providing
for reporting days of accrued instructional time along with
separate days; specifying accounting of accrued instructional time
at schools with certain different grade levels and for countywide
use; providing for rescheduling of noninstructional time on or
after February 1, if one hundred eighty separate days as scheduled
are not possible; exceptions; providing for additional lengthening
of school day on or after February 1, to make up for lost
instructional time and avoid rescheduling professional development
under certain condition; providing for effect of 2009 amendment
beginning 2010-2011 school year; increasing the minimum allotment
to classroom teachers and librarians of faculty senate funds; and
making various technical and preferred language changes.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for Com.
Sub. for S. B. No. 249) and requested the House of Delegates to
recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended 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. 278, Creating felony
offense of willful failure to provide certain drug benefits.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 15E. DISCOUNT MEDICAL PLAN ORGANIZATIONS AND DISCOUNT
PRESCRIPTION DRUG PLAN ORGANIZATIONS ACT.
§33-15E-15. Criminal penalties.
(a)
Any A person that willfully operates as or aids and abets
another operating as a discount medical plan organization in
violation of subsection (a), section four of this article is guilty
of a felony and, upon conviction thereof, shall be fined not more
than $20,000 for each unauthorized act or imprisoned in the state
correctional facility not less than one nor more than five years,
or both fined and imprisoned.
(b)
(1) A No person
that collects fees shall collect a fee for
purported membership in a discount medical plan or discount
prescription drug plan and knowingly and willfully
fails fail to
provide
the promised benefits
with a value of one thousand dollars or more of the plan.
_____(1) Any person who violates this subsection and in doing so
collects fees totaling $1,000 or more is guilty of a felony and,
upon conviction thereof, shall be fined not more than $2,500 or
imprisoned in a state correctional facility not less than one nor
more than ten years,
or, in the discretion of the court, be
confined in jail for not more than one year, or both fined and
imprisoned
or confined.
(2)
A person that collects fees for purported membership in a
discount medical plan or discount prescription drug plan and
knowingly and willfully fails to provide benefits with a value of
less than one thousand dollars, Any person who violates this
subsection and in doing so collects fees totaling less than $1,000
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined
an amount not
to exceed two thousand five hundred dollars
more than $2,500 or confined in jail
for a term not
to exceed more
than one year, or both fined and confined.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 278--A Bill to amend and
reenact §33-15E-15 of the Code of West Virginia, 1931, as amended,
relating to the criminal offenses for failing to provide benefits of a discount medical plan or discount prescription drug plan;
clarifying that the severity of the offense is dependant on the
total of fees collected; and providing for an alternate sentence
upon conviction of the felony offense.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 278, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 278) 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 Com. Sub. for Senate Bill No. 282, Relating
to retail liquor licenses' classification.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page forty, section eighteen, line one, after the word
"Sundays" by inserting the words "before one o'clock p.m. or on";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 282--A Bill
to amend and reenact §60-3A-2, §60-3A-2a, §60-3A-4, §60-3A-6, §60-
3A-7, §60-3A-8, §60-3A-10, §60-3A-10b, §60-3A-11, §60-3A-12 and
§60-3A-18 of the Code of West Virginia, 1931, as amended; and to
amend said code by adding thereto a new section, designated §60-3A-
10d, all relating to the sale of liquor; classifying retail
licenses for the sale of liquor; setting forth legislative
findings; defining certain terms; authorizing the Alcohol Beverage
Control Commissioner to issue retail licenses for the sale of liquor; establishing certain standards for the issuance of licenses
within market zones; limiting the issuance of retail licenses to
operate mixed retail liquor outlets; authorizing the commissioner
to adopt certain standards for retail outlets; increasing the
maximum percentage of retail licenses a person may own; providing
a purchase option for active retail licensees seeking to operate a
freestanding liquor retail outlet; providing for financing for the
purchase of a retail license for a freestanding liquor retail
outlet; authorizing emergency rules; permitting the Sunday sale of
liquor after one p.m.; and permitting the sale of liquor on
election day.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for Com.
Sub. for S. B. No. 282) and requested the House of Delegates to
recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended 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. 322, Exempting certain life insurance
policies from Medicaid assignment.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, section eleven, lines nine through eleven, by
striking out the words "That life insurance policies with a death
benefit of $25,000 or less are exempt from assignment under the
provisions of this section." and inserting in lieu thereof the
following: That the first $25,000 of the death benefit of a life
insurance policy is exempt from assignment under the provisions of
this section.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 322--A Bill to amend and reenact §9-5-11
of the Code of West Virginia, 1931, as amended, relating to
exempting the first $25,000 of the death benefit of a life
insurance policy from assignment by Medicaid recipients to the
Department of Health and Human Resources.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 322, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 322) 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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 326, Mandating certain
dental anesthesia insurance coverage.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
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 actuarially
that its total anticipated costs for the treatment of mental
illness for any plan will exceed or have exceeded two percent of
the total costs for such plan in any experience period, then the
agency may apply whatever 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.
(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.
(b) The agency shall make available to each eligible employee, at full cost to the employee, the opportunity to purchase optional
group life and accidental death insurance as established under the
rules of the agency. In addition, each employee is entitled to
have his or her spouse and dependents, as defined by the rules of
the agency, included in the optional coverage, at full cost to the
employee, for each eligible dependent; and with full authorization
to the agency to make the optional coverage available and provide
an opportunity of purchase to each employee.
(c) The finance board may cause to be separately rated for
claims experience purposes:
(1) All employees of the State of West Virginia;
(2) All teaching and professional employees of state public
institutions of higher education and county boards of education;
(3) All nonteaching employees of the Higher Education Policy
Commission, West Virginia Council for Community and Technical
College Education and county boards of education; or
(4) Any other categorization which would ensure the stability
of the overall program.
(d) The agency shall maintain the medical and prescription
drug coverage for Medicare-eligible retirees by providing coverage
through one of the existing plans or by enrolling the
Medicare-eligible retired employees into a Medicare-specific plan,
including, but not limited to, the Medicare/Advantage Prescription Drug Plan. In the event that a Medicare-specific plan would no
longer be available or advantageous for the agency and the
retirees, the retirees shall remain eligible for coverage through
the agency.
§5-16-9. Authorization to execute contracts for group hospital,
and surgical insurance, group major medical insurance, group
prescription drug insurance, group life and accidental death
insurance and other accidental death insurance; mandated
benefits; limitations; awarding of contracts; reinsurance;
certificates for covered employees; discontinuance of
contracts.
(a) The director is hereby given exclusive authorization to
execute such contract or contracts as are necessary to carry out
the provisions of this article and to provide the plan or plans of
group hospital and surgical insurance coverage, group major medical
insurance coverage, group prescription drug insurance coverage and
group life and accidental death insurance coverage selected in
accordance with the provisions of this article, such contract or
contracts to be executed with one or more agencies, corporations,
insurance companies or service organizations licensed to sell group
hospital and surgical insurance, group major medical insurance,
group prescription drug insurance and group life and accidental
death insurance in this state.
(b) The group hospital or surgical insurance coverage and
group major medical insurance coverage herein provided
for shall
include coverages and benefits for X ray and laboratory services in
connection with mammogram and pap smears when performed for cancer
screening or diagnostic services and annual checkups for prostate
cancer in men age fifty and over. Such benefits shall include, but
not be limited to, the following:
(1) Mammograms when medically appropriate and consistent with
the current guidelines from the United States Preventive Services
Task Force;
(2) A pap smear, either conventional or liquid-based cytology,
whichever is medically appropriate and consistent with the current
guidelines from the United States Preventative Services Task Force
or The American College of Obstetricians and Gynecologists, for
women age eighteen and over;
(3) A test for the human papilloma virus (HPV) for women age
eighteen or over, when 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 for women age eighteen and over;
and
(4) A checkup for prostate cancer annually for men age fifty
or over;
(5) 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;
and
_____(6) 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 either 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; or
_____(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.
(c) The group life and accidental death insurance herein
provided
for shall be in the amount of $10,000 for every employee.
The amount of the group life and accidental death insurance to
which an employee would otherwise be entitled shall be reduced to
$5,000 upon such employee attaining age sixty-five.
(d) All of the insurance coverage to be provided for under
this article may be included in one or more similar contracts
issued by the same or different carriers.
(e) The provisions of article three, chapter five-a of this
code, relating to the division of purchases of the Department of
Finance and Administration, shall not apply to any contracts for
any insurance coverage or professional services authorized to be
executed under the provisions of this article. Before entering
into any contract for any insurance coverage, as authorized in this
article, the director shall invite competent bids from all
qualified and licensed insurance companies or carriers, who may
wish to offer plans for the insurance coverage desired:
Provided,
That the director shall negotiate and contract directly with health
care providers and other entities, organizations and vendors in
order to secure competitive premiums, prices and other financial
advantages. The director shall deal directly with insurers or
health care providers and other entities, organizations and vendors
in presenting specifications and receiving quotations for bid purposes. No commission or finder's fee, or any combination
thereof, shall be paid to any individual or agent; but this shall
not preclude an underwriting insurance company or companies, at
their own expense, from appointing a licensed resident agent,
within this state, to service the companies' contracts awarded
under the provisions of this article. Commissions reasonably
related to actual service rendered for the agent or agents may be
paid by the underwriting company or companies:
Provided, however,
That in no event shall payment be made to any agent or agents when
no actual services are rendered or performed. The director shall
award the contract or contracts on a competitive basis. In
awarding the contract or contracts the director shall take into
account the experience of the offering agency, corporation,
insurance company or service organization in the group hospital and
surgical insurance field, group major medical insurance field,
group prescription drug field and group life and accidental death
insurance field, and its facilities for the handling of claims. In
evaluating these factors, the director may employ the services of
impartial, professional insurance analysts or actuaries or both.
Any contract executed by the director with a selected carrier shall
be a contract to govern all eligible employees subject to the
provisions of this article. Nothing contained in this article
shall prohibit any insurance carrier from soliciting employees covered hereunder to purchase additional hospital and surgical,
major medical or life and accidental death insurance coverage.
(f) The director may authorize the carrier with whom a primary
contract is executed to reinsure portions of the contract with
other carriers which elect to be a reinsurer and who are legally
qualified to enter into a reinsurance agreement under the laws of
this state.
(g) Each employee who is covered under any contract or
contracts shall receive a statement of benefits to which the
employee, his or her spouse and his or her dependents are entitled
under the contract, setting forth the information as to whom the
benefits are payable, to whom claims shall be submitted, and a
summary of the provisions of the contract or contracts as they
affect the employee, his or her spouse and his or her dependents.
(h) The director may at the end of any contract period
discontinue any contract or contracts it has executed with any
carrier and replace the same with a contract or contracts with any
other carrier or carriers meeting the requirements of this article.
(i) The director shall provide by contract or contracts
entered into under the provisions of this article the cost for
coverage of children's immunization services from birth through age
sixteen years to provide immunization against the following
illnesses: Diphtheria, polio, mumps, measles, rubella, tetanus, hepatitis-b, haemophilus influenzae-b and whooping cough.
Additional immunizations may be required by the Commissioner of the
Bureau
of for Public Health for public health purposes. Any
contract entered into to cover these services shall require that
all costs associated with immunization, including the cost of the
vaccine, if incurred by the health care provider, and all costs of
vaccine administration, be exempt from any deductible, per visit
charge and/or copayment provisions which may be in force in these
policies or contracts. This section does not require that other
health care services provided at the time of immunization be exempt
from any deductible and/or copayment provisions.
CHAPTER 33. INSURANCE.
ARTICLE 15. ACCIDENT AND SICKNESS INSURANCE.
§33-15-4j. Required coverage for dental anesthesia services.
(a) Notwithstanding any provision of any policy, provision,
contract, plan or agreement to which this article applies, any
entity regulated by this article shall, on or after July 1, 2009,
provide as benefits to all subscribers and members coverage for
dental anesthesia services as hereinafter set forth.
(b) For purposes of this article and section, "dental
anesthesia services" means 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 provided to an enrollee or insured if
the enrollee or insured 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 enrollee or insured and for whom a superior result
can be expected from dental care provided under general anesthesia;
or
(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.
(c)
Prior authorization. -- An entity subject to this section
may require prior authorization for general anesthesia and
associated outpatient hospital or ambulatory facility charges for
dental care in the same manner that prior authorization is required
for these benefits in connection with other covered medical care.
(d) An entity subject to this section may restrict coverage
for general anesthesia and associated outpatient hospital or
ambulatory facility charges unless the dental care is provided by:
(1) A fully accredited specialist in pediatric dentistry;
(2) A fully accredited specialist in oral and maxillofacial
surgery; and
(3) A dentist to whom hospital privileges have been granted.
(e)
Dental care coverage not required. -- The provisions of
this section may not be construed to require coverage for the
dental care for which the general anesthesia is provided.
(f)
Temporal mandibular joint disorders. -- The provisions of
this section do not apply to dental care rendered for temporal
mandibular joint disorders.
(g) A policy, provision, contract, plan or agreement may apply
to dental anesthesia services the same deductibles, coinsurance and
other limitations as apply to other covered services.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3t. Required coverage for dental anesthesia services.
(a) Notwithstanding any provision of any policy, provision,
contract, plan or agreement to which this article applies, any
entity regulated by this article shall, on or after July 1, 2009,
provide as benefits to all subscribers and members coverage for
dental anesthesia services as hereinafter set forth.
(b) For purposes of this article and section, "dental
anesthesia services" means 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 provided to an enrollee or insured if
the enrollee or insured is:
(1) 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 enrollee or insured and for whom a superior result
can be expected from dental care provided under general anesthesia;
or
(2) 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.
(c)
Prior authorization. -- An entity subject to this section may require prior authorization for general anesthesia and
associated outpatient hospital or ambulatory facility charges for
dental care in the same manner that prior authorization is required
for these benefits in connection with other covered medical care.
(d) An entity subject to this section may restrict coverage
for general anesthesia and associated outpatient hospital or
ambulatory facility charges unless the dental care is provided by:
(1) A fully accredited specialist in pediatric dentistry;
(2) A fully accredited specialist in oral and maxillofacial
surgery; and
(3) A dentist to whom hospital privileges have been granted.
(e)
Dental care coverage not required. -- The provisions of
this section may not be construed to require coverage for the
dental care for which the general anesthesia is provided.
(f)
Temporal mandibular joint disorders. -- The provisions of
this section do not apply to dental care rendered for temporal
mandibular joint disorders.
(g) A policy, provision, contract, plan or agreement may apply
to dental anesthesia services the same deductibles, coinsurance and
other limitations as apply to other covered services.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE
CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE
CORPORATIONS.
§33-24-7j. Required coverage for dental anesthesia services.
(a) Notwithstanding any provision of any policy, provision,
contract, plan or agreement to which this article applies, any
entity regulated by this article shall, on or after July 1, 2009,
provide as benefits to all subscribers and members coverage for
dental anesthesia services as hereinafter set forth.
(b) For purposes of this article and section, "dental
anesthesia services" means 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 provided to an enrollee or insured if
the enrollee or insured is:
(1) 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 enrollee or insured and for whom a superior result
can be expected from dental care provided under general anesthesia;
or
(2) 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.
(c)
Prior authorization. -- An entity subject to this section
may require prior authorization for general anesthesia and
associated outpatient hospital or ambulatory facility charges for
dental care in the same manner that prior authorization is required
for these benefits in connection with other covered medical care.
(d) An entity subject to this section may restrict coverage
for general anesthesia and associated outpatient hospital or
ambulatory facility charges unless the dental care is provided by:
(1) A fully accredited specialist in pediatric dentistry;
(2) A fully accredited specialist in oral and maxillofacial
surgery; and
(3) A dentist to whom hospital privileges have been granted.
(e)
Dental care coverage not required. -- The provisions of
this section may not be construed to require coverage for the
dental care for which the general anesthesia is provided.
(f)
Temporal mandibular joint disorders. -- The provisions of
this section do not apply to dental care rendered for temporal
mandibular joint disorders.
(g) A policy, provision, contract, plan or agreement may apply
to dental anesthesia services the same deductibles, coinsurance and
other limitations as apply to other covered services.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-8h. Required coverage for dental anesthesia services.
(a) Notwithstanding any provision of any policy, provision,
contract, plan or agreement to which this article applies, any
entity regulated by this article shall, on or after July 1, 2009,
provide as benefits to all subscribers and members coverage for
dental anesthesia services as hereinafter set forth.
(b) For purposes of this article and section, "dental
anesthesia services" means 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 provided to an enrollee or insured if
the enrollee or insured is:
(1) 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 enrollee or insured and for whom a superior result
can be expected from dental care provided under general anesthesia;
or
(2) 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.
(c)
Prior authorization. -- An entity subject to this section
may require prior authorization for general anesthesia and
associated outpatient hospital or ambulatory facility charges for
dental care in the same manner that prior authorization is required
for these benefits in connection with other covered medical care.
(d) An entity subject to this section may restrict coverage
for general anesthesia and associated outpatient hospital or
ambulatory facility charges unless the dental care is provided by:
(1) A fully accredited specialist in pediatric dentistry;
(2) A fully accredited specialist in oral and maxillofacial
surgery; and
(3) A dentist to whom hospital privileges have been granted.
(e)
Dental care coverage not required. -- The provisions of
this section may not be construed to require coverage for the dental care for which the general anesthesia is provided.
(f)
Temporal mandibular joint disorders. -- The provisions of
this section do not apply to dental care rendered for temporal
mandibular joint disorders.
(g) A policy, provision, contract, plan or agreement may apply
to dental anesthesia services the same deductibles, coinsurance and
other limitations as apply to other covered services.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-8i. Third-party reimbursement for dental anesthesia
services.
(a) Notwithstanding any provision of any policy, provision,
contract, plan or agreement to which this article applies, any
entity regulated by this article shall, on or after July 1, 2009,
provide as benefits to all subscribers and members coverage for
dental anesthesia services as hereinafter set forth.
(b) For purposes of this section, "dental anesthesia services"
means 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 provided to a subscriber or member if the subscriber or
member is:
(1) 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 subscriber or member and for whom a superior
result can be expected from dental care provided under general
anesthesia; or
(2) 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.
(c)
Prior authorization. -- An entity subject to this section
may require prior authorization for general anesthesia and
associated outpatient hospital, ambulatory facility or similar
charges for dental care in the same manner that prior authorization
is required for these benefits in connection with other covered
medical care.
(d) An entity subject to this section may restrict coverage
for general anesthesia and associated outpatient hospital or
ambulatory facility charges unless the dental care is provided by:
(1) A fully accredited specialist in pediatric dentistry;
(2) A fully accredited specialist in oral and maxillofacial
surgery; and
(3) A dentist to whom hospital privileges have been granted.
(e)
Dental care coverage not required. -- The provisions of
this section may not be construed to require coverage for the
dental care for which the general anesthesia is provided.
(f)
Temporal mandibular joint disorders. -- The provisions of
this section do not apply to dental care rendered for temporal
mandibular joint disorders.
(g) A policy, provision, contract, plan or agreement may apply
to dental anesthesia services the same deductibles, coinsurance and
other limitations as apply to other covered services.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 326, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 326) passed with its 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. 347, Correcting code reference related to
extended supervision for certain sex offenders.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
Bu striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-26. Extended supervision for certain sex offenders;
sentencing; conditions; supervision provisions; supervision
fee.
(a) Notwithstanding any other provision of this code to the
contrary, any defendant convicted after the effective date of this
section of a violation of section twelve, article eight, chapter
sixty-one of this code or a felony violation of the provisions of
article eight-b, eight-c or eight-d of said chapter shall, as part
of the sentence imposed at final disposition, be required to serve,
in addition to any other penalty or condition imposed by the court,
a period of supervised release of up to fifty years:
Provided,
That the period of supervised release imposed by the court pursuant
to this section for a defendant convicted after the effective date
of this section as amended and reenacted during the first
extraordinary session of the Legislature, 2006, of a violation of
sections three or seven, article eight-b, chapter sixty-one of this
code and sentenced pursuant to section nine-a of said article,
shall be no less than ten years:
Provided, however, That a
defendant designated after the effective date of this section as
amended and reenacted during the first extraordinary session of the
Legislature, 2006, as a sexually violent predator pursuant to the
provisions of section two-a, article twelve, chapter fifteen of
this code shall be subject, in addition to any other penalty or
condition imposed by the court, to supervised release for life:
Provided further, That, pursuant to the provisions of subsection
(g) of this section, a court may modify, terminate or revoke any term of supervised release imposed pursuant to subsection (a) of
this section.
(b) Any person required to be on supervised release for a
minimum term of ten years or for life pursuant to the provisos of
subsection (a) also shall be further prohibited from:
(1) Establishing a residence or accepting employment within
one thousand feet of a school or child care facility or within one
thousand feet of the residence of a victim or victims of any
sexually violent offenses for which the person was convicted;
(2) Establishing a residence or any other living accommodation
in a household in which a child under sixteen resides if the person
has been convicted of a sexually violent offense against a child,
unless the person is one of the following:
(i) The child's parent;
(ii) The child's grandparent; or
(iii) The child's stepparent and the person was the stepparent
of the child prior to being convicted of a sexually violent
offense, the person's parental rights to any children in the home
have not been terminated, the child is not a victim of a sexually
violent offense perpetrated by the person, and the court determines
that the person is not likely to cause harm to the child or
children with whom such person will reside:
Provided, That nothing
in this subsection shall preclude a court from imposing residency or employment restrictions as a condition of supervised release on
defendants other than those subject to the provision of this
subsection.
(c) The period of supervised release imposed by the provisions
of this section shall begin upon the expiration of any period of
probation, the expiration of any sentence of incarceration or the
expiration of any period of parole supervision imposed or required
of the person so convicted, whichever expires later.
(d) Any person sentenced to a period of supervised release
pursuant to the provisions of this section shall be supervised by
the probation office of the sentencing court or by the community
corrections program established in said circuit unless jurisdiction
is transferred elsewhere by order of the sentencing court.
(e) A defendant sentenced to a period of supervised release
shall be subject to any or all of the conditions applicable to a
person placed upon probation pursuant to the provisions of section
nine, article twelve of this chapter s
ixty-one of this code:
Provided, That any defendant sentenced to a period of supervised
release pursuant to this section shall be required to participate
in appropriate offender treatment programs or counseling during the
period of supervised release unless the court deems
such the
offender treatment programs or counseling to no longer be
appropriate or necessary and makes express findings in support thereof.
Within ninety days of the effective date of this section as
amended and reenacted during the first extraordinary session of the
Legislature, 2006, the Secretary of the Department of Health and
Human Resources shall propose rules and emergency rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code establishing
qualifications for sex offender treatment programs and counselors
based on accepted treatment protocols among licensed mental health
professionals.
(f) The sentencing court may, based upon defendant's ability
to pay, impose a supervision fee to offset the cost of supervision.
Said fee shall not exceed $50 per month. Said fee may be modified
periodically based upon the defendant's ability to pay.
(g)
Modification of conditions or revocation. -- The court
may:
(1) Terminate a term of supervised release and discharge the
defendant released at any time after the expiration of two years of
supervised release, pursuant to the provisions of the West Virginia
Rules of Criminal Procedure relating to the modification of
probation, if it is satisfied that such action is warranted by the
conduct of the defendant released and the interests of justice;
(2) Extend a period of supervised release if less than the maximum authorized period was previously imposed or modify, reduce
or enlarge the conditions of supervised release, at any time prior
to the expiration or termination of the term of supervised release,
consistent with the provisions of the West Virginia Rules of
Criminal Procedure relating to the modification of probation and
the provisions applicable to the initial setting of the terms and
conditions of post-release supervision;
(3) Revoke a term of supervised release and require the
defendant to serve in prison all or part of the term of supervised
release without credit for time previously served on supervised
release if the court, pursuant to the West Virginia Rules of
Criminal Procedure applicable to revocation of probation, finds by
clear and convincing evidence that the defendant violated a
condition of supervised release, except that a defendant whose term
is revoked under this subdivision may not be required to serve more
than the period of supervised release;
(4) Order the defendant to remain at his or her place of
residence during nonworking hours and, if the court so directs, to
have compliance monitored by telephone or electronic signaling
devices, except that an order under this paragraph may be imposed
only as an alternative to incarceration.
(h)
Written statement of conditions. -- The court shall direct
that the probation officer provide the defendant with a written statement
at the defendant's sentencing hearing that sets forth all
the conditions to which the term of supervised release is subject
and that it is sufficiently clear and specific to serve as a guide
for the defendant's conduct and for such supervision as is
required.
(i)
Supervised release following revocation. -- When a term of
supervised release is revoked and the defendant is required to
serve a term of imprisonment that is less than the maximum term of
imprisonment supervised release authorized under subsection (a) of
this section, the court may include a requirement that the
defendant be placed on a term of supervised release after
imprisonment. The length of such term of supervised release shall
not exceed the term of supervised release authorized by this
section less any term of imprisonment that was imposed upon
revocation of supervised release.
(j)
Delayed revocation. -- The power of the court to revoke a
term of supervised release for violation of a condition of
supervised release and to order the defendant to serve a term of
imprisonment and, subject to the limitations in subsection
(h) (i)
of this section, a further term of supervised release extends
beyond the expiration of the term of
supervised release for any
period necessary for the adjudication of matters arising before its
expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 347--A Bill to amend and reenact
§62-12-26 of the Code of West Virginia, 1931, as amended, relating
to making corrections to internal code references and other
terminology related to extended supervision for certain sex
offenders.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 347, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S. B. No. 347) 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. 425, Disclosing certain refinanced loan's
higher annual percentage rate.
On motion of Senator Chafin, 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:
Eng. Senate Bill No. 425--A Bill to amend and reenact §46A-4-
111 of the Code of West Virginia, 1931, as amended, relating to
refinancing or consolidating certain loans or consumer credit sales
by regulated consumer lenders; requiring disclosure of a higher
annual percentage rate in any refinancing or consolidation of a
nonrevolving consumer loan or consumer credit sale; and requiring
a documentation of a reasonable, net tangible benefit to the
borrower of any refinancing or consolidation of a nonrevolving
consumer loan or consumer credit sale secured by residential real
estate.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 425, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 425) 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. 468, Requiring redemption property
purchaser pay in certified funds.
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 Com. Sub. for Senate Bill No. 470,
Regulating all-terrain vehicles on Hatfield-McCoy Trail.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §20-15-1, §20-15-2, §20-15-3, §20-15-4, §20-15-5 and
§20-15-6 of the Code of West Virginia, 1931, as amended, be amended
and reenacted, all to read as follows:
ARTICLE 15. ATV, UTV AND MOTORCYCLE RESPONSIBILITY ACT.
§20-15-1. Legislative findings.
The West Virginia Legislature finds that trail-oriented
recreation for off-highway vehicle enthusiasts offered by the
Hatfield-McCoy Regional Recreation Authority significantly
contributes to the economy of West Virginia and is enjoyed by a
large and growing number of residents and nonresidents alike.
Since it is recognized that there are inherent risks in the
operation of such off-highway vehicles which should be understood
by each operator and which cannot be eliminated by
the Hatfield-McCoy Regional Recreation Authority or its authorized outfitters or
licensees, it is the purpose of this article to define the areas of
responsibility and affirmative acts which authorized outfitters
must perform or risk being liable for loss, damage or injury
suffered by participants and to define the risk which the
participants expressly assume and for which there can be no
recovery.
§20-15-2. Definitions.
The terms in this article have the following meaning, unless
the context clearly requires a different meaning:
(1) "All-terrain vehicle" or "ATV"
shall mean means any motor
vehicle
fifty-two inches or less in width, having an unladen weight
of eight hundred pounds or less, traveling on four or more low
pressure tires with a seat designed to be straddled by the rider,
designed for or capable of travel over unimproved terrain designed
for off-highway use and designed to travel on not less than three
low-pressure tires, having a seat designed to be straddled by the
operator and handlebars for steering control and intended by the
manufacturer to be used by a single operator or by an operator and
no more than one passenger.
(2)
"Motorcycle" means any motor vehicle having a seat or
saddle for the use of the rider and designed to travel on not more
than two wheels in contact with the ground "Authorized outfitter" or "licensee" means a commercial outfitter, which is a person,
partnership, limited liability company (LLC), corporation, other
organization, or any combination thereof, licensed by the Hatfield-
McCoy Regional Recreation Authority, who operates from any
temporary or permanent camp, private or public lodge or private
home, who provides guided tours or the rental of all-terrain
vehicles, utility-terrain vehicles or motorcycles for use on
assigned lands for monetary profit or gain.
(3)
"Authorized outfitter" or "licensee" means a commercial
outfitter, which is a person, partnership, limited liability
company ("LLC"), corporation, other organization, or any
combination thereof, licensed by the Hatfield-McCoy Regional
Recreation Authority, who operate from any temporary or permanent
camp, private or public lodge, or private home, who provide guided
tours or the rental of all-terrain vehicles or motorcycles for use
on assigned lands for monetary profit or gain "Low-pressure tire"
means every tire in which twenty pounds per square inch or less of
compressed air is designed to support the load.
(4)
"Participant" means any person using the services or
equipment of an authorized outfitter or licensee, including
passengers of an all-terrain vehicle or motorcycle "Motorcycle"
means any motor vehicle manufactured with no more than two wheels
and having a seat or saddle for the use of the operator.
_____(5) "Participant" means any person using the facilities of the
Hatfield-McCoy Regional Recreation Authority.
_____(6) "Utility-terrain vehicle" or "UTV" means any motor vehicle
with four or more low-pressure tires designed for off-highway use
having bench or bucket seating for each occupant and a steering
wheel for control.
§20-15-3. Scope.
The provisions of this This article shall only apply to
the
Hatfield-McCoy Regional Recreation Authority, authorized outfitters
or licensees
licensed by the Hatfield-McCoy Regional Recreation
Authority and any participant as defined in section two of this
article.
§20-15-4. Duties of authorized outfitters or licensees.
(a) Every authorized outfitter or licensee shall:
(1) Mark for identification purposes all equipment and
vehicles used in the business;
(2) Maintain all equipment and vehicles used in the business
in such condition that the equipment and vehicles are safe to
operate or use as intended and recommended by the manufacturer;
(3) Provide facilities, equipment and services conforming to
safety and other requirements established by the rules promulgated
by the Hatfield-McCoy Regional Recreation Authority;
(4) Provide facilities, equipment and services as advertised or as agreed to by the authorized outfitter or licensee and the
participant;
(5) Provide protective helmets which are size appropriate and
which meet the current performance specifications established by
the American National Standards Institute standard, z 90.1, the
United States Department of Transportation federal motor vehicle
safety standard no. 218 or Snell safety standards for protective
headgear for vehicle users as defined by subdivision (5),
subsection (a), section one, article one, chapter seventeen-f of
this code, to all persons using all-terrain vehicles,
utility-terrain vehicles or motorcycles;
(6) Provide all-terrain vehicles or motorcycles which are age
and size appropriate as recommended by the manufacturer;
(7) Make reasonable and prudent efforts to ensure that
participants
utilizing the facilities, equipment or services of the
authorized outfitter or licensee have received the safety training
required by the provisions of the legislative rule for the use of
the Hatfield-McCoy Regional Recreation Area;
(8) Make certain that every guide offered to participants by
the authorized outfitter or licensee has a current standard first
aid training certificate and CPR certificate issued by the American
Red Cross or its equivalent and ATV safety training
through the ATV
Safety Institute by the Hatfield-McCoy Recreation Authority or its designee;
(9) Make certain that employees carry first aid kits when
acting as guides; and
(10) Make known to any participant
utilizing the facilities,
equipment or services of the authorized outfitter or licensee any
dangerous condition as to trail lands, facilities or equipment to
be traversed or used which is known by the outfitter or licensee.
(b) An authorized outfitter or licensee may not rent or lease
an all-terrain vehicle
, utility-terrain vehicle or motorcycle to a
person under the age of eighteen years or allow any owner-operated
all-terrain vehicle
, utility-terrain vehicle or motorcycle on any
guided tour when operated by any person under the age of eighteen
years without first obtaining a written statement, signed by the
minor's parent or guardian certifying that:
(1) Any machine to be operated by the minor or his
or her
parent or guardian is of a model that is recommended by the
manufacturer as appropriate to the minor's age and size;
(2) All rules governing the use of the vehicle and the
Hatfield-McCoy Recreation Area have been explained to the minor in
sufficient detail to enable the minor to abide by the rules; and
(3) Any minor under the age of sixteen will remain under the
supervision of and the sight of the parent or guardian at all
times.
(c) An authorized outfitter or licensee
shall provide a
participant with written notification of his or her duties as
prescribed in section five of this article, and the participant
shall sign the notification and shall be kept on file by the
outfitter or licensee for not less than five years may not rent or
lease a utility-terrain vehicle to any person who is not at least
sixteen years of age and in possession of a valid driver's license.
_____(d) An authorized outfitter or licensee shall provide a
participant utilizing the facilities, equipment or services of the
authorized outfitter or licensee with written notification of his
or her duties as prescribed in section five of this article. The
participant shall sign the notification prior to using the
equipment. The signed notification, or an electronically stored
copy thereof, shall be kept on file by the outfitter or licensee
for not less than five years.
§20-15-5. Duties of participants.
(a) All participants:
(1) Shall comply with any requirements established by law,
including those in section one, article one, chapter seventeen-f of
this code which defines those acts prohibited by operators of
all-terrain vehicles;
(2) Shall comply with the rules or regulations established for
use of the Hatfield-McCoy Recreation Area;
(3) Shall, as to the
operator Hatfield-McCoy Regional
Recreation Authority, authorized outfitter or licensee, expressly
assume the risk of and legal responsibility for any injury, loss or
damage to person or property which results from participation in
operating an all-terrain vehicle,
utility-terrain vehicle or
motorcycle
owned by the authorized outfitter or licensee, and
caused by any of the following:
(A) Variations in terrain, slope or angle of terrain;
(B) Surface or subsurface conditions including: Rocks, trees
or other forms of forest growth or debris;
(C) Collisions with signs, markers, width restrictors,
culverts, bridges, pipes, equipment, vehicles or any other objects
or fixtures used in trail management, maintenance, construction or
development;
(D) Collisions with signs, markers, pipes, equipment, vehicles
or any component thereof used in natural resource maintenance,
development or extraction;
(E) Collisions with electrical transmission poles, towers,
lines, guy wires or any component thereof;
(4) Shall obey all rules or instructions announced by the
Hatfield-McCoy Regional Recreation Authority, authorized outfitter
or licensee, with regard to the operation of the all-terrain
vehicle or motorcycle he or she is operating; and
(5) Shall wear all safety equipment provided by the authorized
outfitter or licensee, or which might otherwise be required by law.
(b) Each participant shall have the sole individual
responsibility for:
(1) Knowing the range of his or her own ability to negotiate
any slope or trail;
(2) Operating the ATV,
UTV or motorcycle within the limits of
the participant's own ability;
(3) Maintaining reasonable control of speed and course at all
times;
(4) Heeding all posted warnings;
(5) Operating only on trails designated by the Hatfield-McCoy
Regional Recreation Authority; and
(6) Refraining from acting in a manner which may cause or
contribute to the injury of any person.
(c) If while riding an ATV,
UTV or motorcycle any participant
collides with any object or person, the responsibility for the
collision shall be solely that of the participant or participants
involved and not that of the
Hatfield-McCoy Regional Recreation
Authority, authorized outfitter or licensee unless the
Hatfield-
McCoy Regional Recreation Authority, authorized outfitter or
licensee or
his or her their agent caused the collision in a
tortious manner.
(d) After an accident, a participant may not leave the area
where the accident took place without:
(1) Leaving personal identification, including his or her name
and address;
(2) Notifying the proper authorities; and
(3) Obtaining assistance when he or she knows or reasonably
should know that any other person involved in the accident is in
need of medical or other assistance.
(e) Where a participant is a lawful passenger, that
participant may not distract or perform any act which might
interfere with the safe operation of the all-terrain vehicle,
utility-terrain vehicle or motorcycle of which he or she is a
passenger.
(f) Any person under the age of sixteen years shall remain
under the direct supervision and within sight of a parent or
guardian both of whom must otherwise comply with state or federal
laws and any rules or regulations promulgated thereunder.
(g) A participant may not make any alterations or tamper with
the all-terrain vehicle,
utility-terrain vehicle or motorcycle he
or she is operating or of which he or she is a passenger in any way
which would interfere with the continued safe operation of that
machine.
§20-15-6. Liability of authorized outfitters and licensees.
(a) Any authorized outfitter or licensee is liable for injury,
loss or damage caused by failure to follow the duties set forth in
section four of this article where the violation of duty is
causally related to the injury, loss or damage suffered.
(b) An authorized outfitter or licensee is not liable for any
injury, loss or damage caused by the negligence of any person who
is not an agent or employee of the authorized outfitter or
licensee.
(c) An authorized outfitter or licensee is not liable for any
injury, loss or damage caused by a participant's violation of any
duty described in section five of this article.
(d) An authorized outfitter or licensee is not liable for any
injury, loss or damage caused solely by the participant's failure
to negotiate the terrain or environment over which or through which
the participant is operating his or her all-terrain vehicle,
utility-terrain vehicle or motorcycle as described in section five
of this article.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 470--A Bill
to amend and reenact §20-15-1, §20-15-2, §20-15-3, §20-15-4, §20-
15-5 and §20-15-6 of the Code of West Virginia, 1931, as amended, all relating to regulating all-terrain vehicles and utility-terrain
vehicles on the Hatfield-McCoy Trail; standardizing the definition
of "all-terrain vehicle"; defining and regulating "utility-terrain
vehicle"; defining and regulating "motorcycle"; extending the
limitations of liability of the Hatfield-McCoy Regional Recreation
Authority; and making stylistic and technical corrections.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 470, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: Barnes--1.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 470) 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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 481, Requiring employers provide certain
documentation to Public Employees Insurance Agency.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, section twelve-a, line five, after the word
"include" by striking out the comma and the words "but not be
limited to,".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 481, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 481) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 490, Authorizing Mercer County Commission
appoint emergency operations center board.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 494, Authorizing Insurance Commissioner
order restitution in certain cases.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 495, Authorizing Insurance Commissioner
permit certain groups life insurance policies.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 507, Relating to Clean Coal Technology
Council's powers and duties.
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. 552, Relating to affordable
health insurance plan proposals.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §33-15D-1, §33-15D-2, §33-15D-3, §33-15D-4, §33-15D-5,
§33-15D-6, §33-15D-7, §33-15D-8, §33-15D-9, §33-15D-10 and §33-15D-
11 of the Code of West Virginia, 1931, as amended, be repealed;
that said code be amended by adding a new section thereto,
designated §33-16-3t; that §33-16F-1, §33-16F-2, §33-16F-3, §33-
16F-4, §33-16F-5, §33-16F-6, §33-16F-7 and §33-16F-8 of said code
be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §33-16F-9 and §33-16F-10, all
to read as follows:
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3t. Special enrollment period under the American Recovery
and Reinvestment Act of 2009.
(a) The Legislature finds that recent attempts to assist
unemployed persons during the economic downturn beginning at the
end of 2008 included a federal initiative to provide subsidies to
certain persons who have lost their employer-sponsored health
insurance coverage. As part of the American Recovery and
Reinvestment Act of 2009, certain involuntarily terminated
employees and their dependents were given an second opportunity to
elect subsidized COBRA coverage. This federal initiative also
included relief to certain persons not covered by the federal COBRA
laws, but access to such relief was made dependent on the states
acting to require that such persons be given notice of their right
to elect such coverage. Therefore, the Legislature intends that
this section be interpreted in such a manner as to maximize the
opportunity of West Virginians to obtain these much needed
subsidies.
(b)
Definitions. -- As used in this section:
(1) "Assistance eligible individual" means any qualified
beneficiary who was eligible for continuation coverage between September 1, 2008, and February 17, 2009, due to a covered
employee's termination from employment during this period and who
elected such coverage.
(2) "Continuation coverage" means accident and sickness
insurance coverage offered to persons pursuant to policy provisions
required by subsection (e), section three of this article.
(3) "Covered employee" means a person who was involuntarily
terminated by a small employer between September 1, 2008, and
February 16, 2009, and at the time of his or her termination
either: (i) Was eligible for but did not elect to enroll in
continuation coverage; or (ii) enrolled but subsequently
discontinued enrollment in continuation coverage.
(4) "Qualified beneficiary" has the same meaning as that term
is defined in §607(3) of the Employee Retirement Income Security
Act of 1974, 29 U. S. C. §1167(3).
(5) "Small employer" means any employer that had fewer than
twenty (20) employees during fifty percent (50%) or more of its
typical business days in the previous calendar year.
(c) An individual who does not have an election of
continuation coverage in effect on February 17, 2009, but who would
be an assistance eligible individual if such election were in
effect, may elect continuation coverage pursuant to this section.
Such election shall be made no later than sixty days after the date the administrator of the group health plan (or other entity
involved) provides the notice required by section 3001(a)(7) of the
American Recovery and Reinvestment Act of 2009. The administrator
of the group health plan (or other entity involved) shall provide
such individuals with additional notice of the right to elect
coverage pursuant to this subsection prior to April 18, 2009.
(d) Continuation coverage elected pursuant to subsection (c)
of this section shall commence with the first period of coverage
beginning on or after February 17, 2009:
Provided, That
continuation coverage elected pursuant to this subsection shall not
extend beyond the maximum eighteen-month period provided for by
subsection (e), section three of this article.
(e) With respect to an individual who elects continuation
coverage pursuant to subsection (b) of this section, the period
beginning on the date of the involuntary termination and ending on
the date of the first period of coverage on or after February 17,
2009, shall be disregarded for purposes of determining the sixty-
three day period referred to in subsection (b), section three-m of
this article.
ARTICLE 16F. WEST VIRGINIA AFFORDABLE HEALTH CARE PLAN.
§33-16F-1. Legislative intent.
The Legislature finds that the inability of a significant
number of state residents to obtain affordable health insurance coverage adversely affects everyone in our state. Therefore, it is
the intent of the Legislature to expand the availability of health
care options for uninsured residents by developing affordable
health care products that emphasize coverage for basic and
preventive health care services, provide inpatient hospital and
emergency care services and offer optional catastrophic coverage.
§33-16F-2. Definitions.
As used in this article:
"West Virginia affordable health care plan" means a health
insurance plan approved under this article.
"West Virginia affordable health care plan entity" or "plan
entity" means an entity licensed under this chapter that develops
and proposes a West Virginia affordable health care plan and, if
the plan is approved, is responsible for administering the plan and
paying claims of plan enrollees.
"Enrollee" means an individual who has been determined to be
eligible for and is receiving health insurance coverage under a
West Virginia affordable health care plan.
§33-16F-3. Plan proposals; approval of plans.
(a) The commissioner shall announce, no later than July 1,
2009, an invitation to prospective West Virginia affordable health
care plan entities to submit West Virginia affordable health care
plan proposals. The invitation shall include guidelines for the review of West Virginia affordable health care plan applications,
policies and associated rates.
(b) In reviewing proposals under this article, the
commissioner shall consider the proposed plans' effectiveness in
improving the health status of individuals, their impact on
maintaining and improving health and their potential to reduce the
unnecessary consumption of health care services.
§33-16F-4. Required plan provisions; grounds for disapproval;
alternative plans.
(a) To be approved, plan entities must assure that each
proposed plan will provide cost containment through the use of plan
design features such as limits on the number of services, caps on
benefit payments or copayments for services.
(b) To provide consumer choice, plan entities must develop and
submit two alternative benefit option plans having different cost
and benefit levels, including at least one plan that provides
catastrophic coverage. Plans providing catastrophic coverage must,
at a minimum, provide coverage for preventive health services and
inpatient hospital stays and may also include coverage of one or
more of the following: Hospital emergency care services and
outpatient facility services; outpatient surgery; or outpatient
diagnostic services.
(c) All plans must offer prescription drug benefit coverage.
(d) Plan enrollment materials must provide information in
plain language on policy benefit coverage, benefit limits, cost-
sharing requirements, exclusions and a clear representation of what
is not covered in the plan. The enrollment materials must include
a standard disclosure form developed by the commissioner that must
be reviewed and executed by all consumers purchasing West Virginia
affordable health care plan coverage.
(e) The commissioner shall disapprove any plan that:
(1) Contains any ambiguous, inconsistent or misleading
provisions or any exceptions or conditions that deceptively affect
or limit the benefits purported to be assumed in the general
coverage provided by the plan;
(2) Provides benefits that are unreasonable in relation to the
premium charged; or
(3) Contains provisions that are unfair or inequitable,
contrary to the public policy of this state, encourage
misrepresentation or result in unfair discrimination in sales
practices.
§33-16F-5. Eligibility of individuals and groups.
(a)
Individuals. -- Eligibility to enroll in an individual
West Virginia affordable health care plan is limited to any
resident of this state who:
(1) Is not covered by a private insurance policy and is not eligible for coverage under an employer-sponsored group plan or
through a public health insurance program, such as Medicare,
Medicaid or the state Children's Health Insurance Program; and
(2) Has not been covered by any health insurance program at
any time during the past six months, unless coverage under a health
insurance program was terminated within the previous six months due
to loss of a job that provided an employer-sponsored health benefit
plan or death of, or divorce from, a spouse who was provided an
employer-sponsored health benefit plan or, with respect to a public
health insurance program, eligibility for such program was lost due
to an inability to meet income or categorical requirements:
Provided, That an individual may not be excluded from enrollment in
a West Virginia affordable health care plan on the ground that he
or she is eligible for or is enrolled in a COBRA plan.
(b)
Group. -- An otherwise eligible group may not obtain
coverage under a West Virginia affordable health care plan unless
the group has not had coverage under any health insurance plan at
any time during the previous six months.
§33-16F-6. Regulation and marketing of plans.
(a) The commissioner shall issue guidelines to ensure that
West Virginia affordable health care plans meet minimum standards
for quality of and access to care.
(b) Initial filings and changes in West Virginia affordable health care plan benefits, premiums and policy forms are subject to
regulatory oversight by the commissioner.
(c) The commissioner shall develop a public awareness program
to be implemented throughout the state for the promotion of the
plans approved under this article, which may include assistance
from state health insurance benefits advisors.
(d) Each West Virginia affordable health care plan must
maintain enrollment data and provide network data and reasonable
records to enable the commissioner to assess the plans.
§33-16F-7. Applicability of certain provisions; commissioner's
authority to forbear from applying certain provisions.
(a)
Individual plans. -- Only the following provisions of
article fifteen of this chapter apply to West Virginia entities
offering individual plans pursuant to this article: Sections two-
a, two-d, two-e, three, four, four-c, four-e, four-f, four-g, five,
six, seven, eight, nine, thirteen, fourteen, sixteen, seventeen,
eighteen, nineteen and twenty. Notwithstanding any other provision
of this code, the provisions of article twenty-eight of this
chapter and legislative rules regulating individual accident and
sickness policies, including the rule contained in series 12, title
114 of the West Virginia Code of State Rules, do not apply to
individual plans issued pursuant to this article unless and to the
extent specifically incorporated in rules promulgated pursuant to the authority conferred by section eleven of this article.
(b)
Group plans. -- Only the following provisions of article
sixteen of this chapter apply to insurers offering group plans
pursuant to this article: Sections one-a, three, three-g, three-j,
three-k, three-l, three-m, three-n, three-o, three-p, four, five,
six, seven, nine, ten, eleven, twelve, thirteen, fourteen and
fifteen; all other provisions of article sixteen of this chapter do
not apply to group plans approved pursuant to this article unless
and to the extent the provisions are specifically incorporated in
rules promulgated by the commissioner. Notwithstanding any other
provision of this code or of the code of state rules, the
provisions of article sixteen-e of this chapter and of legislative
rules regulating group accident and sickness policies, including
the rule set forth in series 39, title 114 of the West Virginia
Code of State Rules, do not apply to group plans approved pursuant
to this article unless and to the extent specifically incorporated
in rules promulgated by the commissioner pursuant to the authority
conferred by section eleven of this article.
(c)
Small group plans. -- With respect to any group plan
approved under this article and offered to any "small employer", as
that term is defined in section two, article sixteen-d of this
chapter, the following provisions of said article apply: Sections
two, four, seven, eight, twelve, thirteen and fourteen:
Provided, That only the sentence preceding the proviso in section thirteen of
said article applies to small employer plans approved pursuant to
this article. Notwithstanding any other provision of this code,
all other provisions of article sixteen-d of this chapter do not
apply to small employer plans approved pursuant to this article
unless and to the extent such provisions are specifically
incorporated in rules promulgated by the commissioner.
(d)
Forbearance by the commissioner. -- The commissioner may
forbear from applying any other statutory or regulatory
requirements to an insurer offering an individual or group plan
approved pursuant to this article, including any requirements in
articles twenty-four and twenty-five-a of this chapter, if he or
she determines that such forbearance serves the principles set
forth in section one of this article.
(e)
Existing limited benefit plans. -- Plans approved pursuant
to the provisions of article fifteen-d of this chapter, as that
article existed prior to its repeal during the 2009 regular
legislative session, and this article, as that it existed prior to
its amendment and reenactment during the 2009 regular legislative
session, remain in effect and are subject to those provisions.
§33-16F-8. Assessment of the West Virginia program.
The commissioner shall:
(1) Provide an assessment of the West Virginia affordable health care plans and their potential applicability in other
settings;
(2) Use West Virginia affordable health care plans to gather
more information to evaluate low-income, consumer-driven benefit
packages; and
(3) Submit by March 1, 2011, and annually thereafter, a report
to the Governor, the President of the Senate and the Speaker of the
House of Delegates that provides the information specified in this
section and recommendations relating to the successful
implementation and administration of the program.
§33-16F-9. Nonentitlement.
Coverage under a West Virginia affordable health care plan is
not an entitlement and a cause of action does not arise against the
state, a local government entity, any other political subdivision
of the state or any agency for failure to make coverage available
to eligible persons under this article.
§33-16F-10. Emergency and legislative rules authorized.
The commissioner may promulgate emergency and legislative
rules under the provisions of article three, chapter twenty-nine-a
of this code, to prescribe requirements regarding rate making,
which may include rules establishing loss ratio standards for the
plans; to place limitations on eligibility for coverage under the
approved plans; to establish standards to determine whether a plan qualifies as creditable coverage; to determine what medical
treatments, procedures and related health services benefits must be
included in the plans; and to provide for any other matters deemed
necessary to further the intent of this article.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 552--A Bill to repeal §33-
15D-1, §33-15D-2, §33-15D-3, §33-15D-4, §33-15D-5, §33-15D-6, §33-
15D-7, §33-15D-8, §33-15D-9, §33-15D-10 and §33-15D-11 of the Code
of West Virginia, 1931, as amended; to amend said code by adding a
new section thereto, designated, §33-16-3t; to amend and reenact
§33-16F-1, §33-16F-2, §33-16F-3, §33-16F-4, §33-16F-5, §33-16F-6,
§33-16F-7 and §33-16F-8 of said code; and to amend said code by
adding thereto two new sections, designated §33-16F-9 and §33-16F-
10, all relating to health insurance; providing a special
enrollment period for continued employee group accident and
sickness insurance coverage for certain involuntarily terminated
employees and their dependents; providing legislative findings;
defining terms; mandating notice to individuals eligible for
coverage; providing for a disregard of certain periods for purposes
of calculating creditable coverage; establishing a program to
provide affordable health care insurance coverage; requiring the Insurance Commissioner to invite carriers and other entities to
submit proposals for affordable health insurance plans; defining
terms; specifying that plans do not create an entitlement;
establishing eligibility and standards for such plans; providing
for evaluation of the plans and reports to the Legislature;
providing for continuation of existing limited benefit plans; and
authorizing emergency and legislative rules.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 552, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 552) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 552) 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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 641, Disclosing solid waste
origins at commercial landfills.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page three, section four-b, line twenty, after the word
"vehicle" by inserting the words "which deposits solid waste in
violation of this section".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 641, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 641) passed with its 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. 12, Requesting Division of
Highways name bridge in Lesage "PVT Russell Curtis Knight 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. 17, Requesting Division of
Highways name bridge in Logan County "Marine Private Robert Clayton
Stephenson 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. 46, Requesting Division of
Highways name bridge in Braxton County "Harold V. Long Memorial
Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 2170, Authorizing the
Department of Commerce to promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendment to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2218, Authorizing the Department of Transportation to promulgate legislative rules.
On motion of Senator Chafin, the Senate refused to recede from
its amendment to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Minard, Oliverio and Barnes.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2421, Requires that
inoperable fire hydrants be painted black and be reported to
emergency dispatch centers.
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. 2464, Authorizing county
commissions to designate locations for early voting other than the
county courthouse or annex.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2504, Establishing the
Silver Alert Plan, an alert system for missing cognitively impaired
persons.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
July 1, 2009, of
Eng. Com. Sub. for House Bill No. 2530, Relating to further
defining professional student support personnel.
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. 2532, Creating licensure for
Marriage and Family Therapists.
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. 2541, Including poultry
among those domesticated farm animals or stock which the owner
shall be liable for damages caused by those animals.
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2621, Prohibiting the use of
cell phone and text-messaging devices while operating a motor
vehicle except when using a hands-free device or in the case of an
emergency.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Browning, Stollings and Barnes.
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 amended title, passage
as amended, of
Eng. Com. Sub. for House Bill No. 2685, Amending the Uniform
Principal and Income Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2694, Establishing certain
requirements for modification of custodial rights for parent's or
guardian's that have been deployed to the United States Armed
Forces.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2695, Providing criminal
penalties for a hunter who fails to render aid to a person the
hunter shoots while hunting.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Bowman, Laird and Barnes.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2739, Enhancing the service and enforcement of domestic violence protective orders issued by
state courts.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2819, Authorizing
miscellaneous agencies and boards to promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 2863, Relating to
construction of state utility projects.
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. 2877, Increasing the
monetary penalties, removing the possibility of incarceration and
adding community service for a minor who misrepresents his or her
age when purchasing alcohol.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Wooton, Lawrence and Ellem.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. House Bill No. 2920, Eliminating the felony conviction
for a second or subsequent conviction of petit larceny.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Jenkins, Laird and Hall.
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 amended title, passage
as amended, of
Eng. Com. Sub. for House Bill No. 3036, Relating to notice and
publication requirements for expungement petitions.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 3120, Increasing the WV
Prosecuting Attorneys Institute's executive council's elected
members from five to seven and permitting the appointment of
special prosecutors in juvenile delinquency, child abuse or neglect
proceedings.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 3134, Municipal vote by mail
pilot program.
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. 3194, Making it a
misdemeanor to knowingly file false information with the Secretary
of State.
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. 3208, Including the hours of
training county board members have acquired.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Paxton, Fragale and Sumner.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 3288, Relating to mental
health parity.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 3305, Relating to the powers
and duties of probation officers.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 3313, Allowing depositories
and banks to meet the security requirement necessary to be a
depository for boards of education by providing a letter of credit
from a federal home loan bank.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 3340, Relating to entry into a data state compact among the Higher Education Policy Commission,
Council for Community and Technical College Education and State
Board of Education.
Executive Communications
The Clerk then presented communications from His Excellency,
the Governor, advising that on April 11, 2009, he had approved
Enr.
Committee Substitute for Senate Bill No. 263, Enr. Committee
Substitute for Senate Bill No. 307, Enr. Committee Substitute for
Senate Bill No. 341, Enr. Senate Bill No. 346, Enr. Senate Bill No.
436, Enr. Committee Substitute for Senate Bill No. 453, Enr.
Committee Substitute for House Bill No. 2225, Enr. Committee
Substitute for House Bill No. 2305, Enr. House Bill No. 2474, Enr.
House Bill No. 2652, Enr. Committee Substitute for House Bill No.
2702, Enr. Committee Substitute for House Bill No. 2703, Enr.
Committee Substitute for House Bill No. 2904, Enr. House Bill No.
3066, Enr. Committee Substitute for House Bill No. 3076 and
Enr.
House Bill No. 3189.
On motion of Senator Chafin, the Senate recessed until 2 p.m.
today.
Upon expiration of the recess, the Senate reconvened and
resumed business under the third order.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the passage as amended, of
Eng. Com. Sub. for House Bill No. 2360, Insuring that tobacco
products are not sold in any packaging other than the original.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2536, Adding language that
includes railcars and locomotives in the category of railroad
property that is illegal to interfere or tamper with.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2539, Authorizing
professional licensing boards to combine administrative staff
functions.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2557, Relating to the
enforcement of new motor vehicle warranties.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2771, Relating to the West
Virginia Alcohol and Drug-Free Workplace Act.
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. House Bill No. 3155, Relating to the renewal of the West
Virginia Small Business Linked Deposit Program.
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 five from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 2836, School Innovation
Zones Act.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Shaver, Moye, M. Poling, Sumner and Duke.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
On further motion of Senator Chafin, two additional conferees
on the part of the Senate as to Engrossed Committee Substitute for
House Bill No. 2836 were requested.
Whereupon, Senator Tomblin (Mr. President) appointed the
following additional conferees on the part of the Senate:
Senators Foster and Boley.
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
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 3146, Relating to seniority
rights for school service personnel.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators White, Stollings and Barnes.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 2:38 p.m. today:
Eng. Com. Sub. for House Bill No. 3208, Including the hours of
training county board members have acquired.
Senator Williams, from the committee of conference on matters
of disagreement between the two houses, as to
Eng. Senate Bill No. 445, Removing conservation supervisors'
election certification requirements.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the House to Engrossed Senate
Bill No. 445 having met, after full and free conference, have
agreed to recommend and do recommend to their respective houses, as
follows:
That the House recede from its amendment, striking out
everything after the enacting clause, and that both houses agree to
an amendment as follows:
On page two, section six, by striking out all of subsection
(b) and inserting in lieu thereof a new subsection (b), to read as
follows:
(b) A candidate for supervisor must be a landowner and an
active farmer with a minimum of five years' experience or a retired
farmer who has had a minimum of five years' experience and must
have the education, training and experience necessary to carry out
the duties required by this article. The State Conservation
Committee shall proposes for promulgation in accordance with the
requirements of article three-a, chapter twenty-nine of this code legislative rules to establish criteria for the necessary
education, training and experience.;
And,
That the House recede from its amendment to the title of the
bill.
Respectfully submitted,
Bob Williams,
Chair, Herb Snyder, Karen L. Facemyer,
Conferees
on the part of the Senate.
Mark Hunt,
Chair, Robert C. Tabb, Bill Hamilton,
Conferees on
the part of the House of Delegates.
On motions of Senator Williams, severally made, the report of
the committee of conference was taken up for immediate
consideration and adopted.
Engrossed Senate Bill No. 445, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D.
Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall,
Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio,
Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger,
Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 445) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had removed from the
Senate third reading calendar,
Engrossed Committee Substitute for
House Bill No. 2701 and
Engrossed House Bill No. 3047.
Senator Chafin also announced that in the same meeting, the
Committee on Rules had returned to the Senate calendar, on third
reading,
Engrossed Committee Substitute for House Bill No. 2660,
under rule number seventeen of the Rules of the Senate.
Senator Chafin also announced that in the same meeting, the
Committee on Rules, in accordance with rule number seventeen of the
Rules of the Senate, had placed consideration of
Engrossed
Committee Substitute for House Bill No. 2309, Engrossed Committee
Substitute for House Bill No. 2412, Engrossed House Bill No. 2485,
Engrossed Committee Substitute for House Bill No. 2528, Engrossed
Committee Substitute for House Bill No. 2531, Engrossed Committee
Substitute for House Bill No. 2723, Engrossed Committee Substitute
for House Bill No. 2788, Engrossed Committee Substitute for House Bill No. 2870, Engrossed Committee Substitute for House Bill No.
2926, Engrossed House Bill No. 2931, Engrossed Committee Substitute
for House Bill No. 2976, Engrossed House Bill No. 2981, Engrossed
House Bill No. 3170 and
Engrossed Committee Substitute for House
Bill No. 3278 preceding consideration of all other bills on today's
third reading calendar; and in the same meeting, had placed
consideration of
Engrossed Committee Substitute for House Bill No.
2535, Engrossed Committee Substitute for House Bill No. 2885 and
Engrossed House Bill No. 3197 preceding consideration of all other
bills on today's second reading calendar.
At the request of Senator Chafin, unanimous consent being
granted, the Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2309, Updating the law
governing the practice of occupational therapy.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2309) 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. 2309--A Bill to amend and
reenact §30-28-1, §30-28-2, §30-28-3, §30-28-4, §30-28-5, §30-28-6,
§30-28-7, §30-28-8, §30-28-9, §30-28-10, §30-28-11, §30-28-12,
§30-28-13, §30-28-14, §30-28-15, §30-28-16, §30-28-17 and §30-28-18
of the Code of West Virginia, 1931, as amended; and to amend said
article by adding thereto three new sections, designated §30-28-19,
§30-28-20 and §30-28-21, all relating to the practice of
occupational therapy; providing definitions; setting forth the
scope of practice of occupational therapy; prohibiting practice or
use of titles unless licensed; removing the requirement for
referral by a physician or other health care practitioner; setting
forth supervision requirements for assistants and aides; clarifying
qualifications to serve as a board member; setting forth powers and
duties of the board; providing exemptions from licensure;
clarifying qualifications for licensure; setting forth examination
requirements; providing for licensure for applicants from other jurisdictions; clarifying conditions of limited permits and
temporary licenses; providing for renewal, suspension and
revocation of licenses; providing for refusal to renew licenses;
providing for reinstatement of lapsed licenses; setting forth
complaint procedures; establishing grounds for disciplinary
actions; providing for hearing procedures and rights of appeal;
providing rulemaking authority; providing for criminal
investigations, proceedings and penalties; establishing that a
single act may constitute evidence of practice; establishing
special, retired, volunteer and inactive licenses; providing civil
immunity for healthcare professionals donating their expertise for
the care and treatment of indigent and needy patients in a clinic
setting; and providing effective dates for certain provisions.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2412, Providing certain
county commissions with authority to regulate the location of
businesses offering exotic entertainment.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2412) 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. 2412--A Bill to amend and
reenact §7-1-3jj of the said Code of West Virginia, 1931, as
amended and to amend said code by adding thereto a new article,
designated §13-2H-1, §13-2H-2, §13-2H-3, 13-2H-4, §13-2H-5, §13-2H-
6, §13-2H-7, §13-2H-8, §13-2H-9, §13-2H-10 and §13-2H-11; and to
amend and reenact §29-22C-27 of said code, all relating to
authority of county Commissions, other political subdivisions and
boards of education, generally; providing county commissions with
authority to regulate the location of businesses offering exotic
entertainment; exceptions thereto and authorizing municipalities,
county commissions and certain boards of education to issue revenue
bonds secured by lottery revenue for the purpose of acquiring or
constructing public projects.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2485, Allowing pharmacy interns to vend
pseudoephedrine and other chemical precursors of methamphetamine.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2485) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. House Bill No. 2485--A Bill to amend and reenact §60A-10-
3, §60A-10-4, §60A-10-5 and 60A-10-8 of the Code of West Virginia,
1931, as amended, all relating to persons who may sell
pseudoephedrine and other chemical precursors of methamphetamine; and clarifying law enforcement may have access to the central
repository.
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. 2528, Updating the
regulation of the practice of forestry.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2528) 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. 2528--A Bill to amend and reenact §30-19-1, §30-19-2,§30-19-3, §30-19-4, §30-19-5, §30-19-6,
§30-19-7, §30-19-8, §30-19-9, §30-19-10 and §30-19-11 of the Code
of West Virginia, 1931, as amended; and to amend said code by
adding thereto six new sections, designated §30-19-12, §30-19-13,
§30-19-14, §30-19-15, §30-19-16, and §30-19-17, all relating to
State Board of Registration of Foresters; prohibiting the use of
the titles registered forester and registered forestry technician;
providing other applicable sections; providing definitions;
providing for board composition; setting forth the powers and
duties of the board; clarifying rule making authority; continuing
a special revenue account; establishing certificate and permit
requirements; providing for licensure for persons licensed in
another state; establishing renewal requirements; requiring display
of license; setting forth grounds for disciplinary actions;
allowing for specific disciplinary actions; providing procedures
for investigation of complaints; providing for judicial review and
appeals of decisions; setting forth hearing and notice
requirements; providing for civil causes of action; providing
criminal penalties; and providing that a single act is evidence of
practice.
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. 2531, Updating the regulation of the practice of barbers and cosmetologists.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2531) 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. 2723, Authorizing liens by
municipalities and requiring administrative procedures for the
assessment and collection of delinquent municipal fees.
On third reading, coming up out of regular order, was reported
by the Clerk.
At the request of Senator Jenkins, unanimous consent was
granted to offer amendments to the bill on third reading.
Thereupon, on motion of Senator Jenkins, the following
amendments to the bill were reported by the Clerk and adopted:
On page six, after section thirteen, by adding thereto a new
section, designated section thirteen-a, to read as follows:
§8-13-13a. Municipal fee requirements.
(a) Without limiting the plenary power and authority of
section thirteen of this article, a municipality shall in the
ordinance providing for special charges for municipal services
pursuant to section thirteen:
(1) Set forth the specific purpose for which the rate, fee or
charge is imposed or increased; and
(2) Require that all collections of the rate, fee or charge
may be expended only for the specific purpose for which the rate,
fee or charge is imposed or increased.
(b) The municipality shall provide a system for budgeting,
accounting, record keeping and for conduct of the transactions of
the municipality respecting the rate, fee or charge collected
pursuant to section thirteen:
Provided, That any such provisions
shall not conflict with article nine, chapter six of this code.
(c) It shall be the duty of the treasurer of the municipality,
or other individual so designated, to collect and account for any
of the collections and that the moneys collected pursuant to said
section thirteen are expended only for the purpose authorize by the ordinance for which the rate, fee or charge is imposed or
increased.
(d) No provision of this section applies to an ordinance in
effect on the effective date of the enactment of this section,
except that this section does apply to an ordinance in effect on
the effective date of this enactment of this section, that is
subsequently amended to increase the rate, fee or charge imposed by
the ordinance.;
And,
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §8-13-13 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §8-13-13a, all to read as
follows:.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2723) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--32.
The nays were: Barnes and Plymale--2.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2723) passed.
On motion of Senator Jenkins, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2723--A Bill to amend and
reenact §8-13-13 of the Code of West Virginia, 1931, as amended;
and to amend said code by adding thereto a new section, designated
§8-13-13a, relating to municipal fees; authorizing municipalities
to file liens for delinquent service fees; requiring municipal
ordinances to have assessment and collection procedures for the
service fees; requiring administrative procedures by municipalities
for imposition of liens; requiring the right to appeal to circuit
court; and requirements for municipalities when they implement or
increase a municipal fee.
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. 2788, Protecting
incapacitated adults from abuse or neglect by a caregiver.
On third reading, coming up out of regular order, with an
unreported Judiciary committee pending, and with the right having been granted on yesterday, Friday, April 10, 2009, for further
amendments to be received on third reading, was reported by the
Clerk.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the bill was withdrawn.
On motion of Senator Kessler, the following amendment to the
bill was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §61-2-29 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto two new sections, designated §61-2-29a and §61-2-29b, all
to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; definitions;
penalties.
(a) The following words, when used in this section and
sections twenty -nine-a and twenty-nine-b of this article, have the
meaning ascribed, unless the context clearly indicates otherwise:
(1) "Abuse" means the intentional infliction of bodily injury
on an incapacitated adult;
(2) "Bodily injury" means substantial physical pain, illness or any impairment of physical condition;
(3) "Caregiver" means any person who has assumed the legal
responsibility or a contractual obligation for the care of an
incapacitated adult, or has voluntarily assumed responsibility for
the care of an incapacitated adult. The term includes a facility
operated by any public or private agency, organization or
institution which provides services to, and has assumed
responsibility for the care of an incapacitated adult.
(4) "Incapacitated adult" means any person eighteen years of
age or older who by reason of advanced age, physical, mental or
other infirmity is unable to carry on the daily activities of life
necessary to sustaining life and reasonable health;
(5) "Neglect" means the unreasonable failure by a caregiver to
provide the care necessary to assure the physical safety or health
of an incapacitated adult; and
(6) "Serious bodily injury" means bodily injury which creates
a substantial risk of death, which causes serious or prolonged
disfigurement, prolonged impairment of health or prolonged loss or
impairment of the function of any bodily organ.
(b) A caregiver who neglects an incapacitated adult or who
knowingly permits another person to neglect an incapacitated adult
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $100 nor more than $500 or confined in jail for not more than one year, or both fined and confined.
(c) A caregiver who abuses an incapacitated adult or who
knowingly permits another person to abuse an incapacitated adult is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $100 nor more than $500 or confined in jail for
not less than ninety days nor more than one year, or both fined and
confined.
(d) A caregiver of an incapacitated adult who intentionally
and maliciously abuses or neglects an incapacitated adult and
causes the incapacitated adult bodily injury is guilty of a felony
and, upon conviction thereof, shall be fined not less than $100 nor
more than $1,000 and imprisoned in a state correctional facility
not less than two years nor more than ten years.
(e) A caregiver of an incapacitated adult who intentionally
and maliciously abuses or neglects an incapacitated adult and
causes the incapacitated adult serious bodily injury is guilty of
a felony and, upon conviction thereof, shall be fined not less than
$1,000 nor more than $5,000 and imprisoned in a state correctional
facility not less than three years nor more than fifteen years.
(f) Nothing in this section or in section twenty-nine-a of
this article shall be construed to mean an adult is abused or
neglected for the sole reason that his or her independent decision
is to rely upon treatment by spiritual means in accordance with the tenets and practices of a recognized church or religious
denomination or organization in lieu of medical treatment.
(g) Nothing in this section or in section twenty-nine-a of
this article shall be construed to mean an incapacitated adult is
abused or neglected if deprivation of life-sustaining treatment or
other act has been provided for by the West Virginia Health Care
Decisions Act, pursuant to article thirty, chapter sixteen of this
code.
§61-2-29a. Death of an incapacitated adult by a caregiver.
(a) A caregiver who intentionally and maliciously neglects an
incapacitated adult causing death is guilty of a felony and, upon
conviction thereof, shall be fined not more than $5000 and be
imprisoned in a state correctional facility for a definite term of
not less than five nor more than fifteen years.
(b) A caregiver of an incapacitated adult who causes the death
of an incapacitated adult by knowingly allowing any other person to
intentionally or maliciously neglect the incapacitated adult is
guilty of a felony and, upon conviction thereof, shall be fined not
more than $5000 and be imprisoned in a state correctional facility
for a definite term of not less than five nor more than fifteen
years.
(c) A caregiver of an incapacitated adult who intentionally
and maliciously abuses an incapacitated adult which causes the death of the incapacitated adult is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility for a definite term of not less than five nor more than
forty years.
(d) A caregiver of an incapacitated adult who causes the death
of an incapacitated adult by knowingly allowing any other person to
intentionally and maliciously abuse an incapacitated adult is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for a definite term of
not less than five nor more than forty years.
(f) The provisions of this section do not apply to any
caregiver or health care provider who, without malice, fails or
refuses, or allows another person to, without malice, fail or
refuse, to supply an incapacitated adult with necessary medical
care when the medical care conflicts with the tenets and practices
of a recognized religious denomination or order of which the
incapacitated adult is an adherent member.
§61-2-29b. Unlawful expenditure or dissipation of funds of an
incapacitated adult by as caregiver.
(a) A caregiver of an incapacitated adult who intentionally
misappropriates or misuses the funds or assets of an incapacitated
adult in the amount of less than $1,000 in value for the
caregiver's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another, is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not more than $1,000
or confined in jail no more than one year, or both fined and
confined.
(b) A caregiver of an incapacitated adult who intentionally
misappropriates or misuses the funds or assets of an incapacitated
adult in the amount of $1,000 or more in value for the caregiver's
personal use, advantage or wrongful profit or to the advantage or
wrongful profit of another, is guilty of a felony and, upon
conviction thereof, shall be fined not more than $5,000 and
imprisoned in a state correctional facility not less than one nor
more than ten years.
(c) A caregiver of an incapacitated adult, who by means of
intentional intimidation, infliction of bodily injury or threats of
the infliction of bodily injury to an incapacitated adult,
willfully misappropriates or misuses for the caregiver's personal
use, advantage or wrongful profit or to the advantage or wrongful
profit of another is guilty of a felony and, upon conviction
thereof, shall be fined not more than $5000 and imprisoned in a
state correctional facility not less than three nor more than
fifteen years.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2788) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2788) passed.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the title of the bill was
withdrawn.
On motion of Senator Kessler, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2788--A Bill to amend and
reenact §61-2-29 of the Code of West Virginia, 1931, as amended;
and to amend said code by adding thereto two new sections,
designated §61-2-29a and §61-2-29b, all relating to protecting
incapacitated adults; providing criminal penalties for the offenses
of abuse or neglect of incapacitated adults; providing definitions; establishing and revising criminal penalties for the unlawful
misappropriation or misuse of funds or assets of an incapacitated
adult by a caregiver; and providing exceptions.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Helmick, unanimous consent being
granted, the Senate returned to the second order of business and
the introduction of guests.
The Senate again proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2870, Extending the deadline
of the buyback provision provided under the Teachers' Defined
Contribution Retirement System to the State Teachers Retirement
System.
On third reading, coming up out of regular order, with the
right having been granted on yesterday, Friday, April 10, 2009, for
amendments to be received on third reading, was reported by the
Clerk.
There being no amendments offered,
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2870) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2870) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2870) 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. 2926, Establishing a procedure for challenging a candidate's qualifications for elected
office.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2926) 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. 2926--A Bill to amend and
reenact §3-5-4 of the Code of West Virginia, 1931, as amended; to
amend said code by adding thereto two new sections, designated
§7-1-1b and §7-1-15, all relating to elections of county
commissioners; providing legislative findings; clarifying residency
requirements; and establishing a procedure for challenging a county commission candidate's qualifications for elected office.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2931, Removing a severance tax on timber
for tax years 2010 through 2013.
On third reading, coming up out of regular order, was reported
by the Clerk.
At the request of Senator Stollings, and by unanimous consent,
further consideration of the bill was deferred until the conclusion
of bills on today's third reading calendar.
Eng. Com. Sub. for House Bill No. 2976, Requiring the State
Fire Commission to promulgate rules pertaining to the State
Building Code.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2976) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2976) 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. 2981, Relating to primary elections and
nominating procedures of third-party candidates.
On third reading, coming up out of regular order, with the
unreported Judiciary committee amendment pending, and with the
right having been granted on Wednesday, April 8, 2009, for further
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 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-7. Filing announcements of candidacies; requirements;
withdrawal of candidates when section applicable.
(a) Any person who is eligible and seeks to hold an office or
political party position to be filled by election in any primary or
general election held under the provisions of this chapter shall
file a certificate of announcement declaring
as a candidate his or
her candidacy for the nomination or election to the office.
(b) The certificate of announcement shall be filed as follows:
(1)
Candidates for the House of delegates or the State Senate
and any other office or political position to be filled by the
voters of more than one county shall file a certificate of
announcement with the Secretary of State
if it be an office or
political position to be filled by the voters of more than one
county;
(2)
Candidates for an officer or political position to be
filled by the voters of a single county or a subdivision of a
county, except for candidates for the House of Delegates or State Senate, shall file a certificate of announcement with the clerk of
the county commission
if it be for an office to be filled by the
voters of a single county or of a subdivision less than a county;
(3)
Candidates for an office to be filled by the voters of a
municipality shall file a certificate of announcement with the
recorder or city clerk
if it be for an office to be filled by the
voters of a municipality.
(c) The certificate of announcement shall be filed with the
proper officer not earlier than the second Monday in January next
preceding the primary election day, and not later than the last
Saturday in January next preceding the primary election day, and
must be received before midnight, eastern standard time, of that
day or, if mailed, shall be postmarked by the United States Postal
Service before that hour.
(d) The certificate of announcement shall be on a form
prescribed by the Secretary of State on which the candidate shall
make a sworn statement before a notary public or other officer
authorized to
give administer oaths, containing the following
information:
(1) The date of the election in which the candidate seeks to
appear on the ballot;
(2) The name of the office sought; the district, if any; and
the division, if any;
(3) The legal name of the candidate and the exact name the
candidate desires to appear on the ballot, subject to limitations
prescribed in section thirteen, article five of this chapter;
(4) The county of residence and a statement that the candidate
is a legally qualified voter of that county; and the magisterial
district of residence for candidates elected from magisterial
districts or under magisterial district limitations;
(5) The specific address designating the location at which the
candidate resides at the time of filing, including number and
street or rural route and box number and city, state and zip code;
(6) For partisan elections, the name of the candidate's
political party and a statement that the candidate: (A) Is a
member of and affiliated with that political party as evidenced by
the candidate's current registration as a voter affiliated with
that party; and (B) has not been registered as a voter affiliated
with any other political party for a period of sixty days before
the date of filing the announcement;
(7) For candidates for delegate to national convention, the
name of the presidential candidate to be listed on the ballot as
the preference of the candidate on the first convention ballot; or
a statement that the candidate prefers to remain "uncommitted";
(8) A statement that the person filing the certificate of
announcement is a candidate for the office in good faith;
(9) The words "subscribed and sworn to before me this ______
day of _____________, 20____" and a space for the signature of the
officer giving the oath.
(e) The Secretary of State or the board of ballot
commissioners, as the case may be, may refuse to certify the
candidacy or may remove the certification of the candidacy upon
receipt of a certified copy of the voter's registration record of
the candidate showing that the candidate was registered as a voter
in a party other than the one named in the certificate of
announcement during the sixty days immediately preceding the filing
of the certificate:
Provided, That unless a signed formal
complaint of violation of this section and the certified copy of
the voter's registration record of the candidate are filed with the
officer receiving that candidate's certificate of announcement no
later than ten days following the close of the filing period, the
candidate
shall may not be refused certification for this reason.
(f) The certificate of announcement shall be subscribed and
sworn to by the candidate before some officer qualified to
administer oaths, who shall certify the same. Any person who
knowingly provides false information on the certificate is guilty
of false swearing and shall be punished in accordance with section
three, article nine of this chapter.
(g) Any candidate for delegate to a national convention may change his or her statement of presidential preference by notifying
the Secretary of State by letter received by the Secretary of State
no later than the third Tuesday following the close of candidate
filing. When the rules of the political party allow each
presidential candidate to approve or reject candidates for delegate
to convention who may appear on the ballot as committed to that
presidential candidate, the presidential candidate or the
candidate's committee on his or her behalf may file a list of
approved or rejected candidates for delegate and the Secretary of
State shall list as "uncommitted" any candidate for delegate who is
disapproved by the presidential candidate.
(h)
No A person
shall may not be a candidate for more than one
office or office division at any election:
Provided, That a
candidate for an office may also be a candidate for President of
the United States, for membership on political party executive
committees or for delegate to a political party national
convention.
(i)
Any A candidate who files a certificate of announcement
for more than one office or division and does not withdraw, as
provided by section eleven, article five of this chapter, from all
but one office prior to the close of the filing period
shall may
not be certified by the Secretary of State or placed on the ballot
for any office by the board of ballot commissioners.
(j) The provisions of this section enacted during the regular
session of the Legislature in the year 1991 shall apply to the
primary election held in the year 1992 and every primary election
held thereafter. The provisions of this section enacted during the
regular session of the Legislature in the year
one thousand nine
hundred ninety-eight 2009 shall apply to the primary election held
in the year
two thousand 2010 and every primary election held
thereafter.
§3-5-23. Certificate nominations; requirements and control;
penalties.
