Senate Daily Journal

WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTIETH LEGISLATURE

REGULAR SESSION, 2012

SIXTIETH DAY

____________

Charleston, W. Va., Saturday, March 10, 2012

The Senate met at 11 a.m.

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

(Senator Fanning in the Chair.)

Prayer was offered by the Reverend James Patterson, Institute Church of the Nazarene, Institute, West Virginia.

On motion of Senator Unger, the Senate recessed for five minutes to permit Brian Worthington to address the Senate on behalf of the Judith A. Herndon Fellowship Program, Eden Adkins on behalf of the Legislative Information Journalism Internship Program and Amy Schumacher on behalf of the Walter Rollins Scholars.

Upon expiration of the recess, the Senate reconvened.

Pending the reading of the Journal of Friday, March 9, 2012,

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

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

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

On motion of Senator Edgell, the special order of business set for this position on the calendar (consideration of executive nominations) was postponed and made a special order of business following an anticipated recess.

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 11:43 a.m. today:

Eng. Com. Sub. for House Bill No. 4239, Increasing the membership of the West Virginia Board of Osteopathy.

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, 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. 160, Budget Bill.

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

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

By striking out everything after the enacting clause and inserting in lieu thereof the provisions of Committee Substitute for House Bill No. 4013.

On motion of Senator Unger, the Senate refused to concur in the foregoing House amendment to the bill (Eng. Com. Sub. for S. B. No. 160) 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. 211, Creating traffic offenses for texting or using handheld wireless communication device while driving.

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

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

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

ARTICLE 14. MISCELLANEOUS RULES.

§17C-14-15. Prohibited use of an electronic communications device driving without handheld features; definitions; exceptions; penalties.

(a) Except as provided in subdivision (c) of this section, a person may not drive or operate a motor vehicle on a public street or highway while:

(1) Texting unless the texting is accomplished by hands-free equipment; or

(2) Using a cell phone or other electronic communications device, unless the use is accomplished by hands-free equipment.

(b) For purposes of this section, the following terms shall mean:

(1) “Cell telephone” shall mean a cellular, analog, wireless or digital telephone.

(2) “Driving” or “operating a motor vehicle” means operating a motor vehicle, with the motor running, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays, but does not include operating a a motor vehicle when the driver moved the vehicle to the side of, or off, a highway and halted in a location where the vehicle can safely remain stationary.

(3) “Electronic communication device” shall mean a cell telephone, personal digital assistant, electronic device with mobile data access, laptop computer, pager, broadband personal communication device, 2-way messaging device, electronic game, or portable computing device. For the purposes of this section, an “electronic communication device” does not include:

(A) Voice radios, mobile radios, land mobile radios, commercial mobile radios or two way radios with the capability to transmit and receive voice transmissions utilizing a push-to-talk or press-to-transmit function; or

(B) Other voice radios used by a law-enforcement officer, an emergency services provider, an employee or agent of public safety organizations, first responders, Amateur Radio Operators (HAM) licensed by the Federal Communications Commission and school bus operators.

(4) “Engaging in a call” shall mean when a person talks into or listens on an electronic communication device, but shall not include when a person dials or enters a phone number on a pushpad or screen to initiate the call.

(5) “Hands-free electronic communication device” shall mean an electronic communication device that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such electronic communication device, by which a user engages in a call without the use of either hand or both hands.

(6) “Hands-free equipment” shall mean the internal feature or function of a hands-free electronic communication device or the attachment or addition to a hands-free electronic communication device by which a user may engage in a call or text without the use of either hand or both hands.

(7) “Texting” means manually entering alphanumeric text into, or reading text from, an electronic communication device, and includes, but is not limited to, short message service, e-mailing, instant messaging, a command or request to access a World Wide Web page or engaging in any other form of electronic text retrieval or entry, for present or future communication. For purposes of this section, “texting” does not include the following actions:

(A) Reading, selecting or entering a telephone number, an extension number, or voicemail retrieval codes and commands into an electronic device by the pressing the device in order to initiate or receive a phone call or using voice commands to initiate or receive a telephone call;

(B) Inputting, selecting or reading information on a global positioning system or navigation system; or

(C) Using a device capable of performing multiple functions, including fleet management systems, dispatching devices, smart phones, citizens band radios or music players, for a purpose that is not otherwise prohibited in this section.

(8) “Using a cell phone or other electronic communication device” shall mean holding in a person’s hand or hands an electronic communication device while:

(A) Viewing or transmitting images or data;

(B) Playing games;

(C) Composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages or other electronic data; or

(D) Engaging in a call.

(1) A law-enforcement officer, a firefighter, an emergency medical technician, a paramedic or the operator of an authorized emergency vehicle in the performance of their official duties;

(2) A person using an electronic communication device to report to appropriate authorities a fire, a traffic accident, a serious road hazard, or a medical or hazardous materials emergencies.

(3) The activation or deactivation of hands-free equipment or a function of hands-free equipment.

(d) This section does not supersede the provisions of section three-a, article two, chapter seventeen-b of this code or any more restrictive provisions for drivers of commercial motor vehicles prescribed by the provisions of chapter seventeen-e of this code or federal law or rule.

(e) Any person who violates the provisions of subsection (a) of this section is guilty of a traffic offense and, upon conviction thereof, shall for a first offense be fined $100; for a second offense be fined $250; and for a third or subsequent offense be fined $500. No court costs or other fees shall be assessed for a violation of subsection (a).

(f) Notwithstanding any other provision of this code to the contrary, points may not be entered on any driver’s record maintained by the Division of Motor Vehicles as a result of a violation of this section, except for the third and subsequent convictions of the offense, for which three points shall be entered on any driver’s record maintained by the Division of Motor Vehicles.

(g) Driving or operating a motor vehicle on a public street or highway while texting or while using a cell phone or other electronic communication device without hands-free equipment shall be enforced as a primary offense for purposes of citation.

(h) Within ninety days of the effective date of this section, the Department of Transportation shall cause to be erected signs upon any highway entering the state of West Virginia on which a welcome to West Virginia sign is posted, and any other highway where the Department of Highways deems appropriate, posted at a distance of not more than one mile from each border crossing, each sign to bear an inscription clearly communicating to motorists entering the state that texting, or the use of a wireless communication device without hands-free equipment, is illegal within this state.

(i) Nothing contained in this section shall be construed to authorize seizure of a cell phone or electronic device by any law enforcement agency.;

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. 211--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-14-15, relating to traffic safety; establishing the offense of operating a motor vehicle while texting without the use of hands-free technology; establishing the offense of operating a motor vehicle while using a electronic communication device without the use of hands-free technology; defining terms; providing exceptions; clarifying means of enforcement as a primary offense; impact of violation on insurance coverage; impact of violation on law enforcement ability to seize or confiscate device; requiring signage on certain highways for motorists entering state; providing penalties; providing for increased fines for multiple offenses; assessing points against driver’s license for multiple offenses; exempting offense from the assessment of court costs and fees; and limitations.

On motion of Senator Unger, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 211) 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.

Eng. Com. Sub. for Senate Bill No. 408, Creating criminal offense for intentional defacement of public and private property.

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

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

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

ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-59. Graffiti; penalties; and damages recoverable in a civil action.

(a) As used in this section, “graffiti” means any unauthorized inscription, word, figure or design that is marked, etched, scratched, drawn or painted on any real or personal property.

(b) A person who places graffiti on public or private property, real or personal, of another, without the permission of the owner is guilty of a misdemeanor and, upon conviction thereof, for a first offense, may be confined in jail not less than twenty-four hours nor more than six months or fined not more than $1,000, or both. For a second offense, the person is guilty of a misdemeanor and, upon conviction thereof, may be confined in jail not less than forty-eight hours nor more than six months or fined not more than $2,000, or both. For third and subsequent offenses, the person is guilty of a felony and, upon conviction thereof, may be imprisoned in a correctional facility for not less than one nor more than three years or fined not more than $10,000, or both.

(c) Any conviction for a violation of subsection (b) for an offense which occurred more than ten years prior to the date of arrest in the current proceeding, may not be considered for the purposes of imposing a sentence under subsection (b) relating to a second, third and subsequent offense.

(d) The court may, in addition to any other fine or penalty imposed, order a person who violates this section to pay restitution.

(e) A person convicted under any provision in this section shall be sentenced to not less than one hundred twenty hours of court-approved community service. The court may order the person to repair, replace, or clean up the property damaged or destroyed by the person or any other public or private property, with approval of the owner, that is located in the county where the offense occurred.

(f) If a person who is less than eighteen years of age is found guilty of violating this section, the court may, in addition to any other penalty imposed, issue an order suspending the driver's license of the person for not more than two years. If the person does not possess a driver's license, the court may issue an order prohibiting the person from applying for a driver's license for not less than six months and not more than two years. The court shall, within five days after issuing the order, forward to the Division of Motor Vehicles any licenses together with a copy of the order.

(g) A criminal penalty imposed pursuant to this section is in addition to any civil penalty or other remedy available pursuant to this section or another statute for the same conduct.

(h) The owner of public or private property that has been damaged by graffiti may bring a civil action against the person who placed the graffiti on the property. The court may award to the property owner damages in an amount up to three times the amount of any loss in value to the property or up to three times the cost of restoring the property plus attorney's fees and costs, or both.;

And,

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

Eng. Com. Sub. for Senate Bill No. 408--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3-59, relating to crimes against property involving graffiti; defining offenses and terms; providing for suspension of drivers license in certain circumstances; providing for sentencing of community service; providing that civil liability is not precluded by criminal provisions; and establishing criminal penalties.

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

Engrossed Committee Substitute for Senate Bill No. 408, as amended by the House of Delegates, was then put upon its passage.

On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (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. 408) passed with its House of Delegates amended title.

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

Eng. Com. Sub. for Senate Bill No. 507, Relating to voluntary and involuntary hospitalization of mentally ill persons.

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

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

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

CHAPTER 27. MENTALLY ILL PERSONS.

ARTICLE 4. VOLUNTARY HOSPITALIZATION.

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

The chief medical officer of a mental health facility, subject to the availability of suitable accommodations and to the rules and regulations promulgated by the board of health, shall admit for diagnosis, care and treatment any individual:

(a) Over eighteen years of age who is mentally ill, mentally retarded intellectually disabled or addicted or who has manifested symptoms of mental illness, mental retardation intellectual disability or addiction and who makes application for hospitalization; or

(b) Under eighteen years of age who is mentally ill, mentally retarded intellectually disabled or addicted or who has manifested symptoms of mental illness, mental retardation intellectual disability or addiction and there is application for hospitalization therefor in his or her behalf:

(1) By the parents of such person; or

(2) If only one parent is living, then by such parent; or

(3) If the parents are living separate and apart, by the parent who has the custody of such person; or

(4) If there is a guardian who has legal custody of such person, then by such guardian.

Such admission shall be conditioned upon the consent of the prospective patient if he is twelve years of age or over.

(5) If the subject person under eighteen years of age is an emancipated minor, the admission of that person as a voluntary patient shall be conditioned upon the consent of the patient.

(c) No person under eighteen years of age shall may be admitted under this section to any state hospital unless said person has first been reviewed and evaluated by a local mental health facility and recommended for admission.

(d) If the candidate for voluntary admission is a minor who is fourteen years of age or older, the admitting health care facility shall determine if the minor consents to or objects to his or her admission to the facility. If the parent or guardian who requested the minor’s admission under this section revokes his or her consent at any time, or if the minor fourteen years of age or older objects at any time to his or her further treatment, the minor shall be discharged within ninety-six hours to the custody of the consenting parent or guardian, unless the chief medical officer of the mental health facility files a petition for involuntary hospitalization, pursuant to the provisions of section three of this article, or the minor’s continued hospitalization is authorized as an involuntary hospitalization pursuant to the provisions of article five of this chapter: Provided, That, if the ninety-six hour time period would result in the minor being discharged and released on a Saturday, a Sunday or a holiday on which the court is closed, the period of time in which the patient shall be released by the facility shall be extended until the next day which is not a Saturday, Sunday or legal holiday on which the court is lawfully closed.

(e) Nothing in this section may be construed to obligate the State of West Virginia for costs of voluntary hospitalizations permitted by the provisions of this section.

§27-4-3. Right to release on application.

A voluntary patient who requests his or her release or whose release is requested in writing by his or her parents, parent, guardian, spouse or adult next of kin shall be released forthwith immediately except that:

(a) If the patient was admitted on his or her own application, and request for release is made by a person other than the patient, release shall be conditioned upon the agreement of the patient thereto;

(b) If the patient is under twelve eighteen years of age, his or her release prior to becoming twelve eighteen years of age may be conditioned upon the consent of the person or persons who applied for his or her admission; or

(c) If, within ninety-six hours of the receipt of the request, the chief medical officer of the mental health facility in which the patient is hospitalized files with the clerk of the circuit court or mental hygiene commissioner of the county where the facility is situated an application for involuntary hospitalization as provided in section four, article five of this chapter, release may be postponed for twenty days pending a finding in accordance with the legal proceedings prescribed therein.

Legal proceedings for involuntary hospitalization shall not be commenced with respect to a voluntary patient unless release of the patient has been requested by him or her or the individual or individuals who applied for his or her admission.

ARTICLE 5. INVOLUNTARY HOSPITALIZATION.

§27-5-4. Institution of final commitment proceedings; hearing requirements; release.

(a) Involuntary commitment. -- Except as provided in section three of this article, no individual may be involuntarily committed to a mental health facility except by order entered of record at any time by the circuit court of the county in which the person resides or was found, or if the individual is hospitalized in a mental health facility located in a county other than where he or she resides or was found, in the county of the mental health facility and then only after a full hearing on issues relating to the necessity of committing an individual to a mental health facility. Provided, That, if If the individual objects to the hearing being held in the county where the mental health facility is located, the hearing shall be conducted in the county of the individual's residence.

(b) How final commitment proceedings are commenced. -- Final commitment proceedings for an individual may be commenced by the filing of a written application under oath and the by an adult person having personal knowledge of the facts of the case. The certificate or affidavit is hereinafter provided with filed with the clerk of the circuit court or mental hygiene commissioner of the county of which where the individual is a resident or where he or she may be found or the county of the a mental health facility if he or she is hospitalized in a mental health facility located in a county other than where he or she resides or may be found. by an adult person having personal knowledge of the facts of the case

(1) The person making the application shall do so under oath.

(2) The application shall contain statements by the applicant that he or she believes because of symptoms of mental illness or addiction the individual is likely to cause serious harm to himself, herself or to others and the grounds for the belief, stating that the individual is likely to cause serious harm to self or others due to what the applicant believes are symptoms of mental illness or addiction. The applicant shall state in detail the recent overt acts upon which the belief is based.

(3) The written application, certificate, affidavit and any warrants issued pursuant thereto, including any papers and documents related thereto, related documents, filed with any a circuit court, or mental hygiene commissioner or designated magistrate for the involuntary hospitalization of any an individual are not open to inspection by any person other than the individual, except upon authorization of unless authorized by the individual or his or her legal representative or by order of the circuit court. and the The records may not be published except upon the authorization of unless authorized by the individual or his or her legal representative. Disclosure of these records may, however, be made by the clerk, circuit court, mental hygiene commissioner or designated magistrate to provide notice to the Federal National Instant Criminal Background Check System established pursuant to Section 103(d) of the Brady Handgun Violence Prevention Act, 18 U. S. C. §922, and the central state mental health registry, in accordance with article seven-a, chapter sixty-one of this code. Disclosure may also be made to the prosecuting attorney and reviewing court in an action brought by the individual pursuant to section five, article seven-a, chapter sixty-one of this code to regain firearm and ammunition rights.

(4) Applications may not be accepted for individuals who only have epilepsy, a mental deficiency or senility.
(d) Certificate filed with application; contents of certificate; affidavit by applicant in place of certificate. --

(1) The applicant shall file with his or her application the certificate of a physician or a psychologist stating that in his or her opinion the individual is mentally ill or addicted and that because of the mental illness or addiction, the individual is likely to cause serious harm to himself, herself or to self or others if he or she is allowed to remain at liberty and, therefore, he or she should be hospitalized. stating The certificate shall state in detail the recent overt acts upon on which the conclusion is based.

(2) A certificate is not necessary only when an affidavit is filed by the applicant showing facts and the individual has refused to submit to examination by a physician or a psychologist.

(e) Notice requirements; eight days notice required. -- Upon receipt of an application, the mental hygiene commissioner or circuit court shall review the application and if it is determined that the facts alleged, if any, are sufficient to warrant involuntary hospitalization, forthwith fix a date for and have the clerk of the circuit court give notice of the hearing:

(1) To the individual;

(2) To the applicant or applicants;

(3) To the individual's spouse, one of the parents or guardians, or, if the individual does not have a spouse, parents or parent or guardian, to one of the individual's adult next of kin if the next of kin is not the applicant;

(4) To the mental health authorities serving the area;

(5) To the circuit court in the county of the individual's residence if the hearing is to be held in a county other than that of the individual's residence; and

(6) To the prosecuting attorney of the county in which the hearing is to be held.

(f) The notice shall be served on the individual by personal service of process not less than eight days prior to the date of the hearing and shall specify:

(1) The nature of the charges against the individual;

(2) The facts underlying and supporting the application of involuntary commitment;

(3) The right to have counsel appointed;

(4) The right to consult with and be represented by counsel at every stage of the proceedings; and

(5) The time and place of the hearing.

The notice to the individual's spouse, parents or parent or guardian, the individual's adult next of kin or to the circuit court in the county of the individual's residence may be by personal service of process or by certified or registered mail, return receipt requested, and shall state the time and place of the hearing.

(f) (g) Examination of individual by court-appointed physician or psychologist; custody for examination; dismissal of proceedings. –

(1) Except as provided in subdivision (3) of this subsection, within a reasonable time after notice of the commencement of final commitment proceedings is given, the circuit court or mental hygiene commissioner shall appoint a physician or psychologist to examine the individual and report to the circuit court or mental hygiene commissioner his or her findings as to the mental condition or addiction of the individual and the likelihood of him or her causing serious harm to himself, herself or to self or others.

(2) If the designated physician or psychologist reports to the circuit court or mental hygiene commissioner that the individual has refused to submit to an examination, the circuit court or mental hygiene commissioner shall order him or her to submit to the examination. The circuit court or mental hygiene commissioner may direct that the individual be detained or taken into custody for the purpose of an immediate examination by the designated physician or psychologist. All such orders shall be directed to the sheriff of the county or other appropriate law-enforcement officer. After the examination has been completed, the individual shall be released from custody unless proceedings are instituted pursuant to section three of this article.

(3) If the reports of the appointed physician or psychologist do not confirm that the individual is mentally ill or addicted and might be harmful to himself, herself or to self or others, then the proceedings for involuntary hospitalization shall be dismissed.

(g) (h) Rights of the individual at the final commitment hearing; seven days' notice to counsel required. –

(1) The individual shall be present at the final commitment hearing and he or she, the applicant and all persons entitled to notice of the hearing shall be afforded an opportunity to testify and to present and cross-examine witnesses.

(2) In the event that the individual has not retained counsel, the court or mental hygiene commissioner, at least six days prior to hearing, shall appoint a competent attorney and shall inform the individual of the name, address and telephone number of his or her appointed counsel.

(3) The individual has the right to have an examination by an independent expert of his or her choice and to present testimony from the expert as a medical witness on his or her behalf. The cost of the independent expert shall be borne is paid by the individual unless he or she is indigent.

(4) The individual may not be compelled to be a witness against himself or herself.

(h) (i) Duties of counsel representing individual; payment of counsel representing indigent. –

(1) The counsel Counsel representing an individual shall conduct a timely interview, make investigation and secure appropriate witnesses, and shall be present at the hearing and protect the interest interests of the individual.

(2) Any counsel Counsel representing an individual is entitled to copies of all medical reports, psychiatric or otherwise.

(3) The circuit court, by order of record, may allow the attorney a reasonable fee not to exceed the amount allowed for attorneys in defense of needy persons as provided in article twenty-one, chapter twenty-nine of this code.

(i) (j) Conduct of hearing; receipt of evidence; no evidentiary privilege; record of hearing. –

(1) The circuit court or mental hygiene commissioner shall hear evidence from all interested parties in chamber including testimony from representatives of the community mental health facility.

(2) The circuit court or mental hygiene commissioner shall receive all relevant and material evidence which may be offered.

(3) The circuit court or mental hygiene commissioner is bound by the rules of evidence promulgated by the Supreme Court of Appeals except that statements made to physicians or psychologists by the individual may be admitted into evidence by the physician's or psychologist's testimony, notwithstanding failure to inform the individual that this statement may be used against him or her. Any A psychologist or physician testifying shall bring all records pertaining to the individual to the hearing. The medical evidence obtained pursuant to an examination under this section, or section two or three of this article, is not privileged information for purposes of a hearing pursuant to this section.

(4) All final commitment proceedings shall be reported or recorded, whether before the circuit court or mental hygiene commissioner, and a transcript shall be made available to the individual, his or her counsel or the prosecuting attorney within thirty days if it is requested for the purpose of further proceedings. In any case where an indigent person intends to pursue further proceedings, the circuit court shall, by order entered of record, authorize and direct the court reporter to furnish a transcript of the hearings.

(j) (k) Requisite findings by the court. –

(1) Upon completion of the final commitment hearing and the evidence presented in the hearing, the circuit court or mental hygiene commissioner shall make findings as to whether or not the following:

(A) Whether the individual is mentally ill or addicted; and

(B) Whether, because of illness or addiction, the individual is likely to cause serious harm to himself, herself or to self or others if allowed to remain at liberty; and

(C) Whether the individual is a resident of the county in which the hearing is held or currently is a patient at a mental health facility in the county; and

(2) The circuit court or mental hygiene commissioner shall also make a finding as to whether or not (D) Whether there is a less restrictive alternative than commitment appropriate for the individual. The burden of proof of the lack of a less restrictive alternative than commitment is on the person or persons seeking the commitment of the individual.

(3) (2) The findings of fact shall be incorporated into the order entered by the circuit court and must be based upon clear, cogent and convincing proof.

(k) (l) Orders issued pursuant to final commitment hearing; entry of order; change in order of court; expiration of order. –

(1) Upon the requisite findings, the circuit court may order the individual to a mental health facility for an indeterminate period or for a temporary observatory period not exceeding six months.

(2) The individual may not be detained in a mental health facility for a period in excess of ten days after a final commitment hearing pursuant to this section unless an order has been entered and received by the facility.

(3) If the order pursuant to a final commitment hearing is for a temporary observation period, the circuit court or mental hygiene commissioner may, at any time prior to the expiration of such period on the basis of a report by the chief medical officer of the mental health facility in which the patient is confined, hold another hearing pursuant to the terms of this section and in the same manner as the hearing was held as if it were an original petition for involuntary hospitalization to determine whether the original order for a temporary observation period should be modified or changed to an order of indeterminate hospitalization of the patient. At the conclusion of the hearing, the circuit court shall order indeterminate hospitalization of the patient or dismissal of the proceedings.

(4) An order for an indeterminate period expires of its own terms at the expiration of two years from the date of the last order of commitment unless prior to the expiration, the Department of Health and Human Resources, upon findings based on an examination of the patient by a physician or a psychologist, extends the order for indeterminate hospitalization. Provided, That if If the patient or his or her counsel requests a hearing, then a hearing shall be held by the mental hygiene commissioner or by the circuit court of the county as provided in subsection (a) of this section.

(l) (m) Dismissal of proceedings. -- If the circuit court or mental hygiene commissioner finds that the individual is not mentally ill or addicted, the proceedings shall be dismissed. If the circuit court or mental hygiene commissioner finds that the individual is mentally ill or addicted but is not, because of the illness or addiction, likely to cause serious harm to himself, herself or to self or others if allowed to remain at liberty, the proceedings shall be dismissed.

(m) (n) Immediate notification of order of hospitalization. -- The clerk of the circuit court in which an order directing hospitalization is entered, if not in the county of the individual's residence, shall immediately upon entry of the order forward a certified copy of the order to the clerk of the circuit court of the county of which the individual is a resident.

(n) (o) Consideration of transcript by circuit court of county of individual's residence; order of hospitalization; execution of order. --

(1) If the circuit court or mental hygiene commissioner is satisfied that hospitalization should be ordered but finds that the individual is not a resident of the county in which the hearing is held and the individual is not currently a resident of a mental health facility, a transcript of the evidence adduced at the final commitment hearing of the individual, certified by the clerk of the circuit court, shall forthwith be forwarded to the clerk of the circuit court of the county of which the individual is a resident. who The clerk shall immediately present the transcript to the circuit court or mental hygiene commissioner of the county.

(2) If the circuit court or mental hygiene commissioner of the county of the residence of the individual is satisfied from the evidence contained in the transcript that the individual should be hospitalized as determined by the standard set forth above, the circuit court shall order the appropriate hospitalization as though the individual had been brought before the circuit court or its mental hygiene commissioner in the first instance.

(3) This order shall be transmitted forthwith to the clerk of the circuit court of the county in which the hearing was held who shall execute the order promptly.

(o) (p) Order of custody to responsible person. -- In lieu of ordering the patient to a mental health facility, the circuit court may order the individual delivered to some responsible person who will agree to take care of the individual and the circuit court may take from the responsible person a bond in an amount to be determined by the circuit court with condition to restrain and take proper care of the individual until further order of the court.

(p) (q) Individual not a resident of this state. -- If the individual found to be mentally ill or addicted by the circuit court or mental hygiene commissioner is a resident of another state, this information shall be forthwith given to the Secretary of the Department of Health and Human Resources, or to his or her designee, who shall make appropriate arrangements for transfer of the individual to the state of his or her residence conditioned on the agreement of the individual except as qualified by the interstate compact on mental health.

(q) (r) Report to the Secretary of the Department of Health and Human Resources. –

(1) The chief medical officer of a mental health facility admitting a patient pursuant to proceedings under this section shall forthwith make a report of the admission to the Secretary of the Department of Health and Human Resources or to his or her designee.

(2) Whenever an individual is released from custody due to the failure of an employee of a mental health facility to comply with the time requirements of this article, the chief medical officer of the mental health facility shall forthwith, after the release of the individual, make a report to the Secretary of the Department of Health and Human Resources or to his or her designee of the failure to comply.

(r) (s) Payment of some expenses by the state; mental hygiene fund established; expenses paid by the county commission. –

(1) The state shall pay the commissioner's fee and the court reporter fees that are not paid and reimbursed under article twenty-one, chapter twenty-nine of this code out of a special fund to be established within the Supreme Court of Appeals to be known as the Mental Hygiene Fund.

(2) The county commission shall pay out of the county treasury all other expenses incurred in the hearings conducted under the provisions of this article whether or not hospitalization is ordered, including any fee allowed by the circuit court by order entered of record for any physician, psychologist and witness called by the indigent individual. The copying and mailing costs associated with providing notice of the final commitment hearing and issuance of the final order shall be paid by the county where the involuntary commitment petition was initially filed.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 7A. STATE MENTAL HEALTH REGISTRY; REPORTING OF PERSONS’ PROSCRIBED FROM FIREARM POSSESSION DUE TO MENTAL CONDITION TO THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM; LEGISLATIVE FINDINGS; DEFINITIONS; REPORTING REQUIREMENTS; REINSTATEMENT OF RIGHTS PROCEDURES.

§61-7A-5. Petition to regain right to possess firearms.

(a) Any person who is prohibited from possessing a firearm pursuant to the provisions of section seven, article seven of this chapter or by provisions of federal law by virtue solely of having previously been adjudicated to be mentally defective or to having a prior involuntary commitment to a mental institution pursuant to chapter twenty-seven of this code may petition the circuit court of the county of his or her residence to regain the ability to lawfully possess a firearm.

(b) Petitioners prohibited from possession of firearms due to a mental health disability, must include in the petition for relief from disability:

(1) A listing of facilities and location addresses of all prior mental health treatment received by petitioner;

(2) An authorization, signed by the petitioner, for release of mental health records to the prosecuting attorney of the county; and

(3) A verified certificate of mental health examination by a licensed psychologist or psychiatrist occurring within thirty days prior to filing of the petition which supports that the petitioner is competent and not likely to act in a manner dangerous to public safety.

(c) The court may only consider petitions for relief due to mental health adjudications or commitments that occurred in this state, and only give the relief specifically requested in the petition.

(d) In determining whether to grant the petition, the court shall receive and consider at a minimum evidence:

(1) Concerning the circumstances regarding the firearms disabilities imposed by 18 U. S. C. §922(g)(4);

(2) The petitioner’s record which must include the petitioner’s mental health and criminal history records; and

(3) The petitioner’s reputation developed through character witness statements, testimony, or other character evidence.

(e) If the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibilities concomitant with the possession of a firearm, will not be likely to act in a manner dangerous to public safety, and that granting the relief will not be contrary to public interest, the court may enter an order allowing the petitioner to possess a firearm. If the order denies petitioner’s ability to possess a firearm, the petitioner may appeal the denial, which appeal is to include the record of the circuit court rendering the decision.

(f) All proceedings for relief to regain firearm or ammunition rights shall be reported or recorded and maintained for review.

(g) The prosecuting attorney or one of his or her assistants shall represent the state in all proceedings for relief to regain firearm rights and provide the court the petitioner’s criminal history records.

(h) The written petition, certificate, mental health or substance abuse treatment records and any papers or documents containing substance abuse or mental health information of the petitioner, filed with the circuit court, are confidential. These documents may not be open to inspection by any person other than the prosecuting attorney or one of his or her assistants only for purposes of representing the state in and during these proceedings and by the petitioner and his or her counsel. No other person may inspect these documents, except upon authorization of the petitioner or his or her legal representative or by order of the court, and these records may not be published except upon the authorization of the petitioner or his or her legal representative.

(b) (i) The circuit clerk of each county shall provide the Superintendent of the West Virginia State Police, or his or her designee, and the Administrator of the West Virginia Supreme Court of Appeals, or his or her designee, with a certified copy of any order entered pursuant to the provisions of this section which removes a petitioner’s prohibition to possess firearms. If the order restores the petitioner's ability to possess a firearm, petitioner's name shall be promptly removed from the central state mental health registry and the superintendent or administrator shall forthwith inform the Federal Bureau of Investigation, the United States Attorney General, or other federal entity operating the National Instant Criminal Background Check System of the court action.;

And,

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

Eng. Com. Sub. for Senate Bill No. 507--A Bill to amend and reenact §27-4-1 and §27-4-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §27-5-4 of said code; and to amend and reenact §61-7A-5 of said code, all relating generally to mental health; relating to the voluntary hospitalization at mental health facilities; relating to the voluntary admission of minors into a mental health facility for mental illness, intellectual disability or addiction; removing the requirement that the minor’s consent be secured before they are voluntarily admitted to a mental health facility if the minor is twelve years of age or older; requiring the consent or an emancipated minor before he or she is voluntarily committed; standards and procedures for releasing a minor who is fourteen years of age or older from voluntary hospitalization, when the minor objects to the admission or treatment; standards and procedures for the releasing a minor from voluntary hospitalization when the adult who sponsored the admission withdraws his or her consent; clarifying that the state is not obligated to pay for voluntary hospitalization; relating to the involuntary hospitalization into state mental health facilities; allocation and recapturing of copying and mailing costs associated with notice and orders for final commitment hearing and final order from counties; standards and requirements for the maintenance of mental health registry; prohibitions against persons adjudicated or committed as dangerous from possessing or carrying firearms; petitions for relief from prohibition to carry firearms; application to a court; limiting court’s consideration of petitions to cases where mental health adjudications or commitments occurred in this state; specifying minimum information which must be contained in such petitions; standards of review; applicable factors to be considered by court; required findings which must be made before petition for relief may be granted; right of appeal; reporting requirements; and requiring confidential treatment for certain submitted information.

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

Engrossed Committee Substitute for Senate Bill No. 507, as amended by the House of Delegates, was then put upon its passage.

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. 507) 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, 2012, and requested the concurrence of the Senate in the House of Delegates amendments, as to

Eng. Com. Sub. for Senate Bill No. 588, Relating to Wholesale Drug Distribution Licensing Act of 1991.

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

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

On page five, section five, after line forty-seven, by inserting a new subdivision, designated subdivision (8), to read as follows:

“(8) Drug returns by a pharmacy or chain drug warehouse to wholesale drug distributor or the drug’s manufacturer;”;

And by renumbering the remaining subdivision;

On page seven, section five, line one hundred, after the word “means”, by inserting the words “the person designated by the applicant or license holder from”;

On page eleven, section seven, line thirty-three, after the word “rule.”, by inserting the following: All fees collected pursuant to this section shall be used for the operation and implementation of the West Virginia Controlled Substances Monitoring Program database or in the same manner as those fees governed by section fourteen-b, article five, chapter thirty of this code.;

On page seventeen, section seven, lines one hundred seventy- seven through one hundred eighty, by striking out all of subsection (g) and inserting in lieu thereof a new subsection, designated subsection (g), to read as follows:

(g) Before denial of a license or application for renewal of a license, the applicant shall be entitled to a hearing in accordance with subsection (h), section eight, article one, chapter thirty of this code.;

And,

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

Eng. Com. Sub. for Senate Bill No. 588--A Bill to repeal §60A-8-4 of the Code of West Virginia, 1931, as amended; to amend and reenact §60A-8-3, §60A-8-5 and §60A-8-7 of said code; and to amend said code by adding thereto three new sections, designated §60A-8-14, §60A-8-15 and §60A-8-16, all relating generally to wholesale drug distributors licensed by Board of Pharmacy; specifying purpose of article; modifying the definitions of “wholesale distribution” and “manufacturer”; adding definitions of “person”, “key person” and “third-party logistics provider”; specifying wholesale drug distributor licensing requirements; specifying powers of Board of Pharmacy; increasing licensing fees; requiring updates when material changes occur to a licensee; authorizing board to take certain disciplinary action against licensees, including revocation or suspension of licenses, refusal to renew license and civil penalties; providing a right to hearing; providing for register of wholesale and pharmacy distributors of prescription drugs; and providing for the disposition of fees.