(a) Groups of citizens having no party organization may
nominate candidates
who are not already candidates in the primary
election for public office otherwise than by conventions or primary
elections. In
the that case, the candidate or candidates, jointly
or severally, shall file a
declaration with the Secretary of State
if the office is to be filled by the voters of more than one
county, or with the clerk of the county commission of the county if
the office is to be filled by the voters of one county or political
subdivision thereof; the declaration to be filed at least thirty
days prior to the time of filing the certificate provided by
section twenty-four of this article: Provided, That the deadline
for filing the certificate for persons seeking ballot access as a
candidate for the office of President or Vice President shall be filed not later than the first day of August preceding the general
election. At the time of filing of the declaration each candidate
shall pay the filing fee required by law, and if the declaration is
not so filed or the filing fee so paid, the certificate shall not
be received by the Secretary of State, or clerk of the county
commission, as the case may be nomination certificate in accordance
with the provisions of this section and the provisions of section
twenty-four of this article.
(b) The person or persons soliciting or canvassing signatures
of duly qualified voters on the certificate or certificates, may
solicit or canvass duly registered voters residing within the
county, district or other political division represented by the
office sought, but must first obtain from the clerk of the county
commission credentials which must be exhibited to each voter
canvassed or solicited, which credentials may be in the following
form or effect:
State of West Virginia, County of ..................., ss:
This certifies that the holder of this credential is hereby
authorized to solicit and canvass duly registered voters residing
in .................... (here place the county, district or other
political division represented by the office sought) to sign a
certificate purporting to nominate ............................
(here place name of candidate heading list on certificate) for the office of ............................. and others, at the general
election to be held on ........................., 20......
Given under my hand and the seal of my office this
................. day of ........................, 20......
.................................................
Clerk, county commission of ................... County.
The clerk of each county commission, upon proper application
made as herein provided, shall issue such credentials and shall
keep a record thereof.
(c) The certificate shall be personally signed by duly
registered voters, in their own proper handwriting or by their
marks duly witnessed, who must be residents within the county,
district or other political division represented by the office
sought wherein the canvass or solicitation is made by the person or
persons duly authorized. The signatures need not all be on one
certificate. The number of signatures shall be equal to not less
than
two one percent of the entire vote cast at the last preceding
general election for the office in the state, district, county or
other political division for which the nomination is to be made,
but in no event shall the number be less than twenty-five. The
number of signatures shall be equal to not less than
two one
percent of the entire vote cast at the last preceding general
election for any statewide, congressional or presidential candidate, but in no event shall the number be less than
twenty-five. Where two or more nominations may be made for the
same office, the total of the votes cast at the last preceding
general election for the candidates receiving the highest number of
votes on each ticket for the office shall constitute the entire
vote.
No A signature on a certificate
shall may not be counted
unless it be that of a duly registered voter of the county,
district or other political division represented by the office
sought wherein the certificate was presented.
(d) The certificates shall state the name and residence of
each of the candidates; that he or she is legally qualified to hold
the office; that the subscribers are legally qualified and duly
registered as voters and desire to
vote for the candidates have the
candidates placed on the ballot; and may designate, by not more
than five words, a brief name of the party which the candidates
represent and may adopt a device or emblem to be printed on the
official ballot. All candidates nominated by the signing of the
certificates shall have their names placed on the official ballot
as candidates, as if otherwise nominated under the provisions of
this chapter.
The Secretary of State shall prescribe the form and content of
the nomination certificates to be used for soliciting signatures.
Offices to be filled by the voters of more than one county shall use separate petition forms for the signatures of qualified
voters for each county.
_____Notwithstanding any other provision of this code to the
contrary, a duly registered voter may sign the certificate provided
in this section and may vote for candidates of his or her choosing
in the corresponding primary election.
(e) The Secretary of State, or the clerk of the county
commission, as the case may be, may investigate the validity of the
certificates and the signatures thereon. If, upon investigation,
there is doubt as to the legitimacy and the validity of
certificate, the Secretary of State may ask the Attorney General of
the state, or the clerk of the county commission may ask the
prosecuting attorney of the county, to institute a quo warranto
proceeding against the nominee by certificate to determine his or
her right to the nomination to public office and upon request being
made, the Attorney General or prosecuting attorney shall institute
the quo warranto proceeding. The clerk of th county commission
shall, at the request of the Secretary of State or the clerk of the
circuit court, compare the information from any certificate to the
county voter registration records in order to assist in determining
the validity of any certificates.
(f) In addition to penalties prescribed elsewhere for
violation of this chapter, any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall
be fined not more than $1,000, or confined in jail
for not more
than one year, or both
fined and imprisoned: in the discretion of
the court Provided, That
no a criminal penalty may
not be imposed
upon anyone who signs a nomination certificate and votes in the
primary election held after the date the certificate was signed.
§3-5-24. Filing of nomination certificates; time.
(a) All certificates nominating candidates for office under
the preceding section
including a candidate for the office of
presidential elector shall be filed, in the case of a candidate to
be voted for by the voters of the entire state or by any
subdivision
thereof of the state other than a single county, with
the Secretary of State, and in the case of all candidates for
county and magisterial district offices, including all offices to
be filled by the voters of a single county, with the clerk of the
county commission, not later than
the day preceding the date on
which the primary election is held. After that date no certificate
shall be received by such officers August 1 preceding the general
election.
_____(b) Each candidate shall pay the filing fee required by
section eight of this article, at the time of the filing of the
nomination certificate. If any nomination certificate is not
timely filed or if the filing fee is not timely paid, the certificate may not be received by the Secretary of State, or by
the clerk of the circuit court, as the case may be.
On motion of Senator Kessler, the following amendment to the
Judiciary committee amendment to the bill (Eng. H. B. No. 2981) was
reported by the Clerk and adopted:
On page eleven, section twenty-four, line sixteen, by striking
out the words "circuit court" and inserting in lieu thereof the
words "county commission".
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. 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, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 2981) passed.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the title of the bill was
withdrawn.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3170, Clarifying the filing and review of
the periodic accountings of conservators of incapacitated protected
persons.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3170) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. House Bill No. 3170--A Bill to amend and reenact
§44A-1-7, §44A-1-9, §44A-1-10 and §44A-1-14 of the Code of West
Virginia, 1931, as amended; to amend and reenact §44A-2-1,
§44A-2-5, §44A-2-6, §44A-2-7, §44A-2-12, §44A-2-13, §44A-2-13a,
§44A-2-14 and §44A-2-15 of said code; to amend and reenact §44A-3-
11 of said code; and to amend and reenact §44A-4-1 and §44A-4-5 of
said code, all relating to the West Virginia Guardianship and
Conservatorship Act and clarifying the filing and review of the
periodic accounting os conservators of incapacitated persons
generally; clarifying transfer of venue; clarifying the posting of
bond by conservators; authorizing the West Virginia Supreme Court
of Appeals to coordinate education program and update materials and
forms; expanding temporary protective orders to include freezing
accounts and producing records; increasing filing fee for
guardianship and conservatorship; transferring certain funds to the
Supreme Court of Appeals; using additional fee for review of
reports and accountings by fiduciary commissioner or other person;
clarifying who can access case files; clarifying who is responsible
for proper service; clarifying duties and fees of appointed
counsel; clarifying when limited conservatorship is needed;
clarifying orders of the court and time of entry; authorizing appointment of fiduciary commissioner or other person to review
reports; creating a notice of appointment to be filed with the
clerk of the county commission; increasing temporary guardianships
and conservatorships to six months; clarifying procedure for
subsequent petitions; clarifying time frame for reports and
accountings; increasing penalties for failure to file reports and
accountings; reporting elder abuse; clarifying when appointments
terminate; clarifying duties of guardian and conservator subsequent
to death of protected person; and making technical corrections.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2009, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373, Relating
to PROMISE Scholarship.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §18C-7-8 of the Code of West Virginia, 1931, as amended,
repealed; that said code be amended by adding thereto a new
section, designated §18B-1D-9; that §18B-2A-1 of said code be
amended and reenacted; that §18C-1-1 and §18C-1-5 of said code be
amended and reenacted; and that §18C-7-3, §18C-7-4, §18C-7-5, §18C-
7-6, §18C-7-7 and §18C-7-8 of said code be amended and reenacted,
all to read as follows:
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1D. HIGHER EDUCATION ACCOUNTABILITY.
§18B-1D-9. Commission, Council and institutional governing board
training and development.
(a) The Commission and Council, either jointly or separately,
shall coordinate periodic training and development opportunities
for members of the Commission, Council and institutional governing
boards.
(b) Within six months of beginning service on the Commission,
Council or a board, each new member shall complete at least three
hours of training and development. The training and development
shall address the following topics:
(1) State goals, objectives and priorities for higher education;
(2) The accountability system for higher education set forth
in this article;
(3) The general powers and duties of members; and
(4) Ethical considerations arising from board membership.
(c) Within two years of beginning service on a board, and
within every two years of service thereafter, each board member
shall complete at least six hours of training and development
related to his or her duties.
(d) Annually by July 31, the chair of the Commission, Council
and each governing board shall certify to the Commission or
Council, as appropriate, the number of hours of training and
development that each board member received during the preceding
fiscal year.
(e) If the certification indicates that a board member has not
completed the training and development required by this section,
the Commission or Council, as appropriate, shall send a notice to
the Governor and the Secretary of State that the board member is
disqualified from continued service, and request that the Governor
appoint a replacement for that board member.
(f) The Commission and Council shall report annually by
September 30, to the Legislative Oversight Commission on Education
Accountability on the training and development that members of the Commission and Council and governing boards under their respective
jurisdictions have received during the preceding fiscal year.
(g) As used in this section, "board member" includes a member
of the Commission, Council or a governing board.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-1. Composition of boards; terms and qualifications of
members; vacancies; eligibility for reappointment.
(a) A board of governors is continued at each of the following
institutions: Bluefield State College, Blue Ridge Community and
Technical College,
The Community and Technical College at West
Virginia University Institute of Technology, Concord University,
Eastern West Virginia Community and Technical College, Fairmont
State University, Glenville State College,
Marshall Community and
Technical College, Marshall University, New River Community and
Technical College,
Pierpont Community and Technical College,
Shepherd University, Southern West Virginia Community and Technical
College, West Liberty State College, West Virginia Northern
Community and Technical College, the West Virginia School of
Osteopathic Medicine,
West Virginia State Community and Technical
College, West Virginia State University
and West Virginia
University,
and West Virginia University at Parkersburg.
(b)
Independent community and technical colleges established.
--
Effective July 1, 2008, the board of advisors is abolished and
A board of governors is established for Marshall Community and
Technical College; Pierpont Community and Technical College,
formerly a division of Fairmont State University; The Community and
Technical College at West Virginia University Institute of
Technology; West Virginia State Community and Technical College;
and West Virginia University at Parkersburg. The State of West
Virginia will be served best if the membership of each governing
board is arranged to include: The academic expertise and
institutional experience of faculty members and a student of the
institution governed by the board; the technical or professional
expertise and institutional experience of a classified employee of
the institution governed by the board; awareness and understanding
of the issues facing the institution governed by the board; and the
diverse perspectives that arise from a governing board that is
balanced in terms of gender and varied in terms of race and ethnic
heritage.
_____(c) (A)
In making the initial appointments to these boards of
governors, the Governor may appoint those persons who are lay
members of the boards of advisors by June 30, 2008.
(B) At the end of the initial term, and thereafter an An
appointment to fill a vacancy on the board or reappointment of a
member who is eligible to serve an additional term is made in accordance with the provisions of this section.
(c) (B) The
institutional boards of governors for Marshall
University and West Virginia University consist of sixteen persons.
The boards of governors of the other state institutions of higher
education consist of twelve persons.
(d) Each board of governors includes the following members:
(1) A full-time member of the faculty with the rank of
instructor or above duly elected by the faculty of the respective
institution;
(2)
For the governing boards of institutions under the
jurisdiction of the Commission, an additional full-time member of
the faculty with the rank of instructor or above duly elected by
the faculty of the respective institution and representing a center
of excellence designated in the institutional compact;
_____(3) For the governing boards of institutions under the
jurisdiction of the Council, an additional full-time member of the
faculty in a high-demand technical program consistent with
subdivision six, subsection (b), section three, article one-d of
this chapter, with the rank of instructor or above duly elected by
the faculty of the respective institution;
_____(4) A member of the student body in good academic standing,
enrolled for college credit work and duly elected by the student
body of the respective institution;
(3) (5) A member from the institutional classified employees
duly elected by the classified employees of the respective
institution;
and
(4) (6) For the
institutional board of governors at Marshall
University,
thirteen eleven lay members appointed by the Governor,
by and with the advice and consent of the Senate, pursuant to this
section,
and additionally, the dean of the school of medicine or
his or her designee;
(5) (7) For the
institutional board of governors at West
Virginia University,
twelve nine lay members appointed by the
Governor, by and with the advice and consent of the Senate,
pursuant to this section, and additionally:
(A) The chairperson of the board of Visitors of West Virginia
University Institute of Technology;
(B) A full-time employee representing the extension service at
the institution, selected by the extension service employees; and
_____(C) The dean of the school of medicine or his or her designee;
_____(6) (8) For each
institutional board of governors of the other
state institutions of higher education,
nine eight lay members
appointed by the Governor, by and with the advice and consent of
the Senate, pursuant to this section.
(e) Of the
nine eight members appointed by the Governor, no
more than five may be of the same political party. Of the
thirteen eleven members appointed by the Governor to the governing board of
Marshall University, no more than
eight six may be of the same
political party. Of the
twelve nine members appointed by the
Governor to the governing board of West Virginia University, no
more than
seven five may be of the same political party.
(f) Of the
nine eight members appointed by the Governor, at
least
six four shall be residents of the state. Of the
thirteen
eleven members appointed by the Governor to the governing board of
Marshall University, at least
eight six shall be residents of the
state. Of the
twelve nine members appointed by the Governor to the
governing board of West Virginia University, at least
eight five
shall be residents of the state.
(g) In making lay appointments, the Governor shall:
_____(1) Consider the need for individual skills, knowledge and
experience relevant to governing the institution; the need for
awareness and understanding of institutional problems and
priorities, including those related to research, teaching and
outreach; and the value of gender, racial and ethnic diversity;
_____(2) Seek balance in gender and diversity in the racial and
ethnic characteristics of the lay membership of each board; and
_____(3) Appoint to each governing board the superintendent of a
county board of education from the area served by the institution.
_____(f) (h) The student member serves for a term of one year. Each term begins on the first day of July.
(g) The (i) Each employee and faculty member serves for a term
of two years. Each term begins on the first day of July.
Employee
and faculty members are eligible to succeed themselves for three
additional terms, not to exceed a total of eight consecutive years.
(h) (j) The member representing classified employees serves
for a term of two years. Each term begins on the first day of
July. Members representing classified employees are eligible to
succeed themselves for three additional terms, not to exceed a
total of eight consecutive years.
(i) (k) The appointed lay citizen members serve terms of up to
four years each and are eligible to succeed themselves for no more
than one additional term.
(j) (l) A vacancy in an unexpired term of a member shall be
filled for the unexpired term within thirty days of the occurrence
of the vacancy in the same manner as the original appointment or
election. Except in the case of a vacancy, all elections shall be
held and all appointments shall be made no later than
the thirtieth
day of June
30 preceding the commencement of the term. Each board
of governors shall elect one of its appointed lay members to be
chairperson in June of each year.
except for the fiscal year
beginning July 1, 2008, only, when the board shall elect the
chairperson in July A member may not serve as chairperson for more than four consecutive years.
(k) (m) The appointed members of the
institutional boards of
governors serve staggered terms of up to four years except that
four of the initial appointments to the governing boards of
community and technical colleges
which become that became
independent July 1, 2008, are for terms of two years and five of
the initial appointments are for terms of four years.
(l) (n) A person is ineligible for appointment to membership
on a board of governors of a state institution of higher education
under the following conditions:
(1) For a baccalaureate institution or university, a person is
ineligible for appointment who is an officer, employee or member of
any other board of governors; an employee of any institution of
higher education
in West Virginia; an officer or member of any
political party executive committee; the holder of any other public
office or public employment under the government of this state or
any of its political subdivisions; an employee of any affiliated
research corporation created pursuant to article twelve of this
chapter; an employee of any affiliated foundation organized and
operated in support of one or more state institutions of higher
education; or a member of the Council or Commission. This
subsection does not prevent
the representative representatives from
the
employees, faculty, classified employees, students
, or the superintendent of a county board of education
serving pursuant to
subsection (d) of this section from being members of the governing
boards.
(2) For a community and technical college, a person is
ineligible for appointment who is an officer, employee or member of
any other board of governors; a member of a board of visitors of
any public institution of higher education
in West Virginia; an
employee of any institution of higher education; an officer or
member of any political party executive committee; the holder of
any other public office, other than an elected county office, or
public employment, other than employment by the county board of
education, under the government of this state or any of its
political subdivisions; an employee of any affiliated research
corporation created pursuant to article twelve of this chapter; an
employee of any affiliated foundation organized and operated in
support of one or more state institutions of higher education; or
a member of the Council or Commission. This subsection does not
prevent the representative from the faculty, classified employees,
students, or chairpersons of the boards of advisors from being
members of the governing boards.
(m) (o) Before exercising any authority or performing any
duties as a member of a governing board, each member shall qualify
as such by taking and subscribing to the oath of office prescribed by Section five, Article IV of the Constitution of West Virginia
and the certificate thereof shall be filed with the Secretary of
State.
(n) (p) A member of a governing board appointed by the
Governor may not be removed from office by the Governor except for
official misconduct, incompetence, neglect of duty or gross
immorality and then only in the manner prescribed by law for the
removal of the state elective officers by the Governor.
(o) (q) The president of the institution shall make available
resources of the institution for conducting the business of its
board of governors. The members of the board of governors serve
without compensation, but are reimbursed for all reasonable and
necessary expenses actually incurred in the performance of official
duties under this article upon presentation of an itemized sworn
statement of expenses. All expenses incurred by the board of
governors and the institution under this section are paid from
funds allocated to the institution for that purpose.
CHAPTER 18C. STUDENT LOANS; SCHOLARSHIPS AND STATE AID.
ARTICLE 1. FINANCIAL ASSISTANCE GENERALLY.
§18C-1-1. Legislative findings; purpose; administration generally;
reporting.
(a) The Legislature
finds makes the following findings:
(1)
That Although enrollments in institutions of higher education in this state and throughout the nation continue to
increase at a rapid pace,
there continues to exist an
underdevelopment of West Virginia has not developed sufficiently
the state's human talent and resources because
of the inability of
many able, but needy, students
are not able to finance a higher
education program;
(2)
That the The state can achieve its full economic and
social potential only when the following elements are in place:
(A) Every individual has the opportunity to contribute to the
full extent of his or her capability; and
(B) The state assists in removing
such financial barriers to
the individual's education goals
as may that remain after he or she
has
utilized used all resources and work opportunities available;
(b) The ultimate state goal in providing student financial aid
is to create a culture that values education, to improve the
quality of the
state's workforce and
thereby to enhance the quality
of life for the citizens of West Virginia.
(c) The Vice Chancellor for Administration
jointly employed by
the Commission and the Council has a ministerial duty to
administer, oversee
or and monitor all state and federal
student
loan, scholarship and state student financial aid programs
which
are administered at the state level in accordance with established
guidelines rules under the direction of the Commission and Council and in consultation with the Higher Education Student Financial Aid
Advisory Board.
(d)
Such These programs include, but are not limited to, the
following programs:
pursuant to the provisions of this chapter
(1) The Guaranteed Student Loan Program, which may be
administered by a private nonprofit agency;
(2) The Medical Student Loan Program;
(3) The Underwood-Smith Teacher Scholarship Program;
(4) The Engineering, Science and Technology Scholarship
Program;
(5) The West Virginia Higher Education Grant Program;
(6) The Higher Education Adult Part-Time Student Grant
Program;
(7)
The West Virginia Providing Real Opportunities for
Maximizing In-State Student Excellence (PROMISE) Scholarship
Program;
_____(7) (8) The Higher Education Student Assistance Loan Program
under established pursuant to article twenty-two-d, chapter
eighteen of this code;
(8) (9) The West Virginia College Prepaid Tuition and Savings
Program
under established pursuant to article thirty, chapter
eighteen of this code, which is administered by the State
Treasurer;
(9) (10) The state aid programs for students of optometry,
pursuant to article three of this chapter;
(10) (11) The state aid programs for students of veterinary
medicine pursuant to section six-a, article eleven, chapter
eighteen of this code;
(11) (12) Any reciprocal program and contract program for
student aid
under established pursuant to sections three and four,
article four, chapter eighteen-b of this code;
(12) (13) Any other state-level student aid
program programs
in this code; and
(13) (14) Any federal grant or contract student assistance or
support programs administered at the state level.
(e) Notwithstanding any provision of this chapter to the
contrary, the Vice Chancellor for Administration shall prepare a
single, comprehensive report regarding the implementation of the
financial aid programs identified in subsection (d) of this section
which are administered under his or her supervision. The report
shall be provided to the Commission and the Council and shall be
presented to the Legislative Oversight Commission on Education
Accountability no later than November 30, 2009, and annually
thereafter. The report shall address all financial aid issues for
which reports are required in this code, as well as any findings
and recommendations.
§18C-1-4. Eligibility of commuting students and children of
military personnel for state funded student financial aid,
grants and scholarships.
(a) Notwithstanding any other provision of this code or rule
to the contrary, a student who attended a public or private high
school outside the state is eligible for state funded student
financial aid, grants and scholarships if:
(1) The student meets all other eligibility requirements for
the aid, grant or scholarship; and
either
(2) The student resided in West Virginia while attending high
school in another state, and:
(A) The student resided with his or her parent or legal
guardian who:
(i) Was a resident of this state; and
(ii) Had been a resident of this state for at least two years
immediately preceding the student's attendance at the school;
(B) The student commuted during the school term on a daily
basis from this state to the school;
(C) The student is a dependent of the parent or legal guardian
upon which eligibility is based;
(D) The student has not established domicile outside the
state; and
(E) At the discretion of the State Superintendent of Schools, as defined in section one, article one, chapter eighteen of this
code:
(i) The school is fully accredited in that state to the degree
acceptable to the State Superintendent of Schools; and
(ii) The school's curriculum requirements for graduation are
equivalent to the curriculum requirements for graduation in this
state, or sufficiently similar to those requirements, as determined
by the State Superintendent of Schools.
or
(b) Notwithstanding any other provision of this code or rule
to the contrary, a student who attended a public or private high
school outside the state is eligible for state funded student
financial aid, grants and scholarships if:
_____(1) The student meets all other eligibility requirements for
the aid, grant or scholarship; and
_____(2) The student resided and attended high school in another
state or a United States territory, United States possession or
foreign country and:
(A) The student resided with his or her parent or legal
guardian; and
(B) The student's parent or legal guardian:
(i) Served in the United States armed forces while the student
attended high school in such state, territory, possession or
country;
(ii) Was stationed for military purposes in such state,
territory, possession or country; and
(iii) Maintained legal residence in West Virginia while
stationed in such state, territory, possession or country.
(b) This section may not be construed to alter, amend or
extend any application deadlines or other requirements established
by law or policy.
(c) The provisions of this section expire on the thirtieth day
of June, two thousand ten.
§18C-1-5. Higher Education Student Financial Aid Advisory Board.
(a) The Higher Education Student Financial Aid Advisory Board
is established.
(b) The purpose of the board is to provide financial aid
expertise and policy guidance to the Commission, the Council
the
PROMISE Scholarship Board, and the Vice Chancellor for
Administration
and the Executive Director of the PROMISE
Scholarship Programs on all matters related to federal, state and
private student financial aid resources and programs.
(c) It is the intent of the Legislature that the advisory
board
have the following responsibilities:
(1) Recommend methods to balance the needs of state students
from all levels of financial need and academic ability
by focusing
attention on multiple financial aid programs which meet a variety of state objectives;
(2) Recommend methods for achieving a comprehensive system of
student financial aid
(A) to maximize the return on the state's
investment in
such student financial aid programs by increasing the
skills, qualifications and education achievement of the citizens
receiving the benefits;
and
(B) (3) To establish Recommend methods
for coordinating
administration among to coordinate state-funded student financial
aid programs so that the state achieves the appropriate blend of
student financial aid programs to expand the range of economic
opportunities available to state citizens;
(d) The Advisory Board consists of twelve members as follows:
(1) The chair of the Higher Education Policy Commission or a
designee who is a member of the Commission;
(2) The chair of the West Virginia Council for Community and
Technical College Education or a designee who is a member of the
Council;
(3) The State Superintendent of Schools or a designee;
(4) The Secretary of Education and the Arts or a designee;
(5) The State Treasurer or a designee;
(6) A member of the PROMISE Scholarship Board selected by that
board;
(7) Three financial aid administrators, excluding the president of the West Virginia Association of Student Financial Aid
Administrators.
(A) All financial aid administrators are appointed by the Vice
Chancellor for Administration in consultation with the Commission
and the Council, as appropriate. Of the initial appointments, the
vice chancellor shall appoint one member to a two-year term, one
member to a three-year term and one member to a four-year term.
Thereafter, all terms are for four years.
(B) It is the duty of the Vice Chancellor for Administration
to select financial aid administrators so that the following types
of institutions have representatives serving on the board on a
rotating basis:
(i) State institutions of higher education which are doctoral-
degree granting research universities;
(ii) State institutions of higher education which primarily
grant baccalaureate degrees;
(iii) State institutions of higher education which are
free-standing community and technical colleges;
(iv) State institutions of higher education which are
administratively linked community and technical colleges; and
(v) Private institutions of higher education which are
regionally accredited and located within the state.
(8) Three at-large private sector members who are appointed jointly by the Commission and the Council. Of the initial
appointments, the Commission and the Council jointly shall appoint
one member to a two-year term, one member to a three-year term and
one member to a four-year term. Thereafter, all terms are for four
years.
(A) At-large members shall:
(i) Be representative of the state's business and economic
community;
(ii) Demonstrate knowledge, skill and experience in an
academic, business or financial field; and
(iii) Reside within this state.
(B) An at-large member may not be:
(i) A member of a governing board or institutional board of
advisors of any public or private institution of higher education;
nor
(ii) A publicly elected official or an employee of any state,
county or municipal agency.
(e) No more than two of the at-large members may be from the
same political party and no more than one may reside in any
congressional district.
(1) After the initial appointments, each appointed member
serves a term of four years and may be reappointed upon expiration
of the term.
(2) In the event of a vacancy among appointed members, the
Commission and the Council shall appoint a person for the remainder
of the unexpired term to represent the same interests as those of
the original appointee. A person appointed to fill a vacancy is
eligible for reappointment. Unless a vacancy occurs due to death
or resignation, an appointed member continues to serve until a
successor has been appointed and qualified as provided in this
section.
(4) Recommend ways to improve state-level administration of
financial aid programs for the benefit of students and
institutions;
_____(5) Recommend ways to improve financial aid outreach
activities;
_____(6) Make recommendations, consistent with the nature of the
PROMISE scholarship program as a merit-based student financial aid
program.
_____(7) Recommend rules that align with the goals, objectives and
priorities set forth in section one-a, article one, chapter
eighteen-b of this code and article one-d of said chapter and with
other state and system public policy goals, objectives and
priorities.
_____(d) Advisory board membership. --
_____(1) The advisory board shall consist of seven members selected as follows:
_____(A) Three members appointed by the Commission;
_____(B) Two members appointed by the Council;
_____(C) One member appointed by the West Virginia Independent
Colleges and Universities; and
_____(D) One member appointed by the West Virginia School Counselor
Association.
_____(2) Members appointed by the Commission and the Council shall
possess a broad knowledge of state and federal higher education
student financial aid programs and have experience in administering
these programs, preferably at the campus or system level.
_____(3) The initial appointments of members shall be made as
follows:
_____(A) The Commission shall appoint one member to a one-year
term, one member to a two-year term and one member to a three-year
term;
_____(B) The Council shall appoint one member to a one-year term
and one member to a three-year term;
_____(C) The West Virginia Independent Colleges and Universities
shall appoint one member to a one-year term; and
_____(D) The West Virginia School Counselor Association shall
appoint one member to a two-year term.
_____(4) After the initial terms are completed, appointments shall be made as follows:
_____(A) Members shall be appointed for three-year terms; and
_____(B) Members are eligible to succeed themselves for one
additional consecutive term.
_____(5) The term of each member begins on July 1 of the year in
which the appointment is made and ends on June 30 of the year in
which the appointment expires.
_____(e) The first meeting of the advisory board shall be called by
the Vice Chancellor for Administration, at which time the members
shall elect a chairperson for an initial term ending on July 31,
2010. The chairperson may succeed himself or herself for an
additional one-year term as chairperson. Thereafter, the term of
the chairperson is for one year beginning on August 1 of the year
in which elected and ending on July 31 of the following year. A
member may not serve more than two consecutive terms as
chairperson.
_____(f) In the event of a vacancy, a successor shall be appointed
by the entity which appointed the vacating member for the unexpired
term of the vacating member. A person appointed to fill a vacancy
is eligible for reappointment for one additional consecutive term
unless the time remaining in the unexpired term is less than six
months in which case the person filling the vacancy is eligible for
reappointment for two additional terms.
_____(f) (g) Members of the advisory board serve without
compensation, but are entitled to reimbursement by the Commission
for expenses, including travel expenses, which are actually
incurred by the member in the official conduct of the business of
the advisory board.
Members are reimbursed in a manner consistent
with rules of the Higher Education Policy Commission.
ARTICLE 7. WEST VIRGINIA PROVIDING REAL OPPORTUNITIES FOR
MAXIMIZING IN-STATE STUDENT EXCELLENCE SCHOLARSHIP PROGRAM.
§18C-7-3. Definitions.
(a) General. -- For the purposes of this article, terms have
the meaning ascribed to them in section two, article one of this
chapter, unless the context in which the term is used clearly
requires a different meaning or a specific definition is provided
in this section.
_____(b) Definitions. --
_____(a) (1) "Eligible institution" means:
(1) (A) A state institution of higher education as defined in
section two, article one, chapter eighteen-b of this code;
(2) (B) Alderson-Broaddus College, Appalachian Bible College,
Bethany College, Davis and Elkins College, Mountain State
University, Ohio Valley University, the University of Charleston,
West Virginia Wesleyan College and Wheeling Jesuit University, all
in West Virginia. Any institution listed in this subdivision ceases to be an eligible institution if it
meets either of the
following conditions:
(A) (i) Loses It loses regional accreditation; or
(B) (ii) Changes It changes its status as a private, not-for-
profit institution;
(3) (C) Any for-profit institution that meets the following
criteria:
_____(i) Is regionally accredited through the Higher Learning
Commission of the North Central Association of Colleges and
Schools; and
_____(ii) Has a physical campus in West Virginia at which the
eligible student attends classes;
_____(D) Any other
public or private regionally accredited
institution in this state
public or private, approved by the
board
commission.
_____(b) "Board" means the West Virginia PROMISE Scholarship Board
of the West Virginia PROMISE Scholarship Program as provided for in
section four of this article.
(c) (2) "Tuition" means the quarter, semester or term charges
imposed by
a an eligible state institution of higher education and
,
additionally, all mandatory fees required as a condition of
enrollment by all students.
For the purposes of this article, the
following conditions apply:
_____(A) West Virginia University, Potomac State College and West
Virginia University Institute of Technology are considered separate
institutions for purposes of determining tuition rates; and
_____(B) The tuition amount paid by undergraduate health sciences
students at West Virginia University is considered to be the same
as the amount of tuition paid by all other West Virginia University
undergraduate students.
_____(d) (3) "Enrolled" means either currently enrolled or in the
process of enrolling in an eligible institution.
§18C-7-4. Dissolution of the PROMISE Scholarship Board; transfer
of funds.
(a) The West Virginia PROMISE Scholarship Board is hereby
dissolved.
(b) All funds administered by the former PROMISE Scholarship
Board shall be administered by the Higher Education Policy
Commission.
§18C-7-5. Powers and duties of the West Virginia Higher Education
Policy Commission regarding the PROMISE Scholarship.
(a)
Powers of board Commission. -- In addition to the powers
granted by any other provision of this
article code, the
board
Commission has the powers necessary or convenient to carry out the
purposes and provisions of this article including, but not limited
to, the following express powers:
(1) To adopt and amend bylaws;
(2) (1) To
propose promulgate legislative rules
to the
Commission for promulgation in accordance with the provisions of
article three-a, chapter twenty-nine-a of this code to effectuate
the purposes of this article;
(3) (2) To invest any of
its funds at the board's discretion,
the funds of the West Virginia PROMISE Scholarship Fund established
in section seven of this article with the West Virginia Investment
Management Board in accordance with the provisions of article six,
chapter twelve of this code. Any investments made
under pursuant
to this article shall be made with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
person acting in a like capacity and familiar with such matters
would use in
the conduct of conducting an enterprise of a like
character and with like aims. Fiduciaries shall diversify plan
investments to the extent permitted by law
so as to minimize the
risk of large losses, unless under the circumstances it is clearly
prudent not to do so;
(4) (3) To execute contracts and other necessary instruments;
(5) (4) To impose reasonable requirements for residency for
students applying for the PROMISE scholarship. Except as provided
in section four, article one of this chapter,
the requirements
shall include that an eligible a student
must shall have met the following requirements
to be eligible:
(A) Completed at least one half of the credits required for
high school graduation in a public or private high school in this
state; or
(B) Received instruction in the home or other approved place
pursuant to
Exemption B subsection (c), section one, article eight,
chapter eighteen of this code for the two years immediately
preceding application;
(C) This
subdivision may subsection does not
be construed to
establish residency requirements for matriculation or fee payment
purposes at state institutions of higher education;
(6) (5) To contract for necessary goods and services, to
employ necessary personnel and to engage the services of private
persons for administrative and technical assistance in carrying out
the responsibilities of the scholarship program.
Any services
provided or secured to implement or administer the provisions of
this section remain under the direction and authority of the Vice
Chancellor for Administration;
_____(A) The board is encouraged to utilize the employees of the
Vice Chancellor for Administration to provide administrative and
technical assistance.
(B) Any services provided for the board by such employees
remain under the direction and authority of the vice chancellor.
(7) (6) To solicit and accept gifts, including bequests or
other testamentary gifts made by will, trust or other disposition,
grants, loans and other aid from any source and to participate in
any federal, state or local governmental programs in carrying out
the purposes of this article;
(8) (7) To define the terms and conditions under which
scholarships are awarded with the minimum requirements being set
forth in section six of this article; and
(9) (8) To establish other policies, procedures and criteria
necessary to implement and administer the provisions of this
article.
(b)
Duties of board Commission. -- In addition to any duty
required by any other provision of this
article code, the
board
Commission has the following responsibilities:
(1) To operate the program in a fiscally responsible manner
and within the limits of available funds;
(2) To operate the
PROMISE Scholarship program as a merit-
based program;
(3) To
raise adjust academic eligibility requirements
before
taking any other steps to limit student awards should projections
indicate that available funds will not be sufficient to cover
future costs; and
(4) To maintain contact with graduates who have received PROMISE scholarships and to provide a written statement of intent
to recipients who are selected to receive a PROMISE scholarship
after the effective date of this section notifying them that
acceptance of the scholarship entails a responsibility to supply
the following:
(A) Information requested by the
board Commission to determine
the number and percentage of recipients who
shall:
(i) (i) Continue to live in West Virginia after graduation;
(ii) (ii) Obtain employment in West Virginia after graduation;
and
(iii) (iii) Enroll in post-graduate education programs;
and
(B) For PROMISE scholars who enroll in post-graduate education
programs, the name of the state in which each post-graduate
institution is located; and
(B) (C) Such Any other relevant information
as the
board may
Commission reasonably
request requests to implement the provisions
of this subdivision;
(5) To analyze
and use the data collected pursuant to
subdivision (4) of this subsection
to, and:
(A) Report the findings
annually to the
Joint Standing
Committee on Education by the tenth day of January, two thousand
seven and annually thereafter Legislative Oversight Commission on
Education Accountability; and
(B) Make
annual recommendations
annually to the
Joint Standing
Committee on Education Legislative Oversight Commission on
Education Accountability regarding any actions the
board Commission
considers necessary or expedient to encourage PROMISE recipients to
live and work in the state after graduation.
§18C-7-6. PROMISE scholarship program requirements; legislative
rule.
(a) A PROMISE scholarship annual award
meets shall meet the
following conditions:
(1) Equals but does not exceed the cost of tuition for a
student enrolled in a state institution of higher education;
(2) Equals an amount determined by the board, but not to
exceed the cost of tuition at state institutions of higher
education, for a student enrolled in an eligible institution that
is not a state institution of higher education;
(1) For a student enrolled in a state institution of higher
education, the annual award is equal to the lesser of the cost of
tuition or $4,750, except that a student who was awarded and used
a PROMISE scholarship annual award prior to January 1, 2010, shall
continue to receive the annual award calculated under the same
terms and conditions that applied on the day before the effective
date of this article;
_____(2) For a student enrolled in an eligible institution other than a state institution of higher education, the annual award is
equal to, but may not exceed, the lesser of the cost of tuition or
$4,750, except that a student who was awarded and used a PROMISE
scholarship annual award prior to January 1, 2010, shall continue
to receive the annual award calculated under the same terms and
conditions that applied on the day before the effective date of
this article;
_____(3) The annual award may exceed $4,750, if the Commission
determines that adequate funds are available, but in any case, may
not be greater than the actual cost of tuition;
_____(3) Is (4) The annual award shall be used by an eligible
institution to supplement, but
may not
to supplant, a tuition and
fee waiver for which the individual is eligible pursuant to section
five, six-a,
or seven
or seven-b, article ten, chapter eighteen-b
of this code.
(b) The total cost of all scholarships awarded by the
board
Commission in any year may not exceed the amount of funds available
to the
board Commission during that fiscal year.
(c)
An individual shall meet the following conditions in In
order to be eligible to receive a PROMISE scholarship award
an
individual shall:
(1) Submit a scholarship award application to the
board
Commission:
(A) Within two years of graduating from high school or within
two years of acquiring a general equivalency degree if provided
instruction in the home or other approved place pursuant to
Exemption B subsection (c), section one, article eight, chapter
eighteen of this code; or
(B) Within seven years of initially entering military service,
and within one year of discharge from
such military service, if the
individual has entered the United States armed services within two
years after graduating from high school;
(2) Apply for and submit
to the board a Free Application for
Federal Student Aid;
(3) Maintain a grade point average of at least 3.0 on a 4.0
grading scale in the required core and elective course work
necessary to prepare students for success in post-secondary
education at the associate and baccalaureate degree levels as
determined by the
board Commission, if the individual has completed
not more than one semester or term at an institution of higher
education, excluding credits earned in advanced placement,
international baccalaureate, dual credit and comparable courses
while the student is enrolled in high school;
(4) Maintain appropriate academic progress toward the
completion of a degree at the undergraduate education level as
determined by the
board Commission if the individual has completed more than one semester or term at an institution of higher
education, excluding credits earned in advanced placement,
international baccalaureate, dual credit and comparable courses
while the student is enrolled in high school;
(5)
Be a United States citizen or legal immigrant to the
United States;
_____(6) Meet additional objective standards
as the
board
Commission considers necessary to promote academic excellence and
to maintain the financial stability of the fund;
and
_____(6) (7) Enroll in an eligible institution.
Any A student
enrolled at an eligible institution who receives a PROMISE
scholarship award may retain and renew the scholarship to complete
his or her undergraduate education at that institution or any other
eligible institution
under the following circumstances:
(A)
If the The institution at which the student is enrolled
loses its status as an eligible institution pursuant to the
provisions of
subdivision (2), subsection (a), section three
subdivision (1), subsection (b) of this article; and
(B)
If The student meets all other renewal requirements of
this code and of
board Commission rules.
(7) (d) It is the intent of the Legislature that the
board
Commission shall strongly encourage prospective candidates for the
PROMISE scholarship to perform at least twenty hours of unpaid community service while in high school to help prepare them for
success in
post-graduate post-secondary education. The community
service may include, but is not limited to, participation with
nonprofit, governmental or community-based organizations designed
to with any or all of the following purposes:
(A) (1) Improve Improving the quality of life for community
residents;
(B) (2) Meet Meeting the needs of community residents; or
(C) (3) Foster Fostering civic responsibility.
(d) The board shall recommend a legislative rule to the
Commission to implement the provisions of this article.
(e) The Commission shall promulgate a legislative rule in
accordance with the provisions of article three-a, chapter twenty-
nine-a of this code.
(1) The rule shall include at least the following provisions:
(A) The amount of a PROMISE scholarship award may not exceed
the cost of tuition at state institutions of higher education;
(B) (A) The amount of a PROMISE scholarship award in
combination with aid from all other sources may not exceed the cost
of education at the institution the recipient is attending. This
provision does not apply to members of the West Virginia National
Guard, recipients of an Underwood-Smith teacher scholarship and
recipients of a West Virginia engineering, science and technology scholarship;
(C) (B) Additional objective standards
as the
board Commission
considers necessary:
(i) To promote academic excellence;
(ii) To maintain the financial stability of the fund; and
(iii) To operate the program within the limits of available
funds.
(D) (C) Provisions for making the highest and best use of the
PROMISE Scholarship Program in conjunction with the
West Virginia
Prepaid Tuition Trust Act West Virginia College Prepaid Tuition and
Savings Program Act set forth in article thirty, chapter eighteen
of this code;
(E) (D) A provision defining the relationship of PROMISE
scholarship awards to all other sources of student financial aid to
ensure maximum coordination. The provision shall include the
following:
(i) Methods to maximize student eligibility for federal
student financial aid;
(ii) A requirement that PROMISE scholarship awards not
supplant tuition and fee waivers; and
(iii) Clarification of the relationship between the PROMISE
Scholarship Program, tuition savings plans and other state-funded
student financial aid programs;
(F) (E) A method for awarding scholarships within the limits
of available appropriations, including circumstances when program
funds are not sufficient to provide awards to all eligible
applicants. The
board Commission may not
utilize use any of the
following methods:
(i)
Making the Providing for an annual PROMISE scholarship
award
for an amount that is less than the
cost of full tuition for
a student enrolled in a state institution of higher education
amounts provided for in this section; or
(ii) Eliminating any current recipient from eligibility;
and
_____(G) (F) A method for applicants to appeal determinations of
eligibility and renewal.
(2) The rule may provide for or require the following at the
board's Commission's discretion:
(A) Requiring repayment of the amount of the scholarship, in
whole or in part, if a scholarship recipient chooses to work
outside the state after graduation.
Provided, That The rule may
not require a recipient to repay a scholarship, in whole or in
part, unless the prospective recipient has been informed of this
requirement in writing before initial acceptance of the PROMISE
scholarship award;
(B) Targeting a portion of the scholarship funds to be used
for applicants enrolled in an engineering, science, technology or other designated program;
(C) Determining what other sources of funding for higher
education are to be deducted from the PROMISE scholarship award;
and
(D) Providing additional criteria as determined by the
board
Commission.
(3) The Legislature finds that an emergency exists and,
therefore, the
board Commission shall file a rule to implement the
provisions of this section as an emergency rule pursuant to the
provisions of article three-a, chapter twenty-nine-a of this code.
The rule is subject to the prior approval of the Legislative
Oversight Commission on Education Accountability.
(4) Any rule promulgated by the Commission pursuant to
previous enactments of this article in effect on the effective date
of the amendment and reenactment of this article in the year 2009
remains in effect until amended, modified, repealed or replaced by
the Commission.
§18C-7-7. West Virginia PROMISE Scholarship Fund continued.
(a) The special revenue fund in the State Treasury designated
and known as the PROMISE Scholarship Fund is continued. The fund
consists of
moneys from the following sources:
(1) All appropriations to the fund from the West Virginia
Lottery, video lottery and taxes on amusement devices;
(2) All appropriations by the Legislature for the PROMISE
Scholarship Fund;
(3) Any gifts, grants or contributions received for the
PROMISE Scholarship Program; and
(4) All interest or other income earned from investment of the
fund.
(b) The allocations to the fund are subject to appropriation
by the Legislature. Nothing in this article requires any specific
level of funding by the Legislature nor guarantees nor entitles any
individual to any benefit or grant of funds.
(c) For the fiscal year beginning July 1, 2006, it is the
intent of the Legislature that the aggregate of the amount of
moneys transferred to the fund pursuant to section eighteen-a,
article twenty-two, chapter twenty-nine of this code, and
such any
other amounts of public moneys that may be transferred to the fund
by appropriation of the Legislature, shall equal, but may not
exceed, $40 million. For each fiscal year thereafter until and
including the fiscal year ending June 30,
2011 2009, it is the
intent of the Legislature that this aggregate be an amount two
percent greater than the aggregate established by this subsection
for the prior fiscal year.
For the fiscal year beginning July 1,
2011, and in each fiscal year thereafter, it is the intent of the
Legislature that this aggregate not exceed the aggregate established by this subsection for the fiscal year beginning July
1, 2011. For the fiscal year beginning July 1, 2009, it is the
intent of the Legislature that the aggregate of the amount of
moneys transferred to the fund pursuant to section eighteen-a,
article twenty-two, chapter twenty-nine of this code and any other
amounts of public moneys that may be transferred to the fund by
appropriation of the Legislature, shall equal $45 million. For the
fiscal year beginning July 1, 2010, it is the intent of the
Legislature that the aggregate of the amount of moneys transferred
to the fund shall equal $48 million. For the fiscal year beginning
July 1, 2011, and every fiscal year thereafter, it is the intent of
the Legislature that the aggregate of the amount of moneys
transferred to the fund shall equal $47,500,000.
(d) The
board Commission may expend the moneys in the fund to
implement the provisions of this article.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373--A Bill
to repeal §18C-7-8 of the Code of West Virginia, 1931, as amended;
to amend said code by adding thereto a new section, designated
§18B-1D-9; to amend and reenact §18B-2A-1 of said code; to amend
and reenact §18C-1-1 and §18C-1-5 of said code; and to amend and reenact §18C-7-3, §18C-7-4, §18C-7-5, §18C-7-6, §18C-7-7 and §18C-
7-8 of said code, all relating to higher education in West Virginia
generally; requiring training and development opportunities for
members of the Higher Education Policy Commission, the Council for
Community and Technical College Education and the institutional
governing boards; revising criteria for membership of the
institutional governing boards and the manner in which the
membership is determined; requiring the governor to consider
certain factors and seek a certain balance when appointing members;
reconstituting the Higher Education Student Financial Aid Advisory
Board; providing for member appointments; setting forth member
qualifications and terms of office; setting forth duties of the
advisory board; changing conditions upon which students who
attended high school outside the state may be eligible for
financial aid; establishing tuition rate for all West Virginia
University graduate students; dissolving the PROMISE Scholarship
Board and transferring its powers and duties to the Higher
Education Policy Commission and under the administration of the
Vice Chancellor for Administration; requiring the vice chancellor
to submit an annual report; defining terms; authorizing investment
of certain funds with the West Virginia Investment Management
Board; increasing by two percent the aggregate percentage amount
the Legislature intends to allocate to PROMISE scholarship program for a certain fiscal year; setting a minimum amount for the PROMISE
scholarship annual award and authorizing the Higher Education
Policy Commission to provide annual awards greater than the minimum
under certain circumstances if funds are available; increasing
flexibility for adjusting requirements to receive a PROMISE
scholarship; providing conditions under which PROMISE scholarship
annual awards are continued to certain students under certain
circumstances; establishing citizenship and immigrant conditions of
eligibility for a PROMISE scholarship; clarifying that a PROMISE
scholarship may supplement certain tuition and fee waivers; and
authorizing the Higher Education Policy Commission to promulgate
rules.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for Com.
Sub. for S. B. No. 373) and requested the House of Delegates to
recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended 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 Com. Sub. for Senate Bill No. 414, Relating to Pharmaceutical Cost Management Council and health care delivery
systems.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §5-16-7b of the Code of West Virginia,1931, as amended,
be repealed; that §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5,
§5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-
3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17 of
said code be repealed; that §5F-2-2 of said code be amended and
reenacted; that §16-29H-1, §16-29H-2, §16-29H-3, §16-29H-4 and §16-
29H-5 of said code be amended and reenacted; and that said code be
amended by adding thereto five new sections, designated §16-29H-6,
§16-29H-7, §16-29H-8, §16-29H-9 and §16-29-10, all to read as
follows
CHAPTER 5F. ORGANIZATION OF THE EXECUTIVE
BRANCH OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the contrary, the secretary of each department shall have plenary power
and authority within and for the department to:
(1) Employ and discharge within the office of the secretary
employees as may be necessary to carry out the functions of the
secretary, which employees shall serve at the will and pleasure of
the secretary;
(2) Cause the various agencies and boards to be operated
effectively, efficiently and economically and develop goals,
objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the
department;
(3) Eliminate or consolidate positions, other than positions
of administrators or positions of board members and name a person
to fill more than one position;
(4) Transfer permanent state employees between departments in
accordance with the provisions of section seven of this article;
(5) Delegate, assign, transfer or combine responsibilities or
duties to or among employees, other than administrators or board
members;
(6) Reorganize internal functions or operations;
(7) Formulate comprehensive budgets for consideration by the
Governor and transfer within the department funds appropriated to
the various agencies of the department which are not expended due to cost savings resulting from the implementation of the provisions
of this chapter:
Provided, That no more than twenty-five percent
of the funds appropriated to any one agency or board may be
transferred to other agencies or boards within the department:
Provided, however, That no funds may be transferred from a special
revenue account, dedicated account, capital expenditure account or
any other account or funds specifically exempted by the Legislature
from transfer, except that the use of appropriations from the State
Road Fund transferred to the office of the Secretary of the
Department of Transportation is not a use other than the purpose
for which the funds were dedicated and is permitted:
Provided
further, That if the Legislature by subsequent enactment
consolidates agencies, boards or functions, the appropriate
secretary may transfer the funds formerly appropriated to the
agency, board or function in order to implement consolidation. The
authority to transfer funds under this section shall expire on
thirtieth day of June, two thousand five; June 30, 2010;
(8) Enter into contracts or agreements requiring the
expenditure of public funds and authorize the expenditure or
obligation of public funds as authorized by law:
Provided, That
the powers granted to the secretary to enter into contracts or
agreements and to make expenditures or obligations of public funds
under this provision shall not exceed or be interpreted as authority to exceed the powers granted by the Legislature to the
various commissioners, directors or board members of the various
departments, agencies or boards that comprise and are incorporated
into each secretary's department under this chapter;
(9) Acquire by lease or purchase property of whatever kind or
character and convey or dispose of any property of whatever kind or
character as authorized by law:
Provided, That the powers granted
to the secretary to lease, purchase, convey or dispose of such
property shall be exercised in accordance with the provisions of
articles three, ten and eleven, chapter five-a of this code:
Provided, however, That the powers granted to the secretary to
lease, purchase, convey or dispose of such property shall not
exceed or be interpreted as authority to exceed the powers granted
by the Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
under this chapter;
(10) Conduct internal audits;
(11) Supervise internal management;
(12) Promulgate rules, as defined in section two, article one,
chapter twenty-nine-a of this code, to implement and make effective
the powers, authority and duties granted and imposed by the
provisions of this chapter in accordance with the provisions of chapter twenty-nine-a of this code;
(13) Grant or withhold written consent to the proposal of any
rule, as defined in section two, article one, chapter twenty-nine-a
of this code, by any administrator, agency or board within the
department. Without written consent, no proposal for a rule shall
have any force or effect;
(14) Delegate to administrators the duties of the secretary as
the secretary may deem appropriate, from time to time, to
facilitate execution of the powers, authority and duties delegated
to the secretary; and
(15) Take any other action involving or relating to internal
management not otherwise prohibited by law.
(b) The secretaries of the departments hereby created shall
engage in a comprehensive review of the practices, policies and
operations of the agencies and boards within their departments to
determine the feasibility of cost reductions and increased
efficiency which may be achieved therein, including, but not
limited to, the following:
(1) The elimination, reduction and restriction of the state's
vehicle or other transportation fleet;
(2) The elimination, reduction and restriction of state
government publications, including annual reports, informational
materials and promotional materials;
(3) The termination or rectification of terms contained in
lease agreements between the state and private sector for offices,
equipment and services;
(4) The adoption of appropriate systems for accounting,
including consideration of an accrual basis financial accounting
and reporting system;
(5) The adoption of revised procurement practices to
facilitate cost-effective purchasing procedures, including
consideration of means by which domestic businesses may be assisted
to compete for state government purchases; and
(6) The computerization of the functions of the state agencies
and boards.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, none of the powers granted to the secretaries
herein shall be exercised by the secretary if to do so would
violate or be inconsistent with the provisions of any federal law
or regulation, any federal-state program or federally delegated
program or jeopardize the approval, existence or funding of any
program.
(d) The layoff and recall rights of employees within the
classified service of the state as provided in subsections (5) and
(6), section ten, article six, chapter twenty-nine of this code
shall be limited to the organizational unit within the agency or board and within the occupational group established by the
classification and compensation plan for the classified service of
the agency or board in which the employee was employed prior to the
agency or board's transfer or incorporation into the department:
Provided, That the employee shall possess the qualifications
established for the job class. The duration of recall rights
provided in this subsection shall be limited to two years or the
length of tenure, whichever is less. Except as provided in this
subsection, nothing contained in this section shall be construed to
abridge the rights of employees within the classified service of
the state as provided in sections ten and ten-a, article six,
chapter twenty-nine of this code.
(e) Notwithstanding any other provision of this code to the
contrary, the secretary of each department with authority over
programs which
have an impact on the delivery of health care
services in the state or are payors for health care services or are
payors for prescription drugs, including, but not limited to, the
Public Employees Insurance Agency,
the Department of Health and
Human Resources, the Bureau for Senior Services, the Children's
Health Insurance Program,
the Health Care Authority, the Office of
the Insurance Commissioner, the Division of Corrections, the
Division of Juvenile Services, the Regional Jail and Correctional
Facility Authority,
the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions
including nursing homes and veterans' homes, the Division of
Rehabilitation, public health departments, the Bureau for Medical
Services and other programs,
which have an impact on the delivery
of health care services or are payors for health care services or
that are payors for prescription drugs,
in West Virginia shall
cooperate with the
Office of the Pharmaceutical Advocate Governor's
Office of Health Enhancement and Lifestyle Planning established
pursuant to
section four, article sixteen-d, chapter five article
twenty-nine-h, chapter sixteen of this code for the purpose of
purchasing prescription drugs improving the health care delivery
services in West Virginia for any program over which they have
authority.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 29H. GOVERNOR'S OFFICE OF HEALTH ENHANCEMENT AND LIFESTYLE
PLANNING.
§16-29H-1. Legislative findings.
The Legislature finds:
(1) Rising health care costs have a significant impact not
only on the citizens of the state but also the state's ability to
develop a competitive advantage in seeking new business. Reducing
this level of costs and developing new, more effective options for
reducing growth in health care spending is essential to ensuring the health of West Virginia's citizens and to the advancement of a
well developed workforce.
(2) West Virginia spends thirteen percent more per person on
health care than the national average. Moreover, the growth in
spending in the state is higher than the national average. These
rising costs have contributed to fewer employers, particularly
small employers, offering health insurance as a benefit of
employment. This is an occurrence that may further drive up health
care costs throughout the state.
(3) West Virginia is among the highest in such health care
indicators as childhood and adult obesity which provides a direct
connection to higher rates of diabetes, hypertension,
hyperlipidemia, heart disease, pulmonary disorders and comorbid
depression experienced in West Virginia. Nearly one third of the
rise in health care costs can be attributed to the rise in obesity
throughout the state and the nation. Additionally, high rates of
chronic illness represents a substantial reduction in worker
productivity.
(4) To address the concerns over rising costs, West Virginia
must change the way it pays for care, shifting the focus to primary
care and prevention. Seventy-five percent of health care spending
is associated with treatment of chronic diseases requiring on going
medical management over time. Patients with chronic diseases, however, only receive fifty-six percent of the clinically
recommended preventive services. This lack of preventive services
creates a seventy-five percent increase in health care spending.
(5) Health care delivery in West Virginia needs to be
modernized. This will require substantial changes in how health
care is delivered to the chronically ill, an increase in
information technology tools used for patient management, a
simplification of health care processing and a broad overhaul in
our perceptions of wellness and prevention.
(6) West Virginians must be challenged to engage in a more
healthy lifestyle, they must alter the focus of their perception of
health care from one of episodic care to prevention and wellness
efforts. Equally as important, is that healthcare providers must
be engaged with their patients and in the process of delivery of
health care and strive for continuous improvement of the quality of
care they provide.
(7) West Virginia must develop a health care system that is
sufficient to meet the needs of its citizens; equitable, fair and
sustainable but that is also accountable for quality, access, cost
containment and service delivery.
§16-29H-2. Creation of the Governor's Office of Health Enhancement
and Lifestyle Planning; duties.
(a) There is created the Governor's Office of Health Enhancement and Lifestyle Planning. The purpose of this office is
to coordinate all state health care system reform initiatives among
executive branch agencies, departments, bureaus and offices. The
office shall be under the direct supervision of the director, who
is responsible for the exercise of the duties and powers assigned
to the office under the provisions of this article.
(b) All state agencies that have responsibility for the
development, improvement and implementation of any aspect of West
Virginia's health care system, including, but not limited to, the
Public Employees Insurance Agency, the Bureau for Senior Services,
the Children's Health Insurance Program, Office of the
Pharmaceutical Advocate, the Health Care Authority, the West
Virginia Health Information Network, the Insurance Commission, the
Department of Health and Human Resources, state colleges and
universities, the Pharmaceutical Advocate, public hospitals, state
or local institutions such as nursing homes, veteran's homes, the
Division of Rehabilitation and public health departments, shall
cooperate with the Governor's Office of Health Enhancement and
Lifestyle Planning established for the purpose of coordinating the
health care delivery system in West Virginia for any program over
which they have authority.
§16-29H-3. Director of the Governor's Office of Health Enhancement
and Lifestyle Planning appointment; qualifications; oath; salary.
(a) The office is under the supervision of the director. The
director is the executive and administrative head of the office and
shall be appointed by the Governor with advice and consent of the
Senate. The director shall be qualified by training and experience
to direct the operations of the Governor's Office of Health
Enhancement and Lifestyle Planning and serves at the will and
pleasure of the Governor. The duties of the director include, but
are not limited to, the management and administration of the
Governor's Office of Health Enhancement and Lifestyle Planning.
(b) The director:
(1) Serves on a full time basis and may not be engaged in any
other profession or occupation;
(2) May not hold political office in the government of the
state either by election or appointment while serving as the
director;
(3) Shall be a citizen of the United States and West Virginia
and become a resident of the state within ninety days of
appointment;
(4) Is entitled to receive an annual salary as set by the
Legislature subject to appropriation; and
(5) Is ineligible for civil service coverage as provided in
section four, article six, chapter twenty-nine of this code. Any other employee hired by the director is also ineligible for civil
service coverage.
(c) Before entering upon the discharge of the duties as
director, the director shall take and subscribe to the oath of
office prescribed in section five, article IV of the Constitution
of West Virginia. The executed oath shall be filed in the Office
of the Secretary of State.
§16-29H-4. Director of the Governor's Office of Health Enhancement
and Lifestyle; powers and duties, hiring of staff.
(a) The director has the power and authority to:
(1) Purchase or enter into contracts or agreements as
necessary to achieve the purposes of this article;
(2) File suit;
(3) At the request of a state agency that has responsibility
for any aspect of West Virginia's health care system, evaluate and
advise the agency on ways that can better achieve the purposes of
this article. In addition, the director may determine in
collaboration with the agencies responsible for health systems in
the state to improve efficiencies and reduce costs through inter-
agency agreements to enter into contracts. Contracts may only be
renegotiated if there is a demonstrated and measurable cost savings
for the state and the agencies are in agreement;
(4) Enter into contracts with public or private entities in this state, governments of other states and jurisdictions and their
individual departments, agencies, authorities, institutions,
programs, quasi-public corporations and political subdivisions in
the event that such contracts would be a collaboration between the
health system agencies involved and agreed to by all parties;
(5) Participate in regional or multistate purchasing alliances
or consortia, formed for the purpose of pooling the combined
purchasing power of the individual members and increasing
purchasing power with agreement of all participating parties and
financially advantageous to each party. This power does not affect
individual state agencies from participating in any purchasing
alliance or consortium as established in their own program. If the
director participates in any cooperative purchasing agreement,
alliance or consortium which is comprised of at least five million
covered lives, the cooperative purchasing agreement, alliance or
consortium may employ an agreed-upon pricing schedule that, in the
judgment of the director and the other participating entities, will
maximize savings to the broadest percentage of the population of
this state:
Provided, That any pharmaceutical manufacturer that
deals with such cooperative purchasing agreements, alliances or
consortia may request a waiver from such pricing schedule in West
Virginia or any other participating state for a particular drug
that should be granted if the director finds that the development, production, distribution costs, other reasonable costs and
reasonable profits excluding marketing, advertising and promotional
costs not essential to bringing the product to market are more than
the schedule price of the pharmaceutical or in those cases in which
the pharmaceutical in question has a sole source. The director
shall determine fees to be paid by the applicant at the time of the
waiver application and proof required to be submitted at the time
of the waiver request to support the validity of the request;
(6) Make recommendations to the Governor and the Legislature
regarding strategies that could more effectively make the health
care delivery system in West Virginia more timely, more patient-
centered, provide greater patient access and quality of service and
control health care costs;
(7) Develop and implement other programs, projects and
initiatives to achieve the purposes of this article, including
initiating, evaluating and promoting primary-care medical homes
pursuant to section six of this article and other strategies that
result in greater access to health care, assure greater quality of
care and result in reduced costs for health care delivery services
to the citizens of West Virginia:
Provided, That interagency
agreements shall be utilized for services that would be
duplicative;
(8) Work with the Health Care Authority to ensure that the Preventive Health Care Pilots are implementing a primary-care
medical home model as defined in this article;
(9) Develop a five-year strategic plan as set forth in section
six of this article for implementation of West Virginia's health
care system reform initiatives together with recommendations for
administration, policy, legislative rules or legislation. This
plan shall be reported to the Joint Committee on Government and
Finance, the Legislative Oversight Commission on Health and Human
Resources Accountability and the Governor on or before December 31,
2009;
(10) Provide professional development on emerging health care
policies and contracting for health care services; and
(11) Evaluate and offer, if resources become available, a
grant program for local communities to encourage healthy lifestyles
in collaboration with the Healthy Lifestyles Coalition.
(b) The director shall employ such professional, clerical,
technical and administrative personnel as may be necessary to carry
out the provisions of this article and with consideration of the
appropriation provided by the Legislature.
(c) The director shall prepare and submit to the Governor and
the Legislature annual proposed appropriations for the next fiscal
year which shall include sums necessary to support the activities
of the Governor's Office of Health Enhancement and Lifestyle Planning.
(d) The director shall submit an annual report separate from
the strategic plan by January 1 of each year to the Governor and
the Legislative Oversight Commission on Health and Human Resources
Accountability on the condition, operation and functioning of the
Governor's Office of Health Enhancement and Lifestyle Planning.
(e) The director shall supervise the fiscal management and
responsibilities of the Governor's Office of Health Enhancement and
Lifestyle Planning.
(f) The director shall keep an accurate and complete record of
all the Governor's Office of Health Enhancement and Lifestyle
Planning proceedings, records and file all bonds and contracts and
assume responsibility for the custody and preservation of all
papers and records of the office.
(g) The director may convene a series of focus groups, polls
and any other available research tool to determine issues of
importance to all stakeholders after a thorough review of available
research currently in existence. The development of these survey
tools shall be done in conjunction with employers, health care
providers and consumers. Data received from this research should
be easily available to the public and utilized in the development
and design of health benefit programs. The data should also be
accessible to providers to allow them to meet the needs of the health care market.
(h) The director may propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code to accomplish the goals and purposes of this
article.
§16-29H-5. Creation of the Health Enhancement and Lifestyle
Planning Advisory Council.
(a) The Health Enhancement and Lifestyle Planning Advisory
Council is hereby created. The advisory council is an independent,
self-sustaining council that has the powers and duties specified in
this article.
(b) The advisory council is a part-time council whose members
perform such duties as specified in this article. The ministerial
duties of the advisory council shall be administered and carried
out by the Governor's Office of Health Enhancement and Lifestyle
Planning.
(c) Each member of the advisory council shall devote the time
necessary to carry out the duties and obligations of the office.
Those members appointed by the Governor may pursue and engage in
another business or occupation or gainful employment that is not in
conflict with the duties of the advisory council.
(d) The advisory council is self-sustaining and independent,
however, it, its members, the director and employees of the Governor's Office of Health Enhancement and Lifestyle Planning are
subject to article nine-a, chapter six of this code and chapters
six-b, twenty-nine-a and twenty-nine-b of this code.
(e) The advisory council is comprised of the following
governmental officials: The Secretary of the Department of Health
and Human Resources, or his or her designee, the Director of the
Public Employees Insurance Agency, or his or her designee, the
Commissioner of the Office of the Insurance Commissioner, or his or
her designee, the Chair of the West Virginia Health Care Authority,
or his or her designee and the Director of the West Virginia
Children's Health Insurance Program or his or her designee. The
council shall also consist of the following public members: One
public member shall represent an organization of senior citizens
with at least ten thousand members within the state, one public
member shall represent the West Virginia Academy of Family
Physicians, one public member shall represent the West Virginia
Chamber of Commerce, one public member shall represent the largest
education employee organization in the state, one public member
shall represent the largest labor organization in the state, one
public interest organization that represents the interests of
consumers, one public member shall represent West Virginia Hospital
Association, one public member shall represent the West Virginia
Medical Association, one public member shall represent the West Virginia Nurse's Association and two ex officio nonvoting members
shall be the Speaker of the House, or his or her designee, and the
President of the Senate, or his or her designee.
(f) Public members shall be appointed by the Governor with
advice and consent of the Senate. Each public member shall serve
for a term of four years. Of the public members of the advisory
council first appointed, one shall be appointed for a term ending
June 30, 2010, and two each for terms of three and four years. The
remainder shall be appointed for the full four-year terms as
provided in this section. Each public member serves until his or
her successor is appointed and has qualified. The Director of the
Governor's Office of Health Enhancement and Lifestyle Planning
shall serve as chairperson of the advisory council.
(g) Advisory council members may not be compensated in their
capacity as members but shall be reimbursed for reasonable expenses
incurred in the performance of their duties.
(h) The advisory council shall meet within the state at such
times as the chair may decide, but at least once annually. The
advisory council shall also meet upon a call of seven or more
members upon seventy-two hours' written notice to each member.
(i) Seven members of the advisory council are a quorum for the
transaction of any business.
(j) A majority vote of the members present is required for any final determination by the advisory council. Voting by proxy is
not allowed.
(k) The advisory council shall keep a complete and accurate
record of all its meetings according to section five, article
nine-a, chapter six of this code.
(l) Notwithstanding the provisions of section four, article
six, chapter six of this code, the Governor may remove any advisory
council member for incompetence, misconduct, gross immorality,
misfeasance, malfeasance or nonfeasance in office.
(m) The advisory council has general responsibility to review
and provide advice and comment to the Governor's Office of Health
Enhancement and Lifestyle Planning on its policies and procedures
relating to the delivery of health care services or the purchase of
prescription drugs. The advisory council shall offer advice to the
director on matters over which the office has authority and
oversight. This includes, but is not limited to:
(1) Hiring of professional, clerical, technical and
administrative personnel as may be necessary to carry out the
provisions of this article;
(2) Contracts or agreements;
(3) Rule-making authority; and
(4) Development of policy necessary to meet the duties and
responsibilities of the Governor's Office of Health Enhancement and Lifestyle Planning pursuant to the provisions of this article.
§16-29H-6. Development of a strategic plan.
The director shall develop a five-year strategic plan for
implementation of any and all health care system reform
initiatives. These initiatives shall be included, but are not
limited to:
(1) Development of pilot projects for patient-centered medical
homes as set forth in section nine of this chapter;
(2) Prioritization of chronic conditions to be targeted for
purposes of resource allocation and for greater chronic care
management. This should include pilot projects for community-based
health teams for the development of care plans for healthy children
and adults to maintain good health and for at-risk populations to
prevent development of preventable chronic diseases;
(3) Development of standardized prior authorization
requirements and processes from insurers;
(4) Coordination with the State Board of Education as set
forth in article two, chapter eighteen of this code to provide for:
(i) The preservation and allocation of recess time away from
instruction and separate from physical education classes in the
state schools;
(ii) Continuing education for school food personnel and a
career hierarchy for food personnel that offers rewards for continuing education hours and credits;
(iii) School-based physical education coordinators; and
(iv) Placement of a dietician in each regional education
service area throughout the state;
(5) Implementation of school-based initiatives to achieve
greater dietary consistency in West Virginia's school system and to
gain greater physical fitness from students;
(6) Development of community-based projects designed for the
construction, development and maintenance of bicycle and pedestrian
trails and sidewalks;
(7) Development and implementation of universal wellness and
health promotion benefits;
(8) Continued promotion and support for efforts to decrease
the number of West Virginians using tobacco products;
(9) Any necessary changes that will increase small businesses
who offer available health insurance as a benefit of employment;
(10) Development of goals to further improve health care
delivery in West Virginia. This should include a means to evaluate
progress toward achieving these goals in a simple and timely
manner;
(11) Measurement of progress of health care providers and
physicians to the adoption and use of electronic medical records in
their offices;
(12) Collaboration on health information technology with the
West Virginia Health Information Network, the Bureau of Medical
Services and other appropriate entities which shall include:
(i) Working through the West Virginia Health Information
Network, the Bureau of Medical Services and other appropriate
entities to develop a collaborative approach for health information
exchange;
(ii) Facilitating and encouraging of ongoing projects such as
electronic medical record resources in community health clinics;
(iii) Encouragement of continued development of hospital
systems and deployment of hospital-supported electronic medical
records when available for hospital-based, hospital-employed and
nonhospital-employed physicians;
(iv) Development of strategies to implement tax incentives,
vendor discounts, enhanced reimbursement and other means to
individual physician offices and clinics to encourage greater
adoption and use of electronic medical records;
(v) Development of recommended electronic medical record best
practices utilizing the Certification Commission for Healthcare
Information Technology as the minimum standard;
(vi) Development of funding mechanisms that provide initial
start up funds and a mechanism for sustainability of electronic
medical records; and
(vii) Exploration of federal funding to ensure the most
efficient and cost effective means of meeting the state's health
information technology objectives.
§16-29H-7. Coordination with higher education.
The director shall consult with all the colleges and
universities in the state, both public and private, with the
state's three medical schools with community and technical colleges
and with the Higher Education Policy Commission. The purpose of
this collaboration would be:
(1) The development of curricula focused on a chronic care
model to reflect the multidisciplinary team approach to the
delivery of health care services in West Virginia as contemplated
by the development of a patient-centered medical home as that term
is defined in article nine of this chapter; and
(2) The development of technology-centered jobs that would
further the state's efforts in moving toward the broader use of
electronic health records.
§16-29H-8. Continuing efforts to reduce prescription drug prices.
(a) The rule-making authority previously granted to the
Pharmaceutical Cost Management Council in article three-c, chapter
five-a of this code to require the reporting of pharmaceutical
advertising costs is here transferred to the Governor's Office of
Health Enhancement and Lifestyle Planning.
(b) Advertising costs for prescription drugs, based on
aggregate national data, shall be reported to the Governor's Office
of Health Enhancement and Lifestyle Planning by all manufacturers
and labelers of prescription drugs dispensed in this state that
employs, directs or utilizes marketing representatives. The
reporting shall assist this state in its role as a purchaser of
prescription drugs and an administrator of prescription drug
programs, enabling this state to determine the scope of
prescription drug advertising costs and their effect on the cost,
utilization and delivery of health care services and furthering the
role of this state as guardian of the public interest.
(c) The Governor's Office of Health Enhancement and Lifestyle
Planning shall establish by legislative rule pursuant to the
provisions of article three, chapter twenty-nine-a of this code the
reporting requirements of information by labelers and manufacturers
which shall include all national aggregate expenses associated with
advertising and direct promotion of prescription drugs through
radio, television, magazines, newspapers, direct mail and telephone
communications as they pertain to residents of this state.
(d) The following are exempt from disclosure requirements:
(1) All free samples of prescription drugs intended to be
distributed to patients;
(2) All marketing items of a value less than $100;
(3) All payments of reasonable compensation and reimbursement
of expenses in connection with a bona fide clinical trial. As used
in this subdivision, "clinical trial" means an approved clinical
trial conducted in connection with a research study designed to
answer specific questions about vaccines, new therapies or new ways
of using known treatments;
(4) All scholarship or other support for medical students,
residents and fellows to attend significant educational, scientific
or policy making conference of national, regional or specialty
medical or other professional association if the recipient of the
scholarship or other support is selected by the association; and
(5) Any data that identifies specific prescription drugs or
pharmaceuticals by individual name, any group of individuals or
specific individual by name and any specific physician or pharmacy
or group of physicians or pharmacies by name.
(e) The Governor's Office of Health Enhancement and Lifestyle
Planning is authorized to revise existing rules that establish time
lines, the documentation, form and manner of reporting required as
he or she, with advice of the advisory council, and determine
necessary changes to effectuate the purpose of this article. The
director shall include in his or her annual report to the
Legislature, in an aggregate form, the information provided in the
required reporting.
(f) Notwithstanding any provision of law to the contrary,
information submitted to the director pursuant to this section is
confidential and is not a public record and is not available for
release pursuant to the West Virginia Freedom of Information Act
codified in article one, chapter twenty-nine-b of this code. Data
compiled in aggregate form by the director for the purposes of
reporting required by this section is a public record as defined in
the West Virginia Freedom of Information Act as long as it does not
reveal trade information that is protected by state or federal law
or specific prescription drugs or pharmaceuticals by individual
name, any group of individuals or specific individual by name and
any specific physician or pharmacy or group of physicians or
pharmacies by name.
(g) The director is authorized to consider strategies by which
West Virginia may manage the increasing costs of prescriptions
drugs and increase access to prescription drugs for all of the
state's residents, including the authority to:
(1) Explore discount prices or rebate programs for senior and
person's without drug coverage;
(2) Explore and if in the best interest of the state and
financially feasible, a counter-detailing program aimed at
education health care practitioners about the relative costs and
benefits of various prescription drugs with an emphasis on generic drugs;
(3) Explore purchasing agreements with public or private
sector entities that could be beneficial in the cost pf
pharmaceuticals; and
(4) Explore other strategies, as permitted under state and
federal law, aimed at managing escalating prescription drug cost
and increasing access for citizens of the state and develop
necessary legislation to implement such strategies.
§16-29H-9. Patient-centered medical homes.
(a)
Legislative findings. --
The Legislature finds that:
(1) There is a need in the state to transform the health care
services delivery model toward primary prevention and more
proactive care management through the development of
patient-centered medical homes;
(2) The concept of a patient-centered medical home would
promote a partnership between the individual patient, the patients'
various health care providers, the patients' family and, if
necessary, the community. It integrates the patient as an active
participant in their own health and well-being;
(3) The patient-centered medical home provides care through a
multidisciplinary health team consisting of physicians, nurse
practitioners, nurses, physicians assistants, behavioral health providers, pharmacists, social workers, physical therapists, dental
and eye care providers and dieticians to meet the health care needs
of a patient in all aspects of preventative, acute, chronic and end
of life care using evidence-based medicine and technology;
(4) In a patient-centered medical home each patient has an
ongoing relationship with a personal physician. The physician
would lead a team of health care providers who take responsibility
for the care of the patient or for arranging care with other
qualified professionals;
(5) Transitioning health care delivery services to a
patient-centered medical home would provide greater quality of
care, increase patient safety and ensure greater access to health
care;
(6) Currently there are medical home pilot projects underway
at the Bureau for Medical Services and the Public Employees
Insurance Agency that should be reviewed and evaluated for
efficiency and a means to expand these to greater segments of the
state's population, most importantly the uninsured.
(b) The patient-centered medical home is a health care setting
that facilitates partnerships between individual patients and their
personal physicians and, when appropriate, the patients' families
and communities. A patient-centered medical home integrates
patients as active participants in their own health and well being. Patients are cared for by a physician or physician practice that
leads a multidisciplinary health team, which may include, but is
not limited to, nurse practitioners, nurses, physician's
assistants, behavioral health providers, pharmacists, social
workers, physical therapists, dental and eye care providers and
dieticians to meet the needs of the patient in all aspects of
preventive, acute, chronic care and end of life care using
evidence-based medicine and technology. At the point in time that
the Center for Medicare and Medicaid Services includes the nurse
practitioner as a leader of the multidisciplinary health team, this
state will automatically implement this change.
(c) The Governor's Office of Health Enhancement and Lifestyle
Planning shall consult with the Bureau for Medical Services and the
Public Employees Insurance Agency on current medical home pilot
projects which they are operating for their membership population.
The director shall evaluate these programs in consultation with the
Commissioner of the Bureau for Medical Services and the Director of
the Public Employees Insurance Agency for a means to expand these
beyond the populations currently being served by these pilots.
Once data is available on these pilots that can be reviewed for
planning purposes, the director shall utilize this as a means to
develop and implement additional patient-centered medical home
pilot programs beyond the limited populations served by the Bureau for Medical Services and the Public Employees Insurance Agency.
The director shall develop four varying types of patient-centered
medical home pilots based upon experience gained from the projects
currently in operation at the Bureau for Medical Services and the
Public Employees Insurance Agency. These patient-centered medical
homes shall be based upon the individual practices of physicians.
(d) The four types of pilot programs shall be:
(1)
Chronic Care Model Pilots. -- This model shall focus on
smaller physician practices. Primary care providers shall work
with payers and providers to identify various disease states.
Through the collaborative effort of the primary care provider and
the payers and providers, programs shall be developed to improve
management of agreed upon conditions of the patient. Through this
model, the primary care provider may utilize current practices of
multipayer workgroups. These groups shall be comprised of the
medical directors of the major health care payers and the state
payers along with medical providers and others.
(2)
Individual Medical Homes Pilots. -- These pilots shall
focus on larger physician practices. They shall seek certification
from the National Committee on Quality Assurance. That initial
certification will be Level I certification. This would be granted
by virtue of certifying the provider is in the process of
attainting certification and currently have met provisional standards as set by the National Committee on Quality Assurance.
This provisional certification lasts only one year with no renewal.
(3)
Community-Centered Medical Home Pilots. -- This approach
shall link primary care practices with community health teams which
would grow out of the current structure in place for federally
qualified health centers. The community health teams shall include
social and mental health workers, nurse practitioners, care
coordinators and community health workers. These personnel largely
exist in community hospitals, home health agencies and other
settings. These pilots shall identify these resources as a
separate team to collaborate with the primary care practices. The
teams would focus on primary prevention such as smoking cessation
programs and wellness interventions as well as working with the
primary care practices to manage patients with multiple chronic
conditions. Within this pilot, all health care agencies are
connected and share resources. Citizens can enter the system of
care from any point and receive the most appropriate level of care
or be directed to the most appropriate care. Any financial
incentives in this model would involve all health care payers and
could be used to encourage collaboration between primary care
practices and the community health teams.
(4)
Medical Homes for the Uninsured Pilots. -- These pilots
shall focus on medical homes to serve the uninsured. They shall include various means of providing care to the uninsured with
primary and preventative care. Through this mechanism, a variety
of pilots may be developed that shall include screening, treatment
of chronic disease and other aspects of primary care and prevention
services. The pilots will be chosen based on their design meeting
the requirements of this subsection and the resources available to
provide these services.
(e) The Governor's Office of Health Enhancement and Lifestyle
Planning may promulgate emergency rules pursuant to the provisions
of section fifteen, article three, chapter twenty-nine-a of this
code if they deem them necessary to implement this section.
(1) The Governor's Office of Health Enhancement and Lifestyle
Planning shall establish, by guidelines, criteria to evaluate the
pilot program and may require participating providers to submit
such data and other information related to the pilot program as may
be required by the Governor's Office of Health Enhancement and
Lifestyle Planning. For purposes of this article, this information
shall be exempt from disclosure under the Freedom of Information
Act in article one, chapter twenty-nine-b of this code.
(2) No later than December 1, 2009, and annually thereafter,
during the operation of the pilot program, the Governor's Office of
Health Enhancement and Lifestyle Planning must submit a report to
the Legislative Oversight Commission of Health and Human Resources Accountability as established in article twenty-nine-e of this
chapter on progress made by the pilot project, including suggested
legislation, necessary changes to the pilot program and suggested
expansion of the pilot program.
§16-29H-10. Exemption from Purchasing Division requirements.
The provisions of article three, chapter five-a of this code
do not apply to the agreements and contracts executed under the
provisions of this article, except that the contracts and
agreements shall be approved as to form and conformity with
applicable law by the Attorney General.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 414--A Bill
to repeal §5-16-7b of the Code of West Virginia, 1931, as amended;
to repeal §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5,
§5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11,
§5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17
of said code; to amend and reenact §5F-2-2 of said code; to amend
and reenact §16-29H-1, §16-29H-2, §16-29H-3, §16-29H-4 and
§16-29H-5 of said code; and to amend said code by adding thereto
five new sections, designated §16-29H-6, §16-29H-7, §16-29H-8, §16-
29H-9 and §16-29H-10, all relating generally to the creation of the Governor's Office of Health Enhancement and Lifestyle Planning;
setting forth legislative findings; setting forth the powers and
duties of the office; transferring the powers and duties of the
Pharmaceutical Cost Management Council to the office; creating the
position of director; setting forth the qualifications of the
director; setting forth the powers and duties of the director;
providing for staff; requiring the development of a five-year
strategic plan; providing for legislative rule-making authority;
providing for coordination with various state agencies,
departments, boards, bureaus and commissions; requiring reporting
to the Governor and the Legislature; establishing pilot projects
for patient-centered medical homes; setting forth legislative
findings; defining terms; evaluating existing medical home pilot
programs; establishing criteria for pilot projects for patient-
centered medical homes; defining four types of pilot projects;
setting forth evaluation criteria; granting rule-making authority;
and exempting from Purchasing division requirements.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for Com.
Sub. for S. B. No. 414) and requested the House of Delegates to
recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended 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 Com. Sub. for Senate Bill No. 498, Relating
to early childhood education.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §49-2E-1, §49-2E-2,
§49-2E-3 and §49-2E-4, all to read as follows:
ARTICLE 2E. QUALITY RATING AND IMPROVEMENT SYSTEM.
§49-2E-1. Findings and intent; advisory council.
(a) The Legislature finds that:
(1) High quality early childhood development substantially
improves the intellectual and social potential of children and
reduces societal costs;
(2) A child care program quality rating and improvement system provides incentives and resources to improve the quality child care
programs; and
(3) A child care program quality rating and improvement system
provides information about the quality of child care programs to
parents so they may make more informed decisions about the
placement of their children.
(b) It is the intent of the Legislature to:
(1) Require the Secretary of the Department of Health and
Human Resources promulgate a legislative rule and establish a plan
for the phased implementation of a child care program quality
rating and improvement system not inconsistent with the provisions
of this article.
(c) The Secretary of the Department of Health and Human
Resources shall create a quality rating and improvement system
advisory council to provide advice on the development of the rule
and plan for the phased implementation of a child care program
quality rating and improvement system and the on-going program
review and policies for quality improvement. The secretary shall
facilitate meetings of the advisory council. The advisory council
shall include representatives from the provider community, advocacy
groups, the Legislature, providers of professional development
services for the early childhood community, regulatory agencies and
others who may be impacted by the creation of a quality rating and improvement system.
(d) Nothing in this article requires an appropriation, or any
specific level of appropriation, by the Legislature.
§49-2E-2. Creation of statewide quality rating system; legislative
rule required; minimum provisions.
(a) The Secretary of the Department of Health and Human
Resources shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code to implement a quality rating and
improvement system. The quality rating and improvement system
shall be applicable to licensed child care centers and facilities
and registered family child care homes. If other types of child
care settings such as school-age child care programs become
licensed after the implementation of a statewide quality rating and
improvement system, the secretary may develop quality criteria and
incentives that will allow the other types of child care settings
to participate in the quality rating and improvement system. The
rules shall include, but are not limited to, the following:
(1) A four star rating system for registered family child care
homes and a four star rating system for all licensed programs,
including family child care facilities and child care centers, to
easily communicate to consumers four progressively higher levels of
quality child care. One star indicating meeting the minimum acceptable standard and four stars indicating meeting or exceeding
the highest standard. The system shall reflect the cumulative
attainment of the standards at each level and all lesser levels.
Any program accredited by the National Association for the
Education of Young Children or the National Association for Family
Child Care, as applicable, on the date of implementation of the
rating shall automatically be awarded four star status until its
next re-accreditation visit. Thereafter, the standards set forth
in the rule required by this section must be met notwithstanding
national accreditation;
(2) Program standards for registered family child care homes
and program standards for all licensed programs, including family
child care facilities and child care centers, that are each divided
into four levels of attributes that progressively improve the
quality of childcare beginning with basic state registration and
licensing requirements at level one, through achievement of a
national accreditation by the appropriate organization and other
standards as set forth in the rule at the fourth level.
Participation beyond the first level is voluntary. The program
standards shall be categorized using the West Virginia State
Training and Registry System Core Knowledge Areas or its
equivalent;
(3) Accountability measures that provide for a fair, valid, accurate and reliable assessment of compliance with quality
standards, including, but not limited to:
(A) Evaluations conducted by trained evaluators with
appropriate early childhood education and training on the selected
assessment tool and with a demonstrated inter-rater reliability of
eighty-five percent or higher. The evaluations shall include an
on-site inspection conducted at least annually to determine whether
programs are rated correctly and continue to meet the appropriate
standards. The evaluations and observations shall be conducted on
at least a statistically valid percentage of center classrooms,
with a minimum of one class per age group;
(B) The use of valid and reliable observation and assessment
tools, such as environmental rating scales for early childhood,
infant and toddler, school-age care and family child care as
appropriate for the particular setting and age group;
(C) An annual self-assessment using the proper observation and
assessment tool for programs rated at two stars; and
(D) Model program improvement planning shall be designed to
help programs improve their evaluation results and level of program
quality.
(b) The rules required pursuant to this section shall include
policies relating to the review, reduction, suspension or
disqualification of child care programs from the quality rating and improvement system.
(c) The rules shall provide for implementation of the
statewide quality rating system effective July 1, 2011, subject to
section four of this article.
§49-2E-3. Creation of statewide quality improvement system;
financial plan to support implementation and quality
improvement required as part of rules.
(a) Attached to the proposed rules required in section two of
this article, the Secretary of the Department of Health and Human
Resources shall submit a financial plan to support the
implementation of a statewide quality rating and improvement system
and help promote quality improvement. The financial plan shall be
considered a part of the rule and shall include specific proposals
for implementation of the provisions of this section as determined
by the Secretary. The plan shall address, but is not limited to,
the following:
(1) State agency staffing requirements, including, but not
limited to:
(A) Highly trained evaluators to monitor the assessment
process and ensure inter-rater reliability of eighty-five percent
or higher;
(B) Technical assistance staff responsible for career
advising, accreditation support services, improvement planning, portfolio development and evaluations for improvement planning
only. The goal for technical assistance staffing is to ensure that
individualized technical assistance is available to participating
programs;
(C) A person within the department to collaborate with other
professional development providers to maximize funding for
training, scholarships and professional development. The person
filling this position also shall encourage community and technical
colleges to provide courses through nontraditional means such as
online training, evening classes and off-campus training;
(D) Additional infant and toddler specialists to provide high
level professional development for staff caring for infants and to
provide on-site assistance with infant and toddler issues;
(E) At least one additional training specialist at each of the
child care resource and referral agencies to support new training
topics and to provide training for school-age child care programs.
Training providers such as the child care resource and referral
agencies shall purchase new training programs on topics such as
business management, the Devereux Resiliency Training and Mind in
the Making; and
(F) Additional staff necessary for program administration;
(2) Implementation of a broad public awareness campaign and
communication strategies that may include, but are not limited to:
(A) Brochures, internet sites, posters, banners, certificates,
decals and pins to educate parents; and
(B) Strategies such as earned media campaigns, paid
advertising campaigns, e-mail and internet-based outreach,
face-to-face communication with key civic groups and grassroots
organizing techniques; and
(3) Implementation of an internet-based management information
system that meets the following requirements:
(A) The system shall allow for multiple agencies to access and
input data;
(B) The system shall provide the data necessary to determine
if the quality enhancements result in improved care and better
outcomes for children;
(C) The system shall allow access by Department of Health and
Human Resources subsidy and licensing staff, child care resource
and referral agencies, the agencies that provide training and
scholarships, evaluators and the child care programs;
(D) The system shall include different security levels in
order to comply with the numerous confidentiality requirements;
(E) The system shall assist in informing practice; determining
training needs; and tracking changes in availability of care, cost
of care, changes in wages and education levels; and
(F) The system shall provide accountability for child care programs and recipients and assure funds are being used
effectively;
(4) Financial assistance for child care programs needed to
improve learning environments, attain high ratings and sustain
long-term quality without passing additional costs on to families
that may include, but are not limited to:
(A) Assistance to programs in assessment and individual
program improvement planning and providing the necessary
information, coaching and resources to assist programs to increase
their level of quality;
(B) Subsidizing participating programs for providing child
care services to children of low-income families in accordance with
the following:
(i) Base payment rates shall be established at the seventy-
fifth percentile of market rate; and
(ii) A system of tiered reimbursement shall be established
which increases the payment rates by a certain amount above the
base payment rates in accordance with the rating tier of the child
care program;
(C) Grants for helping with the cost of national accreditation
shall be awarded to child care centers on an equitable basis. The
amount of the grants shall be based on the amount of funding
available. Two types of grants shall be awarded to child care programs in accordance with the following:
(i) An incentive grant shall be awarded based on the type of
child care program and the level at which the child care program is
rated with the types of child care programs having more children;
and
(ii) Child care programs rated at higher tiers being awarded
a larger grant than the types of child care programs having less
children and child care programs rated at lower tiers;
(5) Support for increased salaries and benefits for program
staff to increase educational levels essential to improving the
quality of care that may include, but are not limited to:
(A) Wage supports and benefits provided as an incentive to
increase child care programs ratings and as an incentive to
increase staff qualifications in accordance with the following:
(i) The cost of salary supplements shall be phased in over a
five-year period;
(ii) The Secretary of the Department of Health and Human
Resources shall establish a salary scale for each of the top three
rating tiers that varies the salary support based on the education
of the care giver and the rating tier of the program; and
(iii) Any center with at least a tier two rating that employs
at least one staff person participating in the scholarship program
required pursuant to paragraph (B) of this subsection or employs degree staff may apply to the Secretary of the Department of Health
and Human Resources for funding to provide health care benefits
based on the Teacher Education and Compensation Helps model in
which insurance costs are shared among the employees, the employer
and the state; and
(B) The provision of scholarships and establishment of
professional development plans for center staff that would promote
increasing the credentials of center staff over a five-year period;
and
(6) Financial assistance to the child care consumers whose
income is at two hundred percent of the federal poverty level or
under to help them afford the increased market price of child care
resulting from increased quality.
§49-2E-4. Quality rating and improvement system pilot projects;
independent third party evaluation; modification of proposed
rule and financial plan; report to Legislature; limitations on
implementation.
(a) The Secretary of the Department of Health and Human
Resources may promulgate emergency rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code to
implement a quality rating and improvement system in up to five
counties as pilot projects beginning July 1, 2009. The pilot
quality rating and improvement systems shall be in accordance with the provisions of this article for the statewide system and in
accordance with the policies and procedures proposed by the
Partners Implementing an Early Care and Education System Advisory
Council report on Building a Child Care Quality Rating and
Improvement System for West Virginia to the extent those policies
and procedures are not in conflict with this article. The purpose
of the pilot projects is to test the rating system, assess the
quality of existing child care providers, provide a basis for
estimating the financial requirements of the various elements of a
statewide system as set forth in this article and to inform future
policy decisions. Notwithstanding any provision of this article to
the contrary, the rating or potential rating of a child care
provider participating in the study may not be individually
disclosed. The secretary may modify and develop additional
policies consistent with this article as appropriate.
(c) The Secretary shall contract with an independent third
party evaluator to assist the department and the quality rating and
improvement system advisory council with establishing and
evaluating the pilot project quality rating and improvement system
and conducting research on statewide implementation. The Secretary
also may contract with the evaluator for on-going evaluation and
research for quality improvement. The evaluator shall have access
to all project data including data in the management information system provided for in section two of this article.
(d) The Secretary shall report annually to the Legislature on
the progress on development and implementation of a child care
quality rating and improvement system and its impact on improving
the quality of childcare in the state. The Secretary may propose
amendments to the rules and financial plan necessary to promote
implementation of the quality rating and improvement system and
improve the quality of childcare and may recommend needed
legislation. Nothing in this article requires the implementation
of a quality rating and improvement system unless funds are
appropriated therefore. The Secretary may prioritize the
components of the financial plan for implementation and quality
improvement for funding purposes. If insufficient funds are
appropriated for full implementation of the quality rating and
improvement system beginning on July 1, 2011, the rules shall
provide for gradual implementation over a period of several years.
(e) The Legislature recognizes that expenditures, especially
one time types of expenditures or expenditures of a limited
duration, may be funded with moneys derived through the American
Recovery and Reinvestment Act of 2009. A study of the cost of
implementing a quality rating and improvement system statewide is
expected to be conducted over the next two years.
(f) To accommodate its ongoing role and responsibility in advising both the Secretary of the Department of Health and Human
Resources and the State Superintendent, the PIECES advisory group
will evaluate and update its current roles and responsibilities, as
well as update its current membership to reflect an equitable and
proportionate level of representation. PIECES, with the guidance
of the State Superintendent and the Secretary, will establish by-
laws for workgroups and processes for recommendations and reports
to be made to the superintendent and secretary concerning early
care and education in West Virginia. The superintendent and
secretary, with advisement from the West Virginia Head Start
Collaboration Office, will recommend a tri-chair management
structure comprised of designees of Head Start, the department of
education and the department of health and human resources that
allows for shared agenda development and rotating operational
responsibilities on an annual basis.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 498--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new article, designated §49-2E-1, §49-2E-2, §49-2E-3 and
§49-2E-4, all relating to quality rating and improvement system
applicable to certain child care providers; findings and intent; Secretary of Department of Health and Human Resources rules;
quality rating and improvement system advisory council; statewide
quality rating system rules; statewide implementation; system
components; review, reduction, suspension or disqualification;
statewide quality improvement system; financial plan for
implementation and quality improvement; plan components; pilot
projects; third party evaluator; reports to Legislature; gradual
implementation; conditioning requirements on legislative
appropriation; prioritization of components for funding; and PIECES
advisory council.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for Com.
Sub. for S. B. No. 498) 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
that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of three
from each house on the disagreeing votes of the two houses, as to
Eng. Senate Bill No. 767, Relating to certain Medicaid program
contracts.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Morgan, Perdue and C. Miller.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Snyder, Minard and Sypolt.
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
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. House Bill No. 2801, Updating language and making
technical changes and clarifications of the West Virginia Board of
Medicine.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Foster, Stollings and Sypolt.
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
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2832, Relating to critical
skills evaluations for students in grades three and eight.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of five from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Oliverio, Browning, Edgell, Guills and Barnes.
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
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2961, Adding two members to
the institutional boards of governors of West Virginia University
and Marshall University based upon race, gender and ethnicity.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a committee of conference of five from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Plymale, Wells, Oliverio, Green and Guills.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
On motion of Senator Chafin, the Senate recessed until 5 p.m.
today.
Upon expiration of the recess, the Senate reconvened and
proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 5:47 p.m. today:
Eng. Com. Sub. for House Bill No. 2877, Increasing the
monetary penalties, removing the possibility of incarceration and
adding community service for a minor who misrepresents his or her
age when purchasing alcohol.
Without objection, the Senate returned to the third order of
business.
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. 246, Relating to
unemployment compensation generally.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §21A-1-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §21A-1A-5, §21A-1A-6, §21A-1A-7 and
§21A-1A-28 of said code be amended and reenacted; that §21A-6-1,
§21A-6-3 and §21A-6-10 of said code be amended and reenacted; and
that §23-2C-3 of said code be amended and reenacted, all to read as
follows:
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 1. UNEMPLOYMENT COMPENSATION.
§21A-1-4. Workforce West Virginia created; divisions within
Workforce West Virginia created; certain terms defined;
employer violator system.
(a) There is continued an agency designated Workforce West
Virginia, composed of:
(1) Division of Unemployment Compensation;
(2) Division of Employment Service;
(3) Division of Workforce Development;
(4) Division of Research, Information and Analysis; and
(5) Any other divisions or units that the executive director
determines are necessary.
(b) Wherever within this chapter the term "department",
"bureau" or "fund" is used, it shall be taken to mean Workforce
West Virginia unless otherwise indicated. Any reference in this
code to the Bureau of Employment Programs means Workforce West
Virginia. Any reference in this code to the Commissioner of the
Bureau of Employment Programs or Employment Security means the
Executive Director of Workforce West Virginia.
(c) Workforce West Virginia shall be administered pursuant to
subsection (b), section one, article two, chapter five-f of this
code.
(d) The Executive Director of Workforce West Virginia shall
establish an employer violator system to identify individuals and
employers who are in default on any assessment, surcharge, tax or
penalty owed to the fund. The employer violator system shall
prohibit violators who own, control or have a ten percent or more
ownership interest, or other ownership interest as may be defined
by the executive director, in any company from obtaining or maintaining any license, certificate or permit issued by the state
until the violator has paid all moneys owed to the fund or has
entered into and remains in compliance with a repayment agreement.
The employer violator system shall work cooperatively with all
state agencies to maintain an accurate, up-to-date list of
violators which shall be available in electronic format and online
for agencies and the public. Before an employer is added to the
violator list, he or she shall be given notice and an opportunity
for an expedited administrative hearing. The executive director
shall propose for promulgation emergency and legislative rules to
effectuate this subsection.
ARTICLE 1A. DEFINITIONS.
§21A-1A-5. Base period; alternative base period.
(a) "Base period" means the first four out of the last five
completed calendar quarters immediately preceding the first day of
the individual's benefit year.
(b) "Alternative base period" means the last four completed
calendar quarters immediately preceding the first day of the
individual's benefit year.
§21A-1A-6. Base period employer; alternative base period employer.
"Base period employer" means and "alternative base period
employer" mean any employer who in the base period or alternative
base period for any benefit year paid wages to an individual who filed claim for unemployment compensation within such benefit year.
§21A-1A-7. Base period wages; alternative base period wages.
"Base period wages" means and "alternative base period wages"
mean wages paid to an individual during the base period or
alternative base period by all the individual's base period or
alternative base period employers.
§21A-1A-28. Wages; average annual wage; threshold wage.
(a) "Wages" means all remuneration for personal service,
including commissions, gratuities customarily received by an
individual in the course of employment from persons other than the
employing unit, as long as such gratuities equal or exceed an
amount of not less than $20 each month and which are required to be
reported to the employer by the employee, bonuses and the cash
value of all remuneration in any medium other than cash except for
agricultural labor and domestic service. The term "wages" includes
remuneration for service rendered to the state as a member of the
state National Guard or Air National Guard only when serving on a
temporary basis pursuant to a call made by the Governor under
sections one and two, article one-d, chapter fifteen of this code.
(b) The term "wages" does not include:
(1) That part of the remuneration which, after remuneration
equal to $8,000 or, after the amendment and reenactment of this
section during the 2009 legislative session, the threshold wage is paid during a calendar year to an individual by an employer or his
or her predecessor with respect to employment during any calendar
year, is paid to such individual by such employer during such
calendar year unless that part of the remuneration is subject to a
tax under a federal law imposing a tax against which credit may be
taken for contributions required to be paid into a state
unemployment fund. For the purposes of this section, the term
"employment" includes service constituting employment under any
unemployment compensation law of another state; or which as a
condition for full tax credit against the tax imposed by the
federal Unemployment Tax Act is required to be covered under this
chapter; and, except that for the purposes of sections one, ten,
eleven and thirteen, article six of this chapter, all remuneration
earned by an individual in employment shall be credited to the
individual and included in his or her computation of base period
wages: Provided, That the remuneration paid to an individual by an
employer with respect to employment in another state or other
states upon which contributions were required of and paid by such
employer under an unemployment compensation law of such other state
or states shall be included as a part of the remuneration equal to
the amounts of $8,000 or, after the amendment and reenactment of
this section during the 2009 legislative session, the threshold
wage herein referred to. In applying such limitation on the amount of remuneration that is taxable, an employer shall be accorded the
benefit of all or any portion of such amount which may have been
paid by its predecessor or predecessors: Provided, however, That
if the definition of the term "wages" as contained in Section
3306(b) of the Internal Revenue Code of 1954, as amended, is
amended to include remuneration in excess of $8,000 or, after the
amendment and reenactment of this section during the 2009
legislative session, the threshold wage paid to an individual by an
employer under the federal Unemployment Tax Act during any calendar
year, wages for the purposes of this definition shall include
remuneration paid in a calendar year to an individual by an
employer subject to this chapter or his or her predecessor with
respect to employment during any calendar year up to an amount
equal to the amount of remuneration taxable under the federal
Unemployment Tax Act;
(2) The amount of any payment made (including any amount paid
by an employer for insurance or annuities, or into a fund, to
provide for any such payment) to, or on behalf of, an individual in
its employ or any of his or her dependents, under a plan or system
established by an employer which makes provision for individuals in
its employ generally (or for such individuals and their
dependents), or for a class or classes of such individuals (or for
a class or classes of such individuals and their dependents) on account of: (A) Retirement; or (B) sickness or accident disability
payments made to an employee under an approved state workers'
compensation law; or (C) medical or hospitalization expenses in
connection with sickness or accident disability; or (D) death;
(3) Any payment made by an employer to an individual in its
employ (including any amount paid by an employer for insurance or
annuities, or into a fund, to provide for any such payment) on
account of retirement;
(4) Any payment made by an employer on account of sickness or
accident disability, or medical or hospitalization expenses in
connection with sickness or accident disability to, or on behalf
of, an individual in its employ after the expiration of six
calendar months following the last calendar month in which such
individual worked for such employer;
(5) Any payment made by an employer to, or on behalf of, an
individual in its employ or his or her beneficiary: (A) From or to
a trust described in Section 401(a) which is exempt from tax under
Section 501(a) of the federal Internal Revenue Code at the time of
such payments unless such payment is made to such individual as an
employee of the trust as remuneration for services rendered by such
individual and not as a beneficiary of the trust; or (B) under or
to an annuity plan which, at the time of such payment, is a plan
described in Section 403(a) of the federal Internal Revenue Code;
(6) The payment by an employer of the tax imposed upon an
employer under Section 3101 of the federal Internal Revenue Code
with respect to remuneration paid to an employee for domestic
service in a private home or the employer of agricultural labor;
(7) Remuneration paid by an employer in any medium other than
cash to an individual in its employ for service not in the course
of the employer's trade or business;
(8) Any payment (other than vacation or sick pay) made by an
employer to an individual in its employ after the month in which he
or she attains the age of sixty-five, if he or she did not work for
the employer in the period for which such payment is made;
(9) Payments, not required under any contract of hire, made to
an individual with respect to his or her period of training or
service in the armed forces of the United States by an employer by
which such individual was formerly employed; and
(10) Vacation pay, severance pay or savings plans received by
an individual before or after becoming totally or partially
unemployed but earned prior to becoming totally or partially
unemployed: Provided, That the term totally or partially
unemployed does not include: (A) Employees who are on vacation by
reason of the request of the employees or their duly authorized
agent, for a vacation at a specific time, and which request by the
employees or their agent is acceded to by their employer; (B) employees who are on vacation by reason of the employer's request
provided they are so informed at least ninety days prior to such
vacation; or (C) employees who are on vacation by reason of the
employer's request where such vacation is in addition to the
regular vacation and the employer compensates such employee at a
rate equal to or exceeding their regular daily rate of pay during
the vacation period.
(c) The reasonable cash value of remuneration in any medium
other than cash shall be estimated and determined in accordance
with rules prescribed by the commissioner, except for remuneration
other than cash for services performed in agricultural labor and
domestic service.
_____(d) "Average annual wage" means the state's average annual
wage which is computed on or before September 30 of the year
immediately preceding the rate year and is the total remuneration
paid by employers as reported on contribution reports on or before
that date with respect to all employment during the four
consecutive calendar quarters ending on June 30 of that year
divided by the average monthly number of individuals performing
services in employment during the same four calendar quarters as
reported on the contribution reports.
_____"Threshold wage" means the wage amount the employer pays
unemployment taxes on for each person in his or her employ during a calendar year. On and after the effective date of the amendment
and reenactment of this chapter by the Legislature in 2009, the
threshold wage will be $12,000: Provided, That when the moneys in
the unemployment fund reach $220 million on February 15 of any
year, the threshold wage thereafter will be reduced to $9,000:
Provided, however, That each year thereafter the threshold wage
shall increase or decrease by the same percentage that the state's
average wage increases or decreases.
ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.
§21A-6-1. Eligibility qualifications.
An unemployed individual shall be eligible to receive benefits
only if the commissioner finds that:
(1) He or she has registered for work at and thereafter
continues to report at an employment office in accordance with the
regulations of the commissioner;
(2) He or she
has made a claim for benefits in accordance with
the provisions of article seven of this chapter and has furnished
his or her Social Security number, or numbers if he or she has more
than one such number;
(3) He or she
is able to work and is available for full-time
work for which he or she
is fitted by prior training or experience
and is doing that which a reasonably prudent person in his or her
circumstances would do in seeking work;
(4) He or she
has been totally or partially unemployed during
his or her benefit year for a waiting period of one week prior to
the week for which he or she
claims benefits for total or partial
unemployment;
(5) He or she
has within his or her base period been paid
wages for employment equal to not less than $2,200 and must have
earned wages in more than one quarter of his or her base period or,
if he or she is not eligible under his or her base period, has
within his or her alternative base period been paid wages for
employment equal to not less than $2,200 and must have earned wages
in more than one quarter of his or her alternative base period; and
(6) Beginning the first day of November, one thousand nine
hundred ninety-four, He or she participates in reemployment
services, such as job search assistance services, if the individual
has been determined to be likely to exhaust regular benefits and
needs reemployment services pursuant to a profiling system
established by the commissioner, unless the commissioner determines
that:
(a) The individual has completed such services; or
(b) There is justifiable cause for the claimant's failure to
participate in such services.
§21A-6-3. Disqualification for benefits.
Upon the determination of the facts by the commissioner, an individual shall be disqualified for benefits:
(1) For the week in which he or she left his or her most
recent work voluntarily without good cause involving fault on the
part of the employer and until the individual returns to covered
employment and has been employed in covered employment at least
thirty working days.
For the purpose of this subdivision, an individual shall not
be deemed to have left his or her most recent work voluntarily
without good cause involving fault on the part of the employer, if
such individual leaves his or her most recent work with an employer
and if he or she in fact, within a fourteen-day calendar period,
does return to employment with the last preceding employer with
whom he or she was previously employed within the past year prior
to his or her return to workday, and which last preceding employer,
after having previously employed such individual for thirty working
days or more, laid off such individual because of lack of work,
which layoff occasioned the payment of benefits under this chapter
or could have occasioned the payment of benefits under this chapter
had such individual applied for such benefits. It is the intent of
this paragraph to cause no disqualification for benefits for such
an individual who complies with the foregoing set of requirements
and conditions. Further, for the purpose of this subdivision, an
individual shall not be deemed to have left his or her most recent work voluntarily without good cause involving fault on the part of
the employer, if such individual was compelled to leave his or her
work for his or her own health-related reasons and notifies the
employer prior to leaving the job or within two business days after
leaving the job or as soon as practicable and presents written
certification from a licensed physician within thirty days of
leaving the job that his or her work aggravated, worsened or will
worsen the individual's health problem.
(2) For the week in which he or she was discharged from his or
her most recent work for misconduct and the six weeks immediately
following such week; or for the week in which he or she was
discharged from his or her last thirty-day employing unit for
misconduct and the six weeks immediately following such week. Such
disqualification shall carry a reduction in the maximum benefit
amount equal to six times the individual's weekly benefit.
However, if the claimant returns to work in covered employment for
thirty days during his or her benefit year, whether or not such
days are consecutive, the maximum benefit amount shall be increased
by the amount of the decrease imposed under the disqualification;
except that:
If he or she were discharged from his or her most recent work
for one of the following reasons, or if he or she were discharged
from his or her last thirty days employing unit for one of the following reasons: Misconduct Gross misconduct consisting of
willful destruction of his or her employer's property; assault upon
the person of his or her employer or any employee of his or her
employer; if such assault is committed at such individual's place
of employment or in the course of employment; reporting to work in
an intoxicated condition, or being intoxicated while at work;
reporting to work under the influence of any controlled substance,
as defined in chapter sixty-a of this code without a valid
prescription, or being under the influence of any controlled
substance, as defined in chapter sixty-a of this code without a
valid prescription, while at work; adulterating or otherwise
manipulating a sample or specimen in order to thwart a drug or
alcohol test lawfully required of an employee; refusal to submit to
random testing for alcohol or illegal controlled substances for
employees in safety sensitive positions as defined in section two,
article one-d, chapter twenty-one of this code; arson, theft,
larceny, fraud or embezzlement in connection with his or her work;
or any other gross misconduct; he or she shall be and remain
disqualified for benefits until he or she has thereafter worked for
at least thirty days in covered employment: Provided, That for the
purpose of this subdivision the words "any other gross misconduct"
shall include, but not be limited to, any act or acts of misconduct
where the individual has received prior written warning that termination of employment may result from such act or acts.
(3) For the week in which he or she failed without good cause
to apply for available, suitable work, accept suitable work when
offered, or return to his or her customary self-employment when
directed to do so by the commissioner, and for the four weeks which
immediately follow for such additional period as any offer of
suitable work shall continue open for his or her acceptance. Such
disqualification shall carry a reduction in the maximum benefit
amount equal to four times the individual's weekly benefit amount.
(4) For a week in which his or her total or partial
unemployment is due to a stoppage of work which exists because of
a labor dispute at the factory, establishment or other premises at
which he or she was last employed, unless the commissioner is
satisfied that he or she: (1) Was not participating, financing or
directly interested in such dispute; and (2) did not belong to a
grade or class of workers who were participating, financing or
directly interested in the labor dispute which resulted in the
stoppage of work. No disqualification under this subdivision shall
be imposed if the employees are required to accept wages, hours or
conditions of employment substantially less favorable than those
prevailing for similar work in the locality, or if employees are
denied the right of collective bargaining under generally
prevailing conditions, or if an employer shuts down his or her plant or operation or dismisses his or her employees in order to
force wage reduction, changes in hours or working conditions. For
the purpose of this subdivision, if any stoppage of work continues
longer than four weeks after the termination of the labor dispute
which caused stoppage of work, there shall be a rebuttable
presumption that part of the stoppage of work which exists after
said a period of four weeks after the termination of said the labor
dispute did not exist because of said the labor dispute; and in
such that event the burden shall be upon the employer or other
interested party to show otherwise.
(5) For a week with respect to which he or she is receiving or
has received:
(a) Wages in lieu of notice;
(b) Compensation for temporary total disability under the
workers' compensation law of any state or under a similar law of
the United States; or
(c) Unemployment compensation benefits under the laws of the
United States or any other state.
(6) For the week in which an individual has voluntarily quit
employment to marry or to perform any marital, parental or family
duty, or to attend to his or her personal business or affairs and
until the individual returns to covered employment and has been
employed in covered employment at least thirty working days.
(7) Benefits shall not be paid to any individual on the basis
of any services, substantially all of which consist of
participating in sports or athletic events or training or preparing
to so participate, for any week which commences during the period
between two successive sport seasons (or similar periods) if such
individual performed such services in the first of such seasons (or
similar periods) and there is a reasonable assurance that such
individual will perform such services in the later of such seasons
(or similar periods).
(8) (a) Benefits shall not be paid on the basis of services
performed by an alien unless such alien is an individual who was
lawfully admitted for permanent residence at the time such services
were performed, was lawfully present for purposes of performing
such services or was permanently residing in the United States
under color of law at the time such services were performed
(including an alien who is lawfully present in the United States as
a result of the application of the provisions of Section 203(a)(7)
or Section 212(d)(5) of the Immigration and Nationality Act):
Provided, That any modifications to the provisions of Section
3304(a)(14) of the federal Unemployment Tax Act as provided by
Public Law 94-566 which specify other conditions or other effective
date than stated herein for the denial of benefits based on
services performed by aliens and which modifications are required to be implemented under state law as a condition for full tax
credit against the tax imposed by the federal Unemployment Tax Act
shall be deemed applicable under the provisions of this section;
(b) Any data or information required of individuals applying
for benefits to determine whether benefits are not payable to them
because of their alien status shall be uniformly required from all
applicants for benefits;
(c) In the case of an individual whose application for
benefits would otherwise be approved, no determination that
benefits to such individual are not payable because of his or her
alien status shall be made except upon a preponderance of the
evidence.
(9) For each week in which an individual is unemployed
because, having voluntarily left employment to attend a school,
college, university or other educational institution, he or she is
attending such school, college, university or other educational
institution, or is awaiting entrance thereto or is awaiting the
starting of a new term or session thereof, and until the individual
returns to covered employment.
(10) For each week in which he or she is unemployed because of
his or her request, or that of his or her duly authorized agent,
for a vacation period at a specified time that would leave the
employer no other alternative but to suspend operations.
(11) In the case of an individual who accepts an early
retirement incentive package, unless he or she: (i) Establishes a
well-grounded fear of imminent layoff supported by definitive
objective facts involving fault on the part of the employer; and
(ii) establishes that he or she would suffer a substantial loss by
not accepting the early retirement incentive package.
__________(12) For each week with respect to which he or she is
receiving or has received benefits under Title II of the Social
Security Act or similar payments under any act of Congress, and/ or
remuneration in the form of an annuity, pension or other retirement
pay from a base period and/or employer or chargeable employer or
from any trust or fund contributed to by a base period and/or
employer or chargeable employer or any combination of the above,
the weekly benefit amount payable to such individual for such week
shall be reduced (but not below zero) by the prorated weekly amount
of said benefits, payments and/or remuneration: Provided, That if
such amount of benefits is not a multiple of $1, it shall be
computed to the next lowest multiple of $1: Provided, however,
That there shall be no disqualification if in the individual's base
period there are no wages which were paid by the base period and/or
employer or chargeable employer paying such remuneration, or by a
fund into which the employer has paid during said base period:
Provided further, That notwithstanding any other provision of this subdivision to the contrary, the weekly benefit amount payable to
such individual for such week shall not be reduced by any
retirement benefits he or she is receiving or has received under
Title II of the Social Security Act or similar payments under any
act of Congress. Claimant may be required to certify as to whether
or not he or she is receiving or has been receiving remuneration in
the form of an annuity, pension or other retirement pay from a base
period and/or employer or chargeable employer or from a trust fund
contributed to by a base period and/or employer or chargeable
employer.
(12) (13) For each week in which and for fifty-two weeks
thereafter, beginning with the date of the decision, if the
commissioner finds such individual who within twenty-four calendar
months immediately preceding such decision, has made a false
statement or representation knowing it to be false or knowingly
fails to disclose a material fact, to obtain or increase any
benefit or payment under this article: Provided, That
disqualification under this subdivision shall not preclude
prosecution under section seven, article ten of this chapter.
§21A-6-10. Benefit rate -- Total unemployment; annual computation
and publication of rates
.
(a) Each eligible individual who is totally unemployed in any
week shall be paid benefits with respect to that week at the weekly rate appearing in Column (C) in the benefit table in this section,
on the line on which in Column (A) there is indicated the
employee's wage class, except as otherwise provided under the term
"total and partial unemployment" in section twenty-seven, article
one-a of this chapter. The employee's wage class shall be
determined by his or her base period wages as shown in Column (B)
in the benefit table. The right of an employee to receive benefits
shall not be prejudiced nor the amount thereof be diminished by
reason of failure by an employer to pay either the wages earned by
the employee or the contribution due on such wages. An individual
who is totally unemployed but earns in excess of $60 as a result of
odd job or subsidiary work, or is paid a bonus in any benefit week
shall be paid benefits for such week in accordance with the
provisions of this chapter pertaining to benefits for partial
unemployment.
(b) (1) The maximum benefit for each wage class shall be equal
to twenty-six times the weekly benefit rate.
(2) The maximum benefit rate shall be sixty-six and two-thirds
percent of the average weekly wage in West Virginia.
(c) On July 1 of each year, the commissioner shall determine
the maximum weekly benefit rate upon the basis of the formula set
forth above and shall establish wage classes as are required,
increasing or decreasing the amount of the base period wages required for each wage class by $150, establishing the weekly
benefit rate for each wage class by rounded dollar amount to be
fifty-five percent of one fifty-second of the median dollar amount
of wages in the base period for such wage class, and establishing
the maximum benefit for each wage class as an amount equal to
twenty-six times the weekly benefit rate: Provided, That the
commissioner shall not increase or decrease the maximum weekly
benefit rate for the period beginning on the effective date of the
amendment and reenactment of this section in the regular session of
the Legislature in 2009 until the threshold wage is reduced to
$9,000, as required by subsection (d), section twenty-eight,
article one-a of this chapter. The maximum weekly benefit rate,
when computed by the commissioner, in accordance with the foregoing
provisions, shall be rounded to the next lowest multiple of $1.
BENEFIT TABLE
A
Wage
Class |
B
Wages in
Base Period
|
C
Weekly
Benefit
Rate
|
Maximum
Benefit in
Benefit Year
for Total
and/or
Partial Un-
employment
|
|
Under
|
|
$2,200.00
|
Ineligible
|
|
1
|
$2,200.00
|
-
|
2,349.99
|
24.00
|
$ 624.00
|
2
|
2,350.00
|
-
|
2,499.99
|
25.00
|
650.00
|
3
|
2,500.00
|
-
|
2,649.99
|
27.00
|
702.00
|
4
|
2,650.00
|
-
|
2,799.99
|
28.00
|
728.00
|
5
|
2,800.00
|
-
|
2,949.99
|
30.00
|
780.00
|
6
|
2,950.00
|
-
|
3,099.99
|
31.00
|
806.00
|
7
|
3,100.00
|
-
|
3,249.99
|
33.00
|
858.00
|
8
|
3,250.00
|
-
|
3,399.99
|
35.00
|
910.00
|
9
|
3,400.00
|
-
|
3,549.99
|
36.00
|
936.00
|
10
|
3,550.00
|
-
|
3,699.99
|
38.00
|
988.00
|
11
|
3,700.00
|
-
|
3,849.99
|
39.00
|
1,014.00
|
12
|
3,850.00
|
-
|
3,999.99
|
41.00
|
1,066.00
|
13
|
4,000.00
|
-
|
4,149.99
|
43.00
|
1,118.00
|
14
|
4,150.00
|
-
|
4,299.99
|
44.00
|
1,144.00
|
15
|
4,300.00
|
-
|
4,449.99
|
46.00
|
1,196.00
|
16
|
4,450.00
|
-
|
4,599.99
|
47.00
|
1,222.00
|
17
|
4,600.00
|
-
|
4,749.99
|
49.00
|
1,274.00
|
18
|
4,750.00
|
-
|
4,899.99
|
51.00
|
1,326.00
|
19
|
4,900.00
|
-
|
5,049.99
|
52.00
|
1,352.00
|
20
|
5,050.00
|
-
|
5,199.99
|
54.00
|
1,404.00
|
21
|
5,200.00
|
-
|
5,349.99
|
55.00
|
1,430.00
|
22
|
5,350.00
|
-
|
5,499.99
|
57.00
|
1,482.00
|
23
|
5,500.00
|
-
|
5,649.99
|
58.00
|
1,508.00
|
24
|
5,650.00
|
-
|
5,799.99
|
60.00
|
1,560.00
|
25
|
5,800.00
|
-
|
5,949.99
|
62.00
|
1,612.00
|
26
|
5,950.00
|
-
|
6,099.99
|
63.00
|
1,638.00
|
27
|
6,100.00
|
-
|
6,249.99
|
65.00
|
1,690.00
|
28
|
6,250.00
|
-
|
6,399.99
|
66.00
|
1,716.00
|
29
|
6,400.00
|
-
|
6,549.99
|
68.00
|
1,768.00
|
30
|
6,550.00
|
-
|
6,699.99
|
70.00
|
1,820.00
|
31
|
6,700.00
|
-
|
6,849.99
|
71.00
|
1,846.00
|
32
|
6,850.00
|
-
|
6,999.99
|
73.00
|
1,898.00
|
33
|
7,000.00
|
-
|
7,149.99
|
74.00
|
1,924.00
|
34
|
7,150.00
|
-
|
7,299.99
|
76.00
|
1,976.00
|
35
|
7,300.00
|
-
|
7,449.99
|
78.00
|
2,028.00
|
36
|
7,450.00
|
-
|
7,599.99
|
79.00
|
2,054.00
|
37
|
7,600.00
|
-
|
7,749.99
|
81.00
|
2,106.00
|
38
|
7,750.00
|
-
|
7,899.99
|
82.00
|
2,132.00
|
39
|
7,900.00
|
-
|
8,049.99
|
84.00
|
2,184.00
|
40
|
8,050.00
|
-
|
8,199.99
|
85.00
|
2,210.00
|
41
|
8,200.00
|
-
|
8,349.99
|
87.00
|
2,262.00
|
42
|
8,350.00
|
-
|
8,499.99
|
89.00
|
2,314.00
|
43
|
8,500.00
|
-
|
8,649.99
|
90.00
|
2,340.00
|
44
|
8,650.00
|
-
|
8,799.99
|
92.00
|
2,392.00
|
45
|
8,800.00
|
-
|
8,949.99
|
93.00
|
2,418.00
|
46
|
8,950.00
|
-
|
9,099.99
|
95.00
|
2,470.00
|
47
|
9,100.00
|
-
|
9,249.99
|
97.00
|
2,522.00
|
48
|
9,250.00
|
-
|
9,399.99
|
98.00
|
2,548.00
|
49
|
9,400.00
|
-
|
9,549.99
|
100.00
|
2,600.00
|
50
|
9,550.00
|
-
|
9,699.99
|
101.00
|
2,626.00
|
51
|
9,700.00
|
-
|
9,849.99
|
103.00
|
2,678.00
|
52
|
9,850.00
|
-
|
9,999.99
|
104.00
|
2,704.00
|
53
|
10,000.00
|
-
|
10,149.99
|
106.00
|
2,756.00
|
54
|
10,150.00
|
-
|
10,299.99
|
108.00
|
2,808.00
|
55
|
10,300.00
|
-
|
10,449.99
|
109.00
|
2,834.00
|
56
|
10,450.00
|
-
|
10,599.99
|
111.00
|
2,886.00
|
57
|
10,600.00
|
-
|
10,749.99
|
112.00
|
2,912.00
|
58
|
10,750.00
|
-
|
10,899.99
|
114.00
|
2,964.00
|
59
|
10,900.00
|
-
|
11,049.99
|
116.00
|
3,016.00
|
60
|
11,050.00
|
-
|
11,199.99
|
117.00
|
3,042.00
|
61
|
11,200.00
|
-
|
11,349.99
|
119.00
|
3,094.00
|
62
|
11,350.00
|
-
|
11,499.99
|
120.00
|
3,120.00
|
63
|
11,500.00
|
-
|
11,649.99
|
122.00
|
3,172.00
|
64
|
11,650.00
|
-
|
11,799.99
|
124.00
|
3,224.00
|
65
|
11,800.00
|
-
|
11,949.99
|
125.00
|
3,250.00
|
66
|
11,950.00
|
-
|
12,099.99
|
127.00
|
3,302.00
|
67
|
12,100.00
|
-
|
12,249.99
|
128.00
|
3,328.00
|
68
|
12,250.00
|
-
|
12,399.99
|
130.00
|
3,380.00
|
69
|
12,400.00
|
-
|
12,549.99
|
131.00
|
3,406.00
|
70
|
12,550.00
|
-
|
12,699.99
|
133.00
|
3,458.00
|
71
|
12,700.00
|
-
|
12,849.99
|
135.00
|
3,510.00
|
72
|
12,850.00
|
-
|
12,999.99
|
136.00
|
3,536.00
|
73
|
13,000.00
|
-
|
13,149.99
|
138.00
|
3,588.00
|
74
|
13,150.00
|
-
|
13,299.99
|
139.00
|
3,614.00
|
75
|
13,300.00
|
-
|
13,449.99
|
141.00
|
3,666.00
|
76
|
13,450.00
|
-
|
13,599.99
|
143.00
|
3,718.00
|
77
|
13,600.00
|
-
|
13,749.99
|
144.00
|
3,744.00
|
78
|
13,750.00
|
-
|
13,899.99
|
146.00
|
3,796.00
|
79
|
13,900.00
|
-
|
14,049.99
|
147.00
|
3,822.00
|
80
|
14,050.00
|
-
|
14,199.99
|
149.00
|
3,874.00
|
81
|
14,200.00
|
-
|
14,349.99
|
150.00
|
3,900.00
|
82
|
14,350.00
|
-
|
14,499.99
|
152.00
|
3,952.00
|
83
|
14,500.00
|
-
|
14,649.99
|
154.00
|
4,004.00
|
84
|
14,650.00
|
-
|
14,799.99
|
155.00
|
4,030.00
|
85
|
14,800.00
|
-
|
14,949.99
|
157.00
|
4,082.00
|
86
|
14,950.00
|
-
|
15,099.99
|
158.00
|
4,108.00
|
87
|
15,100.00
|
-
|
15,249.99
|
160.00
|
4,160.00
|
88
|
15,250.00
|
-
|
15,399.99
|
162.00
|
4,212.00
|
89
|
15,400.00
|
-
|
15,549.99
|
163.00
|
4,238.00
|
90
|
15,550.00
|
-
|
15,699.99
|
165.00
|
4,290.00
|
91
|
15,700.00
|
-
|
15,849.99
|
166.00
|
4,316.00
|
92
|
15,850.00
|
-
|
15,999.99
|
168.00
|
4,368.00
|
93
|
16,000.00
|
-
|
16,149.99
|
170.00
|
4,420.00
|
94
|
16,150.00
|
-
|
16,299.99
|
171.00
|
4,446.00
|
95
|
16,300.00
|
-
|
16,449.99
|
173.00
|
4,498.00
|
96
|
16,450.00
|
-
|
16,599.99
|
174.00
|
4,524.00
|
97
|
16,600.00
|
-
|
16,749.99
|
176.00
|
4,576.00
|
98
|
16,750.00
|
-
|
16,899.99
|
177.00
|
4,602.00
|
99
|
16,900.00
|
-
|
17,049.99
|
179.00
|
4,654.00
|
100
|
17,050.00
|
-
|
17,199.99
|
181.00
|
4,706.00
|
101
|
17,200.00
|
-
|
17,349.99
|
182.00
|
4,732.00
|
102
|
17,350.00
|
-
|
17,499.99
|
184.00
|
4,784.00
|
103
|
17,500.00
|
-
|
17,649.99
|
185.00
|
4,810.00
|
104
|
17,650.00
|
-
|
17,799.99
|
187.00
|
4,862.00
|
105
|
17,800.00
|
-
|
17,949.99
|
189.00
|
4,914.00
|
106
|
17,950.00
|
-
|
18,099.99
|
190.00
|
4,940.00
|
107
|
18,100.00
|
-
|
18,249.99
|
192.00
|
4,992.00
|
108
|
18,250.00
|
-
|
18,399.99
|
193.00
|
5,018.00
|
109
|
18,400.00
|
-
|
18,549.99
|
195.00
|
5,070.00
|
110
|
18,550.00
|
-
|
18,699.99
|
196.00
|
5,096.00
|
111
|
18,700.00
|
-
|
18,849.99
|
198.00
|
5,148.00
|
112
|
18,850.00
|
-
|
18,999.99
|
200.00
|
5,200.00
|
113
|
19,000.00
|
-
|
19,149.99
|
201.00
|
5,226.00
|
114
|
19,150.00
|
-
|
19,299.99
|
203.00
|
5,278.00
|
115
|
19,300.00
|
-
|
19,449.99
|
204.00
|
5,304.00
|
116
|
19,450.00
|
-
|
19,599.99
|
206.00
|
5,356.00
|
117
|
19,600.00
|
-
|
19,749.99
|
208.00
|
5,408.00
|
118
|
19,750.00
|
-
|
19,899.99
|
209.00
|
5,434.00
|
119
|
19,900.00
|
-
|
20,049.99
|
211.00
|
5,486.00
|
120
|
20,050.00
|
-
|
20,199.99
|
212.00
|
5,512.00
|
121
|
20,200.00
|
-
|
20,349.99
|
214.00
|
5,564.00
|
122
|
20,350.00
|
-
|
20,499.99
|
216.00
|
5,616.00
|
123
|
20,500.00
|
-
|
20,649.99
|
217.00
|
5,642.00
|
124
|
20,650.00
|
-
|
20,799.99
|
219.00
|
5,694.00
|
125
|
20,800.00
|
-
|
20,949.99
|
220.00
|
5,720.00
|
126
|
20,950.00
|
-
|
21,099.99
|
222.00
|
5,772.00
|
127
|
21,100.00
|
-
|
21,249.99
|
223.00
|
5,798.00
|
128
|
21,250.00
|
-
|
21,399.99
|
225.00
|
5,850.00
|
129
|
21,400.00
|
-
|
21,549.99
|
227.00
|
5,902.00
|
130
|
21,550.00
|
-
|
21,699.99
|
228.00
|
5,928.00
|
131
|
21,700.00
|
-
|
21,849.99
|
230.00
|
5,980.00
|
132
|
21,850.00
|
-
|
21,999.99
|
231.00
|
6,006.00
|
133
|
22,000.00
|
-
|
22,149.99
|
233.00
|
6,058.00
|
134
|
22,150.00
|
-
|
22,299.99
|
235.00
|
6,110.00
|
135
|
22,300.00
|
-
|
22,449.99
|
236.00
|
6,136.00
|
136
|
22,450.00
|
-
|
22,599.99
|
238.00
|
6,188.00
|
137
|
22,600.00
|
-
|
22,749.99
|
239.00
|
6,214.00
|
138
|
22,750.00
|
-
|
22,899.99
|
241.00
|
6,266.00
|
139
|
22,900.00
|
-
|
23,049.99
|
243.00
|
6,318.00
|
140
|
23,050.00
|
-
|
23,199.99
|
244.00
|
6,344.00
|
141
|
23,200.00
|
-
|
23,349.99
|
246.00
|
6,396.00
|
142
|
23,350.00
|
-
|
23,499.99
|
247.00
|
6,422.00
|
143
|
23,500.00
|
-
|
23,649.99
|
249.00
|
6,474.00
|
144
|
23,650.00
|
-
|
23,799.99
|
250.00
|
6,500.00
|
145
|
23,800.00
|
-
|
23,949.99
|
252.00
|
6,552.00
|
146
|
23,950.00
|
-
|
24,099.99
|
254.00
|
6,604.00
|
147
|
24,100.00
|
-
|
24,249.99
|
255.00
|
6,630.00
|
148
|
24,250.00
|
-
|
24,399.99
|
257.00
|
6,682.00
|
149
|
24,400.00
|
-
|
24,549.99
|
258.00
|
6,708.00
|
150
|
24,550.00
|
-
|
24,699.99
|
260.00
|
6,760.00
|
151
|
24,700.00
|
-
|
24,849.99
|
262.00
|
6,812.00
|
152
|
24,850.00
|
-
|
24,999.99
|
263.00
|
6,838.00
|
153
|
25,000.00
|
-
|
25,149.99
|
265.00
|
6,890.00
|
154
|
25,150.00
|
-
|
25,299.99
|
266.00
|
6,916.00
|
155
|
25,300.00
|
-
|
25,449.99
|
268.00
|
6,968.00
|
156
|
25,450.00
|
-
|
25,599.99
|
269.00
|
6,994.00
|
157
|
25,600.00
|
-
|
25,749.99
|
271.00
|
7,046.00
|
158
|
25,750.00
|
-
|
25,899.99
|
273.00
|
7,098.00
|
159
|
25,900.00
|
-
|
26,049.99
|
274.00
|
7,124.00
|
160
|
26,050.00
|
-
|
26,199.99
|
276.00
|
7,176.00
|
161
|
26,200.00
|
-
|
26,349.99
|
277.00
|
7,202.00
|
162
|
26,350.00
|
-
|
26,499.99
|
279.00
|
7,254.00
|
163
|
26,500.00
|
-
|
26,649.99
|
281.00
|
7,306.00
|
164
|
26,650.00
|
-
|
26,799.99
|
282.00
|
7,332.00
|
165
|
26,800.00
|
-
|
26,949.99
|
284.00
|
7,384.00
|
166
|
26,950.00
|
-
|
27,099.99
|
285.00
|
7,410.00
|
167
|
27,100.00
|
-
|
27,249.99
|
287.00
|
7,462.00
|
168
|
27,250.00
|
-
|
27,399.99
|
289.00
|
7,514.00
|
169
|
27,400.00
|
-
|
AND OVER
|
290.00
|
7,540.00
|
__(d) After he or she has established such wage classes, the
commissioner shall prepare and publish a table setting forth such
information.
(e) Average weekly wage shall be computed by dividing the
number of employees in West Virginia earning wages in covered
employment into the total wages paid to employees in West Virginia
in covered employment, and by further dividing said result by
fifty-two, and shall be determined from employer wage and
contribution reports for the previous calendar year which are
furnished to the department on or before June 1 following such
calendar year. The average weekly wage, as determined by the
commissioner, shall be rounded to the next higher dollar.
(f) The computation and determination of rates as aforesaid
shall be completed annually before July 1 and any such new wage
class, with its corresponding wages in base period, weekly benefit
rate, and maximum benefit in a benefit year established by the
commissioner in the foregoing manner effective on July 1 shall
apply only to a new claim established by a claimant on and after
July 1, and does not apply to continued claims of a claimant based
on his or her new claim established before said July 1.
BENEFIT TABLE
A
WAGE
|
|
B
WAGES IN
|
C
WEEKLY
|
MAXIMUM
|
|
CLASS
|
|
BASE PERIOD
|
BENEFIT RATE
|
BENEFIT RATE
|
|
|
|
Under $2,200.00
|
Ineligible
|
|
|
1
|
$
|
2,200.00
|
-
|
2,359.99
|
24.00
|
624.00
|
|
2
|
|
2,350.00
|
-
|
2,499.99
|
25.00
|
650.00
|
|
3
|
|
2,500.00
|
-
|
2,649.99
|
27.00
|
702.00
|
|
4
|
|
2,650.00
|
-
|
2,799.99
|
28.00
|
728.00
|
|
5
|
|
2,800.00
|
-
|
2,949.99
|
30.00
|
780.00
|
|
6
|
|
2,950.00
|
-
|
3,099.99
|
31.00
|
806.00
|
|
7
|
|
3,100.00
|
-
|
3,249.99
|
33.00
|
858.00
|
|
8
|
|
3,250.00
|
-
|
3,399.99
|
35.00
|
910.00
|
|
9
|
|
3,400.00
|
-
|
3,549.99
|
36.00
|
936.00
|
|
10
|
|
3,550.00
|
-
|
3,699.99
|
38.00
|
988.00
|
|
11
|
|
3,700.00
|
-
|
3,849.99
|
39.00
|
1,014.00
|
|
12
|
|
3,850.00
|
-
|
3,999.99
|
41.00
|
1,066.00
|
|
13
|
|
4,000.00
|
-
|
4,149.99
|
43.00
|
1,118.00
|
|
14
|
|
4,150.00
|
-
|
4,299.99
|
44.00
|
1,144.00
|
|
15
|
|
4,300.00
|
-
|
4,449.99
|
46.00
|
1,196.00
|
|
16
|
|
4,450.00
|
-
|
4,599.99
|
47.00
|
1,222.00
|
|
17
|
|
4,600.00
|
-
|
4,749.99
|
49.00
|
1,274.00
|
|
18
|
|
4,750.00
|
-
|
4,899.99
|
51.00
|
1,326.00
|
|
19
|
|
4,900.00
|
-
|
5,049.99
|
52.00
|
1,352.00
|
|
20
|
|
5,050.00
|
-
|
5,199.99
|
54.00
|
1,404.00
|
7,462.00 16827,250.00 -27,399.99289.00 7,514.00 16927,400.00 -27,549.99290.00 7,540.00 17027,550.00 -27,699.99292.00 7,592.00 17127,700.00 -27,849.99293.00 7,618.00 17227,850.00 -27,999.99295.00 7,670.00 17328,000.00 -28,149.99296.00 7,696.00 17428,150.00 -28,299.99298.00 7,748.00 17528,300.00 -28,449.99300.00 7,800.00 17628,450.00 -28,599.99301.00 7,826.00 17728,600.00 -28,749.99303.00 7,878.00 17828,750.00 -28,899.99304.00 7,904.00 17928,900.00 -29,049.99306.00 7,956.00 18029,050.00 -29,199.99308.00 8,008.00 18129,200.00 -29,349.99309.00 8,034.00 18229,350.00 -29,499.99311.00 8,086.00 18329,500.00 -29,649.99312.00 8,112.00 18429,650.00 -29,799.99314.00 8,164.00 18529,800.00 -
29,949.99315.00 8,190.00 18629,950.00 -30,099.99317.00 8,242.00 18730,100.00 -30,249.99319.00 8,294.00 18830,250.00 -30,399.99320.00 8,320.00 18930,400.00 -30,549.99322.00 8,372.00 19030,550.00 -30,699.99323.00 8,398.00 19130,700.00 -30,849.99325.00 8,450.00 19230,850.00 -30,999.99327.00 8,502.00 19331,000.00 -31,149.99328.00 8,528.00 19431,150.00 -31,299.99330.00 8,580.00 19531,300.00 -31,449.99331.00 8,606.00 19631,450.00 -31,599.99333.00 8,658.00 19731,600.00 -31,749.99335.00 8,710.00 19831,750.00 -31,899.99336.00 8,736.00 19931,900.00 -32,049.99338.00 8,788.00 20032,050.00 -32,199.99339.00 8,814.00 20132,200.00 -32,349.99341.00 8,866.00 20232,350.00 -32,499.99342.00 8,892.00 20332,500.00 -32,649.99344.00 8,944.00 20432,650.00 -32,799.99346.00 8,996.00 20532,800.00 -32,949.99347.00 9,022.00 20632,950.00 -33,099.99349.00 9,074.00 20733,100.00 -33,249.99350.00 9,100.00 20833,250.00 -33,399.99352.00 9,152.00 20933,400.00 -33,549.99354.00 9,204.00 21033,550.00 -
33,699.99355.00 9,230.0021133,700.00 -33,849.99357.00 9,282.0021233,850.00 -33,999.99358.00 9,308.0021334,000.00 -34,149.99360.00 9,360.0021434,150.00 -34,299.99361.00 9,386.0021534,300.00 -34,449.99363.00 9,438.0021634,450.00 -34,599.99365.00 9,490.0021734,600.00 -34,749.99366.00 9,516.0021834,750.00 -34,899.99368.00 9,568.0021934,900.00 -35,049.99369.00 9,594.0022035,050.00 -35,199.99371.00 9,646.0022135,200.00 -35,349.99373.00 9,698.0022235,350.00 -35,499.99374.00 9,724.0022335,500.00 -35,649.99376.00 9,776.0022435,650.00 -35,799.99377.00 9,802.0022535,800.00 -35,949.99379.00 9,854.0022635,950.00 -
36,999.99381.00 9,906.0022736,100.00 -36,249.99382.00 9,932.0022836,250.00 -36,399.99384.00 9,984.0022936,400.00 -36,549.99385.00 10,010.0023036,550.00 -36,699.99387.00 10,062.0023136,700.00 -36,849.99388.00 10,088.0023236,850.00 -36,999.99390.00 10,140.0023337,000.00 -37,149.99392.00 10,192.0023437,150.00 -37,299.99393.00 10,218.0023537,300.00 -37,449.99395.00 10,270.0023637,450.00 -37,599.99396.00 10,296.0023737,600.00 -37,749.99398.00 10,348.0023837,750.00 -37,899.99400.00 10,400.0023937,900.00 -38,049.99401.00 10,426.0024038,050.00 -38,199.99403.00 10,478.0024138,200.00 -38,349.99404.00 10,504.0024238,350.00 -38,499.99406.00 10,556.0024338,500.00 -38,649.99408.00 10,608.0024438,650.00 -38,799.99409.00 10,634.0024538,800.00 -38,949.99411.00 10,686.0024638,950.00 -39,099.99412.00 10,712.0024739,100.00 -39,249.99414.00 10,764.0024839,250.00 -39,399.99415.00 10,790.0024939,400.00 -39,549.99417.00 10,842.0025039,550.00 -39,699.99419.00 10,894.0025139,700.00 -39,849.99420.00 10,920.0025239,850.00 -39,999.99422.00 10,972.0025340,000.00 -40,149.99423.00 10,998.0025440,150.00 -and above424.00 11,024.00
|
21
|
|
5,200.00
|
-
|
5,349.99
|
55.00
|
1,430.00
|
|
22
|
|
5,350.00
|
-
|
5,499.99
|
57.00
|
1,482.00
|
|
23
|
|
5,500.00
|
-
|
5,649.99
|
58.00
|
1,508.00
|
|
24
|
|
5,650.00
|
-
|
5,799.99
|
60.00
|
1,560.00
|
|
25
|
|
5,800.00
|
-
|
5,949.99
|
62.00
|
1,612.00
|
|
26
|
|
5,950.00
|
-
|
6,099.99
|
63.00
|
1,638.00
|
|
27
|
|
6,100.00
|
-
|
6,249.99
|
65.00
|
1,690.00
|
|
28
|
|
6,250.00
|
-
|
6,399.99
|
66.00
|
1,716.00
|
|
29
|
|
6,400.00
|
-
|
6,549.99
|
68.00
|
1,768.00
|
|
30
|
|
6,550.00
|
-
|
6,699.99
|
70.00
|
1,820.00
|
|
31
|
|
6,700.00
|
-
|
6,849.99
|
71.00
|
1,846.00
|
|
32
|
|
6,850.00
|
-
|
6,999.99
|
73.00
|
1,898.00
|
|
33
|
|
7,000.00
|
-
|
7,149.99
|
74.00
|
1,924.00
|
|
34
|
|
7,150.00
|
-
|
7,299.99
|
76.00
|
1,976.00
|
|
35
|
|
7,300.00
|
-
|
7,449.99
|
78.00
|
2,028.00
|
|
36
|
|
7,450.00
|
-
|
7,599.99
|
79.00
|
2,054.00
|
|
37
|
|
7,600.00
|
-
|
7,749.99
|
81.00
|
2,106.00
|
|
38
|
|
7,750.00
|
-
|
7,899.99
|
82.00
|
2,132.00
|
|
39
|
|
7,900.00
|
-
|
8,049.99
|
84.00
|
2,184.00
|
|
40
|
|
8,050.00
|
-
|
8,199.99
|
85.00
|
2,210.00
|
|
41
|
|
8,200.00
|
-
|
8,349.99
|
87.00
|
2,262.00
|
|
42
|
|
8,350.00
|
-
|
8,499.99
|
89.00
|
2,314.00
|
|
43
|
|
8,500.00
|
-
|
8,649.99
|
90.00
|
2,340.00
|
|
44
|
|
8,650.00
|
-
|
8,799.99
|
92.00
|
2,392.00
|
|
45
|
|
8,800.00
|
-
|
8,949.99
|
93.00
|
2,418.00
|
|
46
|
|
8,950.00
|
-
|
9,099.99
|
95.00
|
2,470.00
|
|
47
|
|
9,100.00
|
-
|
9,249.99
|
97.00
|
2,522.00
|
|
48
|
|
9,250.00
|
-
|
9,399.99
|
98.00
|
2,548.00
|
|
49
|
|
9,400.00
|
-
|
9,549.99
|
100.00
|
2,600.00
|
|
50
|
|
9,550.00
|
-
|
9,699.99
|
101.00
|
2,626.00
|
|
51
|
|
9,700.00
|
-
|
9,849.99
|
103.00
|
2,678.00
|
|
52
|
|
9,850.00
|
-
|
9,999.99
|
104.00
|
2,704.00
|
|
53
|
|
10,000.00
|
-
|
10,149.99
|
106.00
|
2,756.00
|
|
54
|
|
10,150.00
|
-
|
10,299.99
|
108.00
|
2,808.00
|
|
55
|
|
10,300.00
|
-
|
10,449.99
|
109.00
|
2,834.00
|
|
56
|
|
10,450.00
|
-
|
10,599.99
|
111.00
|
2,886.00
|
|
57
|
|
10,600.00
|
-
|
10,749.99
|
112.00
|
2,912.00
|
|
58
|
|
10,750.00
|
-
|
10,899.99
|
114.00
|
2,964.00
|
|
59
|
|
10,900.00
|
-
|
11,049.99
|
116.00
|
3,016.00
|
|
60
|
|
11,050.00
|
-
|
11,199.99
|
117.00
|
3,042.00
|
|
61
|
|
11,200.00
|
-
|
11,349.99
|
119.00
|
3,094.00
|
|
62
|
|
11,350.00
|
-
|
11,499.99
|
120.00
|
3,120.00
|
|
63
|
|
11,500.00
|
-
|
11,649.99
|
122.00
|
3,172.00
|
|
64
|
|
11,650.00
|
-
|
11,799.99
|
124.00
|
3,224.00
|
|
65
|
|
11,800.00
|
-
|
11,949.99
|
125.00
|
3,250.00
|
|
66
|
|
11,950.00
|
-
|
12,099.99
|
127.00
|
3,302.00
|
|
67
|
|
12,100.00
|
-
|
12,249.99
|
128.00
|
3,328.00
|
|
68
|
|
12,250.00
|
-
|
12,399.99
|
130.00
|
3,380.00
|
|
69
|
|
12,400.00
|
-
|
12,549.99
|
131.00
|
3,406.00
|
|
70
|
|
12,550.00
|
-
|
12,699.99
|
133.00
|
3,458.00
|
|
71
|
|
12,700.00
|
-
|
12,849.99
|
135.00
|
3,510.00
|
|
72
|
|
12,850.00
|
-
|
12,999.99
|
136.00
|
3,536.00
|
|
73
|
|
13,000.00
|
-
|
13,149.99
|
138.00
|
3,588.00
|
|
74
|
|
13,150.00
|
-
|
13,299.99
|
139.00
|
3,614.00
|
|
75
|
|
13,300.00
|
-
|
13,449.99
|
141.00
|
3,666.00
|
|
76
|
|
13,450.00
|
-
|
13,599.99
|
143.00
|
3,718.00
|
|
77
|
|
13,600.00
|
-
|
13,749.99
|
144.00
|
3,744.00
|
|
78
|
|
13,750.00
|
-
|
13,899.99
|
146.00
|
3,796.00
|
|
79
|
|
13,900.00
|
-
|
14,049.99
|
147.00
|
3,822.00
|
|
80
|
|
14,050.00
|
-
|
14,199.99
|
149.00
|
3,874.00
|
|
81
|
|
14,200.00
|
-
|
14,349.99
|
150.00
|
3,900.00
|
|
82
|
|
14,350.00
|
-
|
14,499.99
|
152.00
|
3,952.00
|
|
83
|
|
14,500.00
|
-
|
14,649.99
|
154.00
|
4,004.00
|
|
84
|
|
14,650.00
|
-
|
14,799.99
|
155.00
|
4,030.00
|
|
85
|
|
14,800.00
|
-
|
14,949.99
|
157.00
|
4,082.00
|
|
86
|
|
14,950.00
|
-
|
15,099.99
|
158.00
|
4,108.00
|
|
87
|
|
15,100.00
|
-
|
15,249.99
|
160.00
|
4,160.00
|
|
88
|
|
15,250.00
|
-
|
15,399.99
|
162.00
|
4,212.00
|
|
89
|
|
15,400.00
|
-
|
15,549.99
|
163.00
|
4,238.00
|
|
90
|
|
15,550.00
|
-
|
15,699.99
|
165.00
|
4,290.00
|
|
91
|
|
15,700.00
|
-
|
15,849.99
|
166.00
|
4,316.00
|
|
92
|
|
15,850.00
|
-
|
15,999.99
|
168.00
|
4,368.00
|
|
93
|
|
16,000.00
|
-
|
16,149.99
|
170.00
|
4,420.00
|
|
94
|
|
16,150.00
|
-
|
16,299.99
|
171.00
|
4,446.00
|
|
95
|
|
16,300.00
|
-
|
16,449.99
|
173.00
|
4,498.00
|
|
96
|
|
16,450.00
|
-
|
16,599.99
|
174.00
|
4,524.00
|
|
97
|
|
16,600.00
|
-
|
16,749.99
|
176.00
|
4,576.00
|
|
98
|
|
16,750.00
|
-
|
16,899.99
|
177.00
|
4,602.00
|
|
99
|
|
16,900.00
|
-
|
17,049.99
|
179.00
|
4,654.00
|
|
100
|
|
17,050.00
|
-
|
17,199.99
|
181.00
|
4,706.00
|
|
101
|
|
17,200.00
|
-
|
17,349.99
|
182.00
|
4,732.00
|
|
102
|
|
17,350.00
|
-
|
17,499.99
|
184.00
|
4,784.00
|
|
103
|
|
17,500.00
|
-
|
17,649.99
|
185.00
|
4,810.00
|
|
104
|
|
17,650.00
|
-
|
17,799.99
|
187.00
|
4,862.00
|
|
105
|
|
17,800.00
|
-
|
17,949.99
|
189.00
|
4,914.00
|
|
106
|
|
17,950.00
|
-
|
18,099.99
|
190.00
|
4,940.00
|
|
107
|
|
18,100.00
|
-
|
18,249.99
|
192.00
|
4,992.00
|
|
108
|
|
18,250.00
|
-
|
18,399.99
|
193.00
|
5,018.00
|
|
109
|
|
18,400.00
|
-
|
18,549.99
|
195.00
|
5,070.00
|
|
110
|
|
18,550.00
|
-
|
18,699.99
|
196.00
|
5,096.00
|
|
111
|
|
18,700.00
|
-
|
18,849.99
|
198.00
|
5,148.00
|
|
112
|
|
18,850.00
|
-
|
18,999.99
|
200.00
|
5,200.00
|
|
113
|
|
19,000.00
|
-
|
19,149.99
|
201.00
|
5,226.00
|
|
114
|
|
19,150.00
|
-
|
19,299.99
|
203.00
|
5,278.00
|
|
115
|
|
19,300.00
|
-
|
19,449.99
|
204.00
|
5,304.00
|
|
116
|
|
19,450.00
|
-
|
19,599.99
|
206.00
|
5,356.00
|
|
117
|
|
19,600.00
|
-
|
19,749.99
|
208.00
|
5,408.00
|
|
118
|
|
19,750.00
|
-
|
19,899.99
|
209.00
|
5,434.00
|
|
119
|
|
19,900.00
|
-
|
20,049.99
|
211.00
|
5,486.00
|
|
120
|
|
20,050.00
|
-
|
20,199.99
|
212.00
|
5,512.00
|
|
121
|
|
20,200.00
|
-
|
20,349.99
|
214.00
|
5,564.00
|
|
122
|
|
20,350.00
|
-
|
20,499.99
|
216.00
|
5,616.00
|
|
123
|
|
20,500.00
|
-
|
20,649.99
|
217.00
|
5,642.00
|
|
124
|
|
20,650.00
|
-
|
20,799.99
|
219.00
|
5,694.00
|
|
125
|
|
20,800.00
|
-
|
20,949.99
|
220.00
|
5,720.00
|
|
126
|
|
20,950.00
|
-
|
21,099.99
|
222.00
|
5,772.00
|
|
127
|
|
21,100.00
|
-
|
21,249.99
|
223.00
|
5,798.00
|
|
128
|
|
21,250.00
|
-
|
21,399.99
|
225.00
|
5,850.00
|
|
129
|
|
21,400.00
|
-
|
21,549.99
|
227.00
|
5,902.00
|
|
130
|
|
21,550.00
|
-
|
21,699.99
|
228.00
|
5,928.00
|
|
131
|
|
21,700.00
|
-
|
21,849.99
|
230.00
|
5,980.00
|
|
132
|
|
21,850.00
|
-
|
21,999.99
|
231.00
|
6,006.00
|
|
133
|
|
22,000.00
|
-
|
22,149.99
|
233.00
|
6,058.00
|
|
134
|
|
22,150.00
|
-
|
22,299.99
|
235.00
|
6,110.00
|
|
135
|
|
22,300.00
|
-
|
22,449.99
|
236.00
|
6,136.00
|
|
136
|
|
22,450.00
|
-
|
22,599.99
|
238.00
|
6,188.00
|
|
137
|
|
22,600.00
|
-
|
22,749.99
|
239.00
|
6,214.00
|
|
138
|
|
22,750.00
|
-
|
22,899.99
|
241.00
|
6,266.00
|
|
139
|
|
22,900.00
|
-
|
23,049.99
|
243.00
|
6,318.00
|
|
140
|
|
23,050.00
|
-
|
23,199.99
|
244.00
|
6,344.00
|
|
141
|
|
23,200.00
|
-
|
23,349.99
|
246.00
|
6,396.00
|
|
142
|
|
23,350.00
|
-
|
23,499.99
|
247.00
|
6,422.00
|
|
143
|
|
23,500.00
|
-
|
23,649.99
|
249.00
|
6,474.00
|
|
144
|
|
23,650.00
|
-
|
23,799.99
|
250.00
|
6,500.00
|
|
145
|
|
23,800.00
|
-
|
23,949.99
|
252.00
|
6,552.00
|
|
146
|
|
23,950.00
|
-
|
24,099.99
|
254.00
|
6,604.00
|
|
147
|
|
24,100.00
|
-
|
24,249.99
|
255.00
|
6,630.00
|
|
148
|
|
24,250.00
|
-
|
24,399.99
|
257.00
|
6,682.00
|
|
149
|
|
24,400.00
|
-
|
24,549.99
|
258.00
|
6,708.00
|
|
150
|
|
24,550.00
|
-
|
24,699.99
|
260.00
|
6,760.00
|
|
151
|
|
24,700.00
|
-
|
24,849.99
|
262.00
|
6,812.00
|
|
152
|
|
24,850.00
|
-
|
24,999.99
|
263.00
|
6,838.00
|
|
153
|
|
25,000.00
|
-
|
25,149.99
|
265.00
|
6,890.00
|
|
154
|
|
25,150.00
|
-
|
25,299.99
|
266.00
|
6,916.00
|
|
155
|
|
25,300.00
|
-
|
25,449.99
|
268.00
|
6,968.00
|
|
156
|
|
25,450.00
|
-
|
25,599.99
|
269.00
|
6,994.00
|
|
157
|
|
25,600.00
|
-
|
25,749.99
|
271.00
|
7,046.00
|
|
158
|
|
25,750.00
|
-
|
25,899.99
|
273.00
|
7,098.00
|
|
159
|
|
25,900.00
|
-
|
26,049.99
|
274.00
|
7,124.00
|
|
160
|
|
26,050.00
|
-
|
26,199.99
|
276.00
|
7,176.00
|
|
161
|
|
26,200.00
|
-
|
26,349.99
|
277.00
|
7,202.00
|
|
162
|
|
26,350.00
|
-
|
26,499.99
|
279.00
|
7,254.00
|
|
163
|
|
26,500.00
|
-
|
26,649.99
|
281.00
|
7,306.00
|
|
164
|
|
26,650.00
|
-
|
26,799.99
|
282.00
|
7,332.00
|
|
165
|
|
26,800.00
|
-
|
26,949.99
|
284.00
|
7,384.00
|
|
166
|
|
26,950.00
|
-
|
27,099.99
|
285.00
|
7,410.00
|
|
167
|
|
27,100.00
|
-
|
27,249.99
|
287.00
|
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-3. Creation of employer mutual as successor organization of
the West Virginia Workers' Compensation Commission.
(a) (1) On or before the June 1, 2005, the executive director may take such actions as are necessary to establish an employers'
mutual insurance company as a domestic, private, nonstock,
corporation to:
(A) Insure employers against liability for injuries and
occupational diseases for which their employees may be entitled to
receive compensation pursuant to this chapter and federal Longshore
and Harbor Workers' Compensation Act, 33 U. S. C. §901,
et seq.;
(B) Provide employer's liability insurance incidental to and
provided in connection with the insurance specified in paragraph
(A) of this subdivision, including coal workers' pneumoconiosis
coverage and employer excess liability coverage as provided in this
chapter; and
(C) Transact other kinds of property and casualty insurance
for which the company is otherwise qualified under the provisions
of this code.
(2) The company may not sell, assign or transfer substantial
assets or ownership of the company.
(b) If the executive director establishes a domestic mutual
insurance company pursuant to subsection (a) of this section:
(1) As soon as practical, the company established pursuant to
the provisions of this article shall, through a vote of a majority
of its provisional board, file its corporate charter and bylaws with the Insurance Commissioner and apply for a license with the
Insurance Commissioner to transact insurance in this state.
Notwithstanding any other provision of this code, the Insurance
Commissioner shall act on the documents within fifteen days of the
filing by the company.
(2) In recognition of the workers' compensation insurance
liability insurance crisis in this state at the time of enactment
of this article and the critical need to expedite the initial
operation of the company, the Legislature authorizes the Insurance
Commissioner to review the documentation submitted by the company
and to determine the initial capital and surplus requirements of
the company, notwithstanding the provisions of section five-b,
article three, chapter thirty-three of this code. The company
shall furnish the Insurance Commissioner with all information and
cooperate in all respects necessary for the Insurance Commissioner
to perform the duties set forth in this section and in other
provisions of this chapter and chapter thirty-three of this code.
The Insurance Commissioner shall monitor the economic viability of
the company during its initial operation on not less than a monthly
basis, until the commissioner, in his or her discretion, determines
that monthly reporting is not necessary. In all other respects the
company shall comply with the applicable provisions of chapter
thirty-three of this code.
(3) Subject to the provisions of subdivision (4) of this
subsection, the Insurance Commissioner may waive other requirements
imposed on mutual insurance companies by the provisions of chapter
thirty-three of this code the Insurance Commissioner determines are
necessary to enable the company to begin insuring employers in this
state at the earliest possible date.
(4) Within forty months of the date of the issuance of its
license to transact insurance, the company shall comply with the
capital and surplus requirements set forth in subsection (a),
section five-b, article three, chapter thirty-three of this code in
effect on the effective date of this enactment, unless the deadline
is extended by the Insurance Commissioner.