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

Engrossed Committee Substitute for Senate Bill No. 588, as amended by the House of Delegates, was then put upon its passage.

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. 588) passed with its House of Delegates amended title.

Senator Unger moved that the bill take effect July 1, 2012.

On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--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. 588) takes effect July 1, 2012.

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. 28, Requesting Secretary of Administration maintain historical display of Capitol construction.

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. 4063, Relating to civil service commissions in political subdivisions.

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. 4103, Consolidating of government services and enforcement of laws pertaining to the motor carrier industry.

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. 4119, Providing a definition for an athletic director who is employed by a county board of education.

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. House Bill No. 4403, Changing the filing deadline for certified write-in 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. Com. Sub. for House Bill No. 4433, Modifying the criteria for awarding high school diplomas to certain veterans.

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. 4489, Strengthening authority of the West Virginia Municipal Pensions Oversight Board.

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. 106--Requesting that the Joint Committee on Government and Finance study how to best use the additional severance tax collections attributed to the production of natural gas from shales in this state to plan for the future when production of shale gas begins to decline.

Referred to the Committee on Rules.

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

House Concurrent Resolution No. 111--Requesting the Joint Committee on Government and Finance to study issues surrounding bullying in the workplace and possible remedies for hostile work environments.

Referred to the Committee on Rules.

Executive Communications

The Clerk then presented communications from His Excellency, the Governor, advising that on March 9, 2012, he had approved Enr. Senate Bill No. 224, Enr. Committee Substitute for House Bill No. 4037 and Enr. Committee Substitute for House Bill No. 4493.

The Senate proceeded to the fourth order of business.

Senator Tucker, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:

Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 9th day of March, 2012, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:

(Com. Sub. for S. B. No. 100), Relating to fees collected by circuit court clerks.

(S. B. No. 205), Relating to construction zone signage.

(S. B. No. 385), Expanding definition of "computer" in commission of certain crimes.

(Com. Sub. for S. B. No. 429), Relating to motor vehicle registration classifications.

And,

(Com. Sub. for S. B. No. 434), Providing suggestion and suggestee execution contain certain information.

Respectfully submitted,

Gregory A. Tucker,

Chair, Senate Committee.

Meshea L. Poore,

Chair, House Committee.

Senator Kessler (Mr. President), from the Committee on Rules, submitted the following report, which was received:

Your Committee on Rules has had under consideration

Senate Concurrent Resolution No. 81, Requesting Joint Committee on Government and Finance study mandatory immunization exemptions.

Senate Concurrent Resolution No. 95, Requesting Joint Committee on Government and Finance study state's school harassment laws.

Senate Concurrent Resolution No. 97, Requesting Joint Committee on Government and Finance study student truancy.

Senate Concurrent Resolution No. 98, Requesting Joint Committee on Government and Finance study Education Efficiency Audit of WV's Primary and Secondary Education System.

Senate Concurrent Resolution No. 99, Requesting Joint Committee on Government and Finance study State Conservation Committee's district supervisors.

And,

House Concurrent Resolution No. 92, Requesting the Joint Committee on Government and Finance to study the funding of the needs of community and technical colleges in this state.

And reports the same back with the recommendation that they each be adopted.

Respectfully submitted,

Jeffrey V. Kessler,

Chairman ex officio.

At the request of Senator Unger, unanimous consent being granted, the resolutions (S. C. R. Nos. 81, 95, 97, 98 and 99 and H. C. R. No. 92) contained in the preceding report from the Committee on Rules were taken up for immediate consideration and considered simultaneously.

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

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

Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:

Your Committee on Transportation and Infrastructure has had under consideration

House Concurrent Resolution No. 83, The "Vernon Craddock Memorial Bridge".

House Concurrent Resolution No. 100, The "Donald J. Bragg Memorial Bridge".

House Concurrent Resolution No. 103, The "Tennis 'TK' Killen Memorial Bridge".

And,

House Concurrent Resolution No. 105, The "Specialist Fourth Class Lewis Dayton Moles Memorial Bridge".

And reports the same back with the recommendation that they each be adopted.

Respectfully submitted,

Robert D. Beach,

Chair.

At the request of Senator Unger, unanimous consent being granted, the resolutions (H. C. R. Nos. 83, 100, 103 and 105) contained in the preceding report from the Committee on Transportation and Infrastructure were taken up for immediate consideration and considered simultaneously.

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

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

Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:

Your Committee on Transportation and Infrastructure has had under consideration

House Concurrent Resolution No. 96, The "Fields Brothers Memorial Highway".

And has amended same.

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

Respectfully submitted,

Robert D. Beach,

Chair.

At the request of Senator Beach, unanimous consent being granted, the resolution (H. C. R. No. 96) contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.

The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

On page three, by striking out the Resolved clause and inserting in lieu thereof a new Resolved clause, to read as follows:

“That the Legislature hereby requests the Division of Highways to name a stretch of highway on West Virginia Route 62 from the New Haven corporate limit, mile point 38.43 to the intersection of County Route 12, mile point 44.57, in Mason County, West Virginia, the "Fields Brothers Memorial Highway"; and, be it”;

On page three, in the second Further Resolved clause, after the word “Delegates”, by inserting the words “is hereby directed”;

And,

On page one, by striking out the title and substituting therefor a new title, to read as follows:

House Concurrent Resolution No. 96--Requesting the Division of Highways to name a stretch of highway on West Virginia Route 62 from the New Haven corporate limit, mile point 38.43 to the intersection of County Route 12, mile point 44.57, in Mason County, West Virginia, the “Fields Brothers Memorial Highway”.

The question now being on the adoption of the resolution (H. C. R. No. 96), as amended, 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 Unger announced that in the meeting of the Committee on Rules previously held, the committee, in accordance with rule number seventeen of the Rules of the Senate, had removed from the Senate third reading calendar, Engrossed Committee Substitute for House Bill No. 2740.

The Senate proceeded to the eighth order of business.

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

Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.

Eng. Com. Sub. for House Bill No. 3174, Relating to liquor and beer sampling events.

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: Beach, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--31.

The nays were: Barnes, Boley and Nohe--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 H. B. No. 3174) 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. 4012, Removing the Commissioner of the Bureau for Public Health from certain boards.

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

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. 4012) passed with its title.

Senator Unger moved that the bill take effect from passage.

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. 4012) takes effect from passage.

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

Eng. House Bill No. 4072, Eliminating requirement for county boards of education to meet on the first Monday of July.

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

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. 4072) passed with its title.

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

Eng. House Bill No. 4271, Reporting requirements for residential mortgage lenders and broker licensees.

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

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. 4271) passed with its title.

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

Eng. House Bill No. 4314, Relating to the appointment of magistrates.

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

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. 4314) passed with its title.

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

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

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

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. 4322) passed with its title.

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

Eng. House Bill No. 4328, Removing bobcats from the list of species requiring a field tag.

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

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. 4328) 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. 4486, Relating to the disclosure of insurance coverage.

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: Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Helmick, Klempa, Palumbo, Plymale, Snyder, Tucker, Unger, Wells, Wills, Yost and Kessler (Mr. President)--18.

The nays were: Barnes, Beach, K. Facemyer, Green, Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Minard, Nohe, Prezioso, Stollings, Sypolt and Williams--16.

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. 4486) passed.

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

Eng. Com. Sub. for House Bill No. 4486--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-6F-2, relating to the disclosure of certain information regarding liability insurance coverage.

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

Eng. House Bill No. 4542, Relating to unemployment compensation benefits.

On third reading, coming up in regular order, with the unreported Judiciary committee amendment pending, and with the right having been granted on yesterday, Friday, March 9, 2012, for further amendments to be received on third reading, was reported by the Clerk.

At the request of Senator Palumbo, 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 Palumbo, the following amendment to the bill was reported by the Clerk and adopted:

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

ARTICLE 5. EMPLOYER COVERAGE AND RESPONSIBILITY.

§21A-5-7. Joint and separate accounts.

(1) The commissioner shall maintain a separate account for each employer, and shall credit his account with all contributions paid by him prior to July 1, 1961. On and after July 1, 1961, the commissioner shall maintain a separate account for each employer, and shall credit said employer's account with all contributions of such employer in excess of seven tenths of one percent of taxable wages; and on and after July 1, 1971, The commissioner shall maintain a separate account for each employer, and shall credit said the employer's account with all contributions of such the employer in excess of four tenths of one percent of taxable wages: Provided, That any adjustment made in any employer's account after the computation date shall may not be used in the computation of the balance of an employer until the next following computation date: Provided, however, That nothing in this chapter shall be construed to grant grants an employer or individual in his, her or its service prior claims or rights to the amounts paid by him, her or its into the fund, either on his, her or its behalf or on behalf of such the individuals. The account of any employer which had has been inactive for a period of four consecutive calendar years shall be terminated for all purposes.

(2) Benefits paid to an eligible individual for regular and extended total or partial unemployment beginning after the effective date of this article shall be charged to the account of the last employer with whom he or she has been employed as much as thirty working days, whether or not such the days are consecutive: Provided, That no employer's account shall may be charged with benefits paid to any individual who has been separated from a noncovered employing unit in which he or she was employed as much as thirty days, whether or not such the days are consecutive: Provided, however, That no employer's account shall may be charged with more than fifty percent of the benefits paid to an eligible individual as extended benefits under the provisions of article six-a of this chapter: Provided further, That state and local government employers shall be charged with one hundred percent of the benefits paid to an eligible individual as extended benefits. Beginning on July 1, 1984, benefits Benefits paid to an individual are to be charged to the accounts of his or her employers in the base period, the amount of such the charges, chargeable to the account of each such employer, to be that portion of the total benefits paid such the individual as the wages paid him or her by such the employer in the base period are to the total wages paid him or her during his or her base period for insured work by all his or her employers in the base period. For the purposes of this section, no base period employer's account shall may be charged for benefits paid under this chapter to a former employee, provided such if the base period employer furnishes separation information within fourteen days from the date the notice was mailed or delivered, which results in a disqualification under the provision set forth in subsection one, section three, article six, or subsection two, section three, article six of this chapter or would have resulted in a disqualification under such that subsection except for a subsequent period of covered employment by another employing unit. Further, no contributory base period employer's experience rating account shall may be charged for benefits paid under this chapter to an individual who has been continuously employed by that employer on a part-time basis, if the part-time employment continues while the individual is separated from other employment and is otherwise eligible for benefits. One half of extended benefits paid to an individual after July 1, 1984, and subsequent years are to be charged to the accounts of his or her employers, except state and local government employers, in the base period in the same manner provided for the charging of regular benefits. Effective January 1, 1988, the The entire state share of extended benefits paid to an individual shall be charged to the accounts of his or her base period employers. The provisions of this section permitting the noncharging of contributory employers' accounts have no application to benefit charges imposed upon reimbursable employers.

(3) The commissioner shall for each calendar year hereafter, classify employers in accordance with their actual experience in the payment of contributions on their own behalf and with respect to benefits charged against their accounts, with a view of fixing such the contribution rates as will reflect such experiences. For the purpose of fixing such the contribution rates for each calendar year, the books of the department shall be closed on July 31 of the preceding calendar year, and any contributions thereafter paid after that, as well as benefits thereafter paid after that with respect to compensable weeks ending on or before June 30 of the preceding calendar year, shall may not be taken into account until the next annual date for fixing contribution rates: Provided, That if an employer has failed to furnish to the commissioner on or before July 31 of such the preceding calendar year the wage information for all past periods necessary for the computation of the contribution rate, such the employer's rate shall be, if it is immediately prior to such that July 31, less than three and three-tenths percent, increased to three and three-tenths percent: Provided, however, That any payment made or any information necessary for the computation of a reduced rate furnished on or before the termination of an extension of time for such the payment or reporting of such information granted pursuant to a regulation rule of the commissioner authorizing such an extension, shall be taken into account for the purposes of fixing contribution rates: Provided further, That when the time for filing any report or making any payment required hereunder falls on Saturday, Sunday, or a legal holiday, the due date shall be deemed to be is the next succeeding business day: And provided further, That whenever, through mistake or inadvertence, erroneous credits or charges are found to have been made to or against the reserved account of any employer, the rate shall be adjusted as of January 1 of the calendar year in which such the mistake or inadvertence is discovered, but payments, made under any rate assigned prior to January 1 of such that year, shall not be deemed to be are not erroneously collected.

(4) The commissioner may prescribe regulations rules for the establishment, maintenance and dissolution of joint accounts by two or more employers, and shall, in accordance with such regulations the rules and upon application by two or more employers to establish such an a joint account, or to merge their several individual accounts in a joint account, maintain such a joint account as if it constituted is a single employer's account.

(5) State and local government employers are hereby authorized to may enter into joint accounts and to maintain such the joint account or accounts as if it or they constituted are a single employer's account or accounts.

(6) Effective on and after July 1, 1981, 2012, if an employer has failed to furnish to the commissioner on or before August 31 1980, and each year thereafter, with the exception of 1981, which due date shall be September 30, 1981, of each year the wage information for all past periods necessary for the computation of the contribution rate, such or failed to pay all contributions due on or before August 31, the employer's rate shall be, if it is immediately prior to July 1, 1981 less than seven and five-tenths percent, increased to seven and five-tenths percent.

(7) Effective July 1, 2012, a contributory employer’s account shall not be relieved of charges relating to a payment from the fund if the department determines that:

(A) The erroneous payment was made because the employer, or an agent of the employer, was at fault for failing to respond timely or adequately to the request of the agency for information relating to the claim for compensation; and

(B) The employer or agent has established a pattern of failing to respond timely or adequately to such requests.

For purposes of this section:

(8) For purposes of this section:

(A) “Erroneous payment” means a payment that but for the failure by the employer or the employer’s agent with respect to the claim for unemployment compensation would not have been made.

(B) “Pattern of failing” means repeated documented failure on the part of the employer or the agent of the employer to respond as requested in this section, taking into consideration the number of instances of failure in relation to the total volume of requests by the agency to the employer or the employer’s agent as described in this section.

Having been engrossed, the bill (Eng. H. B. No. 4542) was read a third time and put upon its passage.

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. 4542) passed.

At the request of Senator Palumbo, 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 Palumbo, the following amendment to the title of the bill was reported by the Clerk and adopted:

Eng. House Bill No. 4542--A Bill to amend and reenact §21A-5-7 of the Code of West Virginia, 1931, as amended, relating to unemployment compensation benefits; preventing contributory employers from being relieved of benefit charges to their accounts if an overpayment of benefits is the result of the employer's or an employer’s agent’s failure to provide requested information to the agency timely or to adequately; and providing definitions.

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

Eng. Com. Sub. for House Bill No. 4605, Providing a premarital education option to applicants for marriage licenses.

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: Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Wills, Yost and Kessler (Mr. President)--29.

The nays were: Barnes, K. Facemyer, Miller, Sypolt and Williams--5.

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. 4605) 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. 4605--A Bill to amend and reenact §48-2-104 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto two new sections, designated §48-2-701 and §48-2-702; and to amend and reenact §59-1-10 of said code, all relating generally to premarital education; providing a premarital education incentive to applicants for marriage licenses; providing for curriculum requirements for premarital education; identifying instructors for premarital education; increasing the fee for marriage license without completion of a premarital education course; creating a fund for purposes of administering the premarital education; and creating a fund for purposes of administering civil legal services for low income persons.

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

Eng. House Bill No. 4652, Making a supplementary appropriation to various agencies.

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

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. H. B. No. 4652) passed with its title.

Senator Unger moved that the bill take effect from passage.

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. 4652) takes effect from passage.

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

Eng. House Bill No. 4656, Making a supplementary appropriation to the Division of Human Services, Temporary Assistance for Needy Families.

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

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. H. B. No. 4656) passed with its title.

Senator Unger moved that the bill take effect from passage.

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. 4656) takes effect from passage.

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

Eng. House Bill No. 4657, Making a supplementary appropriation to the Department of Administration, Office of the Secretary, Employee Pension and Health Care Benefit Fund, Division of Purchasing, Department of Environmental Protection, etc.

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

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. H. B. No. 4657) passed with its title.

Senator Unger moved that the bill take effect from passage.

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. 4657) takes effect from passage.

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

Eng. House Bill No. 4658, Supplementing, amending, decreasing and increasing items of the existing appropriations from the State Road Fund to the Department of Transportation, Division of Highways.

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

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. H. B. No. 4658) passed with its title.

Senator Unger moved that the bill take effect from passage.

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. 4658) takes effect from passage.

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 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. 4648, Implementing a domestic violence court pilot project.

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates Frazier, Ellem and Ferro.

(Senator Foster in the Chair.)

Pending announcement of a meeting of a standing committee of the Senate,

On motion of Senator Unger, the Senate recessed until 3 p.m. today.

Upon expiration of the recess, the Senate reconvened.

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

At the request of Senator Unger, and by unanimous consent, the provisions of rule number fifty-four of the Rules of the Senate, relating to persons entitled to the privileges of the floor, were suspended in order to grant Delaney Wells, the daughter of the Honorable Erik P. Wells, a senator from the eighth district, privileges of the floor for the day.

The Senate again proceeded to the fourth order of business.

Senator Edgell, 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 28, 2012, 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, Council for Community and Technical College Education, John Walker, Chapmanville, Logan County, for the term ending December 20, 2012.

2. For Member, Unemployment Compensation Board of Review, The Honorable Jack Canfield, Charleston, Kanawha County, for the term ending January 1, 2017.

3. For Member, Council for Community and Technical College Education, William Baker, Daniels, Raleigh County, for the term ending December 20, 2012.

4. For Member, West Virginia School of Osteopathic Medicine Board of Governors, Dr. Manuel Ballas, Weirton, Brooke County, for the term ending June 30, 2013.

5. For Member, Bridgemont Community and Technical College Board of Governors, Sarah Smith, Charleston, Kanawha County, for the term ending June 30, 2012.

6. For Commissioner, Insurance Commission, Mike Riley, Charleston, Kanawha County, to serve at the will and pleasure of the Governor.

7. For Member, Fairmont State University Board of Governors, John Myers, Morgantown, Monongalia County, for the term ending June 30, 2015.

8. For Member, Fairmont State University Board of Governors, Dixie Yann, Fairmont, Marion County, for the term ending June 30, 2013.

9. For Member, College Prepaid Tuition and Savings Program Board of Trustees, Robert Galloway, Charleston, Kanawha County, for the term ending June 30, 2016.

10. For Member, Solid Waste Management Board, Roger Bryant, Logan, Logan County, for the term ending June 30, 2013.

11. For Commissioner, Bureau of Senior Services, Robert Roswall, Huntington, Cabell County, to serve at the will and pleasure of the Governor.

12. For Member, West Virginia University Board of Governors, David Alvarez, Bridgeport, Harrison County, for the term ending June 30, 2014.

13. For Member, Unemployment Compensation Board of Review, The Honorable Gino Colombo, Clarksburg, Harrison County, for the term ending January 1, 2017.

14. For Member, Health Information Network, Dr. Kevin Halbritter, Morgantown, Monongalia County, to serve at the will and pleasure of the Governor.

15. For Member, Regional Jail and Correctional Facility Authority, Gary Ellyson II, Gassaway, Braxton County, for the term ending June 30, 2012.

16. For Member, Contractor Licensing Board, Jacob Meck, Green Bank, Pocahontas County, for the term ending June 30, 2015.

17. For Member, Contractor Licensing Board, James Smith, Charleston, Kanawha County, for the term ending June 30, 2015.

18. For Member, Ethics Commission, The Honorable Terry Walker, Kearneysville, Jefferson County, for the term ending June 30, 2014.

19. For Member, Ethics Commission, Robert Wolfe, Man, Logan County, for the term ending June 30, 2013.

20. For Chief Administrative Law Judge, Workers’ Compensation Office of Judges within the Office of the Insurance Commissioner, Rebecca Roush, Mason, Mason County, for the term ending December 1, 2015.

21. For Member, National Coal Heritage Area Authority, Woody Duba, Oak Hill, Fayette County, for the term ending June 30, 2014.

22. For Member, National Coal Heritage Area Authority, John Payne, Bluefield, Mercer County, for the term ending June 30, 2012.

23. For Member, Solid Waste Management Board, Steve Pilato, Fayetteville, Fayette County, for the term ending June 30, 2012.

24. For Commissioner, Alcohol Beverage Control Administration, Ron Moats, Charleston, Kanawha County, to serve at the will and pleasure of the Governor.

25. For Member, State Rail Authority, William Hartman, Franklin, Pendleton County, for the term ending June 30, 2015.

26. For Member, National Coal Heritage Area Authority, Larry Lodato, Madison, Boone County, for the term ending June 30, 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,

Larry J. Edgell,

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 Kessler (Mr. President) laid before the Senate the following executive message:

Senate Executive Message No. 2, dated February 28, 2012 (shown in the Senate Journal of that day, pages 7 to 9, inclusive).

Senator Edgell 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.

The question being on the adoption of Senator Edgell’s aforestated motion.

The roll was then taken; and

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 Senator Edgell’s aforestated motion had prevailed.

________

Consideration of executive nominations having been concluded,

The Senate again proceeded to the fifth order of business.

Filed Conference Committee Reports

The Clerk announced the following conference committee report had been filed at 3:59 p.m. today:

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

Without objection, the Senate returned to the third order of business.

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

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 36, Relating to disclosure requirements for certain public construction contracts.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect July 1, 2012, of

Eng. Senate Bill No. 75, Creating Equine Rescue Facilities Act.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect July 1, 2012, of

Eng. Com. Sub. for Senate Bill No. 76, Creating Green Buildings Act.

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

Eng. Com. Sub. for Senate Bill No. 118, Terminating residential lease upon tenant death.

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

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

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

ARTICLE 6. LANDLORD AND TENANT.

§37-6-11. Persons liable for rent; termination of lease upon death.

(a) Rent may be recovered from the lessee, or other person owing it, or the heir, personal representative, devisee or assignee, who has succeeded to the lessee's estate in the premises. But no assignee shall be liable for rent which became due before his or her interest began. Nothing Subject to the provisions of subsection (b), nothing herein shall change or impair the liability of heirs, personal representatives, or devisees, for rent, to the extent and in the manner in which they are liable for other debts of the ancestor or testator; nor shall the mere merger of the reversion to which a rent is incident affect the liability for such rent.

(b) (1) Notwithstanding any other provision of this code to the contrary, upon the death of a lessee of a residential premises, an heir, personal representative, devisee or assignee of the deceased lessee may terminate a lease prior to its expiration.

(2) Termination of a residential lease, as provided in this subsection, shall become effective on the last day of the calendar month that is two months after:

(A) The date on which the notice is hand-delivered to the other party of the lease; or

(B) The date on which the notice, addressed to the other party to the lease, is deposited in the United States mail, postage prepaid, evidenced by the postmark.

(3) Termination of a lease under this subsection does not relieve the lessee's estate from liability for either:

(A) The payment of rent or other sums owed prior to or during the two month written notice period; or

(B) For the payment of amounts necessary to restore the premises to their condition at the commencement of the tenancy, ordinary wear and tear excepted.

(4) The right of termination contained in this subsection may not be waived by a lessor, lessee or lessee's heir, personal representative, devisee or assignee, by contract or otherwise. Any lease provision or agreement requiring a longer notice period than that provided by this article, is void and unenforceable.

(5) The provisions of this subsection apply to residential property leases entered into or renewed on or after July 1, 2012.

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

Engrossed Committee Substitute for Senate Bill No. 118, as amended by the House of Delegates, was then put upon its passage.

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. 118) 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 of

Eng. Com. Sub. for Senate Bill No. 153, Increasing tax credits for apprenticeship training in construction trades.

A message from The Clerk of the House of Delegates announced that that body had refused to recede from its amendment, and requested the appointment of a committee of conference of seven from each house on the disagreeing votes of the two houses, as to

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

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates White, T. Campbell, M. Poling, Perdue, Varner, Anderson and Evans.

On motion of Senator Unger, the Senate agreed to the appointment of a conference committee on the bill.

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

Senators Prezioso, Stollings, Plymale, D. Facemire, Unger, Edgell 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 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. 211, Creating traffic offenses for texting or using handheld wireless communication device while driving.

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates Barker, Frazier and Hamilton.

On motion of Senator Unger, the Senate agreed to the appointment of a conference committee on the bill.

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

Senators Palumbo, Snyder and Nohe.

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. 212, Creating criminal offense for disrupting communications and public utility services.

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

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

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

ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-49b. Disruption of communications and utilities services.

(a) Any person who causes a disruption of communications services or public utility services by the theft or by intentionally damaging communications or public utility equipment and by such conduct causes a loss in the value of the property in an amount of two thousand five hundred dollars or more, shall be guilty of a felony and, upon conviction thereof, shall be sentenced to not more than two thousand hours of court-approved community service and fined not more than $10,000, or both.

(b) As used in this section, communications and public utility equipment includes but is not limited to public safety communications towers and equipment, telephone lines, communications towers and tower equipment, radio towers and tower equipment, railroad and other industrial safety communication devices or systems, electric towers and equipment and electric transmission and distribution lines.

On motion of Senator Unger, the Senate refused to concur in the foregoing House amendment to the bill (Eng. Com. Sub. for S. B. No. 212) 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.

Eng. Com. Sub. for Senate Bill No. 245, Authorizing Department of Health and Human Resources promulgate legislative rules.

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

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

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

ARTICLE 5. AUTHORIZATION FOR DEPARTMENT OF HEALTH AND HUMAN RESOURCES TO PROMULGATE LEGISLATIVE RULES.

§64-5-1. Department of Health and Human Resources.

(a) The legislative rule filed in the State Register on July 28, 2011, authorized under the authority of section three, article two, chapter thirty-three of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 9, 2011, relating to the Department of Health and Human Resources (credentialing verification organizations, 64 CSR 89B), is authorized.

(b) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section three, article five-a, chapter seventeen-c of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 14, 2011, relating to the Department of Health and Human Resources (safety and treatment program, 64 CSR 98), is authorized.

(c) The legislative rule filed in the State Register on July 28, 2011, authorized under the authority of section eight, article four-a, chapter thirty-three of this code, modified by the Secretary of the Department of Health and Human Resources, the Insurance Commissioner and the Chair of the West Virginia Health Care Authority to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on October 21, 2011, relating to the Secretary of the Department of Health and Human Resources, the Insurance Commissioner and the Chair of the West Virginia Health Care Authority (all-payer claims database – data submission requirements, 114A CSR 1), is authorized with the following amendments:

On page four, subsection 3.2., by striking out “OIC” and inserting in lieu thereof the words “Offices of the Insurance Commissioner”;

On page four, subdivision 3.2.a., by striking out “OIC” and inserting in lieu thereof the words “Offices of the Insurance Commissioner”;

And,

On page seven, by striking out all of subdivision 7.1.e. and inserting in lieu thereof a new subdivision 7.1.e., to read as follows:

7.1.e. The Director of the Public Employees Insurance Agency or his or her designee, the Commissioner of the Bureau for Medical Services or his or her designee and the Director of the Children’s Health Insurance Program or his or her designee.

(d) The legislative rule filed in the State Register on July 28, 2011, authorized under the authority of section eight, article four-a, chapter thirty-three of this code, relating to the Secretary of the Department of Health and Human Resources, the Insurance Commissioner and the Chair of the West Virginia Health Care Authority (all-payer claims database program’s privacy and security, 114A CSR 2), is authorized.

§64-5-2. Bureau for Public Health.

(a) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 1, 2011, relating to the Department of Health and Human Resources (public water systems, 64 CSR 3), is authorized.

(b) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 30, 2011, relating to the Department of Health and Human Resources (public water systems operators, 64 CSR 4), is authorized with the following amendments:

On page three, subsection 3.23., after the words “Water Distribution” by inserting the word “System”;

And,

On page six, subdivision 5.5.c., by striking out the word “subsection” and inserting in lieu thereof the word “subdivision”.

(c) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 30, 2011, relating to the Department of Health and Human Resources (wastewater systems and operations, 64 CSR 5), is authorized with the following amendments:

On page three, subsection 3.26., by striking out the words “West Virginia Department of Environmental Protection (WVDEP)” and inserting in lieu thereof “WV DEP”;

On page four, subdivision 4.1.e., by striking out the word “Extended” and inserting in lieu thereof the words “This class includes extended”;

On page five, by striking out “5.4.a.2.” and inserting in lieu thereof “5.4.a.1.A.”;

On page five, by striking out “5.4.a.3.” and inserting in lieu thereof “5.4.a.1.B.”;

On page seven, subsection 6.2., after the words “based on” by inserting the words “his or her”;

On page nine, subdivision 7.7.a., by striking out the word “requirement” and inserting in lieu thereof the word “requirements”;

On page ten, subsection 10.1., by striking out the word “applications” and inserting in lieu thereof the word “application”;

On page ten, subsection 10.4., by striking out the word “Applicant” and inserting in lieu thereof the words “An applicant”;

On page eleven, subdivision 12.1.d., after the word “one” by inserting “(1)”;

On page twelve, subdivision 12.1.g., after the word “three” by inserting “(3)”;

On page twelve, subdivision 12.1.h., after the words “with this rule,” by inserting the word “an”;

On page twelve, subdivision 12.1.h., line eight, following the words “under this rule shall”, by striking out the word “take” and inserting in lieu thereof “complete”;

On page twelve, subdivision 12.1.h., line ten, following the words “advanced certified operator”,by inserting the words “without examination”;

And,

On page fifteen, Table 64-5B, in the row beginning with the word “Advanced”, under the column heading labeled “Education”, following the words “Commissioner-approved training course” by striking out the words “& passing the Advanced exam”.

(d) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section three, article five, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 1, 2011, relating to the Department of Health and Human Resources (vital statistics, 64 CSR 32), is authorized.

(e) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 1, 2011, relating to the Department of Health and Human Resources (manufactured home communities, 64 CSR 40), is authorized with the following amendments:

On page four, by striking out all of subdivision 5.1.5. and inserting in lieu thereof a new subdivision 5.1.5., to read as follows:

5.1.5. The Commissioner shall deny a permit if the information on the application form, plans or specifications is incomplete, inaccurate, false or misleading, or indicates that the application provisions of this rule cannot be met. A permit to construct shall be issued or denied within forty-five (45) days of receipt of the completed application. Reasons for denial shall be in writing.;

And,

On page four, by striking out all of paragraph 5.1.5.a.

(f) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 1, 2011, relating to the Department of Health and Human Resources (AIDS-related medical testing and confidentiality, 64 CSR 64), is authorized with the following amendments:

On page four, by striking out all of paragraph 4.1.d.4. and inserting in lieu thereof a new paragraph 4.1.d.4., to read as follows:

4.1.d.4. It is recommended that health care providers test women as early as possible during each pregnancy. Women who decline the test early in prenatal care may be encouraged to be tested at subsequent visits.;

On page five, by striking out all of subdivision 4.2.c. and inserting in lieu thereof a new subdivision 4.2.c. to read as follows:

4.2.c. If the pregnant woman’s HIV status is unknown at the time she presents for delivery, an HIV test shall be offered and if she refuses the test, the infant may be tested and the mother shall be informed of the testing and the results.;

On page six, by striking out all of paragraph 4.2.c.1.; On page six, by striking out all of paragraph 4.2.c.2;

On page six, by striking out “4.2.c.3.” and inserting in lieu thereof “4.2.c.1.”;

On page six, by striking out “4.2.c.4.” and inserting in lieu thereof “4.2.c.2.”;

On page six, by striking out all of paragraph 4.3.b.1. and inserting in lieu thereof a new paragraph 4.3.b.1, to read as follows:

4.3.b.1. A court shall order a defendant charged with an offense set forth in subdivision two, subsection f, section two, article three-c, chapter sixteen of the code, to undergo an oral test for HIV test not later than 48 hours after the date on which the information or indictment is presented;

On page six, by striking out all of paragraph 4.3.b.3. and inserting in lieu thereof a new paragraph 4.3.b.3, to read as follows:

4.3.b.3. Follow-up tests for HIV are authorized as may be medically appropriate, and the results of any follow-up tests shall be made available in accordance with paragraph 4.3.b.2, as soon as practicable.;

And,

On page seven, by striking out all of subsection 5.3.