(c) For the duration of its existence, the company is not a
department, unit, agency or instrumentality of the state for any
purpose. All debts, claims, obligations and liabilities of the
company, whenever incurred, are the debts, claims, obligations and
liabilities of the company only and not of the state or of any
department, unit, agency, instrumentality, officer or employee of
the state.
(d) The moneys of the company are not part of the General
Revenue Fund of the state. The debts, claims, obligations and
liabilities of the company are not a debt of the state or a pledge of the credit of the state.
(e) The company is not subject to provisions of article
nine-a, chapter six of this code; the provisions of article two,
chapter six-c of this code; the provisions of chapter twenty-nine-b
of this code; the provisions of article three, chapter five-a of
this code; the provisions of article six, chapter twenty-nine of
this code; or the provisions of chapter twelve of this code.
(f) If the commission has been terminated, effective upon the
termination, private carriers, including the company, are not
subject to payment of premium taxes, surcharges and credits
contained in article three, chapter thirty-three of this code on
premiums received for coverage under this chapter. In lieu
thereof, the workers' compensation insurance market is subject to
the following:
(1) (A) Each fiscal year, the Insurance Commissioner shall
calculate a percentage surcharge to be collected by each private
carrier from its policyholders. The surcharge percentage shall be
calculated by dividing the previous fiscal year's total premiums
collected plus deductible payments by all employers into the
portion of the Insurance Commissioner's budget amount attributable
to regulation of the private carrier market. This resulting
percentage shall be applied to each policyholder's premium payment and deductible payments as a surcharge and remitted to the
Insurance Commissioner. Said surcharge shall be remitted within
ninety days of receipt of premium payments;
(B) With respect to fiscal years beginning on and after July
1, 2008, in lieu of the surcharge set forth in the preceding
paragraph, each private carrier shall collect a surcharge in the
amount of five and five-tenths percent of the premium collected
plus the total of all premium discounts based on deductible
provisions that were applied:
Provided, That prior to June 30,
2013, and every five years thereafter, the commissioner shall
review the percentage surcharge and determine a new percentage as
he or she deems necessary.
(C) The amounts required to be collected under paragraph (B)
of this subdivision shall be remitted to the Insurance Commissioner
on or before the twenty-fifth day of the month succeeding the end
of the quarter in which they are collected, except for the fourth
quarter for which the surcharge shall be remitted on or before the
March 1 of the succeeding year.
(2) Each fiscal year, the Insurance Commissioner shall
calculate a percentage surcharge to be remitted on a quarterly
basis by self-insured employers and said percentage shall be
calculated by dividing previous year's self-insured payroll in the state into the portion of the Insurance Commissioner's budget
amount attributable to regulation of the self-insured employer
market. This resulting percentage shall be applied to each
self-insured employer's payroll and the resulting amount shall be
remitted as a regulatory surcharge by each self-insured employer.
The Industrial Council may promulgate a rule for implementation of
this section. The company, all other private carriers and all
self-insured employers shall furnish the Insurance Commissioner
with all required information and cooperate in all respects
necessary for the Insurance Commissioner to perform the duties set
forth in this section and in other provisions of this chapter and
chapter thirty-three of this code. The surcharge shall be
calculated so as to only defray the costs associated with the
administration of this chapter and the funds raised shall not be
used for any other purpose
except as set forth in subdivision (4)
of this subsection;
(3) (A) Each private carrier shall collect a premiums
surcharge from its policyholders as annually determined, by May 1
of each year, by the Insurance Commissioner to produce $45 million
annually, of each policyholder's periodic premium amount for
workers' compensation insurance:
Provided, That the surcharge rate
on policies issued or renewed on or after July 1, 2008, shall be
nine percent of the premium collected plus the total of all premium discounts based on deductible provisions that were applied.
(B) By May 1 each year, the self-insured employer community
shall be assessed a cumulative total of $9 million. The
methodology for the assessment shall be fair and equitable and
determined by exempt legislative rule issued by the Industrial
Council. The amount collected pursuant to this subdivision shall
be remitted to the Insurance Commissioner for deposit in the
Workers' Compensation Debt Reduction Fund created in section five,
article two-d of this chapter.
(4) On or before July 1, 2009, the Insurance Commissioner
shall make a one-time lump sum transfer of $40 million generated
from the surcharges assessed pursuant to paragraph (B), subdivision
(1) of this subsection and subdivision (2) of this subsection to
the Bureau of Employment Programs' Commissioner for deposit with
the Secretary of the Treasury of the United States as a credit of
this state in the Unemployment Trust Fund Account maintained
pursuant to section four, article eight, chapter twenty-one-a of
this code.
(g) The new premiums surcharge imposed by paragraphs (A) and
(B), subdivision (3), subsection (f) of this section sunset and are
not collectible with respect to workers' compensation insurance
premiums paid when the policy is renewed on or after the first day of the month following the month in which the Governor certifies to
the Legislature that the revenue bonds issued pursuant to article
two-d of this chapter have been retired and that the unfunded
liability of the Old Fund has been paid or has been provided for in
its entirety, whichever occurs last.;
And,
By striking out the title and inserting in lieu thereof a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 246--A Bill
to amend and
reenact §21A-1-4 of the Code of West Virginia, 1931, as amended; to
amend and reenact §21A-1A-5, §21A-1A-6, §21A-1A-7 and §21A-1A-28 of
said code; to amend and reenact §21A-6-1, §21A-6-3 and §21A-6-10 of
said code; and to amend and reenact §23-2C-3 of said code, all
relating generally to unemployment compensation; requiring
establishment of employer violator system; providing for notice and
due process; defining certain terms; providing that the maximum
weekly benefit rate shall not increase or decrease under certain
circumstances; providing for an alternative base wage and
authorizing benefits thereunder; requiring notice to employer when
employee quits for health reasons; requiring written certification
from physician within thirty days; classifying certain conduct as
gross misconduct; providing that an employee who voluntarily retires is not eligible for unemployment; requiring the Insurance
Commissioner transfer certain funds for the benefit of the
Unemployment Trust Fund; and authorizing the transfer of certain
funds by the Insurance Commissioner.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 246, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Bowman, Browning,
Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Wells, White, Williams, Yost and Tomblin (Mr.
President)--30.
The nays were: Barnes, Boley, Caruth and Unger--4.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 246) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green,
Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard,
Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Wells, White, Williams, Yost and Tomblin (Mr. President)--30.
The nays were: Barnes, Boley, Caruth and Unger--4.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 246) 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
that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of five from
each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 249, Relating
to annual school calendar.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Pethtel, Perry, Ennis, Rowan and Romine.
On motion of Senator Chafin, the Senate agreed to the appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Edgell, Browning, Foster, Laird and Boley.
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, 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. 258, Clarifying local
fiscal bodies cannot be held liable for certain deficits.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after
the enacting clause and
inserting in lieu thereof the following:
ARTICLE 8. LEVIES.
§11-8-26. Unlawful expenditures by local fiscal body.
(a) Except as provided in sections fourteen-b, twenty-five-a and twenty-six-a of this article, a local fiscal body shall not
expend money or incur obligations:
(1) In an unauthorized manner;
(2) For an unauthorized purpose;
(3) In excess of the amount allocated to the fund in the levy
order; or
(4) In excess of the funds available for current expenses.
(b) Notwithstanding the foregoing and any other provision of
law to the contrary, a local fiscal body or its duly authorized
officials shall may not be penalized for a casual deficit which
does not exceed its approved levy estimate by more than three
percent: Provided, That such casual deficit be is satisfied in the
levy estimate for the succeeding fiscal year: Provided, however,
That in calculating a deficit for purposes of this section, account
shall not be taken of any amount for which the local fiscal body
may be liable for the unfunded actuarial accrued liability of the
West Virginia Retiree Health Benefit Trust Fund or any amount
allocated to the local fiscal body as an employer annual required
contribution that exceeds the minimum annual employer payment
component of the contribution, all as provided under article
sixteen-d, chapter five of this code.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 258, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 258) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 258) 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 Com. Sub. for Senate Bill No. 279, Relating
to industrial accidents and emergency response regulations.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page five, section three-a, line fifty, after the words "of
a" by inserting the word "legislative";
On page eight, section three-a, line one hundred eighteen,
after the word "safe" by changing the period to a colon and
inserting the following proviso: Provided, however, That within
thirty minutes of obtaining information that affects the public health, safety and welfare, state and local officials shall notify
the public of any hazardous materials or events which may affect
the area.;
On page nine, section three-a, after line one hundred fifty-
one, by inserting a new subdivision, designated subdivision (f), to
read as follows:
(4) All moneys collected pursuant to this section shall be
deposited in the Hazardous Waste Emergency Response Fund, as
established pursuant to section three, article nineteen, chapter
twenty-two of this code.;
And,
By striking out the title and inserting in lieu thereof a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 279--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §15-5B-3a, relating generally to
industrial and railroad accidents and emergencies; providing
definitions; requiring the reporting of certain industrial
emergencies to the Mine and Industrial Accident Emergency
Operations Center or local emergency telephone system operators;
requiring industrial facilities to provide certain information to
state and local emergency responders; requiring operators of railroad facilities in this state to provide certain information to
state and local emergency responders in the event of a railroad
accident or emergency; granting state and local officials access to
the person or persons charged with managing an industrial or
railroad emergency and certain areas affected by the emergency;
requiring state and local officials to timely provide information
related to public health, safety and welfare regarding hazardous
waste releases and other emergency events; authorizing the Director
of the Division of Homeland Security and Emergency Management to
promulgate emergency legislative rules establishing a list of
facilities subject to the requirements of this section and
establishing procedures; providing for civil penalties;
requiring
the collected moneys to be deposited into the Hazardous Waste
Emergency Response Fund
; and authorizing the promulgation of
legislative rules.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 279, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 279) 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, to take effect July 1, 2009, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 297, Creating
Alternative and Renewable Energy Portfolio Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On
page seven, section three, line twenty-nine, by striking
out paragraph (10) in its entirety and renumbering the remaining
paragraph;
On page twenty-two, section five, lines seventy-seven through
eighty-two, by striking out subdivision (2) in its entirety;
And renumbering the remaining subdivision;
On page twenty-four, section five, after line one hundred
twenty-one, by inserting a new subsection, designated subsection
(i), to read as follows:
(i) Termination. -- The provisions of this section shall have
no force and effect after June 30, 2021.;
On pages twenty-eight and twenty-nine, section six, lines
ninety-two through one hundred three, by striking out subsection
(k) in its entirety and inserting in lieu thereof a new subsection
(k), to read as follows:
(k) The commission shall impose a special assessment on all
electric utilities required to file a compliance plan. The
assessments shall be prorated among the covered electric utilities
on the basis of kilowatt hours of retail sales in West Virginia and
shall be due and payable on September 1 of each year. The amount
of revenue collected pursuant to this subsection shall not exceed $200,000 in the first year following the effective date of this
article and shall not exceed $100,000 in successive years. The
funds generated from the assessments shall be used exclusively to
offset all reasonable direct and indirect costs incurred by the
commission in administering the provisions of this article.;
On pages thirty-five and thirty-six, section eleven, lines
eighteen through twenty-seven, by striking out subsection (c) in
its entirety;
And relettering the remaining subsections;
On page thirty-seven, by striking out section twelve in its
entirety;
And renumbering the remaining sections;
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 §24-2F-1, §24-2F-2,
§24-2F-3, §24-2F-4, §24-2F-5, §24-2F-6, §24-2F-7, §24-2F-8,
§24-2F-9, §24-2F-10, §24-2F-11 and §24-2F-12, all to read as
follows:;
And,
By striking out the title and inserting in lieu thereof a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 297--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new article, designated §24-2F-1, §24-2F-2, §24-2F-3,
§24-2F-4, §24-2F-5, §24-2F-6, §24-2F-7, §24-2F-8, §24-2F-9, §24-2F-
10, §24-2F-11 and §24-2F-12, all relating to an alternative and
renewable energy portfolio standard; setting forth legislative
findings; defining terms; establishing standards for the sale of
electricity generated from alternative and renewable energy
resources; providing for compliance assessments; creating a system
of tradeable alternative and renewable energy resource credits;
providing for the awarding of credits based upon electricity
generated from alternative and renewable energy resource
facilities; providing for the awarding of credits for certain
greenhouse emissions reduction and offset projects; providing for
the awarding of credits for certain energy efficiency and
demand-side energy initiative projects; requiring application to
the Public Service Commission for approval of alternative and
renewable energy portfolio standard compliance plans; setting forth
minimum requirements for compliance plan applications; requiring
Public Service Commission approval of compliance plan applications;
requiring annual progress reports; providing for incentive
ratemaking for investments in new alternative and renewable energy
resource facilities in West Virginia; requiring the Public Service Commission to adopt certain net metering and interconnection rules
and standards; authorizing the Public Service Commission to enter
into interagency agreements to meet its requirements under this
article; requiring an ongoing assessment of alternative and
renewable energy resources in West Virginia; authorizing Public
Service Commission to adopt portfolio standards for certain
electric cooperatives and other electric facilities or utilities;
establishing the Alternative and Renewable Energy Resources
Research Fund; providing for the awarding of matching grants for
certain research projects; and authorizing the Public Service
Commission to promulgate rules.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 297, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: Hall--1.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 297) passed with its House of
Delegates amended title.
[CLERK'S NOTE: Engrossed Committee Substitute for Committee
Substitute for Senate Bill No. 297 (Creating Alternative and
Renewable Energy Portfolio Act) was not enrolled due to technical
deficiency. The bill was not passed by both houses in identical
form.]
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: Hall--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 297) takes effect July 1,
2009.
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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 461, Extending selenium
effluent limits compliance time.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
§22-11-6. Requirement to comply with standards of water quality
and effluent limitations.
All persons affected by rules establishing water quality
standards and effluent limitations shall promptly comply therewith:
Provided, That where necessary and proper, the chief may specify a
reasonable time for persons not complying with such standards and limitations to comply therewith, and, upon the expiration of any
such period of time, the chief shall revoke or modify any permit
previously issued which authorized the discharge of treated or
untreated sewage, industrial wastes or other wastes into the waters
of this state which result in reduction of the quality of such
waters below the standards and limitations established therefor by
rules of the board or director. The Legislature finds that there
are concerns within West Virginia regarding the applicability of
the research underlying the federal selenium criteria to a state
such as West Virginia which has high precipitation rates and free-
flowing streams and that the alleged environmental impacts that
were documented in applicable federal research have not been
observed in West Virginia and, further, that considerable research
is required to determine if selenium is having an impact on West
Virginia streams, to validate or determine the proper testing
methods for selenium and to better understand the chemical
reactions related to selenium mobilization in water. For existing
NPDES permits, the department may extend the time period for
achieving water quality-based effluent limits for selenium
discharges into waters supporting aquatic life uses to July 1,
2012, upon compliance with all federally required public notice
requirements for such modifications, upon a finding that the
permittee cannot comply with its existing compliance schedule and that an extension is not in violation of any state or federal laws,
rules or regulations. The West Virginia Department of
Environmental Protection is hereby directed to undertake a
comprehensive study relating to selenium and prepare a report
detailing such findings and submitting the report to the Joint
Committee on Government and Finance no later than January 1, 2010.
In conducting such study, the West Virginia Department of
Environmental Protection shall consult with, among others, West
Virginia University and the West Virginia Water Research Institute.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 461, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, Williams, Yost and Tomblin
(Mr. President)--32.
The nays were: Barnes and White--2.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 461) passed with its 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. 537, Relating to workers'
compensation.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §23-5-17 and §23-5-18 of the Code of West Virginia, 1931,
as amended, be repealed; that §23-2-1d of said code be amended and
reenacted; that §23-2A-1 of said code be amended and reenacted;
that §23-2C-8, §23-2C-15, §23-2C-17 and §23-2C-21 of said code be
amended and reenacted; that §23-4-1c, §23-4-6b, §23-4-8, §23-4-8c
and §23-4-15b of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §23-4-8d;
that §23-5-1, §23-5-3 and §23-5-16 of said code be amended and
reenacted; and that §33-2-22 of said code be amended and reenacted,
all to read as follows:
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1d. Prime contractors and subcontractors liability.
(a) For the exclusive purposes of this section, the term
"employer" as defined in section one of this article includes any
primary contractor who regularly subcontracts with other employers
for the performance of any work arising from or as a result of the
primary contractor's own contract: Provided, That a subcontractor
does not include one providing goods rather than services. For
purposes of this subsection, extraction of natural resources is a
provision of services. In the event that a subcontracting employer
defaults on its obligations to make payments to the commission,
then the primary contractor is liable for the payments. However,
nothing contained in this section shall extend or except to a
primary contractor or subcontractors the provisions of section six,
six-a or eight of this article. This section is applicable only
with regard to subcontractors with whom the primary contractor has a contract for any work or services for a period longer than thirty
sixty days: Provided, however, That this section is also
applicable to contracts for consecutive periods of work that total
more than thirty sixty days. It is not applicable to the primary
contractor with regard to sub-subcontractors. However, a
subcontractor for the purposes of a contract with the primary
contractor can itself become a primary contractor with regard to
other employers with whom it subcontracts. It is the intent of the
Legislature that no contractor, whether a primary contractor,
subcontractor or sub-subcontractor, escape or avoid liability for
any workers' compensation premium, assessment or tax. The
executive director shall propose for promulgation a rule to effect
this purpose on or before December 31, 2003.
(b) A primary contractor may avoid initial liability under
subsection (a) of this section if it obtains from the executive
director, prior to the initial performance of any work by the
subcontractor's employees, a certificate that the subcontractor is
in good standing with the Workers' Compensation Fund.
(1) Failure to obtain the certificate of good standing prior
to the initial performance of any work by the subcontractor results
in the primary contractor being equally liable with the
subcontractor for all delinquent and defaulted premium taxes,
premium deposits, interest and other penalties arising during the life of the contract or due to work performed in furtherance of the
contract: Provided, That the commission is entitled to collect
only once for the amount of premiums, premium deposits and interest
due to the default, but the commission may impose other penalties
on the primary contractor or on the subcontractor, or both.
(2) In order to continue avoiding liability under this
section, the primary contractor shall request that the commission
inform the primary contractor of any subsequent default by the
subcontractor. In the event that the subcontractor does default,
the commission shall notify the primary contractor of the default
by placing a notice in the first-class certified United States
mail, postage prepaid, and addressed to the primary contractor at
the address furnished to the commission by the primary contractor.
The mailing is good and sufficient notice to the primary contractor
of the subcontractor's default. However, the primary contractor is
not liable under this section until the first day of the calendar
quarter following the calendar quarter in which the notice is given
and then the liability is only for that following calendar quarter
and thereafter and only if the subcontract has not been terminated:
Provided, That the commission is entitled to collect only once for
the amount of premiums, premium deposits and interest due to the
default, but the commission may impose other penalties on the
primary contractor or on the subcontractor, or both.
(c) In any situation where a subcontractor defaults with
regard to its payment obligations under this chapter or fails to
provide a certificate of good standing as provided in this section,
the default or failure is good and sufficient cause for a primary
contractor to hold the subcontractor responsible and to seek
reimbursement or indemnification for any amounts paid on behalf of
the subcontractor to avoid or cure a workers' compensation default,
plus related costs, including reasonable attorneys' fees, and to
terminate its subcontract with the subcontractor notwithstanding
any provision to the contrary in the contract.
(d) The provisions of this section are applicable only to
those contracts entered into or extended on or after January 1,
1994.
(e) The commission may take any action authorized by section
five-a of this article in furtherance of its efforts to collect
amounts due from the primary contractor under this section.
(f) Effective upon termination of the commission, subsections
(a) through (e), inclusive, of this section shall be applicable
only to unpaid premiums due the commission or the Old Fund as
provided in article two-c of this chapter.
_____(g) The Legislature finds that every prime contractor should
be responsible to ensure that any subcontractor with which it directly contracts is either self-insured or maintains workers'
compensation coverage throughout the periods during which the
services of a subcontractor are used and, further, if the
subcontractor is neither self-insured nor covered, then the prime
contractor rather than the Uninsured Employer Fund should be
responsible for the payment of statutory benefits. It is also the
intent of the Legislature that this section not be used as the
basis for expanding the liability of a prime contractor beyond the
limited purpose of providing coverage in the limited circumstances
and in the manner expressly addressed by this section: Provided,
That receipt by the prime contractor of a certificate of coverage
from a subcontractor shall be deemed to relieve the prime
contractor of responsibility regarding the subcontractor's workers'
compensation coverage.
_____(h) On after the effective date of the reenactment of this
section in 2009, if an employee of a subcontractor suffers an
injury or disease and, on the date of injury or last exposure, his
or her employer did not have workers' compensation coverage or was
not an approved self-insured employer, and the prime contractor did
not obtain certification of coverage from the subcontractor, then
that employee may file a claim against the prime contractor for
which the subcontractor performed services on the date of injury or
last exposure, and such claim shall be administered in the same manner as claims filed by injured employees of the prime
contractor: Provided, That a subcontractor that subcontracts with
another subcontractor shall, with respect to such subcontract, is
the prime contractor for the purposes of this section: Provided,
however, That the provisions of this subsection do not relieve a
subcontractor from any requirements of this chapter, including the
duty to maintain coverage on its employees. The subcontractor
shall provide proof of continuing coverage to the prime contractor
by providing a certificate showing current as well as renewal or
replacement coverage during the term of the contract between the
prime contractor and the subcontractor. The subcontractor shall
provide notice to the prime contractor within two business days of
cancellation of expiration of coverage.
_____(i) Notwithstanding that an injured employee of a
subcontractor is eligible for workers' compensation benefits
pursuant to this section from the prime contractor's carrier or the
self-insured prime contractor, whichever is applicable, a
subcontractor who has failed to maintain workers' compensation
coverage on its employees:
_____(1) May not claim the exemption from liability provided by
sections six and six-a of this article;
_____(2) May be held liable to an injured employee pursuant to the provisions of section eight of this article; and
_____(3) Is the designated employer for the purposes of any
"deliberate intention" action brought by the injured worker
pursuant to the provisions of section two, article four of this
chapter.
_____(j) If a claim of an injured employee of a subcontractor is
accepted or conditionally accepted into the Uninsured Employer
Fund, both the prime contractor and subcontractor are jointly and
severally liable for any payments made by the fund, and the
Insurance Commissioner may seek recovery of the payments, plus
administrative costs and attorneys' fees, from the prime
contractor, the subcontractor, or both: Provided, That a prime
contractor who is held liable pursuant to this subsection for the
payment of benefits to an injured employee of a subcontractor may
recover the amount of such payments from the subcontractor, plus
reasonable attorneys' fees and costs: Provided, however, That if a
prime contractor has performed due diligence in all matters
requiring an verifying a subcontractor's maintenance of insurance
coverage, than the prime contractor is not liable for any claim
made hereunder against the subcontractor.
ARTICLE 2A. SUBROGATION.
§23-2A-1. Subrogation; limitations.
(a) Where a compensable injury or death is caused, in whole or
in part, by the act or omission of a third party, the injured
worker or, if he or she is deceased or physically or mentally
incompetent, his or her dependents or personal representative are
entitled to compensation under the provisions of this chapter, and
shall not by having received compensation be precluded from making
claim against the third party.
(b) Notwithstanding the provisions of subsection (a) of this
section, if an injured worker, his or her dependents or his or her
personal representative makes a claim against the third party and
recovers any sum for the claim:
(1) the commission With respect to any claim arising from a
right of action that arose or accrued, in whole or in part, on or
after January 1, 2006, the private carrier or a self-insured
employer, whichever is applicable, shall be allowed statutory
subrogation with regard to indemnity and medical benefits paid as
of the date of the recovery.
_____(2) With respect to any claim arising from a right of action
that arose or accrued, in whole or in part, prior to January 1,
2006, the Insurance Commissioner and the successor to the
commission shall be allowed statutory subrogation with regard to
only medical payments paid as of the date of the recovery: Provided, That with respect to any recovery arising out of a cause
of action that arose or accrued prior to July 1, 2003, any money
received by the commissioner or self-insured employer as
subrogation to medical benefits expended on behalf of the injured
or deceased worker shall not exceed fifty percent of the amount
received from the third party as a result of the claim made by the
injured worker, his or her dependents or personal representative,
after payment of attorneys' fees and costs, if such exist.__
_____(3) Notwithstanding the provisions of subdivisions (1) and (2)
of this subsection, the Insurance Commissioner, acting as
administrator of the Uninsured Employer Fund, shall be allowed
statutory subrogation with regard to indemnity and medical benefits
paid and to be paid from such fund regardless of the date on which
the cause of action arose.
_____(c) The commission or self-insured employer For claims that
arose or accrued, in whole or in part, prior to the effective date
of the reenactment of this section in 2009, and all claims
thereafter, the party entitled to subrogation shall permit the
deduction from the amount received reasonable attorneys' fees and
reasonable costs It is the duty of the injured worker, his or her
dependents, his or her personal representative, or his or her
attorney to notify the commission and the employer, when the claim
is filed against the third party.
_____(c) (d) In the event that an injured worker, his or her
dependents or personal representative makes a claim against a third
party, there shall be, and there is hereby created, a statutory
subrogation lien upon the moneys received which shall exist in
favor of the commission Insurance Commissioner, private carrier or
self-insured employer, Any injured worker, his or her dependents or
personal representative who receives moneys in settlement in any
manner of a claim against a third party remains subject to the
subrogation lien until payment in full of the amount permitted to
be subrogated under subsection (b) of this section is paid.
whichever is applicable.
_____(e) (d) Effective January 1, two thousand six, the commission,
any successor to the commission, any other private carrier and any
self-insured employer shall be allowed statutory subrogation with
regard to all medical and indemnity benefits actually paid as of
the date of the recovery, The commission, successor to the
commission, any other private carrier and the self-insured employer
shall permit the deduction from the amount received a reasonable
attorney's fees and costs, and may negotiate the amount to accept
as subrogation. It is the duty of the injured worker, his or her
dependents, his or her personal representative or his or her
attorney to give reasonable notice to the commission, successor to the commission, any other Insurance Commissioner, private carrier
or the self-insured employer after a claim is filed against the
third party and prior to the disbursement of any third party
recovery. The statutory subrogation described in this section does
not apply to uninsured and underinsured motorist coverage or any
other insurance coverage purchased by the injured worker or on
behalf of the injured worker. If the injured worker obtains a
recovery from a third party and the injured worker, personal
representative or the injured worker's attorney fails to protect
the statutory right of subrogation created herein, the injured
worker, personal representative and the injured worker's attorney
shall lose the right to retain attorney fees and costs out of the
subrogation amount. In addition, such failure creates a cause of
action for the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, against the injured
worker, personal representative and the injured worker's attorney
for the amount of the full subrogation amount and the reasonable
fees and costs associated with any such cause of action. The right
of subrogation granted by the provisions of this subsection shall
not attach to any claim arising from a right of action which arose
or accrued, in whole or in part, prior to the effective date of the
amendment and reenactment of this section during the year two
thousand five.
(e) The right of subrogation granted the commission in
subsections (a) through (c), inclusive, of this section shall be
exercised by the Insurance Commissioner and his or her designated
administrator of the old fund, as set forth in article two-c of
this chapter, for any claim arising from a right of action which
arose or accrued, in whole or in part, prior to the effective date
of the amendment and reenactment of this section during the year
two thousand five. The Insurance Commissioner and his or her
designated administrator shall be paid a recovery fee of ten
percent of the actual amount recovered through subrogation with the
remainder to be deposited into the old fund.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-8. Workers' Compensation Uninsured Employer Fund.
(a) The Workers' Compensation Uninsured Employer Fund shall be
governed by the following:
(1) All money and securities in the fund must be held by the
State Treasurer as custodian thereof to be used solely as provided
in this article.
(2) The State Treasurer may disburse money from the fund only
upon written requisition of the Insurance Commissioner.
(3) Assessments. -- The Insurance Commissioner shall assess
each private carrier and may assess self-insured employers an amount to be deposited in the fund. The assessment may be
collected by each private carrier from its policyholders in the
form of a policy surcharge. To establish the amount of the
assessment, the Insurance Commissioner shall determine the amount
of money necessary to maintain an appropriate balance in the fund
for each fiscal year and shall allocate a portion of that amount to
be payable by each of the groups subject to the assessment. After
allocating the amounts payable by each group, the Insurance
Commissioner shall apply an assessment rate to:
(A) Private carriers that reflects the relative hazard of the
employments covered by the private carriers, results in an
equitable distribution of costs among the private carriers and is
based upon expected annual premiums to be received;
(B) Self-insured employers, if assessed, that results in an
equitable distribution of costs among the self-insured employers
and is based upon expected annual expenditures for claims; and
(C) Any other groups assessed that results in an equitable
distribution of costs among them and is based upon expected annual
expenditures for claims or premium to be received.
(4) The Workers' Compensation Board of Managers or Industrial
Council may adopt rules for the establishment and administration of
the assessment methodologies, rates, payments and any penalties that it determines are necessary to carry out the provisions of
this section.
(b) Payments from the fund. --
(1) Except as otherwise provided in this subsection, an
injured employee of any employer required to be covered under this
chapter who has failed to obtain coverage may receive compensation
from the Uninsured Employer Fund if such employee meets all
jurisdictional and entitlement provisions of this chapter, files a
claim with the Insurance Commissioner and makes an irrevocable
assignment to the Insurance Commissioner of a right to be
subrogated to the rights of the injured employee.
(2) Employees who are injured while employed by a self-insured
employer are ineligible for benefits from the Workers' Compensation
Uninsured Employer Fund.
(c) Initial determination upon receipt of a claim. --
(1) If the Insurance Commissioner determines that the
claimant's employer maintained a policy of workers' compensation
insurance pursuant to this chapter on the date of injury or last
exposure or that the employer was not required to maintain such a
policy on such date, then the claim shall not be accepted into the
fund; if the commissioner determines that the employer was required
to maintain such a policy but failed to do so, the claim will be accepted into the fund and the Insurance Commissioner may assign
such a claim to the third-party administrator of the fund for
administration.
(2) The Insurance Commissioner shall notify the injured
employee and the named employer of the determination made pursuant
to subdivision (1) of this subsection and any party aggrieved
thereby shall be entitled to protest such determination in a
hearing before the Insurance Commissioner: Provided, That in any
such proceeding, the employer has the burden of proving that it
either provided mandatory workers' compensation insurance coverage
or that it was not required to maintain workers' compensation
insurance. If a claim is filed against the Uninsured Employer Fund,
the Insurance Commissioner or his or her third-party administrator
shall: (1) Accept the claim into the fund if it is determined that
the employer was required to maintain workers' compensation
coverage with respect to the injured worker but failed to do so;
(2) reject the claim if it is determined that the employer
maintained such coverage or was not required to do so; or (3) in a
claim involving the availability of benefits pursuant to section
one-d, article two of this chapter, either reject or conditionally
accept the claim. An aggrieved party may file a protest with the
Office of Judges to any decision by the Insurance Commissioner or
the third-party administrator to accept or reject a claim into the fund, as well as to any claims decisions made with respect to any
claim accepted into the fund, and such protests shall be determined
in the same manner as disputed claims are determined pursuant to
the provisions of article five of this chapter: Provided, That in
any proceeding before the Office of Judges involving the decision
to accept or refuse to accept a claim into the fund, the employer
has the burden of proving that it either provided mandatory
workers' compensation insurance coverage or that it was not
required to do so.
(d) Employer liability. --
(1) Any employer who has failed to provide mandatory coverage
required by the provisions of this chapter is liable for all
payments made and to be made on its behalf, including any benefits,
administrative costs and attorney's fees paid from the fund or
incurred by the Insurance Commissioner, plus interest calculated in
accordance with the provisions of section thirteen, article two of
this chapter.
(2) The Insurance Commissioner:
(A) May bring a civil action in a court of competent
jurisdiction to recover from the employer the amounts set forth in
subdivision (1) of this subsection. In any such action, the
Insurance Commissioner may also recover the present value of the estimated future payments to be made on the employer's behalf and
the administrative costs and attorney's fees attributable to such
claim: Provided, That the failure of the Insurance Commissioner to
include a claim for future payments shall not preclude one or more
subsequent actions for such amounts;
(B) May enter into a contract with any person, including the
third-party administrator of the Uninsured Employer Fund, to assist
in the collection of any liability of an uninsured employer; and
(C) In lieu of a civil action, may enter into an agreement or
settlement regarding the collection of any liability of an
uninsured employer.
(3) In addition to any other liabilities provided in this
section, the Insurance Commissioner may impose an administrative
penalty of not more than $10,000 against an employer if the
employer fails to provide mandatory coverage required by this
chapter. All penalties and other moneys collected pursuant to this
section shall be deposited into the Workers' Compensation Uninsured
Employer Fund.
(e) Protests to claims decisions -- Any party aggrieved by a
claims decision made by the Insurance Commissioner or the third-
party administrator in a claim that has been accepted into the fund
may object to that decision by filing a protest with the office of judges as set forth in article five of this chapter.
§23-2C-15. Mandatory coverage; changing of coverage.
(a) Effective upon termination of the commission, all
subscriber policies with the commission shall novate to the company
and all employers shall purchase workers' compensation insurance
from the company unless permitted to self-insure their obligations.
The company shall assume responsibility for all new fund
obligations of the subscriber policies which novate to the company
or which are issued thereafter. Each subscriber whose policy
novates to the company shall also have its advanced deposit
credited to its account with the company. Each employer purchasing
workers' compensation insurance from the company have has the right
to designate a representative or agent to act on its behalf in any
and all matters relevant to coverage and claims administered by the
company.
(b) Effective July 1, 2008, an employer may elect to: (1)
Continue to purchase workers' compensation insurance from the
company; (2) purchase workers' compensation insurance from another
private carrier licensed and otherwise authorized to transact
workers' compensation insurance in this state; or (3) self-insure
its obligations if it satisfies all requirements of this code to so
self-insure and is permitted to do so: Provided, That all state and local governmental bodies, including, but not limited to, all
counties and municipalities and their subdivisions and including
all boards, colleges, universities and schools, shall continue to
purchase workers' compensation insurance from the company through
the thirtieth day of June, two thousand twelve June 30, 2010:
Provided, however, That the company may not cancel or refuse to
renew a policy of a state or local governmental body prior to July
1, 2011, except for failure of consideration to be paid by the
policyholder or for refusal to comply with a premium audit. The
company and other private carriers are permitted to sell workers'
compensation insurance through licensed agents in the state. To
the extent that a private carrier markets workers' compensation
insurance through a licensed agent, it is subject to all applicable
provisions of chapter thirty-three of this code.
(c) Every employer shall post a notice upon its premises in a
conspicuous place identifying its workers' compensation insurer.
The notice must include the name, business address and telephone
number of the insurer and of the person to contact with questions
about a claim. The employer shall at all times maintain the notice
provided for the information of his or her employees. Release of
employer policy information and status by the Industrial Council
and the Insurance Commissioner shall be governed by section four,
article one of this chapter.
(d) Any rule promulgated by the Board of Managers or
Industrial Council empowering agencies of this state to revoke or
refuse to grant, issue or renew any contract, license, permit,
certificate or other authority to conduct a trade, profession or
business to or with any employer whose account is in default with
regard to any liability under this chapter shall be fully
enforceable by the Insurance Commissioner against the employer.
(e) Effective January 1, 2009, the company may decline to
offer coverage to any applicant. Private carriers and, effective
January 1, 2009, the company, may cancel a policy upon the issuance
of thirty days' written advance notice to the policyholder and may
refuse to renew a policy upon the issuance of sixty days' written
advance notice to the policyholder: Provided, That cancellation of
the policy by the carrier for failure of consideration to be paid
by the policyholder or for refusal to comply with a premium audit
is effective after ten days' advance written notice of cancellation
to the policyholder.
(f) Every private carrier shall notify the Insurance
Commissioner as follows: (1) Of the issuance or renewal of
insurance coverage, within thirty days of: (A) The effective date
of coverage; or (B) the private carrier's receipt of notice of the
employer's operations in this state, whichever is later; (2) of a
termination of coverage by the private carrier due to refusal to renew or cancellation, at least ten days prior to the effective
date of the termination; and (3) of a termination of coverage by an
employer, within ten days of the private carrier's receipt of the
employer's request for such termination; the notifications shall be
on forms developed or in a manner prescribed by the Insurance
Commissioner.
(g) For the purposes of subsections (e) and (f) of this
section, the transfer of a policyholder between insurance companies
within the same group is not considered a cancellation or refusal
to renew a workers' compensation insurance policy.
§23-2C-17. Administration of a competitive system.
(a) Every policy of insurance issued by a private carrier:
(1) Shall be in writing;
(2) Shall contain the insuring agreements and exclusions; and
(3) If it contains a provision inconsistent with this chapter,
it shall be deemed to be reformed to conform with this chapter.
(b) The Industrial Council shall promulgate a rule which
prescribes the requirements of a basic policy to be used by private
carriers.
(c) A private carrier or self-insured employer may enter into
a contract to have its plan of insurance administered by a
third-party administrator if the administrator is licensed or registered with the Insurance Commissioner in accordance with
article forty-six, chapter thirty-three of the this code.
Notwithstanding any other provision of this code to the contrary,
any third-party administrator who, directly or indirectly,
underwrites or collects charges or premiums from, or adjusts or
settles claims on residents of this state, in connection with
workers' compensation coverage offered or provided by an insurer,
a private carrier or self-insured employer, is subject to the
provisions of article forty-six, chapter thirty-three of this code
to the same extent as those persons included in the definition set
forth in subsection (a), section two of said article. The
Insurance Commissioner shall propose rules, as provided in section
five, article two-c of this chapter, to regulate the use of third-
party administrators by private carriers and self-insured
employers, including rules setting forth mandatory provisions for
agreements between third-party administrators and self-insured
employers or private carriers.
(d) A self-insured employer or a private carrier may:
(1) Enter into a contract or contracts with one or more
organizations for managed care to provide comprehensive medical and
health care services to employees for injuries and diseases that
are compensable pursuant to this chapter. The managed care plan
must be approved pursuant to the provisions of section three, article four of this chapter.
(2) Require employees to obtain medical and health care
services for their industrial injuries from those organizations and
persons with whom the self-insured employer or private carrier has
contracted or as the self-insured employer or private carrier
otherwise prescribes.
(3) Except for emergency care, require employees to obtain the
approval of the self-insured employer or private carrier before
obtaining medical and health care services for their industrial
injuries from a provider of health care who has not been previously
approved by the self-insured employer or private carrier.
(e) A private carrier or self-insured employer may inquire
about and request medical records of an injured employee that
concern a preexisting medical condition that is reasonably related
to the industrial injury of that injured employee.
(f) An injured employee must sign all medical releases
necessary for the insurer of his or her self-insured employer or
his or her employer employer's private carrier to obtain
information and records about a preexisting medical condition that
is reasonably related to the industrial injury of the employee and
that will assist the insurer to determine the nature and amount of
workers' compensation to which the employee is entitled.
§23-2C-21. Limitation of liability of insurer or third-party
administrator; administrative fines are exclusive remedies.
(a) No cause of civil action may be brought or maintained by
an employee against a private carrier or a third-party
administrator, or any employee or agent of a private carrier or
third-party administrator, who violates any provision of this
chapter or chapter thirty-three of this code.
(b) Any administrative fines or remedies provided in this
chapter or chapter thirty-three of this code or rules promulgated
by the Workers' Compensation Commission or the Insurance
Commissioner are the exclusive civil remedies for any violation of
this chapter committed by a private carrier or a third-party
administrator or any agent or employee of a private carrier or a
third-party administrator.
(c) Upon a determination by the Office of Judges that a denial
of compensability, a denial of an initial award of temporary total
disability or a denial of an authorization for medical benefits was
unreasonable, reasonable attorney's fees and the costs actually
incurred in the process of obtaining a reversal of the denial shall
be awarded to the claimant and paid by the company, private carrier
or self-insured employer which issued the unreasonable denial. A
denial is unreasonable if, after submission by or on behalf of the claimant, of evidence of the compensability of the claim, the
entitlement to initial temporary total disability benefits or
medical benefits, the company, private carrier or self-insured
employer is unable to demonstrate that it had evidence or a legal
basis supported by legal authority at the time of the denial which
is relevant and probative and supports the denial of the award or
authorization. Payment of attorney's fees and costs awarded under
this subsection will be made to the claimant at the conclusion of
litigation, including all appeals, of the claimant's protest of the
denial.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1c.
§23-4-1c. Payment of temporary total disability benefits directly
to claimant; payment of medical benefits; payments of
benefits during protest; right of commission,
successor to the commission, private carriers and
self-insured employers to collect payments improperly
made.
(a) In any claim for benefits under this chapter, the Workers'
Compensation Commission, the successor to the commission, other
Insurance Commissioner, private carriers or self-insured employer,
whichever is applicable, shall determine whether the claimant has
sustained a compensable injury within the meaning of section one of this article and enter an order giving all parties immediate notice
of the decision.
(1) The commission, successor to the commission other
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, may enter an order conditionally approving
the claimant's application if it finds that obtaining additional
medical evidence or evaluations or other evidence related to the
issue of compensability would aid the commission Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, in making a correct final decision. Benefits shall
be paid during the period of conditional approval; however, if the
final decision is one that rejects the claim, the payments shall be
considered an overpayment. The commission, successor to the
commission, other
(2) In making a determination regarding the compensability of
a newly filed claim or upon a filing for the reopening of a prior
claim pursuant to the provisions of section sixteen of this article
based upon an allegation of recurrence, reinjury, aggravation or
progression of the previous compensable injury or in the case of a
filing of a request for any other benefits under the provisions of this chapter, the other
commission, successor to the commission
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, shall consider the date of the filing of
the claim for benefits for a determination of the following:
(A) Whether the claimant had a scheduled shutdown beginning
within one week of the date of the filing;
(B) Whether the claimant received notice within sixty days of
the filing that his or her employment position was to be
eliminated, including, but not limited to, the claimant's worksite,
a layoff or the elimination of the claimant's employment position;
(C) Whether the claimant is receiving unemployment
compensation benefits at the time of the filing; or
(D) Whether the claimant has received unemployment
compensation benefits within sixty days of the filing. In the
event of an affirmative finding upon any of these four factors, the
finding shall be given probative weight in the overall
determination of the compensability of the claim or of the merits
of the reopening request.
(3) Any party may object to the order of the commission,
successor to the commission, other
initial temporary total disability benefits or denying
medical authorization, the Office of Judges shall provide a hearing
on the protest on an expedited basis as determined by rule of the
Office of Judges.
(b) Where it appears from the employer's report, or from
proper medical evidence, that a compensable injury will result in
a disability which will last longer than three days as provided in
section five of this article, the commission, successor to the
commission, other
commission, successor to the commission, other
other
information necessary for a determination. The commission,
successor to the commission, other
commission Insurance Commissioner may schedule medical and
vocational evaluation of the claimant and assign appropriate
personnel to expedite the claimant's return to work as soon as
reasonably possible.
(c) The commission, successor to the commission, other
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, may enter orders granting temporary total
disability benefits upon receipt of medical evidence justifying the
payment of the benefits. The commission, successor to the commission, other Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, may not enter an order
granting prospective temporary total disability benefits for a
period of more than ninety days: Provided, That when the
commission, successor to the commission, other Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, determines that the claimant remains disabled beyond
the period specified in the prior order granting temporary total
disability benefits, the commission Insurance Commissioner, private
carrier or self-insured employer shall enter an order continuing
the payment of temporary total disability benefits for an
additional period not to exceed ninety days and shall give
immediate notice to all parties of the decision.
(d) Upon receipt of the first report of injury in a claim, the
commission, successor to the commission, other Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, shall request from the employer or employers any
wage information necessary for determining the rate of benefits to
which the employee is entitled. If an employer does not furnish
this information within fifteen days from the date the commission,
successor to the commission, other Insurance Commissioner, private
carrier or self-insured employer, whichever is applicable, received
the first report of injury in the case, the employee shall be paid temporary total disability benefits for lost time at the rate the
commission obtains from reports made pursuant to subsection (b),
section two, article two of this chapter. If no wages have been
reported, the commission, successor to the commission, other
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, shall make the payments at the rate the
commission, successor to the commission, other Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, finds would be justified by the usual rate of pay
for the occupation of the injured employee. The rate of benefits
shall be adjusted both retroactively and prospectively upon receipt
of proper wage information. The commission Insurance Commissioner
shall have access to all wage information in the possession of any
state agency.
(e) Subject to the limitations set forth in section sixteen of
this article, upon a finding of the commission, successor to the
commission, other Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, that a claimant who has
sustained a previous compensable injury which has been closed by
order, or by the claimant's return to work, suffers further
temporary total disability or requires further medical or hospital
treatment resulting from the compensable injury, payment of
temporary total disability benefits to the claimant in the amount provided for in sections six and fourteen of this article shall
immediately commence, and the expenses provided for in subsection
(a), section three of this article, relating to the disability,
without waiting for the expiration of the thirty-day period during
which objections may be filed. Immediate notice to the parties of
the decision shall be given.
(f) Where the employer is a subscriber to the Workers'
Compensation Fund under the provisions of article three of this
chapter, and upon the findings aforesaid, the commission The
Insurance Commissioner, private carrier or self-insured employer
shall mail all workers' compensation checks paying deliver amounts
due for temporary total disability benefits directly to the
claimant and not to the employer for delivery to the claimant.
(g) Where the employer has elected to carry its own risk under
section nine, article two of this chapter, and upon the findings
aforesaid, the self-insured employer shall immediately pay the
amounts due the claimant for temporary total disability benefits.
A copy of the notice shall be sent to the claimant.
(h) In the event that an employer files a timely objection to
any order of the division Insurance Commissioner, private carrier
or self-insured, whichever is applicable, with respect to
compensability, or any order denying an application for modification with respect to temporary total disability benefits,
or with respect to those expenses outlined in subsection (a),
section three of this article, the division shall continue to pay
to the claimant such benefits and expenses during the period of
such disability. Where it is subsequently found by the division
Insurance Commissioner, private carrier or self-insured, whichever
is applicable, that the claimant was not entitled to receive such
temporary total disability benefits or expenses, or any part
thereof, so paid, the division Insurance Commissioner, private
carrier or self-insured, whichever is applicable, shall, when the
employer is a subscriber to the fund, credit said employer's
account with the amount of the overpayment. When the employer has
protested the compensability or applied for modification of a
temporary total disability benefit award or expenses and the final
decision in that case determines that the claimant was not entitled
to the benefits or expenses, the amount of benefits or expenses is
considered overpaid. For all awards made or nonawarded partial
benefits paid the commission, the successor to the commission,
other Insurance Commissioner, private carriers or self-insured
employer may recover the amount of overpaid benefits or expenses by
withholding, in whole or in part, future disability benefits
payable to the individual in the same or other claims and credit
the amount against the overpayment until it is repaid in full.
(i) In the event that the commission, successor to the
commission, other Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, finds that, based upon
the employer's report of injury, the claim is not compensable, the
commission, successor to the commission, other Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, shall provide a copy of the employer's report to the
claimant in addition to the order denying the claim.
(j) If a claimant is receiving benefits paid through a wage
replacement plan, salary continuation plan or other benefit plan
provided by the employer to which the employee has not contributed,
and that plan does not provide an offset for temporary total
disability benefits to which the claimant is also entitled under
this chapter as a result of the same injury or disease, the
employer shall notify the commission Insurance Commissioner,
private carrier or self-insured of the duplication of the benefits
paid to the claimant. Upon receipt of the notice, the commission,
successor to the commission, other Insurance Commissioner, private
carrier or self-insured employer, whichever is applicable, shall
reduce the temporary total disability benefits provided under this
chapter by an amount sufficient to ensure that the claimant does
not receive monthly benefits in excess of the amount provided by
the employer's plan or the temporary total disability benefit, whichever is greater: Provided, That this subsection does not
apply to benefits being paid under the terms and conditions of a
collective bargaining agreement.
§23-4-6b. Occupational hearing loss claims.
(a) In all claims for occupational hearing loss caused by
either a single incident of trauma or by exposure to hazardous
noise in the course of and resulting from employment, the degree of
permanent partial disability, if any, shall be determined in
accordance with the provisions of this section and awards made in
accordance with the provisions of section six of this article.
(b) The percent of permanent partial disability for a monaural
hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and
three thousand hertz shall be determined for the injured ear and
the total shall be divided by four to ascertain the average decibel
loss;
(2) The percent of monaural hearing impairment for the injured
ear shall be calculated by multiplying by one and six-tenths
percent the difference by which the aforementioned average decibel
loss exceeds twenty-seven and one-half decibels, up to a maximum of
one hundred percent hearing impairment, which maximum is reached at ninety decibels; and
(3) The percent of monaural hearing impairment obtained shall
be multiplied by twenty-two and one-half to ascertain the degree of
permanent partial disability.
(c) The percent of permanent partial disability for a binaural
hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and
three thousand hertz is determined for each ear and the total for
each ear shall be divided by four to ascertain the average decibel
loss for each ear;
(2) The percent of hearing impairment for each ear is
calculated by multiplying by one and six-tenths percent the
difference by which the aforementioned average decibel loss exceeds
twenty-seven and one-half decibels, up to a maximum of one hundred
percent hearing impairment, which maximum is reached at ninety
decibels;
(3) The percent of binaural hearing impairment shall be
calculated by multiplying the smaller percentage (better ear) by
five, adding this figure to the larger percentage (poorer ear) and
dividing the sum by six; and
(4) The percent of binaural hearing impairment obtained shall be multiplied by fifty-five to ascertain the degree of permanent
partial disability.
(d) No permanent partial disability benefits shall be granted
for tinnitus, psychogenic hearing loss, recruitment or hearing loss
above three thousand hertz.
(e) An additional amount of permanent partial disability shall
be granted for impairment of speech discrimination, if any, to
determine the additional amount for binaural impairment, the
percentage of speech discrimination in each ear shall be added
together and the result divided by two to calculate the average
percentage of speech discrimination, and the permanent partial
disability shall be ascertained by reference to the percentage of
permanent partial disability in the table below on the line with
the percentage of speech discrimination obtained. To determine the
additional amount for monaural impairment, the permanent partial
disability shall be ascertained by reference to the percentage of
permanent partial disability in the table below on the line with
the percentage of speech discrimination in the injured ear.
TABLE
% of Permanent
% of Speech Discrimination Partial Disability
90% and up to and including 100%
0%
80% and up to but not including 90%
1%
70% and up to but not including 80%
3%
60% and up to but not including 70%
4%
0% and up to but not including 60%
5%
(f) No temporary total disability benefits shall be granted
for noise-induced hearing loss.
(g) An application for benefits alleging a noise-induced
hearing loss shall set forth the name of the employer or employers
and the time worked for each. The commission shall Insurance
Commissioner may allocate to and divide any charges resulting from
the claim among the employers with whom the claimant sustained
exposure to hazardous noise for as much as sixty days during the
period of three years immediately preceding the date of last
exposure. The allocation is based upon the time of exposure with
each employer. In determining the allocation, the commission
Insurance Commissioner shall consider all the time of employment by
each employer during which the claimant was exposed and not just
the time within the three-year period under the same allocation as
is applied in occupational pneumoconiosis cases.
(h) The commission employer against whom the claim is filed
shall provide consistent with current practice, for prompt referral
the claims for evaluation, for all medical reimbursement and for prompt authorization of hearing enhancement devices.
(i) The provisions of this section and the amendments to
section six of this article insofar as applicable to permanent
partial disabilities for hearing loss are operative as to any claim
filed after thirty days from the effective date of this section.
(j) Effective upon termination of the commission, the
administrative duties governing hearing loss claims shall transfer
to the Insurance Commissioner.
§23-4-8. Physical examination of claimant.
(a) The commission, successor to the commission, other
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, may, after due notice to the employer and
claimant, whenever in its opinion it is necessary, order a claimant
of compensation for a personal injury other than occupational
pneumoconiosis to appear for examination before a medical examiner
or examiners selected by the commission, successor to the
commission, Insurance Commissioner, other private carrier or self-
insured employer, whichever is applicable; and the claimant and
employer respectively, each have the right to may select a
physician of the claimant's or the employer's own choosing and at
the claimant's or the employer's own expense to participate in the
examination. All examinations shall be performed in accordance with the protocols and procedures established by the health care
advisory panel pursuant to section three-b of this article rules of
the Insurance Commissioner: Provided, That the physician may
exceed these protocols when additional evaluation is medically
necessary. The claimant and employer shall respectively, be
furnished with a copy of the report of examination made by the
medical examiner or examiners selected by the commission, successor
to the commission, other private carrier or self-insured employer,
whichever is applicable. The respective physicians selected by the
claimant and employer have the right to submit a separate report
to, or concur in any report made by the medical examiner or
examiners selected by the commission or each may file with the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, a separate report,
which Insurance Commissioner, private carrier or self-insured
employer, and
any separate report shall be considered by the
commission in passing upon the claim.
(b) If the compensation claimed is for occupational
pneumoconiosis, the commission, successor to the commission, other
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, may, after due notice to the employer, and
whenever in the commission's opinion it is necessary, order a
claimant to appear for examination before the Occupational Pneumoconiosis Board provided for in section eight-a of this
article. In any case the claimant is entitled to reimbursement for
loss of wages, and to reasonable traveling and other expenses
necessarily incurred by him or her in obeying the order.
(c) Where the claimant is ordered to appear for an examination
by the Occupational Pneumoconiosis Board pursuant to subsection (b)
of this section or is required to undergo a medical examination or
examinations by a physician or physicians selected by the employer,
as aforesaid or in connection with any claim which is in
litigation, the employer shall reimburse pursuant to subsection (a)
of this section, the party that referred the claimant to the
Occupational Pneumoconiosis Board or required the medical
examination shall reimburse the claimant for loss of wages and
reasonable traveling expenses as set forth in subsection (e) of
this section and other expenses in connection with the examination
or examinations not to exceed the expenses paid when a claimant is
examined by a physician or physicians selected by the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable.
__(d) The claimant shall be reimbursed for reasonable traveling
expenses as set forth in subsection (e) of this section incurred in
connection with medical examinations, appointments and treatments,
including appointments with the claimant's authorized treating physician.
__(e) The claimant's traveling expenses include, at a minimum,
reimbursement for meals, lodging and milage.
Reimbursement for
travel in a personal motor vehicle shall be at the milage
reimbursement rates contained in the Department of Administration's
Purchasing Division Travel Rules as authorized by section eleven,
article three, chapter twelve of this code in effect at the time
the treatment is authorized.
§23-4-8c. Occupational Pneumoconiosis Board; reports and
distribution thereof; presumption; findings
required of board; objection to findings; procedure
thereon; limitations on refilings; consolidation of
claims.
(a) The Occupational Pneumoconiosis Board, as soon as
practicable after it has completed its investigation, shall make
its written report to the commission, successor to the commission,
other Insurance Commissioner, private carrier or self-insured
employer, whichever is applicable, of its findings and conclusions
on every medical question in controversy and the commission board
shall send one copy of the report to the employee or claimant and
one copy to the employer. The board shall also return to and file
with the commission Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, all the evidence as
well as all statements under oath, if any, of the persons who
appeared before it on behalf of the employee or claimant, or
employer, and also all medical reports and X-ray examinations
produced by or on behalf of the employee or claimant, or employer.
(b) If it can be shown that the claimant or deceased employee
has been exposed to the hazard of inhaling minute particles of dust
in the course of and resulting from his or her employment for a
period of ten years during the fifteen years immediately preceding
the date of his or her last exposure to such hazard and that the
claimant or deceased employee has sustained a chronic respiratory
disability, it shall be presumed that the claimant is suffering or
the deceased employee was suffering at the time of his or her death
from occupational pneumoconiosis which arose out of and in the
course of his or her employment. This presumption is not
conclusive.
(c) The findings and conclusions of the board shall set forth,
among other things, the following:
(1) Whether or not the claimant or the deceased employee has
contracted occupational pneumoconiosis and, if so, the percentage
of permanent disability resulting therefrom;
(2) Whether or not the exposure in the employment was sufficient to have caused the claimant's or deceased employee's
occupational pneumoconiosis or to have perceptibly aggravated an
existing occupational pneumoconiosis or other occupational disease;
and
(3) What, if any, physician appeared before the board on
behalf of the claimant or employer and what, if any, medical
evidence was produced by or on behalf of the claimant or employer.
(d) If either party objects to the whole or any part of the
findings and conclusions of the board, the party shall file with
the commission or, on or after the first day of July, one thousand
nine hundred ninety-one, with the Office of Judges, within thirty
sixty days from receipt of the copy to that party, unless for good
cause shown the commission or chief administrative law judge
extends the time, the party's objections to the findings and
conclusions of the board in writing, specifying the particular
statements of the board's findings and conclusions to which such
party objects. The filing of an objection within the time
specified is a condition of the right to litigate the findings and
therefore jurisdictional. After the time has expired for the
filing of objections to the findings and conclusions of the board,
the commission or administrative law judge shall proceed to act as
provided in this chapter. If after the time has expired for the
filing of objections to the findings and conclusions of the board no objections have been filed, the report of a majority of the
board of its findings and conclusions on any medical question shall
be taken to be plenary and conclusive evidence of the findings and
conclusions stated in the report. If objection has been filed to
the findings and conclusions of the board, notice of the objection
shall be given to the board, and the members of the board joining
in the findings and conclusions shall appear at the time fixed by
the commission or Office of Judges for the hearing to submit to
examination and cross-examination in respect to the findings and
conclusions. At the hearing, evidence to support or controvert the
findings and conclusions of the board shall be limited to
examination and cross-examination of the members of the board and
to the taking of testimony of other qualified physicians and
roentgenologists.
(e) In the event that a claimant receives a final decision
that he or she has no evidence of occupational pneumoconiosis, the
claimant is barred for a period of three years from the date of the
Occupational Pneumoconiosis Board's decision or until his or her
employment with the employer who employed the claimant at the time
designated as the claimant's last date of exposure in the denied
claim has terminated, whichever is sooner, from filing a new claim
or pursuing a previously filed, but unruled upon, claim for
occupational pneumoconiosis or requesting a modification of any prior ruling finding him or her not to be suffering from
occupational pneumoconiosis. For the purposes of this subsection,
a claimant's employment shall be considered to be terminated if,
for any reason, he or she has not worked for that employer for a
period in excess of ninety days. Any previously filed, but unruled
upon, claim shall be consolidated with the claim in which the
board's decision is made and shall be denied together with the
decided claim. The provisions of this subsection shall not be
applied in any claim where doing so would, in and of itself, later
cause a claimant's claim to be forever barred by the provisions of
section fifteen of this article.
(f) Effective upon termination of the commission, the
Insurance Commissioner shall assume all administrative powers and
responsibilities necessary to administer sections eight-a, eight-b
and eight-c of this article.
§23-4-8d. Occupational pneumoconiosis claims never closed for
medical benefits.
Notwithstanding the provisions of subdivision (4), subsection
(a), section sixteen of this article, a request for medical
services, durable medical goods or other medical supplies in an
occupational pneumoconiosis claim may be made at any time.
§23-4-15b. Determination of nonmedical questions; claims for occupational pneumoconiosis; hearing.
(a) If a claim for occupational pneumoconiosis benefits is
filed by an employee within three years from and after the last day
of the last continuous period of sixty days' exposure to the
hazards of occupational pneumoconiosis, the commission Insurance
Commissioner, private carrier or self-insured employer, whichever
is applicable, shall determine whether the claimant was exposed to
the hazards of occupational pneumoconiosis for a continuous period
of not less than sixty days while in the employ of the employer
within three years prior to the filing of his or her claim, whether
in the State of West Virginia the claimant was exposed to such
hazard over a continuous period of not less than two years during
the ten years immediately preceding the date of his or her last
exposure to the hazard and whether the claimant was exposed to the
hazard over a period of not less than ten years during the fifteen
years immediately preceding the date of his or her last exposure to
the hazard. If a claim for occupational pneumoconiosis benefits is
filed by an employee within three years from and after the
employee's occupational pneumoconiosis was made known to the
employee by a physician, the commission Insurance Commissioner,
private carrier or self-insured employer, whichever is applicable,
shall determine whether the claimant filed his or her application
within that period and whether in the State of West Virginia the claimant was exposed to the hazard over a continuous period of not
less than two years during the ten years immediately preceding the
date of last exposure to the hazard and whether the claimant was
exposed to the hazard over a period of not less than ten years
during the fifteen years immediately preceding the date of last
exposure to the hazard. If a claim for occupational pneumoconiosis
benefits is filed by a dependent of a deceased employee, the
commission Insurance Commissioner, private carrier or self-insured
employer, whichever is applicable, shall determine whether the
deceased employee was exposed to the hazards of occupational
pneumoconiosis for a continuous period of not less than sixty days
while in the employ of the employer within ten years prior to the
filing of the claim, whether in the State of West Virginia the
deceased employee was exposed to the hazard over a continuous
period of not less than two years during the ten years immediately
preceding the date of his or her last exposure to the hazard and
whether the claimant was exposed to the hazard over a period of not
less than ten years during the fifteen years immediately preceding
the date of his or her last exposure to the hazard. The commission
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, shall also determine other nonmedical
facts that, in the commission's opinion of the Insurance
Commissioner, private carrier or self-insured employer, whichever is applicable, are pertinent to a decision on the validity of the
claim.
The commission Insurance Commissioner, private carrier or
self-insured employer, whichever is applicable shall enter an order
with respect to nonmedical findings within ninety days following
receipt by the commission Insurance Commissioner, private carrier
or self-insured employer, whichever is applicable, of both the
claimant's application for occupational pneumoconiosis benefits and
the physician's report filed in connection with the claimant's
application and shall give each interested party notice in writing
of these findings with respect to all the nonmedical facts. The
findings and actions of the commission Insurance Commissioner,
private carrier or self-insured employer, whichever is applicable,
are final unless the employer, employee, claimant or dependent,
within thirty sixty days after receipt of the notice, objects to
the findings and, unless an objection is filed within the thirty-
day sixty-day period, the findings are forever final, the time
limitation is a condition of the right to litigate the findings and
therefor jurisdictional. Upon receipt of an objection, the chief
administrative law judge shall set a hearing as provided in section
nine, article five of this chapter. In the event of an objection
to the findings by the employer, the claim shall, notwithstanding
the fact that one or more hearings may be held with respect to the objection, mature for reference to the Occupational Pneumoconiosis
Board with like effect as if the objection had not been filed. If
the administrative law judge concludes after the protest hearings
that the claim should be dismissed, a final order of dismissal
shall be entered. The final order is subject to appeal in
accordance with the provisions of sections ten and twelve, article
five of this chapter. If the administrative law judge concludes
after the protest hearings that the claim should be referred to the
Occupational Pneumoconiosis Board for its review, the order entered
shall be interlocutory only and may be appealed only in conjunction
with an appeal from a final order with respect to the findings of
the Occupational Pneumoconiosis Board.
(b) The administrative duties required to be performed by the
commission pursuant to section fifteen-b of this article, and all
applicable exempt legislative rules shall transfer from the
commission to the Insurance Commissioner effective upon termination
of the commission.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured employer of
decision; procedures on claims; objections and
hearing.
(a) The Insurance Commissioner, private carriers and self-insured employers may determine all questions within their
jurisdiction. In matters arising under subsection (c), section
eight, article two-c of this chapter, and under articles three and
four of this chapter, the Insurance Commissioner, private carriers
and self-insured employers shall promptly review and investigate
all claims. The parties to a claim are the claimant and, if
applicable, the claimant's dependants, and the employer, and with
respect to claims involving funds created in article two-c of this
chapter for which he or she has been designated the administrator,
the Insurance Commissioner. In claims in which the employer had
coverage on the date of the injury or last exposure, the employer's
carrier has sole authority to act on the employer's behalf in all
aspects related to litigation of the claim. With regard to any
issue which is ready for a decision, the Insurance Commissioner,
private carrier or self-insured employer, whichever is applicable,
shall promptly send the decision to all parties, including the
basis of its decision. As soon as practicable after receipt of the
any occupational pneumoconiosis or occupational disease claim but
in no event later than the date of the initial decision on the
claim or any injury claim in which temporary total benefits are
being claimed, the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, shall send the claimant
a brochure approved by the Insurance Commissioner setting forth the claims process.
(b) (1) Except with regard to interlocutory matters, upon
making any decision, upon making or refusing to make any award or
upon making any modification or change with respect to former
findings or orders, as provided by section sixteen, article four of
this chapter, the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, shall give notice, in
writing, to the parties to the claim of its action. The notice
shall state the time allowed for filing a protest to the finding.
The action of the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, is final unless the
decision is protested within sixty days after the receipt of such
decision unless a protest is filed within the sixty-day period, the
finding or action is final. This time limitation is a condition of
the right to litigate the finding or action and hence
jurisdictional. Any protest shall be filed with the Office of
Judges with a copy served upon the parties to the claim, and other
parties in accordance with the procedures set forth in sections
eight and nine of this article. An employer may protest decisions
incorporating findings made by the Occupational Pneumoconiosis
Board, decisions made by the Insurance Commissioner acting as
administrator of claims involving funds created in article two-c of
this chapter, or decisions entered pursuant to subdivision (1), subsection (c), section seven-a, article four of this chapter.
(2) (A) With respect to every application for benefits filed
on or after July 1, 2008, in which a decision to deny benefits is
protested and the only controversy relating to compensability is
matter involves an issue as to whether the application was properly
filed as a new claim or a reopening of a previous claim, the party
that denied the application shall begin to make conditional payment
of benefits and must promptly give notice to the Office of Judges
that another identifiable person may be liable. The Office of
Judges shall promptly order the appropriate persons be joined as
parties to the proceeding: Provided, That at any time during a
proceeding in which conditional payments are being made in
accordance with the provisions of this subsection, the Office of
Judges may, pending final determination of the person properly
liable for payment of the claim, order that such conditional
payments of benefits be paid by another party.
(B) Any conditional payment made pursuant to paragraph (A) of
this subdivision shall not be deemed an admission or conclusive
finding of liability of the person making such payments. When the
administrative law judge has made a determination as to the party
properly liable for payment of the claim, he or she shall direct
any monetary adjustment or reimbursement between or among the
Insurance Commissioner, private carriers and self-insured employers as is necessary.
(C) (c) The Office of Judges may direct that:
(i) (1) An application for benefits be designated as a
petition to reopen, effective as of the original date of filing;
(ii) (2) A petition to reopen be designated as an application
for benefits, effective as of the original date of filing; or
(iii) (3) An application for benefits or petition to reopen
filed with the Insurance Commissioner, private carrier or self-
insured employer be designated as an application or petition to
reopen filed with another private carrier, self-insured employer or
Insurance Commissioner, effective as of the original date of
filing.
_____(c) (d) Where an employer protests a written decision entered
pursuant to a finding of the Occupational Pneumoconiosis Board, a
decision on a claim made by the Insurance Commissioner acting as
the administrator of a fund created in article two-c of this
chapter, or decisions entered pursuant to subdivision (1),
subsection (c), section seven-a, article four of this chapter, and
the employer does not prevail in its protest, and in the event the
claimant is required to attend a hearing by subpoena or agreement
of counsel or at the express direction of the Office of Judges,
then the claimant in addition to reasonable traveling and other expenses shall be reimbursed for loss of wages incurred by the
claimant in attending the hearing.
(d) (e) The Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, may amend, correct or
set aside any order or decision on any issue entered by it which,
at the time of issuance or any time after that, is discovered to be
defective or clearly erroneous or the result of mistake, clerical
error or fraud, or with respect to any order or decision denying
benefits, otherwise not supported by the evidence, but any protest
filed prior to entry of the amended decision is a protest from the
amended decision unless and until the administrative law judge
before whom the matter is pending enters an order dismissing the
protest as moot in light of the amendment. Jurisdiction to issue
an amended decision pursuant to this subsection continues until the
expiration of two years from the date of a decision to which the
amendment is made unless the decision is sooner affected by an
action of an administrative law judge or other judicial officer or
body: Provided, That corrective actions in the case of fraud may
be taken at any time.
§23-5-3. Refusal to reopen claim; notice; objection.
If it appears to the commission, the successor to the
commission, other Insurance Commissioner, private insurance carriers and self-insured employers, whichever is applicable, that
an application filed under section two of this article fails to
disclose a progression or aggravation in the claimant's condition,
or some other fact or facts which were not previously considered in
its former findings and which would entitle the claimant to greater
benefits than the claimant has already received, the commission,
the successor to the commission, other Insurance Commissioner,
private insurance carriers and self-insured employers, whichever is
applicable, shall, within a reasonable time, notify the claimant
and the employer that the application fails to establish a prima
facie cause for reopening the claim. The notice shall be in
writing stating the reasons for denial and the time allowed for
objection to the decision of the commission. The claimant may,
within thirty sixty days after receipt of the notice, object in
writing to the finding. Unless the objection is filed within the
thirty-day sixty-day period, no objection shall be allowed. This
time limitation is a condition of the right to objection and hence
jurisdictional. Upon receipt of an objection, the Office of Judges
shall afford the claimant an evidentiary hearing as provided in
section nine of this article.
§23-5-16. Fees of attorney for claimant; unlawful charging or
receiving of attorney fees.
(a) No attorney's fee in excess of twenty percent of any award granted shall be charged or received by an attorney for a claimant
or dependent. In no case shall the fee received by the attorney of
such claimant or dependent be in excess of twenty percent of the
benefits to be paid during a period of two hundred eight weeks.
The interest on disability or dependent benefits as provided for in
this chapter shall not be considered as part of the award in
determining any such attorney's fee. However, any contract entered
into in excess of twenty percent of the benefits to be paid during
a period of two hundred eight weeks, as herein provided, shall be
unlawful and unenforceable as contrary to the public policy of this
state and any fee charged or received by an attorney in violation
thereof shall be deemed an unlawful practice and render the
attorney subject to disciplinary action.
(b)
On a final settlement an attorney may charge a fee not to
exceed twenty percent of the total value of the medical and
indemnity benefits: Provided, That this attorney's fee, when
combined with any fees previously charged or received by the
attorney for permanent partial disability or permanent total
disability benefits, may not exceed twenty percent of an award of
benefits to be paid during a period of two hundred eight weeks
.
CHAPTER 33. INSURANCE.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-22. Authority of Insurance Commissioner regarding employers
in default to workers' compensation funds;
injunctions against defaulting employers.
(a) Upon termination of the Workers' Compensation Commission,
all of the powers and authority previously conferred upon the
Workers' Compensation Commission pursuant to article two, chapter
twenty-three of this code, relating to employers in default to the
Workers' Compensation Fund, are hereby transferred to the Insurance
Commissioner and shall be applied by the commissioner to those
employers in default to the Old Fund or having liability to the
Uninsured Employer Fund or who are in policy default or fail to
maintain mandatory workers' compensation coverage, all as defined
in article two-c, chapter twenty-three of this code.
(b) In any case in which an employer is in default to the Old
Fund or has liability to the Uninsured Employer Fund or who is in
default on a policy or otherwise fails to maintain mandatory
workers' compensation coverage, all as defined in article two-c,
chapter twenty-three of this code, the commission may bring an
action in the circuit court of Kanawha County to enjoin the
employer from continuing to operate the employer's business:
Provided, That the commissioner may, in his or her sole discretion,
and as an alternative to this action pursuant to this subsection,
require the employer to file a bond, in the form prescribed by the commissioner, with satisfactory surety in an amount not less than
one hundred fifty percent of the total payments, interest and
penalties due.
(c) In any action instituted pursuant to subsection (b) of
this section, the circuit court shall issue an injunction
prohibiting the employer from operating the employer's business, if
the Insurance Commissioner proves by a preponderance of the
evidence, that the employer is in default to the Old Fund or has
liability to the uninsured fund or is in policy default or has
otherwise failed to maintain mandatory workers' compensation
coverage.
(d) Notwithstanding any provision of this code to the
contrary, the commissioner shall have the authority to waive
penalty and interest accrued on moneys due the Old Fund. The
enactment of the provisions of this subsection shall be applied
retrospectively to January 1, 2006, and may not be construed to
require the commissioner to adjust or otherwise modify any
agreements reached with regard to the payment of penalty or
interest since that date.
(e) Notwithstanding any provision of this code to the
contrary, the Insurance Commissioner may compromise and settle any
claims for moneys due to the Old Fund or the Uninsured Employer Fund. Information regarding settlements is subject to chapter
twenty-nine-b of this code. The commissioner shall submit to the
President of the Senate, the Speaker of the House of Delegates and
the Legislative Auditor an annual report summarizing the
settlements into which he or she has entered pursuant to this
subsection. The summary shall describe the parties involved, the
total amount owed and portions paid, and the terms of the
settlement.;
And,
By striking out the title and inserting in lieu thereof a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 537--A Bill to repeal §23-
5-17 and §23-5-18 of the Code of West Virginia, 1931, as amended;
to amend and reenact §23-2-1d of said code; to amend and reenact
§23-2A-1 of said code; to amend and reenact §23-2C-8, §23-2C-15,
§23-2C-17 and §23-2C-21 of said code; to amend and reenact §23-4-
1c, §23-4-6b, §23-4-8, §23-4-8c and §23-4-15b of said code; to
amend said code by adding thereto a new section, designated §23-4-
8d; to amend
and reenact §23-5-1, §23-5-3 and §23-5-16 of said
code; and to amend and reenact §33-2-22 of said code, all relating
to workers' compensation; eliminating obsolete sunset provisions;
redefining the responsibility of prime contractors to injured employees of their subcontractors; clarifying subrogation rights
with respect to employees injured by third parties; authorizing
negotiation of amount to accept as subrogation in Old Fund claims;
deleting mandatory recovery fee to Insurance Commissioner in
certain subrogation claims; providing for a unitary decision-making
process in claims involving the Uninsured Employer Fund; changing
date on which governmental bodies may purchase workers'
compensation insurance in the private market and on which the
employers' mutual insurance company may non-renew such bodies;
awarding attorney fees and costs if workers' compensation temporary
disability benefits claim is unreasonably denied; extending the
scope of permissible remedies to include those in the general
insurance code; permitting the recovery of administrative costs in
certain actions; authorizing expedited review by the Office of
Judges when a request to reopen temporary total benefits is denied;
eliminating mandatory allocation in hearing loss claims; providing
that claims for medical benefits in occupational pneumoconiosis
claims may be made at any time; clarifying that a sixty-day period
applies to various protests; extending the jurisdiction of the
Office of Judges to hear certain protests; clarifying permissible
method of delivering payment of benefits; establishing
reimbursement for certain claimant travel expenses; authorizing
award of attorney fees in certain final settlements; clarifying licensing requirements for third-party administrators; mandating
conditional payments in certain instances; authorizing the
Insurance Commissioner to compromise and settle claims for moneys
due the Old Fund and Uninsured Employer Fund; and requiring report
to Legislature regarding settlements.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 537, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 537) 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. 613, Clarifying coalbed
methane notice requirements.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 21. COALBED METHANE WELLS AND UNITS.
§22-21-6. Permit required for coalbed methane well; permit fee;
application; soil erosion control plan; penalties.
(a) It is unlawful for any person to commence, operate, deepen
or stimulate any coalbed methane well, to conduct any horizontal
drilling of a well commenced from the surface for the purpose of
commercial production of coalbed methane or to convert any existing
well, vent hole or other hole to a coalbed methane well, including
in any case site preparation work which involves any disturbance of land, without first securing from the chief a permit pursuant to
this article.
(b) Every permit application filed under this section shall be
verified and shall contain the following:
(1) The names and addresses of: (i) The well operator; (ii)
the agent required to be designated under subsection (e) of this
section; and (iii) every person or entity whom the applicant must
notify under any section nine of this article;
(2) The name and address of each coal operator of record and
each coal owner of record or providing a record declaration of
notice pursuant to section thirty-six, article six of this chapter
of any coal seam which is: (i) To be penetrated by a proposed
well; (ii) within seven hundred fifty horizontal feet of any
portion of the proposed well bore; or (iii) within one hundred
vertical feet of the designated completion coal seams of to be
stimulated in the proposed well, except that in the case of an
application to convert a ventilation hole to a gob well, the name
and address only of such owner or operator of the seams to be
penetrated by a proposed well shall be necessary;
(3) The well name or such other identification as the chief
may require;
(4) The approximate depth to which the well is to be drilled, deepened or converted, the coal seams (stating the depth and
thickness of each seam) in which the well will be completed for
production and any other coal seams (including the depth and
thickness of each seam) which will be penetrated by the well;
(5) A description of any means to be used to stimulate the
well;
(6) If the proposed well will require casing or tubing to be
set, the entire casing program for the well, including the size of
each string of pipe, the starting point and depth to which each
string is to be set and the extent to which each such string is to
be cemented;
(7) If the proposed operation is to convert an existing well,
as defined in section one, article six of this chapter, or to
convert a vertical ventilation hole to a coalbed methane well, all
information required by this section, all formations from which
production is anticipated and any plans to plug any portion of the
well;
(8) Except for a gob well or vent hole proposed to be
converted to a well, if the proposed coalbed methane well will be
completed in some but not all coal seams for production, a plan and
design for the well which will protect all workable coal seams
which will be penetrated by the well;
(9) If the proposed operations will include horizontal
drilling of a well commenced on the surface, a description of such
operations, including both the vertical and horizontal alignment
and extent of the well from the surface to total depth;
(10) Any other relevant information which the chief may
require by rule.
(c) Each application for a coalbed methane well permit shall
be accompanied by the following:
(1) The applicable bond prescribed by section eight of this
article;
(2) A permit application fee of $650;
(3) The erosion and sediment control plan required under
subsection (d) of this section;
(4) The consent and agreement of the coal owner as required by
section seven and, if applicable, section twenty of this article;
(5) A plat prepared by a licensed land surveyor or registered
engineer showing the district and county in which the drill site is
located, the name of the surface owner of the drill site tract, the
acreage of the same, the names of the surface owners of adjacent
tracts, the names of all coal owners underlying the drill site
tract, the proposed or actual location of the well determined by a
survey, the courses and distances of such location from two permanent points or landmarks on said tract, the location of any
other existing or permitted coalbed methane well or any oil or gas
well located within two thousand five hundred feet of the drill
site, the number to be given the coalbed methane well, the proposed
date for completion of drilling, the proposed date for any
stimulation of the well and, if horizontal drilling of a well
commenced on the surface is proposed, the vertical and horizontal
alignment and extent of the well;
(6) A certificate by the applicant that the notice
requirements of section nine of this article have been satisfied by
the applicant. Such certification may be by affidavit of personal
service, or the return receipt card, or other postal receipt, for
certified mailing.
(d) An erosion and sediment control plan shall accompany each
application for a permit. Such plan shall contain methods of
stabilization and drainage, including a map of the project area
indicating the amount of acreage disturbed. The erosion and
sediment control plan shall meet the minimum requirements of the
West Virginia erosion and sediment control manual as adopted and,
from time to time, amended by the Office of Oil and Gas in
consultation with the several soil conservation districts pursuant
to the control program established in this state through Section
208 of the federal Water Pollution Control Act Amendments of 1972 [33 U. S. C. 1288]. The erosion and sediment control plan shall
become part of the terms and conditions of a permit and the
provisions of the plan shall be carried out where applicable in
operations under the permit. The erosion and sediment control plan
shall set out the proposed method of reclamation which shall comply
with the requirements of section thirty, article six of this
chapter.
(e) The well operator named in such application shall
designate the name and address of an agent for such operator who
shall be the attorney-in-fact for the operator and who shall be a
resident of the State of West Virginia, upon whom notices, orders
or other communications issued pursuant to this article may be
served, and upon whom process may be served. Every well operator
required to designate an agent under this section shall within five
days after the termination of such designation notify the office of
such termination and designate a new agent.
(f) The well owner or operator shall install the permit number
as issued by the chief in a legible and permanent manner to the
well upon completion of any permitted work. The dimensions,
specifications and manner of installation shall be in accordance
with the rules of the chief.
(g) The chief shall deny the issuance of a permit if he or she determines that the applicant has committed a substantial violation
of a previously issued permit, including the erosion and sediment
control plan, or a substantial violation of one or more of the
rules promulgated hereunder, and has failed to abate or seek review
of the violation. In the event that the chief finds that a
substantial violation has occurred with respect to existing
operations and that the operator has failed to abate or seek review
of the violation in the time prescribed, he or she may suspend the
permit on which said violation exists, after which suspension the
operator shall forthwith cease all work being conducted under the
permit until the chief reinstates the permit, at which time the
work may be continued. The chief shall make written findings of
any such determination made by him or her and may enforce the same
in the circuit courts of this state and the operator may appeal
such suspension pursuant to the provisions of section twenty-five
of this article. The chief shall make a written finding of any
such determination.
(h) Any person who violates any provision of this section
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than $5,000 or be imprisoned confined in
the county jail not more than twelve months one year, or both fined
and imprisoned confined.
§22-21-15. Drilling units and pooling of interests.
(a) In the absence of a voluntary agreement, an operator,
owner or other party claiming an ownership interest in the coalbed
methane may file an application with the chief to pool: (i)
Separately owned interests in a single tract; (ii) separately owned
tracts; (iii) separately owned interests in any tract; and (iv) any
combination of (i), (ii) and (iii) to form a drilling unit for the
production of coalbed methane from one or more coalbed methane
wells.
(b) The application for a drilling unit may accompany the
application for a permit for a coalbed methane well or be filed as
a supplement to the permit application. Such application shall be
verified by the applicant and contain the following information for
the proposed unit:
(1) The identity of each well and operator as set out in the
well permit application;
(2) Each well number, if one has been assigned;
(3) The acreage of the proposed unit, the identity and acreage
of each separate tract to be included in the proposed unit and,
where parts of tracts are included, the acreage of such parts;
(4) The district and county in which the unit is located;
(5) The names and addresses of the owners of the coal and
coalbed methane underlying each separate tract, or the portion thereof which is to be included in the unit, any lessees or
operators thereof, any coalbed methane owners not otherwise named,
and any other claimants thereto all persons to whom notice must be
provided under subsection (a), section sixteen of this article,
known to the applicant. When any coal seam is separately owned,
the list of names shall identify such separate ownership giving the
names of the separately owned seams;
(6) A statement describing the actions taken by the applicant
to obtain a voluntary agreement from each interest owner or
claimant named in the application to whom notice must be provided
under subsection (a), section sixteen of this article or any other
owner or claimant who has notified the applicant of a claim from
which agreement has not been obtained;
(7) Other pertinent and relevant information as the chief may
prescribe by rules.
(c) The application for a drilling unit shall be accompanied
with the following:
(1) A plat prepared by a licensed land surveyor or registered
professional engineer showing the location of the coalbed methane
well or wells, or proposed well or wells, the boundary and acreage
of the proposed drilling unit, the boundary and acreage of each
tract contained in the unit and, where parts of tracts are included, the boundary and acreage of such parts, a name
identification of each tract and the district and county in which
the unit is located. All boundaries must be shown with courses and
distances;
(2) A permit application fee of $250;
(3) A certificate by the applicant that the notice
requirements of section sixteen of this article were satisfied by
the applicant. Such certification may be by affidavit of personal
service, or the return receipt card, or other postal receipt, for
certified mailing;
(4) An estimate of the cost, or the actual cost if known, of
drilling, completing and equipping, operating, plugging and
abandoning any well or wells in the proposed unit.
§22-21-16. Notice to owners.
(a) At least thirty days prior to the date set for hearing
under section seventeen of this article, the applicant shall
deliver by personal service or by certified mail, return receipt
requested, notice to the following:
(1) Each coal owner of record and coal operator of record of
any coal seam underlying any tract or portion thereof which is
proposed to be included in the unit;
(2) Each owner and lessee of record and each operator of natural gas surrounding the well bore and existing in formations
above the top of the uppermost member of the "Onondaga Group" or at
a depth less than six thousand feet, whichever is shallower.
Notices to gas operators shall be sufficient if served upon the
agent of record with the Office of Oil and Gas; and
(3) Any coalbed methane owner to the extent not otherwise
named which interest arises from a deed, lease, contract, will,
inheritance or other instrument of record wherein a person or
entity identified in subdivision (1) or (2), subsection (a) of this
section, or the predecessor in title to such person or entity,
expressly granted, leased, reserved or conveyed coalbed methane.
(b) At least thirty days prior to the date set for the hearing
under section seventeen of this article, the applicant shall
publish a notice by a Class II legal advertisement in the county or
counties in which the well unit is to be located. The legal
advertisement shall contain the information required by subsection
(c) of this section and any other information as the chief shall
prescribe by rule.
__________(c) The notice required by subsection (a) of this section
shall specify a time and place for a conference and a hearing on
this application, shall advise the persons notified that the
applicant has filed an application for a drilling unit for the production of coalbed methane, that they may be present and object
or offer comments to the formation of the proposed unit and shall
be accompanied with copies of: (i) The permit application for the
coalbed methane well; (ii) the permit application for the drilling
unit; and (iii) the plat of the drilling unit. However, in the
case of the notice required by subsection (b) of this section, only
the address of where an interested party can obtain such copies is
required to be published.
__________(d) Notice by the applicant to all persons to whom notice must
be provided under subsection (a) of this section and notice by
publication as provided by subsection (b) of this section shall be
deemed to include, and shall be deemed to be sufficient notice to,
all potential claimants to ownership of the coalbed methane.
§22-21-17. Review of application; hearing; pooling order;
spacing; operator; elections; working interests,
royalty interests, carried interests, escrow
account for conflicting claims, division order.
(a) Prior to the time fixed for a hearing under subsection (b)
of this section, the board shall also set a time and place for a
conference between the proposed applicant to operate a coalbed
methane drilling unit and all persons identified in the application
as having an interest in the coalbed methane or being a claimant if such interests are disputed, to whom notice has been given under
subsection (a), section sixteen of this article who have not
entered into a voluntary agreement. At such conference the
applicant and such other persons present or represented having an
interest in the proposed unit shall be given an opportunity to
enter into voluntary agreements for the development of the unit
upon reasonable terms and conditions.
No order may be issued by the board as to any unit unless the
applicant submits at the hearing a verified statement setting forth
the results of the conference. If agreement is reached with all
parties to the conference, the board shall find the unit is a
voluntary unit and issue an order consistent with such finding.
(b) The review board shall, upon request of a proposed
applicant for a drilling unit or upon request of a coal owner or
operator, provide a convenient date and time for a hearing on the
application for a drilling unit, which hearing date shall be no
sooner than thirty-five days nor more than sixty days of the date
the request for hearing is made. The review board shall review the
application and on the date specified for a hearing shall conduct
a public hearing. The review board shall take evidence, making a
record thereof and consider:
(1) The area which may be drained efficiently and economically by the proposed coalbed methane well or wells;
(2) The plan of development of the coal and the need for
proper ventilation of any mines or degasification of any affected
coal seams;
(3) The nature and character of any coal seam or seams which
will be affected by the coalbed methane well or wells;
(4) The surface topography and property lines of the lands
underlaid by the coal seams to be included in the unit;
(5) Evidence relevant to the proper boundary of the drilling
unit;
(6) The nature and extent of ownership of each coalbed methane
owner or claimant and whether conflicting claims exist;
(7) Whether the applicant for the drilling unit proposes to be
the operator of the coalbed methane well or wells within the unit;
and if so, whether such applicant has a lease or other agreement
from the owners or claimants of a majority interest in the proposed
drilling unit;
(8) Whether a disagreement exists among the coalbed methane
owners or claimants over the designation of the operator for any
coalbed methane wells within the unit and, if so, relevant evidence
to determine which operator can properly and efficiently develop
the coalbed methane within the unit for the benefit of the majority of the coalbed methane owners;
(9) If more than one person is interested in operating a well
within the unit, the estimated cost submitted by each such person
for drilling, completing, operating and marketing the coalbed
methane from any proposed well or wells; and
(10) Any other available geological or scientific data
pertaining to the pool which is proposed to be developed.
(c) The review board shall take into account the evidence
introduced, comments received and any objections at the hearing,
and if satisfied that a drilling unit should not be established,
shall enter an order denying the application. If the review board
is satisfied that a drilling unit should be established, it shall
enter a pooling order establishing a drilling unit. Such pooling
order shall:
(1) Establish the boundary of the proposed unit, making such
adjustment in the boundary as is just;
(2) Authorize the drilling and operation of a coalbed methane
well or wells for production of coalbed methane from the pooled
acreage;
(3) Establish minimum distances for any wells in the unit and
for other wells which would drain the pooled acreage;
(4) Designate the operator who will be authorized to drill, complete and operate any well or wells in the unit;
(5) Establish a reasonable fee for the operator for operating
costs, which shall include routine maintenance of the well and all
accounting necessary to pay all expenses, royalties and amounts due
working interest owners;
(6) Such other findings and provisions as are appropriate for
each order.
(d) The operator designated in such order shall be responsible
for drilling, completing, equipping, operating, plugging and
abandoning the well, shall market all production therefrom, shall
collect all proceeds therefor and shall distribute such proceeds in
accordance with the division order issued by the review board.
(e) Upon issuance of the pooling order, the coalbed methane
owners or any lessee of any such owners or any claimants thereto
may make one of the following elections within thirty days after
issuance of the order:
(1) An election to sell or lease its interest to the operator
on such terms as the parties may agree, or if unable to agree, upon
such terms as are set forth by the board in its order;
(2) An election to become a working interest owner by
participating in the risk and cost of the well; or
(3) An election to participate in the operation of the well as a carried interest owner.
Any entity which does not make an election within said thirty
days prescribed herein shall be deemed to have elected to sell or
lease under subdivision (1) of this subsection.
(f) The working interest in the well shall include: (i) The
right to participate in decisions regarding expenditures in excess
of operating costs, taxes, any royalties in excess of one-eighth,
and other costs and expenses allowed in the pooling order; and (ii)
the obligation to pay for all expenditures. The working interest
shall exist in: (i) All well operators and owners who participate
in the risk and cost of drilling and completing the well; and (ii)
carried interest owners after recoupment provided in subsection (h)
of this section. The working interest owners' net revenue share
shall be seven eighths of the proceeds of sales of coalbed methane
at the wellhead after deduction of operating costs, taxes, any
royalties in excess of one-eighth and other costs and expenses
allowed in a pooling order. Unless the working interest owners
otherwise agree, the working interest owners shall share in all
costs and decisions in proportion to their ownership interest in
the unit. If any working interest owner deposits or contributes
amounts in the escrow account which exceed actual costs, such owner
shall be entitled to a refund; and if amounts deposited or
contributed are less than actual costs, such owner shall make a deposit or contribution for the deficiency.
(g) The royalty interest in a well shall include the right to
receive one eighth of the gross proceeds resulting from the sale of
methane at the wellhead and such interest shall exist in the
coalbed methane owners: Provided, That any coalbed methane owner
who in good faith has entered a lease or other contract prior to
receiving notice of an application to form the drilling unit as
provided herein shall be entitled to such owner's fractional
interest in the royalty calculated at a rate provided for in such
contract. Each such owner shall be entitled to share in the
royalty in proportion to his or her fractional interest in the
unit.
(h) Where a coalbed methane owner elects to become a carried
interest owner, such owner shall be entitled to his or her
proportionate share of the working interest after the other working
interest owners have recouped three hundred percent of the
reasonable capital costs of the well or wells, including drilling,
completing, equipping, plugging and abandoning and any further
costs of reworking or other improvements of a capital nature.
(i) Each pooling order issued shall provide for the
establishment of an escrow account into which the payment of costs
and proceeds attributable to any conflicting interests shall be deposited and held for the interest of the claimants as follows:
(1) Each participating working interest owner, except for the
operator, shall deposit in the escrow account its proportionate
share of the costs allocable to the ownership interest claimed by
such working interest owner.
(2) The operator shall deposit in the escrow account all
proceeds attributable to the conflicting interests of any coalbed
methane owners who lease, or are deemed to have leased, their
interest, plus all proceeds in excess of operational expenses, as
allowed in the pooling order, attributable to the conflicting
working and carried interest owners.
(j) After each coalbed methane owner has made, or has been
deemed to have made, an election under subsection (e) of this
section, the review board shall enter a division order which shall
set out the net revenue interest of each working interest owner,
including each carried interest owner and the royalty interest of
each coalbed methane owner. Thereafter payments shall be made to
working interest owners, carried interest owners and royalty
interest owners in accordance with the division order, except that
payments attributable to conflicting claims shall be deposited in
the escrow account. The fractional interest of each owner shall be
expressed as a decimal carried to the sixth place.
(k) Upon resolution of conflicting claims either by voluntary
agreement of the parties or a final judicial determination, the
review board shall enter a revised division order in accordance
with such agreement or determination and all amounts in escrow
shall be distributed as follows:
(1) Each legally entitled working interest owner shall receive
its proportionate share of the proceeds attributable to the
conflicting ownership interests;
(2) Each legally entitled carried interest owner shall receive
its proportionate share of the proceeds attributable to the
conflicting ownership interests, after recoupment of amounts
provided in subsection (h) of this section;
(3) Each legally entitled entity leasing, or deemed to have
leased, its coalbed methane shall receive a share of the royalty
proceeds attributable to the conflicting interests; and
(4) The operator shall receive the costs contributed to the
escrow account by each legally entitled participating working
interest owner.
(l) The review board shall enact rules for the administration
and protection of funds delivered to escrow accounts.
(m) No provision of this section or article shall obviate the
requirement that the coal owner's consent and agreement be obtained prior to the issuance of a permit as required under section seven
of this article.;
And,
By striking out the title and inserting in lieu thereof a new
title, to read as follows:
Eng. Com. Sub
. for Senate Bill No. 613--A Bill
to amend and
reenact §22-21-6, §22-21-15, §22-21-16 and §22-21-17 of the Code of
West Virginia, 1931, as amended, all relating to clarifying notice
requirements for a hearing on a permit application related to
coalbed methane wells; requiring a notice of hearing to be
published; and making technical clarifications.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 613, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 613) 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
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. 2621,
Prohibiting the use of
cell phone and text-messaging devices while operating a motor
vehicle except when using a hands-free device or in the case of an
emergency.
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 five from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 2832, Relating to critical
skills evaluations for students in grades three and eight.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates M. Poling, Marshall, Shaver, Rowan and Evans.
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 five from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 2961,
Adding two members to
the institutional boards of governors of West Virginia University
and Marshall University based upon race, gender and ethnicity.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Kominar, Williams, Mahan, Romine and Anderson.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 2968, Requiring the State
Fire Commission to establish safety standards for liquefied
petroleum gas systems.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Kessler, the Senate requested the return
from the House of Delegates of
Eng. House Bill No. 2981, Relating to primary elections and
nominating procedures of third-party candidates.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Kessler, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. House Bill No. 2981--A Bill to amend and reenact §3-5-7,
§3-5-23 and §3-5-24 of the Code of West Virginia, 1931, as amended,
all relating to elections generally, requiring candidates for the
Senate and House of Delegates to file announcement of candidacy
with the Secretary fo State; reducing number of signatures needed
for nomination of third-party candidates; making filing deadline
for the nomination of candidates August 1; eliminating requirement
that persons signing nomination certificate state a desire to vote
for nominated candidate; permitting duly registered voters who sign
nomination certificates to vote in the corresponding primary
election; establishing the date by which the filing fee must be
paid; and making technical corrections.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Deem, and by unanimous consent, the
Senate returned to the second order of business and the
introduction of guests.
At the request of Senator Deem, unanimous consent being
granted, Senator Deem addressed the Senate regarding carbon dioxide
regulations.
Thereafter, at the request of Senator Hall, and by unanimous
consent, the remarks by Senator Deem were ordered printed in the
Appendix to the Journal.
The Senate again proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, adoption as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Senate Concurrent Resolution No. 38, Requesting Division of
Highways name Route 9 from Martinsburg to Berkeley Springs "Ray
Johnston Memorial Highway".
On motion of Senator Chafin, the message on the resolution was
taken up for immediate consideration.
The following House of Delegates amendments to the resolution
were reported by the Clerk:
On page two, after the Resolved clause, by striking out the words "Berkeley Springs" and inserting in lieu thereof the words
"the Morgan County Line";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Senate Concurrent Resolution No. 38--
Requesting the Division
of Highways name the section of Route 9 from Martinsburg to the
Morgan County line the "Ray Johnston Memorial Highway".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the resolution.
The question being on the adoption of the resolution (S. C. R.
No. 38), as amended by the House of Delegates, the same was put and
prevailed.
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
that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of five from
each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373, Relating
to PROMISE Scholarship.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Williams, Beach, Doyle, Romine and Anderson.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Laird, Green, Oliverio, Stollings and Guills.
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
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. 2218, Authorizing the
Department of Transportation to promulgate legislative rules.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Brown, Barker and Sobonya.
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. House Bill No. 2920, Eliminating the felony conviction
for a second or subsequent conviction of petit larceny.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Fleischauer, Frazier and Ellem.
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. 3146, Relating to seniority
rights for school service personnel.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates M. Poling, Ennis and Rowan.
The Senate again proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 3278, Relating to the life
and health insurance guaranty association.
On third reading, coming up out of regular order, was read a
third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3278) 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. 2335, Relating to the
federal "Yellow Ribbon G. I. Education Enhancement Program".
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2335) 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. 2401, Providing for the
expiration of the alternative minimum tax.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2401) 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. 2566, Expanding
applicability of increased penalties for crimes against certain
protected persons.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2566) 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. 2660, Expanding the
definition of limited health care service.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2660) 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. 2690, Updating language
pertaining to indemnity for the death of diseased or infected
animals.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2690) 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. 2916, Relating to the
Emergency Medical Services Act.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2916) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2916) 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. 2958, Increasing the fines for a trespassing conviction pursuant to certain circumstances.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2958) 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. 3074, Allowing the Secretary
of State to notify people with delinquent taxes by certified mail.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3074) 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. 3336, Continuing early
intervention services to families with developmentally delayed
infants and toddlers but eliminating the cost-free provision.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3336) passed.
On motion of Senator Prezioso, the following
amendment to the title of the bill was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 3336--A Bill to amend and
reenact §16-5K-2 and §16-5K-6 of the Code of West Virginia, 1931,
as amended, all relating to authorizing the Bureau for Public
Health to continue providing early intervention services to
families with developmentally delayed infants and toddlers;
authorizes the ability to charge fees on a sliding scale and to
bill third-party payers; and establishing that any fees for
payments by third-party payers will go into the Birth-to-Three
Fund.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The end of today's third reading calendar having been reached,
the Senate returned to the consideration of
Eng. House Bill No. 2931, Removing a severance tax on timber
for tax years 2010 through 2013.
On third reading, coming up in deferred order, was read a
third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed House Bill No. 2931 pass?"
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2931) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 2931--A Bill to amend and reenact
§11-13A-3b of the Code of West Virginia, 1931, as amended; and to amended and reenact §11-13V-4 of said code, all relating to
removing a severance tax on timber for tax years 2010 through 2012,
inclusive.
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 Deem, and by unanimous
consent, the remarks by Senators Helmick, Barnes, Browning,
Williams and K. Facemyer regarding the passage of Engrossed House
Bill No. 2931 were ordered printed in the Appendix to the Journal.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the seventh order of business.
Senate Concurrent Resolution No. 73, Requesting Joint
Committee on Government and Finance study apiculture industry.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 74, Requesting Joint
Committee on Government and Finance study farmers markets.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 77, Requesting Joint
Committee on Government and Finance study existing laws related to
current mortgage crisis.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
House Concurrent Resolution No. 10, The "T-5 Leon Whitlock and
PFC Forrest Wilson Memorial Bridge" and the "SFC Stanley Williams
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. 12, The "Sebert S. Duty
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. 14, The "Corporal William Dely
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. 16, The "Willis W. Elkins
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. 17, The "War Veterans of
Mercer County 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. 18, The "Chief Master Sergeant
George Wallace Hedrick, Jr, 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. 19, Requesting the Division of
Highways to rename Guy Gillenwater Hollow to "Heritage Road".
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. 20, Requesting the Division of
Highways add to the signage on bridge number O6-O2-0.10, in Cabell
County, adding "Green Beret" above "Sgt. Jackie L. Waymire Memorial
Bridge" and "Recipient of DSC KIA Vietnam 1967" below.
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. 21, The "Staff Sgt. Jeremy
Alexander Brown 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. 22, The "Buffalo Creek
Memorial Highway".
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. 25, Requesting that the
Division of Highways relocate the marker known as the Washington
Lands Marker in Moundsville.
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. 28, The "Sgt. Daniel Pesimer
Memorial Bridge Killed in Vietnam, 1968".
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. 29, The "Arden Cogar, Sr.
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. 31, The "Airman First Class
Christopher Burns Lester 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. 39, The "Clair Bee: Basketball Coach and Author 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. 44, The "SFC Jaime Scott
Nicholas Memorial Highway".
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. 45, The "Bob Basil 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. 47, The "PFC Ronald 'Ronnie'
Dean, USMC, 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, The "Pearl Harbor: PFC
Carey K. Stockwell 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.
At the request of Senator Caruth, and by unanimous consent,
the Senate returned to the second order of business and the
introduction of guests.
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 8:30
p.m. tonight.
Night Session
Upon expiration of the recess, the Senate reconvened and again
proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee reports
had been filed at 8:50 p.m. tonight:
Eng. Senate Bill No. 767, Relating to certain Medicaid program
contracts.
Eng. Com. Sub. for House Bill No. 2218, Authorizing the
Department of Transportation to promulgate legislative rules.
And,
Eng. House Bill No. 2920, Eliminating the felony conviction
for a second or subsequent conviction of petit larceny.
The Clerk announced the following conference committee report
had been filed at 8:52 p.m. tonight:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373, Relating
to PROMISE Scholarship.
The Clerk announced the following conference committee report
had been filed at 8:53 p.m. tonight:
Eng. Com. Sub. for House Bill No. 3146, Relating to seniority
rights for school service personnel.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendments, and
requested 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 Com. Sub. for Senate Bill No. 414, Relating
to Pharmaceutical Cost Management Council and health care delivery
systems.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Perdue, Wooton and Border.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Prezioso, Foster and Guills.
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
that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of five from
each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 498, Relating
to early childhood education.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Varner, M. Poling, Perry, Ireland and Anderson.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Unger, Foster, Stollings, White and Boley.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee reports had been filed at 8:59 p.m. tonight:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 414, Relating
to Pharmaceutical Cost Management Council and health care delivery
systems.
And,
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 498, Relating
to early childhood education.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had returned to the
Senate calendar, on third reading,
Engrossed Committee Substitute
for House Bill No. 2701 and
Engrossed House Bill No. 3047.
The Senate again proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2701, Relating to an escape
of any person from the custody of the Division of Juvenile
Services.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2701) 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. 2701--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §61-5-12b, relating to making escape by any
person from the custody of the Division of Juvenile Services a
misdemeanor; providing for criminal penalties; establishing venue
for the proceedings; and allowing for the transfer of jurisdiction
back to the original committing court if the person is under
eighteen and all parties agree.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3047, Clarifying that the Director of the
Public Employees Insurance Agency is authorized to enter into
capitated provider arrangements for provision of primary health care services.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3047) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2535, Creating a tax credit
for certain solar energy systems.
On second reading, coming up out of 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 three, section three, lines one through five, by
striking out the following: If the credit earned in the year the
solar energy system is installed exceeds the allowable tax credit
amount the residential property owner may claim for that taxable
year, the excess credit may be carried over for the next taxable
year.;
And,
On page four, section three, line fifteen, after the word
"article." by adding the following: No taxpayer shall take a credit
pursuant to this article for a solar energy system installed after
July 1, 2013.
The bill (Eng. Com. Sub. for H. B. No. 2535), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2535) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2535) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2535) takes effect July 1, 2009.
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. 2885, Establishing a uniform
credentialing form and creating a single credentialing verification
organization.
On second reading, coming up out of regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §16-1A-1, §16-1A-3 and §16-1A-4 of the Code of West Virginia, as amended, be amended and reenacted; and that said code
be amended by adding thereto a new section, designated §16-1A-5,
all to read as follows:
ARTICLE 1A. UNIFORM CREDENTIALING FOR HEALTH CARE PRACTITIONERS.
§16-1A-1. Legislative findings; purpose.
(a) The Legislature finds:
(1) Credentialing, required by hospitals, insurance companies,
prepaid health plans, third party administrators and other health
care entities, is necessary to assess and verify the education,
training
, and experience
and competence of health care
practitioners to ensure that qualified professionals treat the
citizens of this state.
(2) Currently,
each of the entities requiring credentialing
has its own a credentialing application
forms resulting in health
care practitioners being required to complete multiple forms
listing the same or similar information. The duplication is
costly, time consuming and not in the best interests of the
citizens of this state form has been created to reduce duplication
and increase efficiency. Each health care entity performs primary
source verification for the practitioners who apply to that entity
for affiliation. This duplication of primary source verification
is time consuming and costly.
(3) The Secretary of the Department of Health and Human
Resources and the Insurance Commissioner share regulatory authority
over the entities requiring credentialing.
(b) The purpose of this article is to
authorize the
development of uniform credentialing application forms by those
public officials regulating the entities that require credentialing
and to
establish an continue the advisory committee to assist in
developing a uniform credentialing process and
implementing to
develop legislation regarding the use of uniform credentialing
through one or more credentialing verification organizations in
this state.
§16-1A-3. Definitions.
(a) "Commissioner" is the Office of the Insurance
Commissioner.
(b) "CVO" is a Credentialing Verification Organization which
performs primary source verification of all health care
practitioners' training, education and experience.
(c) "The department" is the Department of Health and Human
Resources;
(d) "Health care practitioners" means those established
pursuant to section two of this article in legislative rule.
(e) "Joint Commission" is an independent not-for-profit organization that evaluates and accredits more than 15,000 health
care organizations and programs in the United States.
(f) "NCQA" means the National Committee for Quality Assurance,
which is a private, 501(c)(3) not-for-profit organization dedicated
to improving health care quality.
(g) "Primary source verification procedure" means the
procedure used by a credentialing organization to collect, verify
and maintain the accuracy of documents and credentialing
information submitted to it by a health care practitioner who is
applying for affiliation with a health care entity.
(h) "URAC" means the American Accreditation Healthcare
Commission.
(i) "Payor" means an insurer, prepaid health plan, hospital
service corporation, third party administrator as defined in
article forty-six, chapter thirty-three of this code, or any other
entity that reimburses health care practitioners for medical
services.
§16-1A-4. Advisory committee.
(a) The Secretary of the Department of Health and Human
Resources and the Insurance Commissioner shall jointly establish an
advisory committee to assist them in the development and
implementation of the uniform credentialing process in this state. The advisory committee shall consist of
eleven thirteen appointed
members. Six members shall be appointed by the Secretary of the
Department of Health and Human Resources: One member shall
represent a hospital with one hundred beds or less; one member
shall represent a hospital with more than one hundred beds; one
member shall represent another type of health care facility
requiring credentialing; one member shall be a person currently
credentialing on behalf of health care practitioners; and two of
the members shall represent the health care practitioners subject
to credentialing. Five members shall be representative of the
entities regulated by the Insurance Commissioner that require
credentialing and shall be appointed by the Insurance Commissioner:
One member shall represent an indemnity health care insurer; one
member shall represent a preferred provider organization; one
member shall represent a third party administrator; one member
shall represent a health maintenance organization accredited by
URAC; and one member shall represent a health maintenance
organization accredited by the national committee on quality
assurance. The Secretary of the Department of Health and Human
Resources and the Insurance Commissioner, or the designee of either
or both, shall be nonvoting ex officio members.
Upon the effective
date of this legislation, the state hospital association and state
medical association shall each designate to the department one person to represent their respective associations and members and
those designees shall be appointed to the advisory committee by the
secretary of the department.
(b) At the expiration of the initial terms, successors will be
appointed to terms of three years. Members may serve an unlimited
number of terms. When a vacancy occurs as a result of the
expiration of a term or otherwise, a successor of like
qualifications shall be appointed.
Representatives of the hospital
and medical associations shall serve for three-year terms.
(c) The advisory committee shall meet at least annually to
review the status of uniform credentialing in this state, and may
make further recommendations to the Secretary of the Department of
Health and Human Resources and the Insurance Commissioner as are
necessary to carry out the purposes of this article. Any uniform
forms and the list of health care practitioners required to use the
uniform forms as set forth in legislative rule proposed pursuant to
section two of this article may be amended as needed by procedural
rule.
§16-1A-5. Development of legislation regarding CVO; report
required.
(a) On or before January 1, 2010, the advisory committee
established pursuant to section four of this article shall develop legislation that considers the following:
(1) The establishment of one or more CVOs within the state to
provide primary source verification with electronic accessibility
on a cost effective and operationally efficient basis;
(2) The number of CVOs necessary to provide this access for
the state;
(3) The treatment of existing CVOs currently doing business
within the state;
(4) The duties of a CVO and the timelines for completion of
its verification duties;
(5) The procedures for maintaining healthcare practitioner
files;
(6) The payment system to cover the costs of the credentialing
program;
(7) The use and confidentiality of data generated, collected
and maintained by a CVO;
(8) Compliance by CVOs with certificate requirements including
NCQA, URAC, Medicare and Medicaid and other state and federal
requirements;
(9) The required use by payors and hospitals of a CVO's
primary source verification services;
(10) Credentialing recredentialing requirements as required by
payors, hospitals and state and federal law and regulations;
(11) The use of site visits in credentialing;
(12) The maintenance, amounts and types of liability insurance
to be obtained by a CVO;
(13) Consideration of existing statutory protections that
should be extended to the CVO;
(14) Privacy considerations;
(15) If applicable, the terms and conditions of the contract
under which a CVO operates in this state and the procedure and
criteria upon which a CVO is selected;
(16) Penalties, if any, for noncompliance;
(17) Timelines for credentialing, recredentialing and other
compliance obligation of payors;
(18) Reconciliation of the use of forms required by this
article with other applicable state and federal laws and
regulations.
(b) On or before January 1, 2010, the department and the
commissioner shall jointly report to the Legislative Oversight
Commission on Health and Human Resources Accountability proposed
legislation to implement the provisions set forth in this article.
The bill (Eng. Com. Sub. for H. B. No. 2885), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2885) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2885) passed.
The following amendment to the title of the bill, from the
Committee on Banking and Insurance, was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 2885--A Bill to amend and
reenact §16-1A-1, §16-1A-3 and §16-1A-4 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto a new section, designated §16-1A-5, all relating to uniform
credentialing for health care providers; defining terms;
establishing the composition of the advisory committee; requiring
the advisory committee to develop proposed legislation to establish
credentialing verification organization or organizations, and the
disposition of existing organizations; describing the duties of
CVOs; describing the procedures for completion of verification;
establishing time frames for credentialing; requiring all health
care practitioners and insurers, hospitals, third party
administrators and other health care entities to use the CVO and
the credentialing form; developing credentialing requirements;
developing privacy considerations; providing penalties; and requiring a report to the Legislature regarding proposed
legislation on or before January 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3197, Authorizing municipalities to permit
nonpolice officers to issue citations for littering.
On second reading, coming up out of 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 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED
RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL
OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.
§8-12-16b. Special litter prevention officers.
(a) A municipality that has adopted an anti-littering
ordinance pursuant to section five of this article may provide, by
ordinance, for the appointment of special litter prevention
officers to aid in the enforcement of the municipal anti-littering
ordinance.
(b) The ordinance enacted, pursuant to this section, must
specify the duties to be performed by the special litter prevention
officers and the required training such officers must undertake
prior to commencement of their duties.
(c) Notwithstanding any other provision of this code, a
special litter prevention officer may be presently employed by the
municipality in another capacity. In the performance of the duties
of special litter prevention officer, such officers shall be vested
with the power to issue a citation, issue a summons, and sign a
complaint. Such officers shall display at all times a badge or
other sign of authority issued by the municipality.
(d) The governing body of the municipality may require such
special litter prevention officers to give bond, payable to the
municipality, in its corporate name, with such sureties and such
penalties as the governing body may see fit, conditioned for the
faithful performance of their duties.
The bill (Eng. H. B. No. 3197), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Wells, White, Williams, Yost and Tomblin
(Mr. President)--31.
The nays were: Barnes, Helmick and Unger--3.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3197) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--32.
The nays were: Barnes and Guills--2.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3197) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and adopted:
Eng. House Bill No. 3197--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §8-12-6b, relating to authorizing municipalities to
appoint special litter prevention officers by ordinance; and
authorizing special litter prevention officers to perform their
duties as provided for by ordinance.
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. 3195, Establishing a funding
mechanism for state aid for local health departments.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3195) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3195) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3195) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Concurrent Resolution No. 69, Urging congressional
delegation support Main Street Fairness Act.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2884, Long-Term Care Partnership Program.
With an amendment from the Committee on Health and Human
Resources pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 8, 2009;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Health and Human Resources to
which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 2884) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendment to the bill, from the Committee on
Health and Human Resources, was reported by the Clerk and adopted:
On pages three and four, section three, by striking out all of
subsection (a) and inserting in lieu thereof a new subsection (a),
to read as follows:
(a) The program shall be administered by the Bureau for
Medical Services. The bureau shall establish a long-term care
partnership program in West Virginia in order to provide for the
financing of long-term care through a combination of private
insurance and Medicaid in accordance with federal requirements on
qualified state long-term care insurance partnerships.
The bill (Eng. H. B. No. 2884), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2884) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: Hall--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2884) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3339, Facilitating the
complete closure of the Gwinn, otherwise known as the Midwest
Services Landfill, located in Summers County.
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on April 8, 2009;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3339) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a second time and ordered to
third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: Barnes--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 3339) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3339) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3339) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the consideration of
Senate Concurrent Resolution No. 69, Urging congressional
delegation support Main Street Fairness Act.
Having been reported from the Committee on Finance in earlier
proceeding tonight.
At the request of Senator Chafin, unanimous consent being
granted, the resolution (S. C. R. No. 69) 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.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
House Concurrent Resolution No. 37, Declaring Bituminous Coal
to be the official state rock.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the resolution (H. C. R. No. 37) contained in the
preceding report from the Committee on Government Organization 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.
Without objection, the Senate returned to the third order of
business.
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 July 1, 2009, and requested the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 280, Creating Correctional
Industries Act of 2009.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 7. CORRECTIONAL INDUSTRIES ACT OF 2009.
§25-7-1. Legislative findings.
The Legislature finds that the means now provided for the use
of inmate labor are inadequate to furnish a sufficient number of
inmates with employment. It is the intent of this article:
(a) To provide more adequate, regular and suitable employment
for the inmates and confined juvenile or youthful offenders of this
state;
(b) To use the labor of inmates and confined juvenile or
youthful offenders for self-maintenance and to reimburse this state
for expenses incurred by reason of their crimes and confinement;
(c) To provide for the requisition and distribution of
correctional industries articles and products directly through
established state authorities, with no possibility of private
profit except for those specific articles and products manufactured
and sold pursuant to 18 U. S. C. §1761(c), the Prison Industry
Enhancement (PIE) Certification Program, and pursuant to sections
thirteen, fourteen, fifteen and sixteen of this article; and
(d) To provide for correctional industries to be profitable in
view of the fact that it is a self-sufficient authority.
§25-7-2. Citation of article.
This article may be cited as the Correctional Industries Act
of 2009.
§25-7-3. Establishment of industries at correctional facilities;
purposes and extent.
The Commissioner of the Division of Corrections or the
commissioner's designee has exclusive authority to execute
contracts for the sale of products manufactured or serviced at
state correctional facilities, as necessary to carry out the
provisions of this article. The commissioner or designee is
authorized to purchase equipment, raw materials and supplies and to
employ necessary supervisory personnel to establish and maintain,
at state correctional facilities and institutions under the commissioner's control, industries which use the services of
inmates to manufacture and produce articles and products for use by
any office, department, institution or agency supported, in whole
or in part, by this state or its political subdivisions.
§25-7-4. Correctional industries service contracts.
(a) The commissioner may enter into contracts with private
entities under which inmate or resident labor is provided through
correctional industries for work involving the delivery of products
or for service work. "Service work" means work which includes, but
is not limited to, repairs, replacement of original manufactured
items, packaging, sorting, recycling, labeling or similar work that
is not original equipment manufacturing. The use of inmate or
resident labor may not result in the displacement of civilian
workers employed in the local region where the work is performed.
The division may negotiate the wage for inmate or resident labor
under correctional industries contracts, and, except as provided in
sections thirteen, fourteen, fifteen and sixteen of this article,
the wage may be less than the prevailing wage for work of a similar
nature in the private sector.
(b) The Division of Corrections, in cooperation with the
Department of Commerce, shall develop and maintain a marketing plan
encouraging private sector businesses to employ inmates through the correctional industries program.
§25-7-5. Purchase of inmate-made goods by state agencies.
(a) On and after the effective date of this article, all
offices, departments, institutions and agencies of this state
supported, in whole or in part, by state funds shall purchase all
articles or products which they require from the commissioner, if
those articles or products are produced or manufactured by
correctional industries, as provided by this article. No state
office, department, institution or agency may purchase an article
or product which correctional industries produces from any other
source unless specifically excepted from the provisions of this
section pursuant to section six of this article.
(b) Purchases of correctional industries articles or products
by state offices, departments, institutions and agencies shall be
made on requisition by the office, department, institution or
agency requiring the articles or products.
(c) Political subdivisions, not-for-profit corporations and
charitable agencies chartered in West Virginia, units of the
federal government and units of government of other states may
purchase articles and products produced by correctional industries.
Entities which contract with the state, its political subdivisions,
its agencies or its public institutions may purchase from correctional industries articles and products used in the
performance of their contracts.
§25-7-6. Exceptions to mandatory purchase requirement.
Exceptions from the mandatory purchase provisions of section
five of this article may be granted when a correctional industries'
article or product does not meet the reasonable requirements of the
requesting state office, department, institution or agency, or when
the requisition cannot be fulfilled because of insufficient supply
or other reason. No state office, department, institution or
agency may evade the requirements of section five of this article,
or of this section, making insubstantial variations from the
characteristics of correctional industries products or articles.
§25-7-7. Catalogues and a website of articles and products made
and produced.
The commissioner shall arrange for the creation and updating
of catalogues and a website containing descriptions of the
correctional industries articles and products manufactured or
produced pursuant to the provisions of this article. The
commissioner shall make copies of the catalogue and the website
address available to entities eligible to acquire correctional
industries articles and products.
§25-7-8. Commissioner to determine prices.
The commissioner or the commissioner's designee shall
determine the prices of correctional industries articles and
products. The prices shall be uniform for all and as near as is
practicable to the fair market price.
§25-7-9. Annual statements by the commissioner.
At the close of each fiscal year, the commissioner shall
prepare a financial report on the financial condition of the
correctional industries operation, in accordance with generally
accepted accounting principles. Within sixty days after the end of
the fiscal year, the commissioner shall file the report with the
Secretary of the Department of Military Affairs and Public Safety,
the Secretary of the Department of Administration and the Office of
the Legislative Auditor.
§25-7-10. Indebtedness for capital outlay projects.
To carry out the provisions of this article, the commissioner
is authorized to enter into contracts to acquire and purchase
equipment, tools, supplies and materials, with payment to be made
over a period not exceeding five years.
§25-7-11. Correctional industries account.
(a) There is hereby created in the State Treasury a special
revenue account designated the Correctional Industries Account.
All funds collected from the sale or disposition of articles and products manufactured or produced by correctional industries in
accordance with this article shall be deposited in this account.
(b) Except as provided in subsection (c) of this section,
funds collected and deposited may be used only to purchase
manufacturing supplies, equipment, machinery and materials used to
carry out the purposes of this article; to pay necessary personnel;
and to defray necessary expenses, including inmate earnings, all of
which are under the direction of the commissioner and subject to
the commissioner's approval.
(c) The Correctional Industries Account may not be maintained
in excess of the amount necessary to efficiently and properly carry
out the purposes of this article. In no event may the Correctional
Industries Account be maintained in excess of $1,500,000. Any
moneys in the account exceeding $1,500,000 shall be transferred to
the State Treasury and credited to the General Revenue Fund of the
state.
§25-7-12. Sale of inmate-made goods on open market prohibited;
penalty; exceptions.
(a) Subject to the provisions of subsections (e) and (f) of
this section and section five of this article, it is unlawful to
sell or offer for sale on the open market any articles or products
manufactured or produced, wholly or in part, by inmates of this state or any other state. This section does not apply to articles
or products manufactured and sold pursuant to sections thirteen,
fourteen, fifteen and sixteen of this article; pursuant to the
requirements of 18 U. S. C. §1761(c), the Prison Industry
Enhancement (PIE) Certification Program; or products made with
waste tires. Any person violating the provisions of this
subsection is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $200 nor more than $5,000 or confined
not less than three months nor more than one year, or both. Each
sale or offer for sale shall constitute a separate offense under
this subsection.
(b) Any use of waste tires shall comply with applicable laws
and with the rules of the Division of Environmental Protection.
(c) Products made by inmates from waste tires and sold on the
open market must be competitively priced with privately produced
goods of the same nature and may not be sold at a loss.
(d) Profits earned from the sale of products made by inmates
from waste tires shall be deposited in the Correctional Industries
Account to reimburse funds expended collecting waste tires and
producing waste tire products, and to cover the reasonable cost of
periodic replacement of outdated, obsolete or inoperable machinery
or equipment used in such collection or production. Any funds remaining shall be divided equally between the Correctional
Industries Account and the Crime Victims Compensation Fund created
by article two-a, chapter fourteen of this code.
(e) Notwithstanding the provisions of subsection (a) of this
section, any article or product manufactured or produced, wholly or
in part, by inmates of West Virginia correctional facilities which
is designed and intended to be used solely by blind and persons
with disabilities, including, but not limited to, braille books and
reading materials, may be sold or distributed on the open market by
the Division of Corrections or other state department or agency.
(f) Notwithstanding the provisions of subsection (a) of this
section, arts and crafts produced by inmates may be sold to the
general public by the Division of Corrections or by such other
state agencies or departments as the commissioner designates. The
arts and crafts may be sold only on consignment so that the inmates
whose arts and crafts products are sold receive payment for the
products. Payments shall be deposited in accounts or funds and
managed as provided in section three-a, article one of this
chapter:
Provided, That when the Division of Corrections or other
agency or department of state government provides materials used in
the production of an arts and crafts product, the fair market value
of such materials may be deducted from the account of the
individual inmate after the sale of the product.
(g) For purposes of this section, "arts and crafts" means
articles produced individually by artistic or craft skill such as
painting, sculpture, pottery, jewelry or similar articles.
§25-7-13. Establishment of programs authorized by the federal
Prison Industry Enhancement (PIE) Certification Program for
employment of inmates by private persons; lease of land and
improvements.
(a) The Commissioner of the Division of Corrections may
establish programs for the employment of inmates by a private
person or entity for the manufacture of articles and products as
part of a program authorized pursuant to 18 U. S. C. §1761(c), the
Prison Industry Enhancement (PIE) Certification Program. In
establishing these programs, the commissioner may enter into
agreements with private persons or entities to construct or lease
facilities at a state adult correctional facility, or at another
agreed location, for manufacturing and processing goods or for any
other business, commercial or agricultural enterprise.
(b) In connection with an agreement made under subsection (a)
of this section, the commissioner may lease land and improvements
on the grounds of a state correctional facility for use by the
private party to the agreement. Any such lease shall be for a term
of not more than twenty years and may contain options for renewal.
§25-7-14. Agreement between commissioner and private person for
manufacturing pursuant to Prison Industry Enhancement (PIE)
Certification Program; wages; inmate participation on
voluntary basis; and workers' compensation.
(a) The Commissioner of the Division of Corrections and a
private person or entity may enter into an agreement to establish
a program for inmates to manufacture articles and products pursuant
to the federal Prison Industry Enhancement (PIE) Certification
Program. The agreement shall include the following:
(1) That a participating inmate be paid at a rate not less
than that paid for similar work in the same locality's private
sector, including applicable wage increases for overtime work;
(2) That an inmate's work or participation in a PIE
certification program shall be only on a voluntary basis and only
after the inmate has been informed of the conditions of
participation;
(3) That, in the discretion of the commissioner or the
commissioner's designee, any inmate may be removed from or refused
participation in the PIE certification program;
(4) That the agreement will not result in the displacement of
civilian workers; and
(5) That the private person or entity shall provide for workers' compensation insurance, or equivalent coverage, to inmates
participating in the PIE certification program.
(b) The provisions of this section shall not apply to
correctional industry service contracts under section four of this
article or to operations authorized in section three of this
article that are restricted from sale in the open market.
(c) A commercial or agricultural enterprise established under
this chapter is a private enterprise subject to federal and state
laws governing the operation of similar enterprises.
(d) The earnings of an inmate participating in a PIE
certification program under this article shall be deposited in the
Inmate Trust Account with the Division of Corrections. The
earnings shall be paid to the inmate after withholding of state,
federal and local taxes, and after other deductions provided for in
this chapter, including expenses for room and board:
Provided,
That the commissioner shall adopt policies and procedures for the
additional deduction from an inmate's earnings of not less than
five percent nor more than twenty percent to be paid into the Crime
Victims Compensation Fund created by article two-a, chapter
fourteen of this code. Total deductions shall not exceed eighty
percent of the inmate's gross earnings. Earnings deposited by the
commissioner, with accrued interest, shall be paid to the inmate no later than at the inmate's discharge or release on parole.
(e) Spousal support or child support shall be deducted from an
inmate's earnings as directed by the inmate or by court order. If
the inmate's dependents are receiving Temporary Assistance for
Needy Families (TANF), the disbursements shall be made to the
Bureau for Child Support Enforcement or any other state's public
assistance agency.
§25-7-15. Establishment of programs authorized by the federal
Prison Industry Enhancement (PIE) Certification Program for
employment of juvenile residents by private persons; lease of
land and improvements.
(a) The Director of the Division of Juvenile Services may
establish programs for the employment of residents by a private
person or entity for the manufacture of articles and products as
part of a program authorized pursuant to 18 U. S. C. §1761(c), the
Prison Industry Enhancement (PIE) Certification Program. In
establishing these programs, the director may enter into agreements
with private persons or entities to construct or lease facilities
at a state juvenile correctional facility, or at another agreed
location, for manufacturing and processing goods or for any other
business, commercial or agricultural enterprise.
(b) In connection with any agreement made under subsection (a) of this section, the director may lease land and improvements on
the grounds of a juvenile correctional facility for use by the
private party to the agreement. Any such lease shall be for a term
of not more than twenty years and may contain options for renewal.
§25-7-16. Agreement between director and private person for
manufacturing pursuant to Prison Industry Enhancement (PIE)
Certification Program; wages; resident participation on
voluntary basis; workers' compensation and unemployment
compensation.
(a) The Director of the Division of Juvenile Services and a
private person or entity may enter into an agreement to establish
a program for residents to manufacture articles and products
pursuant to the federal Prison Industry Enhancement (PIE)
Certification Program. The agreement shall include the following:
(1) That a participating resident be paid at a rate not less
than that paid for similar work in the same locality's private
sector, including applicable wage increases for overtime work;
(2) That a resident's work or participation in a PIE
certification program shall be only on a voluntary basis and only
after the resident has been informed of the conditions of
participation;
(3) That, in the discretion of the director or the director's designee, any resident may be removed from or refused participation
in the PIE certification program;
(4) That the agreement will not result in the displacement of
civilian workers; and
(5) That the private person or entity shall provide for
workers' compensation insurance, or equivalent coverage, to
residents participating in the PIE certification program.
(b) The provisions of this section shall not apply to
correctional industry service contracts provided for in section
four of this article or to operations authorized by section three
of this article that are restricted from sale in the open market.
(c) A commercial or agricultural enterprise established under
this chapter is a private enterprise subject to federal and state
laws governing the operation of similar enterprises.
(d) The earnings of an resident participating in a PIE
certification program under this article shall be deposited in the
Resident Trust Account with the Division of Juvenile Services. The
earnings shall be paid to the resident after withholding of state,
federal and local taxes, and after other deductions provided for in
this chapter. The expenses of room and board, as fixed by the
director and the budget agency for facilities operated by the
director or, if the resident is housed in a facility not operated by the director, the amount paid by the Division of Juvenile
Services to the operator of the facility or other appropriate
authority for room and board, and other incidentals as established
by agreement between the Division of Juvenile Services and the
appropriate authority, shall be deducted:
Provided, That the
director shall adopt policies and procedures for the additional
deduction from a resident's earnings of not less than five percent
nor more than twenty percent to be paid into the Crime Victims
Compensation Fund created by article two-a, chapter fourteen of
this code. Total deductions shall not exceed eighty percent of the
resident's gross earnings. Earnings deposited by the director,
with accrued interest, shall be paid to the resident no later than
at the resident's discharge or release on parole.
(2) When special circumstances warrant, or for just cause, the
director may waive room and board charges by a facility operated by
the Division of Juvenile Services or, if the resident is housed in
a facility not operated by the Division of Juvenile Services,
authorize payment of room and board charges from other available
funds.
(e) Spousal support or child support shall be deducted from a
resident's earnings as directed by the resident or by court order.
If the resident's dependents are receiving Temporary Assistance for
Needy Families (TANF), the disbursements shall be made to the Bureau for Child Support Enforcement or any other state's public
assistance agency.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 280--A Bill to repeal §28-
5B-1, §28-5B-2, §28-5B-3, §28-5B-4, §28-5B-5, §28-5B-6, §28-5B-7,
§28-5B-8, §28-5B-9, §28-5B-10, §28-5B-11, §28-5B-12, §28-5B-13,
§28-5B-14, §28-5B-15, §28-5B-16, §28-5B-17 and §28-5B-18 of the
Code of West Virginia, 1931, as amended; and to amend said code by
adding thereto a new article, designated §25-7-1, §25-7-2, §25-7-3,
§25-7-4, §25-7-5, §25-7-6, §25-7-7, §25-7-8, §25-7-9, §25-7-10,
§25-7-11, §25-7-12, §25-7-13, §25-7-14, §25-7-15, §25-7-16 and §25-
7-17, all relating to enacting the Correctional Industries Act of
2009; authorizing the Commissioner of the Division of Corrections
to enter into correctional industries contracts, develop a
marketing plan, create catalogues and a website and determine
prices; purchasing inmate-made articles and products by state
agencies mandatory; providing exceptions; creating the Correctional
Industries Account; prohibiting sale of inmate-made goods on the
open market; providing penalties; authorizing the establishment of
prison industry enhancement certification programs pursuant to Title 18 U. S. C. §1761(c); providing for agreements between
private entities and the commissioner or the Director of the
Division of Juvenile Services to establish the federal programs;
providing for the contents of the agreements; and updating certain
terms.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 280, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 280) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 280) takes effect July 1, 2009.
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. 293, Creating felony
offense of unauthorized practice of certain health care
professions.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-13. Unauthorized practice of medicine and surgery or
podiatry; criminal penalties; limitations.
(a) A person
shall may not engage in the practice of medicine
and surgery or podiatry, hold himself or herself out as qualified
to practice medicine and surgery or podiatry or use any title, word
or abbreviation to indicate to or induce others to believe that he
or she is licensed to practice medicine and surgery or podiatry in
this state unless he or she is actually licensed under the
provisions of this article. A person engaged in the practice of
telemedicine is considered to be engaged in the practice of
medicine within this state and is subject to the licensure
requirements of this article. As used in this section, the term
"practice of telemedicine" means the use of electronic information
and communication technologies to provide health care when distance
separates participants and includes one or both of the following:
(1) The diagnosis of a patient within this state by a physician
located outside this state as a result of the transmission of individual patient data, specimens or other material by electronic
or other means from within this state to the physician or his or
her agent; or (2) the rendering of treatment to a patient within
this state by a physician located outside this state as a result of
transmission of individual patient data, specimens or other
material by electronic or other means from within this state to the
physician or his or her agent. No person may practice as a
physician assistant, hold himself or herself out as qualified to
practice as a
physician's physician assistant or use any title,
word or abbreviation to indicate to or induce others to believe
that he or she is licensed to practice as a
physician's physician
assistant in this state unless he or she is actually licensed under
the provisions of this article.
Any person who violates the
provisions of this subsection is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than ten thousand
dollars, or imprisoned in the county jail not more than twelve
months, or both fined and imprisoned.
(b) Any person who intentionally practices, or holds himself
or herself out as qualified to practice or uses any title, word or
abbreviation to indicate to or induce others to believe he or she
is licensed to practice a health care profession licensed under
this article with a license classified by the board as expired,
lapsed or terminated, for any period of time up to ninety days, is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $5,000 or confined in jail not more than twelve
months, or both fined and confined.
_____(c) Any person who intentionally practices, or holds himself
or herself out as qualified to practice or uses any title, word or
abbreviation to indicate to or induce others to believe he or she
is licensed to practice as a physician, podiatrist or physician
assistant without obtaining an active, valid West Virginia license
to practice that profession or with a license that is: (1) Expired,
terminated or lapsed, for over ninety days; or (2) inactive,
revoked, suspended or surrendered, is guilty of a felony and, upon
conviction thereof, shall be fined not more than $10,000 or
imprisoned in a state correctional facility for not less than one
year nor more than five years, or both fined and imprisoned.
_____(b) (d) The provisions of this section do not apply to:
(1) Persons who are duly licensed health care providers under
other pertinent provisions of this code and are acting within the
scope of their license;
(2) Physicians or podiatrists licensed in other states or
foreign countries who are acting in a consulting capacity with
physicians or podiatrists duly licensed in this state for a period
of not more than three months:
Provided, That this exemption is applicable on a one-time only basis;
(3) An individual physician or podiatrist,
or physician or
podiatrist, or physician or podiatrist groups, or physicians or
podiatrists at a tertiary care or university hospital outside this
state and engaged in the practice of telemedicine who consult or
render second opinions concerning diagnosis or treatment of
patients within this state: (i) In an emergency or without
compensation or expectation of compensation; or (ii) on an
irregular or infrequent basis which occurs less than once a month
or less than twelve times in a calendar year;
(4) Persons holding licenses granted by another state or
foreign country who are commissioned medical officers of, a member
of or employed by the armed forces of the United States, the United
States Public Health Service, the Veterans' Administration of the
United States, any federal institution or any other federal agency
while engaged in the performance of their official duties;
(5) Any person providing first-aid care in emergency
situations;
(6) The practice of the religious tenets of any recognized
church in the administration of assistance to the sick or suffering
by mental or spiritual means;
(7) Visiting medical faculty engaged in teaching or research duties at a medical school or institution recognized by the board
and who are in this state for periods of not more than six months:
Provided, That the individuals do not otherwise engage in the
practice of medicine or podiatry outside of the auspices of their
sponsoring institutions;
(8) Persons enrolled in a school of medicine approved by the
liaison committee on medical education or by the board, or persons
enrolled in a school of podiatric medicine approved by the council
of podiatry education or by the board, or persons enrolled in an
undergraduate or graduate physician assistant program approved by
the committee on allied health education and accreditation or its
successor on behalf of the American Medical Association or by the
board, or persons engaged in graduate medical training in a program
approved by the liaison committee on graduate medical education or
the board, or engaged in graduate podiatric training in a program
approved by the council on podiatric medical education or by the
board, who are performing functions in the course of training
including with respect to functions performed by medical residents
or medical students under the supervision of a licensed physician,
ordering and obtaining laboratory tests, medications and other
patient orders by computer or other electronic means and no other
provision of this code to the contrary may be construed to prohibit
or limit medical residents' or medical students' use of computers or other electronic devices in this manner;
(9) The fitting, recommending or sale of corrective shoes,
arch supports or similar mechanical appliances in commercial
establishments; and
(10) The fitting or sale of a prosthetic or orthotic device
not involving any surgical procedure, in accord with a prescription
of a physician, osteopathic physician or where chiropractors or
podiatrists are authorized by law to prescribe such a prosthetic or
orthotic device, in accord with a prescription of a chiropractor or
podiatrist, by a practitioner certified in the provision of custom
orthotic and prosthetic devices, respectively, by a nationally
recognized credentialing body for orthotics and prosthetics that is
accredited by the National Commission for Certifying Agencies
(NCCA):
Provided, That the sale of any prosthetic or orthotic
device by a partnership, proprietorship or corporation which
employs such a practitioner or registered technician who fitted the
prosthetic or orthotic device shall not constitute the unauthorized
practice of medicine:
Provided, however, That the practitioner or
registered technician may, without a prescription, make
recommendation solely to a physician or osteopathic physician or to
a chiropractor or podiatrist otherwise authorized by law to
prescribe a particular prosthetic or orthotic device regarding any
prosthetic or orthotic device to be used for a patient upon a request for such recommendation.
(c) (e) This section
shall may not be construed as being in
any way a limitation upon the services of a
physician's physician
assistant performed in accordance with the provisions of this
article.
(d) (f) Persons covered under this article may be permitted to
utilize electronic signature or unique electronic identification to
effectively sign materials, transmitted by computer or other
electronic means, upon which signature is required for the purpose
of authorized medical practice. Such signatures are deemed legal
and valid for purposes related to the provision of medical
services. This subsection does not confer any new practice
privilege or right on any persons covered under this article.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 293--A Bill to amend and
reenact §30-3-13 of the Code of West Virginia, 1931, as amended,
relating to unauthorized practice of medicine and surgery or
podiatry or as a physician assistant; criminal penalties; reducing
the amount of fine for a person practicing on an expired, lapsed or
terminated license for less than ninety days; and specifying as a felony the intentional unauthorized practice of medicine and
surgery or podiatry or as a physician assistant in all other
instances.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 293, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 293) 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. 306, Increasing pipeline companies'
special license fees to Public Service Commission.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, section three, line eleven, by striking out
"$400,000" and inserting in lieu thereof "$315,000";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 306--A Bill to amend and reenact §24B-5-3
of the Code of West Virginia, 1931, as amended, relating to
pipeline companies paying a special license fee to the Public
Service Commission; and increasing the maximum amount of revenue
from $300,000 per annum to $315,000 per annum.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 306, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: Barnes--1.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 306) 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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 344, Authorizing mental hygiene
commissioners sign readmission orders.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, section four, line seventeen, after the word
"found" by inserting the words "and to the patient at the location
where the patient may be found".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 344, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 344) passed with its 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, 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. 418, Relating to
municipalities' fee requirements.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 13. TAXATION AND FINANCE.
§8-13-13a. Municipal fee requirements.
(a) Without limiting the plenary power and authority of
section thirteen of this article, a municipality shall in the
ordinance providing for special charges for municipal services
pursuant to said section:
(1) Set forth the specific purpose or purposes for which the
rate, fee or charge is imposed or increased; and
(2) Require that all collections of the rate, fee or charge
may be expended only for the specific purpose or purposes for which
the rate, fee or charge is imposed or increased.
(b) The municipality shall provide a system of budgeting,
accounting and recordkeeping, and for conduct of the transactions
of the municipality respecting the rate, fee, or charge collected
pursuant to section thirteen of this article, but any such
provisions shall not conflict with article nine, chapter six of
this code.
(c) It shall be the duty of the treasurer of the municipality,
or other individual designated, to collect and account for any of
the collections and that the moneys collected pursuant to section
thirteen of this article are expended for only the purpose or
purposes authorized by ordinance for which the rate, fee or charge
is imposed or increased.
(d) No provision of this section applies to any ordinance in
effect on the effective date of the enactment of this section,
except that this section shall apply to an ordinance in effect on
the effective date of the enactment of this section if it is
subsequently amended to increase the rate, fee or charge imposed by the ordinance.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 418--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §8-13-13a, relating to additional provisions
required to be included in the ordinance enacted by a municipality
to impose or increase any rate, fee or charge for the installation,
continuance, maintenance or improvement of any essential or special
municipal service.
Senator Chafin then moved that the Senate concur in the House
of Delegates amendments to the bill.
The question being on the adoption of Senator Chafin's
aforestated motion, 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 ten "yeas" and twenty-
three "nays".
Whereupon, the President declared Senator Chafin's motion that
the Senate concur in the House of Delegates amendments to the bill
had not prevailed.
In accordance with the rejection of the foregoing motion, the
President then declared the Senate had refused to concur in the
House amendments to the bill (Eng. Com. Sub. for S. B. No. 418) 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.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2695, Providing criminal
penalties for a hunter who fails to render aid to a person the
hunter shoots while hunting.
Having been received as a message from the House of Delegates
in earlier proceedings today,
The bill now being in the possession of the Senate,
On motion of Senator Chafin, the Senate reconsidered the vote
by which in earlier proceedings today it 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.
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Chafin's
motion that the Senate refuse to recede from its amendments to the
bill and request the appointment of a committee of conference of
three from each house on the disagreeing votes of the two houses.
At the request of Senator Chafin, and by unanimous consent,
his foregoing motion was withdrawn.
Thereafter, on motion of Senator Chafin, the Senate acceded to
the request of the House of Delegates and receded from its
amendments to the bill.
Engrossed Committee Substitute for House Bill No. 2695, as
amended by deletion, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2695) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
On motion of Senator Chafin, the Senate recessed for fifteen
minutes.
Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order, which agenda includes the
making of main motions.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2723, Authorizing liens by
municipalities and requiring administrative procedures for the
assessment and collection of delinquent municipal fees.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Chafin, the Senate reconsidered its
action by which in prior proceedings today it adopted the amendment
offered by Senator Jenkins to the title of bill (
shown in the
Senate Journal of this day, page 183).
The vote thereon having been reconsidered,
The question again being on the adoption of the amendment
offered by Senator Jenkins to the title of the bill.
Thereafter, at the request of Senator Jenkins, unanimous
consent being granted, the amendment offered by Senator Jenkins to
the title of the bill was withdrawn.
On motion of Senator Chafin, the Senate reconsidered the vote
at to the passage of the bill,
The vote thereon having been reconsidered,
On motion of Senator Jenkins, the Senate reconsidered the vote
by which in earlier proceedings today it adopted the amendments
offered by Senator Jenkins to the bill (
shown in the Senate Journal
of this day, pages 180 to 182).
The vote thereon having been reconsidered,
The question again being on the adoption of the amendments
offered by Senator Jenkins to the bill.
Thereafter, at the request of Senator Jenkins, unanimous
consent being granted, the amendments offered by Senator Jenkins to
the bill were withdrawn.
The bill, as amended by the Committee on Government
Organization, was again ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2723) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2723) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The time permitted under Joint Rule No. 3 within which
conferees must report having expired, as to
Eng. House Bill No. 2801, Updating language and making
technical changes and clarifications of the West Virginia Board of
Medicine.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. House Bill No. 2801, Updating language and making
technical changes and clarifications of the West Virginia Board of
Medicine.
Passed by the Senate on yesterday, Friday, April 10, 2009,
The bill now being in the possession of the Senate,
On motion of Senator Chafin, the Senate reconsidered the vote
by which it adopted Senator Chafin's motion that Engrossed House
Bill No. 2801 take effect July 1, 2009.
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Chafin's
motion that the bill take effect July 1, 2009.
Thereafter, at the request of Senator Chafin, and by unanimous
consent, his foregoing motion was withdrawn.
On motion of Senator Chafin, the Senate reconsidered its
action by which on yesterday, Friday, April 10, 2009, it adopted
the amendment offered by Senator Stollings to the title of bill
(
shown in the Senate Journal of yesterday, Friday, April 10, 2009,
pages 292 and 293).
The question again being on the adoption of the amendment
offered by Senator Stollings to the title of the bill.
Thereafter, at the request of Senator Stollings, unanimous
consent being granted, the amendment offered by Senator Stollings
to the title of the bill was withdrawn.
On motion of Senator Chafin, the Senate reconsidered the vote as to the passage of the bill.
The vote thereon having been reconsidered,
On motion of Senator Chafin, the Senate reconsidered its
action by which on yesterday, Friday, April 10, 2009, it adopted
the amendment offered by Senator Stollings to the bill (
shown in
the Senate Journal of that day, pages 289 through 292).
The vote thereon having been reconsidered,
The question again being on the adoption of the amendment
offered by Senator Stollings to the bill.
Thereafter, at the request of Senator Stollings, and by
unanimous consent, the amendment offered by Senator Stollings to
the bill was withdrawn.
The bill was again ordered to third reading.
Having been engrossed (Eng. H. B. No 2801) was then read a
third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2801) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2801) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
On motion of Senator Helmick, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2535, Creating a tax credit
for certain solar energy systems.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Helmick, the Senate reconsidered the vote
as to the effective date and passage.
The vote thereon having been reconsidered,
At the request of Senator Helmick, unanimous consent was
granted to offer amendments to the bill on third reading.
Thereupon, on motion of Senator Helmick, the following
amendments to the bill were reported by the Clerk, considered
simultaneously, and adopted:
On pages four through six, by striking out all of sections one
and two;
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 §11-132-1, §11-132-2
and §11-132-3, all to read as follows:.
The bill, as just amended, was again ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2535)
was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2535) passed.
On motion of Senator Helmick, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2535--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §11-132-1, §11-132-2 and §11-132-3, all
relating to providing for a tax credit for solar energy systems;
and requiring the Tax Commissioner to promulgate rules for claiming
and applying the tax credit.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2535) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the 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. 339, Exempting certain
licensed medical professionals from county hiring prohibition.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page seven, section fifteen, after line one hundred eight,
by adding a new subsection, designated subsection (l), to read as
follows:
(l) The provisions of subsection (a) of this section do not
make unlawful the employment of a spouse of any elected county
official by that county official: Provided, That the elected
county official may not:
(1) Directly supervise the spouse employee; or
(2) Set the salary of the spouse employee: Provided, That the
provisions of this subsection shall only apply to spouse employees
who were neither married to nor engaged to the elected county
official at the time of their initial hiring.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 339--
A Bill to amend and
reenact §61-10-15 of the Code of West Virginia, 1931, as amended,
relating to exemptions for certain spousal relationships from
county hiring and employment prohibition under limited circumstances; creating an exemption for certain spouses who were
employed by the county prior to their engagement or marriage to a
county official to county hiring prohibition; creating an exemption
for certain licensed professional medical personnel to county
hiring prohibition; limitations; and removing antiquated language
.
Under rule number forty-three of the Rules of the Senate,
Senator Kessler was excused from voting on any matter pertaining to
the bill.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 339, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: None.
Excused from voting: Kessler--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 339) 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. 484, Relating to ad valorem
property taxes.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page twenty, section fifteen-a, line seven, by striking out
the word "fourteen" and inserting in lieu thereof the word
"fifteen";
On page twenty-one, section fifteen-a, line twelve, by
striking out the word "fourteen" and inserting in lieu thereof the
word "fifteen";
On page forty-five, section twenty-five-a, line twenty-three, after the word "at" by inserting the word "the";
On page fifty, section three, line twenty-eight, by striking
out "$1,000" and inserting in lieu thereof "$100";
On page fifty, section three, line twenty-nine, after the word
"provided" by inserting the word "for";
On page fifty-five, section six, line nineteen, after the word
"chapter" by changing the period to a colon and adding the
following: Provided, That if the assessment exceeds sixty percent
of the final appraisal by the Tax Commissioner, the taxpayer may
notify the Tax Commissioner in writing of this error, whereupon the
Tax Commissioner shall, if such error is confirmed by the Tax
Commissioner, instruct the assessor in writing to lower the
assessment to sixty percent of the final appraisal. The assessor
shall, upon receipt of such instruction from the Tax Commissioner,
lower the assessment as required.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 484--A Bill to
amend and
reenact §11-3-1, §11-3-2a, §11-3-10, §11-3-12, §11-3-15, §11-3-19,
§11-3-24, §11-3-24a and §11-3-25 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto eleven new sections, designated §11-3-15a, §11-3-15b, §11-3-15c, §11-3-15d,
§11-3-15e, §11-3-15f, §11-3-15g, §11-3-15h, §11-3-15i, §11-3-25a
and §11-3-32; and to amend said code by adding thereto a new
article, designated §11-6J-1, §11-6J-2, §11-6J-3, §11-6J-4,
§11-6J-5, §11-6J-6 and §11-6J-7, all relating to taxation of real
and personal property for ad valorem property tax purposes; making
technical corrections in certain code sections; accelerating date
for issuance of notices of increase in assessed value of real
property; updating forfeiture penalties for failure to file
required property tax reports and returns; clarifying report and
return filing requirements; accelerating due dates for filing
reports and returns; requiring assessors to notify owners of
commercial business personal property of increases in assessed
values for current assessment year by an established deadline;
providing procedures for property owners to protest notices of
assessed valuation; providing procedures for obtaining appropriate
adjustments from county assessors; providing for appeal of
protested assessments to county board of equalization and review
and circuit court; providing for protest of classification or
taxability to Tax Commissioner; providing methods for assessment of
industrial property and natural resources property; establishing
time and basis for assessments; providing for pertinent
definitions; specifying form and manner of making returns; establishing criminal penalties for failure to file; providing for
tentative appraisals by Tax Commissioner and notification to
taxpayers; providing procedures for informal review of tentative
appraisals; making of final appraisals; transmitting final
appraisals to assessors; providing for appeals; authorizing
reductions of assessments upon instruction of Tax Commissioner in
certain circumstances; and specifying effective dates.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 484, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: Hall--1.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 484) 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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 515, Creating Uniform Adult Guardianship
and Protective Proceedings Jurisdiction Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
CHAPTER 44C.
UNIFORM ADULT GUARDIANSHIP AND
PROTECTIVE PROCEEDINGS JURISDICTION ACT.
ARTICLE 1. GENERAL PROVISIONS.
§44C-1-1. Short title.
This chapter may be cited as the Uniform Adult Guardianship
and Protective Proceedings Jurisdiction Act and is cited in this chapter as "this act".
§44C-1-2
. Definitions.
For purposes of this chapter:
(1) "Adult" means an individual who has attained eighteen
years of age.
(2) "Conservator" means a person appointed by the court to
administer the property of an adult, including a person appointed
under section one, article one, chapter forty-four-a of this code.
(3) "Emergency" means a circumstance that likely will result
in substantial harm to a respondent's health, safety or welfare and
for which the appointment of a guardian is necessary because no
other person has authority and is willing to act on the
respondent's behalf.
(4) "Guardian" means a person appointed by the court to make
decisions regarding the person of an adult, including a person
appointed under article two, chapter forty-four-a of this code.
(5) "Guardianship order" means an order appointing a guardian.
(6) "Guardianship proceeding" means a judicial proceeding in
which an order for the appointment of a guardian is sought or has
been issued.
(7) "Home state" means the state in which the respondent was physically present, including any period of temporary absence, for
at least six consecutive months immediately before the filing of a
petition for a protective order or the appointment of a guardian;
or if none, the state in which the respondent was physically
present, including any period of temporary absence, for at least
six consecutive months ending within the six months prior to the
filing of the petition.
(8) "Incapacitated person" means an adult for whom a guardian
has been appointed.
(9) "Party" means the respondent, petitioner, guardian,
conservator, or any other person allowed by the court to
participate in a guardianship or protective proceeding.
(10) "Person", except in the term "incapacitated person or
protected person", means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or any other
legal or commercial entity.
(11) "Protected person", for purposes of this chapter only,
means an adult for whom a protective order, as defined in this
section, has been issued. "Protected person", as used in this
chapter, has the meaning ascribed to it in subsection thirteen-b, section four, article one, chapter forty-four-a of this code.
(12) "Protective order", for purposes of this chapter only and
notwithstanding the meaning which the term may have outside of this
chapter, means an order appointing a conservator or other order
related to management of an adult's property.
(13) "Protective proceeding" means a judicial proceeding in
which a protective order, as defined in this section, is sought or
has been issued.
(14) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
(15) "Respondent" means an adult for whom a protective order
or the appointment of a guardian is sought.
(16) "Significant-connection state" means a state, other than
the home state, with which a respondent has a significant
connection other than mere physical presence and in which
substantial evidence concerning the respondent is available. In
determining whether a respondent has a significant connection with
a particular state, the court shall consider:
(A) The location of the respondent's family and other persons
required to be notified of the guardianship or protective
proceeding;
(B) The length of time the respondent at any time was
physically present in the state and the duration of any absence;
(C) The location of the respondent's property; and
(D) The extent to which the respondent has ties to the state
such as voting registration, state or local tax return filing,
vehicle registration, driver's license, social relationship and
receipt of services.
(17) "State" means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands, a
federally recognized Indian tribe or any territory or insular
possession subject to the jurisdiction of the United States.
§44C-1-3. International application.
A court of this state may treat a foreign country as if it
were a state for the purpose of applying this act.
§44C-1-4. Communication between courts.
(a) A court of this state may communicate with a court in
another state concerning a proceeding arising under this act. The
court may allow the parties to participate in the communication.
Except as otherwise provided in subsection (b) of this section, the
court shall make a record of the communication. The record may be
limited to the fact that the communication occurred.
(b) Courts may communicate concerning schedules, calendars, court records and other administrative matters without making a
record.
§44C-1-5. Cooperation between courts.
(a) In a guardianship or protective proceeding in this state,
a court of this state may request the appropriate court of another
state to do any of the following:
(1) Hold an evidentiary hearing;
(2) Order a person in that state to produce evidence or give
testimony pursuant to procedures of that state;
(3) Order that an evaluation or assessment be made of the
respondent;
(4) Order any appropriate investigation of a person involved
in a proceeding;
(5) Forward to the court of this state a certified copy of the
transcript or other record of a hearing under subdivision (1) of
this subsection or any other proceeding, any evidence otherwise
produced under subdivision (2) of this subsection and any
evaluation or assessment prepared in compliance with an order under
subdivision (3) or (4) of this subsection;
(6) Issue any order necessary to assure the appearance in the
proceeding of a person whose presence is necessary for the court to
make a determination, including the respondent or the incapacitated or protected person;
(7) Issue an order authorizing the release of medical,
financial, criminal or other relevant information in that state,
including protected health information as defined in 45 C. F. R.
Section 164.504, as amended.
(b) If a court of another state in which a guardianship or
protective proceeding is pending requests assistance of the kind
provided in subsection (a) of this section, a court of this state
has jurisdiction for the limited purpose of granting the request or
making reasonable efforts to comply with the request.
§44C-1-6. Taking testimony in another state.
(a) In a guardianship or protective proceeding, in addition to
other procedures that may be available, testimony of a witness who
is located in another state may be offered by deposition or other
means allowable in this state for testimony taken in another state.
The court on its own motion may order that the testimony of a
witness be taken in another state and may prescribe the manner in
which and the terms upon which the testimony is to be taken.
(b) In a guardianship or protective proceeding, a court in
this state may permit a witness located in another state to be
deposed or to testify by telephone or audiovisual or other
electronic means. A court of this state shall cooperate with the court of the other state in designating an appropriate location for
the deposition or testimony.
(c) Documentary evidence transmitted from another state to a
court of this state by technological means that do not produce an
original writing may not be excluded from evidence on an objection
based on the best evidence rule.
ARTICLE 2. JURISDICTION.
§44C-2-1. Exclusive basis.
Other provisions of this code notwithstanding, this article
provides the exclusive jurisdictional basis for a court of this
state to appoint a guardian or issue a protective order for an
adult.
§44C-2-2. Determination of jurisdiction.
A court of this state has jurisdiction to appoint a guardian
or issue a protective order for a respondent if:
(1) This state is the respondent's home state;
(2) On the date the petition is filed, this state is a
significant-connection state and:
(A) The respondent does not have a home state or a court of
the respondent's home state has declined to exercise jurisdiction
because this state is a more appropriate forum; or
(B) The respondent has a home state, a petition for an
appointment or order is not pending in a court of that state or
another significant-connection state and, before the court makes
the appointment or issues the order:
(i) A petition for an appointment or order is not filed in the
respondent's home state;
(ii) An objection to the court's jurisdiction is not filed by
a person required to be notified of the proceeding; and
(iii) The court in this state concludes that it is an
appropriate forum under the factors set forth in section five of
this article;
(3) This state does not have jurisdiction under either
subdivision (1) or (2) of this section, the respondent's home state
and all significant-connection states have declined to exercise
jurisdiction because this state is the more appropriate forum and
jurisdiction in this state is consistent with the constitutions of
this state and the United States; or
(4) The requirements for special jurisdiction under section
three of this article are met.
§44C-2-3. Special jurisdiction.
(a) A court of this state lacking jurisdiction under section
two, article two of this chapter has special jurisdiction to do any of the following:
(1) Appoint a guardian in an emergency for a term not
exceeding ninety days for a respondent who is physically present in
this state;
(2) Issue a protective order with respect to real or tangible
personal property located in this state;
(3) Appoint a guardian or conservator for an incapacitated or
protected person for whom a provisional order to transfer the
proceeding from another state has been issued under procedures
similar to those provided in section one, article three of this
chapter.
(b) If a petition for the appointment of a guardian in an
emergency is brought in this state and this state was not the
respondent's home state on the date the petition was filed, the
court shall dismiss the proceeding at the request of the court of
the home state, if any, whether dismissal is requested before or
after the emergency appointment.
§44C-2-4. Exclusive and continuing jurisdiction.
Except as otherwise provided in section three of this article,
a court that has appointed a guardian or issued a protective order
consistent with this act has exclusive and continuing jurisdiction
over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.
§44C-2-5. Appropriate forum.
(a) A court of this state having jurisdiction under section
one, article one, chapter forty-four-a of this code or section two
of this article to appoint a guardian or issue a protective order
may decline to exercise its jurisdiction if it determines at any
time that a court of another state is a more appropriate forum.
(b) If a court of this state declines to exercise its
jurisdiction under subsection (a) of this section, it shall either
dismiss or stay the proceeding. The court may impose any condition
the court considers just and proper, including the condition that
a petition for the appointment of a guardian or issuance of a
protective order be filed promptly in another state.
(c) In determining whether it is an appropriate forum, the
court shall consider all relevant factors, including:
(1) Any expressed preference of the respondent;
(2) Whether abuse, neglect or exploitation of the respondent
has occurred or is likely to occur and which state could best
protect the respondent from the abuse, neglect or exploitation;
(3) The length of time the respondent was physically present
in or was a legal resident of this or another state;
(4) The distance of the respondent from the court in each state;
(5) The financial circumstances of the respondent's estate;
(6) The nature and location of the evidence;
(7) The ability of the court in each state to decide the issue
expeditiously and the procedures necessary to present evidence;
(8) The familiarity of the court of each state with the facts
and issues in the proceeding; and
(9) If an appointment were made, the court's ability to
monitor the conduct of the guardian or conservator.
§44C-2-6. Jurisdiction declined by reason of conduct.