(g) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section four, article one, chapter sixteen of this code, relating to the Department of Health and Human Resources (public water systems design standards, 64 CSR 77), is authorized with the following amendments:

On page seven, after subdivision 3.3.d., by inserting a new subsection, designated subsection 3.4., to read as follows:

3.4. Specifications – The applicant or the applicant’s engineer shall supply complete, detailed technical specifications for the proposed project, including: pipe, valves and other building materials; a program for keeping existing public water system facilities in operation during construction of additional facilities so as to minimize interruption of service; laboratory facilities and equipment; the number and design of chemical feeding equipment; and materials or proprietary equipment for sanitary or other facilities including any necessary backflow or backsiphonage protection.;

On page eleven, by striking out “§65-77-5.” and inserting in lieu thereof “§64-77-5.”;

On page thirty-five, paragraph 6.3.h.2., after the words “at a minimum,” by inserting the word “of”;

On page forty, paragraph 6.4.g.1., by striking out the word “led” and inserting in lieu thereof the word “lead”;

On page forty-five, paragraph 6.4.i.2., by striking out the word “devise” and inserting in lieu thereof the word “device”;

On page sixty-seven, paragraph 7.5.d.2., by striking out the word “shallbe” and inserting in lieu thereof the words “shall be”;

And,

On page sixty-seven, paragraph 7.5.e.3., by striking out the word “serve” and inserting in lieu thereof the word “severe”.

§64-5-3. Division of Human Services.

(a) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section four, article two-b, chapter forty-nine of this code, modified by the Division of Human Services to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on November 23, 2011, relating to the Division of Human Services (family child care facility licensing requirements, 78 CSR 18), is authorized.

(b) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section four, article two-b, chapter forty-nine of this code, modified by the Division of Human Services to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on November 23, 2011, relating to the Division of Human Services (family child care home registration requirements, 78 CSR 19), is authorized.

(c) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section two, article two-e, chapter forty-nine of this code, modified by the Division of Human Services to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on November 23, 2011, relating to the Division of Human Services (child care quality rating and improvement system, 78 CSR 22), is authorized, with the following amendment:

On page one, subsection 1.4, line six, by striking out the words “July 1, 2012” and inserting in lieu thereof the words “This rule is effective upon the date specified in an emergency rule promulgated by the Department of Health and Human Resources as being the date funding for implementation of the Child Care Quality Rating and Improvement System will become available pursuant to a duly enacted appropriation bill authorizing the expenditure of funds for that purpose.”;

And,

On page one, beginning on line thirteen, by striking out subsection 2.3 in its entirety and inserting in lieu thereof a new subsection 2.3, to read as follows:

2.3 Pursuant to W.Va. Code §49-2E-4, no provision of this rule may be construed to require implementation of a quality rating and improvement system unless funds are appropriated therefor. The “Quality Rating and Improvement System Cost Implementation Study” dated July 31, 2011, prepared and published by the Marshall University Center for Business and Economic Research for the Department of Health and Human Resources and accessible on-line at

https://www.marshall.edu/cber/research/QualityRatingImprovementSystemFINAL.pdf, is the financial plan submitted by the Secretary of the Department of Health and Human Resources pursuant to Chapter §49-2E-3, and is hereby attached by reference and incorporated into this rule as if fully set forth herein. The financial plan prioritizes the components of the system for implementation and provides for gradual implementation over a period of several years in the event that funding is not sufficient to implement all requirements in code.

§64-5-4. Commission for the Deaf and Hard of Hearing.

(a) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section nine, article fourteen-a, chapter five of this code, relating to the Commission for the Deaf and Hard of Hearing (fees for qualified interpreters, 192 CSR 1), is authorized, with the following amendment:

On page four, subsection 2.24, by striking out the words “spoken translating” and inserting in lieu thereof the words “translating spoken”.

(b) The legislative rule filed in the State Register on July 29, 2011, authorized under the authority of section five, article fourteen-a, chapter five of this code, modified by the Commission for the Deaf and Hard of Hearing to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 1, 2011, relating to the Commission for the Deaf and Hard of Hearing (establishment of required qualifications and ethical standards for interpreters and transliterators, 192 CSR 3), is authorized.

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

Engrossed Committee Substitute for Senate Bill No. 245, as amended by the House of Delegates, was then put upon its passage.

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. 245) passed with its title.

Senator Unger moved that the bill take effect from passage.

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. 245) takes effect from passage.

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

Eng. Com. Sub. for Senate Bill No. 287, Authorizing Department of Revenue promulgate legislative rules.

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

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

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

ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF REVENUE TO PROMULGATE LEGISLATIVE RULES.

§64-7-1. State Tax Department.

(a) The legislative rule filed in the State Register on April 21, 2011, authorized under the authority of section five-z, 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 August 5, 2011, relating to the State Tax Department (payment of taxes by electronic funds transfer, 110 CSR 10F), is authorized with the following amendments:

On page four, subsection 3.2., by striking out all of subsection 3.2. and inserting in lieu thereof a new subsection 3.2., to read as follows:

3.2. The threshold amount is $100,000.00 in tax liability per tax type per taxable year or reporting period beginning on or after January 1, 2004, subject to subdivisions 3.2.1., 3.2.2., 3.2.3. and 3.2.4. of this subsection.;

And,

On page four, after subsection 3.2., by inserting four new subdivisions, designated subdivisions 3.2.1., 3.2.2., 3.2.3. and 3.2.4., to read as follows:

3.2.1. For tax years beginning on or after January 1, 2013, the threshold amount for determining whether a taxpayer shall pay electronically is $50,000 in tax liability paid for a single tax type in the immediately preceding tax year: Provided, That for tax years beginning on or after January 1, 2013, any taxpayer that pays more than $50,000 for any tax type in the immediately preceding tax year shall electronically pay the taxes for all tax returns filed;

3.2.2. For tax years beginning on or after January 1, 2014, the threshold amount for determining whether a taxpayer shall pay electronically is $25,000 in tax liability paid for a single tax type in the immediately preceding tax year: Provided,, That for tax years beginning on or after January 1, 2014, any taxpayer that pays more than $25,000 for any tax type in the immediately preceding tax year shall electronically pay the taxes for all tax returns filed;

3.2.3. For tax years beginning on or after January 1, 2015, the threshold amount for determining whether a taxpayer shall pay electronically is $10,000 in tax liability paid for a single tax type in the immediately preceding tax year: Provided, That for tax years beginning on or after January 1, 2015, any taxpayer that pays more than $10,000 for any tax type in the immediately preceding tax year shall electronically pay the taxes for all tax returns filed;

3.2.4. Tax Commissioner may determine the tax types for which electronic payment of taxes is not required.

(b) The legislative rule filed in the State Register on July 18, 2011, authorized under the authority of section ten, article thirteen-aa, 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 November 22, 2011, relating to the State Tax Department (commercial patent incentives tax credit, 110 CSR 13Q), is authorized, with the following amendments:

On page three, subsection 2.18, line twenty-one, following the words “June 19” and the comma, by striking out the number “2970” and inserting in lieu thereof the number “1970”;

On page five, subsection 3.1.7, line six, following the words “allowed under”, by striking out the words “Subsection 3.1 or 3.2 of”;

And,

On page five, subsection 3.1.8, line ten, following the words “allowed under”, by striking out the words “Subsection 3.1 or 3.2 of”.

(c) The legislative rule filed in the State Register on July 29, 2011, 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 November 22, 2011, relating to the State Tax Department (exchange of information agreement between the State Tax Department and the Department of Commerce, the Department of Transportation and the Department of Environmental Protection, 110 CSR 50G), is authorized.

§64-7-2. Insurance Commissioner.

(a) The legislative rule filed in the State Register on July 28, 2011, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (licensing and conduct of insurance producers and agencies, 114 CSR 2), is authorized.

(b) The legislative rule filed in the State Register on July 28, 2011, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (surplus lines insurance, 114 CSR 20), is authorized.

(c) The legislative rule filed in the State Register on July 28, 2011, 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 21, 2011, relating to the Insurance Commissioner (insurance holding company systems, 114 CSR 35), is authorized.

(d) The legislative rule filed in the State Register on July 28, 2011, 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 21, 2011, relating to the Insurance Commissioner (continuing education for individual insurance producers, 114 CSR 42), is authorized with the following amendment:

On page three, subsection 4.2., by striking out all of subsection 4.2. and inserting in lieu thereof a new subsection 4.2. to read as follows:

4.2. The commissioner shall, in consultation with the board, develop a program regarding continuing education requirements during the transition to the new biennium period established pursuant to the 2012 amendments to this rule; such program shall be posted on the agency website.

(e) The legislative rule filed in the State Register on July 28, 2011, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (mini COBRA, 114 CSR 93), is authorized with the following amendments:

On page three, subsection 3.5., after the word “subsection” by striking out “3.5.” and inserting in lieu thereof “3.4.”;

On page three, subsection 3.6, by striking out the subsection in its entirety and inserting in lieu thereof, the following:

3.6. Election of coverage by beneficiary. A covered employee or other qualified beneficiary who wants to elect continuation coverage must do so in writing to the carrier within 30 days after receiving a notice under subsection 3.5 of this section and must include payment of the initial premium set forth in such notice. The premium payment due shall be for the period beginning on the date coverage would have otherwise terminated due to the qualifying event. The premium charged for continuation of coverage may not exceed 100% percent of the applicable premium.;

On page four, subdivision 3.6.a., by striking out the subdivision in its entirety and inserting in lieu thereof, the following:

3.6.a. The carrier or its designee shall process all elections promptly and provide coverage retroactively to the date coverage would otherwise have terminated on the basis of the qualifying event. Employers are required to promptly provide to the carrier or its designee any information and paperwork necessary to facilitate the processing of a request for continuation of coverage. After an election and initial premium remittance, the carrier must bill the beneficiary for premiums no more often than monthly and with an allowance for a 30-day grace period for payment.;

And,

On page four, subsection 3.7., by striking out all of subsection 3.7. and inserting in lieu thereof a new subsection 3.7., to read as follows:

3.7. Remedies in the event of carrier noncompliance. If a carrier fails to comply with the requirements of this rule, including the notice requirements of subsection 3.5. of this section, and such noncompliance results in the failure of an eligible adult qualified beneficiary of a covered employee to timely elect continuation coverage, every qualified beneficiary of the covered employee covered on the day of the qualifying event shall remain covered under the health benefit plan until the qualified beneficiaries are afforded the opportunity to elect such coverage.

(f) The legislative rule filed in the State Register on July 28, 2011, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (Workers’ Compensation Insurance for state agencies, 114 CSR 94), is authorized with the following amendments:

On page one, subsection 2.2., by striking out all of subsection 2.2. and inserting in lieu thereof a new subsection 2.2., to read as follows:

2.2. ‘Discretionary participant’ means any discretionary participant as defined in W. Va. Code §33-2-21a(a)(1).;

On page two, subsection 2.8., by striking out the words “and those discretionary participants that have agreed to participate in SAWC under an agreement with the Commissioner” and inserting in lieu thereof the words “and for those discretionary participants that participate in SAWC”;

On page two, subsection 3.1., by striking out the words “and shall send to each a notice of such determination”;

On page two, subdivision 3.1.a., by striking out the words “Such notice shall inform: (i) Executive state entities that they will be required to execute the Agreement and” and inserting in lieu thereof the words “The Commissioner shall inform: (i) Executive state entities that they will be required”;

On page two, subdivision 3.1.b., by striking out the words “Any recipient of a notice sent pursuant to subdivision a of this subsection that believes it should have been classified differently, or any entity that did not receive a notice” and inserting in lieu thereof the words “Any entity that believes it should have been classified differently, or any entity that did not receive a notice of eligibility”;

On page two, subsection 3.2., by striking out all of subsection 3.2. and inserting in lieu thereof a new subsection 3.2., to read as follows:

3.2. The Commissioner may make participation in SAWC by a discretionary participant contingent on the execution of the Agreement.;

On page three, subdivision 3.3.a., after the word “Agreement” by inserting the words “or other noncompliance with program requirements”;

On page three, subdivision 3.3.c., by striking out the words “the latter of one year from removal or the next open enrollment period” and inserting in lieu thereof the words “a period of not more than one year to be determined by the commissioner based on the seriousness of the non-compliance and the efforts of the participant to come into compliance”;

On page three, subdivision 3.3.d., by striking out the words “upon application and re-execution of the Agreement” and inserting in lieu thereof the words “upon written request and expiration of the exclusion period determined in accordance with subdivision 3.3.c. of this subsection”;

On page three, subdivision 3.4.a., by striking out the words “any fee” and inserting in lieu thereof the words “any assessment”;

On page three, subdivision 3.4.a., by striking out the words “assessed fee” and inserting in lieu thereof the word “assessment”;

On page three, subdivision 3.4.a., by striking out the words “such fee” and inserting in lieu thereof the words “such assessment”;

And,

On page three, subdivision 3.4.b., by striking out the word “fees” and inserting in lieu thereof the word “assessment”.

§64-7-3. Division of Banking.

The legislative rule filed in the State Register on July 21, 2011, authorized under the authority of section three, article seventeen, chapter thirty-one of this code, relating to the Division of Banking (residential mortgage lenders, brokers and loan originators, 106 CSR 5), is authorized.

§64-7-4. Alcohol Beverage Control Commission.

(a) The legislative rule filed in the State Register on July 13, 2011, authorized under the authority of section six, article three-a, chapter sixty of this code, modified by the Alcohol Beverage Control Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on November 21, 2011, relating to the Alcohol Beverage Commission (licensed retailer operations, 175 CSR 1), is authorized.

(b) The legislative rule filed in the State Register on July 13, 2011, authorized under the authority of section six, article three-a, chapter sixty of this code, relating to the Alcohol Beverage Control Commission (licensing of retail outlets, 175 CSR 5), is authorized.

§64-7-5. Racing Commission.

The legislative rule filed in the State Register on September 13, 2011, authorized under the authority of section twelve-d, article twenty-three, chapter nineteen of this code, relating to the Racing Commission (simulcast pari-mutual wagering at an authorized gaming facility in a historic hotel, 178 CSR 7), is authorized.

§64-7-6. Athletic Commission.

The legislative rule filed in the State Register on July 28, 2011, authorized under the authority of section three-a, article five-a, chapter twenty-nine of this code, modified by the Athletic Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 6, 2012, relating to the Athletic Commission (mixed martial arts, 177 CSR 2), is authorized, with the following amendments:

On pages three and four, §177-2.5., by striking out all of §177-2.5. and inserting in lieu thereof a new §177-2.5., to read as follows:

§177-2.5. Venues must have a minimum seating capacity of 2,500 and video replay capabilities in good working order. However, the Commission may waive the minimum seating capacity requirement. Venues with a seating capacity of 3,500 or more must have a minimum of four video monitors displaying a continuous live feed of the match for the spectators; venues with a maximum seating capacity of 3,499 or less must have at least two monitors displaying a continuous live feed of the match for the spectators. All such video monitors must be a minimum of six feet by six feet. No event shall take place until the venue has been approved by the commission.;

On page twelve, subsection 29.5., by striking out all of subsection 29.5. and inserting in lieu thereof a new subsection 29.5., to read as follows:

29.5. Prohibition of certain dressings. – No second shall be permitted to use grease or any other substances on the body of a contestant. The use of petroleum jelly in corners is not allowed except in the use of stopping blood and on cuts. Petroleum jelly, or other substances approved by the commission, may be used in between rounds in the use of stopping blood and on cuts and only in the presence of a representative of the commission. The use of drugs, alcohols or stimulants during a match by any contestant is adequate cause for revoking license.;

On page twenty, subsection 41.1., by striking out all of subsection 41.1. and inserting in lieu thereof a new subsection 41.1., to read as follows:

41.1. Matches may take place in a cage or ring that has been approved by the commission. The cage or ring shall meet the requirements set forth by the commission and is subject to inspection prior to each match by a commission representative such as a referee.;

On page twenty-one, subsection 41.3., by striking out all of subsection 41.3. and inserting in lieu thereof a new subsection 41.3., to read as follows:

41.3. The commission shall determine all seating arrangements at cage side necessary to effectuate the match. A promoter may submit a proposed seating arrangement to the commission one week before the event.;

And,

On page twenty-one, after subsection 41.3., by inserting a new subsection, designated subsection 41.4., to read as follows:

41.4. Ring - The ring specifications shall meet the following requirements:

41.4.a. The ring shall be no smaller than twenty feet square and larger than thirty-two feet square within the ropes. One corner shall have a red designation and the corner directly opposite shall have a blue designation.

41.4.b. The floor must extend at least eighteen inches beyond the ropes. The ring floor must be padded in a manner as approved by the commission, with at least one inch layer of foam padding. No vinyl or other plastic rubberized cover shall be permitted. The fighting area canvas shall not be more than four feet above the floor of the building and shall have suitable steps or ramp for use by the participants.

41.4.c. Ring posts must be made of metal, not more than three inches in diameter, extending from the floor of the building to a minimum height of fifty-eight inches above the ring floor, and must be properly padded in a manner approved by the commission. Ring posts must be at least eighteen inches away from the ring ropes.

41.4.d. There must be five ring ropes, not less than one inch in diameter and wrapped in soft material. The lowest ring rope must be twelve inches above the ring floor.

41.4.e. There must not be any obstruction or object, including, without limitation, a triangular border, on any part of the ring floor.

§64-7-7. Directors of the West Virginia Health Insurance Plan.

The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand eleven, authorized under the authority of section seven-b, article forty-eight, chapter thirty-three, of this code, relating to the Board of Directors of the West Virginia Health Insurance Plan (premium subsidy, 113 CSR 1), is authorized.

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

Engrossed Committee Substitute for Senate Bill No. 287, as amended by the House of Delegates, was then put upon its passage.

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. 287) passed with its title.

Senator Unger moved that the bill take effect from passage.

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. 287) 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 concurrence by that body in the passage of

Eng. Senate Bill No. 336, Eliminating mortgage lender license exemption available to bank subsidiaries.

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 340, Relating to interscholastic athletics concussions and head injuries.

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

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

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

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §18-2-25a, to read as follows:

ARTICLE 2. STATE BOARD OF EDUCATION.

§18-2-25a. Management of concussions and head injuries in athletics at West Virginia Secondary School Activities Commission member high school or middle school.

(a) The Legislature finds:

(1) Concussions are one of the most commonly reported injuries in children and adolescents who participate in sports and recreational activities. The centers for disease control and prevention estimates that as many as three million nine hundred thousand sports-related and recreation-related concussions occur in the United States each year;

(2) A concussion is caused by a blow or motion to the head or body that causes the brain to move rapidly inside the skull. The risk of catastrophic injuries or death are significant when a concussion or head injury is not properly evaluated and managed;

(3) Concussions are a type of brain injury that can range from mild to severe and can disrupt the way the brain normally works;

(4) Concussions can occur in any organized or unorganized sport or recreational activity and can result from a fall or from players colliding with each other, the ground or with obstacles;

(5) Concussions occur with or without loss of consciousness, but the vast majority occur without loss of consciousness; and

(6) Continuing to play or practice with a concussion or symptoms of head injury leaves the interscholastic athlete especially vulnerable to greater injury and even death. The Legislature recognizes that, despite having generally recognized return to play and practice standards for concussion and head injury, some affected interscholastic athletes are prematurely returned to play or practice resulting in actual or potential physical injury or death to the athletes in the State of West Virginia.

(b) For the purposes of this section, “interscholastic athlete” means any athlete who is participating in interscholastic athletics at a high school or middle school that is a member of the West Virginia Secondary School Activities Commission.

(c) The West Virginia Secondary School Activities Commission shall promulgate rules pursuant to section twenty-five of this article that address concussions and head injuries in interscholastic athletes: Provided, That prior to state board approval and notwithstanding the exemption provided in section three, article one, chapter twenty-nine-a of this code, the state board shall submit the rule to the Legislative Oversight Commission on Education Accountability pursuant to section nine, article three-b, chapter twenty-nine-a of this code. The rules required by this section shall include, but are not limited to, the following:

(1) Guidelines, other pertinent information and forms, as appropriate, shall be developed to inform and educate appropriate school administrators, coaches, interscholastic athletes and their parents or guardians of the nature and risk of concussion and head injury including continuing to play or practice after a concussion or head injury;

(2) On a yearly basis, a concussion and head injury information sheet shall be provided to the interscholastic athlete and the athlete's parent or guardian before the interscholastic athlete begins practice or competition;

(3) An interscholastic athlete who is suspected by a licensed health care professional or by his or her head coach or trainer of sustaining a concussion or head injury in a practice or game shall be removed from competition at that time;

(4) An interscholastic athlete who has been removed from play or practice may not return to play or practice until the athlete is evaluated by an appropriate health care provider trained in the evaluation and management of concussions and receives written clearance to return to play and practice from that appropriate health care provider. The West Virginia Secondary Schools Activities Commission shall establish a list of appropriate licensed health care providers and certified athletic trainers properly trained in the evaluation and management of concussions who are authorized to provide written clearance for the interscholastic athlete to return to play; and

(5) A requirement that all member schools must submit a report to the West Virginia Secondary School Activities Commission whenever an interscholastic athlete suffers or is suspected of suffering a concussion or head injury in a practice or game. The report must be submitted within thirty days after the interscholastic athlete receives written clearance to return to play or practice from an appropriate health care provider. The written clearance must be included with the report submitted by the member school. The West Virginia Secondary School Activities Commission shall compile and analyze all reports and make a determination on whether the rule required by this section or equipment worn by interscholastic athlete needs to be amended accordingly.;

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. 340--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-2-25a, relating to providing findings by the Legislature regarding concussions and head injuries in interscholastic sports and recreational activities; defining “interscholastic athletes”; requiring the West Virginia Secondary Schools Activities Commission to promulgate rules that address concussions and head injuries in interscholastic athletes; and setting forth minimum provisions to be included in the rules.

On motion of Senator Unger, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 340) 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.

Eng. Com. Sub. for Senate Bill No. 360, Granting personal property purchaser at foreclosure sale right of disposal with notice.

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

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

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

That §11-10-13f 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 §38-1-17, all to read as follows:

CHAPTER 11. TAXATION.

ARTICLE 10. WEST VIRGINIA TAX PROCEDURE AND ADMINISTRATION ACT.

§11-10-13f. Certificate of sale; deed to real property; notice and access to recover personal property; abandonment and removal of personal property.

(a) Certificate of sale. -- In the case of property sold as provided in section thirteen-c the Tax Commissioner shall provide to the purchaser a certificate of sale upon payment in full of the purchase price. In the case of real property, such certificate shall set forth the real property purchased, for whose taxes the same was sold, the name of the purchaser and the price paid therefor.

(b) Deed to real property. -- In the case of any real property sold as provided in section thirteen-c and not redeemed in the manner and within the time provided in section thirteen-e, the Tax Commissioner shall execute, in accordance with the laws of this state pertaining to sales of real property under execution, to the purchaser of such that real property at such the sale, upon his or her surrender of the certificate of sale, a deed to the real property so purchased by him or her reciting the facts set forth in the certificate.

(c) Real property purchased by the state. -- If real property is declared purchased by the State of West Virginia at a sale pursuant to section thirteen-c, the Tax Commissioner shall, at the proper time, execute a deed therefor, and without delay cause such the deed to be duly recorded in the office of the clerk of the county in which the real property is located.

(d) Removal of personal property. -- Following the execution of a deed to real property pursuant to this section, and after the previous owner has vacated the property either voluntarily or following an eviction proceeding, any personal property remaining on the real property may be deemed abandoned if the purchaser of the real property provides notice, pursuant to this subsection, and the personal property remains on the real property at the conclusion of the notice period. The notice shall state that the personal property will be deemed abandoned if it is not removed from the real property before the end of the thirtieth day following the postmark date of the notice. If the locks are changed or the previous owner is otherwise prevented from accessing the personal property, the purchaser shall provide the previous owner access to the personal property on reasonable terms. The notice shall state a phone number, a mailing address, and a physical address where the purchaser or an agent for the purchaser who can provide access to the personal property can be contacted; and shall further state that the previous owner may contact the purchaser, and that purchaser will provide the previous owner access to the personal property on reasonable terms. The notice shall be sent to the former owner(s) of the real property at their usual place of business or their usual place of abode or last known address. If the purchaser has received notice in writing or by electronic record that personal property belongs to another or that another person or entity has a security interest in the personal property, and if that person’s mailing address is also received by the purchaser in writing or by electronic record, notice shall be sent to that person or entity as well. The notice shall be made to all required persons, as stated in this section, by both certified mail and regular mail. The notice is complete when mailed, notwithstanding the fact that the notice may be returned as unclaimed or refused. If the notice period passes and the personal property remains on the real property, then the personal property shall be deemed abandoned and the purchaser of the real property may dispose of the remaining personal property in his or her discretion. The notice required by this section may not be waived before the property is vacated.

CHAPTER 38. LIENS.

ARTICLE 1. VENDOR'S AND TRUST DEED LIENS.

§38-1-16. Personal property after foreclosure; notice and access to recover personal property; abandonment.

Following a foreclosure on residential real property pursuant to this article, and after the previous owner has vacated the property either voluntarily or following an eviction proceeding, any personal property remaining on the real property may be deemed abandoned if the purchaser of the real property provides notice, pursuant to this section, and the personal property remains on the real property at the conclusion of the notice period. The notice shall state that the personal property will be deemed abandoned if it is not removed from the real property before the end of the thirtieth day following the postmark date of the notice. If the locks are changed or the previous owner is otherwise prevented from accessing the personal property, the purchaser shall provide the previous owner access to the personal property on reasonable terms. The notice shall state a phone number, a mailing address, and a physical address where the purchaser or an agent for the purchaser who can provide access to the personal property can be contacted; and shall further state that the previous owner may contact the purchaser, and that purchaser will provide the previous owner access to the personal property on reasonable terms. The notice shall be sent to the former owner(s) of the real property at all the address(es) to which notice of foreclosure sale was sent as set forth in the trustee’s report of sale, as well as the last known address, if different. If the purchaser has received notice in writing or by electronic record that personal property belongs to another or that another person or entity has a security interest in the personal property, and if that person’s or entity’s mailing address is also received by the purchaser in writing or by electronic record, notice shall be sent to that person or entity as well. The notice shall be made to all required persons, as stated in this section, by both certified mail and regular mail. The notice is complete when mailed, notwithstanding the fact that the notice may be returned as unclaimed or refused. If the notice period passes and the personal property remains on the real property, then the personal property shall be deemed abandoned and the purchaser of the real property may dispose of the remaining personal property in the purchaser’s discretion. The notice required by this section may not be waived before the property is vacated.;

And,

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

Eng. Com. Sub. for Senate Bill No. 360--A Bill to amend and reenact §11-10-13f of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §38-1-16, all relating to creating a procedure for deeming personal property abandoned following a transfer of real property by tax sale or foreclosure; requiring notice to the owner of personal property remaining on real property after the previous owner has vacated; creating a procedure for notice and removal of personal property within a thirty-day period; giving the purchaser of real property the authority to remove personal property after proper notice and waiting period; and prohibiting waiver of notice requirement prior to vacation of property.

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

Engrossed Committee Substitute for Senate Bill No. 360, as amended by the House of Delegates, was then put upon its passage.

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. 360) passed with its House of Delegates amended title.

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

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

Eng. Senate Bill No. 414, Expanding definition of "medical services applicant" under Volunteer for Nonprofit Youth Organizations Act.

A message from The Clerk of the House of Delegates announced that that body had refused to recede from its amendment, 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. 418, Relating to qualifications of Parole Board members.

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates Poore, Moore and Sobonya.

On motion of Senator Unger, the Senate agreed to the appointment of a conference committee on the bill.

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

Senators Snyder, Wills and Nohe.

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. 428, Relating to motor vehicle registration of governmental vehicles.

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. 435, Relating to nursing home residents' personal funds conveyance upon death.

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. 478, Creating apprentice hunting and trapping license.

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. 487, Creating Coalbed Methane Gas Distribution Fund.

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

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

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

ARTICLE 13A. SEVERANCE AND BUSINESS PRIVILEGE TAX ACT.

§11-13A-20a. Dedication of tax.

(a) The amount of taxes collected under this article from providers of health care items or services, including any interest, additions to tax and penalties collected under article ten of this chapter, less the amount of allowable refunds and any interest payable with respect to such refunds, shall be deposited into the special revenue fund created in the State Treasurer’s Office and known as the Medicaid State Share Fund. Said fund shall have separate accounting for those health care providers as set forth in articles four-b and four-c, chapter nine of this code.

(b) Notwithstanding the provisions of subsection (a) of this section, for the remainder of fiscal year 1993 and for each succeeding fiscal year, no expenditures from taxes collected from providers of health care items or services are authorized except in accordance with appropriations by the Legislature.

(c) The amount of taxes on the privilege of severing timber collected under section three-b of this article, including any interest, additions to tax and penalties collected under article ten of this chapter, less the amount of allowable refunds and any interest payable with respect to such refunds, shall be paid into a special revenue account in the State Treasury to be appropriated by the Legislature for purposes of the Division of Forestry.

(d) Notwithstanding any other provision of this code to the contrary, beginning January 1, 2009, there is hereby dedicated an annual amount not to exceed $4 million from annual collections of the tax imposed by section three-d of this article to be deposited into the West Virginia Infrastructure Fund, created in section nine, article fifteen-a, chapter thirty-one of this code.

(e) Beginning with the fiscal year ending June 30, 2009, and each fiscal year thereafter, the Tax Commissioner shall pay from the taxes imposed in section three-d of this article, on October 1, of each year, to the respective county economic development authorities entities, as this term is defined in this subsection, or county commissions as provided in subsections (f) through (h) of this section, an amount in the aggregate not to exceed $4 million per fiscal year: Provided, That on July 1, 2012, the Tax Commissioner shall deposit the taxes imposed in section three-d of this article into a special revenue fund, which is hereby created in the State Treasurer’s Office and known as the Coalbed Methane Gas Distribution Fund: Provided, however, That such deposit of taxes shall not exceed in the aggregate $4 million per fiscal year and moneys therein shall be distributed by the State Treasurer pursuant to this section. Prior to making any such payment the commissioner shall deduct the amount of refunds lawfully paid and administrative costs authorized by this code. All moneys distributed to the West Virginia Infrastructure Fund pursuant to this section prior to July 1, 2011, shall be returned to the Tax Commissioner and distributed to the respective county economic development authorities entities, as this term is defined in this subsection, or county commissions as provided in this section. For purposes of this section, the term “county economic development entity” refers to a county economic development authority established pursuant to article twelve, chapter seven of this code or if a county does not have a county economic development authority established pursuant to article twelve, chapter seven of this code, an entity designated by resolution of the county commission of the county as the lead entity for economic development activities for the purpose of encouraging economic development in the county which entity may be, but is not limited to being, redevelopment authorities created pursuant to article eighteen, chapter sixteen of this code; county economic development corporations; regional economic development councils, corporations or partnerships.

(f) Notwithstanding any provision of this article to the contrary, prior to the deposit of the proceeds of the tax on coalbed methane with each county economic development authority, entity or county commission pursuant to subsection (e) of this section, the Tax Commissioner shall undertake the following calculations:

(1) Seventy-five percent of the moneys to be deposited shall be provisionally allocated for the various counties of this state in which the coalbed methane was produced; and

(2) The remaining twenty-five percent of the moneys to be deposited shall be provisionally allocated to the various counties of this state in which no coalbed methane was produced for projects in accordance with subsection (h) of this section.

(3) Moneys shall be provisionally allocated to each coalbed methane producing county in direct proportion to the amount of tax revenues derived from coalbed methane production in the county.

(4) Moneys shall be provisionally allocated to each coalbed methane nonproducing county equally.

(5) Portional adjustments.

(A) If, for any year, a coalbed methane producing county’s share of money provisionally allocated to that county is computed to be an amount that is less than the amount provisionally allocated to each of the coalbed methane nonproducing counties, then for purposes of the computations set forth in this subsection, that coalbed methane producing county shall be redesignated a coalbed methane nonproducing county. The money that has been provisionally allocated to that coalbed methane producing county out of the seventy-five percent portion specified in subdivision (1) of this subsection shall be subtracted out of the seventy-five percent portion specified in that subdivision and added to the twenty-five percent portion specified in subdivision (2) of this subsection.

(B) When the adjustment specified in paragraph (A), of this subdivision (4) of this subsection has been made for each coalbed methane producing county that has been redesignated as a coalbed methane nonproducing county, then the Tax Department shall finalize the calculations of the amounts to be made available for distribution to the respective county economic development authority, entity or county commission of the coalbed methane producing counties that have not been redesignated as coalbed methane nonproducing counties under paragraph (A) of this subdivision (4) of this subsection as follows: The amount remaining in the provisional seventy-five percent portion specified in subdivision (1) of this subsection, as adjusted in accordance with paragraph (A), of this subdivision (4) of this subsection, shall be allocated, in direct proportion to the amount that tax revenues derived from coalbed methane production in each such county not redesignated as a coalbed methane nonproducing county bears to the total amount of tax revenues derived from coalbed methane production in all coalbed methane producing counties that have not been redesignated as a coalbed methane nonproducing county.

(C) The Tax Commissioner shall then finalize the calculation of the total amount in the twenty-five percent portion specified in subdivision (2) of this subsection, as adjusted in accordance with paragraph (A), of this subdivision (4) of this subsection equally among the coalbed methane nonproducing counties.

(D) The Tax Commissioner, upon completing the calculation of the total amount of tax to be distributed to all coalbed methane producing counties and to all coalbed methane nonproducing counties, shall deposit an amount equal to the amount so calculated in the Coalbed Methane Gas Distribution Fund, subject to the limitations set forth in this section.

(g) In no case may the total amount distributed in any fiscal year to the aggregate of all coalbed methane producing counties and all coalbed methane nonproducing counties calculated by the Tax Commissioner exceed the total amount of tax on coalbed methane authorized to be remitted to the county economic development authority, or entities and county commission commissions pursuant to subsection (e) of this section.

(h) Distribution of coalbed methane severance tax to county economic development authorities, entities or county commissions is subject to the following:

(1) If the amount determined pursuant to subsections (f) and (g) of this section for a county is more than, $10,000 the Tax Commissioner State Treasurer shall distribute the amount determined for that county to the economic development authority of that county created pursuant to article twelve, chapter seven of this code, for the purposes of encouraging economic development in the county economic development entity. The State Treasurer is hereby authorized to distribute accumulated but undistributed moneys from fiscal years 2009, 2010, 2011 and 2012 to each county economic development entity.

(2) Each county economic development authority entity shall use such funds for the following upon a finding by the county economic development authority that the cost of such projects are reasonably anticipated to lead to further economic development of the county: economic development projects and infrastructure projects.

(i) The cost of preparation of land sites for any public or private facility; or

(ii) The cost of design or construction of water, sewer and stormwater infrastructure.

(3) For purposes of this section:

(A) “Economic development project” means a project in the state which is likely to foster economic growth and development in the area in which the project is developed for commercial, industrial, community improvement or preservation or other proper purposes.

(B) “Infrastructure project” means a project in the state which is likely to foster infrastructure improvements and covers post mining land use, water or wastewater facilities, stormwater systems, steam, gas, telephone and telecommunications, broadband development, electric lines and installations, roads, bridges, railroad spurs, drainage and flood control facilities, industrial park development, road or buildings that promote job creation and retention.

(3) (4) Prior to expending any coalbed methane severance tax moneys, each county economic development authority entity must obtain the approval of its respective county commission, or the county commission or commissions representing the county or counties where the economic development or infrastructure project will be situate if the county economic development entity is regional and encompasses more than one county, in writing for the purpose of such expenditure.

(4) Prior to expending any coalbed methane severance tax moneys, each county economic development authority must obtain the approval of the Development Office in writing for the purpose of such expenditure. The Development Office shall approve all plans for use of the moneys if such plans are within the required uses provided in subdivision (2) of this subsection. The Director of the state Development Office shall promulgate legislative rules in accordance with article three, chapter twenty-nine-a of this code in order to set forth the required documentation to be submitted to the Development Office from the county economic development authorities to ensure that such funds are utilized as intended by the Legislature. The Director of the Development Office is authorized to promulgate emergency rules to implement the provisions of this section.

(5) A county commission, or county economic development authority entity may not use such funds distributed to it pursuant to subsections (e), (f), (g) and (h) of this section for the purposes of paying wages to any employee of the county or any employee of a county economic development authority entity.

(6) If the amount determined pursuant to subsections (f) and (g) of this section for a county is $10,000 or less, the Tax Commissioner State Treasurer shall distribute the amount determined for that county to the county commission. The county commission may then use the funds to offset its regional jail costs, costs of any community corrections programs in which it participates, expenses of a volunteer fire department that provides service within its county or expenses of any library that provides services within its county.

(i) On or before December 1, 2013, and December 1 of each year thereafter, the county economic development entity as defined in this section or county commission receiving a distribution of funds under this section shall deliver to the Joint Committee on Government and Finance a written report setting forth the specific projects for which those funds were expended during the next preceding fiscal year, a detailed account of those expenditures and a showing that the expenditures were made for the purposes required by this section.

(j) An audit of any funds distributed under this section may be authorized at any time by the Joint Committee on Government and Finance to be conducted by the Legislative Auditor at no cost to the county economic development entity or county commission audited.;

And,

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

Eng. Com. Sub. for Senate Bill No. 487--A Bill to amend and reenact §11-13A-20a of the Code of West Virginia, 1931, as amended, relating to the distribution of coalbed methane gas severance tax; establishing the Coalbed Methane Gas Distribution Fund in the State Treasurer’s Office; defining county economic development entity; authorizing the Tax Commissioner to deposit coalbed methane severance tax moneys into the Coalbed Methane Gas Distribution Fund; directing the State Treasurer to distribute coalbed methane severance tax moneys to county commissions or county economic development entities; authorizing distribution by the State Treasurer of accumulated moneys from fiscal years 2009, 2010, 2011 and 2012 to county economic development entities; specifying the permissible uses of Coalbed Methane Gas Distribution Fund moneys received by county economic development entities; eliminating the requirement of Development Office approval for use of funds; requiring certain reporting to the Joint Committee on Government and Finance; and authorizing certain audits.

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

Engrossed Committee Substitute for Senate Bill No. 487, as amended by the House of Delegates, was then put upon its passage.

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. 487) passed with its House of Delegates amended title.

Senator Unger moved that the bill take effect from passage.

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. 487) takes effect from passage.

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

Eng. Senate Bill No. 493, Exempting certain unmarked law-enforcement vehicles from sun-screening restrictions.

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

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

on page two, section thirty-six-a, line nine, after the word “animals”, by inserting a comma and striking out the word “and”;

On page two, section thirty-six-a, line ten, after the word “enforcement”, by inserting the words “and automobiles that have sun-screening devices installed at the factory by the manufacturer”;

And,

On page two, section thirty-six-a, line eleven, after the word “requirement.”, by inserting the following: No unmarked law-enforcement vehicles, herein exempted, may engage in routine traffic stops.;

And,

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

Eng. Senate Bill No. 493--A Bill to amend and reenact §17C-15-36a of the Code of West Virginia, 1931, as amended, relating to exempting certain vehicles from sun-screening restrictions; exempting certain law-enforcement vehicles and vehicles with manufacturer installed sun-screening devices from state standards; and prohibiting unmarked law-enforcement vehicles with sun-screening exemption from making routine traffic stops.

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

Engrossed Senate Bill No. 493, as amended by the House of Delegates, was then put upon its passage.

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. 493) 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. 497, Awarding attorney fees and costs for administrative proceedings under WV Surface Coal Mining and Reclamation Act.

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. 498, Relating to records of abuse, neglect or exploitation of vulnerable adults.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect July 1, 2012, of

Eng. Senate Bill No. 500, Allowing IS&C to bill certain spending units for telecommunication services annually.

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 501, Requiring health insurance coverage of certain hearing aids.

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

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

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

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §5-16-7f; that said code be amended by adding thereto a new section, designated §33-15-4k; that said code be amended by adding thereto a new section, designated §33-16-3w; that said code be amended by adding thereto a new section, designated §33-24-7l; that said code be amended by adding thereto a new section, designated §33-25-8i; and that said code be amended by adding thereto a new section, designated §33-25A-8k, all to read as follows:

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.

§5-16-7f. Required coverage for hearing aids.

(a) Any plan issued or renewed on or after July 1, 2012, shall provide coverage for the cost of hearing aids that are prescribed by a licensed physician or fitted and dispensed by a licensed audiologist for individuals covered under the policy or plan who are under eighteen years of age. Coverage shall be as follows:

(1) Initial hearing aids and replacement hearing aids not more frequently than every thirty-six months.

(2) New hearing aids when alterations to the existing hearing aids cannot adequately meet the needs of the covered individual.

(3) Services, including audiometric testing, hearing aid evaluations, fittings and adjustments.

(b) For purposes of this section, “hearing aid” means any wearable device or instrument or any combination thereof, designated for, represented as or offered for sale for the purpose of aiding, improving or compensating for defective or impaired human hearing and shall include earmolds, parts, attachments or other necessary accessories, but excluding batteries and cords.

(c) The same deductibles, coinsurance, network restrictions and other limitations for covered services found in the policy, provision, contract, plan or agreement of the covered individuals apply to hearing aids covered pursuant to this section. Required coverage is further limited to the cost of hearing aids including all covered services not to exceed an aggregate of $1,400 per hearing-impaired ear every thirty-six months. The parent, guardian or custodian of the covered individual may choose a higher priced hearing aid and may pay the difference in cost above the $1,400 limit as provided in this section without any financial or contractual penalty to the insured or to the provider of the hearing aid.

(d) To the extent that the provisions of this section require benefits that exceed the essential health benefits specified under Section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential heath benefits shall not be required of insurance plans offered by the Public Employees Insurance Agency.

CHAPTER 33. INSURANCE.

ARTICLE 15. ACCIDENT AND SICKNESS INSURANCE.

§33-15-4k. Required coverage for hearing aids.

(a) Notwithstanding any provision of any policy, provision, contract, plan or agreement applicable to this article, any entity regulated by this article shall, on or after July 1, 2012, provide coverage for the cost of hearing aids that are prescribed by a licensed physician or fitted and dispensed by a licensed audiologist for individuals covered under the policy or plan who are under eighteen years of age. Coverage shall be as follows:

(1) Initial hearing aids and replacement hearing aids not more frequently than every thirty-six months.

(2) New hearing aids when alterations to the existing hearing aids cannot adequately meet the needs of the covered individual.

(3) Services, including audiometric testing, hearing aid evaluations, fittings and adjustments.

(b) For purposes of this section, “hearing aid” means any wearable device or instrument or any combination thereof, designated for, represented as or offered for sale for the purpose of aiding, improving or compensating for defective or impaired human hearing and shall include ear molds, parts, attachments or other necessary accessories, but excluding batteries and cords.

(c) The same deductibles, coinsurance, network restrictions and other limitations for covered services found in the policy, provision, contract, plan or agreement of the covered individuals apply to hearing aids covered pursuant to this section. Required coverage is further limited to the cost of hearing aids including all covered services not to exceed an aggregate of $1,400 per hearing-impaired ear every thirty-six months. The insured may choose a higher priced hearing aid and may pay the difference in cost above the $1,400 limit as provided in this section without any financial or contractual penalty to the insured or to the provider of the hearing aid.

(d) To the extent that the provisions of this section require benefits that exceed the essential health benefits specified under Section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential heath benefits shall not be required of a health benefit plan when the plan is offered by a health care insurer in this state.

ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.

§33-16-3w. Required coverage for hearing aids.

(1) Initial hearing aids and replacement hearing aids not more frequently than every thirty-six months.

(2) New hearing aids when alterations to the existing hearing aids cannot adequately meet the needs of the covered individual.

(3) Services, including audiometric testing, hearing aid evaluations, fittings and adjustments.

(b) For purposes of this section, “hearing aid” means any wearable device or instrument or any combination thereof, designated for, represented as or offered for sale for the purpose of aiding, improving or compensating for defective or impaired human hearing and shall include ear molds, parts, attachments or other necessary accessories, but excluding batteries and cords.

(c) The same deductibles, coinsurance, network restrictions and other limitations for covered services found in the policy, provision, contract, plan or agreement of the covered individuals apply to hearing aids covered pursuant to this section. Required coverage is further limited to the cost of hearing aids including all covered services not to exceed an aggregate of $1,400 per hearing-impaired ear every thirty-six months. The insured may choose a higher priced hearing aid and may pay the difference in cost above the $1,400 limit as provided in this section without any financial or contractual penalty to the insured or to the provider of the hearing aid.

(d) To the extent that the provisions of this section require benefits that exceed the essential health benefits specified under Section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential heath benefits shall not be required of a health benefit plan when the plan is offered by a health care insurer in this state.

ARTICLE 24. HOSPITAL MEDICAL AND DENTAL CORPORATIONS.

§33-24-7l. Required coverage for hearing aids.

(1) Initial hearing aids and replacement hearing aids not more frequently than every thirty-six months.

(2) New hearing aids when alterations to the existing hearing aids cannot adequately meet the needs of the covered individual.

(3) Services, including audiometric testing, hearing aid evaluations, fittings and adjustments.

(c) The same deductibles, coinsurance, network restrictions and other limitations for covered services found in the policy, provision, contract, plan or agreement of the covered individuals apply to hearing aids covered pursuant to this section. Required coverage is further limited to the cost of hearing aids including all covered services not to exceed an aggregate of $1,400 per hearing-impaired ear every thirty-six months. The insured may choose a higher priced hearing aid and may pay the difference in cost above the $1,400 limit as provided in this section without any financial or contractual penalty to the insured or to the provider of the hearing aid.

(d) To the extent that the provisions of this section require benefits that exceed the essential health benefits specified under Section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential heath benefits shall not be required of a health benefit plan when the plan is offered by a health care insurer in this state.

ARTICLE 25. HEALTH CARE CORPORATION.

§33-25-8i. Required coverage for hearing aids.

(1) Initial hearing aids and replacement hearing aids not more frequently than every thirty-six months.

(2) New hearing aids when alterations to the existing hearing aids cannot adequately meet the needs of the covered individual.

(3) Services, including audiometric testing, hearing aid evaluations, fittings and adjustments.

(b) For purposes of this section, “hearing aid” means any wearable device or instrument or any combination thereof, designated for, represented as or offered for sale for the purpose of aiding, improving or compensating for defective or impaired human hearing and shall include ear molds, parts, attachments or other necessary accessories, but excluding batteries and cords.

(c) The same deductibles, coinsurance, network restrictions and other limitations for covered services found in the policy, provision, contract, plan or agreement of the covered individuals apply to hearing aids covered pursuant to this section. Required coverage is further limited to the cost of hearing aids including all covered services not to exceed an aggregate of $1,400 per hearing-impaired ear every thirty-six months. The insured may choose a higher priced hearing aid and may pay the difference in cost above the $1,400 limit as provided in this section without any financial or contractual penalty to the insured or to the provider of the hearing aid.

(d) To the extent that the provisions of this section require benefits that exceed the essential health benefits specified under Section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential heath benefits shall not be required of a health benefit plan when the plan is offered by a health care insurer in this state.

ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.

§33-25A-8k. Required coverage for hearing aids.

(a) Notwithstanding any provision of any policy, provision, contract, plan or agreement applicable to this article, any entity regulated by this article shall, on or after July 1, 2012, provide coverage for the cost of hearings aids that are prescribed by a licensed physician or fitted and dispensed by a licensed audiologist for individuals covered under the policy or plan who are under eighteen years of age. Coverage shall be as follows:

(1) Initial hearing aids and replacement hearing aids not more frequently than every thirty-six months.

(2) New hearing aids when alterations to the existing hearing aids cannot adequately meet the needs of the covered individual.

(3) Services, including audiometric testing, hearing aid evaluations, fittings and adjustments.

(b) For purposes of this section, “hearing aid” means any wearable device or instrument or any combination thereof, designated for, represented as or offered for sale for the purpose of aiding, improving or compensating for defective or impaired human hearing and shall include ear molds, parts, attachments or other necessary accessories, but excluding batteries and cords.

(c) The same deductibles, coinsurance, network restrictions and other limitations for covered services found in the policy, provision, contract, plan or agreement of the covered individuals apply to hearing aids covered pursuant to this section. Required coverage is further limited to the cost of hearing aids including all covered services not to exceed an aggregate of $1,400 per hearing-impaired ear every thirty-six months. The insured may choose a higher priced hearing aid and may pay the difference in cost above the $1,400 limit as provided in this section without any financial or contractual penalty to the insured or to the provider of the hearing aid.

(d) To the extent that the provisions of this section require benefits that exceed the essential health benefits specified under Section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential heath benefits shall not be required of a health benefit plan when the plan is offered by a health care insurer in this state.;

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. 501--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-16-7f; to amend said code by adding thereto a new section, designated §33-15-4k; to amend said code by adding thereto a new section, designated §33-16-3w; to amend said code by adding thereto a new section, designated §33-24-7l; to amend said code by adding thereto a new section, designated §33-25-8i; and to amend said code by adding thereto a new section, designated §33-25A-8k, all relating generally to requiring health insurance coverage of hearing aids for individuals under eighteen years of age; providing for an effective date for coverage; providing definitions; setting age limitations; providing for coverage limits and time frames; providing that the provisions are only required to the extent required by federal law; and modifying required benefits for policies, provisions, contracts, plans or agreements offered by the public employees insurance agency, accident and sickness insurance, group accident and sickness insurance, hospital medical and dental corporations, health care corporations and health maintenance organizations.

On motion of Senator Unger, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 501) and requested the House of Delegates to recede therefrom.

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

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

Eng. Com. Sub. for Senate Bill No. 517, Including community beautification and reclamation programs in authorized community corrections programs.

Eng. Com. Sub. for Senate Bill No. 535, Expanding certain prescriptive authority for chronic diseases.

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

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

On page twelve, section sixteen, line two hundred sixteen, by striking out the word "anticoagulants,";

On page twelve, section sixteen, lines two hundred twenty-one through two hundred thirty, by striking out all of paragraph (C) and inserting in lieu thereof a new paragraph, designated paragraph (C), to read as follows:

(C) In addition to the above referenced provisions and restrictions and at the direction of a supervising physician, the rules shall permit the prescribing of an annual supply of any drug, with the exception of controlled substances, which is prescribed for the treatment of a chronic condition, other than chronic pain management. For the purposes of this section, a "chronic condition" is a condition which lasts three months or more, generally cannot be prevented by vaccines, can be controlled but not cured by medication and does not generally disappear. These conditions, with the exception of chronic pain, include, but are not limited to, arthritis, asthma, cardiovascular disease, cancer, diabetes, epilepsy and seizures, and obesity. The prescriber authorized in this section shall note on the prescription the chronic disease being treated.;

On page seventeen, section fifteen-a, line two, by striking out the words “nurse practitioner” and inserting in lieu thereof the words “practice registered nurse”;

On page seventeen, section fifteen-a, lines five and six, by striking out the words “nurse practitioner” and inserting in lieu thereof the words “practice registered nurse”;

On page seventeen, section fifteen-a, line ten, by striking out the words “nurse practitioner” and inserting in lieu thereof the words “practice registered nurse”;

On page eighteen, section fifteen-a, line twelve, by striking out the words “nurse practitioner” and inserting in lieu thereof the words “practice registered nurse”;

On page eighteen, section fifteen-a, line fourteen, after the word “Medicine” by inserting the words “and the Board of Osteopathic Medicine”;

On page eighteen, section fifteen-a, lines seventeen and eighteen, by striking out the words “nurse practitioner” and inserting in lieu thereof the words “practice registered nurse”;

On page eighteen, section fifteen-a, line twenty, by striking out the words “nurse practitioner” and inserting in lieu thereof the words “practice registered nurse”;

On page eighteen, section fifteen-a, line thirty, by striking out the words “nurse practitioner” and inserting in lieu thereof the words “practice registered nurse”;

On page eighteen, section fifteen-a, line thirty-three, by striking out the words “nurse practitioner” and inserting in lieu thereof the words “practice registered nurse”;

On page nineteen, section fifteen-a, line thirty-five, by striking out the word “anticoagulants,”;

On page nineteen, section fifteen-a, lines thirty-seven through forty-eight, after the word “refill.”, by striking out the words “Additionally, pursuant to a collaborative agreement as set forth in subsections (a) and (b) of this section, the rules shall permit the prescribing of a ninety-day supply with three ninety-day refills of any drug which is prescribed for the treatment of a chronic condition. For the purposes of this section, a ‘chronic condition’ is a condition which last three months or more, generally cannot be prevented by vaccines, can be controlled but not cured by medication and does not generally disappear. These conditions include arthritis, asthma, cardiovascular disease, cancer, diabetes, epilepsy and seizures, obesity, and oral health problems.” and inserting in lieu thereof the following: In addition to the above referenced provisions and restrictions and pursuant to a collaborative agreement as set forth in subsections (a) and (b) of this section, the rules shall permit the prescribing of an annual supply of any drug, with the exception of controlled substances, which is prescribed for the treatment of a chronic condition, other than chronic pain management. For the purposes of this section, a "chronic condition" is a condition which lasts three months or more, generally cannot be prevented by vaccines, can be controlled but not cured by medication and does not generally disappear. These conditions, with the exception of chronic pain, include, but are not limited to, arthritis, asthma, cardiovascular disease, cancer, diabetes, epilepsy and seizures, and obesity. The prescriber authorized in this section shall note on the prescription the chronic disease being treated.;

On page nineteen, section fifteen-a, line fifty-two, by striking out the words “nurse practitioner” and inserting in lieu thereof the words “practice registered nurse”;

On page nineteen, section fifteen-a, lines fifty-four and fifty-five, by striking out the words “nurse practitioners” and inserting in lieu thereof the words “practice registered nurse”;

On page thirty, section one, line two hundred nine, by striking out the word “anticoagulants,”;

On page thirty, section one, line two hundred twelve, by striking out the word “Additionally,” and inserting in lieu thereof the words “In addition to the above referenced provisions and restrictions and”;

On page thirty, section one, lines two hundred fourteen and two hundred fifteen, by striking out the words “of a ninety-day supply with three ninety-day refills of any drug” and inserting in lieu thereof the words “an annual supply of any drug other than controlled substances”;

On page thirty, section one, line two hundred sixteen, after the word “condition” by inserting the words “other than chronic pain management”;

On page thirty, section one, line two hundred twenty, after the word “include” by inserting a comma and the words “but are not limited to,”;

On page thirty, section one, line two hundred twenty-one, after the word “seizures” by striking out the comma and inserting in lieu thereof the word “and”;

On page thirty, section one, line two hundred twenty-two, by striking out the words “and oral health problems.” and inserting in lieu thereof the following: The prescriber authorized in this section shall note on the prescription the condition for which the patient is being treated.;

And,

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

Eng. Com. Sub. for Senate Bill No. 535--A Bill to amend and reenact §30-3-16 of the Code of West Virginia, 1931, as amended; to amend and reenact §30-7-15a of said code; and to amend and reenact §30-14A-1 of said code, all relating to expanding prescriptive authority of advanced practice registered nurses, physician assistants and assistants to osteopathic physicians and surgeons to allow the prescribing of medications for chronic diseases for an annual supply; clarifying that controlled substances are not included and chronic pain management is excluded from chronic diseases; eliminating the exclusion for prescribing anticoagulants for the specific prescribers and correcting terminology.

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

Engrossed Committee Substitute for Senate Bill No. 535, as amended by the House of Delegates, was then put upon its passage.

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. 535) passed with its House of Delegates amended title.

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

Eng. Senate Bill No. 544, Extending expiration date for certain diesel-powered motor vehicle idling restrictions.

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

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

On page five, section three, lines seventy-five and seventy-six, by striking out the words “This exemption expires on May 1, 2017.”;

And,

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

Eng. Senate Bill No. 544--A Bill to amend and reenact §17C-13A-3 of the Code of West Virginia, 1931, as amended, relating to Diesel-Powered Motor Vehicle Idling Act; and removing the expiration date for occupied vehicles with sleeper berth compartments.

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

Engrossed Senate Bill No. 544, as amended by the House of Delegates, was then put upon its passage.

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. 544) 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. Com. Sub. for Senate Bill No. 547, Relating to certain criminal conviction expungement.

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. 551, Providing limitation exception for certain mortgage modification loans.

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

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

On page ten, section eight, line one hundred eighty-eight, after the word “modification”, by inserting the words “or refinancing”;

And,

On page eleven, section eight, line one hundred ninety-one, after the word “modification”, by inserting the words “or refinancing”.

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

Engrossed Committee Substitute for Senate Bill No. 551, as amended by the House of Delegates, was then put upon its passage.

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. 551) passed with its title.

Senator Unger moved that the bill take effect from passage.

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. 551) 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 concur in the Senate amendments to, and requested the Senate to recede therefrom, as to

Eng. Com. Sub. for House Bill No. 2278, Authorizing the use of additional medium for use in archiving government records.

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

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

Senators Miller, McCabe and Sypolt.

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. 4006, Relating to elevator workers' licensure exemptions.

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. 4015, Creating the Herbert Henderson Office of Minority Affairs.

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. 4028, Authorizing the temporary suspension of certification of emergency medical service personnel or licensure of emergency medical service agencies without a hearing or prior notice if there is probable cause.

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. 4062, Creating an in-home direct care workforce registry.

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. 4068, Providing that antique motor vehicles be valued at their salvage value for personal property tax purposes.

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

Senators D. Facemire, Plymale 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 amendments to, and the passage as amended, with its Senate amended title, of

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

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. 4101, Authorizing teacher-in-residence programs for certain prospective teachers in lieu of student teaching.

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

Senators Laird, Foster and Boley.

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, of

Eng. Com. Sub. for House Bill No. 4260, Relating to insurance coverage for autism spectrum disorders.

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. 4310, Prohibiting sex offenders from living or working within one thousand feet of the outer perimeter of a school, child care facility, playground or a victim's home.

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

Senators Wills, Tucker and Nohe.

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

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

Eng. Com. Sub. for House Bill No. 4486, Relating to the disclosure of insurance coverage.

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. 4511, Creating the Shale Research, Education, Policy and Economic Development Center at West Virginia University.

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

Senators Plymale, D. Facemire and Boley.

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. 4605, Providing a premarital education option to applicants for marriage licenses.

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. 4236, Relating to exclusions from the definition of professional personnel for evaluation purposes.

Whereupon, Senator Browning, from the committee of conference on matters of disagreement between the two houses, as to

Eng. Com. Sub. for House Bill No. 4236, Relating to exclusions from the definition of professional personnel for evaluation purposes.

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. 4236 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-2-12 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §18A-3C-1, §18A-3C-2 and §18A-3C-3, all to read as follows:

ARTICLE 2. SCHOOL PERSONNEL.

§18A-2-12. Performance evaluations of school personnel; professional personnel evaluation process.

(a) The state board shall adopt a written system for the evaluation of the employment performance of personnel, which system shall be applied uniformly by county boards of education in the evaluation of the employment performance of personnel employed by the board.

(b) The system adopted by the state board for evaluating the employment performance of professional personnel shall be in accordance with the provisions of this section.

(c) For purposes of this section, "professional personnel", "professional" or "professionals", means professional personnel as defined in section one, article one of this chapter but does not include classroom teachers, principals and assistant principals subject to the evaluation processes established pursuant to the provisions of section two, article three-c of this chapter when the school at which these professional personnel are employed is selected to participate in those evaluation processes as part of the multi-step implementation leading to full statewide implementation by school year 2013-2014.

(d) In developing the professional personnel performance evaluation system, and amendments thereto, the state board shall consult with the Center for Professional Development created in article three-a of this chapter. The center shall participate actively with the state board in developing written standards for evaluation which clearly specify satisfactory performance and the criteria to be used to determine whether the performance of each professional meets such those standards.

(e) The performance evaluation system shall contain, but shall not be limited to, the following information:

(1) The professional personnel positions to be evaluated, whether they be teachers, substitute teachers, administrators, principals or others;

(2) The frequency and duration of the evaluations, which shall be on a regular basis and of such frequency and duration as to insure the collection of a sufficient amount of data from which reliable conclusions and findings may be drawn. Provided, That for For school personnel with five or more years of experience who have not received an unsatisfactory rating, evaluations shall be conducted no more than once every three years unless the principal determines an evaluation for a particular school employee is needed more frequently. Provided, however, That Until the school or school system at which they are employed is subject to the provisions of article three-c of this chapter, for classroom teachers with five or more years of experience who have not received an unsatisfactory rating, an evaluation shall be conducted or professional growth and development plan required only when the principal determines it to be is necessary for a particular classroom teacher or when a classroom teacher exercises the option of being evaluated at more frequent intervals;

(3) The evaluation shall serve the following purposes:

(A) Serve as a basis for the improvement of the performance of the personnel in their assigned duties;

(B) Provide an indicator of satisfactory performance for individual professionals;

(D) Serve as a basis for programs to increase the professional growth and development of professional personnel;

(4) The standards for satisfactory performance for professional personnel and the criteria to be used to determine whether the performance of each professional meets such those standards and other criteria for evaluation for each professional position evaluated. Effective July 1, 2003 and thereafter, professional Professional personnel, as appropriate, shall demonstrate competency in the knowledge and implementation of the technology standards adopted by the state board. If a professional fails to demonstrate competency in the knowledge and implementation of these standards, he or she will be subject to an improvement plan to correct the deficiencies; and

(5) Provisions for a written improvement plan, which shall be specific as to what improvements, if any, are needed in the performance of the professional and shall clearly set forth recommendations for improvements, including recommendations for additional education and training during the professional's recertification process.

(f) A professional whose performance is considered to be unsatisfactory shall be given notice of deficiencies. A remediation plan to correct deficiencies shall be developed by the employing county board of education and the professional. The professional shall be given a reasonable period of time for remediation of the deficiencies and shall receive a statement of the resources and assistance available for the purposes of correcting the deficiencies.

(g) No person may evaluate professional personnel for the purposes of this section unless the person has an administrative certificate issued by the state superintendent and has successfully completed education and training in evaluation skills through the center for professional development, or equivalent education training approved by the state board, which will enable the person to make fair, professional, and credible evaluations of the personnel whom the person is responsible for evaluating. After July 1, 1994, no person may be issued an administrative certificate or have an administrative certificate renewed unless the state board determines that the person has successfully completed education and training in evaluation skills through the center for professional development or equivalent education and training approved by the state board.

(h) Any professional whose performance evaluation includes a written improvement plan shall be given an opportunity to improve his or her performance through the implementation of the plan. If the next performance evaluation shows that the professional is now performing satisfactorily, no further action may be taken concerning the original performance evaluation. If the evaluation shows that the professional is still not performing satisfactorily, the evaluator either shall make additional recommendations for improvement or may recommend the dismissal of the professional in accordance with the provisions of section eight of this article.

(i) Lesson plans are intended to serve as a daily guide for teachers and substitutes for the orderly presentation of the curriculum. Lesson plans may not be used as a substitute for observations by an administrator in the performance evaluation process. A classroom teacher, as defined in section one, article one of this chapter, may not be required to post his or her lesson plans on the Internet or otherwise make them available to students and parents or to include in his or her lesson plans any of the following:

(1) Teach and reteach strategies;

(2) Write to learn activities;

(3) Cultural diversity;

(4) Color coding; or

(5) Any other similar items which are not required to serve as a guide to the teacher or substitute for daily instruction; and

(j) The Legislature finds that classroom teachers must be free of unnecessary paper work so that they can focus their time on instruction. Therefore, classroom teachers may not be required to keep records or logs of routine contacts with parents or guardians.

(k) Nothing in this section may be construed to prohibit classroom teachers from voluntarily posting material on the Internet. Nothing in article three-c of this chapter may be construed to negate the provisions of subsections (i) and (j) of this section.

ARTICLE 3C. IMPROVING TEACHING AND LEARNING.

§18A-3C-1. Findings; purposes and definition.

(a) The Legislature makes the following findings:

(1) Processes set forth in this article for evaluation, teacher induction and professional growth is not intended to make up for substandard initial preparation of teachers, but instead is intended to build on a solid foundation created by the teacher preparation programs. Therefore, the Legislature expects the teacher preparation programs to graduate teachers who can perform at a level that increases student achievement. The Legislature expects that the processes set forth in this article will allow a teacher to excel beyond that level in the classroom;

(2) The comprehensive system of support provided for in this article should be implemented in a way that, as compared with the beginning teacher internship system, much more effectively provides for the professional growth of teachers;

(3) In order for the comprehensive system of support to much more effectively provide for professional growth for teachers, funding should be greatly increased over and above what has been provided for the beginning teacher internship system; and

(4) Although the quality of the teacher in the classroom is extremely important to the academic achievement of students, students cannot learn if they are not in the classroom. Therefore, attending school on a regular basis is of utmost importance to the academic success of students.

(b) The purpose of this article is to create a comprehensive infrastructure that routinely supports a continuous process for improving teaching and learning. Its focus is on developing strong teaching and school leadership, without which effective learning does not occur. The general components of this infrastructure include the following:

(1) High-quality teacher preparation, induction and evaluation;

(2) Universal support for emerging teachers including comprehensive new teacher induction and support for student teachers, teachers teaching in assignments for which they have less than a full professional credential and teacher candidates pursuing certification through an alternative route;

(3) Evaluation of the performance of teachers and leaders in demonstrating high quality professional practice, leadership and collaboration and the resulting growth in student learning;

(4) Focused improvement in teaching and learning through the use of evaluation data to inform the delivery of professional development and additional supports to improve teaching based on the evaluation results and to inform the need for improvements in teacher preparation programs; and

(5) The creation of a leadership culture that seeks and builds powerful alliances among all stakeholders focused on continuous growth in student learning.

(c) For purposes of this article “professional personnel” includes classroom teachers, assistant principals and principals as defined in section one, article one chapter eighteen-a of this code.

§18A-3C-2. Performance evaluations of professional personnel.