(a) If at any time a court of this state determines that it
acquired jurisdiction to appoint a guardian or issue a protective
order because of unjustifiable conduct, the court may:
(1) Decline to exercise jurisdiction;
(2) Exercise jurisdiction for the limited purpose of
fashioning an appropriate remedy to ensure the health, safety and
welfare of the respondent or the protection of the respondent's
property or prevent a repetition of the unjustifiable conduct,
including staying the proceeding until a petition for the
appointment of a guardian or issuance of a protective order is
filed in a court of another state having jurisdiction; or
(3) Continue to exercise jurisdiction after considering:
(A) The extent to which the respondent and all persons
required to be notified of the proceedings have acquiesced in the
exercise of the court's jurisdiction;
(B) Whether it is a more appropriate forum than the court of
any other state under the factors set forth in subsection (c),
section five of this article; and
(C) Whether the court of any other state would have
jurisdiction under factual circumstances in substantial conformity
with the jurisdictional standards of section two of this article.
(b) If a court of this state determines that it acquired
jurisdiction to appoint a guardian or issue a protective order
because a party seeking to invoke its jurisdiction engaged in
unjustifiable conduct, it may assess against that party necessary
and reasonable expenses, including attorney's fees, investigative
fees, court costs, communication expenses, witness fees and
expenses, and travel expenses. The court may not assess fees,
costs or expenses of any kind against this state or a governmental
subdivision, agency or instrumentality of this state unless
authorized by law other than this act.
§44C-2-7. Notice of proceeding.
If a petition for the appointment of a guardian or issuance of a protective order is brought in this state and this state was not
the respondent's home state on the date the petition was filed, in
addition to complying with the notice requirements of this state,
notice of the petition must be given to those persons who would be
entitled to notice of the petition if a proceeding were brought in
the respondent's home state. The notice must be given in the same
manner as notice is required to be given in this state.
§44C-2-8. Proceedings in more than one state.
Except for a petition for the appointment of a guardian in an
emergency or issuance of a protective order limited to property
located in this state under section three of this article, if a
petition for the appointment of a guardian or issuance of a
protective order is filed in this state and in another state and
neither petition has been dismissed or withdrawn, the following
rules apply:
(1) If the court in this state has jurisdiction under section
two of this article, it may proceed with the case unless a court in
another state acquires jurisdiction under provisions similar to
said section before the appointment or issuance of the order.
(2) If the court in this state does not have jurisdiction
under section two, article two of this article, whether at the time
the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and
communicate with the court in the other state. If the court in the
other state has jurisdiction, the court in this state shall dismiss
the petition unless the court in the other state determines that
the court in this state is a more appropriate forum.
ARTICLE 3. TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP.
§44C-3-1. Transfer to another state.
(a) A guardian or conservator appointed in this state may
petition the court to transfer the guardianship or conservatorship
to another state.
(b) Notice of a petition under subsection (a) of this section
must be given to the persons who would be entitled to notice of a
petition in this state for the appointment of a guardian or
conservator.
(c) On the court's own motion or on request of the guardian or
conservator, the incapacitated or protected person, or other person
required to be notified of the petition, the court shall hold a
hearing on a petition filed pursuant to subsection (a) of this
section.
(d) The court shall issue an order provisionally granting a
petition to transfer a guardianship and shall direct the guardian
to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court in
the other state and the court finds that:
(1) The incapacitated person is physically present in or is
reasonably expected to move permanently to the other state;
(2) An objection to the transfer has not been made or, if an
objection has been made, the objector has not established that the
transfer would be contrary to the interests of the incapacitated
person; and
(3) Plans for care and services for the incapacitated person
in the other state are reasonable and sufficient.
(e) The court shall issue a provisional order granting a
petition to transfer a conservatorship and shall direct the
conservator to petition for conservatorship or a protective order
in the other state if the court is satisfied that the
conservatorship will be accepted by the court of the other state
and the court finds that:
(1) The protected person is physically present in or is
reasonably expected to move permanently to the other state or the
protected person has a significant connection to the other state;
(2) An objection to the transfer has not been made or, if an
objection has been made, the objector has not established that the
transfer would be contrary to the interests of the protected person; and
(3) Adequate arrangements will be made for management of the
protected person's property.
(f) The court shall issue a final order confirming the
transfer and terminating the guardianship or conservatorship upon
its receipt of:
(1) A provisional order accepting the proceeding from the
court to which the proceeding is to be transferred which is issued
under provisions similar to section two of this article; and
(2) The documents required to terminate a guardianship or
conservatorship in this state.
§44C-3-2. Accepting guardianship or conservatorship transferred
from another state.
(a) To confirm transfer of a guardianship or conservatorship
transferred to this state under provisions similar to section one
of this article, the guardian or conservator must petition the
court in this state to accept the guardianship or conservatorship.
The petition must include a certified copy of the other state's
provisional order of transfer.
(b) Notice of a petition under subsection (a) of this section
must be given to those persons that would be entitled to notice if
the petition were a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and
this state. The notice must be given in the same manner as notice
is required to be given in this state.
(c) On the court's own motion or on request of the guardian or
conservator, the incapacitated or protected person, or other person
required to be notified of the proceeding, the court shall hold a
hearing on a petition filed pursuant to subsection (a) of this
section.
(d) The court shall issue an order provisionally granting a
petition filed under subsection (a) of this section unless:
(1) An objection is made and the objector establishes that
transfer of the proceeding would be contrary to the interests of
the incapacitated or protected person; or
(2) The guardian or conservator is ineligible for appointment
in this state.
(e) The court shall issue a final order accepting the
proceeding and appointing the guardian or conservator as guardian
or conservator in this state upon its receipt from the court from
which the proceeding is being transferred of a final order issued
under provisions similar to section one of this article
transferring the proceeding to this state.
(f) Not later than ninety days after issuance of a final order accepting transfer of a guardianship or conservatorship, the court
shall determine whether the guardianship or conservatorship needs
to be modified to conform to the law of this state.
(g) In granting a petition under this section, the court shall
recognize a guardianship or conservatorship or protective order
from the other state, including the determination of the
incapacitated or protected person's incapacity and the appointment
of the guardian or conservator.
(h) The denial by a court of this state of a petition to
accept a guardianship or conservatorship transferred from another
state does not affect the ability of the guardian or conservator to
seek appointment as guardian or conservator in this state under
article two, chapter forty-four-a of this code if the court has
jurisdiction to make an appointment other than by reason of the
provisional order of transfer.
ARTICLE 4. REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER
STATES.
§44C-4-1. Registration of guardianship orders.
If a guardian has been appointed in another state and a
petition for the appointment of a guardian is not pending in this
state, the guardian appointed in the other state, after giving
notice to the appointing court of an intent to register, may register the guardianship order in this state by filing as a
foreign judgment in a court, in any appropriate county of this
state, certified copies of the order and letters of office.
§44C-4-2. Registration of protective orders.
If a conservator has been appointed in another state and a
petition for a protective order is not pending in this state, the
conservator appointed in the other state, after giving notice to
the appointing court of an intent to register, may register the
protective order in this state by filing as a foreign judgment in
a court of this state, in any county in which property belonging to
the protected person is located, certified copies of the order and
letters of office and of any bond.
§44C-4-3. Effect of registration.
(a) Upon registration of a guardianship or protective order
from another state, the guardian or conservator may exercise in
this state all powers authorized in the order of appointment except
as prohibited under the laws of this state, including maintaining
actions and proceedings in this state and, if the guardian or
conservator is not a resident of this state, subject to any
conditions imposed upon nonresident parties.
(b) A court of this state may grant any relief available under
this act and other law of this state to enforce a registered order.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§44C-5-1. Uniformity of application and construction.
In applying and construing this uniform act, consideration
must be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.
§44C-5-2. Relation to electronic signatures in Global and National
Commerce Act.
This act modifies, limits and supersedes the federal
Electronic Signatures in Global and National Commerce Act, 15 U. S.
C. Section 7001, et seq., but does not modify, limit or supersede
Section 101(c) of said act, 15 U. S. C. Section 7001(c), or
authorize electronic delivery of any of the notices described in
Section 103(b) of said act, 15 U. S. C. Section 7003(b).
§44C-5-3. Transitional provision.
(a) This act applies to guardianship and protective
proceedings begun on or after the effective date of this chapter as
enacted by the seventy-ninth Legislature of West Virginia in 2009.
(b) Articles one, three and four and sections five hundred one
and five hundred two of this article apply to proceedings begun
before the effective date, regardless of whether a guardianship or
protective order has been issued.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 515, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 515) passed with its 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, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 398, Imposing
certain restrictions on graduated driver's licenses.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.
§17B-2-3a. Graduated driver's license.
(a) Any person under the age of eighteen may not operate a
motor vehicle unless he or she has obtained a graduated driver's
license in accordance with the three-level graduated driver's
license system described in the following provisions.
(b) Any person under the age of twenty-one, regardless of
class or level of licensure, who operates a motor vehicle with any
measurable alcohol in his or her system is subject to the
provisions of section two, article five, chapter seventeen-c of
this code and section two, article five-a of said chapter. Any
person under the age of eighteen, regardless of class or licensure
level, is subject to the mandatory school attendance and
satisfactory academic progress provisions of section eleven,
article eight, chapter eighteen of this code.
(c) Level one instruction permit. -- An applicant who is fifteen years or older meeting all other requirements prescribed in
this code may be issued a level one instruction permit.
(1) Eligibility. -- The division shall not issue a level one
instruction permit unless the applicant:
(A) Presents a completed application, as prescribed by the
provisions of section six of this article, and which is accompanied
by a writing, duly acknowledged, consenting to the issuance of the
graduated driver's license and executed by a parent or guardian
entitled to custody of the applicant;
(B) Presents a certified copy of a birth certificate issued by
a state or other governmental entity responsible for vital records
unexpired, or a valid passport issued by the United States
government evidencing that the applicant meets the minimum age
requirement and is of verifiable identity;
(C) Passes the vision and written knowledge examination and
completes the driving under the influence awareness program, as
prescribed in section seven of this article;
(D) Presents a driver's eligibility certificate or otherwise
shows compliance with the provisions of section eleven, article
eight, chapter eighteen of this code; and
(E) Pays a fee of $5, which shall permit the applicant two
attempts at the written knowledge test.
(2) Terms and conditions of instruction permit. -- A level one
instruction permit issued under the provisions of this section is
valid until thirty days after the date the applicant attains the
age of eighteen and is not renewable. However, any permit holder
who allows his or her permit to expire prior to successfully
passing the road skills portion of the driver examination, and who
has not committed any offense which requires the suspension,
revocation or cancellation of the instruction permit, may reapply
for a new instruction permit under the provisions of section six of
this article. The division shall immediately revoke the permit
upon receipt of a second conviction for a moving violation of
traffic regulations and laws of the road or violation of the terms
and conditions of a level one instruction permit, which convictions
have become final unless a greater penalty is required by this
section or any other provision of this code. Any person whose
instruction permit has been revoked is disqualified from retesting
for a period of ninety days. However, after the expiration of
ninety days, the person may retest if otherwise eligible. In
addition to all other provisions of this code for which a driver's
license may be restricted, suspended, revoked or canceled, the
holder of a level one instruction permit may only operate a motor
vehicle under the following conditions:
(A) Under the direct supervision of a licensed driver, twenty-one years of age or older, or a driver's education or
driving school instructor who is acting in an official capacity as
an instructor, who is fully alert and unimpaired, and the only
other occupant of the front seat. The vehicle may be operated with
no more than two additional passengers, unless the passengers are
family members;
(B) Between the hours of five a.m. and eleven ten p.m.;
(C) All occupants must use safety belts in accordance with the
provisions of section forty-nine, article fifteen, chapter
seventeen-c of this code;
(D) Without any measurable blood alcohol content, in
accordance with the provisions of subsection (h), section two,
article five, chapter seventeen-c of this code; and
(E) Maintains current school enrollment and is making
satisfactory academic progress or otherwise shows compliance with
the provisions of section eleven, article eight, chapter eighteen
of this code.
(F) A holder of a level one instruction permit who is under
the age of eighteen years may not use shall be prohibited from
using a wireless communication device while operating a motor
vehicle, unless the use of the wireless communication device is for
contacting a 9-1-1 system. A law-enforcement officer may enforce the provisions of this paragraph only as a secondary action when a
law-enforcement officer with probable cause detains a driver for a
suspected violation of another provision of this code. A person
violating the provisions of this paragraph is guilty of a
misdemeanor and, upon conviction thereof, shall for the first
offense be fined $25; for a second offense be fined $50; and for a
third or subsequent offense be fined $75.
(d) Level two intermediate driver's license. -- An applicant
sixteen years of age or older, meeting all other requirements of
the code, may be issued a level two intermediate driver's license.
(1) Eligibility. -- The division shall not issue a level two
intermediate driver's license unless the applicant:
(A) Presents a completed application as prescribed in section
six of this article;
(B) Has held the level one instruction permit conviction-free
for the one hundred eighty days immediately preceding the date of
application for a level two intermediate license;
(C) Has completed either a driver's education course approved
by the State Department of Education or thirty fifty hours of
behind-the-wheel driving experience, including a minimum of ten
hours of nighttime driving, certified by a parent or legal guardian
or other responsible adult over the age of twenty-one as indicated on the form prescribed by the division: Provided, That nothing in
this paragraph shall be construed to require any school or any
county board of education to provide any particular number of
driver's education courses or to provide driver's education
training to any student;
(D) Presents a driver's eligibility certificate or otherwise
shows compliance with the provisions of section eleven, article
eight, chapter eighteen of this code;
(E) Passes the road skills examination as prescribed by
section seven of this article; and
(F) Pays a fee of $5.
(2) Terms and conditions of a level two intermediate driver's
license. -- A level two intermediate driver's license issued under
the provisions of this section shall expire thirty days after the
applicant attains the age of eighteen, or until the licensee
qualifies for a level three full Class E license, whichever comes
first. In addition to all other provisions of this code for which
a driver's license may be restricted, suspended, revoked or
canceled, the holder of a level two intermediate driver's license
may only operate a motor vehicle under the following conditions:
(A) Unsupervised between the hours of five a.m. and eleven ten
p.m.;
(B) Only under the direct supervision of a licensed driver,
age twenty-one years or older, between the hours of eleven ten p.m.
and five a.m. except when the licensee is going to or returning
from:
(i) Lawful employment;
(ii) A school-sanctioned activity;
(iii) A religious event; or
(iv) An emergency situation that requires the licensee to
operate a motor vehicle to prevent bodily injury or death of
another;
(C) All occupants shall use safety belts in accordance with
the provisions of section forty-nine, article fifteen, chapter
seventeen-c of this code;
(D) Operates the vehicle with no more than three passengers
under the age of nineteen, unless the passengers are family
members, in addition to the driver For the first six months after
issuance of a level two intermediate driver's license, the licensee
may not operate a motor vehicle carrying any passengers less than
twenty years old, unless these passengers are family members of the
licensee; for the second six months after issuance of a level two
intermediate driver's license, the licensee may not operate a motor
vehicle carrying more than one passenger less than twenty years old, unless these passengers are family members of the licensee;
(E) Without any measurable blood alcohol content in accordance
with the provisions of subsection (h), section two, article five,
chapter seventeen-c of this code;
(F) Maintains current school enrollment and is making
satisfactory academic progress or otherwise shows compliance with
the provisions of section eleven, article eight, chapter eighteen
of this code;
(G) A holder of a level two intermediate driver's license who
is under the age of eighteen years may not use shall be prohibited
from using a wireless communication device while operating a motor
vehicle, unless the use of the wireless communication device is for
contacting a 9-1-1 system. A law-enforcement officer may enforce
the provisions of this paragraph only as a secondary action when a
law-enforcement officer with probable cause detains a driver for a
suspected violation of another provision of this code. A person
violating the provisions of this paragraph is guilty of a
misdemeanor and, upon conviction thereof, shall for the first
offense be fined $25; for a second offense be fined $50; and for a
third or subsequent offense be fined $75.
(H) Upon the first conviction for a moving traffic violation
or a violation of paragraph (A), (B), (C), (D) or (G), subdivision (1), subsection (d) of this section of the terms and conditions of
a level two intermediate driver's license, the licensee shall
enroll in an approved driver improvement program unless a greater
penalty is required by this section or by any other provision of
this code; and
At the discretion of the commissioner, completion of an
approved driver improvement program may be used to negate the
effect of a minor traffic violation as defined by the commissioner
against the one year conviction-free driving criteria for early
eligibility for a level three driver's license and may also negate
the effect of one minor traffic violation for purposes of avoiding
a second conviction under paragraph (I) of this subdivision; and
(I) Upon the second conviction for a moving traffic violation
or a violation of the terms and conditions of the level two
intermediate driver's license, the licensee's privilege to operate
a motor vehicle shall be revoked or suspended for the applicable
statutory period or until the licensee's eighteenth birthday,
whichever is longer unless a greater penalty is required by this
section or any other provision of this code. Any person whose
driver's license has been revoked as a level two intermediate
driver, upon reaching the age of eighteen years and if otherwise
eligible may reapply for an instruction permit, then a driver's
license in accordance with the provisions of sections five, six and seven of this article.
(e) Level three, full Class E license. -- The level three
license is valid until thirty days after the date the licensee
attains his or her twenty-first birthday. Unless otherwise provided
in this section or any other section of this code, the holder of a
level three full Class E license is subject to the same terms and
conditions as the holder of a regular Class E driver's license.
A level two intermediate licensee whose privilege to operate
a motor vehicle has not been suspended, revoked or otherwise
canceled and who meets all other requirements of the code may be
issued a level three full Class E license without further
examination or road skills testing if the licensee:
(1) Has reached the age of seventeen years; and
(A) Presents a completed application as prescribed by the
provisions of section six of this article;
(B) Has held the level two intermediate license conviction
free for the twelve-month period immediately preceding the date of
the application;
(C) Has completed any driver improvement program required
under paragraph (G), subdivision (2), subsection (d) of this
section; and
(D) Pays a fee of $2.50 for each year the license is valid. An additional fee of $.50 shall be collected to be deposited in the
Combined Voter Registration and Driver's Licensing Fund established
in section twelve, article two, chapter three of this code;
(E) Presents a driver's eligibility certificate or otherwise
shows compliance with the provisions of section eleven, article
eight, chapter eighteen of this code; or
(2) Reaches the age of eighteen years; and
(A) Presents a completed application as prescribed by the
provisions of section six of this article; and
(B) Pays a fee of $2.50 for each year the license is valid.
An additional fee of $.50 shall be collected to be deposited in the
Combined Voter Registration and Driver's Licensing Fund established
in section twelve, article two, chapter three of this code.
(f) A person violating the provisions of the terms and
conditions of a level one or level two intermediate driver's
license is guilty of a misdemeanor and, upon conviction thereof,
shall for the first offense be fined $25; for a second offense be
fined $50; and for a third or subsequent offense be fined $75.;
And,
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §17B-2-3a of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §60A-4-406 of said code be
amended and reenacted, all to read as follows:.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 398, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 398) passed with its 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, and requested the concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 456, Creating Reduced
Cigarette Ignition Propensity Standard and Fire Prevention Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page five, section three, line four, by striking out "(1)"
and inserting in lieu thereof "(i)";
On page five, section three, line six, by striking out "(2)"
and inserting in lieu thereof "(ii)";
On page five, section three, line nine, by striking out "(3)"
and inserting in lieu thereof "(iii)";
On page thirteen, section four, line thirty-six, by striking
out the word "unappropriated";
On page thirteen, section four, line thirty-eight, after the
word "Fund." by inserting the following: The fund shall be
administered by the Tax Commissioner. Expenditures from the fund
are not authorized from collections, but are to be made only in
accordance with appropriation by the Legislature and in accordance
with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article
two, chapter eleven-b of this code: Provided, That for the fiscal
year ending June 30, 2010, expenditures are authorized from
collections rather than pursuant to an appropriation by the
Legislature.
;
On page twenty-one, section twelve, line three, after the word
"regulation" by inserting the words "relating to cigarette fire
safety standards";
On page twenty-one, section twelve, line four, after the word
"with" by striking out the comma and the words "or preempted by,";
And,
On page twenty-two, section twelve, line five, after the word
"article" by inserting a period and striking out the remainder of
the section.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 456, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 456) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fifth order of business.
Senator Prezioso, from the committee of conference on matters
of disagreement between the two houses, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 414, Relating
to Pharmaceutical Cost Management Council and health care delivery
systems.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the House to Engrossed Committee
Substitute for Committee Substitute for Senate Bill No. 414 having
met, after full and free conference, have agreed to recommend and
do recommend to their respective houses, as follows:
That the House of Delegates recede from its amendment on page
eleven, section three, subdivision (4);
That both houses recede from their respective positions as to
the amendment of the House of Delegates on pages sixteen through
seventeen, section five, subsection (e), and that the Senate and
the House agree to an amendment as follows:
(e) The advisory council is comprised of the following
governmental officials: The Secretary of the Department of Health
and Human Resources, or his or her designee, the Director of the
Public Employees Insurance Agency, or his or her designee, the
Commissioner of the Office of the Insurance Commissioner, or his or
her designee, the Chair of the West Virginia Health Care Authority,
or his or her designee, and the Director of the West Virginia
Children's Health Insurance Program, or his or her designee. The
council shall also consist of the following public members: One
public member shall represent an organization of senior citizens
with at least ten thousand members within the state, one public
member shall represent the West Virginia Academy of Family
Physicians, one public member shall represent the West Virginia
Chamber of Commerce, one public member shall represent a federally
qualified health center, one public member shall represent the
largest labor organization in the state, one public interest
organization that represents the interests of consumers, one public member shall represent West Virginia Hospital Association, one
public member shall represent the West Virginia Medical
Association, one public member shall represent the West Virginia
Nurse's Association and two ex officio nonvoting members shall be
the Speaker of the House, or his or her designee, and the President
of the Senate, or his or her designee.;
That both houses recede from their respective positions as to
the amendment of the House of Delegates on page eighteen, section
five, subsection (i), and that the Senate and the House agree to an
amendment as follows:
(i) Eight members of the advisory council are a quorum for the
transaction of business.;
And,
That the Senate agree to all other amendments of the House of
Delegates to the bill, including the House of Delegates amendment
to the title.
Respectfully submitted,
Roman W. Prezioso, Jr., Chair, Dan Foster, Jesse O. Guills,
Conferees on the part of the Senate.
Don C. Perdue, Chair, Larry W. Border (Did not sign), William
R. Wooton, Conferees on the part of the House of Delegates.
On motions of Senator Prezioso, severally made, the report of the committee of conference was taken up for immediate
consideration and adopted.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 414, as amended by the conference report, was then
put upon its passage.
On the passage of the bill, as amended, the yeas were:
Barnes, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D.
Facemire, Fanning, Foster, Green, Guills, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--31.
The nays were: Boley, K. Facemyer and Hall--3.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 414) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Laird, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373, Relating to PROMISE Scholarship.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the House to Engrossed Committee
Substitute for Committee Substitute for Senate Bill No. 373 having
met, after full and free conference, have agreed to recommend and
do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the House of Delegates, striking out everything
after the enacting clause, and agree to the same as follows:
That §18C-7-8 of the Code of West Virginia, 1931, as amended,
be repealed; that said code be amended by adding thereto a new
section, designated §18B-1D-9; that §18B-2A-1 of said code be
amended and reenacted; that §18C-1-1, §18C-1-4 and §18C-1-5 of said
code be amended and reenacted; that §18C-7-3, §18C-7-4, §18C-7-5,
§18C-7-6 and §18C-7-7 of said code be amended and reenacted; and
that §29-22-18a
of said code be amended and reenacted, all to read
as follows:
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1D. HIGHER EDUCATION ACCOUNTABILITY.
§18B-1D-9. Commission, council and institutional governing board
training and development; training and development requirements, applicability and exceptions.
(a) The commission and council, either jointly or separately,
shall coordinate periodic training and development opportunities
for members of the commission, council and institutional governing
boards as provided in this section.
(b) Within six months of beginning service on the commission,
council or a governing board, each new member shall complete at
least three hours of training and development. The training and
development shall address the following topics:
(1) State goals, objectives and priorities for higher
education;
(2) The accountability system for higher education set forth
in this article;
(3) The general powers and duties of members; and
(4) Ethical considerations arising from board membership.
(c) With the exception of the ex officio members of the
commission and the council and the student member of a governing
board, each member shall complete at least six hours of training
and development related to his or her duties within two years of
beginning service and within every two years of service thereafter.
(d) By July 31 each year, the chair of the commission, council
and each governing board shall certify to the commission or council, as appropriate, the number of hours of training and
development that each member received during the preceding fiscal
year.
(e) If the certification indicates that a board member has not
completed the training and development required by this section,
the commission or council, as appropriate, shall send a notice to
the Governor and the Secretary of State or to the institutional
appointing entity that the board member is disqualified from
continued service notwithstanding the provisions of sections five
and six, article six, chapter six of this code. The commission or
council, as appropriate, shall request the Governor or appointing
entity to appoint a replacement for that board member.
(f) By September 30 each year, the commission and council
shall report to the Legislative Oversight Commission on Education
Accountability on the training and development that members of the
commission and the council and the governing boards under their
respective jurisdictions have received during the preceding fiscal
year and shall include this information in the institutional and
statewide report cards provided in section eight of this article.
(g) As used in this section, "member" means all members of the
commission, council and the governing boards unless a specific
exception is provided in this section.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-1. Findings; composition of boards; terms and
qualifications of members; vacancies; eligibility
for reappointment.
(a) Findings. --
__The Legislature finds that the State of West Virginia is
served best when the membership of each governing board includes
the following:
__(1) The academic expertise and institutional experience of
faculty members and a student of the institution governed by the
board;
__(2) The technical or professional expertise and institutional
experience of a classified employee of the institution governed by
the board;
__(3) An awareness and understanding of the issues facing the
institution governed by the board; and
__(4) The diverse perspectives that arise from a membership that
is balanced in terms of gender and varied in terms of race and
ethnic heritage.
__(a) (b) Boards of governors established. --
A board of governors is continued at each of the following institutions: Bluefield State College, Blue Ridge Community and
Technical College, The Community and Technical College at West
Virginia University Institute of Technology, Concord University,
Eastern West Virginia Community and Technical College, Fairmont
State University, Glenville State College, Marshall Community and
Technical College, Marshall University, New River Community and
Technical College, Pierpont Community and Technical College,
Shepherd University, Southern West Virginia Community and Technical
College, West Liberty State college University, West Virginia
Northern Community and Technical College, the West Virginia School
of Osteopathic Medicine, West Virginia State Community and
Technical College, West Virginia State University, and West
Virginia University and West Virginia University at Parkersburg.
(b) Independent community and technical colleges established.
--
Effective July 1, 2008, the board of advisors is abolished and
A board of governors is established for Marshall Community and
Technical College; Pierpont Community and Technical College,
formerly a division of Fairmont State University; The Community and
Technical College at West Virginia University Institute of
Technology; West Virginia State Community and Technical College;
and West Virginia University at Parkersburg.
In making the initial appointments to these boards of
governors, the Governor may appoint those persons who are lay
members of the boards of advisors by June 30, 2008.
(B) At the end of the initial term, and thereafter
(c) Board membership. --
__(1) An appointment to fill a vacancy on the board or
reappointment of a member who is eligible to serve an additional
term is made in accordance with the provisions of this section.
(c) (2) The institutional boards board of governors for
Marshall University and West Virginia University consist consists
of sixteen persons. The board of governors for West Virginia
University consists of seventeen persons. The boards of governors
of the other state institutions of higher education consist of
twelve persons.
(d) (3) Each board of governors includes the following
members:
(1) (A) A full-time member of the faculty with the rank of
instructor or above duly elected by the faculty of the respective
institution;
(2) (B) A member of the student body in good academic
standing, enrolled for college credit work and duly elected by the
student body of the respective institution; and
__(3) (C) A member from the institutional classified employees
duly elected by the classified employees of the respective
institution; and
(4) For the institutional board of governors at Marshall
University, thirteen lay members appointed by the Governor, by and
with the advice and consent of the Senate, pursuant to this
section;
(5) For the institutional board of governors at West Virginia
University, twelve lay members appointed by the Governor, by and
with the advice and consent of the Senate, pursuant to this
section, and additionally:
(A) The chairperson of the board of visitors of West Virginia
University Institute of Technology;
(B) A full-time faculty member representing the extension
service at the institution or a full-time faculty member
representing the health sciences, selected by the faculty senate.
(6) For each institutional board of governors of the other
state institutions of higher education, nine lay members appointed
by the Governor, by and with the advice and consent of the Senate,
pursuant to this section.
(e) (A) Of the nine members appointed by the Governor, no more
than five may be of the same political party. Of the thirteen members appointed by the Governor to the governing board of
Marshall University, no more than eight may be of the same
political party. Of the twelve members appointed by the Governor
to the governing board of West Virginia University, no more than
seven may be of the same political party.
(B) Of the nine members appointed by the Governor, at least
six five shall be residents of the state. Of the thirteen members
appointed by the Governor to the governing board of Marshall
University, at least eight shall be residents of the state. Of the
twelve members appointed by the Governor to the governing board of
West Virginia University, at least eight seven shall be residents
of the state.
(7) In making lay appointments, the Governor shall consider
the institutional mission and membership characteristics including
the following:
__(A) The need for individual skills, knowledge and experience
relevant to governing the institution;
__(B) The need for awareness and understanding of institutional
problems and priorities, including those related to research,
teaching and outreach;
__(C) The value of gender, racial and ethnic diversity; and
__(D) The value of achieving balance in gender and diversity in the racial and ethnic characteristics of the lay membership of each
board.
__(f) (d) Board member terms. --
__(1) The student member serves for a term of one year. Each
term begins on July 1.
(g) The (2) The faculty member serves for a term of two years.
Each term begins on July 1. Faculty members are eligible to
succeed themselves for three additional terms, not to exceed a
total of eight consecutive years.
(h) (3) The member representing classified employees serves
for a term of two years. Each term begins on July 1. Members
representing classified employees are eligible to succeed
themselves for three additional terms, not to exceed a total of
eight consecutive years.
(i) (4) The appointed lay citizen members serve terms of up to
four years each and are eligible to succeed themselves for no more
than one additional term.
(j) (5) A vacancy in an unexpired term of a member shall be
filled for the unexpired term within thirty days of the occurrence
of the vacancy in the same manner as the original appointment or
election. Except in the case of a vacancy, all elections shall be
are held and all appointments shall be are made no later than the thirtieth day of June 30 preceding the commencement of the term.
Each board of governors shall elect one of its appointed lay
members to be chairperson in June of each year. except for the
fiscal year beginning July 1, 2008, only, when the board shall
elect the chairperson in July A member may not serve as
chairperson for more than four consecutive years.
(k) (6) The appointed members of the institutional boards of
governors serve staggered terms of up to four years except that
four of the initial appointments to the governing boards of
community and technical colleges which become that became
independent July 1, 2008, are for terms of two years and five of
the initial appointments are for terms of four years.
(l) (e) Board member eligibility, expenses. --
__(1) A person is ineligible for appointment to membership on a
board of governors of a state institution of higher education under
the following conditions:
(A) For a baccalaureate institution or university, a person is
ineligible for appointment who is an officer, employee or member of
any other board of governors; an employee of any institution of
higher education; an officer or member of any political party
executive committee; the holder of any other public office or
public employment under the government of this state or any of its political subdivisions; an employee of any affiliated research
corporation created pursuant to article twelve of this chapter; an
employee of any affiliated foundation organized and operated in
support of one or more state institutions of higher education; or
a member of the council or commission. This subsection does not
prevent the representative from the faculty, classified employees,
students or the superintendent of a county board of education from
being members of the governing boards.
(B) For a community and technical college, a person is
ineligible for appointment who is an officer, employee or member of
any other board of governors; a member of a board of visitors of
any public institution of higher education; an employee of any
institution of higher education; an officer or member of any
political party executive committee; the holder of any other public
office, other than an elected county office, or public employment,
other than employment by the county board of education, under the
government of this state or any of its political subdivisions; an
employee of any affiliated research corporation created pursuant to
article twelve of this chapter; an employee of any affiliated
foundation organized and operated in support of one or more state
institutions of higher education; or a member of the council or
commission. This subsection does not prevent the representative
from the faculty, classified employees or students, or chairpersons of the boards of advisors from being members of the governing
boards.
(m) (2) Before exercising any authority or performing any
duties as a member of a governing board, each member shall qualify
as such by taking and subscribing to the oath of office prescribed
by section five, article IV of the Constitution of West Virginia
and the certificate thereof shall be filed with the Secretary of
State.
(n) (3) A member of a governing board appointed by the
Governor may not be removed from office by the Governor except for
official misconduct, incompetence, neglect of duty or gross
immorality and then only in the manner prescribed by law for the
removal of the state elective officers by the Governor.
__(4) The members of the board of governors serve without
compensation, but are reimbursed for all reasonable and necessary
expenses actually incurred in the performance of official duties
under this article upon presentation of an itemized sworn statement
of expenses.
__(o) (5) The president of the institution shall make available
resources of the institution for conducting the business of its
board of governors. All expenses incurred by the board of
governors and the institution under this section are paid from funds allocated to the institution for that purpose.
__The members of the board of governors serve without
compensation, but are reimbursed for all reasonable and necessary
expenses actually incurred in the performance of official duties
under this article upon presentation of an itemized sworn statement
of expenses. All expenses incurred by the board of governors and
the institution under this section are paid from funds allocated to
the institution for that purpose.
CHAPTER 18C. STUDENT LOANS; SCHOLARSHIPS AND STATE AID.
ARTICLE 1. FINANCIAL ASSISTANCE GENERALLY.
§18C-1-1. Legislative findings; purpose; administration generally;
reporting.
(a) The Legislature
finds makes the following findings:
(1)
That although Although enrollments in institutions of
higher education in this state and throughout the nation continue
to increase at a rapid pace,
there continues to exist an
underdevelopment of West Virginia has not developed sufficiently
the state's human talent and resources because
of the inability of
many able, but needy, students
are not able to finance a higher
education program;
(2)
That the The state can achieve its full economic and
social potential only when the following elements are in place:
(A) Every individual has the opportunity to contribute to the
full extent of his or her capability; and
(B) The state assists in removing
such financial barriers to
the individual's education goals
as may that remain after he or she
has
utilized used all resources and work opportunities available;
(b) The ultimate state goal in providing student financial aid
is to create a culture that values education, to improve the
quality of the
state's workforce and
thereby to enhance the quality
of life for the citizens of West Virginia.
(c) The Vice Chancellor for Administration
jointly employed by
the Commission and the Council has a ministerial duty to
administer, oversee
or and monitor all state and federal
student
loan, scholarship and state student financial aid programs
which
are administered at the state level in accordance with established
guidelines rules under the direction of the commission and council
and in consultation with the Higher Education Student Financial Aid
Advisory Board.
(d)
Such These programs include, but are not limited to, the
following programs:
pursuant to the provisions of this chapter
(1) The Guaranteed Student Loan Program, which may be
administered by a private nonprofit agency;
(2) The Medical Student Loan Program;
(3) The Underwood-Smith Teacher Scholarship Program;
(4) The Engineering, Science and Technology Scholarship
Program;
(5) The West Virginia Higher Education Grant Program;
(6) The Higher Education Adult Part-Time Student Grant
Program;
(7)
The West Virginia Providing Real Opportunities for
Maximizing In-State Student Excellence (PROMISE) Scholarship
Program;
__(7) (8) The Higher Education Student Assistance Loan Program
under established pursuant to article twenty-two-d, chapter
eighteen of this code;
(8) (9) The West Virginia College Prepaid Tuition and Savings
Program
under established pursuant to article thirty, chapter
eighteen of this code, which is administered by the State
Treasurer;
(9) (10) The state aid programs for students of optometry,
pursuant to article three of this chapter;
(10) (11) The state aid programs for students of veterinary
medicine pursuant to section six-a, article eleven, chapter
eighteen of this code;
(11) (12) Any reciprocal program and contract program for
student aid
under established pursuant to sections three and four,
article four, chapter eighteen-b of this code;
(12) (13) Any other state-level student aid
program programs
in this code; and
(13) (14) Any federal grant or contract student assistance or
support programs administered at the state level.
(e) Notwithstanding any provision of this chapter to the
contrary, the Vice Chancellor for Administration shall prepare a
single, comprehensive report regarding the implementation of the
financial aid programs identified in subsection (d) of this section
which are administered under his or her supervision. The report
shall be provided to the commission and the council and shall be
presented to the Legislative Oversight Commission on Education
Accountability no later than November 30, 2009, and annually
thereafter. The report shall address all financial aid issues for
which reports are required in this code, as well as any findings
and recommendations.
§18C-1-4. Eligibility of commuting students and children of
military personnel for state-funded student financial aid,
grants and scholarships.
(a) Notwithstanding any other provision of this code or rule to the contrary, a student who attended a public or private high
school outside the state is eligible for state-funded student
financial aid, grants and scholarships if:
(1) The student meets all other eligibility requirements for
the aid, grant or scholarship; and
either
(2) The student resided in West Virginia while attending high
school in another state, and:
(A) The student resided with his or her parent or legal
guardian who:
(i) Was a resident of this state; and
(ii) Had been a resident of this state for at least two years
immediately preceding the student's attendance at the school;
(B) The student commuted during the school term on a daily
basis from this state to the school;
(C) The student is a dependent of the parent or legal guardian
upon which eligibility is based;
(D) The student has not established domicile outside the
state; and
(E) At the discretion of the State Superintendent of Schools,
as defined in section one, article one, chapter eighteen of this
code:
(i) The school is fully accredited in that state to the degree
acceptable to the State Superintendent of Schools; and
(ii) The school's curriculum requirements for graduation are
equivalent to the curriculum requirements for graduation in this
state, or sufficiently similar to those requirements, as determined
by the State Superintendent of Schools; or
(3) The student resided and attended high school in another
state or a United States territory, United States possession or
foreign country and:
(A) The student resided with his or her parent or legal
guardian; and
(B) The student's parent or legal guardian:
(i) Served in the United States armed forces while the student
attended high school in such state, territory, possession or
country;
(ii) Was stationed for military purposes in such state,
territory, possession or country; and
(iii) Maintained legal residence in West Virginia while
stationed in such state, territory, possession or country.
(b) This section
may not be construed to does not alter, amend
or extend any application deadlines or other requirements
established by law or policy.
(c) The provisions of this section expire on the thirtieth day
of June, two thousand ten.
§18C-1-5. Higher Education Student Financial Aid Advisory Board.
(a) The Higher Education Student Financial Aid Advisory Board
is established.
(b) The purpose of the board is to provide financial aid
expertise and policy guidance to the commission, the council
the
PROMISE Scholarship Board, and the Vice Chancellor for
Administration
and the Executive Director of the PROMISE
Scholarship Programs on all matters related to federal, state and
private student financial aid resources and programs.
(c) It is the intent of the Legislature that the advisory
board
have the following responsibilities:
(1) Recommend methods to balance the needs of state students
from all levels of financial need and academic ability
by focusing
attention on multiple financial aid programs which meet a variety
of state objectives;
(2) Recommend methods for achieving a comprehensive system of
student financial aid
: (A) to maximize the return on the state's
investment in
such student financial aid programs by increasing the
skills, qualifications and education achievement of the citizens
receiving the benefits;
and
(B) (3) To establish Recommend methods
for coordinating
administration among to coordinate state-funded student financial
aid programs so that the state achieves the appropriate blend of
student financial aid programs to expand the range of economic
opportunities available to state citizens;
(d) The Advisory Board consists of twelve members as follows:
(1) The chair of the Higher Education Policy Commission or a
designee who is a member of the Commission;
(2) The chair of the West Virginia Council for Community and
Technical College Education or a designee who is a member of the
Council;
(3) The State Superintendent of Schools or a designee;
(4) The Secretary of Education and the Arts or a designee;
(5) The State Treasurer or a designee;
(6) A member of the PROMISE Scholarship Board selected by that
board;
(7) Three financial aid administrators, excluding the
president of the West Virginia Association of Student Financial Aid
Administrators.
(A) All financial aid administrators are appointed by the Vice
Chancellor for Administration in consultation with the Commission and the Council, as appropriate. Of the initial appointments, the
vice chancellor shall appoint one member to a two-year term, one
member to a three-year term and one member to a four-year term.
Thereafter, all terms are for four years.
(B) It is the duty of the Vice Chancellor for Administration
to select financial aid administrators so that the following types
of institutions have representatives serving on the board on a
rotating basis:
(i) State institutions of higher education which are doctoral-
degree granting research universities;
(ii) State institutions of higher education which primarily
grant baccalaureate degrees;
(iii) State institutions of higher education which are
free-standing community and technical colleges;
(iv) State institutions of higher education which are
administratively linked community and technical colleges; and
(v) Private institutions of higher education which are
regionally accredited and located within the state.
(8) Three at-large private sector members who are appointed
jointly by the Commission and the Council. Of the initial
appointments, the Commission and the Council jointly shall appoint
one member to a two-year term, one member to a three-year term and one member to a four-year term. Thereafter, all terms are for four
years.
(A) At-large members shall:
(i) Be representative of the state's business and economic
community;
(ii) Demonstrate knowledge, skill and experience in an
academic, business or financial field; and
(iii) Reside within this state.
(B) An at-large member may not be:
(i) A member of a governing board or institutional board of
advisors of any public or private institution of higher education;
nor
(ii) A publicly elected official or an employee of any state,
county or municipal agency.
(e) No more than two of the at-large members may be from the
same political party and no more than one may reside in any
congressional district.
(1) After the initial appointments, each appointed member
serves a term of four years and may be reappointed upon expiration
of the term.
(2) In the event of a vacancy among appointed members, the Commission and the Council shall appoint a person for the remainder
of the unexpired term to represent the same interests as those of
the original appointee. A person appointed to fill a vacancy is
eligible for reappointment. Unless a vacancy occurs due to death
or resignation, an appointed member continues to serve until a
successor has been appointed and qualified as provided in this
section.
(4) Recommend ways to improve state-level administration of
financial aid programs for the benefit of students and
institutions;
__(5) Recommend ways to improve financial aid outreach
activities;
__(6) Make recommendations, consistent with the nature of the
PROMISE Scholarship Program as a merit-based student financial aid
program;
__(7) Study feasibility of including for-profit institutions as
eligible institutions for PROMISE scholarship awards and
requirements, if any, for inclusion; and
__(8) Recommend rules that align with the goals, objectives and
priorities set forth in section one-a, article one, chapter
eighteen-b of this code and article one-d of said chapter and with
other state and system public policy goals, objectives and priorities.
__(d) Advisory board membership. --
__(1) The advisory board shall consist of seven members selected
as follows:
__(A) Three members appointed by the commission;
__(B) Two members appointed by the council;
__(C) One member appointed by the West Virginia Independent
Colleges and Universities; and
__(D) One member appointed by the West Virginia School Counselor
Association.
__(2) Members appointed by the commission and the council shall
possess a broad knowledge of state and federal higher education
student financial aid programs and have experience in administering
these programs, preferably at the campus or system level.
__(3) The initial appointments of members shall be made as
follows:
__(A) The commission shall appoint one member to a one-year
term, one member to a two-year term and one member to a three-year
term;
__(B) The council shall appoint one member to a one-year term
and one member to a three-year term;
__(C) The West Virginia Independent Colleges and Universities
shall appoint one member to a one-year term; and
__(D) The West Virginia School Counselor Association shall
appoint one member to a two-year term.
__(4) After the initial terms are completed, appointments shall
be made as follows:
__(A) Members shall be appointed for three-year terms; and
__(B) Members are eligible to succeed themselves for one
additional consecutive term.
__(5) The term of each member begins on July 1 of the year in
which the appointment is made and ends on June 30 of the year in
which the appointment expires.
__(e) The first meeting of the advisory board shall be called by
the Vice Chancellor for Administration, at which time the members
shall elect a chairperson for an initial term ending on July 31,
2010. The chairperson may succeed himself or herself for an
additional one-year term as chairperson. Thereafter, the term of
the chairperson is for one year beginning on August 1 of the year
in which elected and ending on July 31 of the following year. A
member may not serve more than two consecutive terms as
chairperson.
__(f) In the event of a vacancy, a successor shall be appointed by the entity which appointed the vacating member for the unexpired
term of the vacating member. A person appointed to fill a vacancy
is eligible for reappointment for one additional consecutive term
unless the time remaining in the unexpired term is less than six
months in which case the person filling the vacancy is eligible for
reappointment for two additional terms.
__(f) (g) Members of the advisory board serve without
compensation, but are entitled to reimbursement by the commission
for expenses, including travel expenses, which are actually
incurred by the member in the official conduct of the business of
the advisory board.
Members are reimbursed in a manner consistent
with rules of the Higher Education Policy Commission.
ARTICLE 7. WEST VIRGINIA PROVIDING REAL OPPORTUNITIES FOR
MAXIMIZING IN-STATE STUDENT EXCELLENCE SCHOLARSHIP PROGRAM.
§18C-7-3. Definitions.
(a) General. -- For the purposes of this article, terms have
the meaning ascribed to them in section two, article one of this
chapter, unless the context in which the term is used clearly
requires a different meaning or a specific definition is provided
in this section.
__(b) Definitions. --
__(a) (1) "Eligible institution" means:
(1) (A) A state institution of higher education as defined in
section two, article one, chapter eighteen-b of this code;
(2) (B) Alderson-Broaddus College, Appalachian Bible College,
Bethany College, Davis and Elkins College, Mountain State
University, Ohio Valley University, the University of Charleston,
West Virginia Wesleyan College and Wheeling Jesuit University, all
in West Virginia. Any institution listed in this subdivision
ceases to be an eligible institution if it
meets either of the
following conditions:
(A) (i) Loses It loses regional accreditation; or
(B) (ii) Changes It changes its status as a private, not-for-
profit institution;
(3) (C) Any other
public or private regionally accredited
institution in this state
public or private, approved by the
board
commission.
__(b) "Board" means the West Virginia PROMISE Scholarship Board
of the West Virginia PROMISE Scholarship Program as provided for in
section four of this article.
(c) (2) "Tuition" means the quarter, semester or term charges
imposed by
a an eligible state institution of higher education and
,
additionally, all mandatory fees required as a condition of
enrollment by all students.
For the purposes of this article, the following conditions apply:
__(A) West Virginia University, Potomac State College and West
Virginia University Institute of Technology are considered separate
institutions for purposes of determining tuition rates; and
__(B) The tuition amount paid by undergraduate health sciences
students at West Virginia University is considered to be the same
as the amount of tuition paid by all other West Virginia University
undergraduate students.
__(d) (3) "Enrolled" means either currently enrolled or in the
process of enrolling in an eligible institution.
§18C-7-4. Dissolution of the PROMISE Scholarship Board; transfer
of funds.
(a) The West Virginia PROMISE Scholarship Board is hereby
dissolved.
(b) All funds administered by the former PROMISE Scholarship
Board shall be administered by the Higher Education Policy
Commission.
§18C-7-5. Powers and duties of the West Virginia Higher Education
Policy Commission regarding the PROMISE Scholarship.
(a)
Powers of board commission. -- In addition to the powers
granted by any other provision of this
article code, the
board
commission has the powers necessary or convenient to carry out the purposes and provisions of this article including, but not limited
to, the following express powers:
(1) To adopt and amend bylaws;
(2) (1) To
propose promulgate legislative rules
to the
Commission for promulgation in accordance with the provisions of
article three-a, chapter twenty-nine-a of this code to effectuate
the purposes of this article;
(3) (2) To invest any of
its funds at the board's discretion,
the funds of the West Virginia PROMISE Scholarship Fund established
in section seven of this article with the West Virginia Investment
Management Board in accordance with the provisions of article six,
chapter twelve of this code. Any investments made
under pursuant
to this article shall be made with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
person acting in a like capacity and familiar with such matters
would use in
the conduct of conducting an enterprise of a like
character and with like aims. Fiduciaries shall diversify plan
investments to the extent permitted by law
so as to minimize the
risk of large losses, unless under the circumstances it is clearly
prudent not to do so;
(4) (3) To execute contracts and other necessary instruments;
(5) (4) To impose reasonable requirements for residency for students applying for the PROMISE scholarship. Except as provided
in section four, article one of this chapter,
the requirements
shall include that an eligible a student
must shall have met the
following requirements
to be eligible:
(A) Completed at least one half of the credits required for
high school graduation in a public or private high school in this
state; or
(B) Received instruction in the home or other approved place
pursuant to
Exemption B subsection (c), section one, article eight,
chapter eighteen of this code for the two years immediately
preceding application;
(C) This
subdivision may subsection does not
be construed to
establish residency requirements for matriculation or fee payment
purposes at state institutions of higher education;
(6) (5) To contract for necessary goods and services, to
employ necessary personnel and to engage the services of private
persons for administrative and technical assistance in carrying out
the responsibilities of the scholarship program.
Any services
provided or secured to implement or administer the provisions of
this section remain under the direction and authority of the Vice
Chancellor for Administration;
__________(A) The board is encouraged to utilize the employees of the Vice Chancellor for Administration to provide administrative and
technical assistance.
(B) Any services provided for the board by such employees
remain under the direction and authority of the vice chancellor.
(7) (6) To solicit and accept gifts, including bequests or
other testamentary gifts made by will, trust or other disposition,
grants, loans and other aid from any source and to participate in
any federal, state or local governmental programs in carrying out
the purposes of this article;
(8) (7) To define the terms and conditions under which
scholarships are awarded with the minimum requirements being set
forth in section six of this article; and
(9) (8) To establish other policies, procedures and criteria
necessary to implement and administer the provisions of this
article.
(b)
Duties of board commission. -- In addition to any duty
required by any other provision of this
article code, the
board
commission has the following responsibilities:
(1) To operate the program in a fiscally responsible manner
and within the limits of available funds;
(2) To operate the
PROMISE Scholarship program as a merit-
based program;
(3) To
raise adjust academic eligibility requirements
before
taking any other steps to limit student awards should projections
indicate that available funds will not be sufficient to cover
future costs; and
(4) To maintain contact with graduates who have received
PROMISE scholarships and to provide a written statement of intent
to recipients who are selected to receive a PROMISE scholarship
after the effective date of this section notifying them that
acceptance of the scholarship entails a responsibility to supply
the following:
(A) Information requested by the
board commission to determine
the number and percentage of recipients who
shall:
(i) (i) Continue to live in West Virginia after graduation;
(ii) (ii) Obtain employment in West Virginia after graduation;
and
(iii) (iii) Enroll in post-graduate education programs;
and
__________(B) For PROMISE scholars who enroll in post-graduate education
programs, the name of the state in which each post-graduate
institution is located; and
(B) (C) Such Any other relevant information
as the
board may
commission reasonably
request requests to implement the provisions
of this subdivision;
(5) To analyze
and use the data collected pursuant to
subdivision (4) of this subsection
to, and:
(A) Report the findings
annually to the
Joint Standing
Committee on Education by the tenth day of January, two thousand
seven and annually thereafter Legislative Oversight Commission on
Education Accountability; and
(B) Make
annual recommendations
annually to the
Joint Standing
Committee on Education Legislative Oversight Commission on
Education Accountability regarding any actions the
board commission
considers necessary or expedient to encourage PROMISE recipients to
live and work in the state after graduation.
§18C-7-6. PROMISE Scholarship Program requirements; legislative
rule.
(a) A PROMISE scholarship annual award
meets shall meet the
following conditions:
(1) Equals but does not exceed the cost of tuition for a
student enrolled in a state institution of higher education;
(2) Equals an amount determined by the board, but not to
exceed the cost of tuition at state institutions of higher
education, for a student enrolled in an eligible institution that
is not a state institution of higher education;
(1) For a student enrolled in a state institution of higher education, the annual award is equal to the lesser of the cost of
tuition or $4,750, except that a student who was awarded and used
a PROMISE scholarship annual award prior to January 1, 2010, shall
continue to receive the annual award calculated under the same
terms and conditions that applied on the day before the effective
date of this article;
__________(2) For a student enrolled in an eligible institution other
than a state institution of higher education, the annual award is
equal to, but may not exceed, the lesser of the cost of tuition or
$4,750, except that a student who was awarded and used a PROMISE
scholarship annual award prior to January 1, 2010, shall continue
to receive the annual award calculated under the same terms and
conditions that applied on the day before the effective date of
this article;
__________(3) The annual award may exceed $4,750, if the commission
determines that adequate funds are available, but in any case, may
not be greater than the actual cost of tuition;
__________(3) (4) Is The annual award shall be used by an eligible
institution to supplement, but
may not
to supplant, a tuition and
fee waiver for which the individual is eligible pursuant to section
five, six-a,
or seven
or seven-b, article ten, chapter eighteen-b
of this code.
(b) The total cost of all scholarships awarded by the
board
commission in any year may not exceed the amount of funds available
to the
board commission during that fiscal year.
(c)
An individual shall meet the following conditions in In
order to be eligible to receive a PROMISE scholarship award
an
individual shall:
(1) Submit a scholarship award application to the
board
commission:
(A) Within two years of graduating from high school or within
two years of acquiring a general equivalency degree if provided
instruction in the home or other approved place pursuant to
Exemption B subsection (c), section one, article eight, chapter
eighteen of this code; or
(B) Within seven years of initially entering military service,
and within one year of discharge from
such military service, if the
individual has entered the United States armed services within two
years after graduating from high school;
(2) Apply for and submit
to the board a Free Application for
Federal Student Aid;
(3) Maintain a grade point average of at least 3.0 on a 4.0
grading scale in the required core and elective course work
necessary to prepare students for success in post-secondary education at the associate and baccalaureate degree levels as
determined by the
board commission, if the individual has completed
not more than one semester or term at an institution of higher
education, excluding credits earned in advanced placement,
international baccalaureate, dual credit and comparable courses
while the student is enrolled in high school;
(4) Maintain appropriate academic progress toward the
completion of a degree at the undergraduate education level as
determined by the
board commission if the individual has completed
more than one semester or term at an institution of higher
education, excluding credits earned in advanced placement,
international baccalaureate, dual credit and comparable courses
while the student is enrolled in high school;
(5) Be a United States citizen or legal immigrant to the
United States;
__________(5) (6) Meet additional objective standards
as the
board
commission considers necessary to promote academic excellence and
to maintain the financial stability of the fund;
and
__________(6) (7) Enroll in an eligible institution.
Any A student
enrolled at an eligible institution who receives a PROMISE
scholarship award may retain and renew the scholarship to complete
his or her undergraduate education at that institution or any other eligible institution
under the following circumstances:
(A)
If the The institution at which the student is enrolled
loses its status as an eligible institution pursuant to the
provisions of
subdivision (2), subsection (a), section three
subdivision (1), subsection (b), section three of this article; and
(B)
If the The student meets all other renewal requirements of
this code and of
board commission rules.
(7) (d) It is the intent of the Legislature that the
board
commission shall strongly encourage prospective candidates for the
PROMISE scholarship to perform at least twenty hours of unpaid
community service while in high school to help prepare them for
success in
post-graduate post-secondary education. The community
service may include, but is not limited to, participation with
nonprofit, governmental or community-based organizations designed
to with any or all of the following purposes:
(A) (1) Improve Improving the quality of life for community
residents;
(B) (2) Meet Meeting the needs of community residents; or
(C) (3) Foster Fostering civic responsibility.
(d) The board shall recommend a legislative rule to the
Commission to implement the provisions of this article.
(e) The commission shall promulgate a legislative rule in accordance with the provisions of article three-a, chapter twenty-
nine-a of this code.
(1) The rule shall include at least the following provisions:
(A) The amount of a PROMISE scholarship award may not exceed
the cost of tuition at state institutions of higher education;
(B) (A) The amount of a PROMISE scholarship award in
combination with aid from all other sources may not exceed the cost
of education at the institution the recipient is attending. This
provision does not apply to members of the West Virginia National
Guard, recipients of an Underwood-Smith teacher scholarship and
recipients of a West Virginia engineering, science and technology
scholarship;
(C) (B) Additional objective standards
as the
board commission
considers necessary:
(i) To promote academic excellence;
(ii) To maintain the financial stability of the fund; and
(iii) To operate the program within the limits of available
funds.
(D) (C) Provisions for making the highest and best use of the
PROMISE Scholarship Program in conjunction with the
West Virginia
Prepaid Tuition Trust Act West Virginia College Prepaid Tuition and
Savings Program Act set forth in article thirty, chapter eighteen of this code;
(E) (D) A provision defining the relationship of PROMISE
scholarship awards to all other sources of student financial aid to
ensure maximum coordination. The provision shall include the
following:
(i) Methods to maximize student eligibility for federal
student financial aid;
(ii) A requirement that PROMISE scholarship awards not
supplant tuition and fee waivers; and
(iii) Clarification of the relationship between the PROMISE
Scholarship Program, tuition savings plans and other state-funded
student financial aid programs;
(F) (E) A method for awarding scholarships within the limits
of available appropriations, including circumstances when program
funds are not sufficient to provide awards to all eligible
applicants. The
board commission may not
utilize use any of the
following methods:
(i)
Making the Providing for an annual PROMISE scholarship
award
for an amount that is less than the
cost of full tuition for
a student enrolled in a state institution of higher education
amounts provided for in this section; or
(ii) Eliminating any current recipient from eligibility;
and
__________(G) (F) A method for applicants to appeal determinations of
eligibility and renewal.
(2) The rule may provide for or require the following at the
board's commission's discretion:
(A) Requiring repayment of the amount of the scholarship, in
whole or in part, if a scholarship recipient chooses to work
outside the state after graduation.
Provided, That The rule may
not require a recipient to repay a scholarship, in whole or in
part, unless the prospective recipient has been informed of this
requirement in writing before initial acceptance of the PROMISE
scholarship award;
(B) Targeting a portion of the scholarship funds to be used
for applicants enrolled in an engineering, science, technology or
other designated program;
(C) Determining what other sources of funding for higher
education are to be deducted from the PROMISE scholarship award;
and
(D) Providing additional criteria as determined by the
board
commission.
(3) The Legislature finds that an emergency exists and,
therefore, the
board commission shall file a rule to implement the
provisions of this section as an emergency rule pursuant to the provisions of article three-a, chapter twenty-nine-a of this code.
The rule is subject to the prior approval of the Legislative
Oversight Commission on Education Accountability.
(4) Any rule promulgated by the commission pursuant to
previous enactments of this article in effect on the effective date
of the amendment and reenactment of this article in the year 2009
remains in effect until amended, modified, repealed or replaced by
the commission.
§18C-7-7. West Virginia PROMISE Scholarship Fund continued.
(a) The special revenue fund in the State Treasury designated
and known as the PROMISE Scholarship Fund is continued. The fund
consists of
moneys from the following sources:
(1) All appropriations to the fund from the West Virginia
Lottery, video lottery and taxes on amusement devices;
(2) All appropriations by the Legislature for the PROMISE
Scholarship Fund;
(3) Any gifts, grants or contributions received for the
PROMISE Scholarship Program; and
(4) All interest or other income earned from investment of the
fund.
(b) The allocations to the fund are subject to appropriation
by the Legislature. Nothing in this article requires any specific level of funding by the Legislature nor guarantees nor entitles any
individual to any benefit or grant of funds.
(c) For the fiscal year beginning July 1, 2006, it is the
intent of the Legislature that the aggregate of the amount of
moneys transferred to the fund pursuant to section eighteen-a,
article twenty-two, chapter twenty-nine of this code, and
such any
other amounts of public moneys that may be transferred to the fund
by appropriation of the Legislature, shall equal, but may not
exceed, $40 million. For each fiscal year thereafter until and
including the fiscal year ending June 30,
2011 2009, it is the
intent of the Legislature that this aggregate be an amount two
percent greater than the aggregate established by this subsection
for the prior fiscal year.
For the fiscal year beginning July 1,
2011, and in each fiscal year thereafter, it is the intent of the
Legislature that this aggregate not exceed the aggregate
established by this subsection for the fiscal year beginning July
1, 2011. For the fiscal year beginning July 1, 2009, it is the
intent of the Legislature that the aggregate of the amount of
moneys transferred to the fund pursuant to section eighteen-a,
article twenty-two, chapter twenty-nine of this code and any other
amounts of public moneys that may be transferred to the fund by
appropriation of the Legislature, shall equal $45 million. For the
fiscal year beginning July 1, 2010, it is the intent of the Legislature that the aggregate of the amount of moneys transferred
to the fund shall equal $48 million. For the fiscal year beginning
July 1, 2011, and every fiscal year thereafter, it is the intent of
the Legislature that the aggregate of the amount of moneys
transferred to the fund shall equal $47,500,000.
(d) The
board commission may expend the moneys in the fund to
implement the provisions of this article.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-18a. State Excess Lottery Revenue Fund.
(a) There is continued a special revenue fund within the The
State Lottery Fund in the State Treasury which is designated and
known as the State Excess Lottery Revenue Fund is continued. The
fund consists of all appropriations to the fund and all interest
earned from investment of the fund and any gifts, grants or
contributions received by the fund. All revenues received under the
provisions of sections ten-b and ten-c, article twenty-two-a of this
chapter and under article twenty-two-b of this chapter, except the
amounts due the commission under subdivision (1), subsection (a),
section one thousand four hundred eight, article twenty-two-b of
this chapter, shall be deposited in the State Treasury and placed
into the State Excess Lottery Revenue Fund. The revenue shall be disbursed in the manner provided in this section for the purposes
stated in this section and shall not be treated by the State Auditor
and the State Treasurer as part of the general revenue of the state.
(b) For the fiscal year beginning July 1, 2002, the commission
shall deposit: (1) $65 million into the subaccount of the State
Excess Lottery Revenue Fund hereby created in the State Treasury to
be known as the General Purpose Account to be expended pursuant to
appropriation of the Legislature; (2) $10 million into the Education
Improvement Fund for appropriation by the Legislature to the PROMISE
Scholarship Fund created in section seven, article seven, chapter
eighteen-c of this code; (3) $19 million into the Economic
Development Project Fund created in subsection (d) (e) of this
section for the issuance of revenue bonds and to be spent in
accordance with the provisions of said subsection; (4) $20 million
into the School Building Debt Service Fund created in section six,
article nine-d, chapter eighteen of this code for the issuance of
revenue bonds; (5) $40 million into the West Virginia Infrastructure
Fund created in section nine, article fifteen-a, chapter thirty-one
of this code to be spent in accordance with the provisions of said
article; (6) $10 million into the Higher Education Improvement Fund
for Higher Education; and (7) $5 million into the State Park
Improvement Fund for Park Improvements. For the fiscal year
beginning July 1, 2003, the commission shall deposit: (1) $65 million into the General Purpose Account to be expended pursuant to
appropriation of the Legislature; (2) $17 million into the Education
Improvement Fund for appropriation by the Legislature to the PROMISE
Scholarship Fund created in section seven, article seven, chapter
eighteen-c of this code; (3) $19 million into the Economic
Development Project Fund created in subsection (d) (e) of this
section for the issuance of revenue bonds and to be spent in
accordance with the provisions of said subsection; (4) $20 million
into the School Building Debt Service Fund created in section six,
article nine-d, chapter eighteen of this code for the issuance of
revenue bonds; (5) $40 million into the West Virginia Infrastructure
Fund created in section nine, article fifteen-a, chapter thirty-one
of this code to be spent in accordance with the provisions of said
article; (6) $10 million into the Higher Education Improvement Fund
for Higher Education; and (7) $7 million into the State Park
Improvement Fund for Park Improvements.
(c) For the fiscal year beginning July 1, 2004, and subsequent
fiscal years through the fiscal year ending June 30, 2009, the
commission shall deposit: (1) $65 million into the General Purpose
Account to be expended pursuant to appropriation of the Legislature;
(2) $27 million into the Education Improvement Fund for
appropriation by the Legislature to the PROMISE Scholarship Fund
created in section seven, article seven, chapter eighteen-c of this code; (3) $19 million into the Economic Development Project Fund
created in subsection (d) (e) of this section for the issuance of
revenue bonds and to be spent in accordance with the provisions of
said subsection; (4) $19 million into the School Building Debt
Service Fund created in section six, article nine-d, chapter
eighteen of this code for the issuance of revenue bonds: Provided,
That for the fiscal year beginning July 1, 2008, and subsequent
fiscal years, no moneys shall be deposited in the School Building
Debt Service Fund pursuant to this subsection and instead $19
million shall be deposited into the Excess Lottery School Building
Debt Service Fund; (5) $40 million into the West Virginia
Infrastructure Fund created in section nine, article fifteen-a,
chapter thirty-one of this code to be spent in accordance with the
provisions of said article; (6) $10 million into the Higher
Education Improvement Fund for Higher Education; and (7) $5 million
into the State Park Improvement Fund for Park Improvements. No
portion of the distributions made as provided in this subsection and
subsection (b) of this section, except distributions made in
connection with bonds issued under subsection (d) (e) of this
section, may be used to pay debt service on bonded indebtedness
until after the Legislature expressly authorizes issuance of the
bonds and payment of debt service on the bonds through statutory
enactment or the adoption of a concurrent resolution by both houses of the Legislature. Until subsequent legislative enactment or
adoption of a resolution that expressly authorizes issuance of the
bonds and payment of debt service on the bonds with funds
distributed under this subsection and subsection (b) of this
section, except distributions made in connection with bonds issued
under subsection (d) of this section, the distributions may be used
only to fund capital improvements that are not financed by bonds and
only pursuant to appropriation of the Legislature.
_____(d) For the fiscal year beginning July 1, 2009, and subsequent
fiscal years, the commission shall deposit: (1) $65 million into
the General Purpose Account to be expended pursuant to appropriation
of the Legislature; (2) $29 million into the Education Improvement
Fund for appropriation by the Legislature to the PROMISE Scholarship
Fund created in section seven, article seven, chapter eighteen-c of
this code; (3) $19 million into the Economic Development Project
Fund created in subsection (e) of this section for the issuance of
revenue bonds and to be spent in accordance with the provisions of
said subsection; (4) $19 million into the Excess Lottery School
Building Debt Service Fund created in section six, article nine-d,
chapter eighteen of this code; (5) $40 million into the West
Virginia Infrastructure Fund created in section nine, article
fifteen-a, chapter thirty-one of this code to be spent in accordance
with the provisions of said article; (6) $10 million into the Higher Education Improvement Fund for Higher Education; and (7) $5 million
into the State Park Improvement Fund for Park Improvements. No
portion of the distributions made as provided in this subsection and
subsection (b) of this section, except distributions made in
connection with bonds issued under subsection (e) of this section,
may be used to pay debt service on bonded indebtedness until after
the Legislature expressly authorizes issuance of the bonds and
payment of debt service on the bonds through statutory enactment or
the adoption of a concurrent resolution by both houses of the
Legislature. Until subsequent legislative enactment or adoption of
a resolution that expressly authorizes issuance of the bonds and
payment of debt service on the bonds with funds distributed under
this subsection and subsection (b) of this section, except
distributions made in connection with bonds issued under subsection
(e) of this section, the distributions may be used only to fund
capital improvements that are not financed by bonds and only
pursuant to appropriation of the Legislature.
_____(d) (e) The Legislature finds and declares that in order to
attract new business, commerce and industry to this state, to retain
existing business and industry providing the citizens of this state
with economic security and to advance the business prosperity of
this state and the economic welfare of the citizens of this state,
it is necessary to provide public financial support for constructing, equipping, improving and maintaining economic
development projects, capital improvement projects and
infrastructure which promote economic development in this state.
(1) The West Virginia Economic Development Authority created
and provided for in article fifteen, chapter thirty-one of this code
shall, by resolution, in accordance with the provisions of this
article and article fifteen, chapter thirty-one of this code, and
upon direction of the Governor, issue revenue bonds of the Economic
Development Authority in no more than two series to pay for all or
a portion of the cost of constructing, equipping, improving or
maintaining projects under this section or to refund the bonds at
the discretion of the authority. Any revenue bonds issued on or
after July 1, 2002, which are secured by state excess lottery
revenue proceeds shall mature at a time or times not exceeding
thirty years from their respective dates. The principal of and the
interest and redemption premium, if any, on the bonds shall be
payable solely from the special fund provided in this section for
the payment.
(2) There is continued in the State Treasury a The special
revenue fund named the Economic Development Project Fund into which
shall be is deposited on and after July 1, 2002, the amounts to be
deposited in said the fund as specified in subsections (b), and (c)
and (d) of this section is continued. The Economic Development Project Fund shall consist of all such moneys, all appropriations
to the fund, all interest earned from investment of the fund and any
gifts, grants or contributions received by the fund. All amounts
deposited in the fund shall be pledged to the repayment of the
principal, interest and redemption premium, if any, on any revenue
bonds or refunding revenue bonds authorized by this section,
including any and all commercially customary and reasonable costs
and expenses which may be incurred in connection with the issuance,
refunding, redemption or defeasance thereof of the bonds. The West
Virginia Economic Development Authority may further provide in the
resolution and in the trust agreement for priorities on the revenues
paid into the Economic Development Project Fund as may be that are
necessary for the protection of the prior rights of the holders of
bonds issued at different times under the provisions of this
section. The bonds issued pursuant to this subsection shall be
separate from all other bonds which may be or have been issued, from
time to time, under the provisions of this article.
(3) After the West Virginia Economic Development Authority has
issued bonds authorized by this section and after the requirements
of all funds have been satisfied, including any coverage and reserve
funds established in connection with the bonds issued pursuant to
this subsection, any balance remaining in the Economic Development
Project Fund may be used for the redemption of any of the outstanding bonds issued under this subsection which, by their
terms, are then redeemable or for the purchase of the outstanding
bonds at the market price, but not to exceed the price, if any, at
which redeemable, and all bonds redeemed or purchased shall be
immediately canceled and shall not again be issued.
(4) Bonds issued under this subsection shall state on their
face that the bonds do not constitute a debt of the State of West
Virginia; that payment of the bonds, interest and charges thereon
cannot become an obligation of the State of West Virginia; and that
the bondholders' remedies are limited in all respects to the Special
Revenue Fund established in this subsection for the liquidation of
the bonds.
(5) The West Virginia Economic Development Authority shall
expend the bond proceeds from the revenue bond issues authorized and
directed by this section for such projects as may be certified under
the provision of this subsection: Provided, That the bond proceeds
shall be expended in accordance with the requirements and provisions
of article five-a, chapter twenty-one of this code and either
article twenty-two or twenty-two-a, chapter five of this code, as
the case may be: Provided, however, That if such the bond proceeds
are expended pursuant to article twenty-two-a, chapter five of this
code and if the Design-Build Board created under said article
determines that the execution of a design-build contract in connection with a project is appropriate pursuant to the criteria
set forth in said article and that a competitive bidding process was
used in selecting the design builder and awarding such the contract,
such the determination shall be conclusive for all purposes and
shall be deemed considered to satisfy all the requirements of said
article.
(6) For the purpose of certifying the projects that will
receive funds from the bond proceeds, a committee is hereby
established and comprised of the Governor, or his or her designee,
the Secretary of the Department of Revenue, the Executive Director
of the West Virginia Development Office and six persons appointed
by the Governor: Provided, That at least one citizen member must
be from each of the state's three congressional districts. The
committee shall meet as often as necessary and make certifications
from bond proceeds in accordance with this subsection. The
committee shall meet within thirty days of the effective date of
this section.
(7) Applications for grants submitted on or before July 1,
2002, shall be considered refiled with the committee. Within ten
days from the effective date of this section as amended in the year
2003, the lead applicant shall file with the committee any
amendments to the original application that may be necessary to
properly reflect changes in facts and circumstances since the application was originally filed with the committee.
(8) When determining whether or not to certify a project, the
committee shall take into consideration the following:
(A) The ability of the project to leverage other sources of
funding;
(B) Whether funding for the amount requested in the grant
application is or reasonably should be available from commercial
sources;
(C) The ability of the project to create or retain jobs,
considering the number of jobs, the type of jobs, whether benefits
are or will be paid, the type of benefits involved and the
compensation reasonably anticipated to be paid persons filling new
jobs or the compensation currently paid to persons whose jobs would
be retained;
(D) Whether the project will promote economic development in
the region and the type of economic development that will be
promoted;
(E) The type of capital investments to be made with bond
proceeds and the useful life of the capital investments; and
(F) Whether the project is in the best interest of the public.
(9) No A grant may not be awarded to an individual or other
private person or entity. Grants may be awarded only to an agency, instrumentality or political subdivision of this state or to an
agency or instrumentality of a political subdivision of this state.
The project of an individual or private person or entity may
be certified to receive a low-interest loan paid from bond proceeds.
The terms and conditions of the loan, including, but not limited to,
the rate of interest to be paid and the period of the repayment,
shall be determined by the Economic Development Authority after
considering all applicable facts and circumstances.
(10) Prior to making each certification, the committee shall
conduct at least one public hearing, which may be held outside of
Kanawha County. Notice of the time, place, date and purpose of the
hearing shall be published in at least one newspaper in each of the
three congressional districts at least fourteen days prior to the
date of the public hearing.
(11) The committee may not certify a project unless the
committee finds that the project is in the public interest and the
grant will be used for a public purpose. For purposes of this
subsection, projects in the public interest and for a public purpose
include, but are not limited to:
(A) Sports arenas, fields, parks, stadiums and other sports and
sports-related facilities;
(B) Health clinics and other health facilities;
(C) Traditional infrastructure, such as water and wastewater
treatment facilities, pumping facilities and transmission lines;
(D) State-of-the-art telecommunications infrastructure;
(E) Biotechnical incubators, development centers and
facilities;
(F) Industrial parks, including construction of roads, sewer,
water, lighting and other facilities;
(G) Improvements at state parks, such as construction,
expansion or extensive renovation of lodges, cabins, conference
facilities and restaurants;
(H) Railroad bridges, switches and track extension or spurs on
public or private land necessary to retain existing businesses or
attract new businesses;
(I) Recreational facilities, such as amphitheaters, walking and
hiking trails, bike trails, picnic facilities, restrooms, boat
docking and fishing piers, basketball and tennis courts, and
baseball, football and soccer fields;
(J) State-owned buildings that are registered on the National
Register of Historic Places;
(K) Retail facilities, including related service, parking and
transportation facilities, appropriate lighting, landscaping and
security systems to revitalize decaying downtown areas; and
(L) Other facilities that promote or enhance economic
development, educational opportunities or tourism opportunities
thereby promoting the general welfare of this state and its
residents.
(12) Prior to the issuance of bonds under this subsection, the
committee shall certify to the Economic Development Authority a list
of those certified projects that will receive funds from the
proceeds of the bonds. Once certified, the list may not thereafter
be altered or amended other than by legislative enactment.
(13) If any proceeds from sale of bonds remain after paying
costs and making grants and loans as provided in this subsection,
the surplus may be deposited in an account created in the State
Treasury to be known as the Economic Development Project Bridge Loan
Fund to be administered by the Economic Development Authority
created in article fifteen, chapter thirty-one of this code.
Expenditures from the fund are not authorized from collections but
are to be made only in accordance with appropriation by the
Legislature and in accordance with the provisions of article three,
chapter twelve of this code and upon fulfillment of the provisions
of article two, chapter five-a of this code. Loan repayment
amounts, including the portion attributable to interest, shall be
paid into the fund created in this subdivision.
(e) (f) If the commission receives revenues in an amount that
is not sufficient to fully comply with the requirements of
subsections (b), (c), (d) and (h) (i) of this section, the
commission shall first make the distribution to the Economic
Development Project Fund; second, make the distribution or
distributions to the other funds from which debt service is to be
paid; third, make the distribution to the Education Improvement Fund
for appropriation by the Legislature to the PROMISE Scholarship
Fund; and fourth, make the distribution to the General Purpose
Account: Provided, That, subject to the provisions of this
subsection, to the extent such the revenues are not pledged in
support of revenue bonds which are or may be issued, from time to
time, under this section, the revenues shall be distributed on a pro
rata basis.
(f) (g) For the fiscal year beginning on July 1, 2002, and each
Each fiscal year thereafter, the commission shall, after meeting the
requirements of subsections (b), (c), (d) and (h) (i) of this
section and after transferring to the State Lottery Fund created
under section eighteen of this article an amount equal to any
transfer from the State Lottery Fund to the Excess Lottery Fund
pursuant to subsection (f), section eighteen of this article,
deposit fifty percent of the amount by which annual gross revenue
deposited in the State Excess Lottery Revenue Fund exceeds $225 million in a fiscal year in a separate account in the State Lottery
Fund to be available for appropriation by the Legislature.
(g) (h) When bonds are issued for projects under subsection (d)
(e) of this section or for the School Building Authority,
infrastructure, higher education or park improvement purposes
described in this section that are secured by profits from lotteries
deposited in the State Excess Lottery Revenue Fund, the Lottery
Director shall allocate first to the Economic Development Project
Fund an amount equal to one tenth of the projected annual principal,
interest and coverage requirements on any and all revenue bonds
issued, or to be issued, on or after July 1, 2002, as certified to
the Lottery Director; and second, to the fund or funds from which
debt service is paid on bonds issued under this section for the
School Building Authority, infrastructure, higher education and park
improvements an amount equal to one tenth of the projected annual
principal, interest and coverage requirements on any and all revenue
bonds issued, or to be issued, on or after April 1, 2002, as
certified to the Lottery Director. In the event there are
insufficient funds available in any month to transfer the amounts
required pursuant to this subsection, the deficiency shall be added
to the amount transferred in the next succeeding month in which
revenues are available to transfer the deficiency.
(h) (i) In fiscal year 2004 and thereafter, prior Prior to the distributions provided in subsection (c) (d) of this section, the
Lottery Commission shall deposit into the General Revenue Fund
amounts necessary to provide reimbursement for the refundable credit
allowable under section twenty-one, article twenty-one, chapter
eleven of this code.
(i) (j) (1) The Legislature considers the following as
priorities in the expenditure of any surplus revenue funds:
(A) Providing salary and/or increment increases for
professional educators and public employees;
(B) Providing adequate funding for the Public Employees
Insurance Agency; and
(C) Providing funding to help address the shortage of qualified
teachers and substitutes in areas of need, both in number of
teachers and in subject matter areas.
(2) The provisions of this subsection may not be construed by
any court to require any appropriation or any specific appropriation
or level of funding for the purposes set forth in this subsection.
(j) (k) The Legislature further directs the Governor to focus
resources on the creation of a prescription drug program for senior
citizens by pursuing a Medicaid waiver to offer prescription drug
services to senior citizens; by investigating the establishment of
purchasing agreements with other entities to reduce costs; by providing discount prices or rebate programs for seniors; by
coordinating programs offered by pharmaceutical manufacturers that
provide reduced cost or free drugs; by coordinating a collaborative
effort among all state agencies to ensure the most efficient and
cost-effective program possible for the senior citizens of this
state; and by working closely with the state's congressional
delegation to ensure that a national program is implemented. The
Legislature further directs that the Governor report his or her
progress back to the Joint Committee on Government and Finance on
an annual basis beginning in November 2001 until a comprehensive
program has been fully implemented.