(a) The intent of the Legislature is to allow for a multi-step statewide implementation of performance evaluations for professional personnel pursuant to this section consistent with sound educational practices and resources available resulting in full state-wide implementation by no later than the school year 2013-2014. Beginning with the schools included in the evaluation processes for professional personnel piloted by the Department of Education during the 2011-2012 school year, additional schools or school systems shall be subject to the provisions of this article in accordance with a plan established by the state board to achieve full statewide implementation by no later than the school year 2013-2014. For schools and school systems subject to the provisions of this article, the provisions of this article shall govern when they are in conflict with other provisions of this chapter and chapter eighteen of this code. Specifically, the provisions of this article govern for the performance evaluation of classroom teachers, principals and assistant principals employed in these schools and school systems. To the extent that this article conflicts with the provisions of section twelve, article two of this chapter relating to professional personnel performance evaluations, this article shall govern. The state board shall submit a report on its plan for the phased implementation of this article to the Legislative Oversight Commission on Education Accountability at the Commission’s July interim meeting in each year of the phased implementation. The report shall include an update on the implementation of this article including, but not limited to the evaluation process and a list of the schools and school systems subject to the provisions of this article. To assist the Legislative Oversight Commission on Education Accountability in monitoring the implementation of this article, the state board shall report to the Commission upon its request throughout the implementation process, including but not limited to, reports on the results of surveys of teachers and principals on the implementation and use of the new evaluation system, the adequacy of the professional development given to employees on the purposes, instruments and procedures of the evaluation process, the time consumed by the evaluation process and the various tasks required for employees of different levels of experience, the aggregate results of the evaluations and any recommendations for changes in the process or other aspects of the duties of affected employees to improve the focus on the core mission of schools of teaching and learning.

(b) Before July 1, 2013, the state board shall adopt a legislative rule in accordance with article three-b, chapter twenty-nine-a of this code, for evaluating the performance of each professional person each year. The state board shall submit a draft of the proposed rule to the Legislative Oversight Commission on Education Accountability by February 15, 2013, and a final draft proposed rule prior to adoption. The rule shall provide for performance evaluations of professional personnel to be conducted in accordance with this section in each school and school system beginning with the 2013-14 school year.

(c) (1) The process adopted by the state board for evaluating the performance of classroom teachers shall incorporate at least the following:

(A) Alignment with the West Virginia professional teaching standards adopted by the state board that establish the foundation for educator preparation, teacher assessment and professional development throughout the state;

(B) Employment of the professional teaching standards to provide explicit and extensive measures of the work of teaching and what teachers must know and be able to do and provide evaluative measures of educator performance;

(C) The use of two pieces of evidence at two points in time over the instructional term to demonstrate student learning as an indicator of educator performance; and

(D) The use of school’s school-wide student learning growth as measured by the state-wide summative assessment as an evaluative measure of all educators employed in the school.

(2) Eighty percent of the evaluation shall be based on an appraisal of the educator’s ability to perform the critical standard elements of the professional teaching standards. The appraisal shall include conferences with the evaluator reinforced through observation. Fifteen percent of the evaluation shall be based on evidence of the learning of the students assigned to the educator in accordance with paragraph (C), subdivision (1) of this subsection, and five percent of the evaluation shall be based on student learning growth measured by the school-wide score on the state summative assessment in accordance with paragraph (D), subdivision (1) of this subsection.

(d) (1) The process adopted by the state board for evaluating the performance of principals and assistant principals shall include at least the following:

(A) Alignment with the West Virginia professional leadership standards adopted by the state board establishing the responsibility of principals for the collective success of their school including the learning, growth and achievement of students, staff and self;

(B) Employment of the professional leadership standards to provide explicit and extensive measures of the work of school leadership focused on the continuous improvement of teaching and learning. The process shall include conferences and goal setting with the superintendent or his or her designee and the use of a survey of stakeholders to assist in identifying the needs and establishing the goals for the school and the principal. The survey shall be distributed to at least the following stakeholders: Students, parents, teachers and service personnel. The evaluative measures shall include the use of data, evidence and artifacts to confirm the principal’s performance on achieving the goals established by the principal and superintendent;

(C) The use of two pieces of evidence at two points in time over the instructional term to demonstrate the growth in student learning at the school; and

(D) The use of the school’s school-wide student learning growth as measured by the state-wide summative assessment as an evaluative measure of all educators employed in the school.

(2) Eighty percent of the evaluation shall be based on an appraisal of the principal’s or the assistant principal’s ability to perform the critical standard elements of the professional leadership standards and achieve the goals established for the principal and the school. Fifteen percent of the evaluation shall be based on evidence of the learning of the students assigned to the school in accordance with paragraph (C), subdivision (1) of this subsection, and five percent of the evaluation shall be based on student learning growth measured by the school-wide score on the state summative assessment in accordance with paragraph (D), subdivision (1) of this subsection.

(e) Evaluations of the performance of professional personnel shall serve the following purposes:

(1) Serve as a basis for the improvement of the performance of the professional personnel in their assigned duties;

(2) Serve as the basis for providing professional development specifically targeted on the area or areas identified through the evaluation process as needing improvement. If possible, this targeted professional development should be delivered at the school-site using collaborative processes, mentoring or coaching or other approaches that maximize use of the instructional setting;

(3) Serve as the basis for establishing priorities for the provision of county-level professional development when aggregate evaluation data from the county’s schools indicates an area or areas of needed improvement;

(4) Serve as a basis for informing the teacher preparation programs in this state of an area or areas of needed improvement in the programs, or informing a specific program of needed improvement, when state-level aggregate evaluation data indicates that beginning teachers who have graduated from the program have specific weaknesses;

(5) Provide an indicator of level of performance of the professional personnel;

(6) Serve as a basis for programs to increase the professional growth and development of professional personnel; and

(7) Serve as documentation for a dismissal on the grounds of unsatisfactory performance.

(f) The rule adopted by the state board shall include standards for performance of professional personnel and the criteria to be used to determine whether their performance meets the standards. The rule also shall include guidance on best practices for providing time within the school day for teachers subject to performance evaluations under this section to participate in the collaborative mentoring or coaching and planning processes necessary for execution of the performance evaluation process and achieving advanced levels of performance.

(g) The rule adopted by the state board shall include provisions for written improvement plans when necessary to improve the performance of the professional personnel. The written improvement plan shall be specific as to what improvements are needed in the performance of the professional personnel and shall clearly set forth recommendations for improvements including recommendations for additional education and training of professionals subject to recertification. Professional personnel whose performance evaluation includes a written improvement plan shall be given an opportunity to improve his or her performance through the implementation of the plan.

(h) A professional person whose performance is considered to be unsatisfactory shall be given written notice of his of her deficiencies. A written improvement plan to correct these deficiencies shall be developed by the employing county board and the employee. The professional person shall be given a reasonable period of time, not exceeding twelve months, to accomplish the requirements of the improvement plan and shall receive a written statement of the resources and assistance available for the purposes of correcting the deficiencies. If the next performance evaluation shows that the professional is now performing satisfactorily, no further action may be taken concerning the original performance evaluation. If the evaluation shows that the professional is still not performing satisfactorily, the evaluator either shall make additional written recommendations for improvement or may recommend the dismissal of the professional personnel in accordance with the provisions of section eight, article two of this chapter.

(i) No person may evaluate professional personnel for the purposes of this section unless the person has an administrative certificate issued by the state superintendent and has successfully completed education and training in evaluation skills through the center for professional development, or equivalent education training approved by the state board, which will enable the person to make fair, professional, and credible evaluations of the personnel whom the person is responsible for evaluating.

(j) Prior to implementation of the evaluation process pursuant to this section at a school, each affected employee shall be given training to ensure that the employees have a full understanding of the purposes, instruments and procedures used in evaluating their performance. Thereafter, this training shall be held annually at the beginning of the employment term.

§18A-3C-3. Comprehensive system for teacher induction and professional growth.

(a) The intent of the Legislature is to allow for a multistep statewide implementation of a comprehensive system of support for building professional practice of beginning teachers, specifically those on the initial and intermediate progressions, consistent with sound educational practices and resources available. In this regard, it is the intent of the Legislature that the transition of schools and school systems to a comprehensive system of support that includes support for improved professional performance targeted on deficiencies identified through the evaluation process will be implemented concurrent with the first year that a school or system receives final evaluation results from the performance evaluation process pursuant to section two of this article. Further, because of significant variability among the counties, not only in the size of their teaching force, distribution of facilities and available resources, but also because of their varying needs, the Legislature intends for the implementation of this section to be accomplished in a manner that provides adequate flexibility to the counties to design and implement a comprehensive system of support for improving professional performance that best achieves the goals of this section within the county. Finally, because of the critical importance of ensuring that all teachers perform at the accomplished level or higher in the delivery of instruction that at least meets the West Virginia professional teaching standards and because achieving this objective at a minimum entails providing assistance to address the needs as indicated by the data informed results of annual performance evaluations, including the self-assessed needs of the teachers themselves, the Legislature expects the highest priority for county, regional and state professional development will be on meeting these needs and that the transition to a comprehensive system of support for improving professional practice will reflect substantial redirection of existing professional development resources toward this highest priority.

(b) On or before July 1, 2012, the state board shall publish guidelines on the design and implementation of a comprehensive system of support for improving professional practice. The purpose of the guidelines is to assist the county board with the design and implementation of a system that best achieves the goals of this section within the county. The guidelines may include examples of best practices and resources available to county boards to assist them with the design and implementation of a comprehensive system.

(c) For schools and school systems subject to the provisions of this article, the provisions of this article govern when they are in conflict with section two-b, article three of this chapter relating to beginning teacher internships, or in conflict with other provisions of this chapter and chapter eighteen of this code.

(d) Effective for the school year beginning July 1, 2013, and thereafter, a county board is not eligible to receive state funding appropriated for the purposes of this section or any other provision of law related to beginning teacher internships and mentor teachers unless it has adopted a plan for implementation of a comprehensive system of support for improving professional practice, the plan has been verified by the state board as meeting the requirements of this section and the county is implementing the plan. The plan shall address the following:

(1) The manner in which the county will provide the strong school-based support and supervision that will assist beginning teachers in developing instructional and management strategies, procedural and policy expertise, and other professional practices they need to be successful in the classroom and perform at the accomplished level. Nothing in this subdivision prohibits a school or school system that was granted an exception or waiver from section two-c, article three of this chapter prior to the effective date of this section from continuing implementation of the program in accordance with the exception or waiver;

(2) The manner in which the county in cooperation with the teacher preparation programs in this state will provide strong school-based support and assistance necessary to make student teaching a productive learning experience;

(3) The manner in which the county will use the data from the educator performance evaluation system to serve as the basis for providing professional development specifically targeted on the area or areas identified through the evaluation process as needing improvement. If possible, this targeted professional development should be delivered at the school-site using collaborative processes, mentoring or coaching or other approaches that maximize use of the instructional setting;

(4) The manner in which the county will use the data from the educator performance evaluation system to serve as the basis for establishing priorities for the provision of county-level professional development when aggregate evaluation data from the county’s schools indicates an area or areas of needed improvement;

(5) If a county uses master teachers, mentors, academic coaches or any other approaches using individual employees to provide support, supervision or other professional development or training to other employees for the purpose of improving their professional practice, the manner in which the county will select each of these individual employees based on demonstrated superior performance and competence as well as the manner in which the county will coordinate support for these employees: Provided, That the employment of persons for these positions shall adhere to the posting and other provisions of section seven-a, article four of this chapter utilizing subsection (c) of said section seven-a to judge the qualifications of the applicants. If the duties of the position are to provide mentoring to an individual teacher at only one school, then priority shall being given to applicants employed at the school at which those duties will be performed;

(6) The manner in which the county will use local resources available including, but not limited to, funds for professional development and academic coaches, to focus on the priority professional development goals of this section;

(7) The manner in which the county will adjust its scheduling, use of substitutes, collaborative planning time, calendar or other measures as may be necessary to provide sufficient time for professional personnel to accomplish the goals of this section as set forth in the county’s plan; and

(8) The manner in which the county will monitor and evaluate the effectiveness of implementation and outcomes of the county system of support for improving professional practice.

(e) Effective the school year beginning July 1, 2013, and thereafter, appropriations for beginning teacher mentors and any new appropriation which may be made for the purposes of this section shall be expended by county boards only to accomplish the activities as set forth in their county plan pursuant to this section. Effective the school year beginning July 1, 2013, and thereafter, no specific level of compensation is guaranteed for any employee service or employment as a mentor and such service or employment is not subject to the provisions of this code governing extra duty contracts except as provided in subdivision (5), subsection (c) of this section.

(f) The Legislative Oversight Commission on Education Accountability shall review the progress of the implementation of this article and may make any recommendations it considers necessary to the Legislature during the 2013 regular legislative session.;

And,

That both houses recede from their positions as to the title of the bill and agree to the same as follows:

Eng. Com. Sub. for House Bill No. 4236--A Bill to amend and reenact §18A-2-12 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §18A-3C-1, §18A-3C-2 and §18A-3C-3, all relating to establishing a new system of performance evaluations of classroom teachers, principals and assistant principals; exclusions from the definition of professional personnel for certain evaluation purposes; providing findings, purposes, definitions and intent of new provisions; providing for phased implementation and legislative oversight; requiring state board rules and submissions of draft rules to legislative oversight commission; providing minimum provisions of evaluation processes for teachers and principals and specific percentages of evaluation score to be based standards and student performance; providing for evaluations to serve certain purposes, including plans of improvement and personnel actions for unsatisfactory performance; requiring certain employee training prior to implementation of new evaluation processes; providing intent of new comprehensive system of support; requiring the state board to publish guidelines for county boards on design and implementation of comprehensive system of support; restricting certain funding subject to adoption of comprehensive system plan by county that is verified by state board as meeting certain requirements; specifying contents of plan; and providing for transition of appropriations to support execution of plans and use of funds.

Respectfully submitted,

Mary M. Poling (Chair), Josh Stowers, Scott G. Varner, Everette W. Anderson, Jr., Allen V. Evans, Conferees on the part of the House of Delegates.

Richard Browning (Chair), Larry J. Edgell, William R. Laird IV, Ron Stollings, Donna J. Boley, Conferees on the part of the Senate.

Senator Browning, Senate cochair of the committee of conference, was recognized to explain the report.

Thereafter, on motion of Senator Browning, the report was taken up for immediate consideration and adopted.

Engrossed Committee Substitute for House Bill No. 4236, as amended by the conference report, was then put upon its passage.

On the passage of the bill, as amended, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--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. 4236) passed with its conference amended title.

Ordered, That The Clerk communicate to the House of the 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. 4396, West Virginia Fire, EMS and Law-Enforcement Officer Survivor Benefit Act.

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

Senators Snyder, Kirkendoll and Barnes.

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 third order of business.

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. 496, Modifying DEP requirement of greenhouse gas emissions' inventory.

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

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

On page five, section nineteen, lines eighty-seven and eighty-eight, by striking out the words “Before imposing additional greenhouse gas reporting requirements on these sources the” and inserting in lieu thereof the word “The”.

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

Engrossed Senate Bill No. 496, as amended by the House of Delegates, was then put upon its passage.

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. 496) 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 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. Com. Sub. for Senate Bill No. 411, Making electronic cash register automated sales suppression devices unlawful.

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

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

Eng. Com. Sub. for Senate Bill No. 411--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated, §61-3-22a, relating to electronic cash register automated sales suppression devices and “phantom-ware”; providing definitions; making it unlawful to willfully and knowingly sell, purchase, install, transfer or possess in this state any automated sales suppression device or “phantom-ware”; providing criminal penalties and civil liability and civil remedies; establishing that such devices and software are contraband; and providing for the seizure and destruction of such devices.

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

Engrossed Committee Substitute for Senate Bill No. 411, as amended by the House of Delegates, was then put upon its passage.

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. 411) passed with its House of Delegates amended title.

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

Eng. Com. Sub. for Senate Bill No. 528, Relating to scrap metal dealers and scrap metal.

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

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

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

That §61-3-49 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-49. Purchase of scrap metal by scrap metal purchasing businesses, salvage yards or recycling facilities; certificates, records and reports of such purchases; criminal penalties.

(a) For the purposes of this section, the following terms have the following meanings.

(1) “Business registration certificate” has the same meaning ascribed to it in section two, article twelve, chapter eleven of this code.

(2) “Purchaser” means any person in the business of purchasing scrap metal or used auto parts, any salvage yard owner or operator, or any public or commercial recycling facility owner or operator, or any agent or employee thereof, who purchases any form of scrap metal or used auto parts.

(3) “Scrap metal” means any form of copper, aluminum, brass, lead or other nonferrous metal of any kind, a catalytic converter or any materials derived from a catalytic converter, or steel railroad track and track material.

(b) In addition to any requirement necessary to do business in this state, a scrap metal dealer shall:

(1) Have a current valid business registration certificate from the Tax Commissioner;

(2) Register any scales used for weighing scrap metal with the Division of Labor Weights and Measures office;

(3) Provide a notice of recycling activity to the Department of Environmental Protection; and

(4) Register as a scrap metal dealer with the Secretary of State, who is hereby directed to maintain a list of scrap metal dealers and make it publically available. The list shall include the dealer’s business address, hours of operation, physical address, phone number, facsimile number, if any, and the name of the owners or principal officers of the business.

(b) (c) Any purchaser of scrap metal shall make a record of such purchase that shall contain the following information for each transaction:

(1) The full name, permanent home and business addresses and telephone number, if available, of the seller;

(2) A description and the motor vehicle license number of any vehicle used to transport the purchased scrap metal to the place of purchase;

(3) The time and date of the transaction;

(4) A complete description of the kind, character and weight of the scrap metal purchased; and

(5) A statement of whether the scrap metal was purchased, taken as collateral for a loan or taken on consignment.

(1) A signed certificate of ownership of the scrap metal being sold or a signed authorization from the owner of the scrap metal to sell said scrap metal; and

(2) A photocopy of a valid driver’s license or identification card issued by the West Virginia Division of Motor Vehicles of the person delivering the scrap metal, or in lieu thereof, any other valid photo identification of the seller issued by any other state or the federal government: Provided, That, if the purchaser has a copy of the seller’s valid photo identification on file, the purchaser may reference the identification that is on file, without making a separate photocopy for each transaction.

(d) (e) It is unlawful for any purchaser to purchase any scrap metal without obtaining and recording the information required under subsections (b) and (c) and (d) of this section. The provisions of this subsection do not apply to purchases made at wholesale under contract or as a result of a bidding process: Provided, That the purchaser retains and makes available for review consistent with subsection (g) of this section the contract, bill of sale or similar documentation of the purchase made at wholesale under contract or as a result of a bidding process: Provided, however, That the purchaser may redact any pricing or other commercially sensitive information from said contract, bill of sale or similar documentation before making it available for inspection.

(e) (f) No purchaser of scrap metal may knowingly purchase or possess a stainless steel or aluminum beer keg, whether damaged or undamaged, or any reasonably recognizable part thereof, for the intended purpose of reselling as scrap metal unless the purchaser receives the keg or keg parts from the beer manufacturer or its authorized representative.

(f) Within thirty days of the effective date of the amendment and reenactment of this section during the second extraordinary session of the Legislature in two thousand seven, the West Virginia State Police shall make available a standard form purchasers of scrap metal may use to record all the information required under subsections (b) and (c) of this section.

(g) Using the form authorized under subsection (f) above a form provided by the West Virginia State Police, or his or her own form, a purchaser of scrap metal shall retain the records required by this section at his or her place of business for not less than three years after the date of the purchase. Upon completion of a purchase, the records required to be retained at a purchaser’s place of business shall be available for inspection by any law-enforcement officer or, upon written request and during the purchaser’s regular business hours, by any investigator employed by a public utility or railroad to investigate the theft of public utility or railroad property: Provided, That in lieu of the purchaser keeping the records at their place of business, the purchaser shall file the records with the local detachment of the State Police and with the chief of police of the municipality or the sheriff of the county wherein he or she is transacting business within seventy-two hours of completion of the purchase. The records shall be retained by the State Police and the chief of police of the municipality or the sheriff for a period of not less than three years.

(h) To the extent otherwise permitted by law, any investigator employed by a public utility or railroad to investigate the theft of public utility or railroad property may accompany a law-enforcement officer upon the premises of a purchaser in the execution of a valid warrant or assist law enforcement in the review of records required to be retained pursuant to this section.

(i) Upon the entry of a final determination and order by a court of competent jurisdiction, scrap metal found to have been misappropriated, stolen or taken under false pretenses may be returned to the proper owner of such material.

(j) Nothing in this section applies to scrap purchases by manufacturing facilities that melt, or otherwise alter the form of scrap metal and transform it into a new product or to the purchase or transportation of food and beverage containers or other nonindustrial materials having a marginal value per individual unit.

(k) (1) Nothing in this section applies to a purchaser of a vehicle on which a catalytic converter is installed, a purchaser of a catalytic converter intended for installation on a vehicle owned or leased by the purchaser, or any person who purchases, other than for purposes of resale, a catalytic converter or a motor vehicle on which a catalytic converter is installed, for personal, family, household or business use.

(2) In transactions not exempted by subdivision (1) of this subsection, any person delivering five or more automobile catalytic converters to a scrap metal dealer shall, in addition to the requirements set forth in subsection (c) of this section, execute a document stating he or she is the lawful owner of the catalytic converters, or authorized by the lawful owner to sell the catalytic converters. Next to his or her signature he or she shall place a clear impression of his or her index finger or thumb that is in ink and free of smearing. This documentation shall be maintained consistent with subsection (c) of this section.

(l) Any person who knowingly or with fraudulent intent violates any provision of this section for which no penalty is specifically set forth, including the knowing failure to make a report or the knowing falsification of any required information, is guilty of a misdemeanor and, upon conviction of a first offense thereof, shall be fined not less than $1,000 nor more than $3,000; upon conviction of a second offense thereof, shall be fined not less than $2,000 and not more than $4,000 and, notwithstanding the provisions of section five, article twelve, chapter eleven of this code, the court in which the conviction occurred shall issue an order directing the Tax Commissioner to suspend for a period of six months any business registration certificate held by that person; and upon conviction of a third or subsequent offense thereof shall be fined not less than $3,000 and not more than $5,000 and, notwithstanding the provisions of section five, article twelve, chapter eleven of this code, the court in which the conviction occurred shall issue an order directing the Tax Commissioner to cancel any business registration certificate held by that person and state the date said cancellation shall take effect.

(m) No person may have or take possession of any scrap metal that he or she knows, or has reason to know, has been stolen or unlawfully obtained. Any person violating this subsection is guilty of larceny.

(n) No scrap metal dealer may purchase, possess or receive scrap metal that the scrap metal dealer knows, or has reason to know, has been stolen or unlawfully obtained by the seller. Any person violating this subsection is guilty of larceny.

(o) No scrap metal dealer may purchase, possess or receive any of the following items of scrap metal, or any reasonably recognizable part thereof, without obtaining written documentation which reflects that the seller is authorized to possess and sell the item or items and that the seller is in lawful possession of the item of scrap metal:

(1) Utility access covers;

(2) Street light poles or fixtures;

(3) Road or bridge guard rails;

(4) Water meter covers;

(5) Highway or street signs;

(6) Traffic directional or traffic control signs;

(7) Traffic light signals;

(8) Any metal marked with any form of the name or initials of a governmental entity;

(9) Property marked as or readily identifiable as owned by a telephone, cable, electric, water or other utility provider;

(10) Property owned and marked by a railroad;

(11) Cemetery markers or vases;

(12) Historical markers;

(13) Utility manhole covers and storm water grates; and

(14) Fire hydrant or fire hydrant caps; or

(15) Twisted pair copper telecommunications wiring of twenty-five pair or greater in nineteen, twenty-two, twenty-four or twenty-six gauge.

(p) Nothing in this section prohibits a scrap dealer from purchasing or taking possession of scrap metal knowing or have reason to know that it is stolen or obtained illegally if it is done pursuant to a written agreement with law enforcement officials.;

And,

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

Eng. Com. Sub. for Senate Bill No. 528--A Bill to amend and reenact §61-3-49 of the Code of West Virginia, 1931, as amended, relating to scrap metal; providing definitions; requiring scrap metal dealers to obtain business licenses; requiring scrap metal dealers to register scales with the Division of Labor; requiring scrap metal dealers to provide a notice of recycling activity to the Department of Environmental Protection; requiring scrap metal dealers to register with the Secretary of State; requiring the Secretary of State to maintain a list of scrap metal dealers and make the list publically available; requiring documentation of transactions involving five or more catalytic converters; requiring print of index finger or thumb on documentation of transactions involving five or more catalytic converters; prohibiting the possession, sale or purchase of stolen or unlawfully obtained scrap metal; prohibiting purchase of certain items of scrap metal without proof of lawful possession; and establishing criminal offenses.

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

Engrossed Committee Substitute for Senate Bill No. 528, as amended by the House of Delegates, was then put upon its passage.

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. 528) 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 refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to

Eng. Com. Sub. for House Bill No. 4046, Repealing obsolete code provisions.

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

On further motion of Senator Unger, 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. 4046, as amended by deletion, was then put upon its passage.

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. 4046) 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 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. 4053, Relating to abduction, kidnapping and human trafficking.

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

Senators Tucker, Klempa 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 adoption of

Senate Concurrent Resolution No. 31, Requesting DOH name portion of Logan County Rt. 10 "Terry Lee Vance II Memorial Highway".

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

Senate Concurrent Resolution No. 32, Requesting DOH name portion of Rt. 10 in Lincoln County "Jerry Lee Richards Memorial Highway".

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

Senate Concurrent Resolution No. 35, Requesting Joint Committee on Government and Finance study municipal property tax distribution.

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

Senate Concurrent Resolution No. 39, Requesting DOH name bridge in Berkeley County "Dr. Max O. and Evelyn S. Oates 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. 41, Requesting DOH name bridge in Raleigh County "Fire Captain Fred Burroughs 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. 43, Requesting DOH name bridge in Roane County "Corder 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. 47, Requesting DOH name portion of WV Rt. 129 in Nicholas County "St. Patrick Boulevard".

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

Com. Sub. for Senate Concurrent Resolution No. 51, Requesting DOH name bridge in Man, Logan County, "Cox Joe Gollie 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. 56, Requesting DOH name bridge in Mingo County "James A. Bowers, Sr., 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. 57, Requesting Joint Committee on Government and Finance study state's cooperative purchasing process.

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

Senate Concurrent Resolution No. 77, Requesting DOH name bridge in Mercer County "Christine West 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. 78, Requesting DOH name bridge in McDowell County "PFC Walter T. Lester 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. 83, Requesting DOH name bridge in McDowell County, "Charles H. 'Charlie' Spencer 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, of

Eng. Com. Sub. for House Bill No. 4118, Including the surviving spouse and a designated individual previously chosen by the deceased as a person who may designate the manner of disposition of a deceased person's body.

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. 4139, 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 amendment to, and the passage as amended, to take effect from passage, of

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

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

Eng. Com. Sub. for House Bill No. 4257, Providing late voter registration opportunities to individuals covered by the Uniformed and Overseas Citizens Act of 1986.

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. 4279, Permitting municipalities to stagger the terms of elected 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. House Bill No. 4315, Permitting a new class IV town or village to select a form of government.

At the request of Senator Unger, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.

The Senate then proceeded to the twelfth order of business.

Remarks were made by Senator Boley.

Thereafter, at the request of Senator Unger, and by unanimous consent, the remarks by Senator Boley were ordered printed in the Appendix to the Journal.

On motion of Senator Unger, the Senate recessed until 6:30 p.m. today.

Upon expiration of the recess, the Senate reconvened.

(Senator K. Facemyer in the Chair.)

At the request of Senator Unger, and by unanimous consent, the Senate returned to the fifth order of business.

Filed Conference Committee Reports

The Clerk announced the following conference committee report had been filed at 6:48 p.m. today:

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

Pending announcement of a meeting of the Committee on Rules,

On motion of Senator Unger, the Senate recessed for 10 minutes.

Upon expiration of the recess, the Senate reconvened.

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

Senator Unger announced that in the meeting of the Committee on Rules just 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. 2740.

The Senate again proceeded to the eighth order of business.

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

On third reading, coming up in regular order, with Senator Palumbo’s amendment pending, and with the right having been granted on yesterday, Friday, March 9, 2012, for other amendments to be received on third reading, was reported by the Clerk.

At the request of Senator Palumbo, and by unanimous consent, Senator Palumbo’s pending amendment to the bill (shown in the Senate Journal of yesterday, Friday, March 9, 2012, page 148) was withdrawn.

On motion of Senator Palumbo, the following substitute amendment to the bill (Eng. Com. Sub. for H. B. No. 2740) was reported by the Clerk and adopted:

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

ARTICLE 4. COVENANTS.

§36-4-19. Solar energy covenants unenforceable; penalty.

(a) It is the policy of the state to promote and encourage the residential and commercial use of solar energy systems and to remove obstacles thereto to promote energy efficiency and pollution reduction. Therefore, any covenant, restriction, or condition contained in any governing document of a housing association executed or recorded after the effective date of this section that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable: Provided, That a housing association may, by vote of its members, establish or remove a restriction that prohibits or restricts the installation or use of a solar energy system.

(b) For the purposes of this section:

(1) “Solar energy system” means a system affixed to a building or buildings that uses solar devices, which are thermally isolated from living space or any other area where the energy is used, to provide for the collection, storage, or distribution of solar energy; and

(2) “Reasonable restriction” means those restrictions that do not effectually result in a prohibition of their use by eliminating the system’s energy conservation benefits or economic practicality.

(c) This section does not apply to provisions that impose reasonable restrictions on solar energy systems including restrictions for historical preservation, architectural significance, religious or cultural importance to a given community. Nothing in this section precludes the regulation of solar energy systems by state and local authorities which may establish land use, health and safety standards. Nothing in this section precludes housing associations from restricting or limiting the installation of solar energy systems installed in common areas and common structures.

There being no further amendments offered,

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2740) was then read a third time and put upon its passage.

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. 2740) passed.

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

Eng. Com. Sub. for House Bill No. 2740--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §36-4-19, relating to housing associations making covenants and other restrictions that restrict the installation or use of solar energy systems unenforceable after effective date of section; defining terms; and providing exceptions thereto.

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.

Eng. Com. Sub. for Senate Bill No. 109, Permitting unlicensed personnel to administer medications or assist in certain circumstances.

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

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

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

That §16-5O-2, §16-5O-3 and §16-5O-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 5O. MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL.

§16-5O-2. Definitions.

As used in this article, unless a different meaning appears from the context, the following definitions apply:

(a) "Administration of medication" means:

(1) Assisting a person in the ingestion, application or inhalation of medications, including prescription drugs, or in the use of universal precautions or rectal or vaginal insertion of medication, according to the legibly written or printed directions of the attending physician or authorized practitioner, or as written on the prescription label; and

(2) Making a written record of such assistance with regard to each medication administered, including the time, route and amount taken. Provided, That However, for purposes of this article, "administration" does not include judgment, evaluation, assessments, injections of medication, monitoring of medication or self-administration of medications, including prescription drugs and self-injection of medication by the resident.

(b) "Authorizing agency" means the department's office of Health Facility Licensure and Certification.

(d) "Facility" means an ICF/ID, assisted living, behavioral health group home, private residence in which health care services are provided under the supervision of a registered nurse or an adult family care home that is licensed by or approved by the department.

(e) "Facility staff member" means an individual employed by a facility but does not include a health care professional acting within the scope of a professional license or certificate.

(f) "Health care professional" means a medical doctor or doctor of osteopathy, a podiatrist, registered nurse, practical nurse, registered nurse practitioner, physician's assistant, dentist, optometrist or respiratory care professional licensed under chapter thirty of this code.

(g) "ICF/ID" means an intermediate care facility for individuals with an intellectual disability which is certified by the department.

(h) “Location of medication administration” means a facility or location where the resident requires administration of medication or assistance in taking medications.

(h) (i) "Medication" means a drug, as defined in section one hundred one, article one, chapter sixty-a of this code, which has been prescribed by a duly authorized health care professional to be ingested through the mouth, applied to the outer skin, eye or ear, or applied through nose drops, vaginal or rectal suppositories.

(i) (j) "Registered professional nurse" means a person who holds a valid license pursuant to article seven, chapter thirty of this code.

(j) (k) "Resident" means a resident of a facility.

(k) (l) "Secretary" means the Secretary of the Department of Health and Human Resources or his or her designee.

(l) (m) "Self-administration of medication" means the act of a resident, who is independently capable of reading and understanding the labels of drugs ordered by a physician, in opening and accessing prepackaged drug containers, accurately identifying and taking the correct dosage of the drugs as ordered by the physician, at the correct time and under the correct circumstances.

(n) “Self-administration of medication with assistance” means assisting residents who are otherwise able to self-administer their own medications except their physical disabilities prevent them from completing one or more steps in the process.

(m) (o) “Supervision of self-administration of medication” means a personal service which includes reminding residents to take medications, opening medication containers for residents, reading the medication label to residents, observing residents while they take medication, checking the self-administered dosage against the label on the container and reassuring residents that they have obtained and are taking the dosage as prescribed.

§16-5O-3. Administration of medications in facilities.

(a) The secretary is authorized to establish and implement a program for the administration of medications in facilities locations of medication administration where the resident requires administration of or assistance in taking medications. The program shall be developed and conducted in cooperation with the appropriate agencies, advisory bodies and boards.

(b) Administration of medication pursuant to this article shall be performed only by:

(1) Registered professional nurses;

(2) Other licensed health care professionals; or

(3) Facility staff members who have been trained and retrained every two years and who are subject to the supervision of and approval by a registered professional nurse.