;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373--A Bill
to
repeal §18C-7-8 of the Code of West Virginia, 1931, as amended;
to amend said code by adding thereto a new section, designated §18B-
1D-9; to amend and reenact §18B-2A-1 of said code;
to
amend and
reenact §18C-1-1, §18C-1-4 and §18C-1-5 of said code; to amend and
reenact §18C-7-3, §18C-7-4, §18C-7-5, §18C-7-6 and §18C-7-7 of said
code; and to amend and reenact §29-22-18a of said code, all relating
to higher education in West Virginia generally; requiring training and development opportunities for members of the Higher Education
Policy Commission, the Council for Community and Technical College
Education and the institutional governing boards; revising criteria
for membership of certain institutional governing board and
designating the manner in which the membership is determined;
requiring the Governor to consider certain factors and seek a
certain balance when appointing members; reconstituting the Higher
Education Student Financial Aid Advisory Board; providing for member
appointments; setting forth member qualifications and terms of
office; setting forth duties of the advisory board; modifying
conditions upon which students who attended high school outside the
state may be eligible for certain financial aid;
dissolving the
PROMISE Scholarship Board and transferring its powers and duties to
the Higher Education Policy Commission and under the administration
of the Vice Chancellor for Administration; requiring the Vice
Chancellor for Administration to submit an annual report; defining
terms; authorizing investment of certain funds with the West
Virginia Investment Management Board; increasing the aggregate and
excess lottery amounts the Legislature intends to allocate to
PROMISE Scholarship Program for certain fiscal years; setting a
minimum amount for the PROMISE scholarship annual award and
authorizing the Higher Education Policy Commission to provide annual
awards greater than the minimum under certain circumstances if funds are available; increasing flexibility for adjusting requirements to
receive a PROMISE scholarship;
providing conditions under which
PROMISE scholarship annual awards are continued to certain students
under certain circumstances; establishing citizenship and legal
immigrant conditions of eligibility for a PROMISE scholarship;
clarifying that a PROMISE scholarship may supplement certain tuition
and fee waivers; and authorizing the Higher Education Policy
Commission to promulgate rules.
Respectfully submitted,
William R. Laird IV, Chair, Mike Green, Michael A. Oliverio II,
Ron Stollings, Jesse O. Guills, Conferees on the part of the Senate.
Larry A. Williams, Chair, Robert D. Beach, John Doyle (Did not
sign), Everette W. Anderson, Jr., Roger Romine (Did not sign),
Conferees on the part of the House of Delegates.
Senator Laird, Senate cochair of the committee of conference,
was recognized to explain the report.
Following a point of inquiry to the President, with resultant
response thereto,
Thereafter, on motion of Senator Laird, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 373, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: Hall--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for Com. Sub. for S. B. No. 373) passed with its conference
amended title.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question,
the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: Hall--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for Com. Sub. for S. B. No. 373) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Snyder, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Senate Bill No. 767, Relating to certain Medicaid program
contracts.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the House to Engrossed Senate Bill
No. 767 having met, after full and free conference, have agreed to
recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the House of Delegates, striking out everything
after the enacting clause, and agree to the same as follows:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §9-2-9b; and that §9-4-3
of said code be amended and reenacted, all to read as follows:
ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, AND OFFICE OF
COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND RESPONSIBILITIES GENERALLY.
§9-2-9b. Contract procedure for the Medicaid program.
(a) The secretary is authorized to execute a contract to
implement professional health care, managed care, actuarial and
health care-related monitoring, quality review/utilization, claims
processing and independent professional consultant contracts for the
Medicaid program.
(b) The provisions of article three, chapter five-a of this
code do not apply to contracts set out in subsection (a) of this
section: Provided, That the secretary shall comply with the
requirements set forth in this section.
(c) The secretary shall develop procedures and requirements for
competitive bidding and the awarding of contracts set out in
subsection (a) of this section, which procedures and requirements
shall include, but are not limited to, the following:
(1) Submitting public notice bids;
(2) The general terms and conditions for the contract;
(3) Awarding contracts;
(4) The description of the commodities and services required
for the contract, stated with sufficient clarity to assure that
there is a comprehensive understanding of the contact's scope and
requirements; and
(5) Contract management procedures which will ensure the
assessment of contractor performance and compliance with contract
requirements on a regular basis as appropriate for the specific
contract, and no less frequently than on an annual basis for any
contract awarded pursuant to the provisions of this section.
(d) The awarding of the contract may be based on:
(1) Best value;
(2) Low bid;
(3) Sole source; or
(4) Any other basis the secretary chooses to award or reject
the bid: Provided, That the secretary shall document the basis of
any decision made pursuant to the provisions of this subsection.
(e) The secretary may employ the services of independent
professional consultants to assist in preparing solicitations or for
the evaluation of any responses to such solicitations: Provided,
That the independent professional consultant, or member of his or
her immediate family, or business with which he or she is
associated, may not have any interest in the profits or benefits of
the contract for which he or she may participate in the preparation
of the solicitation or in the evaluation of the response.
(f) The secretary may terminate any contract with thirty days'
prior written notice.
ARTICLE 4. STATE ADVISORY BOARD; MEDICAL SERVICES FUND; ADVISORY
COUNCIL; GENERAL RELIEF FUND.
§9-4-3. Advisory council.
(a) The advisory council, created by chapter one hundred
forty-three, Acts of the Legislature, regular session, 1953, as an
advisory body to the State Medicaid Agency with respect to the
medical services fund and disbursements therefrom and to advise
about health and medical services, is continued so long as the
medical services fund remains in existence, and thereafter so long
as the State Medicaid Agency considers the advisory council to be
necessary or desirable, and it is organized as provided by this
section and applicable federal law and has those advisory powers and
duties as are granted and imposed by this section and elsewhere by
law. Provided, That the continuation of the advisory council is
subject to a preliminary performance review pursuant to the
provisions of article ten, chapter four of this code, evaluating the
effectiveness and efficiency of the advisory council, to be
conducted during the interim of the Legislature in the year 2006 by
the Joint Committee on Government Operations.
The term of office of those members serving on the advisory
council, on the effective date of the amendments made to this
section by the Legislature during its regular session in the year 1998, shall continue until they are reappointed or replaced in
accordance with the provisions of this section.
(b) The advisory council shall consist of not less than nine
members, nor more than thirteen 15 members, all but two four of whom
shall be appointed by the State Medicaid Agency and serve until
replaced or reappointed on a rotating basis.
(c) (1) The heads of the Public Health and Public Welfare
Agencies Bureau of Public Health and Bureau for Medical Services are
members ex officio.
_____(2) The cochairs of the Legislative Oversight Commission on
Health and Human Resources Accountability, or their designees, are
nonvoting ex officio members.
_____(3) The remaining members comprising the council consist of:
(A) a person One member of recognized ability in the field of
medicine and surgery with respect to whose appointment the State
Medical Association shall be afforded the opportunity of making
nomination of three qualified persons;
(B) One member shall be a person of recognized ability in the
field of dentistry with respect to whose appointment the State
Dental Association shall be afforded the opportunity of nominating
three qualified persons;
(C) One member chosen from a list of three persons nominated by the West Virginia Primary Care Association;
_____(D) One member chosen from a list of three persons nominated
by the Behavioral Health Providers Association of West Virginia; and
(E) The remaining members shall be chosen from persons of
recognized ability in the fields of hospital administration, nursing
and allied professions and from consumers groups, including Medicaid
recipients, members of the West Virginia Directors of Senior and
Community Services, labor unions, cooperatives and
consumer-sponsored prepaid group practices plans.
(d) The council shall meet on call of the State Medicaid
Agency.
(e) Each member of the advisory council shall receive
reimbursement for reasonable and necessary travel expenses for each
day actually served in attendance at meetings of the council in
accordance with the state's travel regulations. Requisitions for
the expenses shall be accompanied by an itemized statement, which
shall be filed with the Auditor and preserved as a public record.
(f) The advisory council shall assist the State Medicaid Agency
in the establishment of rules, standards and bylaws necessary to
carry out the provisions of this section and shall serve as
consultants to the State Medicaid Agency in carrying out the
provisions of this section.
;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Senate Bill No. 767--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §9-2-9b; and to amend and reenact
§9-4-3 of said code,
all
relating to State Medicaid Agency; exempting certain contracts
for the Medicaid program from the competitive bid process of the
Division of Purchasing; establishing procedures and requirements for
competitive bidding and the awarding of such contracts by the
Secretary of the Department of Health and Human Resources; and
adding two members to the advisory council of the State Medicaid
Agency.
Respectfully submitted,
Herb Snyder, Chair, Joseph M. Minard, Dave Sypolt, Conferees
on the part of the Senate.
Jim Morgan, Chair, Don C. Perdue, Carol Miller, Conferees on
the part of the House of Delegates.
On motions of Senator Snyder, severally made, the report of the
committee of conference was taken up for immediate consideration and
adopted.
Engrossed Senate Bill No. 767, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 767) passed with its conference amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 767) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Unger, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 498, Relating
to early childhood education
.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the House to Engrossed Committee
Substitute for Committee Substitute for Senate Bill No. 498 having
met, after full and free conference, have agreed to recommend and
do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the House of Delegates, striking out everything
after the enacting clause, and agree to the same as follows:
That §18-5-44 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be further amended by
adding thereto a new article, designated §49-2E-1, §49-2E-2,
§49-2E-3 and §49-2E-4
, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-44. Early childhood education programs.
(a) For the purposes of this section, "early childhood
education" means programs for children who have attained the age of
four prior to September 1 of the school year in which the pupil
enters the program created in this section.
(b)
Findings. --
(1) Among other positive outcomes, early childhood education
programs have been determined to:
(A) Improve overall readiness when children enter school;
(B) Decrease behavioral problems;
(C) Improve student attendance;
(D) Increase scores on achievement tests;
(E) Decrease the percentage of students repeating a grade; and
(F) Decrease the number of students placed in special education
programs.
(2) Quality early childhood education programs improve school
performance and low-quality early childhood education programs may
have negative effects, especially for at-risk children;
(3) West Virginia has the lowest percentage of its adult population
twenty-five years of age or older with a
college
bachelor's degree and the education level of parents is a strong
indicator of how their children will perform in school;
(4)
During the 2006-2007 school year, West Virginia
currently
ranks forty-fourth ranked thirty-ninth among the fifty states in the
percentage of school children eligible for free and reduced lunches
and this percentage is a strong indicator of how the children will
perform in school;
(5) For the school year
two thousand one-two thousand two
2008-2009, six thousand eight hundred fifty-three thirteen thousand
one hundred thirty-five students
less than five years of age were
enrolled in
the public schools prekindergarten, a number equal to
approximately
thirty-three sixty-three percent of the number of
five-year-old students enrolled in kindergarten;
(6)
Excluding projected increases due to increases in
enrollment in the early childhood education program, projections
indicate that total student enrollment in West Virginia will decline
by
as much as eighteen percent one percent, or by approximately
fifty thousand two thousand seven hundred four students, by the
school year 2012-2013;
(7) In part, because of the dynamics of the state aid formula,
county boards will continue to enroll four-year-old students to offset the declining enrollments;
(8) West Virginia has a comprehensive kindergarten program for
five-year-olds, but the program was established in a manner that
resulted in unequal implementation among the counties which helped
create deficit financial situations for several county
school
boards;
(9) Expansion of current efforts to implement a comprehensive
early childhood education program should avoid the problems
encountered in kindergarten implementation;
(10) Because of the dynamics of the state aid formula, counties
experiencing growth are at a disadvantage in implementing
comprehensive early childhood education programs; and
(11) West Virginia citizens will benefit from the establishment
of quality comprehensive early childhood education programs.
(c) Beginning no later than the school year 2012-2013, and
continuing thereafter, county boards shall provide early childhood
education programs for all children who have attained the age of
four prior to September 1 of the school year in which the pupil
enters the early childhood education program.
(d) The program shall meet the following criteria:
(1) It shall be voluntary, except, upon enrollment, the
provisions of section one, article eight of this chapter
shall apply to an enrolled student; and
(2) It may be for fewer than five days per week and may be less
than full day.
(e) Enrollment of students in Head Start, in any other program
approved by the state superintendent as provided in subsection (k)
of this section shall be counted toward satisfying the requirement
of subsection (c) of this section.
(f) For the purposes of implementation financing, all counties
are encouraged to make use of funds from existing sources,
including:
(1) Federal funds provided under the Elementary and Secondary
Education Act pursuant to 20 U. S. C. §6301,
et seq.;
(2) Federal funds provided for Head Start pursuant to 42 U. S.
C. §9831,
et seq.;
(3) Federal funds for temporary assistance to needy families
pursuant to 42 U. S. C. §601,
et seq.;
(4) Funds provided by the School Building Authority pursuant
to article nine-d of this chapter;
(5) In the case of counties with declining enrollments, funds
from the state aid formula above the amount indicated for the number
of students actually enrolled in any school year; and
(6) Any other public or private funds.
(g)
Prior to the school year beginning two thousand three, each
Each county
board shall develop a plan for implementing the program
required by this section. The plan shall include the following
elements:
(1) An analysis of the demographics of the county related to
early childhood education program implementation;
(2) An analysis of facility and personnel needs;
(3) Financial requirements for implementation and potential
sources of funding to assist implementation;
(4) Details of how the county board will cooperate and
collaborate with other early childhood education programs including,
but not limited to, Head Start, to maximize federal and other
sources of revenue;
(5) Specific time lines for implementation; and
(6)
Such Any other items
as the state board
may require by
policy
may require.
(h)
Prior to the school year beginning two thousand three a A
county board shall submit its plan to the Secretary of the
Department of Health and Human Resources. The secretary shall
approve the plan if the following conditions are met:
(1) The county
board has maximized the use of federal and other
available funds for early childhood programs;
(2) The county
board has provided for the maximum
implementation of Head Start programs and other public and private
programs approved by the state superintendent pursuant to the terms
of subsection (k) of this section; and
(3) If the Secretary of the Department of Health and Human
Resources finds that the county
board has not met one or more of the
requirements of this subsection, but that the county
board has acted
in good faith and the failure to comply was not the primary fault
of the county board, then the secretary shall approve the plan. Any
denial by the secretary may be appealed to the circuit court of the
county in which the county board is located.
(i)
Prior to the school year beginning two thousand three the
The county board shall submit its plan for approval to the state
board. The state board shall approve the plan if the county board
has complied substantially with the requirements of subsection (g)
of this section and has obtained the approval required in subsection
(h) of this section.
(j) Every county board shall submit its plan for reapproval by
the Secretary of the Department of Health and Human Resources and
by the state board at least every two years after the initial approval of the plan and until full implementation of the early
childhood education program in the county. As part of the
submission, the county board shall provide a detailed statement of
the progress made in implementing its plan. The standards and
procedures provided for the original approval of the plan apply to
any reapproval.
(k)
Commencing with the school year beginning on July 1, 2004,
and thereafter, no A county board may
not increase the total number
of students enrolled in the county in an early childhood program
until its program is approved by the Secretary of the Department of
Health and Human Resources and the state board.
has been granted.
(l) The state board annually may grant a county board a waiver
for total or partial implementation if the state board finds that
all of the following conditions exist:
(1) The county board is unable to comply either because:
(A) It does not have sufficient facilities available; or
(B) It does not and has not had available funds sufficient to
implement the program;
(2) The county has not experienced a decline in enrollment at
least equal to the total number of students to be enrolled; and
(3) Other agencies of government have not made sufficient funds
or facilities available to assist in implementation.
Any county
board seeking a waiver
must shall apply with the
supporting data to meet the criteria for which they are eligible on
or before March 25 for the following school year. The state
superintendent shall grant or deny the requested waiver on or before
April 15 of that same year.
(m) The provisions of subsections (b), (c) and (d), section
eighteen of this article relating to kindergarten
shall apply to
early childhood education programs in the same manner in which they
apply to kindergarten programs.
(n)
On or before the first day of December, two thousand four
and each year thereafter, Annually, the state board shall report to
the Legislative Oversight Commission on Education Accountability on
the progress of implementation of this section.
(o)
During or after the school year beginning in two thousand
four and except Except as
may be required by federal law or
regulation, no county
shall board may enroll students who will be
less than four years of age prior to September 1 for the year they
enter school.
(p) Neither the state board nor the state department may
provide any funds to any county
board for the purpose of
implementing this section unless the county board has a plan
approved pursuant to subsections (h), (i) and (j) of this section.
(q) The state board shall promulgate a rule in accordance with
the provisions of article three-b, chapter twenty-nine-a of this
code for the purposes of implementing the provisions of this
section. The state board shall consult with the Secretary of the
Department of Health and Human Resources in the preparation of the
rule. The rule shall contain the following:
(1) Standards for curriculum;
(2) Standards for preparing students;
(3) Attendance requirements;
(4) Standards for personnel; and
(5)
Such Any other terms
as may be necessary to implement the
provisions of this section.
(r) The rule shall include the following elements relating to
curriculum standards:
(1) A requirement that the curriculum be designed to address
the developmental needs of four-year-old children, consistent with
prevailing research on how children learn;
(2) A requirement that the curriculum be designed to achieve
long-range goals for the social, emotional, physical and academic
development of young children;
(3) A method for including a broad range of content that is relevant, engaging and meaningful to young children;
(4) A requirement that the curriculum incorporate a wide
variety of learning experiences, materials and equipment, and
instructional strategies to respond to differences in prior
experience, maturation rates and learning styles that young children
bring to the classroom;
(5) A requirement that the curriculum be designed to build on
what children already know in order to consolidate their learning
and foster their acquisition of new concepts and skills;
(6) A requirement that the curriculum meet the recognized
standards of the relevant subject matter disciplines;
(7) A requirement that the curriculum engage children actively
in the learning process and provide them with opportunities to make
meaningful choices;
(8) A requirement that the curriculum emphasize the development
of thinking, reasoning, decision-making and problem-solving skills;
(9) A set of clear guidelines for communicating with parents
and involving them in decisions about the instructional needs of
their children; and
(10) A systematic plan for evaluating program success in
meeting the needs of young children and for helping them to be ready
to succeed in school.
(s)
On or before the second day of January, two thousand four
the The secretary and the state superintendent
shall submit a report
to the Legislative Oversight Commission on Education Accountability
and the Joint Committee on Government and Finance which
address
addresses, at a minimum, the following issues:
(1) A summary of the approved county plans for providing the
early childhood education programs pursuant to this section;
(2) An analysis of the total cost to the state and
counties
county boards of implementing the plans;
(3) A separate analysis of the impact of the plans on counties
with increasing enrollment; and
(4) An analysis of the effect of the programs on the
maximization of the use of federal funds for early childhood
programs.
The intent of this subsection is to enable the Legislature to
proceed in a fiscally responsible manner, make any
necessary program
improvements
as may be necessary based on reported information prior
to implementation of the early childhood education programs.
(t) After the school year 2012-2013, on or before July 1 of
each year, each county board shall report the following information
to the Secretary of the Department of Health and Human Resources and
the state superintendent:
_____(1) Documentation indicating the extent to which county boards
are maximizing resources by using the existing capacity of
community-based programs, including, but not limited to, Head Start
and child care; and
_____(2) For those county boards that are including eligible
children attending approved, contracted community-based programs in
their net enrollment for the purposes of calculating state aid
pursuant to article nine-a of this chapter, documentation that the
county board is equitably distributing funding for all children
regardless of setting.
CHAPTER 49. CHILD WELFARE.
ARTICLE 2E. QUALITY RATING AND IMPROVEMENT SYSTEM.
§49-2E-1. Findings and intent; advisory council.
(a) The Legislature finds that:
(1) High quality early childhood development substantially
improves the intellectual and social potential of children and
reduces societal costs;
(2) A child care program quality rating and improvement system
provides incentives and resources to improve the quality child care
programs; and
(3) A child care program quality rating and improvement system
provides information about the quality of child care programs to parents so they may make more informed decisions about the placement
of their children.
(b) It is the intent of the Legislature to require the
Secretary of the Department of Health and Human Resources promulgate
a legislative rule and establish a plan for the phased
implementation of a child care program quality rating and
improvement system not inconsistent with the provisions of this
article.
(c) The Secretary of the Department of Health and Human
Resources shall create a Quality Rating and Improvement System
Advisory Council to provide advice on the development of the rule
and plan for the phased implementation of a child care program
quality rating and improvement system and the on-going program
review and policies for quality improvement. The secretary shall
facilitate meetings of the advisory council. The advisory council
shall include representatives from the provider community, advocacy
groups, the Legislature, providers of professional development
services for the early childhood community, regulatory agencies and
others who may be impacted by the creation of a quality rating and
improvement system.
(d) Nothing in this article requires an appropriation, or any
specific level of appropriation, by the Legislature.
§49-2E-2. Creation of statewide quality rating system; legislative
rule required; minimum provisions.
(a) The Secretary of the Department of Health and Human
Resources shall propose rules for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of this
code to implement a quality rating and improvement system. The
quality rating and improvement system shall be applicable to
licensed child care centers and facilities and registered family
child care homes. If other types of child care settings such as
school-age child care programs become licensed after the
implementation of a statewide quality rating and improvement system,
the secretary may develop quality criteria and incentives that will
allow the other types of child care settings to participate in the
quality rating and improvement system. The rules shall include, but
are not limited to, the following:
(1) A four star rating system for registered family child care
homes and a four star rating system for all licensed programs,
including family child care facilities and child care centers, to
easily communicate to consumers four progressively higher levels of
quality child care. One star indicating meeting the minimum
acceptable standard and four stars indicating meeting or exceeding
the highest standard. The system shall reflect the cumulative
attainment of the standards at each level and all lesser levels: Provided, That any program accredited by the National Association
for the Education of Young Children or the National Association for
Family Child Care, as applicable, shall automatically be awarded
four star status;
(2) Program standards for registered family child care homes
and program standards for all licensed programs, including family
child care facilities and child care centers, that are each divided
into four levels of attributes that progressively improve the
quality of child care beginning with basic state registration and
licensing requirements at level one, through achievement of a
national accreditation by the appropriate organization at level
four. Participation beyond the first level is voluntary. The
program standards shall be categorized using the West Virginia State
Training and Registry System Core Knowledge Areas or its equivalent;
(3) Accountability measures that provide for a fair, valid,
accurate and reliable assessment of compliance with quality
standards, including, but not limited to:
(A) Evaluations conducted by trained evaluators with
appropriate early childhood education and training on the selected
assessment tool and with a demonstrated inter-rater reliability of
eighty-five percent or higher. The evaluations shall include an
on-site inspection conducted at least annually to determine whether programs are rated correctly and continue to meet the appropriate
standards. The evaluations and observations shall be conducted on
at least a statistically valid percentage of center classrooms, with
a minimum of one class per age group;
(B) The use of valid and reliable observation and assessment
tools, such as environmental rating scales for early childhood,
infant and toddler, school-age care and family child care as
appropriate for the particular setting and age group;
(C) An annual self-assessment using the proper observation and
assessment tool for programs rated at two stars; and
(D) Model program improvement planning shall be designed to
help programs improve their evaluation results and level of program
quality.
(b) The rules required pursuant to this section shall include
policies relating to the review, reduction, suspension or
disqualification of child care programs from the quality rating and
improvement system.
(c) The rules shall provide for implementation of the statewide
quality rating system effective July 1, 2011, subject to section
four of this article.
§49-2E-3. Creation of statewide quality improvement system;
financial plan to support implementation and quality improvement required as part of rules.
Attached to the proposed rules required in section two of this
article, the Secretary of the Department of Health and Human
Resources shall submit a financial plan to support the
implementation of a statewide quality rating and improvement system
and help promote quality improvement. The financial plan shall be
considered a part of the rule and shall include specific proposals
for implementation of the provisions of this section as determined
by the secretary. The plan shall address, but is not limited to,
the following:
(1) State agency staffing requirements, including, but not
limited to:
(A) Highly trained evaluators to monitor the assessment process
and ensure inter-rater reliability of eighty-five percent or higher;
(B) Technical assistance staff responsible for career advising,
accreditation support services, improvement planning, portfolio
development and evaluations for improvement planning only. The goal
for technical assistance staffing is to ensure that individualized
technical assistance is available to participating programs;
(C) A person within the department to collaborate with other
professional development providers to maximize funding for training,
scholarships and professional development. The person filling this position also shall encourage community and technical colleges to
provide courses through nontraditional means such as online
training, evening classes and off-campus training;
(D) Additional infant and toddler specialists to provide high
level professional development for staff caring for infants and to
provide on-site assistance with infant and toddler issues;
(E) At least one additional training specialist at each of the
child care resource and referral agencies to support new training
topics and to provide training for school-age child care programs.
Training providers such as the child care resource and referral
agencies shall purchase new training programs on topics such as
business management, the Devereux Resiliency Training and Mind in
the Making; and
(F) Additional staff necessary for program administration;
(2) Implementation of a broad public awareness campaign and
communication strategies that may include, but are not limited to:
(A) Brochures, internet sites, posters, banners, certificates,
decals and pins to educate parents; and
(B) Strategies such as earned media campaigns, paid advertising
campaigns, e-mail and internet-based outreach, face-to-face
communication with key civic groups and grassroots organizing
techniques; and
(3) Implementation of an internet-based management information
system that meets the following requirements:
(A) The system shall allow for multiple agencies to access and
input data;
(B) The system shall provide the data necessary to determine
if the quality enhancements result in improved care and better
outcomes for children;
(C) The system shall allow access by Department of Health and
Human Resources subsidy and licensing staff, child care resource and
referral agencies, the agencies that provide training and
scholarships, evaluators and the child care programs;
(D) The system shall include different security levels in order
to comply with the numerous confidentiality requirements;
(E) The system shall assist in informing practice; determining
training needs; and tracking changes in availability of care, cost
of care, changes in wages and education levels; and
(F) The system shall provide accountability for child care
programs and recipients and assure funds are being used effectively;
(4) Financial assistance for child care programs needed to
improve learning environments, attain high ratings and sustain long-
term quality without passing additional costs on to families that
may include, but are not limited to:
(A) Assistance to programs in assessment and individual program
improvement planning and providing the necessary information,
coaching and resources to assist programs to increase their level
of quality;
(B) Subsidizing participating programs for providing child care
services to children of low-income families in accordance with the
following:
(i) Base payment rates shall be established at the seventy-
fifth percentile of market rate; and
(ii) A system of tiered reimbursement shall be established
which increases the payment rates by a certain amount above the base
payment rates in accordance with the rating tier of the child care
program;
(C) Two types of grants shall be awarded to child care programs
in accordance with the following:
(i) An incentive grant shall be awarded based on the type of
child care program and the level at which the child care program is
rated with the types of child care programs having more children and
child care programs rated at higher tiers being awarded a larger
grant than the types of child care programs having less children and
child care programs rated at lower tiers; and
(ii) Grants for helping with the cost of national accreditation shall be awarded on an equitable basis.
(5) Support for increased salaries and benefits for program
staff to increase educational levels essential to improving the
quality of care that may include, but are not limited to:
(A) Wage supports and benefits provided as an incentive to
increase child care programs ratings and as an incentive to increase
staff qualifications in accordance with the following:
(i) The cost of salary supplements shall be phased in over a
five-year period;
(ii) The Secretary of the Department of Health and Human
Resources shall establish a salary scale for each of the top three
rating tiers that varies the salary support based on the education
of the care giver and the rating tier of the program; and
(iii) Any center with at least a tier two rating that employs
at least one staff person participating in the scholarship program
required pursuant to paragraph (B) of this subsection or employs
degree staff may apply to the Secretary of the Department of Health
and Human Resources for funding to provide health care benefits
based on the Teacher Education and Compensation Helps model in which
insurance costs are shared among the employees, the employer and the
state; and
(B) The provision of scholarships and establishment of professional development plans for center staff that would promote
increasing the credentials of center staff over a five-year period;
and
(6) Financial assistance to the child care consumers whose
income is at two hundred percent of the federal poverty level or
under to help them afford the increased market price of child care
resulting from increased quality.
§49-2E-4. Quality rating and improvement system pilot projects;
independent third-party evaluation; modification of
proposed rule and financial plan; report to
Legislature; limitations on implementation.
(a) The Secretary of the Department of Health and Human
Resources may promulgate emergency rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code to
implement a quality rating and improvement system in up to five
counties as pilot projects beginning July 1, 2009. The pilot
quality rating and improvement systems shall be in accordance with
the provisions of this article for the statewide system. The
purpose of the pilot projects is to test the rating system, assess
the quality of existing child care providers, provide a basis for
estimating the financial requirements of the various elements of a
statewide system as set forth in this article and to inform future policy decisions. Notwithstanding any provision of this article to
the contrary, the rating or potential rating of a child care
provider participating in the study may not be individually
disclosed. The secretary may modify and develop additional policies
consistent with this article as appropriate.
(b) The secretary shall contract with an independent third-
party evaluator to assist the department and the Quality Rating and
Improvement System Advisory Council with establishing and evaluating
the pilot project quality rating and improvement system and
conducting research on statewide implementation. The Secretary also
may contract with the evaluator for on-going evaluation and research
for quality improvement. The evaluator shall have access to all
project data including data in the management information system
provided for in section two of this article.
(c) The secretary shall report annually to the Legislature on
the progress on development and implementation of a child care
quality rating and improvement system and its impact on improving
the quality of child care in the state. The secretary may propose
amendments to the rules and financial plan necessary to promote
implementation of the quality rating and improvement system and
improve the quality of child care and may recommend needed
legislation. Nothing in this article requires the implementation
of a quality rating and improvement system unless funds are appropriated therefore. The secretary may prioritize the components
of the financial plan for implementation and quality improvement for
funding purposes. If insufficient funds are appropriated for full
implementation of the quality rating and improvement system
beginning on July 1, 2011, the rules shall provide for gradual
implementation over a period of several years.
(d) The Legislature recognizes that expenditures, especially
one-time types of expenditures or expenditures of a limited
duration, may be funded with moneys derived through the American
Recovery and Reinvestment Act of 2009. A study of the cost of
implementing a quality rating and improvement system statewide is
expected to be conducted over the next two years.
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 498--
A Bill
to amend and reenact §18-5-44 of the Code of West Virginia, 1931,
as amended; and to amend said code by adding thereto a new article,
designated §49-2E-1, §49-2E-2, §49-2E-3 and §49-2E-4, all relating
to early childhood; requiring county boards to report certain
information to the Secretary of the Department of Health and Human
Resources and the state superintendent relating to the use of community-based programs to provide early childhood education
services; quality rating and improvement system applicable to
certain child care providers; findings and intent; Secretary of
Department of Health and Human Resources rules; Quality Rating and
Improvement System Advisory Council; statewide quality rating system
rules; statewide implementation; system components; review,
reduction, suspension or disqualification; statewide quality
improvement system; financial plan for implementation and quality
improvement; plan components; pilot projects; third-party evaluator;
reports to Legislature; gradual implementation; conditioning
requirements on legislative appropriation; prioritization of
components for funding; and PIECES advisory council.
Respectfully submitted,
John R. Unger II, Chair, Dan Foster, Ron Stollings, C. Randy
White, Donna J. Boley, Conferees on the part of the Senate.
Scott G. Varner, Chair, David G. Perry, Mary M. Poling,
Everette W. Anderson, Jr., Lynwood Ireland, Conferees on the part
of the House of Delegates.
Senator Unger, Senate cochair of the committee of conference,
was recognized to explain the report.
Following discussion and a point of inquiry to the President,
with resultant response thereto,
Thereafter, on motion of Senator Unger, the report was taken
up for immediate consideration and adopted.
At the request of Senator Caruth, and by unanimous consent, the
remarks by Senator Deem regarding the adoption of the committee of
conference report as to Engrossed Committee Substitute for Committee
Substitute for Senate Bill No. 498 were ordered printed in the
Appendix to the Journal.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 498, as amended by the conference report, was then
put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for Com. Sub. for S. B. No. 498) passed with its conference
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for Com. Sub. for S. B. No. 498) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. House Bill No. 2920, Eliminating the felony conviction for
a second or subsequent conviction of petit larceny.
Whereupon, Senator Jenkins, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. House Bill No. 2920, Eliminating the felony conviction for
a second or subsequent conviction of petit larceny.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed House
Bill No. 2920 having met, after full and free conference, have
agreed to recommend and do recommend to their respective houses, as
follows:
That both houses recede from their respective positions as to
the amendments of the Senate, and that the Senate and House agree
to an amendment as follows:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-6. Punishment of principals in the second degree and
accessories
before and after the fact.
(a) In the case of every felony, every principal in the second
degree and every accessory before the fact shall be punishable as
if he or she were the principal in the first degree; and every
accessory after the fact shall be confined in jail not more than one
year and fined not exceeding $500. But no person in the relation
of husband and wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, or servant to the
offender, who, after the commission of a felony, shall aid or assist
a principal felon, or accessory before the fact, to avoid or escape
from prosecution or punishment shall be deemed an accessory after
the fact.
(b) Notwithstanding the provisions of subsection (a) of this
section, any person who harbors, conceals, maintains or assists the
principal felon after the commission of the underlying offense
violating the felony provisions of sections one, four, or nine of
article two of this chapter, or gives such offender aid knowing that
he or she has committed such felony, with the intent that the
offender avoid or escape detention, arrest, trial or punishment,
shall be considered an accessory after the fact and, upon
conviction, be guilty of a felony and confined in a state
correctional facility for a period not to exceed five years, or a
period of not more than one half of the maximum penalty for the
underlying felony offense, whichever is the lesser maximum term of
confinement. But no person who is a person in the relation of
husband and wife, parent, grandparent, child, grandchild, brother
or sister, whether by consanguinity or affinity, or servant to the
offender shall be considered an accessory after the fact.
;
And,
That the House of Delegates agree to the amendment of the
Senate to the title of the bill.
Respectfully submitted,
Barbara Evans Fleischauer, Chair, John R. Frazier, John N.
Ellem, Conferees on the part of the House of Delegates.
Evan H. Jenkins, Chair, William R. Laird IV, Mike Hall,
Conferees on the part of the Senate.
On motions of Senator Jenkins, severally made, the report of
the committee of conference was taken up for immediate consideration
and adopted.
Engrossed House Bill No. 2920, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, K. Facemyer,
Fanning, Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--32.
The nays were: D. Facemire and Hall--2.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2920) passed with Senate 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 adoption by that body of the committee of conference report,
passage as amended by the conference report, to take effect from
passage, and requested the concurrence of the Senate in the adoption
thereof, as to
Eng. Com. Sub. for House Bill No. 2218, Authorizing the
Department of Transportation to promulgate legislative rules.
Whereupon,
Senator Minard, from the committee of conference on
matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 2218, Authorizing the
Department of Transportation to promulgate legislative rules.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed Committee
Substitute for House Bill No. 2218 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the Senate on page five, section two, after line
fifteen, and that the Senate and House of Delegates agree to an
amendment as follows:
On page two, following "2.25" by striking out the words "off
premise";
On page two, following subsection 2.25, by inserting the
following:
2.25.a. An off-premise CMS may not include moving video or
scrolling messages. Off-premise CMS must comply with all
requirements for off-premise signs generally.
2.25.b. An on-premise CMS may scroll or change message
content, but may not contain flashing images. On-Premise CMS must
comply with all requirements for on-premise signs generally.
2.25.c. No CMS sign, display or device, whether on-premise or
off premise, may be illuminated by any rapid flashing intermittent
light or lights.;
On page fourteen, paragraph 7.4.c.1. following the word
"Division." by inserting the following:
With the prior written approval of the Commissioner of
Highways, a county commission may enact and enforce outdoor
advertising ordinances which place limitations or restrictions on
outdoor advertising signs, displays or devices which are in addition to or more restrictive than the limitations or restrictions provided
by the Commissioner of Highways.;
On page eighteen, paragraph 7.8.d.2., following the word "No"
by inserting the words "off-premise";
On page eighteen, paragraph 7.8.d.4., following the word "No"
by inserting the words "off-premise";
On page eighteen, following "7.8.e.1.", by inserting the words
"Off-premise";
On page eighteen, paragraph 7.8.e.1., following the word "No"
by inserting the words "off-premise";
On page eighteen, following "7.8.e.2.", by inserting the words
"Off-premise";
On page eighteen, following "7.8.e.3.", by inserting the words
"Off-premise";
On page eighteen, paragraph 7.8.e.3., following the word
"another" by inserting the words "off-premise";
On page nineteen, paragraph 7.8.e.4., following the words "may
be modified to" by striking out the word "a" and inserting in lieu
thereof the words "an off-premise";
On page nineteen, paragraph 7.8.e.4., following the word "with"
by inserting the words "off-premise";
On page nineteen, paragraph 7.8.e.4., following the words "may
not be modified to" by striking out the word "a", and inserting in
lieu thereof the words "an off-premise";
On page nineteen, following "7.8.e.7.", by inserting the words
"Off-premise";
On page nineteen, following "7.8.e.8.", by inserting the words
"Off-premise";
On page nineteen, paragraph 7.8.e.8., following the word "way."
by inserting the words "Off-premise";
On page nineteen, paragraph 7.8.e.9., following the word "on"
by inserting the words "off-premise";
On page nineteen, paragraph 7.8.e.10., following the words
"revised to" by striking out the word "a" and inserting the words
"an off-premise";
On page nineteen, paragraph 7.8.e.10., following the words
"become" by striking out the word "a" and inserting the words "an
off-premise";
On page nineteen, paragraph 7.8.e.10., following the word "No"
by inserting the words "off-premise";
On page nineteen, paragraph 7.8.e.11., following the word "No"
by inserting the words "off-premise";
On page twenty, paragraph 7.9.d.8., by striking out the word
"chapter" and inserting in lieu thereof the word "rule";
On page twenty, by striking out paragraph 7.9.d.9. in its
entirety;
On pages twenty and twenty-one, by striking out subparagraph
7.9.d.9.A. in its entirety;
On page twenty-five, subparagraph 7.15.d.4.D, following the
word "any" by inserting the word "rapid";
On page twenty-five, subparagraph 7.15.d.4.D, following the
word "flashing" by striking out the words "intermittent or moving";
On page twenty-five, by striking out subparagraph 7.15.d.4.E.
in its entirety and relettering the remaining subparagraphs; On
pages thirty-one and thirty-two, by striking out subdivision 9.5.h.
in its entirety and inserting in lieu thereof a new subdivision,
designated 9.5.h., to read as follows:
9.5.h. If an application for a roadside memorial sign is
granted, the Commissioner shall so inform the applicant in writing.
Upon the receipt of a non-refundable payment of two hundred dollars
($200), the Division shall procure and install the sign and shall
notify the applicant in writing when the sign has been installed.;
On page thirty-two, by striking out subdivision 9.5.i. in its
entirety and inserting in lieu thereof a new subdivision, designated 9.5.i., to read as follows:
9.5.i. The initial payment of two hundred dollars ($200) shall
compensate the Division for its review of the application, the
installation of the roadside memorial sign and its maintenance for
a period of three years from the date of installation. The applicant
may make a second, optional payment of two hundred dollars ($200)
to extend the display and maintenance of the sign for one additional
three-year period The Division will repair or replace the sign at
its election, once during each three year period if damaged or
destroyed. At the end of the initial or renewal period, whichever
come later, the sign will be removed and offered to the
applicant(s).;
On page thirty-two, by striking out subdivision 9.5.j. in its
entirety and inserting in lieu thereof a new subdivision, designated
9.5.j., to read as follows:
9.5.j. If at any time during the application and fabrication
process another member of the victim's immediate family objects to
the sign, the process shall be halted and the application, the two
hundred dollar ($200) fee, and the related documentation shall be
returned to the applicant. If the sign has been installed, the
Division shall remove it and furnish it to the applicant, and
the Division shall retain the two hundred dollar ($200) fee;
And,
On page thirty-two, by inserting a new subdivision, designated
9.5.k., to read as follows:
9.5.k. On or before the 20th day of January of each year the
Commissioner shall prepare and submit to the Joint Standing
Committee on Government Organization, the Senate Committee on
Transportation and Infrastructure and the House Committee on Roads
and Transportation, a report that describes the activities of the
program during the previous year, including, the number of
applications received for roadside memorial signs, the number of
applications granted or denied, the number of objections received
to roadside memorial signs, the amount of fees received by the
Division for the procurement, installation and maintenance of
roadside memorial signs, the cost of procurement, installation and
maintenance of roadside memorial signs, and any other information
the Commissioner considers appropriate.
Respectfully submitted,
Bonnie Brown, Chair, Larry W. Barker, Kelli Sobonya, Conferees
on the part of the House of Delegates.
Joseph M. Minard, Chair, Michael A. Oliverio II, Clark S.
Barnes, Conferees on the part of the Senate.
Senator Minard, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Minard, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 2218, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for H. B. No. 2218) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for H. B. No. 2218) 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 adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, and requested the concurrence of the Senate in the
adoption thereof, as to
Eng. Com. Sub. for House Bill No. 3146, Relating to seniority
rights for school service personnel.
Whereupon,
Senator White, from the committee of conference on
matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 3146
, Relating to seniority
rights for school service personnel.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the Senate to Engrossed Committee Substitute for House Bill No. 3146, having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the Senate, striking out everything after the
enacting clause, and agree to the same as follows:
That §18A-4-8b and
§18A-4-17
of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-8b. Seniority rights for school service personnel.
(a) A county board shall make decisions affecting promotions
and the filling of any service personnel positions of employment or
jobs occurring throughout the school year that are to be performed
by service personnel as provided in section eight of this article,
on the basis of seniority, qualifications and evaluation of past
service.
(b) Qualifications means that the applicant holds a
classification title in his or her category of employment as
provided in this section and shall be is given first opportunity for
promotion and filling vacancies. Other employees then shall be
considered and shall qualify by meeting the definition of the job
title that relates to the promotion or vacancy, as defined in section eight of this article. that relates to the promotion or
vacancy. If requested by the employee, the county board shall show
valid cause why a service person with the most seniority is not
promoted or employed in the position for which he or she applies.
Applicants Qualified applicants shall be considered in the following
order:
(1) Regularly employed service personnel who hold a
classification title within the classification category of the
vacancy;
(2) Service personnel who have held a classification title
within the classification category of the vacancy whose employment
has been discontinued in accordance with this section;
(3)Professional personnel who held temporary service personnel
jobs or positions prior to June 9, one thousand nine hundred eighty-
two, and who apply only for these temporary jobs or positions
Regularly employed service personnel who do not hold a
classification title within the classification category of vacancy;
_____(4) Service personnel who have not held a classification title
within the classification category of the vacancy and whose
employment has been discontinued in accordance with this section;
_____(4) (5) Substitute service personnel who hold a classification
title within the classification category of the vacancy; and
(6) Substitute service personnel who do not hold a
classification title within the classification category of the
vacancy; and
_____(5) (7) New service personnel.
(c) The county board may not prohibit a service person from
retaining or continuing his or her employment in any positions or
jobs held prior to the effective date of this section and
thereafter.
(d) A promotion is defined as means any change in employment
that the service person considers to improve his or her working
circumstance within the classification category of employment.
(1) A promotion includes a transfer to another classification
category or place of employment if the position is not filled by an
employee who holds a title within that classification category of
employment.
(2) Each class title listed in section eight of this article
is considered a separate classification category of employment for
service personnel, except for those class titles having Roman
numeral designations, which shall be are considered a single
classification of employment:
(A) The cafeteria manager class title is included in the same
classification category as cooks;
(B) The executive secretary class title is included in the same
classification category as secretaries;
(C) Paraprofessional, autism mentor and braille or sign
language specialist class titles are included in the same
classification category as aides; and
(D) The mechanic assistant and chief mechanic class titles are
included in the same classification category as mechanics.
(3) The assignment of an aide to a particular position within
a school is based on seniority within the aide classification
category if the aide is qualified for the position.
_____(4) Assignment of a custodian to work shifts in a school or
work site is based on seniority within the custodian classification
category.
(e) For purposes of determining seniority under this section
an a service person's seniority begins on the date that he or she
enters into the assigned duties.
(f) Extra-duty assignments. --
(1) For the purpose of this section, "extra-duty assignments"
are defined as irregular jobs that occur assignment" means an
irregular job that occurs periodically or occasionally such as, but
not limited to, field trips, athletic events, proms, banquets and
band festival trips.
(2) Notwithstanding any other provisions of this chapter to the
contrary, decisions affecting service personnel with respect to
extra-duty assignments shall be are made in the following manner:
(A) A service person with the greatest length of service time
in a particular category of employment shall be is given priority
in accepting extra duty assignments, followed by other fellow
employees on a rotating basis according to the length of their
service time until all such employees have had an opportunity to
perform similar assignments. The cycle then shall be is repeated.
(B) An alternative procedure for making extra-duty assignments
within a particular classification category of employment may be
used if the alternative procedure is approved both by the county
board and by an affirmative vote of two thirds of the employees
within that classification category of employment.
(g) County boards shall post and date notices of all job
vacancies of established existing or newly created positions in
conspicuous places for all school service personnel to observe for
at least five working days.
(1) Posting locations shall include any website maintained by
or available for the use of the county board.
(2) Notice of a job vacancy shall include the job description,
the period of employment, the amount of pay and any benefits and other information that is helpful to prospective applicants to
understand the particulars of the job. Job postings for vacancies
made pursuant to this section shall be written so as to ensure that
the largest possible pool of qualified applicants may apply. Job
postings may not require criteria which are not necessary for the
successful performance of the job and may not be written with the
intent to favor a specific applicant.
(3) After the five-day minimum posting period, all vacancies
shall be filled within twenty working days from the posting date
notice of any job vacancies of established existing or newly created
positions.
(4) The county board shall notify any person who has applied
for a job posted pursuant to this section of the status of his or
her application as soon as possible after the county board makes a
hiring decision regarding the posted position.
(h) All decisions by county boards concerning reduction in work
force of service personnel shall be made on the basis of seniority,
as provided in this section.
(i) The seniority of any a service person shall be is
determined on the basis of the length of time the employee has been
employed by the county board within a particular job classification.
For the purpose of establishing seniority for a preferred recall list as provided in this section, when a service person who has been
employed in one or more classifications, the seniority retains the
seniority accrued in each previous classification. is retained by
the employee.
(j) If a county board is required to reduce the number of
service personnel within a particular job classification, the
following conditions apply:
(1) The employee with the least amount of seniority within that
classification or grades of classification shall be is properly
released and employed in a different grade of that classification
if there is a job vacancy;
(2) If there is no job vacancy for employment within that
classification or grades of classification, the service person shall
be is employed in any other job classification which he or she
previously held with the county board if there is a vacancy and
shall retain retains any seniority accrued in the job classification
or grade of classification.
(k) Prior to August 1, After a reduction in force or transfer
is approved, but prior to August 1, (1) If the a county board in its
sole and exclusive judgment determines may determine that the reason
for any particular reduction in force or transfer no longer exists.
(1) If the board makes this determination, it shall rescind the reduction in force or transfer and notify the affected employee in
writing of the right to be restored to his or her former position
of employment.
(2) Within five days of being notified, the The affected
employee shall notify the county board of his or her intent to
return to the former position of employment within five days of
being notified or lose the right of restoration to be restored to
the former position. terminates.
(3) The county board shall may not rescind the reduction in
force of an employee until all service personnel with more seniority
in the classification category on the preferred recall list have
been offered the opportunity for recall to regular employment as
provided in this section.
(4) If there are insufficient vacant positions to permit
reemployment of all more senior employees on the preferred recall
list within the classification category of the service person who
was subject to reduction in force, the position of the released
service person shall be posted and filled in accordance with this
section.
(l) If two or more service persons accumulate identical
seniority, the priority shall be is determined by a random selection
system established by the employees and approved by the county board.
(m) All service personnel whose seniority with the county board
is insufficient to allow their retention by the county board during
a reduction in work force shall be are placed upon a preferred
recall list and shall be recalled to employment by the county board
on the basis of seniority.
(n) A service person placed upon the preferred recall list
shall be recalled to any position openings by the county board
within the classification(s) where he or she had previously been
employed, or to any lateral position for which the service person
is qualified or to a lateral area for which a service person has
certification and/or licensure.
(o) A service person on the preferred recall list shall does
not forfeit the right to recall by the county board if compelling
reasons require him or her to refuse an offer of reemployment by the
county board.
(p) The county board shall notify all service personnel on the
preferred recall list of all position openings that exist from time
to time. The notice shall be sent by certified mail to the last
known address of the service person. Each service person shall
notify the county board of any change of address.
(q) No position openings may be filled by the county board, whether temporary or permanent, until all service personnel on the
preferred recall list have been properly notified of existing
vacancies and have been given an opportunity to accept reemployment.
(r) A service person released from employment for lack of need
as provided in sections six and eight-a, article two of this chapter
shall be is accorded preferred recall status on July 1 of the
succeeding school year if the he or she has not been reemployed as
a regular employee.
(s) A county board failing to comply with the provisions of
this article may be compelled to do so by mandamus and is liable to
any party prevailing against the board for court costs and the
prevailing party's reasonable attorney fee, as determined and
established by the court.
(1) A service person denied promotion or employment in
violation of this section shall be awarded the job, pay and any
applicable benefits retroactively to the date of the violation and
shall be paid entirely from local funds.
(2) The county board is liable to any party prevailing against
the board for any court reporter costs including copies of
transcripts.
§18A-4-17. Health and other facility employee salaries.
(a) The minimum salary scale for professional personnel and service personnel employed by the state department of education to
provide education and support services to residents of state
department of health and human resources facilities, corrections
facilities providing services to juvenile and youthful offenders,
and in the West Virginia schools for the deaf and the blind and in
public community and technical colleges providing middle college
services is the same as set forth in sections two, three and eight-a
of this article. Additionally, those personnel shall receive the
equivalent of salary supplements paid to professional and service
personnel employed by the county board of education in the county
wherein each facility is located, as set forth in sections five-a
and five-b of this article. Professional personnel and service
personnel in these facilities who earn advanced classification of
training after the effective date of this section shall be paid the
advanced salary from the date the classification of training is
earned. The professional personnel shall be certified, licensed or
trained, and shall meet other eligibility classifications as may be
required by the provisions of this chapter and by state board
regulations for comparable instructional personnel who are employed
by county boards. of education The professional personnel shall be
paid at the equivalent rate of pay of teachers as set forth in
section two of this article, but outside the public support plan,
plus the equivalent of the salary supplement paid to teachers employed by the county board of education in the county in which
each facility is located, as set forth in section five-a of this
article.
(b) Professional personnel employed by the department to
provide educational service education services to residents in state
department of health and human resources facilities, corrections
facilities providing services to juvenile and youthful offenders,
or in the West Virginia schools for the deaf and the blind shall be
or in public community and technical colleges providing middle
college services are afforded all the rights, privileges and
benefits established for the professional personnel under this
article, subject to the following:
(1) Provided, That The benefits shall apply only within the
facility at which the professional personnel are employed;
(2) Provided, however, That The benefits shall exclude salaries
unless explicitly provided for under this or other sections of this
article; and
_____(3) Provided further, That Seniority for the professional
personnel shall be is determined on the basis of the length of time
that the employee has been professionally employed at the facility,
regardless of which state agency was the actual employer.
(c) Nothing contained in this section shall be construed to mean that Professional personnel and service personnel employed by
the department of education to provide educational education and
support services to residents in state department of health and
human resources facilities, corrections facilities providing
services to juvenile and youthful offenders, and the West Virginia
schools for the deaf and the blind and in public community and
technical colleges providing middle college services are other than
state employees.
(d) Additional seniority provisions.
(1) Notwithstanding any other provision of this section to the
contrary, professional and service personnel employed in an
educational facility operated by the West Virginia department of
education shall accrue seniority at that facility on the basis of
the length of time the employee has been employed at the facility.
Any Professional or and service personnel whose employment at the
facility was preceded immediately by employment with the county
board previously providing education services at the facility or
whose employment contract was with the county board previously
providing education services at the facility:
(A) shall retain Retains any seniority accrued during
employment by the county board;
(B) shall accrue Accrues seniority as a regular employee with the county board during employment at the facility;
(C) shall attain Attains continuing contract status in
accordance with section two, article two, chapter eighteen-a of this
code with both the county and the facility if the sum of the years
employed by the county and the facility equals the statutory number
required for continuing contract status; and
(D) shall retain and continue Retains and continues to accrue
county and facility seniority in the event of reemployment by the
county as a result of direct transfer from the facility or recall
from the preferred list.
(2) Reductions in work force in the facility or employment by
the facility or county board shall be are made in accordance with
the provisions of sections seven-a and eight-b article four, chapter
eighteen-a of this code: Provided, That of this chapter. Only
years of employment within the facility shall be are considered for
purposes of reduction in force within the facility.
(3) The seniority conferred in this section applies
retroactively to all affected professional and service personnel,
but the rights incidental to the seniority shall commence as of on
the effective date of this section.
(4) Amendments made to this section during the 2009 regular
session of the Legislature do not
abrogate
any rights, privileges or benefits bestowed under previous enactments of this section.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 3146--A Bill to
amend and
reenact
§18A-4-8b and
§18A-4-17 the Code of West Virginia, 1931, as
amended
, all relating to seniority rights for school service
personnel; revising criteria for consideration of applicants;
providing for assignment based on seniority in certain circumstances
in certain classifications;
specifying certain rights, privileges
and benefits of certain professional and service personnel providing
middle college services in public community and technical colleges;
and making technical changes.
Respectfully submitted,
Mary M. Poling, Chair, Timothy R. Ennis, Ruth Rowan, Conferees
on the part of the House of Delegates.
C. Randy White (Did not sign), Chair, Ron Stollings, Clark S.
Barnes, Conferees on the part of the Senate.
Senator White, Senate cochair of the committee of conference,
was recognized to explain the report.
Senator Deem arose to a point of order that under Joint Rule
No. 3a, which states in part "Such committee shall consider and report only the subject matter of the amendment or amendments which
were in disagreement . . . .", the committee of conference was not
in accordance with the rule.
Which point of order the President ruled not well taken.
Thereafter, on motion of Senator White, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 3146, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for H. B. No. 3146) passed with its conference 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 adoption by that body of the committee of conference report,
passage as amended by the conference report, with its Senate amended
title, and requested the concurrence of the Senate in the adoption
thereof, as to
Eng. Com. Sub. for House Bill No. 2877, Increasing the monetary
penalties, removing the possibility of incarceration and adding
community service for a minor who misrepresents his or her age when
purchasing alcohol.
Whereupon, Senator Snyder, from the committee of conference on
matters of disagreement between the two houses, as to
Eng. Com Sub. for House Bill No. 2877, Increasing the monetary
penalties, removing the possibility of incarceration and adding
community service for a minor who misrepresents his or her age when
purchasing alcohol.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the Senate to Engrossed Committee
Substitute for House Bill No. 2877 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both houses recede from their respective position as to the amendment of the Senate, striking out everything after the
enacting clause, and agree to the same as follows:
That §11-16-19 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §49-1-4 of said code be amended and
reenacted; and that §60-3A-24 be amended and reenacted, all to read
as follows:
CHAPTER 11. TAXATION.
ARTICLE 16. NONINTOXICATING BEER.
§11-16-19. Unlawful acts of persons; criminal penalties.
(a) (1) Any person eighteen or over, but under the age of
twenty-one years, who purchases, consumes, sells, possesses or
serves nonintoxicating beer is guilty of a misdemeanor and, upon
conviction thereof, shall be fined an amount not to exceed $500 or
shall be incarcerated confined in jail, or, in the case of a
juvenile, a detention facility, for a period not to exceed
seventy-two hours, or both fined and imprisoned confined or, in lieu
of such fine and incarceration confinement, may, for the first
offense, be placed on probation for a period not to exceed one year.
Any person convicted under this section may be sentenced pursuant
to the provisions of section one, article eleven-a, chapter sixty-
two of this code. Any person under the age of eighteen years who
purchases, consumes, sells, possesses or serves nonintoxicating beer is guilty of a status offense as that term is defined in section
four, article one, chapter forty-nine of this code and, upon
adjudication therefor, shall be referred to the Department of Health
and Human Resources for services, as provided in section eleven,
article five of said chapter.
(2) Nothing in this article, nor any rule or regulation of the
commissioner, shall prevent or be deemed to prohibit any person who
is at least eighteen years of age from serving in the lawful
employment of any licensee, which may include the sale or delivery
of nonintoxicating beer as defined in this article. Further,
nothing in this article, nor any rule or regulation of the
commissioner, shall prevent or be deemed to prohibit any person who
is less than eighteen but at least sixteen years of age from being
employed by a licensee whose principal business is the sale of food
or consumer goods or the providing of recreational activities,
including, but not limited to, nationally franchised fast-food
outlets, family-oriented restaurants, bowling alleys, drug stores,
discount stores, grocery stores and convenience stores: Provided,
That such person shall not sell or deliver nonintoxicating beer.
(3) Nothing in this subsection shall prohibit a person who is
at least eighteen years of age from purchasing or possessing
nonintoxicating beer when he or she is acting upon the request of
or under the direction and control of any member of a state, federal or local law-enforcement agency or the West Virginia Alcohol
Beverage Administration while the agency is conducting an
investigation or other activity relating to the enforcement of the
alcohol beverage control statutes and the rules of the commissioner.
(b) Any person under the age of twenty-one years who, for the
purpose of purchasing nonintoxicating beer, misrepresents his or her
age or who for such purpose presents or offers any written evidence
of age which is false, fraudulent or not actually his or her own or
who illegally attempts to purchase nonintoxicating beer is guilty
of a misdemeanor and, upon conviction thereof, shall be fined an
amount not to exceed $100 or shall be imprisoned confined in jail,
or in the case of a juvenile, a juvenile detention facility, for a
period not to exceed seventy-two hours, or both such fine and
imprisonment confinement or, in lieu of such fine and imprisonment
confinement, may, for the first offense, be placed on probation for
a period not exceeding one year.
(c) Any person who shall knowingly buy for, give to or furnish
nonintoxicating beer to anyone under the age of twenty-one to whom
they are not related by blood or marriage is guilty of a misdemeanor
and, upon conviction thereof, shall be fined an amount not to exceed
$100 or shall be imprisoned confined in jail for a period not to
exceed ten days, or both such fine and imprisonment confinement.
(d) (1) Any person who at any one time transports into the
state for their personal use, and not for resale, more than six and
seventy-five hundredths gallons of nonintoxicating beer, upon which
the West Virginia barrel tax has not been imposed, shall be guilty
of a misdemeanor and, upon conviction thereof, shall be fined an
amount not to exceed $100 and have all the untaxed nonintoxicating
beer in their possession at the time of the arrest confiscated or
imprisoned confined for ten days in jail, or both fined and
imprisoned. The untaxed nonintoxicating beer found in the person's
possession shall be confiscated.
(2) If the Congress of the United States repeals the mandate
established by the Surface Transportation Assistance Act of 1982
relating to national uniform drinking age of twenty-one as found in
section six of Public Law 98-363, or a court of competent
jurisdiction declares the provision to be unconstitutional or
otherwise invalid, it is the intent of the Legislature that the
provisions contained in this section and section eighteen of this
article which prohibit the sale, furnishing, giving, purchase or
ownership of nonintoxicating beer to or by a person who is less than
twenty-one years of age shall be null and void and the provisions
therein shall thereafter remain in effect and apply to the sale,
furnishing, giving, purchase or ownership of nonintoxicating beer
to or by a person who is less than nineteen years of age.
CHAPTER 49. CHILD WELFARE.
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-4. Other definitions.
As used in this chapter:
(1) "Child welfare agency" means any agency or facility
maintained by the state or any county or municipality thereof or any
agency or facility maintained by an individual, firm, corporation,
association or organization, public or private, to receive children
for care and maintenance or for placement in residential care
facilities or any facility that provides care for unmarried mothers
and their children;
(2) "Child advocacy center" means a community-based
organization that is a member in good standing with the West
Virginia Child Abuse Network, Inc., and is working to implement the
following program components:
(A) Child-appropriate/child-friendly facility: A child
advocacy center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for
clients;
(B) Multidisciplinary team (MDT): A multidisciplinary team for
response to child abuse allegations includes representation from the
following: Law enforcement; child protective services; prosecution; mental health; medical; victim advocacy; child advocacy center;
(C) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practices;
(D) Cultural competency and diversity: The child advocacy
center promotes policies, practices and procedures that are
culturally competent. Cultural competency is defined as the
capacity to function in more than one culture, requiring the ability
to appreciate, understand and interact with members of diverse
populations within the local community;
(E) Forensic interviews: Forensic interviews are conducted in
a manner which is of a neutral, fact-finding nature and coordinated
to avoid duplicative interviewing;
(F) Medical evaluation: Specialized medical evaluation and
treatment are to be made available to child advocacy center clients
as part of the team response, either at the child advocacy center
or through coordination and referral with other specialized medical
providers;
(G) Therapeutic intervention: Specialized mental health
services are to be made available as part of the team response,
either at the child advocacy center or through coordination and
referral with other appropriate treatment providers;
(H) Victim support/advocacy: Victim support and advocacy are
to be made available as part of the team response, either at the
child advocacy center or through coordination with other providers,
throughout the investigation and subsequent legal proceedings;
(I) Case review: Team discussion and information sharing
regarding the investigation, case status and services needed by the
child and family are to occur on a routine basis;
(J) Case tracking: Child advocacy centers must develop and
implement a system for monitoring case progress and tracking case
outcomes for team components:
Provided, That a child advocacy
center may establish a safe exchange location for children and
families who have a parenting agreement or an order providing for
visitation or custody of the children that require a safe exchange
location;
(3) "Community based", when referring to a facility, program,
or service, means located near the juvenile's home or family and
involving community participation in planning, operation and
evaluation and which may include, but is not limited to, medical,
educational, vocational, social and psychological guidance,
training, special education, counseling, alcoholism and any
treatment and other rehabilitation services;
(4) "Court" means the circuit court of the county with jurisdiction of the case or the judge thereof in vacation unless
otherwise specifically provided;
(5) "Custodian" means a person who has or shares actual
physical possession or care and custody of a child, regardless of
whether such person has been granted custody of the child by any
contract, agreement or legal proceedings;
(6) "Department" or "state department" means the State
Department of Health and Human Resources;
(7) "Division of Juvenile Services" means the division within
the Department of Military Affairs and Public Safety pursuant to
article five-e of this chapter;
(8) "Guardian" means a person who has care and custody of a
child as a result of any contract, agreement or legal proceeding;
(9) "Juvenile delinquent" means a juvenile who has been
adjudicated as one who commits an act which would be a crime under
state law or a municipal ordinance if committed by an adult;
(10) "Nonsecure facility" means any public or private
residential facility not characterized by construction fixtures
designed to physically restrict the movements and activities of
individuals held in lawful custody in such facility and which
provides its residents access to the surrounding community with
supervision;
(11) "Referee" means a juvenile referee appointed pursuant to
section one, article five-a of this chapter, except that in any
county which does not have a juvenile referee, the judge or judges
of the circuit court may designate one or more magistrates of the
county to perform the functions and duties which may be performed
by a referee under this chapter;
(12) "Secretary" means the Secretary of Health and Human
Resources;
(13) "Secure facility" means any public or private residential
facility which includes construction fixtures designed to physically
restrict the movements and activities of juveniles or other
individuals held in lawful custody in such facility;
(14) "Staff-secure facility" means any public or private
residential facility characterized by staff restrictions of the
movements and activities of individuals held in lawful custody in
such facility and which limits its residents' access to the
surrounding community, but is not characterized by construction
fixtures designed to physically restrict the movements and
activities of residents;
(15) "Status offender" means a juvenile who has been
adjudicated as one:
(A) Who habitually and continually refuses to respond to the lawful supervision by his or her parents, guardian or legal
custodian such that the child's behavior substantially endangers the
health, safety or welfare of the juvenile or any other person;
(B) Who has left the care of his or her parents, guardian or
custodian without the consent of such person or without good cause;
or
(C) Who is habitually absent from school without good cause;
or
(D) Who violates any West Virginia municipal, county or state
law regarding use of alcoholic beverages by minors;
(16) "Valid court order" means a court order given to a
juvenile who was brought before the court and made subject to such
order and who received, before the issuance of such order, the full
due process rights guaranteed to such juvenile by the constitutions
of the United States and the State of West Virginia.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-24. Unlawful acts by persons.
(a) (1) Any person who is
eighteen or over but under the age
of twenty-one years who purchases, consumes, sells, serves or
possesses alcoholic liquor is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed $500 or
shall be
incarcerated confined in jail,
or, in the case of a
juvenile, a detention center, for a period not to exceed seventy-two
hours, or both fined and imprisoned or, in lieu of such fine and
incarceration, may, for the first offense, be placed on probation
for a period not to exceed one year.
Any person who is under
eighteen years who purchases, consumes, sells, serves or possesses
alcoholic liquor is guilty of a status offense, as that term is
defined in section four, article one, chapter forty-nine of this
code and, upon adjudication therefor, shall be referred to the
Department of Health and Human Resources for services, as provided
in section eleven, article five of said chapter.
(2) Nothing in this article, nor any rule or regulation of the
commissioner, shall prevent or be deemed to prohibit any person who
is at least eighteen years of age from serving in the lawful
employment of a licensee which includes the sale and serving of
alcoholic liquor.
(3) Nothing in this subsection shall prohibit a person who is
at least eighteen years of age from purchasing or possessing
alcoholic liquor when he or she is acting upon the request of or
under the direction and control of any member of a state, federal
or local law-enforcement agency or the West Virginia Alcohol
Beverage Control Administration while the agency is conducting an investigation or other activity relating to the enforcement of the
alcohol beverage control statutes and the rules and regulations of
the commissioner.
(b) Any person under the age of twenty-one years who, for the
purpose of purchasing liquor from a retail licensee, misrepresents
his or her age or who for such purpose presents or offers any
written evidence of age which is false, fraudulent or not actually
his or her own or who illegally attempts to purchase liquor from a
retail licensee is guilty of a misdemeanor and, upon conviction
thereof, shall be fined an amount not to exceed fifty dollars or
imprisoned confined in jail
or, in the case of a juvenile, a
detention facility, for a period not to exceed seventy-two hours,
or both fined and
imprisoned confined or, in lieu of such fine and
imprisonment, may, for the first offense, be placed on probation for
a period not exceeding one year. Any person convicted under this
section may be sentenced pursuant to the provisions of section one-
a, article eleven-a, chapter sixty-two of this code.
(c) Any person who knowingly buys for, gives to or furnishes
to anyone under the age of twenty-one to whom he or she is not
related by blood or marriage any liquor from whatever source is
guilty of a misdemeanor and, upon conviction thereof, shall be fined
an amount not to exceed $250 dollars or
imprisoned confined in jail
for a period not to exceed ten days, or both fined and
imprisoned confined.
(d) No person while on the premises of a retail outlet may
consume liquor or break the seal on any package or bottle of liquor.
Any person who violates the provisions of this subsection is guilty
of a misdemeanor and, upon conviction thereof, shall be fined an
amount not to exceed one hundred dollars or
imprisoned confined in
jail for a period not to exceed ten days, or both fined and
imprisoned confined.;
And,
That the House of Delegates agree to the amendment of the
Senate to the title of the bill.
Respectfully submitted,
William R. Wooton, Chair, Tiffany E. Lawrence, John N. Ellem,
Conferees on the part of the House of Delegates.
Herb Snyder, Chair, Joseph M. Minard, Mike Hall, Conferees on
the part of the Senate.
Senator Snyder, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Snyder, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 2877, as amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for H. B. No. 2877) passed with its Senate 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 adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, and requested the concurrence of the Senate in the
adoption thereof, as to
Eng. Com. Sub. for House Bill No. 3208, Including the hours of
training county board members have acquired.
Whereupon,
Senator White, from the committee of conference on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 3208, Including the hours of
training county board members have acquired.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the Senate to Engrossed Committee
Substitute for House Bill No. 3208, having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the Senate, striking out everything after the
enacting section, and agree to the same as follows:
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-4. Better schools accountability; school, school district
and statewide school report cards.
(a) For the purpose of providing information to the parents of
public school children and the general public on the quality of
education in the public schools which is uniform and comparable
between schools within and among the various school districts, the
state board shall prepare forms for school, school district and
statewide school report cards and shall promulgate rules concerning
the collection and reporting of data and the preparation, printing and distribution of report cards under this section. The forms
shall provide for brief, concise reporting in nontechnical language
of required information. Any technical or explanatory material a
county board wishes to include shall be contained in a separate
appendix available to the general public upon request.
(b) The school report cards shall include information as shall
be prescribed by lawfully promulgated rule by the state board to
give the parents of students at the school and the general public
an indication of the quality of education at the school and other
programs supportive of community needs, including, but not limited
to, the following:
(1) Indicators of student performance at the school in
comparison with the county, state, regional and national student
performance, as applicable, including student performance by grade
level in the various subjects measured pursuant to a uniform
statewide assessment program adopted by the state board; school
attendance rates; the percent of students not promoted to next
grade; and the graduation rate;
(2) Indicators of school performance in comparison with the
aggregate of all other schools in the county and the state, as
applicable, including average class size; percent of enrollments in
courses in high school mathematics, science, English and social science; amount of time per day devoted to mathematics, science,
English and social science at middle, junior high and high school
grade levels; percentage distribution of students by career cluster
as indicated on the individualized student transition plan;
pupil-teacher ratio; number of exceptions to pupil-teacher ratio
requested by the county board and the number of exceptions granted;
the number of split-grade classrooms; pupil-administrator ratio;
operating expenditure per pupil; county expenditure by fund in
graphic display; and the average degree classification and years of
experience of the administrators and teachers at the school;
(3) The names of the members of the local school improvement
council, created pursuant to section two, article five-a of this
chapter; and
(4) The name or names of the business partner or partners of
the school.
In addition, every county board shall annually shall determine
the number of administrators, classroom teachers and service
personnel employed that exceeds the number allowed by the public
school support plan and determine the amount of salary supplements
that would be available per state authorized employee if all
expenditures for the excess employees were converted to annual
salaries for state authorized administrators, classroom teachers and service personnel within their county. The information shall be
published annually in each school report card of each such county.
(c) The school district report card shall include the data for
each school for each separately listed applicable indicator and the
aggregate of the data for all schools, as applicable, in the county
for each indicator. The statewide school report card shall include
the data for each county for each separately listed indicator and
the aggregate for all counties for each indicator.
(d) The report cards shall be prepared using actual local
school, county, state, regional and national data indicating the
present performance of the school and shall also shall include the
state norms and the upcoming year's targets for the school and the
county board.
The state board shall provide technical assistance to each
county board in preparing the school and school district report
cards.
Each county board shall prepare report cards in accordance with
the guidelines set forth in this section. The school district
report cards shall be presented at a regular school board meeting
subject to applicable notice requirements and shall be made
available to a newspaper of general circulation serving the
district. The school report cards shall be mailed directly to the parent or parents of any each child enrolled in that school. In
addition, each county board shall submit the completed report cards
to the state board which shall make copies available to any person
requesting them.
The report cards shall be completed and disseminated prior to
January 1, 1989, and in each year thereafter, and shall be based
upon information for the current school year, or for the most recent
school year for which the information is available, in which case
the year shall be clearly footnoted.
(e) In addition to the requirements of subsection (c) of this
section, the school district report card shall list the following
information:
(1) The names of the members of the county board, the dates
upon which their terms expire and whether they have attended an
orientation program for new members approved by the state board and
conducted by the West Virginia School Board Association or other
approved organizations; and other school board member training
programs
_____(2) The number of hours of training that meets state board
standards that county board members have received during the school
term reported; and
(2) (3) The names of the county school superintendent and every assistant and associate superintendent and any training programs
related to their area of school administration which they have
attended.
The information shall also shall be reported by district in the
statewide school report card.
(f) The state board shall develop and implement a separate
report card for nontraditional public schools pursuant to the
appropriate provisions of this section to the extent practicable.
ARTICLE 4. COUNTY SUPERINTENDENT OF SCHOOLS.
§18-4-1. Election and term; interim superintendent.
(a) The county superintendent shall be appointed by the board
upon a majority vote of the members thereof to serve for a term of
not less than one, nor more than four years. At the expiration of
the term or terms for which he or she shall have been appointed,
each county superintendent shall be eligible for reappointment for
additional terms of not less than one, nor more than four years.
Provided, That
(1) At the expiration of his or her term or terms of service
the county superintendent may transfer to any teaching position in
the county for which he or she is qualified and has seniority,
unless dismissed for statutory reasons.
(2) The appointment of the county superintendent shall be made on or before between January 1 and June 1 for a term beginning on
July 1 following the appointment.
(b) A county superintendent who fills a vacancy caused by an
incomplete term shall be appointed to serve until the following July
1: Provided, however, That the board may appoint an interim county
superintendent to serve for a period not to exceed one hundred
twenty days from the occurrence of the vacancy. In the event of a
vacancy in the superintendent's position that results in an
incomplete term, the board may appoint an interim county
superintendent:
_____(1) To serve until the following July 1 if the vacancy occurs
before March 1.
_____(2) To serve until July 1 of the next following year if the
vacancy occurs on or after March 1, unless a superintendent is
appointed sooner.
_____(c) If the superintendent becomes incapacitated due to accident
or illness to an extent that may lead to prolonged absence, the
county board, by unanimous vote, may enter an order declaring that
an incapacity exists in which case the county board shall appoint
an acting superintendent to serve until a majority of the members
of the board determine that the incapacity no longer exists. An
acting superintendent may not serve in that capacity for more than one year, nor later than the expiration date of the superintendent's
term, whichever occurs sooner, unless he or she is reappointed by
the county board.
_____(c) (d) Immediately following the appointment of a county
superintendent or an interim county superintendent, the president
of the county board immediately upon the appointment of the county
superintendent, or the appointment of an interim county
superintendent, shall certify the appointment to the state
superintendent. Immediately following the appointment of an acting
county superintendent or a vote by a majority of the members of the
county board that an incapacity no longer exists, the president of
the county board shall certify the appointment, reappointment, or
appointment termination of the acting superintendent to the state
superintendent.
_____(d) (e) During his or her term of appointment, the county
superintendent shall be a state resident of the and shall reside in
the county which he or she serves or of in a contiguous county. in
this state, which he or she serves The county superintendent in
office on the effective date of this section shall continue in
office until the expiration of his or her term.
§18-4-4. Compensation.
On or before the first day of May June 1 of the year in which the superintendent is appointed, the board shall fix the annual
salary of the superintendent for the period of appointment for the
term beginning on the following July 1. The board shall pay the
salary from the general current expense fund of the district.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-1a. Eligibility of members; training requirements.
(a) No person shall be eligible for membership on any county
board who is not a citizen, resident in such county, or who accepts
a position as teacher or service personnel in the school district
in which he or she is a resident or who is an elected or an
appointed member of any political party executive committee, or who
becomes a candidate for any other office than to succeed oneself.
(b) No member or member-elect of any board shall be eligible
for nomination, election or appointment to any public office, other
than to succeed oneself, or for election or appointment as a member
of any political party executive committee, unless and until after
that membership on the board, or his status as member-elect to the
board, has been terminated at or before the time of his filing for
such nomination for, or appointment to, such public office or
committee: Provided, That "office" or "committee", as used in this
subsection and subsection (a) of this section, does not include
service on any board, elected or appointed, profit or nonprofit, for which the person does not receive compensation and whose primary
scope is not related to the public schools.
(a)
A person who is a candidate for membership on a county
board or who is a member or member-elect of a county board:
_____(1) Shall be a citizen and resident in the county in which he
or she serves or seeks to serve on the county board;
_____(2) May not be employed by the county board on which he or she
serves or seeks to serve, including employment as a teacher or
service person;
_____(3) May not engage in the following political activities:
_____(A) Become a candidate for or hold any other public office,
other than to succeed him or herself as a member of a county board
subject to the following:
_____(i) A candidate for a county board, who is not currently
serving on a county board, may hold another public office while a
candidate if he or she resigns from the other public office prior
to taking the oath of office as a county board member.
_____(ii) The term "public office" as used in this section does not
include service on any other board, elected or appointed, profit or
nonprofit, under the following conditions:
_____(I) The person does not receive compensation; and
_____(II) The primary scope of the board is not related to public
schools.
(B) Become a candidate for, or serve as, an elected member of
any political party executive committee;
_____(C) Become a candidate for, or serve as, a delegate, alternate
or proxy to a national political party convention;
_____(D) Solicit or receive political contributions to support the
election of, or to retire the campaign debt of, any candidate for
partisan office;
_____(4) May engage in any or all of the following political
activities:
_____(A) Make campaign contributions to partisan or bipartisan
candidates;
_____(B) Attend political fund raisers for partisan or bipartisan
candidates;
_____(C) Serve as an unpaid volunteer on a partisan campaign;
_____(D) Politically endorse any candidate in a partisan or
bipartisan election; or
_____(E) Attend a county, state or national political party
convention.
_____(c) (b) A member or member-elect of a county board, or a person desiring to become a member of a county board, may make a written
request to the West Virginia Ethics Commission for an advisory
opinion on whether to determine if another elected or appointed
position held or sought by the person is an office or public office
which would bar serving service on the a county board pursuant to
subsections subsection (a) and (b) of this section.
(1) Within thirty days of receipt of the request, the Ethics
Commission shall issue a written advisory opinion in response to the
request and shall also shall publish such the opinion in a manner
which, to the fullest extent possible, does not reveal the identity
of the person making the request.
(2) Any A county board member who relied relies in good faith
upon an advisory opinion issued by the West Virginia Ethics
Commission to the effect that holding a particular office or public
office is not a bar from membership on a county board of education
and against whom proceedings are subsequently brought for removal
from the county board on the basis of holding such that office or
offices shall be is entitled to reimbursement by the county board
for reasonable attorney's fees and court costs incurred by the
member in defending against such these proceedings, regardless of
the outcome of the proceedings.
(3) Further, no A vote cast by the member at a meeting of the county board shall may not be invalidated due to a subsequent
finding that holding the particular office or public office is a bar
to membership on the county board.
(4) Good faith reliance on a written advisory opinion of the
West Virginia Ethics Commission that a particular office or public
office is not a bar to membership on a county board of education is
an absolute defense to any civil suit or criminal prosecution
arising from any proper action taken within the scope of membership
on the county board, becoming a member-elect of the county board or
seeking election to the county board.
(d) (c) Any person who is elected or appointed to To be
eligible for election or appointment as a member of a county board
on or after May 5, 1992, a person shall possess at least a high
school diploma or a general educational development (GED) diploma.
Provided, That this This provision shall does not apply to members
or members-elect who have taken office prior to May 5, 1992, and who
serve continuously therefrom from that date forward.
(e) (d) No A person elected to a county board after July 1,
1990, shall may not assume the duties of county board member unless
he or she has first attended and completed a course of orientation
relating to boardsmanship and governance effectiveness which shall
be given between the date of election and the beginning of the member's term of office Provided, That under the following
conditions:
_____(1) A portion or portions of subsequent training such as that
offered in orientation may be provided to members after they have
commenced their term of office; Provided, however, That
(2) Attendance at the session of orientation given between the
date of election and the beginning of the member's term of office
shall permit such member or members permits the member-elect to
assume the duties of county board member, as specified in this
section;
(3) Members appointed to the county board shall attend and
complete the next such course offered following their appointment;
Provided further, That and
_____(4) The provisions of this section subsection relating to
orientation shall do not apply to members who have taken office
prior to July 1, 1988, and who serve continuously therefrom from
that date forward.
(f) Commencing on the effective date of this section, members
(e) Annually, each member of a county board shall annually
receive seven clock hours of training in areas relating to
boardsmanship, governance effectiveness, and school performance
issues including, but not limited to, pertinent state and federal statutes such as the "Process for Improving Education" set forth in
section five, article two-e of this chapter and the "No Child Left
Behind Act" and their respective administrative rules. Such
(1) The orientation and training shall be approved by the state
board and conducted by the West Virginia School Board Association
or other organization or organizations approved by the state board:
Provided, That
(A) The state board may exclude time spent in training on
school performance issues from the requisite seven hours herein
required; Provided, however, That and
_____(B) If the state board elects to exclude time spent in training
on school performance issues from the requisite seven hours, such
training shall be limited by the state board shall limit the
training to a feasible and practicable amount of time.
(2) Failure to attend and complete such an the approved course
of orientation and training relating to boardsmanship and governance
effectiveness without good cause as determined by the state board
by duly promulgated legislative rules of the state board shall
constitute constitutes neglect of duty under section seven, article
six, chapter six of this code.