(c) Subsequent to assessing the health status of an individual resident, a registered professional nurse, in collaboration with the resident’s attending physician and the facility staff member, may recommend that the facility authorize a facility staff member to administer medication if the staff member:

(1) Has been trained pursuant to the requirements of this article;

(2) Is considered by the registered professional nurse to be competent;

(3) Consults with the registered professional nurse or attending physician on a regular basis; and

(4) Is monitored or supervised by the registered professional nurse.

(d) Nothing in this article may be construed to prohibit any facility staff member from administering medications or providing any other prudent emergency assistance to aid any person who is in acute physical distress or requires emergency assistance.

(e) Supervision of self-administration of medication by facility staff members who are not licensed health care professionals may be permitted in certain circumstances, when the substantial purpose of the setting is other than the provision of health care.

§16-5O-4. Exemption from licensure; statutory construction.

(a) Any individual who is not otherwise authorized by law to administer medication may administer medication in a facility locations covered by this article if he or she meets the requirements and provisions of this article. Any person who administers medication pursuant to the provisions of this article shall be exempt from the licensing requirements of chapter thirty of this code.

(b) All licensed health care professionals as defined in this article remain subject to the provisions of their respective licensing laws.

(c) Notwithstanding any other provision of law to the contrary, the provisions of this article shall not be construed to violate or be in conflict with any of the provisions of articles seven or seven-a, chapter thirty of this code.

(d) Any parent or guardian may administer medication to his or her adult or minor child regardless of whether or not the parent or guardian receives compensation for caring for said child.;

And,

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

Eng. Com. Sub. for Senate Bill No. 109--A Bill to amend and reenact §16-5O-2, §16-5O-3 and §16-5O-4 of the Code of West Virginia, 1931, as amended, all relating to permitting unlicensed personnel to administer or assist with administration of medications in certain circumstances; defining terms; and providing exemptions from licensure.

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

Engrossed Committee Substitute for Senate Bill No. 109, as amended by the House of Delegates, was then put upon its passage.

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. 109) passed with its House of Delegates amended title.

Senator Unger moved that the bill take effect from passage.

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. 109) takes effect from passage.

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

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 110, Relating to Broadband Deployment Council.

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

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

On page two, section three, line ten, by striking out the word “thirteen” and inserting in lieu thereof the word “fifteen”;

On page two, section three, line seventeen, by striking out the word “and”;

On page two, section three, after line seventeen, by inserting a new subdivision, designated subdivision (5), to read as follows:

“(5) The State Superintendent of Schools or his or her designee; and”;

And by renumbering the remaining subdivisions;

On page two, section three, line eighteen, by striking out the word “Nine” and inserting in lieu thereof the word “Ten”;

On page three, section three, after line twenty-three, by inserting a new paragraph, designated paragraph (ii), to read as follows:

“(ii) One member representing the interests of the business community in this state;”;

And by renumbering the remaining paragraphs;

On page three, section three, line thirty-nine, by striking out the word “thirteen” and inserting in lieu thereof the word “fifteen”;

On page four, section three, line fifty-seven, by striking out the word “Seven” and inserting in lieu thereof the word “Eight”;

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. 110--A Bill to amend and reenact §31-15C-3 and §31-15C-4 of the Code of West Virginia, 1931, as amended, all relating to modifying and increasing the membership of the Broadband Deployment Council; increasing the number of members required for a quorum; and expanding the powers and duties of the Broadband Deployment Council.

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

Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 110, as amended by the House of Delegates, was then put upon its passage.

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. 110) passed with its House of Delegates amended title.

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

Eng. Com. Sub. for Senate Bill No. 149, Relating to disposition of forfeited or abandoned firearms in state custody.

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

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

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

ARTICLE 8A. UNCLAIMED STOLEN PROPERTY HELD BY LAW-ENFORCEMENT AGENCIES.

§36-8A-2. Unclaimed stolen property reports.

(a) Prior to September 1, 1997, and on On or before September 1, of each succeeding year, each law-enforcement agency which has unclaimed stolen property in its possession shall file an unclaimed stolen property report with the Treasurer which identifies all unclaimed stolen property in its possession at the time the report is filed.

(b) An unclaimed stolen property report shall include the following information with respect to all unclaimed stolen property in the possession of the law-enforcement agency filing it:

(1) A description of each item, including a serial number, if applicable;

(2) An estimated value for each item;

(3) Whether any nonprofit organization has requested that any item be donated to it and whether any nonprofit organization might be considered to receive the item as a donation;

(4) Whether the law-enforcement agency could use the item for any legitimate and authorized law enforcement or educational purpose;

(5) The chief executive’s recommendation for the disposition of each item; and

(6) If any unclaimed stolen property in the law-enforcement agency’s possession consists of firearms or ammunition, the chief executive’s determination of whether the firearms or ammunition are of a sufficient quality to be traded in on new weapons or ammunition for the law-enforcement agency or appropriated for the law-enforcement agency’s use. a description of the best efforts used by the chief executive to determine if the firearm has been lost by, stolen or otherwise unlawfully obtained from an innocent owner prior to its disposition by public auction or otherwise as required by section five of this article.

§36-8A-3. Treasurer’s response to unclaimed stolen property report.

Within thirty days of the receipt of an unclaimed stolen property report, the Treasurer shall send a response to the law-enforcement agency submitting it. For each item identified in the unclaimed stolen property report except firearms and ammunition which the chief executive determined to be of sufficient quality to trade in on new weapons or ammunition or to appropriate for the law-enforcement agency’s use, the Treasurer shall either require that it be delivered to the Treasurer, authorize the law-enforcement agency to sell it at a public sale to persons licensed as firearms importers, collectors, dealers or manufacturers under 18 U. S. C. §§921, et seq., authorize the law-enforcement agency to donate it to a nonprofit organization, authorize the law-enforcement agency to use it for any legitimate and authorized law enforcement or educational purpose, or authorize the law-enforcement agency either to sell it at a public sale, to donate it to a nonprofit organization, or to use it for any legitimate and authorized law enforcement or educational purpose. However, the treasurer may not authorize the law-enforcement agency to sell or donate any firearms or ammunition. If the Treasurer determines that any item identified in an unclaimed stolen property report is of such value that it should be processed by the Treasurer’s office, the treasurer shall have the authority to require that the item be delivered to the Treasurer.

§36-8A-5. Regarding the disposition of firearms in state custody.

(a) Except as provided in section three of this article, and subject to the duty to return firearms to innocent owners pursuant to subsection (b) of this section, all firearms, as defined in section two, article seven, chapter sixty-one of this code, that are abandoned to any law-enforcement agency of this state or a political subdivision of this state, including the West Virginia Division of Natural Resources, or that are otherwise acquired by the state or a political subdivision of the state and are no longer needed, shall be transferred to the State Treasurer for disposal as provided in this section.

(b) Except as provided in section three of this article, within thirty days of the receipt of an unclaimed stolen property report, the State Treasurer shall coordinate best efforts with the reporting law-enforcement agency to transfer the firearms and ammunition to the State Treasurer for disposal as provided in subsection (e) of this section.

(c) Prior to the disposal of any firearm that has been forfeited or abandoned to the state, the chief executive of each law-enforcement agency shall use best efforts to determine if the firearm has been lost by, stolen or otherwise unlawfully obtained from an innocent owner, and if so, shall return the firearm to its innocent owner, if ascertainable, unless that person is ineligible to receive or possess a firearm under state or federal law.

(d) Upon determination and verification that a lawful owner is unavailable or ineligible to receive or possess a firearm under state or federal law, reporting law-enforcement agencies may trade the firearms and ammunition to persons licensed as firearms collectors, dealers, importers or manufacturers under the provisions of 18 U. S. C. §§921 et seq. and authorized to receive firearms under the terms of their license for law-enforcement use.

(e) Except as provided in subsections (c) and (e), the State Treasurer shall dispose of the firearms that it receives under subsection (a) by sale at public auction to persons licensed as firearms collectors, dealers, importers or manufacturers under the provisions of 18 U. S. C. §§921 et seq. and authorized to receive firearms under the terms of their license.

(1) The auctions required by this subsection may occur online on a rolling basis or at live events but in no event may occur less frequently than once every six months.

(2) The State Treasurer shall retain only the net proceeds necessary to cover the costs of administering this section, with any surplus to be transferred to the general fund of the state: Provided, That an agency may be reimbursed for any decommissioned firearms formerly in use by the agency that are sold under this section: Provided, however, That an agency may apply to the State Treasurer for payment of the net proceeds generated by the sale of any property by the State Treasurer pursuant to this section.

(3) Employees of the State Police or of the agency from which the firearms are received are not eligible to bid on the firearms at an auction conducted under this section.

(f) The requirements of subsection (d) do not apply to a firearm that the chief executive of the law-enforcement agency or his or her designee certifies is unsafe for use because of wear, damage, age or modification, and any such firearm shall at the discretion of the superintendent be transferred to the State Police forensic laboratory for training or experimental purposes or to a museum or historical society or be destroyed.

(g) The State Treasurer shall keep records of all firearms acquired and disposed of under the provisions of this section, as well as the net proceeds of the sales and the disbursement of such proceeds, and shall maintain these records for not less than ten years from the date on which a firearm is disposed of or on which a disbursement of funds is made, as the case may be.

(h) Any firearm or ammunition subject to forfeiture proceedings which is ordered returned to any law enforcement agency for the purposes of public sale or auction may only be sold or transferred to persons licensed as firearms collectors, dealers, importers or manufacturers under the provisions of 18 U. S. C. §§921 et seq.;

And,

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

Eng. Com. Sub. for Senate Bill No. 149--A Bill to amend and reenact §36-8A-2, §36-8A-3 and §36-8A-5 of the Code of West Virginia, 1931, as amended, all relating to the disposition of forfeited or abandoned firearms in state custody; requiring additional measures to identify, find and return firearms and ammunition owners, if they are eligible to own and possess them; and to allow for the sale of firearms to licensed firearms collectors, dealers, importers or manufacturers.

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

Engrossed Committee Substitute for Senate Bill No. 149, as amended by the House of Delegates, was then put upon its passage.

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

The nays were: Foster--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. 149) 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 amendments 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. 353, Relating generally to possession of firearms.

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

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

On page nine, section four, lines fifty-three through sixty-eight, by striking out all of subdivision (5) and inserting in lieu thereof two new subdivisions, designated subdivisions (5) and (6), to read as follows:

(5) That the applicant has not been convicted of a felony or of an act of a misdemeanor crime of violence involving the misuse of a deadly weapon within the five years immediately preceding the application.

(6) That the applicant has not been convicted of a misdemeanor crime of domestic violence as defined in 18 U. S. C. §921(a)(33), or a misdemeanor offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine, article two of this chapter in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense, or a misdemeanor offense with similar essential elements in a jurisdiction other than this state.;

And,

By renumbering the remaining subdivisions.

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

Engrossed Committee Substitute for Senate Bill No. 353, as amended by the House of Delegates, was then put upon its passage.

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. 353) passed with its title.

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

Eng. Com. Sub. for Senate Bill No. 457, Continuing Rural Health Initiative; other provisions.

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

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

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

ARTICLE 16. HEALTH CARE EDUCATION.

§18B-16-1. Short title; legislative findings and purpose.

(a) This article is known and may be cited as the Rural Health Initiative Act.

(b) The Legislature makes the following findings related to rural health education and provision of health care services:

(1) The health of West Virginia citizens is of paramount importance and educating and training health care professionals are essential elements in providing appropriate medical care. The state needs a greater number of primary care physicians and allied health care professionals as well as improved access to adequate health care, especially in rural areas. The state's schools of health science find it increasingly difficult to satisfy the demand for qualified persons to deliver these health care services.

(2) Both national and state predictors indicate that health care shortages will continue; therefore, there remains a great need to focus on recruiting and retaining health care professionals in West Virginia.

(3) Schools of health science and rural health care facilities are a major resource for educating and training students in these health care fields and for providing health care to underserved areas of West Virginia. The education process must incorporate clinical experience in rural areas in order to make health care services more readily available statewide and especially in underserved rural areas.

(4) The Legislature further finds that in order to provide adequate health care in rural communities there must be cooperation and collaboration among educators, physicians, mid-level providers, allied health care providers and the rural communities themselves.

(c) The purpose of this article is to continue the Rural Health Initiative and to encourage the schools of health science to strive for improvements in the delivery of health care services in rural areas while recognizing that the state investment in health science education and services must be contained within affordable limits.

§18B-16-2. Definitions.

For purposes of this article, terms have the meanings ascribed to them in section two, article one of this chapter or as ascribed to them in this section unless the context clearly indicates a different meaning:

(1) "Allied health care" means health care other than that provided by physicians, nurses, dentists and mid-level providers and includes, but is not limited to, care provided by clinical laboratory personnel, physical therapists, occupational therapists, respiratory therapists, medical records personnel, dietetic personnel, radiologic personnel, speech-language-hearing personnel and dental hygienists.

(2) “Commission” means the Higher Education Policy Commission as set forth in article one-b, section eighteen-b.

(3) "Mid-level provider" means an advanced practice registered nurse, a nurse midwife and a physician assistant; however, the term also may include practitioners not listed.

(4) "Office of community health systems and health promotion" means that agency, staff or office within the Department of Health and Human Resources which has as its primary focus the delivery of rural health care.

(5) "Primary care" means basic or general health care which is focused on the point when the patient first seeks assistance from the medical care system and on the care of the simpler and more common illnesses. This type of care is generally rendered by family practice physicians, general practice physicians, general internists, obstetricians, pediatricians, psychiatrists and mid-level providers.

(6) "Rural health care facility", whether the term is used in the singular or plural, means either of the following:

(A) A nonprofit, free-standing primary care clinic in a medically underserved or health professional shortage area; or

(B) A nonprofit rural hospital with one hundred or fewer licensed acute care beds located in a nonstandard metropolitan statistical area.

(7) "Schools of health science" means the West Virginia University Health Sciences Center; the Marshall University School of Medicine and the West Virginia School of Osteopathic Medicine.

(8) "Vice chancellor" means the Vice Chancellor for Health Sciences appointed in accordance with section five, article one-b of this chapter.

§18B-16-3. Rural Health Initiative continued; goals.

The Rural Health Initiative is continued under the authority of the commission and under the supervision of the vice chancellor. The goals of the Rural Health Initiative include, but are not limited to, the following:

(1) Placing mid-level providers in rural communities and providing support to the mid-level providers;

(2) Developing innovative programs which enhance student interest in rural health care opportunities;

(3) Increasing the number of placements of primary care physicians in underserved areas;

(4) Retaining obstetrical providers and increasing accessibility to prenatal care;

(5) Increasing involvement of underserved areas of the state in the health education process;

(6) Increasing the number of support services provided to rural practitioners; and

(7) Increasing the number of graduates from West Virginia schools of health science, nursing schools and allied health care education programs who remain to practice in the state.

§18B-16-4. Powers and duties of the vice chancellor.

The following powers and duties are in addition to those assigned to the vice chancellor by the commission and by law:

(1) Providing an integral link among the schools of health science and the governing boards to assure collaboration and coordination of efforts to achieve the goals set forth in this article;

(2) Soliciting input from state citizens living in rural communities;

(3) Coordinating the Rural Health Initiative with the allied health care education programs within the state systems of higher education;

(4) Reviewing new proposals and annual updates submitted in accordance with section five of this article, preparing the budget for the Rural Health Initiative and submitting the budget to the commission for approval;

(5) Distributing funds appropriated by the Legislature for the Rural Health Initiative in accordance with section five of this article; and

(6) Performing other duties as prescribed or as necessary to implement the provisions of this article.

§18B-16-5. Allocation of appropriations.

(a) The Rural Health Initiative is supported financially, in part, from appropriations to the commission’s control accounts.

(b) Notwithstanding the provisions of section twelve, article three, chapter twelve of this code, any funds appropriated to the commission in accordance with this section that remain unallocated or unexpended at the end of a fiscal year do not expire, but remain in the line item to which they were originally appropriated and are available in the next fiscal year to be used for the purposes of this article.

(c) Additional financial support may come from gifts, grants, contributions, bequests, endowments or other money made available to achieve the purposes of this article.

§18B-16-6. Accountability; reports and audits required.

(a) The vice chancellor serves as the principal accountability point for the commission and state policymakers on the implementation of this article and the status of rural health education in the state. The vice chancellor shall work closely with the advisory panel created in subsection (b) of this section. Under the supervision of the chancellor and the commission, the vice chancellor shall develop outcomes-based indicators including an analysis of the health care needs of the targeted areas and an assessment of the extent to which the goals of this article are being met.

(b) There is created the Rural Health Advisory Panel.

(1) The functions and duties of the advisory panel are as follows:

(A) Recommend policies and procedures to the vice chancellor related to the rural health initiative;

(B) Oversee and coordinate implementation of policies and procedures recommended pursuant to subdivision (1) of this subsection;

(D) Make reports required as required under this article.

(2) Members of the advisory panel are appointed by the Governor after consulting with the vice chancellor.

(A) Advisory panel membership shall consist of: Two community members representing rural communities; five members who are rural health care providers, two of whom represent rural health care facilities selected from lists submitted by associations interested or involved in the provision of rural health care, two who are physicians engaged in the private practice of rural medicine, and one who is an advanced practice registered nurse or a nurse midwife with experience in rural health care delivery; one pharmacist practicing in a rural area of the state; the dean or designee from each of the participating health sciences schools, ex officio; one representative from the private colleges in the state; one representative from a baccalaureate state institution of higher education which does not have a medical school; representatives from other health professions who have experience or are practicing in rural health care delivery, as selected by the vice chancellor; the commissioner of public health, ex officio; the director of the office of community health systems and health promotions, ex officio; one member each from the Senate and the House of Delegates, serving as ex officio members, appointed by the chairs of the Legislative Oversight Commission on Education Accountability; and one member each from the Senate and the House of Delegates, serving as ex officio members, appointed by the chairs of the Legislative Oversight Commission on Health and Human Resources Accountability.

(B) Except for the ex officio members, members of the panel serve for staggered three-year terms: Provided, That one third of the initial appointments shall be designated by the Governor for one-year terms and one third of the initial appointments shall be designated by the Governor for two-year terms.

(C) Members of the advisory panel shall be reimbursed for the cost of reasonable and necessary expenses actually incurred in the performance of their duties: Provided, That members of the panel who are employed by the state of West Virginia are not reimbursed for their expenses under the provisions of this section, but have their expenses provided by the employer.

(3) For purposes of addressing primary care physician and other health care provider recruitment and retention efforts, there is created within the Rural Health Advisory Panel a committee on recruitment and retention.

(A) The committee on recruitment and retention shall include member representatives of health care providers, consumers of health care, members of the advisory panel and the schools of health science. All member representatives shall be selected by the vice chancellor for health sciences in conjunction with the director of the office of community health systems and health promotion. All operational costs of the recruitment and retention committee shall be paid by the Rural Health Advisory Panel.

(B) The recruitment and retention committee and the vice chancellor for health sciences, in conjunction with the director of the office of community health systems and health promotion, may facilitate statewide and interagency coordination of the recruitment and retention of primary care physicians and other health care related providers to serve the state of West Virginia.

(C) Such responsibility for and coordination of primary care physician recruitment and retention efforts shall include, but are not limited to, working cooperatively with health care agencies and economic development agencies of the state.

(D) As part of its duties, the recruitment and retention committee shall provide by December 31, 2012, and at least annually thereafter, a report on its findings to the legislative oversight commission on education accountability and the legislative oversight commission on health and human resources accountability. The report shall address the success of the state’s primary care physician and other health care related provider recruitment and retention efforts, recommendations for improvements in all related areas of recruitment and retention efforts, recommendations for statutory or regulatory changes, as well as any other matters which the recruitment and retention committee or the rural health advisory panel deems relevant to carrying out the intent of this article.

(1) The proposal shall state, with specificity, how the school will work to further the goals and meet the criteria set forth in this article and shall show the amount of appropriation which the school would need to implement the proposal.

(2) The vice chancellor shall determine the cycle for all schools of health science to submit new proposals for Rural Health Initiative funding and shall provide a model for each school to follow in submitting a comprehensive update each of the years when a new proposal is not required. The vice chancellor shall require a new proposal from each school at least once within each three-year period.

(d) The vice chancellor shall provide data on the outcomes-based indicators and other appropriate information to the commission for inclusion in the health sciences report card established by section eight, article one-d of this chapter.

(e) The vice chancellor shall report annually, or more often if requested, to the Legislative Oversight Commission on Education Accountability created by section eleven, article three-a, chapter twenty-nine-a of this code and to the Joint Committee on Government and Finance regarding the status of the Rural Health Initiative, placing particular emphasis on the outcomes-based indicators and the success of the schools of health science in meeting the goals and objectives of this article.

(f) The Legislative Auditor, upon his or her own initiative or at the direction of the Joint Committee on Government and Finance, shall perform regular fiscal audits of the schools of health science and the Rural Health Initiative and shall make these audits available periodically for review by the Legislature and the public.;

And,

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

Eng. Com. Sub. for Senate Bill No. 457--A Bill to repeal §18B-16-7, §18B-16-8 and §18B-16-9 of the Code of West Virginia, 1931, as amended; and to amend and reenact §18B-16-1, §18B-16-2, §18B-16-3, §18B-16-4, §18B-16-5 and §18B-16-6 of said code, all relating to continuing the Rural Health Initiative; setting forth legislative findings, purpose and definitions; adding representatives of Legislative Oversight Commission on Education Accountability and Legislative Oversight Commission on Health and Human Resource Accountability; assigning certain of the Advisory panels’ duties to the Vice Chancellor for Health Sciences; deleting the requirement for creation of primary health care education sites; clarifying certain funding mechanisms and audit and reporting requirements; strengthening accountability measures; updating names; making technical corrections; and deleting obsolete language.

On motion of Senator Unger, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for S. B. No. 457) 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.

Eng. Com. Sub. for Senate Bill No. 566, Relating to contracts with nonprofit and charitable entities for inmate work-release and transitional housing; court-ordered direct placement.

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

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

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

That §25-1-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 1. ORGANIZATION, INSTITUTIONS AND CORRECTIONS MANAGEMENT.

§25-1-3. Institutions managed by Commissioner of Corrections; certain institutions transferred to Department of Health and Human Resources; establishment of work and study release units; contracting with certain entities for reentry and direct placement services; reports to Governor.

(a) The Commissioner of Corrections shall manage, direct, control and govern the following penal or correctional institutions and any others placed under his or her jurisdiction or control:

Mount Olive Correctional Complex;

Huttonsville Correctional Center;

Anthony Correctional Center;

Denmar Correctional Center;

Pruntytown Correctional Center;

Northern West Virginia Correctional Center;

St. Marys Correctional Center;

Lakin Correctional Center;

Ohio County Correctional Center;

Beckley Correctional Center; and

Martinsburg Correctional Center.

(b) The Commissioner of Corrections is authorized to may contract with the county commission of McDowell County to house and incarcerate inmates at the Stevens Correctional Center consistent with all requirements and standards governing the Division of Corrections.

(c) Jurisdiction of and title to the West Virginia Children's Home at Elkins are hereby transferred to the Department of Health and Human Resources, which is the custodian of all deeds and other muniments of title to the property and shall record those that are susceptible of recordation to be recorded in the proper offices. Notwithstanding any provision of this code to the contrary, the West Virginia Children's Home shall be managed and controlled by a superintendent appointed by the Commissioner of the Division of Human Services.

(d) The Commissioner is authorized to of Corrections may establish work and study release units as extensions and subsidiaries of those state institutions under his or her control and authority. The work and study release units may be coeducational and shall be managed, directed and controlled as provided in this article.

(e) (1) The commissioner may contract with nonprofit or charitable entities, including, but not limited to, nonprofit community mental health clinics, operating half-way houses or transitional housing facilities for the placement of persons in the commissioner’s custody, whether confined or under parole supervision, as long as such facilities meet standards and criteria established by the commissioner.

(2) (A) The Commissioner of Corrections may direct that a person who is placed in a half-way house or transitional housing facility under this section make reimbursement to the state in the amount of a reasonable sum calculated to offset all or part of the costs of the placement.

(B) Prior to ordering the person to make the reimbursement, the commissioner, or his or her designee, shall consider the following:

(i) The person’s ability to pay;

(ii) The nature and extent of the person’s responsibilities to his or her dependents, if any;

(iii) The length of probable incarceration under the court’s sentence; and

(iv) The effect, if any, that reimbursement might have on the person’s rehabilitation.

(f) The Division of Corrections shall provide the number of persons placed in a half-way house or a transitional housing facility pursuant to subsection (e) of this section in its report made pursuant to section twenty, article one, chapter five of this code, and shall describe its plans to use the authority provided under the provisions of subsection (e) of this section in furtherance of the duties and responsibilities imposed by this article.

(g) Any person employed by the Office of Public Institutions who on the effective date of this article is a classified civil service employee shall, within the limits contained in section two, article six, chapter twenty-nine of this code, remain in the civil service system as a covered employee.;

And,

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

Eng. Com. Sub. for Senate Bill No. 566--A Bill to amend and reenact §25-1-3 of the Code of West Virginia, 1931, as amended, relating to authorizing the Commissioner of Corrections to contract with nonprofit or charitable entities, including but not limited to nonprofit community mental health clinics, operating half-way houses or transitional housing facilities for the placement of persons in the commissioner’s custody, whether confined or under parole supervision; requiring persons with the ability to pay to reimburse the state for the costs of the placement; and requiring the Division of Corrections to provide certain information about the placements to the Governor.

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

Engrossed Committee Substitute for Senate Bill No. 566, as amended by the House of Delegates, was then put upon its passage.

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. 566) 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. 596, Prohibiting child erotica.

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

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

On page two, section three-a, after line fifteen, by inserting a new subdivision, designated subdivision (3), to read as follows:

(3) A minor is a child under the age of sixteen years, or a person who is sixteen years of age or older but less than eighteen years old and who is mentally defective or mentally incapacitated.

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

Engrossed Senate Bill No. 596, as amended by the House of Delegates, was then put upon its passage.

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. 596) passed with its title.

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

Eng. Com. Sub. for Senate Bill No. 597, Requiring installation of carbon monoxide detectors in certain facilities.

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

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

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

ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.

§29-3-16a. Smoke detectors in one- and two-family dwellings; carbon monoxide detectors in residential units; penalty.

(a) On or before July 1, 1991, an An operational smoke detector shall be installed in the immediate vicinity of each sleeping area within all one and two family dwellings, including any "manufactured home" as that term is defined in subsection (j), section two, article nine, chapter twenty-one of this code. The smoke detector shall be capable of sensing visible or invisible particles of combustion and shall meet the specifications and be installed as provided in the current edition of the National Fire Protection Association Standard 72, "Standard for the Installation, Maintenance and Use of Household Fire Warning Equipment", 1996 edition, and in the manufacturer’s specifications. When activated, the smoke detector shall provide an alarm suitable to warn the occupants of the danger of fire.

(b) The owner of each dwelling described in subsection (a) of this section shall provide, install and replace the operational smoke detectors required by this section. So as to assure that the smoke detector continues to be operational, in each dwelling described in subsection (a) of this section which is not occupied by the owner thereof, the tenant in any dwelling shall perform routine maintenance on the smoke detectors within the dwelling.

(c) Where a dwelling is not occupied by the owner and is occupied by an individual who is deaf or hearing impaired, the owner shall, upon written request by or on behalf of the individual, provide and install a smoke detector and a carbon monoxide detector, with a light signal sufficient to warn the deaf or hearing-impaired individual of the danger of fire.

(d) An automatic fire sprinkler system installed in accordance with the current edition of the National Fire Protection Association Standard 13D, "Standard for the Installation of Sprinkler Systems in Residential Occupancies", 1989 edition, may be provided in lieu of smoke detectors.

(e) After investigating a fire in any dwelling described in subsection (a) of this section, the local investigating authority shall issue to the owner a smoke detector installation order in the absence of the required smoke detectors.

(f) After July 1, 1998, an An operational single station carbon monoxide detector with a suitable alarm or a combination smoke detector and carbon monoxide detector, which shall be alternating current (AC) powered, either plugged directly in to an electrical outlet that is not controlled by a switch or hardwired into an alternating current (AC) electrical source, with battery back up, and shall be installed, maintained, tested, repaired or replaced, if necessary, in accordance with the manufacturer’s direction:

(1) In any newly constructed residential unit which has a fuel-burning heating or cooking source including, but not limited to, an oil or gas furnace or stove; and

(2) In any residential unit which is connected to a newly constructed building, including, but not limited to, a garage, storage shed or bar barn, which has a fuel-burning heating or cooking source, including, but not limited to, an oil or gas furnace or stove; and

(3) Effective September 1, 2012, in either a common area where the general public has access or all rooms in which a person will be sleeping that are adjoining to and being directly below and above all areas or rooms that contain permanently installed fuel-burning appliances and equipment that emit carbon monoxide as a byproduct of combustion located within all apartment buildings, boarding houses, dormitories, long-term care facilities, adult or child care facilities, assisted living facilities, one- and two- family dwellings intended to be rented or leased, hotels and motels.

(g) Effective January 1, 2013, an operational single station carbon monoxide detector with a suitable alarm or a combination smoke detector and carbon monoxide detector, which shall be hardwired into an alternating current (AC) electrical source, with battery back up, and shall be installed, maintained, tested, repaired or replaced, if necessary, in accordance with the manufacturer’s direction, in either a common area where the general public has access or all rooms in which a person will be sleeping that are adjoining to and being directly below and above all areas or rooms that contain permanently installed fuel-burning appliances and equipment that emit carbon monoxide as a byproduct of combustion located within all newly constructed apartment buildings, boarding houses, dormitories, long-term care facilities, adult or child care facilities, assisted living facilities, one- and two- family dwellings intended to be rented or leased, hotels and motels.

(h) In any long-term care facility that is staffed on a twenty-four hour, seven day a week basis, the single station carbon monoxide detector with a suitable alarm or a combination smoke detector and carbon monoxide detector shall only be required to be installed in an area of the facility that permits the detector to be audible to the staff on duty.

(g) (i) Any person installing a carbon monoxide detector in a residential unit shall inform the owner, lessor or the occupant or occupants of the residential unit of the dangers of carbon monoxide poisoning and instructions on the operation of the carbon monoxide detector installed.

(h) (j) When repair or maintenance work is undertaken on a fuel-burning heating or cooking source or a venting system in an existing residential unit, the person making the repair or performing the maintenance shall inform the owner, lessor or the occupant or occupants of the unit being served by the fuel-burning heating or cooking source or venting system of the dangers of carbon monoxide poisoning and recommend the installation of a carbon monoxide detector.

(i) (k) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $100. Any person who individually or as owner, partner, president, other officer, or manager of a sole proprietorship, firm, partnership, company, corporation or association, who, as a person who is responsible for and who is required by specific assignment, duty or legal duty, which is either expressed or inherent in laws which require the employer's principals to be informed and to know the facts and laws affecting the business organization and to make internal policy and decisions which ensure that the individual and organization comply with the general laws and provisions of this section, knowingly and willfully violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, for a first offense, shall fined not more than $500. For a second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,500. For third and subsequent offenses, the person is guilty of a misdemeanor and, upon conviction thereof, shall be not more than $5,000.

(j) A violation of this section may not be considered by virtue of the violation to constitute evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages.

(k) (l) A violation of this section may not constitute a defense in any civil action or proceeding involving any insurance policy.

(l) (m) Nothing in this section shall be construed to limit the rights of any political subdivision in this state to enact laws imposing upon owners of any dwelling or other building described in subsection (a) or (f) of this section a greater duty with regard to the installation, repair and replacement of the smoke detectors or carbon monoxide detectors than is required by this section.;

And,

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

Eng. Com. Sub. for Senate Bill No. 597--A Bill to amend and reenact §29-3-16a of the Code of West Virginia, 1931, as amended, relating to carbon monoxide detectors, smoke detectors and sprinkler systems; requiring smoke detectors and sprinkler systems meet and be installed according to current edition of national standard requirements; requiring carbon monoxide detectors be installed in certain public facilities on and after certain effective date; requiring carbon monoxide detectors be hardwired into alternating current on and after certain date; allowing the installation of either single station carbon monoxide detector or combination smoke detector and carbon monoxide detector; providing certain exceptions for installing carbon monoxide detectors in certain long-term care facilities; providing for minimum specification requirements and testing, maintaining, repairing and replacing carbon monoxide detectors; clarifying criminal liability for violations; increasing criminal penalties; removing prohibition on the consideration of a violation of the section as evidence of negligence in a civil action.

On motion of Senator Unger, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for S. B. No. 597) 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.

Eng. Senate Bill No. 603, Establishing entity for operation of morale, welfare and recreation military facilities.

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

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

On page three, section four, line two, by striking out the words “on Camp Dawson” and inserting in lieu thereof the words “within the state”;

And,

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

Eng. Senate Bill No. 603--A Bill to amend and reenact §15-1H-2 and §15-1H-4 of the Code of West Virginia, 1931, as amended, all relating to morale, welfare and recreation facilities; authorizing morale, welfare and recreation facilities within the state; authorizing the establishment of an entity to operate morale, welfare and recreation facilities within the state; and providing for use of proceeds derived from operation of morale, welfare and recreation facilities.

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

Engrossed Senate Bill No. 603, as amended by the House of Delegates, was then put upon its passage.

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

The nays were: Sypolt--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. 603) passed with its House of Delegates amended title.

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

Eng. Senate Bill No. 605, Limiting landowners' liability for military, law-enforcement or homeland defense training purposes.

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

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

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

That §19-25-1, §19-25-3, §19-25-5, §19-25-6 and §19-25-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 25. LIMITING LIABILITY OF LANDOWNERS.

§19-25-1. Purpose.

The purpose of this article is to encourage owners of land to make available to the public land and water areas for military, law-enforcement or homeland-defense training or recreational or wildlife propagation purposes by limiting their liability for injury to persons entering thereon and for injury to the property of persons entering thereon and limiting their liability to persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.

§19-25-3. Limiting duty of landowner who grants a lease, easement or license of land to federal, state, county or municipal government or any agency thereof.

Unless otherwise agreed in writing, an owner who grants a lease, easement or license of land to the federal government or any agency thereof, or the state or any agency thereof, or any county or municipality or agency thereof, for military, law-enforcement or homeland-defense training or recreational or wildlife propagation purposes owes no duty of care to keep that land safe for entry or use by others or to give warning to persons entering or going upon the land of any dangerous or hazardous conditions, uses, structures or activities thereon. An owner who grants a lease, easement or license of land to the federal government or any agency thereof, or the state or any agency thereof, or any county or municipality or agency thereof, for military, law-enforcement or homeland-defense training or recreational or wildlife propagation purposes does not by giving a lease, easement or license: (a) Extend any assurance to any person using the land that the premises are safe for any purpose; or (b) confer upon those persons the legal status of an invitee or licensee to whom a duty of care is owed; or (c) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of a person who enters upon the leased land. The provisions of this section apply whether the person entering upon the leased land is an invitee, licensee, trespasser or otherwise.

§19-25-5. Definitions.

Unless the context used clearly requires a different meaning, as used in this article:

(1) "Charge" means:

(A) For purposes of limiting liability for recreational or wildlife propagation purposes set forth in section two of this article, the amount of money asked in return for an invitation to enter or go upon the land, including a one-time fee for a particular event, amusement, occurrence, adventure, incident, experience or occasion which may not exceed $50 a year per recreational participant: Provided, That the monetary cap on charges imposed pursuant to this article does not apply to the provisions of article fourteen, chapter twenty of this code pertaining to the Hatfield-McCoy regional recreational authority or activities sponsored on the Hatfield-McCoy recreation area;

(B) For purposes of limiting liability for military, law-enforcement or homeland-defense training set forth in section six of this article, the amount of money asked in return for an invitation to enter or go upon the land;

(2) "Land" includes, but shall not be limited to, roads, water, watercourses, private ways and buildings, structures and machinery or equipment thereon when attached to the realty;

(3) "Noncommercial recreational activity" shall not include any activity for which there is any charge which exceeds $50 per year per participant;

(4) "Owner" includes, but shall not be limited to, tenant, lessee, occupant or person in control of the premises;

(5) "Recreational purposes" includes, but shall not be limited to, any one or any combination of the following noncommercial recreational activities: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, motorcycle or all-terrain vehicle riding, bicycling, horseback riding, spelunking, nature study, water skiing, winter sports and visiting, viewing or enjoying historical, archaeological, scenic or scientific sites or otherwise using land for purposes of the user;

(6) "Wildlife propagation purposes" applies to and includes all ponds, sediment control structures, permanent water impoundments or any other similar or like structure created or constructed as a result of or in connection with surface mining activities as governed by article three, chapter twenty-two of this code or from the use of surface in the conduct of underground coal mining as governed by said article and rules promulgated thereunder, which ponds, structures or impoundments are hereafter designated and certified in writing by the Director of the Division of Environmental Protection and the owner to be necessary and vital to the growth and propagation of wildlife, animals, birds and fish or other forms of aquatic life and finds and determines that the premises have the potential of being actually used by the wildlife for those purposes and that the premises are no longer used or necessary for mining reclamation purposes. The certification shall be in form satisfactory to the director and shall provide that the designated ponds, structures or impoundments shall not be removed without the joint consent of the director and the owner; and

(7) “Military, law-enforcement or homeland-defense training” includes, but is not limited to, training, encampments, instruction, overflight by military aircraft, parachute drops of personnel or equipment or other use of land by a member of the Army National Guard or Air National Guard, a member of a reserve unit of the armed forces of the United States, or a person on active duty in the armed forces of the United States, a state or federal law-enforcement officer, a federal agency or service employee, a West Virginia military authority employee or a civilian contractor supporting the military and/or government employees acting in that capacity.

§19-25-6. Limiting duty of landowner for use of land for military, law-enforcement or homeland security purposes.

Notwithstanding the provisions of section four of this article to the contrary, an owner of land owes no duty of care to keep the premises safe for entry or use by others for military, law-enforcement or homeland-defense training purposes, regardless of whether any charge is made therefor, or to give any warning of a dangerous or hazardous condition, use, structure or activity on the premises to persons entering for those purposes.

Notwithstanding the provisions of section four of this article to the contrary, an owner of land who either directly or indirectly invites or permits, either with or without charge, any person to use the property for military, law-enforcement or homeland-defense training purposes does not thereby: (a) Extend any assurance that the premises are safe for any purpose; (b) confer upon those persons the legal status of an invitee or licensee to whom a duty of care is owed; or (c) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of those persons.

§19-25-7. Insurance policies.

Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any owner of lands covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the use of such insured's land for recreational, wildlife propagation or military, law enforcement or homeland defense purposes, unless such provision or endorsement is rejected in writing by the named insured.;

And,

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

Eng. Senate Bill No. 605--A Bill to amend and reenact §19-25-1, §19-25-3, §19-25-5, §19-25-6 and §19-25-7 of the Code of West Virginia, 1931, as amended, all relating to limiting the liability and duty of landowners who make land available for military, law-enforcement or homeland-defense training; defining “military, law-enforcement or homeland-defense training” and defining “spelunking” as a recreational purpose and activity for which a landowner’s liability for injury is limited.

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

Engrossed Senate Bill No. 605, as amended by the House of Delegates, was then put upon its passage.

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. 605) 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. Senate Bill No. 606, Relating to property forfeiture related to child pornography arrests and computer crimes.

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

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

On page three, section seven hundred six, line nineteen, by striking out the words “section fifteen, article two, chapter five-a” and inserting in lieu thereof the words “article two, chapter eleven-b”;

On page seventeen, section ten, line seventeen, by striking out the words “section fifteen, article two, chapter five-a” and inserting in lieu thereof the words “article two, chapter eleven-b”;

And,

On page twenty-two, section eleven, line seventy-five, by striking out the word “nine” and inserting in lieu thereof the word “ten”.

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

Engrossed Senate Bill No. 606, as amended by the House of Delegates, was then put upon its passage.

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. 606) passed with its title.

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

Eng. Com. Sub. for Senate Bill No. 615, Conforming WV Water Pollution Control Act with federal Clean Water Act.

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

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

On page two, section six, line four, by striking out the word “chief” and inserting in lieu thereof the word “secretary”;

On page two, section six, line seven, by striking out the word “chief” and inserting in lieu thereof the word “secretary”;

On page two, section six, line thirteen, by striking out the word “director” and inserting in lieu thereof the word “secretary”;

On page three, section six, line twenty-one, by striking out the word “director” and inserting in lieu thereof the word “secretary”;

And,

On page three, section six, line twenty-seven, by striking out the word “director” and inserting in lieu thereof the word “secretary”.

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

Engrossed Committee Substitute for Senate Bill No. 615, as amended by the House of Delegates, was then put upon its passage.

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. 615) passed with its title.

Senator Unger moved that the bill take effect from passage.

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. 615) takes effect from passage.

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

Eng. Senate Bill No. 619, Relating to annual business fees and reports due Secretary of State.

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

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

On pages ten and eleven, section two-a, lines one hundred eighty-nine through one hundred ninety-three, by striking out all of subdivision (2) and inserting in lieu thereof a new subdivision, designated subdivision (2), to read as follows:

(2) The Secretary of State shall deposit the first $25,000 of fees collected under this subsection into the general administrative fees account established in subsection (h), section two of this article, and shall deposit any additional fees collected under this section into the General Revenue Fund of the State.;

And,

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

Eng. Senate Bill No. 619--A Bill to amend and reenact §59-1-2a of the Code of West Virginia, 1931, as amended, relating to annual business fees paid to the Secretary of State; clarifying that limited liability companies, foreign limited liability companies and foreign corporations are required to file annual reports; eliminating criminal penalties; changing a $100 penalty to a $50 late fee for delinquent annual reports; providing a $25 late fee for delinquent annual reports for nonprofit corporations; allowing the Secretary of State to deposit a portion of late fees collected in its general administrative fees account; authorizing the Secretary of State to charge a fee for online purchases of data or conducting transactions online; and authorizing rulemaking.

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

Engrossed Senate Bill No. 619, as amended by the House of Delegates, was then put upon its passage.

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. 619) passed with its House of Delegates amended title.

Senator Unger moved that the bill take effect July 1, 2012.

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. 619) takes effect July 1, 2012.

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. 623, Authorizing PSC promulgate rules establishing capacity improvement fee requirements.

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

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

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

ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.

§24-2-2. General power of commission to regulate public utilities.

(a) The commission is hereby given power to investigate all rates, methods and practices of public utilities subject to the provisions of this chapter; to require them to conform to the laws of this state and to all rules, regulations and orders of the commission not contrary to law; and to require copies of all reports, rates, classifications, schedules and timetables in effect and used by the public utility or other person, to be filed with the commission, and all other information desired by the commission relating to the investigation and requirements, including inventories of all property in such form and detail as the commission may prescribe. The commission may compel obedience to its lawful orders by mandamus or injunction or other proper proceedings in the name of the state in any circuit court having jurisdiction of the parties or of the subject matter, or the Supreme Court of Appeals direct, and the proceedings shall have priority over all pending cases. The commission may change any intrastate rate, charge or toll which is unjust or unreasonable or any interstate charge with respect to matters of a purely local nature which have not been regulated by or pursuant to an act of Congress and may prescribe a rate, charge or toll that is just and reasonable, and change or prohibit any practice, device or method of service in order to prevent undue discrimination or favoritism between persons and between localities and between commodities for a like and contemporaneous service. But in no case shall the rate, toll or charge be more than the service is reasonably worth, considering the cost of the service. Every order entered by the commission shall continue in force until the expiration of the time, if any, named by the commission in the order, or until revoked or modified by the commission, unless the order is suspended, modified or revoked by order or decree of a court of competent jurisdiction: Provided, That in the case of utilities used by emergency shelter providers, the commission shall prescribe such rates, charges or tolls that are the lowest available. "Emergency shelter provider" means any nonprofit entity which provides temporary emergency housing and services to the homeless or to victims of domestic violence or other abuse.

(b) Notwithstanding any other provision of this code to the contrary, rates are not discriminatory if, when considering the debt costs associated with a future water or sewer project which would not benefit existing customers, the commission establishes rates which ensure that the future customers to be served by the new project are solely responsible for the debt costs associated with the project.

(c) Notwithstanding any other provision of this code to the contrary, the commission shall promulgate and adopt rules that relate to its establishment and modification of capacity improvement fees for residential and commercial customers for inclusion in the tariff of a private, public or municipal water or sewer utility.

(1) A capacity improvement fee shall be based upon the estimated cost of future additions or upgrades of capacity required to serve future capacity demand by a new connection compared to the overall demand due to customer growth;

(2) A capacity improvement fee shall apply to developers and owners of structures that seek to connect to water and sewer systems;

(3) In establishing the capacity improvement fee, the commission shall consider, together with other criteria it may in its discretion consider, the expected growth in population that will be served by the utility, the capacity requirement to serve that population growth and the expected exhaustion date of existing capacity;

(4) The commission shall consider establishing differentials in the fee or limitations on the amount of or calculation of fees based upon a relative cost of housing index created pursuant to the provisions of section two-b, article one, chapter eleven of this code, which fee differentials shall not be considered discriminatory rates within the meaning of this chapter;

(5) The commission shall consider an affordable housing component with a discount capacity improvement fee schedule based upon the new home’s value compared to the most recent annual single dwelling residential housing index created pursuant to the provisions of section two-b, article one, chapter eleven of this code;

(6) The capacity improvement fee shall include a lower fee for manufactured housing equal to twenty-five percent of the otherwise applicable fee for a standard residential housing unit;

(7) The commission shall establish a method for developing fee schedules and maximum fees for commercial developments and residential developments with multiple units;

(8) The revenue from the capacity improvement fees shall be deposited in a separate account to be used only for future capital improvements, as determined and authorized by commission order;

(9) The commission may develop further criteria relating to existing and proposed capacity improvement fees the commission considers necessary to effectuate the provisions of this subsection;

(10) The commission shall promulgate rules in accordance with section seven, article one, chapter twenty-four of this code to effectuate the purposes of this subsection; and

(11) Nothing contained in this subsection may be construed to invalidate any capacity improvement fees approved by the commission prior to the effective date of the rules required to be promulgated by this subsection.

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

Engrossed Committee Substitute for Senate Bill No. 623, as amended by the House of Delegates, was then put upon its passage.

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. 623) 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 amendment, as to

Eng. Com. Sub. for Senate Bill No. 628, Allowing fund-raising for state executive party headquarters.

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

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

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

ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.

§3-8-2c. Party headquarters committee; detailed accounts and verified financial statements; funding for headquarters; limitations; reporting requirements.

(a) Notwithstanding the definitions contained in section one-a of this article, for purposes of this section:

(1) "Contribution" means a gift, subscription, loan, assessment, payment for services, dues, advance, donation, pledge, contract, agreement, forbearance or promise of money or other tangible thing of value, whether conditional or legally enforceable, or a transfer of money or other tangible thing of value to a person, made for the purpose of purpose of funding the rental, purchase, construction or financing of the lease, purchase or construction of a party headquarters, and for the utilities, maintenance, furniture, fixtures and equipment for the party headquarters. An offer or tender of a contribution is not a contribution if expressly and unconditionally rejected or returned. A contribution does not include volunteer personal services provided without compensation: Provided, That a nonmonetary contribution is to be considered at fair market value for reporting requirements and contribution limitations.

(2) "Party headquarters" means a physical structure or structures that is the physical location of the office of a state executive committee of a political party.

(3) "Party headquarters committee" includes any person, organization or group of persons soliciting or receiving contributions for the purpose of funding the lease, purchase, construction or financing of the lease, purchase or construction of a party headquarters, including utilities, maintenance, furniture, fixtures and equipment for the party headquarters.

(b) A political party may establish a party headquarters committee to solicit and receive contributions for the exclusive purpose of the purchase, construction or lease of an office building or financing of the lease, purchase or construction of a party headquarters, including utilities, maintenance, furniture, fixtures and equipment, to be used as a state political party's headquarters.

(1) The purchase, construction or lease of satellite offices or other facilities;

(2) Utilities, maintenance, furniture, fixtures, equipment or signage for satellite offices or other facilities; or

(3) Political purposes.

(d) A party headquarters committee may not accept contributions in excess $10,000, in the aggregate, from any person for the purposes of this section.

(e) A party headquarters committee may not receive contributions or make expenditures for the purpose of funding the rental, purchase, construction or financing of a state executive committee headquarters in excess of $1 million.

(f) (1) A party headquarters committee, financial agent or any person or officer acting on behalf of the committee that is subject to the provisions of this section, shall file a verified financial statement with the Secretary of State, on a form prescribed by the Secretary, within ninety days of any contribution or expenditure in excess of $250.

(2) Each financial statement shall contain, but is not limited to, the following information:

(A) The name, residence and mailing address and telephone number of the party headquarters committee, financial agent or any person or officer acting on behalf of the committee, filing the financial statement.

(B) The balance of cash and any other sum of money on hand at the beginning and the end of the period covered by the financial statement.

(C) The name of any person making a contribution, the amount of the contribution, and the residence and mailing address of the contributor.

(D) The total amount of contributions received during the period covered by the financial statement.

(E) The name, residence and mailing address of any individual or the name and mailing address of each lending institution making a loan, the amount of any loan received, the date and terms of the loan, including the interest and repayment schedule, and a copy of the loan agreement.

(F) The name, residence and mailing address of any individual or the name and mailing address of each partnership, firm, association, committee, organization or group having previously made or cosigned a loan for which payment is made or a balance is outstanding at the end of the period, together with the amount of repayment on the loan made during the period and the balance at the end of the period.

(G) The total outstanding balance of all loans at the end of the period.

(H) The name, residence and mailing address of any person to whom each expenditure was made or liability incurred, together with the amount and purpose of each expenditure or liability incurred and the date of each transaction.

(I) The total amount of expenditures made during the period covered by the financial statement.

(3) The Secretary of State shall file and retain the statements as public records for not less than six years.

(g) Contributions received by a party headquarters committee may be contributed to any educational, cultural or charitable organization.

(h) The Secretary of State shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the provisions of this section.

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

Engrossed Committee Substitute for Senate Bill No. 628, as amended by the House of Delegates, was then put upon its passage.

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. 628) 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 amendments 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. 634, Authorizing certain municipalities impose limited special public safety assessment fee.

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

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

On page three, section thirteen-a, line twenty-one, by striking out the words “along with any matching state funds”;

On page five, section thirteen-a, line sixty-seven, by striking out the word “thirty” and inserting in lieu thereof the word “fifteen”;

On page eight, section twenty, line forty-seven, by striking out the words “and any state matching funds”;

On page thirteen, section twenty, lines one hundred fifty-seven and one hundred fifty-eight, by striking out the words “and any state matching funds”;

And,

On page sixteen, section twenty, line two hundred twenty-three, after the word “Provided”, by changing the colon to a comma.

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

Engrossed Committee Substitute for Senate Bill No. 634, as amended by the House of Delegates, was then put upon its passage.

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. 634) passed with its title.

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

Eng. Com. Sub. for Senate Bill No. 659, Requiring criminal background checks for certain employees of state service providers.

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

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

On page six, section three, line eighty-seven, after the word “repository” by changing the period to a comma and inserting the following: and require a new employee who is employed to provide services on the grounds or in the building of the Capitol complex to submit to an employment eligibility check through E-verify.;

And,

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

Eng. Com. Sub. for Senate Bill No. 659--A Bill to amend and reenact §15-2D-3 of the Code of West Virginia, 1931, as amended, relating to powers and duties of the Director of the Division of Protective Services; requiring the director to require certain employees of service providers with the state to submit to a criminal background check under certain circumstances; requiring certain service providers provide employee names to comply with provisions of this section; requiring a clause in future contracts to give the state powers to prohibit certain persons from certain activities based on the results of the background check; defining “service provider”; requiring new employees working on capitol grounds to have employment eligibility confirmed through E-verify; and designating the Director of the Division of Protective Services as the person to whom criminal background check information is released.

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

Engrossed Committee Substitute for Senate Bill No. 659, as amended by the House of Delegates, was then put upon its passage.

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. 659) passed with its House of Delegates amended title.

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

Eng. Com. Sub. for Senate Bill No. 661, Relating to data sharing among state education providers.

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

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

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

That §21A-10-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 10. GENERAL PROVISIONS.

§21A-10-11. Reporting requirements and required information; use of information; libel and slander actions prohibited.

(a) Each employer, including labor organizations as defined in subsection (i) of this section, shall, quarterly, submit certified reports on or before the last day of the month next following the calendar quarter, on forms to be prescribed by the commissioner. The reports shall contain:

(1) The employer’s assigned unemployment compensation registration number, the employer’s name and the address at which the employer’s payroll records are maintained;

(2) Each employee’s Social Security account number, name and the gross wages paid to each employee, which shall include the first $8,000 $12,000 of remuneration and all amounts in excess of that amount, notwithstanding subdivision (1), subsection (b), section twenty-eight, article one-a of this chapter;

(3) The total gross wages paid within the quarter for employment, which includes money wages and the cash value of other remuneration, and shall include the first $8,000 $12,000 of remuneration paid to each employee and all amounts in excess of that amount, notwithstanding subdivision (1), subsection (b), section twenty-eight, article one-a of this chapter; and

(4) Other information that is reasonably connected with the administration of this chapter.

(b) Information obtained may not be published or be open to public inspection to reveal the identity of the employing unit or the individual.

(c) Notwithstanding the provisions of subsection (b) of this section, the commissioner may provide information obtained to the following governmental entities for purposes consistent with state and federal laws:

(1) The United States Department of Agriculture;

(2) The state agency responsible for enforcement of the Medicaid program under Title XIX of the Social Security Act;

(3) The United States Department of Health and Human Services or any state or federal program operating and approved under Title I, Title II, Title X, Title XIV or Title XVI of the Social Security Act;

(4) Those agencies of state government responsible for economic and community development; early childhood, primary, secondary, postsecondary and vocational education; the West Virginia P-20 longitudinal data system established pursuant to section ten, article one-d, chapter eighteen-b of this code; and vocational rehabilitation, employment and training, including, but not limited to, the administration of the Perkins Act and the Job Training and Partnership Workforce Investment Act;

(5) The Tax Division, but only for the purposes of collection and enforcement;

(6) The Division of Labor for purposes of enforcing the wage bond and the contractor licensing provisions of chapter twenty-one of this code;

(7) Any agency of this or any other state, or any federal agency, charged with the administration of an unemployment compensation law or the maintenance of a system of public employment offices;

(8) Any claimant for benefits or any other interested party to the extent necessary for the proper presentation or defense of a claim; and

(9) The Workers’ Compensation Commission Insurance Commissioner for purposes of collection and enforcement: Provided, That the Workers’ Compensation Commission shall provide similar information to the Bureau of Employment Programs its workers’ compensation regulatory duties.

(d) The agencies or organizations which receive information under subsection (c) of this section shall agree that the information shall remain confidential as not to reveal the identity of the employing unit or the individual consistent with the provisions of this chapter.

(e) The commissioner may, before furnishing any information permitted under this section, require that those who request the information shall reimburse the Bureau of Employment Programs for any cost associated for furnishing the information.

(f) The commissioner may refuse to provide any information requested under this section if the agency or organization making the request does not certify that it will comply with the state and federal law protecting the confidentiality of the information.

(g) A person who violates the confidentiality provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $20 nor more than $200 or confined in a county or regional jail not longer than ninety days, or both.

(h) No An action for slander or libel, either criminal or civil, shall may not be predicated upon information furnished by any employer or any employee to the commissioner in connection with the administration of any of the provisions of this chapter.

(i) For purposes of subsection (a) of this section, the term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. It includes any entity, also known as a hiring hall, which is used by the organization and an employer to carry out requirements described in 29 U. S. C. §158(f)(3) of an agreement between the organization and the employer.;

And,

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

Eng. Com. Sub. for Senate Bill No. 661--A Bill to amend and reenact §21A-10-11 of the Code of West Virginia, 1931, as amended, relating to authorizing the Executive Director or Commissioner of Workforce West Virginia to provide data to certain governmental entities; changing the threshold of certain levels of compensation to be reported for certain data purposes by employers to the Executive Director or the Commissioner of Workforce West Virginia; and changing a designated recipient of the data to attain consistency with prior amendments to code.

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

Engrossed Committee Substitute for Senate Bill No. 661, as amended by the House of Delegates, was then put upon its passage.

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. 661) passed with its House of Delegates amended title.

Senator Unger moved that the bill take effect July 1, 2012.

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. 661) takes effect July 1, 2012.

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. 4245, Permitting certain auxiliary lighting on motorcycles.

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

Senators Beach, Klempa and Barnes.

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

Eng. Com. Sub. for Senate Bill No. 51, Denying certain spousal support upon DNA evidence of adultery.

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

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

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

ARTICLE 8. SPOUSAL SUPPORT.

§48-8-103. Payment of spousal support.

(a) Upon ordering a divorce or granting a decree of separate maintenance, the court may require either party to pay spousal support in the form of periodic installments, or a lump sum, or both, for the maintenance of the other party. Payments of spousal support are to be ordinarily made from a party’s income, but when the income is not sufficient to adequately provide for those payments, the court may, upon specific findings set forth in the order, order the party required to make those payments to make them from the corpus of his or her separate estate. An award of spousal support shall not be disproportionate to a party’s ability to pay as disclosed by the evidence before the court.

(b) At any time after the entry of an order pursuant to the provisions of this article, the court may, upon motion of either party, revise or alter the order concerning the maintenance of the parties, or either of them, and make a new order concerning the same, issuing it forthwith, as the altered circumstances or needs of the parties may render necessary to meet the ends of justice.

(c) (1) For the purposes of subsection (b) of this section, “altered circumstances” includes evidence in the form of genetic testing that establishes that a child conceived during the marriage of the parties is not the child of the former husband, or that a child was born to a woman other than the former wife because of the adultery of the former husband.

(2) Prior to admitting evidence of genetic testing, the court shall preliminarily determine whether genetic testing evidence should be admitted for the purpose of disproving or establishing paternity. The facts that must be considered at this hearing include the following:

(A) The length of time that has elapsed since the party was first placed on notice that a child conceived during the marriage of the parties is not the child of the former husband, or that a child was born to a woman other than the former wife because of the adultery of the former husband;

(B) The length of time during which the individual desiring to challenge paternity assumed the role of parent to the child;

(D) The nature of the parent/child relationship;

(E) The age of the child;

(F) The harm which may result to the child if paternity were successfully disproved;

(G) The extent to which the passage of time reduced the chances of establishing paternity in favor of the child; and

(H) All other factors which may affect the equities involved in the potential disruption of the parent/child relationship or the chances of undeniable harm to the child.

(3) For the purposes of this subsection, genetic testing must be performed pursuant to the following guidelines:

(A) The tests show that the inherited characteristics including, but not limited to, blood types, have been determined by appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory duly licensed under the laws of this state, or any other state, and an expert qualified as an examiner of genetic markers has analyzed, interpreted and reported on the results; and

(B) The blood or tissue or other genetic test results show a statistical probability of paternity of more than ninety-eight percent.;

And,

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

Eng. Com. Sub. for Senate Bill No. 51--A Bill to amend and reenact §48-8-103 of the Code of West Virginia, 1931, as amended, relating to the modification or termination of spousal support based upon the results of genetic testing; providing guidelines for testing; and requiring a preliminary determination as to whether genetic testing evidence should be admitted.

On motion of Senator Unger, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for S. B. No. 51) 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.

Eng. Com. Sub. for Senate Bill No. 562, Establishing DEP procedure for biologic component compliance of narrative water quality standard.

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

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

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

ARTICLE 11. WATER POLLUTION CONTROL ACT.

§22-11-7b. Water quality standards; implementation of antidegradation procedures; procedure to determine comp1iance with the biologic component of the narrative water quality standard.

(a) All authority to promulgate rules and implement water quality standards vested in the Environmental Quality Board is hereby transferred from the Environmental Quality Board to is vested in the Secretary of the Department of Environmental Protection. as of the effective date of the amendment and reenactment of this section during the 2005 regular session of the Legislature: Provided, That the legislative rule containing the state’s water quality standards shall remain in force and effect as if promulgated by the Department of Environmental Protection until the secretary amends the rule in accordance with the provisions of article three, chapter twenty-nine-a of this code. Any proceedings, including notices of proposed rulemaking pending before the Environmental Quality Board, and any other functions, actions or authority transferred to the secretary shall continue in effect as actions of the secretary.

(b) All meetings with the secretary or any employee of the department and any interested party which are convened for the purpose of making a decision or deliberating toward a decision as to the form and substance of the rule governing water quality standards or variances thereto shall be held in accordance with the provisions of article nine-a, chapter six of this code. When the secretary is considering the form and substance of the rule rules governing water quality standards, the following are not meetings pursuant to article nine-a, chapter six of this code: (i) Consultations between the department’s employees or its consultants, contractors or agents; (ii) consultations with other state or federal agencies and the department’s employees or its consultants, contractors or agents; or (iii) consultations between the secretary, the department’s employees or its consultants, contractors or agents with any interested party for the purpose of collecting facts and explaining state and federal requirements relating to a site specific change or variance.

(c) In order to carry out the purposes of this chapter, the secretary shall promulgate legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code setting standards of water quality applicable to both the surface waters and groundwaters of this state. Standards of quality with respect to surface waters shall protect the public health and welfare, wildlife, fish and aquatic life and the present and prospective future uses of the water for domestic, agricultural, industrial, recreational, scenic and other legitimate beneficial uses thereof. The water quality standards of the secretary may not specify the design of equipment, type of construction or particular method which a person shall use to reduce the discharge of a pollutant.

(d) The secretary shall establish the antidegradation implementation procedures as required by 40 C. F. R. 131.12(a) which apply to regulated activities that have the potential to affect water quality. The secretary shall propose for legislative approval, pursuant to article three, chapter twenty-nine-a of the code, legislative rules to establish implementation procedures which include specifics of the review depending upon the existing uses of the water body segment that would be affected, the level of protection or “tier” assigned to the applicable water body segment, the nature of the activity and the extent to which existing water quality would be degraded. Any final classification determination of a water as a Tier 2.5 water (Water of Special Concern) does not become effective until that determination is approved by the Legislature through the legislative rule-making process as provided for in article three, chapter twenty-nine-a of the code.

(e) All remining variances shall be applied for and considered by the secretary and any variance granted shall be consistent with 33 U. S. C. Section 1311(p) of the Federal Water Control Act. At a minimum, when considering an application for a remining variance the secretary shall consider the data and information submitted by the applicant for the variance; and comments received at a public comment period and public hearing. The secretary may not grant a variance without requiring the applicant to improve the instream water quality as much as is reasonably possible by applying best available technology economically achievable using best professional judgment. Any such requirement will be included as a permit condition. The secretary may not grant a variance without a demonstration by the applicant that the coal remining operation will result in the potential for improved instream water quality as a result of the remining operation. The secretary may not grant a variance where he or she determines that degradation of the instream water quality will result from the remining operation.

(f) The secretary shall propose rules measuring compliance with the biologic component of West Virginia's narrative water quality standard requires evaluation of the holistic health of the aquatic ecosystem and a determination that the stream: (i) Supports a balanced aquatic community that is diverse in species composition; (ii) contains appropriate trophic levels of fish, in streams that have flows sufficient to support fish populations; and (iii) the aquatic community is composed of benthic invertebrate assemblages sufficient to perform the biological functions necessary to support fish communities within the assessed reach, or, if the assessed reach has insufficient flows to support a fish community, in those downstream reaches where fish are present. The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code that implement the provisions of this subsection. Rules promulgated pursuant to this subsection may not establish measurements for biologic components of West Virginia's narrative water quality standards that would establish standards less protective than requirements that exist at the time of enactment of the amendments to this subsection by the Legislature during the 2012 regular session.

On motion of Senator Palumbo, the following amendment to the House of Delegates amendment to the bill was reported by the Clerk and adopted:

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

Eng. Com. Sub. for Senate Bill No. 562--A Bill to amend and reenact §22-11-7b of the Code of West Virginia, 1931, as amended, relating to establishing a public policy for narrative water quality standards; establishing a procedure to determine compliance with the biologic component of the narrative water quality standard; and clarifying that narrative water quality rules cannot be less protective than current requirements.

On motion of Senator Unger, the Senate concurred in the House of Delegates amendment, as amended.

Engrossed Committee Substitute for Senate Bill No. 562, as amended, was then put upon its passage.

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. 562) passed with its Senate amended title.

Senator Unger moved that the bill take effect from passage.

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. 562) takes effect from passage.

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

At the request of Senator Plymale, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.

At the request of Senator K. Facemyer, unanimous consent being granted, Senator K. Facemyer addressed the Senate regarding her legislative service.

Thereafter, at the request of Senator Hall, and by unanimous consent, the remarks by Senator K. Facemyer were ordered extended in the Journal as follows:

SENATOR K. FACEMYER: Mr. President, I greatly appreciate the opportunity you gave me a little bit ago. What a rush that was to stand before the Senate and actually lead it. You have that opportunity every day and we’re thankful for that.

But this evening, I’m rising with a rush of mixed emotions: Pride and accomplishment rolled around with bittersweet thoughtfulness--the same feelings that I remember as a child when summer was winding down and the fall harvest was coming on, the mixed twinge of sadness and also a charge of excitement as my first born drove away to college and then that overwhelming emotion of looking into the eyes of my granddaughter for the first time.

Each one is a very special memory in my life. As I look across the room on this final day of my last regular session, I realize how many of those special times that each of you all have shared with me. You are forever a part of my life. I leave this upper chamber with a feeling of accomplishment and a pride that I believe we are better off than we were when I first came here. Many of us have become friends. I have worked with and agreed with many of you on most occasions, and there’s a few of you that I’ve disagreed with some, and mostly all, of the time.

Nevertheless, like a great woman said a long time ago, “My friends have made the story of my life. In a thousand ways they have turned my limitations into beautiful privileges.” I feel the same about this Senate.

I was told when I came here you’re better off if you choose a niche, something that you can specialize in, a cause that you believe in. After teaching school and speaking to several people--schools, teachers and children were all covered by several people in this body. So my niche became something that was like second hand to me, after growing up on a farm most of my life, and that was agriculture and farming. That led me to be kind of a champion of quite a few causes. It also gave me opportunity in several of the national committees and conferences that we went to. I was afforded the great opportunity of chairing the Agriculture and Rural Development Committee for the Council of State Governments for two years.