(g) In the final year of any four-year term of office, a member
shall satisfy the annual training requirement before January 1. The state board shall petition the circuit court of Kanawha County to
remove any county board member who has failed to or who refuses to
attend and complete the approved course of orientation and training.
If the county board member fails to show good cause for not
attending the approved course of orientation and training, the court
shall remove the member from office. Failure to comply with the
training requirements of this section without good cause as defined
by the state board by duly promulgated legislative rules constitutes
neglect of duty under section seven, article six, chapter six of
this code.
_____(h) The state board shall appoint a committee named the "county
board member training standards review committee" whose members
shall meet at least annually. Subject to state board approval, the
committee shall determine which particular trainings and training
organizations shall be approved and whether county board members
have satisfied the annual training requirement. Members of the
committee serve without compensation, but may be reimbursed by their
agencies or employers for all reasonable and necessary expenses
actually incurred in the performance of their duties under this
subsection.;
And,
That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 3208
--A Bill
to amend and
reenact §18-2E-4 of the Code of West Virginia, 1931, as amended; to
amend and reenact §18-4-1 and §18-4-4 of said code; and to amend and
reenact §18-5-1a of said code, all relating to reporting hours of
certain training received by county board members on county report
card; clarifying eligibility for county board
of education
generally; providing for appointment and term of interim county
superintendents to fill vacancies; providing for appointment and
terms of acting county superintendents under certain circumstances;
requiring certification to state superintendent
of certain
appointments, reappointments and appointment terminations; modifying
deadline for setting annual compensation of county superintendents;
establishing county board member training standards review
committee; providing for member appointments, duties and certain
expenses under certain circumstances;
clarifying eligibility
requirements for candidates, members and members-elect of county
boards of education; prohibiting certain political activities and
clarifying which political activities are permissible; removing
certain duty of state board of education regarding members of county
boards of education; making technical clarifications of current law;
authorizing
candidates for county boards of education to hold public
office until taking the oath of office as members of county boards; adding definition of neglect of duty; making other technical
changes; and clarifying terms
.
Respectfully submitted,
Brady R. Paxton, Chair, Ron Fragale, Linda Sumner, Conferees
on the part of the House of Delegates.
C. Randy White, Chair, Michael A. Oliverio II, Jesse O. Guills,
Conferees on the part of the Senate.
On motions of Senator White, severally made, the report of the
committee of conference was taken up for immediate consideration and
adopted.
Engrossed Committee Substitute for House Bill No. 3208, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for H. B. No. 3208) passed with its conference 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, 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. 694, Creating intrastate
mutual aid system.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section twenty-eight, lines twenty-seven and
twenty-eight, by striking out the words "Director of the Division
of Homeland Security and Emergency Management" and inserting in lieu
thereof the word "Governor";
On page three, section twenty-eight, line twenty-eight, after
the word "director" by inserting the words "of the Division of
Homeland Security and Emergency Management";
And,
On page twelve, section twenty-eight, lines two hundred
fourteen and two hundred fifteen, by striking out subsection (o) in
its entirety.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 694, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for S. B. No. 694) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for S. B. No. 694) 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. 540, Clarifying certain Tax
Commissioner's authorities.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after
the enacting clause and inserting in lieu thereof the following:
That §11-6I-3 and §11-6I-5 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; that §11-10-5e of said code
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §11-10-25; that §11-13Q-22 of said
code be amended and reenacted; that §11-15-3c of said code be
amended and reenacted; that said code be amended by adding thereto
a new section, designated §11-15-9m; that §11-21-21, §11-21-22 and
§11-21-23 of said code be amended and reenacted; that §11-24-3a and
§11-24-4b of said code be amended and reenacted; that §18-9A-2a of
said code be amended and reenacted; and that §21A-6-1c of said code
be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 6I. SENIOR CITIZEN PROPERTY TAX PAYMENT DEFERMENT ACT.
§11-6I-3. Property tax payment deferment.
(a) The following homesteads shall qualify for the deferment
provided in subsection
(b) (c) of this section:
(1) Any homestead owned by an owner sixty-five years of age or
older and used and occupied exclusively for residential purposes by
such the owner; and
(2) Any homestead that:
(A) Is owned by an owner sixty-five years of age or older who, as a result of illness, accident or infirmity, is residing with a
family member or is a resident of a nursing home, personal care
home, rehabilitation center or similar facility;
(B) Was most recently used and occupied exclusively for
residential purposes by the owner or the owner's spouse; and
(C) Has been retained by the owner for noncommercial purposes.
(b) A homestead which is owned, in whole or in part, by any
person who is required to pay the federal alternative minimum income
tax in the current tax year is disqualified from the deferment
provided in this article.
_____(b) (c) (1) For tax years commencing on or after January 1,
2009, the owner of a homestead meeting the qualifications set forth
in subsection (a) of this section may apply for a deferment in the
payment of the tax increment of ad valorem taxes assessed under the
authority of article three of this chapter on the homestead:
Provided, That the deferment may be authorized only when the tax
increment is the greater of $300 or ten percent or more:
Provided,
however, That all deferred taxes are not subject to any rate of
interest.
(2) In lieu of the deferment of the tax increment authorized
pursuant to this article, a taxpayer entitled to
such the deferment
may elect to instead apply the senior citizen property tax relief credit authorized under section twenty-four, article twenty-one of
this chapter. Any taxpayer making such election shall be fully
subject to the terms and limitations set forth in section twenty-
four, article twenty-one of this chapter.
§11-6I-5. Determination; notice of denial of application for
deferment.
(a) The assessor shall, as soon as practicable after an
application for deferment is filed, review that application and
either approve or deny it. The assessor shall approve or disapprove
an application for deferment within thirty days of receipt. Any
application not approved or denied within thirty days is deemed
approved. If the application is denied, the assessor shall
promptly, but not later than January 1, serve the owner with written
notice explaining why the application was denied and furnish a form
for filing with the county commission, should the owner desire to
take an appeal. The notice required or authorized by this section
shall be served on the owner or his or her authorized representative
either by personal service or by certified mail.
(b) In the event that the assessor has information sufficient
to form a reasonable belief that an owner, after having been
originally granted a deferment, is no longer eligible for the
deferment, he or she shall, within thirty days after forming this reasonable belief, revoke the deferment and serve the owner with
written notice explaining the reasons for the revocation and furnish
a form for filing with the county commission should the owner desire
to take an appeal.
(c) The assessor shall deny any application made by or for an
owner who is required to pay the federal alternative minimum income
tax in the current tax year. The application may contain an
affirmation, prescribed by the Tax Commissioner, whereby the
applicant shall indicate whether the applicant is required to pay
the federal alternative minimum income tax in the current tax year.
Failure to truthfully indicate whether the applicant is required to
pay the federal alternative minimum income tax in the current tax
year shall be subject to the applicable penalties of articles nine
and ten of this chapter.
ARTICLE 10. TAX PROCEDURE AND ADMINISTRATION ACT.
§11-10-5e. Service of notice.
Notices of assessments and administrative decisions shall be
served upon the taxpayer either by personal or substituted service
or by certified mail. Service of notice by personal or substituted
service shall be valid if made by any method authorized by Rule 4
of the West Virginia Rules of Civil Procedure. Service
Notwithstanding any other provision of this code, the Tax Commissioner may designate those assessments, notices, statements
of account or other Tax Division documents which shall be sent by
personal service or United States Postal Service regular mail, or
certified mail or registered mail or by any other means at the
discretion of the Tax Commissioner, pursuant to any provision of
this chapter. Any service of notice addressed by United States
Postal Service regular mail is presumed to be accepted upon mailing
unless proven otherwise by the taxpayer. Any service of notice by
certified mail shall be valid if accepted by the taxpayer or if
addressed to and mailed to the taxpayer's usual place of business
or usual place of abode or last known address and accepted by any
officer, partner, employee, spouse or child of the taxpayer over the
age of eighteen. Any notice addressed and mailed in the above manner
and accepted by any person shall be presumed to be accepted by such
person unless proven otherwise by the taxpayer.
Any notice
addressed and mailed in the above manner, and which is refused or
not claimed, may then be served by regular mail if such notice is
subsequently mailed by first class mail, postage prepaid, to the
same address; and date of posting in the United States mail shall
be the date of service.
§11-10-25. Taxpayer must show tax exemption applies; presumption.
(a) The burden of proving that a tax exemption applies to any
tax administered by the Tax Commissioner shall be upon the taxpayer. Tax exemptions administered by the Tax Commissioner shall be
strictly construed against the taxpayer and for the payment of any
applicable tax.
(b) To prevent evasion, it is presumed that a tax exemption
does not apply until the contrary is clearly established by a
preponderance of the evidence.
ARTICLE 13Q. ECONOMIC OPPORTUNITY TAX CREDIT.
§11-13Q-22. Credit available for taxpayers which do not satisfy
the new jobs percentage requirement.
(a) Notwithstanding any provision of this article to the
contrary, a taxpayer engaged in one or more of the industries or
business activities specified in section nineteen of this article
which does not satisfy the new jobs percentage requirement
prescribed in subsection (c), section nine of this article or, if
the taxpayer is a small business as defined in section ten of this
article, does not create at least ten new jobs within twelve months
after placing qualified investment into service as required by
section ten of this article, but which otherwise fulfills the
requirements prescribed in this article, is permitted to claim a
credit against the taxes specified in section seven of this article
in the order so specified that are attributable to and the
consequence of the taxpayer's business operations in this state which result in the creation of net new jobs. Credit under this
section is allowed in the amount of $3,000 per year, per new job
created and filled by a new employee, as those terms are defined in
section three of this article for a period of five consecutive years
beginning in the tax year when the new employee is first hired. In
no case may the number of new employees determined for purposes of
this section exceed the total net increase in the taxpayer's
employment in this state. Credit allowed under this section shall
be allowed beginning in the tax year when the new employee is first
hired:
Provided, That each new job:
(1) Pays at least $32,000 annually.
Beginning January 1, 2010,
and on January 1 of each year thereafter, the commissioner shall
prescribe an amount that shall apply in lieu of the $32,000 amount
during that calendar year. This amount is prescribed by increasing
the $32,000 figure by the cost-of-living adjustment for that
calendar year;
(2) Provides health insurance and may offer benefits including
child care, retirement or other benefits; and
(3) Is a full-time, permanent position, as those terms are
defined in section three of this article.
Jobs that pay less than $32,000 annually,
or less than the
amount prescribed by the commissioner pursuant to subdivision (1) of this subsection, whichever is higher, or that pay that salary but
do not also provide benefits in addition to the salary do not
qualify for the credit authorized by this section. Jobs that are
less than full-time, permanent positions do not qualify for the
credit authorized by this section.
The employer having obtained entitlement to the credit shall
not be required to raise wages of employees currently employed in
jobs upon which the initial credit was based by reason of the cost-
of-living adjustment.
_____(b) For purposes of this section, the following definitions
apply:
_____(1) Cost-of-living adjustment. -- For purposes of subsection
(a) of this section, the cost-of-living adjustment for any calendar
year is the percentage (if any) by which the consumer price index
for the preceding calendar year exceeds the consumer price index for
the calendar year 2009.
_____(2) Consumer price index for any calendar year. -- For purposes
of subdivision (1) of this subsection, the consumer price index for
any calendar year is the average of the federal consumer price index
as of the close of the twelve-month period ending on August 31 of
that calendar year.
_____(3) Consumer price index. -- For purposes of subdivision (2) of this subsection, the term "Federal Consumer Price Index" means
the most recent consumer price index for all urban consumers
published by the United States Department of Labor.
_____(4) Rounding. -- If any increase under subdivision (1) of this
subsection is not a multiple of $50, the increase shall be rounded
to the next lowest multiple of $50.
_____(b) (c) Unused credit remaining in any tax year after
application against the taxes specified in section seven of this
article is forfeited and does not carry forward to any succeeding
tax year and does not carry back to a prior tax year.
(c) (d) The tax credit authorized by this section may be taken
in addition to any credits allowable under article thirteen-c,
thirteen-d, thirteen-e, thirteen-f, thirteen-g, thirteen-j,
thirteen-r or thirteen-s of this chapter.
(d) (e) Reduction in number of employees credit forfeiture. --
If, during the year when a new job was created for which credit was
granted under this section or during any of the next succeeding four
tax years thereafter, net jobs that are attributable to and the
consequence of the taxpayer's business operations in this state
decrease, counting both new jobs for which credit was granted under
this section and preexisting jobs, then the total amount of credit
to which the taxpayer is entitled under this section shall be decreased and forfeited in the amount of $3,000 for each net job
lost.
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-3c. Imposition of consumers sales tax on motor vehicle
sales; rate of tax; use of motor vehicle purchased
out of state; definition of sale; definition of
motor vehicle; exemptions; collection of tax by
Division of Motor Vehicles; dedication of tax to
highways; legislative and emergency rules.
(a) Notwithstanding any provision of this article or article
fifteen-a of this chapter to the contrary, beginning on July 1,
2008, all motor vehicle sales to West Virginia residents shall be
subject to the consumers sales tax imposed by this article.
(b)
Rate of tax on motor vehicles. -- Notwithstanding any
provision of this article or article fifteen-a of this chapter to
the contrary, the rate of tax on the sale and use of a motor vehicle
shall be five percent of its sale price, as defined in section two,
article fifteen-b of this chapter:
Provided, That so much of the
sale price or consideration as is represented by the exchange of
other vehicles on which the tax imposed by this section or section
four, article three, chapter seventeen-a of this code has been paid
by the purchaser shall be deducted from the total actual sale price paid for the motor vehicle, whether the motor vehicle be new or
used.
(c)
Motor vehicles purchased out of state. -- Notwithstanding
this article or article fifteen-a to the contrary, the tax imposed
by this section shall apply to all motor vehicles, used as defined
by section one, article fifteen-a of this chapter, within this
state, regardless of whether the vehicle was purchased in a state
other than West Virginia.
(d)
Definition of sale. -- Notwithstanding any provision of
this article or article fifteen-a of this chapter to the contrary,
for purposes of this section, "sale", "sales" or "selling" means any
transfer or lease of the possession or ownership of a motor vehicle
for consideration, including isolated transactions between
individuals not being made in the ordinary course of repeated and
successive business and also including casual and occasional sales
between individuals not conducted in a repeated manner or in the
ordinary course of repetitive and successive transactions.
(e)
Definition of motor vehicle. -- For purposes of this
section, "motor vehicle" means every propellable device in or upon
which any person or property is or may be transported or drawn upon
a highway including, but not limited to: Automobiles; buses; motor
homes; motorcycles; motorboats; all-terrain vehicles; snowmobiles; low-speed vehicles; trucks, truck tractors and road tractors having
a weight of less than fifty-five thousand pounds; trailers,
semitrailers, full trailers, pole trailers and converter gear having
a gross weight of less than two thousand pounds; and motorboat
trailers, fold-down camping trailers, traveling trailers, house
trailers and motor homes; except that the term "motor vehicle" does
not include: modular homes, manufactured homes, mobile homes,
similar nonmotive propelled vehicles susceptible of being moved upon
the highways but primarily designed for habitation and occupancy;
devices operated regularly for the transportation of persons for
compensation under a certificate of convenience and necessity or
contract carrier permit issued by the Public Service Commission;
mobile equipment as defined in section one, article one, chapter
seventeen-a of this code; special mobile equipment as defined in
section one, article one, chapter seventeen-a of this code; trucks,
truck tractors and road tractors having a gross weight of fifty-five
thousand pounds or more; trailers, semitrailers, full trailers, pole
trailers and converter gear having weight of two thousand pounds or
greater:
Provided, That notwithstanding the provisions of section
nine, article fifteen, chapter eleven of this code, the exemption
from tax under this section for mobile equipment as defined in
section one, article one, chapter seventeen-a of this code; special
mobile equipment defined in section one, article one, chapter seventeen-a of this code; Class B trucks, truck tractors and road
tractors registered at a gross weight of fifty-five thousand pounds
or more; and Class C trailers, semitrailers, full trailers, pole
trailers and converter gear having weight of two thousand pounds or
greater does not subject the sale or purchase of the vehicle to the
consumers sales and service tax imposed by section three of this
article.
(f)
Exemptions. -- Notwithstanding any other provision of this
code to the contrary, the tax imposed by this section shall not be
subject to any exemption in this code other than the following:
(1) The tax imposed by this section does not apply to any
passenger vehicle offered for rent in the normal course of business
by a daily passenger rental car business as licensed under the
provisions of article six-d,
of this chapter
seventeen-a of this
code. For purposes of this section, a daily passenger car means a
motor vehicle having a gross weight of eight thousand pounds or less
and is registered in this state or any other state. In lieu of the
tax imposed by this section, there is hereby imposed a tax of not
less than $1 nor more than $1.50 for each day or part of the rental
period. The Commissioner of Motor Vehicles shall propose an
emergency rule in accordance with the provisions of article three,
chapter twenty-nine-a of this code to establish this tax.
(2) The tax imposed by this section does not apply where the
motor vehicle has been acquired by a corporation, partnership or
limited liability company from another corporation, partnership or
limited liability company that is a member of the same controlled
group and the entity transferring the motor vehicle has previously
paid the tax on that motor vehicle imposed by this section. For the
purposes of this section, control means ownership, directly or
indirectly, of stock or equity interests possessing fifty percent
or more of the total combined voting power of all classes of the
stock of a corporation or equity interests of a partnership or
limited liability company entitled to vote or ownership, directly
or indirectly, of stock or equity interests possessing fifty percent
or more of the value of the corporation, partnership or limited
liability company.
(3) The tax imposed by this section does not apply where motor
vehicle has been acquired by a senior citizen service organization
which is exempt from the payment of income taxes under the United
States Internal Revenue Code, Title 26 U. S. C. §501(c)(3) and which
is recognized to be a bona fide senior citizen service organization
by the Bureau of Senior Services existing under the provisions of
article five, chapter sixteen of this code.
(4) The tax imposed by this section does not apply to any
active duty military personnel stationed outside of West Virginia who acquires a motor vehicle by sale within nine months from the
date the person returns to this state.
(5) The tax imposed by this section does not apply to motor
vehicles acquired by registered dealers of this state for resale
only.
(6) The tax imposed by this section does not apply to motor
vehicles acquired by this state or any political subdivision thereof
or by any volunteer fire department or duly chartered rescue or
ambulance squad organized and incorporated under the laws of this
state as a nonprofit corporation for protection of life or property.
(7) The tax imposed by this section does not apply to motor
vehicles acquired by an urban mass transit authority, as defined in
article twenty-seven, chapter eight of this code, or a nonprofit
entity exempt from federal and state income tax under the Internal
Revenue Code for the purpose of providing mass transportation to the
public at large or designed for the transportation of persons and
being operated for the transportation of persons in the public
interest.
(8) The tax imposed by this section does not apply to the
registration of a vehicle owned and titled in the name of a resident
of this state if the applicant:
(A) Was not a resident of this state at the time the applicant purchased or otherwise acquired ownership of the vehicle;
(B) Presents evidence as the Commissioner of Motor Vehicles may
require of having titled the vehicle in the applicant's previous
state of residence;
(C) Has relocated to this state and can present such evidence
as the Commissioner of Motor Vehicles may require to show bona fide
residency in this state;
and
_____(D) Presents an affidavit, completed by the assessor of the
applicant's county of residence, establishing that the vehicle has
been properly reported and is on record in the office of the
assessor as personal property; and
(E) (D) Makes application to the Division of Motor Vehicles for
a title and registration and pays all other fees required by chapter
seventeen-a of this code within thirty days of establishing
residency in this state as prescribed in subsection (a), section
one-a of this article.
(9) On and after January 1, 2009, the tax imposed by this
section does not apply to Class B trucks, truck tractors and road
tractors registered at a gross weight of fifty-five thousand pounds
or more or to Class C trailers, semitrailers, full trailers, pole
trailers and converter gear having a weight of two thousand pounds
or greater. If an owner of a vehicle has previously titled the vehicle at a declared gross weight of fifty-five thousand pounds or
more and the title was issued without the payment of the tax imposed
by this section, then before the owner may obtain registration for
the vehicle at a gross weight less than fifty-five thousand pounds,
the owner shall surrender to the commissioner the exempted
registration, the exempted certificate of title and pay the tax
imposed by this section based upon the current market value of the
vehicle.
_____(10) The tax imposed by this section does not apply to vehicles
leased by residents of West Virginia. On or after January 1, 2009,
a tax is imposed upon the monthly payments for the lease of any
motor vehicle leased under a written contract of lease by a resident
of West Virginia for a contractually specified continuous period of
more than thirty days, which tax is equal to five percent of the
amount of the monthly payment, applied to each payment, and
continuing for the entire term of the initial lease period. The tax
shall be remitted to the Division of Motor Vehicles on a monthly
basis by the lessor of the vehicle. Leases of thirty days or less
are taxable under the provisions of this article and article
fifteen-a of this chapter without reference to this section.
(g)
Division of Motor Vehicles to collect. -- Notwithstanding
any provision of this article, article fifteen-a and article ten of
this chapter to the contrary, the Division of Motor Vehicles shall collect the tax imposed by this section:
Provided, That such tax
is imposed upon the monthly payments for the lease of any motor
vehicle leased by a resident of West Virginia, which tax is equal
to five percent of the amount of the monthly payment, applied to
each payment, and continuing for the entire term of the initial
lease period. The tax shall be remitted to the Division of Motor
Vehicles on a monthly basis by the lessor of the vehicle.
(h)
Dedication of tax to highways. -- Notwithstanding any
provision of this article or article fifteen-a of this chapter to
the contrary, all taxes collected pursuant to this section, after
deducting the amount of any refunds lawfully paid, shall be
deposited in the State Road Fund in the State Treasury and expended
by the Commissioner of Highways for design, maintenance and
construction of roads in the state highway system.
(i)
Legislative rules; emergency rules. -- Notwithstanding any
provision of this article, article fifteen-a and article ten of this
chapter to the contrary, the Commissioner of Motor Vehicles shall
promulgate legislative rules explaining and implementing this
section, which rules shall be promulgated in accordance with the
provisions of article three, chapter twenty-nine-a of this code and
should include a minimum taxable value and set forth instances when
a vehicle is to be taxed at fair market value rather than its
purchase price. The authority to promulgate rules includes authority to amend or repeal those rules. If proposed legislative
rules for this section are filed in the State Register before
June 15, 2008, those rules may be promulgated as emergency
legislative rules as provided in article three, chapter twenty-nine-
a if this code.
(j) Notwithstanding any other provision of this code, effective
January 1, 2009, no municipal sales or use tax or local sales or use
tax or special downtown redevelopment district excise tax or special
district excise tax shall be imposed under article twenty-two,
chapter seven of this code or article thirteen, chapter eight of
this code or article thirteen-b of said chapter or article thirty-
eight of said chapter or any other provision of this code, except
this section, on sales of motor vehicles as defined in this article
or on any tangible personal property excepted or exempted from tax
under this section. Nothing in this subsection shall be construed
to prevent the application of the municipal business and occupation
tax on motor vehicle retailers and leasing companies.
§11-15-9m. Discretionary designation of per se exemptions.
Notwithstanding any other provision of this code, the Tax
Commissioner may, by rule, specify those exemptions authorized in
this article or in other provisions of this code or applicable
federal law for which exemption certificates or direct pay permits are not required.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-21. Senior citizens' tax credit for property tax paid on
first $10,000 of taxable assessed value of a
homestead in this state; tax credit for property tax
paid on the first
$20,000 of value for property tax
years after December 31, 2006.
(a)
Allowance of credit. --
(1) A low-income person who is allowed a $20,000 homestead
exemption from the assessed value of his or her homestead for ad
valorem property tax purposes, as provided in section three, article
six-b of this chapter, shall be allowed a refundable credit against
the taxes imposed by this article equal to the amount of ad valorem
property taxes paid on up to the first $10,000 of taxable assessed
value of the homestead for property tax years that begin on or after
January 1, 2003, except as provided in subdivision (2) of this
subsection.
(2) For tax years beginning on or after January 1, 2007, a low-
income person who is allowed a $20,000 homestead exemption from the
assessed value of his or her homestead for ad valorem property tax
purposes, as provided in section three, article six-b of this
chapter, shall be allowed a refundable credit against the taxes imposed by this article equal to the amount of ad valorem property
taxes paid on up to the first $20,000 of taxable assessed value of
the homestead for property tax years that begin on or after
January 1, 2007:
Provided, That for tax years beginning on and
after January 1, 2009, any person who is required to pay the federal
alternative minimum income tax in the current tax year is
disqualified from receiving any tax credit provided under this
section.
(3) Due to the administrative cost of processing, the
refundable credit authorized by this section may not be refunded if
less than $10.
(4) The credit for each property tax year shall be claimed by
filing a claim for refund within three years after the due date for
the personal income tax return upon which the credit is first
available.
(b)
Terms defined. --
For purposes of this section:
(1) "Low income" means federal adjusted gross income for the
taxable year that is one hundred fifty percent or less of the
federal poverty guideline for the year in which property tax was
paid, based upon the number of individuals in the family unit
residing in the homestead, as determined annually by the United States Secretary of Health and Human Services.
(2) (A) For tax years beginning before January 1, 2007, "taxes
paid" means the aggregate of regular levies, excess levies and bond
levies extended against not more than $10,000 of the taxable
assessed value of a homestead that are paid during the calendar year
determined after application of any discount for early payment of
taxes but before application of any penalty or interest for late
payment of property taxes for a property tax year that begins on or
after January 1, 2003, except as provided in paragraph (B) of this
subdivision.
(B) For tax years beginning on or after January 1, 2007, "taxes
paid" means the aggregate of regular levies, excess levies and bond
levies extended against not more than $20,000 of the taxable
assessed value of a homestead that are paid during the calendar year
determined after application of any discount for early payment of
taxes but before application of any penalty or interest for late
payment of property taxes for a property tax year that begins on or
after January 1, 2007.
(c)
Legislative rule. --
The Tax Commissioner shall propose a legislative rule for
promulgation as provided in article three, chapter twenty-nine-a of
this code to explain and implement this section.
(d)
Confidentiality. --
The Tax Commissioner shall utilize property tax information in
the statewide electronic data processing system network to the
extent necessary for the purpose of administering this section,
notwithstanding any provision of this code to the contrary.
§11-21-22. Low-income family tax credit.
In order to eliminate West Virginia personal income tax on
families with incomes below the federal poverty guidelines and to
reduce the West Virginia personal income tax on families with
incomes that are immediately above the federal poverty guidelines,
there is hereby created a nonrefundable tax credit, to be known as
the low-income family tax credit, against the West Virginia personal
income tax. The low-income family tax credit is based upon family
size and the federal poverty guidelines.
and The low-income tax
credit reduces the tax imposed by the provisions of this article on
families with modified federal adjusted gross income below or near
the federal poverty guidelines:
Provided, That for tax years
beginning on and after January 1, 2009, any person who is required
to pay the federal alternative minimum income tax in the current tax
year is disqualified from receiving any tax credit provided under
this section.
§11-21-23. Refundable credit for real property taxes paid in excess of four percent of income.
(a) For the tax years beginning on or after January 1, 2008,
any homeowner living in his or her homestead shall be allowed a
refundable credit against the taxes imposed by this article equal
to the amount of real property taxes paid in excess of four percent
of their income. If the refundable credit provided in this section
exceeds the amount of taxes imposed by this article, the state
Department of Revenue shall refund that amount to the homeowner.
(b) Due to the administrative cost of processing, the
refundable credit authorized by this section may not be refunded if
less than $10.
(c) The credit for each property tax year shall be claimed by
filing a claim for refund within twelve months after the real
property taxes are paid on the homestead.
(d) For the purposes of this section:
(1) "Gross household income" is defined as federal adjusted
gross income plus the sum of the following:
(A) Modifications in subsection (b), section twelve of this
article increasing federal adjusted gross income;
(B) Federal tax-exempt interest reported on federal tax return;
(C) Workers' compensation and loss of earnings insurance; and
(D) Nontaxable Social Security benefits; and
(2) For the tax years beginning before January 1, 2008, "real
property taxes paid" means the aggregate of regular levies, excess
levies and bond levies extended against the homestead that are paid
during the calendar year and determined after any application of any
discount for early payment of taxes but before application of any
penalty or interest for late payment of property taxes for property
tax years that begin on or after January 1, 2008.
(e) A homeowner is eligible to benefit from this section or
section twenty-one of this article, whichever section provides the
most benefit as determined by the homeowner. No homeowner may
receive benefits under both this section and section twenty-one of
this article during the same taxable year.
For tax years beginning
on and after January 1, 2009, any person who is required to pay the
federal alternative minimum income tax in the current tax year is
disqualified from receiving any tax credit provided under this
section. Nothing in this section denies those entitled to the
homestead exemption provided in section three, article six-b of this
chapter.
(f) No homeowner may receive a refundable tax credit imposed
by this article in excess of $1,000. This amount shall be reviewed
annually by the Legislature to determine if an adjustment is necessary.
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-3a. Specific terms defined.
(a) For purposes of this article:
_____(1) Aggregate effective rate of tax. -- The term "aggregate
effective rate of tax" shall mean the sum of the effective rates of
tax imposed by a state or United States possession or any
combination thereof on a related member.
_____(1) (2) Business income. -- The term "business income" means
income arising from transactions and activity in the regular course
of the taxpayer's trade or business and includes income from
tangible and intangible property if the acquisition, management and
disposition of the property or the rendering of services in
connection therewith constitute integral parts of the taxpayer's
regular trade or business operations and includes all income which
is apportionable under the Constitution of the United States.
_____(3) Captive real estate investment trust. -- The term "captive
real estate investment trust" shall mean a real estate investment
trust, the shares or beneficial interests of which:
_____(A) Are not regularly traded on an established securities
market and:
_____(B) Are more than fifty percent of the voting power or value of the beneficial interests or shares of which are owned or
controlled, directly or indirectly or constructively, by a single
entity that is:
_____(i) Treated as an association taxable as a corporation under
the Internal Revenue Code of 1986, as amended; and
_____(ii) Not exempt from federal income tax pursuant to the
provisions of Section 501(a) of the Internal Revenue Code of 1986,
as amended:
_____(C) For purposes of applying subparagraph (i), paragraph (B)
of this subdivision, the following entities are not considered an
association taxable as a corporation:
_____(i) Any real estate investment trust as defined in Section 856
of the Internal Revenue Code of 1986, as amended, other than a
"captive real estate investment trust";
_____(ii) Any qualified real estate investment trust subsidiary
under Section 856(i) of the Internal Revenue Code of 1986, as
amended, other than a qualified real estate investment trust
subsidiary of a "captive real estate investment trust";
_____(iii) Any listed Australian property trust, meaning an
Australian unit trust registered as a "managed investment scheme"
under the Australian Corporations Act in which the principal class
of units is listed on a recognized stock exchange in Australia and is regularly traded on an established securities market, or an
entity organized as a trust, provided that a listed Australian
property trust owns or controls, directly or indirectly, seventy-
five percent or more of the voting power or value of the beneficial
interests or shares of the trust; or
_____(iv) Any qualified foreign entity, meaning a corporation,
trust, association or partnership organized outside the laws of the
United States and which satisfies the following criteria:
_____(1) At least seventy-five percent of the entity's total asset
value at the close of its taxable year is represented by real estate
assets as defined in Section 856(c)(5)(B) of the Internal Revenue
Code of 1986, as amended, thereby including shares or certificates
of beneficial interest in any real estate investment trust, cash and
cash equivalents and United States government securities;
_____(2) The entity is not subject to tax on amounts distributed to
its beneficial owners or is exempt from entity-level taxation;
_____(3) The entity distributes at least eighty-five percent of its
taxable income as computed in the jurisdiction in which it is
organized to the holders of its shares or certificates of beneficial
interest on an annual basis;
_____(4) Not more than ten percent of the voting power or value in
the entity is held directly or indirectly or constructively by a single entity or individual or the shares or beneficial interests
of the entity are regularly traded on an established securities
market; and
_____(5) The entity is organized in a country which has a tax treaty
with the United States.
_____(D) A real estate investment trust that is intended to be
regularly traded on an established securities market, and that
satisfies the requirements of Section 856(a)(5) and (6) of the U.
S. Internal Revenue Code by reason of Section 856(h)(2) of the
Internal Revenue Code is not considered a captive real estate
investment trust within the meaning of this section.
_____(E) A real estate investment trust that does not become
regularly traded on an established securities market within one year
of the date on which it first becomes a real estate investment trust
is not considered not to have been regularly traded on an
established securities market, retroactive to the date it first
became a real estate investment trust, and shall file an amended
return reflecting the retroactive designation for any tax year or
part year occurring during its initial year of status as a real
estate investment trust. For purposes of this section, a real
estate investment trust becomes a real estate investment trust on
the first day that it has both met the requirements Section 856 of the Internal Revenue Code and has elected to be treated as a real
estate investment trust pursuant to Section 856(c)(1) of the
Internal Revenue Code.
_____(2) (4) Business income. Combined group. -- The term "combined
group" means the group of all persons whose income and apportionment
factors are required to be taken into account pursuant to subsection
(a) or (b) (j) or (k), section thirteen-a of this article in
determining the taxpayer's share of the net business income or loss
apportionable to this state.
(3) (5) Commercial domicile. -- The term "commercial domicile"
means the principal place from which the trade or business of the
taxpayer is directed or managed:
Provided, That the commercial
domicile of a financial organization, which is subject to regulation
as such, shall be at the place designated as its principal office
with its regulating authority.
(4) (6) Compensation. -- The term "compensation" means wages,
salaries, commissions and any other form of remuneration paid to
employees for personal services.
(5) (7) Corporation. -- "Corporation" means any corporation as
defined by the laws of this state or organization of any kind
treated as a corporation for tax purposes under the laws of this
state, wherever located, which if it were doing business in this state would be subject to the tax imposed by this article. The
business conducted by a partnership which is directly or indirectly
held by a corporation shall be considered the business of the
corporation to the extent of the corporation's distributive share
of the partnership income, inclusive of guaranteed payments to the
extent prescribed by regulation. The term "corporation" includes
a joint-stock company and any association or other organization
which is taxable as a corporation under the federal income tax law.
(6) (8) Delegate. -- The term "delegate" in the phrase "or his
or her delegate", when used in reference to the Tax Commissioner,
means any officer or employee of the State Tax Division duly
authorized by the Tax Commissioner directly, or indirectly by one
or more redelegations of authority, to perform the functions
mentioned or described in this article or regulations promulgated
thereunder.
(7) (9) Domestic corporation. -- The term "domestic
corporation" means any corporation organized under the laws of West
Virginia and certain corporations organized under the laws of the
state of Virginia before June 20, 1863. Every other corporation is
a foreign corporation.
_____(10) Effective rate of tax. -- The term "effective rate of tax"
means, as to any state or United States possession, the maximum statutory rate of tax imposed by the state or possession on a
related member's net income multiplied by the apportionment
percentage, if any, applicable to the related member under the laws
of said jurisdiction. For purposes of this definition, the
effective rate of tax as to any state or United States possession
is zero where the related member's net income tax liability in said
jurisdiction is reported on a combined or consolidated return
including both the taxpayer and the related member where the
reported transactions between the taxpayer and the related member
are eliminated or offset. Also, for purposes of this definition,
when computing the effective rate of tax for a jurisdiction in which
a related member's net income is eliminated or offset by a credit
or similar adjustment that is dependent upon the related member
either maintaining or managing intangible property or collecting
interest income in that jurisdiction, the maximum statutory rate of
tax imposed by said jurisdiction shall be decreased to reflect the
statutory rate of tax that applies to the related member as
effectively reduced by the credit or similar adjustment.
_____(8) (11) Engaging in business. -- The term "engaging in
business" or "doing business" means any activity of a corporation
which enjoys the benefits and protection of government and laws in
this state.
(9) (12) Federal Form 1120. -- The term "Federal Form 1120" means the annual federal income tax return of any corporation made
pursuant to the United States Internal Revenue Code of 1986, as
amended, or in successor provisions of the laws of the United
States, in respect to the federal taxable income of a corporation,
and filed with the federal Internal Revenue Service. In the case
of a corporation that elects to file a federal income tax return as
part of an affiliated group, but files as a separate corporation
under this article, then as to such corporation Federal Form 1120
means its pro forma Federal Form 1120.
(10) (13) Fiduciary. -- The term "fiduciary" means, and
includes, a guardian, trustee, executor, administrator, receiver,
conservator or any person acting in any fiduciary capacity for any
person.
(11) (14) Financial organization. -- The term "financial
organization" means:
(A) A holding company or a subsidiary thereof. As used in this
section, "holding company" means a corporation registered under the
federal Bank Holding Company Act of 1956 or registered as a savings
and loan holding company other than a diversified savings and loan
holding company as defined in Section 408(a)(1)(F) of the federal
National Housing Act, 12 U. S. C. §1730(a)(1)(F);
(B) A regulated financial corporation or a subsidiary thereof. As used in this section "regulated financial corporation" means:
(i) An institution, the deposits, shares or accounts of which
are insured under the Federal Deposit Insurance Act or by the
federal Savings and Loan Insurance Corporation;
(ii) An institution that is a member of a federal home loan
bank;
(iii) Any other bank or thrift institution incorporated or
organized under the laws of a state that is engaged in the business
of receiving deposits;
(iv) A credit union incorporated and organized under the laws
of this state;
(v) A production credit association organized under 12 U. S.
C. §2071;
(vi) A corporation organized under 12 U. S. C. §611 through
§631 (an Edge Act corporation); or
(vii) A federal or state agency or branch of a foreign bank as
defined in 12 U. S. C. §3101; or
(C) A corporation which derives more than fifty percent of its
gross business income from one or more of the following activities:
(i) Making, acquiring, selling or servicing loans or extensions
of credit. Loans and extensions of credit include:
(I) Secured or unsecured consumer loans;
(II) Installment obligations;
(III) Mortgages or other loans secured by real estate or
tangible personal property;
(IV) Credit card loans;
(V) Secured and unsecured commercial loans of any type; and
(VI) Loans arising in factoring;
(ii) Leasing or acting as an agent, broker or advisor in
connection with leasing real and personal property that is the
economic equivalent of an extension of credit as defined by the
Federal Reserve Board in 12 CFR 225.25(b)(5);
(iii) Operating a credit card business;
(iv) Rendering estate or trust services;
(v) Receiving, maintaining or otherwise handling deposits;
(vi) Engaging in any other activity with an economic effect
comparable to those activities described in subparagraph (
I)
(i),
(ii), (iii), (iv) or (v) of this paragraph.
(12) (15) Fiscal year. -- The term "fiscal year" means an
accounting period of twelve months ending on any day other than the
last day of December and on the basis of which the taxpayer is
required to report for federal income tax purposes.
(13) (16) Includes and including. -- The terms "includes" and
"including", when used in a definition contained in this article,
do not exclude other things otherwise within the meaning of the term
being defined.
(14) (17) Insurance company. -- The term "insurance company"
means any corporation subject to taxation under section twenty-two,
article three, chapter twenty-nine of this code or chapter thirty-
three of this code or an insurance carrier subject to the surcharge
imposed by subdivision (1) or (3), subsection (f), section three,
article two-c, chapter twenty-three of this code or any corporation
that would be subject to taxation under any of those provisions were
its business transacted in this state.
_____(18) Intangible expense. -- The term "intangible expense"
includes: (A) Expenses, losses and costs for, related to or in
connection directly or indirectly with the direct or indirect
acquisition, use, maintenance or management, ownership, sale,
exchange or any other disposition of intangible property to the
extent those amounts are allowed as deductions or costs in
determining taxable income before operating loss deductions and
special deductions for the taxable year under the Internal Revenue
Code; (B) amounts directly or indirectly allowed as deductions under
Section 163 of the Internal Revenue Code for purposes of determining
taxable income under the Internal Revenue Code to the extent those expenses and costs are directly or indirectly for, related to or in
connection with the expenses, losses and costs referenced in
subdivision (A) of this subsection; (C) losses related to, or
incurred in connection directly or indirectly with, factoring
transactions or discounting transactions; (D) royalty, patent,
technical and copyright fees; (E) licensing fees; and (F) other
similar expenses and costs.
_____(19) Intangible property. -- "Intangible property" includes
patents, patent applications, trade names, trademarks, service
marks, copyrights, mask works, trade secrets and similar types of
intangible assets.
_____(20) Interest expense. -- "Interest expense" means amounts
directly or indirectly allowed as deductions under Section 163 of
the Internal Revenue Code for purposes of determining taxable income
under the Internal Revenue Code.
_____(15) (21) "
Internal Revenue Code" means the Internal Revenue
Code as defined in section three of this article,
as amended and in
effect for the taxable year and without regard to application of
federal treaties unless expressly made applicable to states of the
United States.
(16) (22) Nonbusiness income.-- The term "nonbusiness income"
means all income other than business income.
_____(23) Ownership. -- In determining the ownership of stock,
assets or net profits of any person, the constructive ownership of
Section 318(a) of the Internal Revenue Code of 1986, as amended, as
modified by Section 856(d)(5) of the Internal Revenue Code of 1986,
as amended, shall apply.
_____(17) (24) "Partnership" means a general or limited partnership
or organization of any kind treated as a partnership for tax
purposes under the laws of this state.
(18) (25) Person. -- The term "person" is considered
interchangeable with the term "corporation" in this section. The
term "person" means any individual, firm, partnership, general
partner of a partnership, limited liability company, registered
limited liability partnership, foreign limited liability
partnership, association, corporation whether or not the corporation
is, or would be if doing business in this state, subject to the tax
imposed by this article, company, syndicate, estate, trust, business
trust, trustee, trustee in bankruptcy, receiver, executor,
administrator, assignee or organization of any kind.
(19) (26) Pro forma return. -- The term "pro forma return" when
used in this article means the return which the taxpayer would have
filed with the Internal Revenue Service had it not elected to file
federally as part of an affiliated group.
(20) (27) Public utility. -- The term "public utility" means
any business activity to which the jurisdiction of the Public
Service Commission of West Virginia extends under section one,
article two, chapter twenty-four of this code.
(21) Qualified real estate investment trust. - The term
"Qualified Real Estate Investment Trust" means any real estate
invest trust where no single entity owns or controls, directly or
indirectly, constructively or otherwise, fifty percent or more of
the voting power or value of the beneficial interests or shares of
the trust, if the single entity is:
(A) Subject to the provisions of subchapter C, chapter 1,
subtitle A, title 26 of the United States Code, as amended;
(B) Not exempt from federal income tax pursuant to the
provisions of Section 501 of the Internal Revenue Code of 1986, as
amended; and
(C) Not a real estate invest trust as defined in this section
or a qualified real estate invest trust subsidiary under Section
856(I) of the Internal Revenue Code of 1986, as amended.
(22) (28) Qualified regulated investment company. -- The term
"qualified regulated investment company" means any regulated
investment company
where no single entity owns or controls, other
than a regulated investment company where more than fifty percent of the voting power or value of the beneficial interests or share
of which are owned or controlled, directly or indirectly,
constructively or otherwise,
fifty percent or more of the voting
power or value of the beneficial interests or shares of the company,
if the by a single entity
that is:
(A) Subject to the provision of subchapter C, chapter 1,
subtitle A, Title 26 of the United States Code, as amended;
(B) Not exempt from federal income tax pursuant to the
provision of Section 501 of the Internal Revenue Code of 1986, as
amended; and
(C) Not a regulated investment company as defined in Section
3 of the Investment Company Act of 1940, as amended, 15 U. S. C.
80a-3:
Provided, That a regulated invested company, the shares of
which are held in a segregated asset account of a life insurance
corporation (as described in Section 817 of the Internal Revenue
Code of 1986, as amended), shall be treated as a qualified regulated
investment company.
(23) (29) Real estate investment trust. -- The term "real
estate investment trust" has the meaning ascribed to such term in
Section 856 of the Internal Revenue Code of 1986, as amended.
(24) (30) Regulated investment company.-- The term "regulated
investment company" has the same meaning as ascribed to such term in Section 851 of the Internal Revenue Code of 1986, as amended.
_____(31) Related entity. -- "Related entity" means: (A) A
stockholder who is an individual or a member of the stockholder's
family set forth in Section 318 of the Internal Revenue Code if the
stockholder and the members of the stockholder's family own,
directly, indirectly, beneficially or constructively, in the
aggregate, at least fifty percent of the value of the taxpayer's
outstanding stock; (B) a stockholder, or a stockholder's
partnership, limited liability company, estate, trust or
corporation, if the stockholder and the stockholder's partnerships,
limited liability companies, estates, trusts and corporations own
directly, indirectly, beneficially or constructively, in the
aggregate, at least fifty percent of the value of the taxpayer's
outstanding stock; or (C) a corporation, or a party related to the
corporation in a manner that would require an attribution of stock
from the corporation to the party or from the party to the
corporation under the attribution rules of the Internal Revenue Code
if the taxpayer owns, directly, indirectly, beneficially or
constructively, at least fifty percent of the value of the
corporation's outstanding stock. The attribution rules of the
Internal Revenue Code shall apply for purposes of determining
whether the ownership requirements of this definition have been met.
_____(32) Related member. -- "Related member" means a person that, with respect to the taxpayer during all or any portion of the
taxable year, is: (A) A related entity; (B) a component member as
defined in subsection (b), Section 1563 of the Internal Revenue
Code; (C) a person to or from whom there is attribution of stock
ownership in accordance with subsection (e), Section 1563 of the
Internal Revenue Code; or (D) a person that, notwithstanding its
form or organization, bears the same relationship to the taxpayer
as a person described in subdivisions (A) through (C), inclusive,
of this subsection.
_____(25) (33) Sales. -- The term "sales" means all gross receipts
of the taxpayer that are "business income" as defined in this
section.
(26) (34) State. -- The term "state" means any state of the
United States, the District of Columbia, the Commonwealth of Puerto
Rico, any territory or possession of the United States and any
foreign country or political subdivision thereof.
(28) (35) Tax. -- The term "tax" includes, within its meaning,
interest and additions to tax, unless the intention to give it a
more limited meaning is disclosed by the context.
(27) (36) Taxable year, tax year. -- The term "taxable year"
or "tax year" means the taxable year for which the taxable income
of the taxpayer is computed under the federal income tax law.
(29) (37) Tax Commissioner. -- The term "Tax Commissioner"
means the Tax Commissioner of the State of West Virginia or his or
her delegate.
(30) (38) Tax haven. -- The term "tax haven" means a
jurisdiction that, for a particular tax year in question: (A) Is
identified by the Organization for Economic Cooperation and
Development as a tax haven or as having a harmful preferential tax
regime; or (B) a jurisdiction that has no, or nominal, effective tax
on the relevant income and: (i) That has laws or practices that
prevent effective exchange of information for tax purposes with
other governments regarding taxpayers subject to, or benefitting
from, the tax regime; (ii) that lacks transparency. For purposes
of this definition, a tax regime lacks transparency if the details
of legislative, legal or administrative provisions are not open to
public scrutiny and apparent or are not consistently applied among
similarly situated taxpayers; (iii) facilitates the establishment
of foreign-owned entities without the need for a local substantive
presence or prohibits these entities from having any commercial
impact on the local economy; (iv) explicitly or implicitly excludes
the jurisdiction's resident taxpayers from taking advantage of the
tax regime's benefits or prohibits enterprises that benefit from the
regime from operating in the jurisdiction's domestic market; or (v)
has created a tax regime which is favorable for tax avoidance, based upon an overall assessment of relevant factors, including whether
the jurisdiction has a significant untaxed offshore financial or
other services sector relative to its overall economy. For purposes
of this definition, the phrase "tax regime" means a set or system
of rules, laws, regulations or practices by which taxes are imposed
on any person, corporation or entity, or on any income, property,
incident, indicia or activity pursuant to governmental authority.
(31) (39) Taxpayer. -- The term "taxpayer" means any person
subject to the tax imposed by this article.
(32) (40) This code. -- The term "this code" means the Code of
West Virginia, 1931, as amended.
(33) (41) This state. -- The term "this State" means the State
of West Virginia.
(34) (42) "United States" means the United States of America
and includes all of the states of the United States, the District
of Columbia and United States territories and possessions.
(35) (43) "Unitary business" means a single economic enterprise
that is made up either of separate parts of a single business entity
or of a commonly controlled group of business entities that are
sufficiently interdependent, integrated and interrelated through
their activities so as to provide a synergy and mutual benefit that
produces a sharing or exchange of value among them and a significant flow of value to the separate parts. For purposes of this article
and article twenty-three of this chapter, any business conducted by
a partnership shall be treated as conducted by its partners, whether
directly held or indirectly held through a series of partnerships,
to the extent of the partner's distributive share of the
partnership's income, regardless of the percentage of the partner's
ownership interest or the percentage of its distributive or any
other share of partnership income. A business conducted directly
or indirectly by one corporation through its direct or indirect
interest in a partnership is unitary with that portion of a business
conducted by one or more other corporations through their direct or
indirect interest in a partnership if there is a synergy and mutual
benefit that produces a sharing or exchange of value among them and
a significant flow of value to the separate parts and the
corporations are members of the same commonly controlled group.
(36) (44) West Virginia taxable income. -- The term "West
Virginia taxable income" means the taxable income of a corporation
as defined by the laws of the United States for federal income tax
purposes, adjusted, as provided in this article:
Provided, That in
the case of a corporation having income from business activity which
is taxable without this state, its "West Virginia taxable income"
shall be the portion of its taxable income as defined and adjusted
as is allocated or apportioned to this state under the provisions of this article.
_____(45) Valid business purpose. -- " Valid business purpose" means
one or more business purposes, other than the avoidance or reduction
of taxation, which alone or in combination constitute the primary
motivation for a business activity or transaction, which activity
or transaction changes in a meaningful way, apart from tax effects,
the economic position of the taxpayer. The economic position of the
taxpayer includes an increase in the market share of the taxpayer
or the entry by the taxpayer into new business markets.
_____(b) Effective date. -- The amendments to this section made in
the year 2009 are retroactive and are effective for tax years
beginning on and after January 1, 2009.
§11-24-4b. Dividends paid deduction to be added back in
determining net income for captive real estate
investment trusts and regulated investment
companies; deductible intangible expenses and
deductible interest paid to be added back in
determining net income of certain entities.
(a) The dividend paid deduction otherwise allowed by federal
law in computing net income of a real estate investment trust that
is subject to federal income tax shall be added back in computing
the tax imposed by this article if the real estate investment trust is a captive real estate investment trust.
(b) The dividend paid deduction otherwise allowed by federal
law in computing net income of a regulated investment company that
is subject to federal income tax shall be added back in computing
the tax imposed by this article unless the regulated investment
company is a qualified regulated investment company as defined in
this article.
(c)
Intangible expenses otherwise deductible to be added back
for certain taxpayers. --
(1) For purposes of computing its net income under this
chapter, a taxpayer shall add back otherwise deductible intangible
expense directly or indirectly paid, accrued or incurred in
connection with one or more direct or indirect transactions with one
or more related members.
(2) If the related member was subject to tax in this state or
another state or possession of the United States or a foreign nation
or some combination thereof on a tax base that included the
intangible expense paid, accrued or incurred by the taxpayer, the
taxpayer shall receive a credit against tax due in this state in an
amount equal to the higher of the tax paid by the related member
with respect to the portion of its income representing the
intangible expense paid, accrued or incurred by the taxpayer, or the tax that would have been paid by the related member with respect to
that portion of its income if: (A) That portion of its income had
not been offset by expenses or losses; or (B) the tax liability had
not been offset by a credit or credits. The credit determined shall
be multiplied by the apportionment factor of the taxpayer in this
state. However, in no case shall the credit exceed the taxpayer's
liability in this state attributable to the net income taxed as a
result of the adjustment required by subdivision (1) of this
subsection.
(3) (A) The adjustment required in subdivision (1) of this
subsection and the credit allowed in subdivision (2) of this
subsection shall not apply to the portion of the intangible expense
that the taxpayer establishes by clear and convincing evidence meets
both of the following requirements: (i) The related member during
the same taxable year directly or indirectly paid, accrued or
incurred a portion to a person that is not a related member; and
(ii) the transaction giving rise to the intangible expense between
the taxpayer and the related member was undertaken for a valid
business purpose.
(B) The adjustment required in subdivision (1) of this
subsection and the credit allowed in subdivision (2) of this
subsection shall not apply if the taxpayer establishes by clear and
convincing evidence of the type and in the form specified by the Tax Commissioner that: (i) The related member was subject to tax on its
net income in this state or another state or possession of the
United States or some combination thereof; (ii) the tax base for
said tax included the intangible expense paid, accrued or incurred
by the taxpayer; and (iii) the aggregate effective rate of tax
applied to the related member is no less than the tax rate imposed
under this article.
(C) The adjustment required in subdivision (1) of this
subsection and the credit allowed in subdivision (2) of this
subsection shall not apply if the taxpayer establishes by clear and
convincing evidence of the type and in the form specified by the
commissioner that: (i) The intangible expense was paid, accrued or
incurred to a related member organized under the laws of a country
other than the United States; (ii) the related member's income from
the transaction was subject to a comprehensive income tax treaty
between that country and the United States; (iii) the related
member's income from the transaction was taxed in that country at
a tax rate at least equal to that imposed by this state; and (iv)
the intangible expense was paid, accrued or incurred pursuant to a
transaction that was undertaken for a valid business purpose and
using terms that reflect an arm's length relationship.
(D) The adjustment required in subdivision (1) of this
subsection and the credit allowed in subdivision (2) of this subsection shall not apply if the corporation and the commissioner
agree in writing to the application or use of alternative
adjustments or computations. The commissioner may, in his or her
discretion, agree to the application or use of alternative
adjustments or computations when he or she concludes that in the
absence of agreement the income of the taxpayer would not be
reflected accurately.
(d)
Interest expense otherwise deductible to be added back for
certain taxpayers. --
(1) For purposes of computing its net income under this
chapter, a taxpayer shall add back otherwise deductible interest
paid, accrued or incurred to a related member during the taxable
year.
(2) If the related member was subject to tax in this state or
another state or possession of the United States or a foreign nation
or some combination thereof on a tax base that included the interest
expense paid, accrued or incurred by the taxpayer, the taxpayer
shall receive a credit against tax due in this state equal to the
higher of the tax paid by the related member with respect to the
portion of its income representing the interest expense paid,
accrued or incurred by the taxpayer, or the tax that would have been
paid by the related member with respect to that portion of its income if: (A) That portion of its income had not been offset by
expenses or losses; or (B) the tax liability had not been offset by
a credit or credits. The credit determined shall be multiplied by
the apportionment factor of the taxpayer in this state. However,
in no case shall the credit exceed the taxpayer's liability in this
state attributable to the tax imposed under this article as a result
of the adjustment required by subdivision (1) of this subsection.
(3) (A) The adjustment required in subdivision (1) of this
subsection and the credit allowed in subdivision (2) of this
subsection shall not apply if the taxpayer establishes by clear and
convincing evidence, of the type and in the form determined by the
commissioner, that: (i) The transaction giving rise to interest
expense between the taxpayer and the related member was undertaken
for a valid business purpose; and (ii) the interest expense was
paid, accrued or incurred using terms that reflect an arm's length
relationship.
(B) The adjustment required in subdivision (1) of this
subsection and the credit allowed in subdivision (2) of this
subsection shall not apply if the taxpayer establishes by clear and
convincing evidence of the type and in the form specified by the
commissioner that: (i) The related member was subject to tax on its
net income in this state or another state or possession of the
United States or some combination thereof; (ii) the tax base for said tax included the interest expense paid, accrued or incurred by
the taxpayer; and (iii) the aggregate effective rate of tax applied
to the related member is no less than the statutory rate of tax
applied to the taxpayer under this chapter.
(C) The adjustment required in subdivision (1) of this
subsection and the credit allowed in subdivision (2) of this
subsection shall not apply if the taxpayer establishes by clear and
convincing evidence of the type and in the form specified by the
commissioner that: (i) The interest expense is paid, accrued or
incurred to a related member organized under the laws of a country
other than the United States; (ii) the related member's income from
the transaction is subject to a comprehensive income tax treaty
between that country and the United States; (iii) the related
member's income from the transaction is taxed in that country at a
tax rate at least equal to that imposed by this state; and (iv) the
interest expense was paid, accrued or incurred pursuant to a
transaction that was undertaken for a valid business purpose and
using terms that reflect an arm's length relationship.
(D) The adjustment required in subdivision (1) of this
subsection and the credit allowed in subdivision (2) of this
subsection shall not apply if the corporation and the commissioner
agree in writing to the application or use of alternative
adjustments or computations. The commissioner may, in his or her discretion, agree to the application or use of alternative
adjustments or computations when he or she concludes that in the
absence of agreement the income of the taxpayer would not be
properly reflected.
(e) Nothing in this subsection shall be construed to limit or
negate the commissioner's authority to otherwise enter into
agreements and compromises otherwise allowed by law.
(f)
Effective date. -- The amendments to this section made in
the year 2009 are retroactive and are effective for tax years
beginning on and after January 1, 2009.
CHAPTER 18. EDUCATION.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-2a. Definition of levies for general current expense
purposes.
(a) For the purposes of this section only, "property" means
only Classes II, III and IV properties exclusive of natural
resources property as defined in section ten, article one-c, chapter
eleven of this code, personal property, farmland, managed
timberland, public utility property or any other centrally assessed
property provided in paragraphs (A), (B), (C) and (D), subdivision
(2), subsection (a), section five, article one-c, chapter eleven of
this code: Provided, That nothing in this subsection may be construed to require that levies for general current expense
purposes be applied only to those properties that are included in
this definition.
(b) For the purposes of this section only, the median ratio of
the assessed values to actual selling prices in the assessment ratio
study applicable to the immediately preceding fiscal year shall be
used as the indicator to determine the percentage market value that
properties are being assessed at.
(c) Notwithstanding any other provision of this section or
section two of this article, effective the first day of July, two
thousand ten July 1, 2013, for any county that is not assessing
property at least at fifty-four percent of market value, "levies for
general current expense purposes" means ninety-eight percent of the
levy rate for county boards of education set by the Legislature
pursuant to section six-f, article eight, chapter eleven of this
code.
(d) Any county that receives additional state aid due to its
using a percentage less than ninety-eight percent in the calculation
of levies for general current expense purposes, shall report to the
state board how the additional state aid was used. The state board
shall compile the reports from all the county boards into a single
report, and shall report to the Legislative Oversight Commission on Education Accountability how the county boards used this additional
state aid. The report shall be made annually as soon as practical
after the end of each fiscal year.
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.
§21A-6-1c. Voluntary withholding program.
(a) An individual filing a new claim for unemployment
compensation shall, at the time of filing
such the claim, be advised
by the appropriate bureau employee that:
(1) Unemployment compensation is subject to federal
and state
income tax;
(2) Requirements exist pertaining to estimated tax payments;
(3) The individual may elect to have federal
and state income
tax deducted and withheld from the individual's payment of
unemployment compensation at the
specified in the federal Internal
Revenue Code appropriate federal and state withholding rate; and
(4) The individual may change a previously elected withholding
status.
(b) Amounts deducted and withheld from unemployment
compensation shall remain in the unemployment fund until transferred
to the
appropriate federal
or state taxing authority as payment of income tax.
(c) The commissioner shall follow all procedures specified by
the United States Department of Labor,
and the federal Internal
Revenue Service
and the West Virginia State Tax Division pertaining
to the deducting and withholding of income tax.
(d) Amounts shall be deducted and withheld in accordance with
the priorities established in rules developed by the commissioner.
(e) This section shall not be effective prior to payments made
after December 31, one thousand nine hundred and ninety-six.
_____(e) Effective date. -- The amendments made to this section
regarding withholding for state income tax shall be effective for
payments made on and after January 1, 2010.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 540--A Bill to amend and
reenact §11-6I-3 and §11-6I-5 of the Code of West Virginia, 1931,
as amended; to amend and reenact §11-10-5e of said code; to amend
said code by adding thereto a new section, designated §11-10-25; to
amend and reenact §11-13Q-22 of said code; to amend and reenact §11-
15-3c of said code; to amend said code by adding thereto a new
section, designated §11-15-9m; to amend and reenact §11-21-21, §11-21-22 and §11-21-23 of said code; to amend and reenact §11-24-3a and
§11-24-4b of said code; to amend and reenact §18-9A-2a of said code;
and to amend and reenact §21A-6-1c of said code, all relating to
taxation; specifying authority of the Tax Commissioner to designate
Tax Division documents that may be sent by personal service, United
States postal service, regular mail, certified mail or registered
mail or other means; specifying statutory burden of proof and
presumption against tax exemptions; specifying inflation adjustment
for certain economic opportunity tax credit entitlement
requirements; specifying exclusion of sales and use of certain motor
vehicles and certain trailers and classes of vehicle and vehicular
apparatus from state consumers sales and use tax on certain
vehicles; specifying exclusion of sales and use of certain motor
vehicles and certain trailers and classes of vehicle and vehicular
apparatus from municipal and local consumers sales and service tax
and use tax, or special downtown redevelopment district excise tax,
or special district excise tax and other sales taxes; authorizing
discretionary designation of per se exemptions from the consumers
sales and service tax and use tax by the Tax Commissioner;
specifying exclusion of federal alternative minimum income taxpayers
from eligibility for property tax payment deferment and assessor's
denial of deferment; disqualifying persons who pay the federal
alternative minimum income tax in specified years from qualification for the senior citizens' tax credit; disqualifying persons who pay
the federal alternative minimum income tax in specified years from
qualification for the low-income family tax credit; disqualifying
persons who pay the federal alternative minimum income tax in
specified years from qualification for the refundable tax credit for
real property taxes paid in excess of four percent of income;
defining terms; specifying treatment of certain income and deduction
items for certain regulated investment companies and real estate
investment companies; delaying the effective date of alternative
definition of levies for general current expenses purposes;
authorizing state income tax withholding from the individual's
payment of unemployment compensation; specifying***
[CLERK'S NOTE: Text shown as submitted at Clerk's desk.]
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 540, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for S. B. No. 540) 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. 556, Relating to defensive driving course
points deduction.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §8-11-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §17B-3-6 of said code be amended
and reenacted, all to read as follows:
ARTICLE 11. POWERS AND DUTIES WITH RESPECT TO ORDINANCES AND
ORDINANCE PROCEDURES.
§8-11-5. Prejudgment alternative disposition of certain traffic
offenses.
(a) Municipal courts are hereby authorized to establish a
prejudgment alternative disposition procedure for traffic offenses
over which the court has jurisdiction.
(b) Under a prejudgment disposition procedure authorized by
subsection (a) of this section, if a person is found guilty of a
traffic offense, the municipal court may, with the person's consent,
withhold for a reasonable time not to exceed ninety 180 days the
entry of a judgment of conviction so that the person may attend a
driver safety education course designated by the municipal court.
If the person attends said course, the municipal court, if satisfied
with the person's participation in the course, shall, without
entering a judgment of conviction, dismiss the proceeding against
the person.
(c) It shall be a condition of any prejudgment alternative
disposition authorized by the provisions of this section that the person pay any fine assessed by the court and pay all fees and costs
required to be paid by any provision of this code where a person is
convicted of a criminal traffic offense. No municipal court shall
utilize any prejudgment alternative disposition procedure unless it
collects such fees and costs as are required by any provision of
this code and transmits the moneys collected as required by law.
No municipal court shall utilize any prejudgment alternative
disposition procedure unless it conforms with the requirements of
this section.
(d) The procedure authorized by the provisions of this section
shall not be available to any person who:
(1) Holds a commercial driver's license issued by this state
in accordance with chapter seventeen-e of this code, or who holds
a commercial driver's license issued by any other state or
jurisdiction;
(2) Is arrested while operating a commercial motor vehicle as
defined in chapter seventeen-e of this code; or
(3) Is arrested for driving under the influence of alcohol or
drugs or any other offense for which a mandatory period of
confinement in jail is required.
ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.
§17B-3-6. Authority of division to suspend or revoke license; hearing.
(a) The division is hereby authorized to suspend the driver's
license of any person without preliminary hearing upon a showing by
its records or other sufficient evidence that the licensee:
(1) Has committed an offense for which mandatory revocation of
a driver's license is required upon conviction;
(2) Has by reckless or unlawful operation of a motor vehicle,
caused or contributed to an accident resulting in the death or
personal injury of another or property damage;
(3) Has been convicted with such frequency of serious offenses
against traffic regulations governing the movement of vehicles as
to indicate a disrespect for traffic laws and a disregard for the
safety of other persons on the highways;
(4) Is an habitually reckless or negligent driver of a motor
vehicle;
(5) Is incompetent to drive a motor vehicle;
(6) Has committed an offense in another state which if
committed in this state would be a ground for suspension or
revocation;
(7) Has failed to pay or has defaulted on a plan for the
payment of all costs, fines, forfeitures or penalties imposed by a
magistrate court or municipal court within ninety days, as required by section two-a, article three, chapter fifty of this code or
section two-a, article ten, chapter eight of this code;
(8) Has failed to appear or otherwise respond before a
magistrate court or municipal court when charged with a motor
vehicle violation as defined in section three-a of this article;
(9) Is under the age of eighteen and has withdrawn either
voluntarily or involuntarily due to misconduct from a secondary
school or has failed to maintain satisfactory academic progress, as
provided in section eleven, article eight, chapter eighteen of this
code; or
(10) Has failed to pay overdue child support or comply with
subpoenas or warrants relating to paternity or child support
proceedings, if a circuit court has ordered the suspension of the
license as provided in article five-a, chapter forty-eight-a of this
code and the Child Support Enforcement Division has forwarded to the
division a copy of the court order suspending the license, or has
forwarded its certification that the licensee has failed to comply
with a new or modified order that stayed the suspension and provided
for the payment of current support and any arrearage due.
(b) The driver's license of any person having his or her
license suspended shall be reinstated if:
(1) The license was suspended under the provisions of subdivision (7), subsection (a) of this section and the payment of
costs, fines, forfeitures or penalties imposed by the applicable
court has been made;
(2) The license was suspended under the provisions of
subdivision (8), subsection (a) of this section and the person
having his or her license suspended has appeared in court and has
prevailed against the motor vehicle violations charged; or
(3) The license was suspended under the provisions of
subdivision (10), subsection (a) of this section and the division
has received a court order restoring the license or a certification
by the Child Support Enforcement Division that the licensee is
complying with the original support order or a new or modified order
that provides for the payment of current support and any arrearage
due.
(c) Any reinstatement of a license under subdivision (1), (2)
or (3), subsection (b) of this section shall be subject to a
reinstatement fee designated in section nine of this article.
(d) Upon suspending the driver's license of any person as
hereinbefore in this section authorized, the division shall
immediately notify the licensee in writing, sent by certified mail,
return receipt requested, to the address given by the licensee in
applying for license, and upon his or her request shall afford him or her an opportunity for a hearing as early as practical within not
to exceed twenty days after receipt of such request in the county
wherein the licensee resides unless the division and the licensee
agree that such hearing may be held in some other county. Upon such
hearing the commissioner or his or her duly authorized agent may
administer oaths and may issue subpoenas for the attendance of
witnesses and the production of relevant books and papers and may
require a reexamination of the licensee. Upon such hearing the
division shall either rescind its order of suspension or, good cause
appearing therefor, may extend the suspension of such license or
revoke such license. The provisions of this subsection providing
for notice and hearing are not applicable to a suspension under
subdivision (10), subsection (a) of this section.
__________(e) Notwithstanding the provisions of legislative rule 91 CSR
5, the division may, upon completion of an approved defensive
driving course, deduct three points from a licensee's point
accumulation provided the licensee has not reached fourteen points.
If a licensee has been notified of a pending thirty-day driver's
license suspension based on the accumulation of twelve or thirteen
points, the licensee may submit proof of completion of an approved
defensive driving course to deduct three points and rescind the
pending license suspension: Provided, That the licensee submits
proof of prior completion of the course and payment of the reinstatement fee in accordance with section nine, article three of
this chapter to the division prior to the effective date of the
suspension.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 556--A Bill to amend and reenact
§8-11-5
of the Code of West Virginia, 1931, as amended; and to amend and
reenact §17B-3-6 of said code, all relating to driver education
courses; allowing proof of a completed defensive driving course to
rescind pending license suspension; and expanding the time which
judgement can be withheld by a municipal judge while a licensee
completes a driver education course
.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 556, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 556) 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, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 715, Establishing Chesapeake
Bay Restoration Initiative.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page six, section thirty, lines eighty-five through eighty-
seven, by striking out the words "final approval by the Legislature
of the recommendations contained in subsection (g) of this section" and inserting in lieu thereof the words "no later than June 1,
2014";
And,
On page six, section thirty, lines eighty-nine through ninety-
one, by striking out the words "final approval by the Legislature
of the recommendations contained in subsection (g) of this section"
and inserting in lieu thereof the words "no later than June 1,
2014".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 715, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 715) passed with its 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. 756, Increasing military facilities
security guards' patrol areas.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section twenty-two, line twenty-three, after the
word "installation" by changing the period to a colon and inserting
the following proviso: Provided, That nothing in this subparagraph
shall confer upon security guards the right to enter upon private
property.;
On page four, section twenty-two, after line forty-four, by
inserting a new subsection, designated subsection (d), to read as
follows:
(d) Notwithstanding any provision of this code to the contrary, bona fide members of the West Virginia National Guard assigned by
the Adjutant General to function as firefighters to safeguard
military property of the state or of the United States are hereby
empowered to respond to areas adjacent to military facilities and
installations at the request of state and local authorities to
provide support and mutual aid in the event of accidents, emergency
or otherwise.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 756--A Bill to amend and reenact §15-1B-22
of the Code of West Virginia, 1931, as amended, relating to military
facilities; security guards' qualifications, duties and powers; and
authorizing to National Guard firefighters to respond accidents or
emergencies in areas adjacent to military facilities.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 756, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 756) passed with its 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. 631, Relating to certain
insurance policy cancellation.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 6A. CANCELLATION OR NONRENEWAL OF AUTOMOBILE LIABILITY
POLICIES.
§33-6A-1. Cancellation prohibited except for specified reasons;
notice.
No insurer once having issued or delivered a policy providing
automobile liability insurance for a private passenger automobile
may, after the policy has been in effect for sixty days, or in case
of renewal effective immediately, issue or cause to issue a notice
of cancellation during the term of the policy except for one or more
of the reasons specified in this section:
(a) The named insured fails to make payments of premium for the
policy or any installment of the premium when due;
(b) The policy is obtained through material misrepresentation;
(c) The insured violates any of the material terms and
conditions of the policy;
(d) The named insured or any other operator, either residing
in the same household or who customarily operates an automobile
insured under the policy:
(1) Has had his or her operator's license suspended or revoked
during the policy period including suspension or revocation for
failure to comply with the provisions of article five-a, chapter seventeen-c of this code, regarding consent for a chemical test for
intoxication: Provided, That when a license is suspended for sixty
days by the Commissioner of the Division of Motor Vehicles because
a person drove a motor vehicle while under the age of twenty-one
years with an alcohol concentration in his or her blood of two
hundredths of one percent or more, by weight, but less than eight
hundredths of one percent, by weight, pursuant to subsection (l),
section two of said article, the suspension shall may not be grounds
for cancellation; or
(2) Is or becomes subject to epilepsy or heart attacks and the
individual cannot produce a certificate from a physician testifying
to his or her ability to operate a motor vehicle;
(e) The named insured or any other operator, either residing
in the same household or who customarily operates an automobile
insured under such policy, is convicted of or forfeits bail during
the policy period for any of the following reasons:
(1) Any felony or assault involving the use of a motor vehicle;
(2) Negligent homicide arising out of the operation of a motor
vehicle;
(3) Operating a motor vehicle while under the influence of
alcohol or of any controlled substance or while having an alcohol
concentration in his or her blood of eight hundredths of one percent or more, by weight;
(4) Leaving the scene of a motor vehicle accident in which the
insured is involved without reporting it as required by law;
(5) Theft of a motor vehicle or the unlawful taking of a motor
vehicle;
(6) Making false statements in an application for a motor
vehicle operator's license;
(7) Three or more moving traffic violations committed within
a period of twelve months, each of which results in three or more
points being assessed on the driver's record by the Division of
Motor Vehicles, whether or not the insurer renewed the policy
without knowledge of all such violations. Notice of any
cancellation made pursuant to this subsection shall be mailed to the
named insured either during the current policy period or during the
first full policy period following the date that the third moving
traffic violation is recorded by the Division of Motor Vehicles.
Notwithstanding any of the provisions of this section to the
contrary, no insurer may cancel a policy of automobile liability
insurance without first giving the insured thirty days' notice of
its intention to cancel: Provided, That cancellation of the
insurance policy is voidable from the effective date and time of the
policy issued by the insurer if the insurer cancels the policy for failure of consideration to be paid by the insured upon initial
issuance of the insurance policy and provides written notice to the
insured of the cancellation within fifteen days of receipt of notice
of the failure of consideration and consideration has not otherwise
been provided within ten days of the notice of cancellation. Notice
of cancellation for nonpayment of consideration shall be delivered
to the named insured or sent by first class mail to the named
insured at the address supplied on the application for insurance,
and shall state the effective date of the cancellation and shall be
accompanied by a written explanation of the specific reason for the
cancellation. If the insurer fails to provide such written notice
to the insured, then the cancellation of the policy for failure of
consideration is effective upon the expiration of ten days' notice
of cancellation to the insured.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 631--A Bill to amend and
reenact §33-6A-1 of the Code of West Virginia, 1931, as amended,
relating to the cancellation of an automobile liability insurance
policy for failure of consideration to be paid by the insured upon
initial issuance of the insurance policy; requiring written notice to insured; and exceptions.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 631, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for S. B. No. 631) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fourth order of business.
Senator Tomblin (Mr. President), from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
House Concurrent Resolution No. 40, Memorializing the life
Cecil H. Underwood, former Governor of the State of West Virginia.
And,
House Concurrent Resolution No. 57, Requesting the Governor
adopt a "West Virginia Coal Miner Appreciation Day" in the State of
West Virginia.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio
.
At the request of Senator Chafin, unanimous consent being
granted, House Concurrent Resolution No. 40 contained in the
preceding report from the Committee on Rules 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 Chafin, unanimous consent being
granted, House Concurrent Resolution No. 57 contained in the
preceding report from the Committee on Rules 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.
Without objection, the Senate returned to the third order of
business.
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. 43--Requesting the Division of
Highways to name those northbound and southbound sections of U. S.
Route 52 within West Virginia not already otherwise named by the
Division for an individual or organization, in memoriam or
otherwise, the "Vietnam Veterans Highway".
At the request of Senator Unger, and by unanimous consent, the
message was taken up for immediate consideration and reference of
the resolution to a committee dispensed with.
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.
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 West
Virginia Division of Highways to name West Virginia County Route 17,
Blue Sulphur Road, Cabell County, West Virginia, the "Margarette
Riggins Leach Memorial Roadway".
At the request of Senator Unger, and by unanimous consent, the
message was taken up for immediate consideration and reference of
the resolution to a committee dispensed with.
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 midnight hour having arrived, the President stated all
unfinished legislative business had expired due to the time element,
with the exception of
the budget, budget bills, supplementary
appropriation bills, legislation relating to implementation of or expenditures pursuant to the American Recovery and Reinvestment Act
of 2009 otherwise known as the federal economic stimulus program,
and for reconsideration of any bills vetoed or disapproved by the
Governor and any budget bill or supplementary appropriation bill
vetoed, disapproved or reduced by the Governor as to any item or
part or as to the entire bill
.
A series of messages from the House of Delegates having been
received at his desk, the following communications were reported by
the Clerk:
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. 99, Sentencing discretion
for certain youthful offenders.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to the House
of Delegates amendments to, and the passage as amended, with its
Senate amended title, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 172, Authorizing Department
of Administration promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to the House
of Delegates amendments to, and the passage as amended, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 227, Authorizing Department
of Revenue promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
that that body had receded from its amendment to, and the passage
as amended by deletion, of
Eng. Com. Sub. for Senate Bill No. 256, Providing additional
requirements for certain property annexation.
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. 318, Expanding Division of
Protective Services' law-enforcement authority over state property
under certain circumstances.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report with
its conference amended title, to take effect July 1, 2009, of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373, Relating
to PROMISE Scholarship.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 414, Relating
to Pharmaceutical Cost Management Council and health care delivery
systems.
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. 440, Increasing county
litter control officers' authority.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report, as
to
Eng. Senate Bill No. 445, Removing conservation supervisors'
election certification requirements.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect July 1,
2009, of
Eng. Com. Sub. for Senate Bill No. 451, Relating to crime
victims' compensation awards.
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. 472, Revising certain
outdoor advertising restrictions.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 492, Clarifying certain Public Employees
Insurance Agency retirement requirements.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report with
its conference amended title, to take effect from passage, of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 498, Relating
to early childhood education.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 533, Updating terms in
consumers sales and service tax.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect July 1,
2009, of
Eng. Com. Sub. for Senate Bill No. 706, Creating State Police
leave donation program.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 724, Relating
to health care provider tax.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report with
its conference amended title, to take effect from passage, of
Eng. Senate Bill No. 767, Relating to certain Medicaid program
contracts.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2309, Updating the law
governing the practice of occupational therapy.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2360, Insuring that tobacco
products are not sold in any packaging other than the original.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2528, Updating the regulation
of the practice of forestry.
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. 2531, Updating the regulation
of the practice of barbers and cosmetologists.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
July 1, 2009, of
Eng. Com. Sub. for House Bill No. 2535, Creating a tax credit
for certain solar energy systems.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2536, Adding language that
includes railcars and locomotives in the category of railroad
property that is illegal to interfere or tamper with.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2539, Authorizing
professional licensing boards to combine administrative staff
functions.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2557, Relating to the
enforcement of new motor vehicle warranties.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2701, Relating to an escape
of any person from the custody of the Division of Juvenile Services.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2723, Authorizing liens by
municipalities and requiring administrative procedures for the
assessment and collection of delinquent municipal fees.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2771, Relating to the West
Virginia Alcohol and Drug-Free Workplace Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2788, Protecting
incapacitated adults from abuse or neglect by a caregiver.
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. House Bill No. 2884, Long-Term Care Partnership Program.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2885, Establishing a uniform
credentialing form and creating a single credentialing verification
organization (CVO).
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2926, Establishing a
procedure for challenging a candidate's qualifications for elected
office.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 2931, Removing a severance tax on timber
for tax years 2010 through 2013.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2976, Requiring the State
Fire Commission to promulgate rules pertaining to the State Building
Code.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 2968, Requiring the State
Fire Commission to establish safety standards for liquefied
petroleum gas systems.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 2981, Relating to primary elections and
nominating procedures of third-party candidates.
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. House Bill No. 3155, Relating to the renewal of the West
Virginia Small Business Linked Deposit Program.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 3170, Relating to WV Guardianship and
Conservatorship Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 3197, Authorizing municipalities to permit
nonpolice officers to issue citations for littering.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 3278, Relating to the life
and health insurance guaranty association.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 3314, Relating to concealed
handgun licensing.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amended title, passage
as amended, of
Eng. Com. Sub. for House Bill No. 3336, Continuing early
intervention services to families with developmentally delayed
infants and toddlers but eliminating the cost-free provision.
On motion of Senator Chafin, under the provisions of
Senate
Concurrent Resolution No. 68 (Extending 2009 regular legislative
session), adopted on April 8, 2009, the Senate adjourned until
tomorrow, Sunday, April 12, 2009, at 12:01 a.m.
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