I was chosen as a Toll Fellow as one of the 40 top emerging leaders probably my third year into the Senate. That afforded me a great opportunity to learn about leadership and how we should proceed with it. One of my ideas, after talking with the Senator from Pocahontas for quite some time, came to fruition when he took the lead on taking the personal property tax off of farms. It actually--thank you to everybody who took part in voting on that-- increased the number of farms that we have in this state. The whole reason behind that was so our young people could afford to get back into farming and agriculture.

One funny little story on that was one day I was on the floor speaking--not of Century Aluminum and bashing my fellow senators for not passing the tax credit last year--but actually talking about coyotes and how they needed to be spotlighted to lessen the population. I had former Senator Martha Walker chastize me and say, “What are you talking about?” She came back the next day to tell me how a pack of coyotes had taken her cat and killed it off of her back porch here in Charleston. So we got the message out on agriculture.

I would be remiss if I didn’t thank those who also stood by me and those who have supported me and allowed me to be the person that I am and those who have taken me by the shoulders and called me aside and said, “Back off--you’re heading in the wrong direction.” Some have pulled me close and others have pushed me away, but I thank each of you for those times and the times that you’ve had my back.

My family, first and foremost, I thank. They allowed me the time to come down here but also reminded me when I come home to check my ego at the door. Also, I thank the delegates I’ve served with, back to the eight years I served in the House of Delegates, a couple come to mind and that was the first Minority Leader who I served with and that was Bob Burke. What an outstanding person and a great mentor he was, along with Charlie Trump from the Eastern Panhandle. He was great. Everybody knows you get to know the staff, and some of the staff can guide you in the best direction. And there’s nobody better in the House of Delegates than Marilyn Parsons, who heads up the minority office.

I also had the privilege of making two of my very best friends who guided me in how to compromise and how to get along in the House of Delegates and that’s my little buddies, Gil White and J. D. Beane. Gil is now a professional government relations specialist and J. D. Beane is a circuit court judge in Wood County. He’s been here tonight--I believe he’s over on the House side now--and also running for Supreme Court. They taught me that legislating is the art of compromise, and that we must compromise in this process.

Our government liaisons, our lobbyists, who help us--and I’ll get in trouble if I start naming everybody, but Lisa, Scotty, Sara--you all have been great friends and there are many more out there who we depend on for information for our day-to-day decisions that we make.

My staff, Jackie, has been a right hand. I’ve so enjoyed sharing offices with the Senior Senator from Kanawha when we were upstairs with his secretary, Bonnie Hissom, and Anne Garcelon. They were tremendous help along the way. The senators who I leave with are great ones: The Senator from McDowell and the Junior Senator from the Seventeenth. It’s been a privilege serving with you all and allowing me also to share in your greatness. The senators who remain--and I’m just going to name a few of them because they are near and dear to my heart--not that all of you aren’t--the Senator from Mingo, the Senator from Cabell, the Senator from Raleigh, the Senator from Pocahontas and the Senator from Putnam--you all have been there and helped me early on in this Senate process.

My advice to everybody here--especially new ones coming in--is your ego will get in the way at some point or another. Hopefully, you’re lucky enough to have friends and family, as I do, who will help you check it and keep it in line.

Last of all I think I need to thank the citizens of Jackson, Mason, Putnam and Roane counties. They afforded me the opportunity and the experience and the honor of serving here and I thank them quite humbly for that.

And, finally, Mr. President, if I’ve learned one thing in these last 12 years in the Senate, it’s this: We are a family--a great big dysfunctional family at times but, nonetheless, family. When it counted most, we pulled together for the best of the State of West Virginia and for our constituents. When one suffers a loss, we all suffer. When one rises to the occasion, we all rise. And so I will leave you not with a goodbye but until we meet again.

Thank you, Mr. President.

________

The Senate again proceeded to the third order of business.

Eng. Com. Sub. for Senate Bill No. 51, Denying certain spousal support upon DNA evidence of adultery.

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates Frazier, Ferro and Ellem.

On motion of Senator Unger, the Senate agreed to the appointment of a conference committee on the bill.

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

Senators Wills, Tucker and Nohe.

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

Eng. Com. Sub. for Senate Bill No. 212, Creating criminal offense for disrupting communications and public utility services.

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates Michael, Doyle and Ellem.

On motion of Senator Unger, the Senate agreed to the appointment of a conference committee on the bill.

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

Senators Snyder, Klempa and Barnes.

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

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 340, Relating to interscholastic athletics concussions and head injuries.

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates Miley, Manchin and O’Neal.

On motion of Senator Unger, the Senate agreed to the appointment of a conference committee on the bill.

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

Senators Stollings, Foster and K. Facemyer.

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

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 501, Requiring health insurance coverage of certain hearing aids.

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates Miley, Poore and Lane.

On motion of Senator Unger, the Senate agreed to the appointment of a conference committee on the bill.

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

Senators Minard, Stollings and K. Facemyer.

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

Eng. Com. Sub. for Senate Bill No. 597, Requiring installation of carbon monoxide detectors in certain facilities.

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates Manchin, Fleischauer and Ellem.

On motion of Senator Unger, the Senate agreed to the appointment of a conference committee on the bill.

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

Senators Beach, Williams and K. Facemyer.

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

Eng. Com. Sub. for House Bill No. 2278, Authorizing the use of additional medium for use in archiving government records.

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates Manchin, Fleischauer and Lane.

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

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates Manchin, Ferro and Ellem.

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

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates M. Poling, Lawrence and Gearheart.

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates Reynolds, Cann and C. Miller.

Eng. Com. Sub. for House Bill No. 4396, West Virginia Fire, EMS and Law-Enforcement Officer Survivor Benefit Act.

The message further announced the appointment of the following conferees on the part of the House of Delegates:

Delegates D. Poling, Skaff and Carmichael.

The Senate again proceeded to the fifth order of business.

Filed Conference Committee Reports

The Clerk announced the following conference committee report had been filed at 8:05 p.m. tonight:

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

On motion of Senator Unger, the Senate recessed until 8:30 p.m. tonight.

Night Session

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

Filed Conference Committee Reports

The Clerk announced the following conference committee report had been filed at 8:44 p.m. tonight:

Eng. Com. Sub. for House Bill No. 2278, Authorizing the use of additional medium for use in archiving government records.

The Clerk announced the following conference committee reports had been filed at 8:45 p.m. tonight:

Eng. Com. Sub. for Senate Bill No. 212, Creating criminal offense for disrupting communications and public utility services.

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

And,

Eng. Com. Sub. for House Bill No. 4396, West Virginia Fire, EMS and Law-Enforcement Officer Survivor Benefit Act.

The Clerk announced the following conference committee report had been filed at 8:49 p.m. tonight:

Eng. Com. Sub. for Senate Bill No. 418, Relating to qualifications of Parole Board members.

The Clerk announced the following conference committee report had been filed at 8:50 p.m. tonight:

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 211, Creating traffic offenses for texting or using handheld wireless communication device while driving.

The Clerk announced the following conference committee report had been filed at 8:54 p.m. tonight:

Eng. Com. Sub. for Senate Bill No. 51, Denying certain spousal support upon DNA evidence of adultery.

The Clerk announced the following conference committee report had been filed at 8:59 p.m. tonight:

Eng. Senate Bill No. 597, Requiring installation of carbon monoxide detectors in certain facilities.

At the request of Senator Prezioso, unanimous consent being granted, the Senate returned to the second order of business and the introduction of guests.

The Senate again proceeded to the third order of business.

Eng. Com. Sub. for Senate Bill No. 161, Relating to mandatory reporting of child abuse and neglect.

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

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

On page four, section two, lines thirty-two through forty-three, by striking out all of subsection (b) and inserting in lieu thereof a new subsection, designated subsection (b), to read as follows:

(b) Any person over the age of eighteen who receives a disclosure from a credible witness or observes any sexual abuse or sexual assault of a child, shall immediately, and not more than forty-eight hours after receiving such a disclosure or observing the sexual abuse or sexual assault, report the circumstances or cause a report to be made to the Department of Health and Human Resources or the State Police or other law-enforcement agency having jurisdiction to investigate the report. In the event that the individual receiving the disclosure or observing the sexual abuse or sexual assault has a good faith belief that the reporting of the event to the police would expose either the reporter, the subject child, the reporter’s children or other children in the subject child’s household to an increased threat of serious bodily injury, the individual may delay making the report while he or she undertakes measures to remove themselves or the affected children from the perceived threat of additional harm: Provided, That the individual makes the report as soon as practicable after the threat of harm has been reduced. The law-enforcement agency that receives a report under this subsection shall report the allegations to the Department of Health and Human Resources and coordinate with any other law-enforcement agency, as necessary to investigate the report.;

And,

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

Eng. Com. Sub. for Senate Bill No. 161--A Bill to amend and reenact §49-6A-1, §49-6A-2, §49-6A-8 and §49-6A-10 of the Code of West Virginia, 1931, as amended, all relating to mandatory reporting of abuse and neglect of children; adding promoting adult responsibility and prevention to the purpose; adding certain persons to the mandatory reporting list for all abuse or neglect of children; creating a requirement that certain adults report sexual abuse of children when observed or when received credible reports; allowing for exceptions; requiring law enforcement who receive a report of sexual abuse to alert the Department of Health and Human Resources; encouraging law-enforcement agencies to coordinate in investigating a report; increasing the criminal penalties for failure to report; creating a crime and criminal penalties for all adults who fail to report sexual abuse of children; and requiring and amending certain educational programs and trainings.

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

Engrossed Committee Substitute for Senate Bill No. 161, as amended by the House of Delegates, was then put upon its passage.

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. 161) passed with its House of Delegates amended title.

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

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 477, Limiting possession of wild and exotic animals.

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

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

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

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §20-9-1, §20-9-2, §20-9-3, §20-9-4, §20-9-5, §20-9-6, §20-9-7 and §20-9-8, all to read as follows:

ARTICLE 9. EXOTIC ANIMAL ACT.

§20-9-1. Legislative intent.

The Legislature hereby finds and declares that it is the public policy of this state to protect the public against the risks associated with the introduction and possession of exotic animals into the state due to the potential impacts of introduction of species to the state’s ecosystem, including harming native animal and plant life both in natural and agricultural settings through direct and indirect biological impacts associated with introduction of non-native species, and that address potential for human health and safety concerns possession of these animals can cause. Therefore, it is necessary to establish regulatory requirements for importation, ownership and possession of exotic animals.

§20-9-2. Definitions.

For the purposes of this article:

(1) “Bureau” means the West Virginia Bureau for Public Health;

(2) “Department” means the West Virginia Department of Agriculture;

(3) “Division” means the West Virginia Division of Natural Resources;

(5) “Person” means any individual, partnership, corporation, organization, trade or professional association, firm, limited liability company, joint venture, association, trust, estate or any other legal entity and any officer, member, shareholder, director, employee, agent or representative thereof; and

(6) “Exotic animals”, or the singular, means mammals, birds, reptiles, amphibians and fish, including hybrids thereof, that are physically and biologically dangerous to humans, other animals and the environment due to their inherent nature. “Wildlife”, as defined by section two, article one of this chapter, “livestock”, as defined in section two, article ten-b and section two, article twenty-nine, chapter nineteen of this code, and domestic animals are excluded. A comprehensive list of “exotic animals” shall be set forth by the division, in consultation with the department and the bureau, pursuant to the rule-making authority of this article.

§20-9-3. Regulatory authority.

(a) The division shall regulate and protect the native wildlife of this state as authorized by this chapter. The division shall regulate the entry and intrastate movement, permitting, sale, transfer, exhibition and possession of exotic animals. The division is authorized to assess and implement restrictions to prevent adverse environmental and disease consequences posed by exotic animals to free-living native wildlife. The division may require immediate examination and testing of exotic animals when there is probable cause that the animals are harboring diseases or parasites suspected of endangering free-living native wildlife, including examination, testing, quarantine, seizure, indemnification and destruction. Examination, testing and destruction may be carried out independently of other state agencies.

(b) The department shall control, suppress and eradicate diseases endangering domestic and livestock animals and agricultural, horticultural and forestry interests. The department may require immediate examination, testing and destruction of exotic animals when there is probable cause that the animals are harboring diseases or parasites suspected of endangering domestic and livestock animals or agricultural, horticultural and forestry interests, including examination, testing, quarantine, seizure, indemnification and destruction within the legislative authority of the department. Examination and testing may be carried out independently of other state agencies.

(c) The bureau may require immediate examination, testing and destruction of exotic animals when there is probable cause that the animals are harboring diseases or parasites suspected of endangering public health. The bureau may take any necessary action to protect the public health, including quarantine, seizure, and destruction. Examination and testing may be carried out independently of other state agencies.

(d) The division, department and bureau shall coordinate and advise regulatory activities established pursuant to this section, and solicit comments from the other regulatory agencies relating to any rules or polices established to facilitate a unified and coordinated regulatory approach. Actions taken by the division, department and bureau may not violate any federal law and regulation.

§20-9-4. Division rulemaking.

The division shall promulgate legislative rules establishing the following requirements:

(1) Permit requirements and criteria for persons to own, possess, breed, harbor, transport, sell, transfer, release or have custody or control of an exotic animal;

(2) Requirements for liability insurance coverage for damages stemming from destruction of property and death and bodily injury to a person caused by an exotic animal;

(3) A permitting fee for each exotic animal. The division shall retain fifty percent of the fee to administer its duties and remit the remaining fifty percent of the fee to the county humane or animal control officer in the county where the permit is issued, or the sheriff in the alternative, to offset the cost of assisting in inspecting and controlling these animals. The amount of the fee shall be established by legislative rule by the division. There is hereby created in the state treasury a special revenue fund to be known as the "exotic animal fees fund" which shall consist of all fees, civil penalties, assessed costs, collected by the Director under this section, and all interest or other return earned from investment of the fund. Expenditures from the fund shall be made by the Director for the purposes set forth in this article. Any balance, including accrued interest and other returns, in the fund at the end of each fiscal year shall not revert to the general revenue fund but shall remain in the fund and be expended as provided by this section.

(4) Standards for unique animal identification procedures and methods for exotic animals;

(5) Exemptions to the regulation and permitting requirements for persons and entities that are not required to be permitted; and

(6) All other requirements necessary for the safe and effective regulation of exotic animals.

§20-4-5. State regulatory authority.

(a) The division, department or bureau may direct the county humane and animal control officer, or sheriff in the alternative, to inspect a permitted exotic animal and its enclosure. An inspection may be required by the division prior to issuing a permit. The possessor shall allow representatives of the division, department, bureau, county humane and animal control officers, and sheriff to enter the premises where the animal is kept to ensure compliance with this article and other applicable laws.

(e) The division shall provide all possessor information obtained in the application to the department, bureau, county humane and animal control officers, or the sheriffs in the alternative, and shall create a database tracking exotic animals that these agencies can access.

(f) The division, department, bureau, county humane and animal control officers, or the sheriffs in the alternative, shall share information regarding exotic animals and to devise emergency response plans for emergent situations involving exotic animals. Emergency contact information shall be provided to possessors in the application.

§20-9-6. Confiscation and disposition.

(a) The division, department or bureau may immediately confiscate any exotic animal if the animal is kept in contravention of this article. The possessor is liable for the costs of placement and care for the exotic animal from the time of confiscation until the time of return to the possessor or until the time the animal has been relocated to a exotic animal sanctuary or an institution accredited by the Association of Zoos and Aquariums.

(b) If an exotic animal is confiscated due to the animal being kept in contravention of this article, the possessor must post a security bond or cash with the division, department or bureau in an amount sufficient to guarantee payment of all reasonable expenses expected to be incurred in caring and providing for the animal including, but not limited to, the estimated cost of feeding, medical care and housing for at least thirty days. The security bond or cash does not prevent the division from disposing of the animal after thirty days unless the person claiming the animal posts an additional security bond or cash with the division, department or bureau to secure payment of all reasonable expenses expected to be incurred in caring and providing for the animal for an additional thirty days and does so prior to the expiration of the first thirty-day period. The amount of the security bond or cash shall be determined by the division and based on the current rate to feed, provide medical care and house the animal.

(c) If the possessor of a confiscated animal cannot be located or if a confiscated animal remains unclaimed, the division, department or bureau may contact a exotic animal sanctuary or an institution accredited by the Association of Zoos and Aquariums, may allow the animal to be adopted by a person who currently possesses a permit or may euthanize the animal in compliance with federal and state laws.

(d) If the exotic animal cannot be confiscated or recaptured safely by the division, department or bureau, or if proper and safe placement cannot be found, the division, department or bureau may immediately euthanize the animal in compliance with federal and state laws.

§20-9-7. Further rule-making authority and agency cooperation.

(a) The division, department and bureau may develop inter-agency agreements or propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement the provisions of this article and to take other action as may be necessary for the proper and effective enforcement of these provisions.

(b) The division, department and bureau shall cooperate to implement the provisions of this article and to take other action as may be necessary for the proper and effective enforcement of these provisions.

(c) The division shall report by January 1, 2013, to the Joint Committee on Government and Finance on its actions to effectuate and enforce the provisions of this article.

§20-9-8. Criminal penalties.

(a) (1) A person who violates the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $200 nor more than $2,000 for each animal with respect to which there is a violation.

(2) A person who knowingly and intentionally releases more than one exotic animal, which endangers the public, or knowingly and intentionally releases an exotic animal that injures a person, is guilty of a felony and, upon conviction, may be imprisoned in a state correctional facility for not less than one year nor more than three years, or fined not more than $5,000, or both fined and imprisoned.

(b) The division shall by legislative rule establish administrative penalties for violation of the provisions of this article and the rules promulgated thereunder.;

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. 477--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §20-9-1, §20-9-2, §20-9-3, §20-9-4, §20-9-5, §20-9-6, §20-9-7 and §20-9-8, all relating to regulating the possession of exotic animals; expressing legislative intent; providing definitions; directing the Division of Natural Resources to promulgate legislative rules establishing permitting requirements and criteria; authorizing the division to define scope of applicability of act to assure human and environmental protection and safety; authorizing the division to establish permit criteria and liability insurance requirements by rule; authorizing division to set permit fees by rule; providing for distribution of fees; establishing special revenue account for fees; providing general regulatory and rule-making authority for the division, the Department of Agriculture and Bureau of Public Health; establishing authority and procedural process for inspection, confiscation, placement and destruction of exotic animals; including county animal control officers or sheriffs in enforcement process and providing them portion of fee; establishing criminal penalties; and authorizing the division to establish administrative penalties by rule.

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

Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 477, as amended by the House of Delegates, was then put upon its passage.

On the passage of the bill, the yeas were: Beach, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--29.

The nays were: Barnes, Boley, Hall, Nohe and Sypolt--5.

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. 477) passed with its House of Delegates amended title.

Senator Unger moved that the bill take effect July 1, 2012.

On this question, the yeas were: Beach, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--29.

The nays were: Barnes, Boley, Hall, Nohe and Sypolt--5.

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. 477) takes effect July 1, 2012.

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

Eng. Com. Sub. for Senate Bill No. 618, Relating to municipal and magistrate courts' notification to DMV of violator's failure to pay or appear.

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

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

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

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §7-5-2a; that 8-10-2a and §8-10-2b be amended and reenacted; that §8-13-15 be amended and reenacted; and that §50-3-2a of said code be amended and reenacted, all to read as follows:

CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 5. FISCAL AFFAIRS.

§7-5-2a. Credit cards as form of payment.

Notwithstanding any code provision to the contrary, county officers required or authorized to collect fines, fees, taxes or other moneys provided by law may accept credit or check cards as a form of payment. County officers may set a fee to be added to each transaction equal to the charge paid by the county officers for the use of the credit or check card by the payor: Provided, That the county officer is required to obtain three bids and use the lowest, qualified bid received: Provided, however, That if a county officer has obtained credit card services, another county officer may be added to that service without receiving bids for that service. The county officer shall disclose the amount of the fee to the payor prior to the transaction and no other fees for the use of a credit or check card may be imposed upon the payor. Acceptance of a credit or check card as a form of payment shall be in accordance with the rules and requirements set forth by the credit or check card provider.

CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.

§8-10-2a. Payment of fines by credit cards or payment plan; suspension of driver's license for failure to pay motor vehicle violation fines or to appear in court.

(a) A municipal court may accept credit cards in payment of all costs, fines, forfeitures or penalties. A municipal court may collect a substantial portion of all costs, fines, forfeitures or penalties at the time such amount is imposed by the court so long as the court requires the balance to be paid within one hundred eighty days from the date of judgment and in accordance with a payment plan: Provided, That all costs, fines, forfeitures or penalties imposed by the municipal court upon a nonresident of this state by judgment entered upon a conviction for a motor vehicle violation defined in section three-a, article three, chapter seventeen-b of this code must be paid within eighty days from the date of judgment. The payment plan shall specify: (1) The number of additional payments to be made; (2) the dates on which such payments and amounts shall be made; and (3) amounts due on such dates.

(b) If costs, fines, forfeitures or penalties imposed by the municipal court for motor vehicle violations as defined in section three-a, article three, chapter seventeen-b of this code are not paid within the time limits imposed pursuant to subsection (a) of this section, or if a person fails to appear or otherwise respond in court when charged with a motor vehicle violation as defined in section three-a, article three, chapter seventeen-b of this code, the municipal court must notify the Commissioner of the Division of Motor Vehicles of such failure to pay or failure to appear: Provided, That notwithstanding any other provision of this code to the contrary, the municipal court shall wait at least ninety days from the date that all costs, fines, forfeitures or penalties are due in full or, for failure to appear or otherwise respond, ninety days from the date of such failure before notifying the Division of Motor Vehicles thereof.

§8-10-2b. Suspension of licenses for failure to pay fines and costs or failure to appear in court.

(a) If costs, fines, forfeitures or penalties imposed by the municipal court upon conviction of a person for a criminal offense as defined in section three-c, article three, chapter seventeen-b of this code are not paid in full within one hundred eighty days of the judgment, the municipal court clerk or, upon a judgment rendered on appeal, the circuit clerk shall notify the Division of Motor Vehicles of the failure to pay: Provided, That notwithstanding any other provision of this code to the contrary, for residents of this state, the municipal court shall wait at least ninety days from the date that all costs, fines, forfeitures or penalties are due in full before notifying the Division of Motor Vehicles thereof: Provided, however, That at the time the judgment is imposed, the judge shall provide the person with written notice that failure to pay the same as ordered may result in the withholding of any income tax refund due the licensee and shall result in the suspension of the person's license or privilege to operate a motor vehicle in this state and that the suspension could result in the cancellation of, the failure to renew or the failure to issue an automobile insurance policy providing coverage for the person or the person's family: Provided, however further, That the failure of the judge to provide notice does not affect the validity of any suspension of the person's license or privilege to operate a motor vehicle in this state. For purposes of this section, payment shall be stayed during any period an appeal from the conviction which resulted in the imposition of costs, fines, forfeitures or penalties is pending.

Upon notice, the Division of Motor Vehicles shall suspend the person's driver's license or privilege to operate a motor vehicle in this state until such time that the costs, fines, forfeitures or penalties are paid.

(b) Notwithstanding the provisions of this section to the contrary, the notice of the failure to pay costs, fines, forfeitures or penalties may not be given where the municipal court, upon application of the person upon whom the costs, fines, forfeitures or penalties were imposed filed prior to the expiration of the period within which these are required to be paid, enters an order finding that the person is financially unable to pay all or a portion of the costs, fines, forfeitures or penalties: Provided, That where the municipal court, upon finding that the person is financially unable to pay a portion of the costs, fines, forfeitures or penalties, requires the person to pay the remaining portion, the municipal court shall notify the Division of Motor Vehicles of the person's failure to pay if not paid within the period of time ordered by the court.

(c) If a person charged with a criminal offense fails to appear or otherwise respond in court, the municipal court clerk shall notify the Division of Motor Vehicles within fifteen days of the scheduled date to appear unless the person sooner appears or otherwise responds in court to the satisfaction of the judge of the failure to appear: Provided, That notwithstanding any other provision of this code to the contrary, for residents of this state, the municipal court clerk shall wait at least ninety days from the date of the person’s failure to appear or otherwise respond before notifying the Division of Motor Vehicles thereof. Upon notice, the Division of Motor Vehicles shall suspend the person's driver's license or privilege to operate a motor vehicle in this state until such time that the person appears as required.

(d) On and after July 1, 2008, if the licensee fails to respond to the Division of Motor Vehicles order of suspension within ninety days of receipt of the certified letter, the municipal court of original jurisdiction shall notify the Tax Commissioner that the licensee has failed to pay the costs, fines, forfeitures or penalties assessed by the court or has failed to respond to the citation. The notice provided by the municipal court to the Tax Commissioner must include the licensee’s social security number. The Tax Commissioner, or his or her designee, shall withhold from any personal income tax refund due and owing to a licensee the costs, fines, forfeitures or penalties due to the municipality, the Tax Commissioner’s administration fee for the withholding and any and all fees that the municipal court would have collected had the licensee appeared: Provided, That the Tax Commissioner’s administration fee may not exceed $25: Provided, however, That the Tax Commissioner may change this maximum amount limitation for this fee for fiscal years beginning on or after July 1, 2008, by legislative rule promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided further, That the administrative fees deducted shall be deposited in the special revolving fund hereby created in the State Treasury, which shall be designated as the “municipal fines and fees collection fund”, and the Tax Commissioner shall make such expenditures from the fund as he or she deems appropriate for the administration of this subsection. After deduction of the Tax Commissioner’s administration fee, the Tax Commissioner shall remit to the municipality all remaining amounts withheld pursuant to this section and the municipal court shall distribute applicable costs, fines, forfeitures or penalties owed to the municipality, the Regional Jail Authority Fund, the Crime Victims Compensation Fund, the Community Corrections Fund, the Governor’s subcommittee on law-enforcement training or any other fund or payee that may be applicable. After the costs, fines, forfeitures or penalties are withheld, the Tax Commissioner shall refund any remaining balance due the licensee. If the refund is not sufficient to cover all the costs, fines, forfeitures or penalties being withheld pursuant to this section, the Tax Commissioner’s administration fee shall be retained by the Tax Commissioner and the remaining money withheld shall be remitted by the Tax Commissioner to the municipality. The municipality shall then allocate the money so remitted to the municipality in the following manner: (1) Any costs, fines, forfeitures or penalties due to the municipality; (2) seventy-five percent of the remaining balance shall be paid to the appropriate Regional Jail Authority Fund; (3) fifteen percent of the remaining balance shall be paid to the Crime Victims Compensation Fund; (4) six percent of the remaining balance shall be paid into the Community Corrections Fund; and (5) the final four percent shall be paid to the Governor’s subcommittee on law-enforcement training. When the costs, fines, forfeitures or penalties exceed the licensee’s income tax refund, the Tax Commissioner shall withhold the remaining balance in subsequent years until such time as the costs, fines, forfeitures or penalties owed are paid in full. The Tax Commissioner shall remit the moneys that he or she collects to the appropriate municipality no later than July 1, of each year. If the municipal court or the municipality subsequently determines that any such costs, fines, forfeitures or penalties were erroneously imposed, the municipality shall promptly notify the Tax Commissioner. If the refunds have not been withheld and remitted, the Tax Commissioner may not withhold and remit payment to the municipality and shall so inform the municipality. If the refunds have already been withheld and remitted to the municipality, the Tax Commissioner shall so inform the municipality. In either event, all refunds for erroneously imposed costs, fines, forfeitures or penalties shall be made by the municipality and not by the Tax Commissioner.

(e) Rules and effective date. -- The Tax Commissioner may promulgate such rules as may be useful or necessary to carry out the purpose of this section and to implement the intent of the Legislature, to be effective on July 1, 2008. Rules shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.

(f) On or before July 1, 2005, the municipal court may elect to reissue notice as provided in subsections (a) and (c) of this section to the Division of Motor Vehicles for persons who remain noncompliant: Provided, That the person was convicted or failed to appear on or after January 1, 1993. If the original notification cannot be located, the Division of Motor Vehicles shall accept an additional or duplicate notice from the municipal court clerk.

ARTICLE 13. TAXATION AND FINANCE.

§8-13-15. Collection of municipal taxes, fines and assessments.

Unless otherwise provided, it shall be the duty of the treasurer of the municipality or other individual who may be designated by general law, by charter provisions or by the governing body, to collect and promptly pay into the municipal treasury all taxes, fines, special assessments or other moneys due the municipality. All such taxes, fines, special assessments (except assessments for permanent or semipermanent public improvements) and other moneys due the municipality are hereby declared to be debts owing to the municipality, for which the debtor shall be personally liable, and the treasurer, or other individual so designated, may enforce this liability by appropriate civil action in any court of competent jurisdiction, and is hereby vested with the same rights to distrain for the same as is vested in the sheriff for the collection of taxes. Such treasurer or other individual shall give a bond, conditioned according to law, in such penalty and with such security as the governing body may require: Provided, That nothing in this article shall prohibit the payment of taxes, fines, special assessments or other moneys due the municipality by credit or check card. The municipality or municipal court may set a fee to be added to each transaction equal to the charge paid by the municipality for the use of the credit or check card by the debtor: Provided, That the municipality is required to obtain three bids and use the lowest, qualified bid received: Provided, however, That if a municipality has obtained credit card services, the municipal court may be added to that service without receiving bids for that service. The municipality or municipal court shall disclose the amount of the fee to the debtor prior to the transaction and no other fees for the use of a credit or check card may be imposed upon the debtor. Acceptance of a credit or check card as a form of payment shall be in accordance with the rules and requirements set forth by the credit or check card provider. Allowing for the collection of these funds by credit or check card shall be at the discretion of the municipality or municipal court.

CHAPTER 50. MAGISTRATE COURTS.

ARTICLE 3. COSTS, FINES AND RECORDS.

§50-3-2a. Payment by credit card or payment plan; suspension of licenses for failure to make payments or appear or respond; restitution; liens.

(a) A magistrate court may accept credit cards in payment of all costs, fines, fees, forfeitures, restitution or penalties in accordance with rules promulgated by the Supreme Court of Appeals. Any charges made by the credit company shall be paid by the person responsible for paying the cost, fine, forfeiture or penalty.

(b) Unless otherwise required by law, a magistrate court may collect a portion of any costs, fines, fees, forfeitures, restitution or penalties at the time the amount is imposed by the court so long as the court requires the balance to be paid in accordance with a payment plan which specifies: (1) The number of payments to be made; (2) the dates on which the payments are due; and (3) the amounts due for each payment. The written agreement represents the minimum payments and the last date those payments may be made. The obligor or the obligor’s agent may accelerate the payment schedule at any time by paying any additional portion of any costs, fines, fees, forfeitures, restitution or penalties.

(c) (1) If any costs, fines, fees, forfeitures, restitution or penalties imposed by the magistrate court in a criminal case are not paid within one hundred eighty days from the date of judgment and the expiration of any stay of execution, the magistrate court clerk or, upon judgment rendered on appeal, the circuit clerk shall notify the Commissioner of the Division of Motor Vehicles of the failure to pay: Provided, That in a criminal case in which a nonresident of this state is convicted of a motor vehicle violation defined in section three-a, article three, chapter seventeen-b of this code, the appropriate clerk shall notify the Division of Motor Vehicles of the failure to pay within eighty days from the date of judgment and expiration of any stay of execution. Upon notice, the Division of Motor Vehicles shall suspend any privilege the person defaulting on payment may have to operate a motor vehicle in this state, including any driver's license issued to the person by the Division of Motor Vehicles, until all costs, fines, fees, forfeitures, restitution or penalties are paid in full. The suspension shall be imposed in accordance with the provisions of section six, article three, chapter seventeen-b of this code: Provided, That any person who has had his or her license to operate a motor vehicle in this state suspended pursuant to this subsection and his or her failure to pay is based upon inability to pay, may, if he or she is employed on a full or part-time basis, petition to the circuit court for an order authorizing him or her to operate a motor vehicle solely for employment purposes. Upon a showing satisfactory to the court of inability to pay, employment and compliance with other applicable motor vehicle laws, the court shall issue an order granting relief.

(2) In addition to the provisions of subdivision (1) of this subsection, if any costs, fines, fees, forfeitures, restitution or penalties imposed or ordered by the magistrate court for a hunting violation described in chapter twenty of this code are not paid within one hundred eighty days from the date of judgment and the expiration of any stay of execution, the magistrate court clerk or, upon a judgment rendered on appeal, the circuit clerk shall notify the Director of the Division of Natural Resources of the failure to pay. Upon notice, the Director of the Division of Natural Resources shall suspend any privilege the person failing to appear or otherwise respond may have to hunt in this state, including any hunting license issued to the person by the Division of Natural Resources, until all the costs, fines, fees, forfeitures, restitution or penalties are paid in full.

(3) In addition to the provisions of subdivision (1) of this subsection, if any costs, fines, fees, forfeitures, restitution or penalties imposed or ordered by the magistrate court for a fishing violation described in chapter twenty of this code are not paid within one hundred eighty days from the date of judgment and the expiration of any stay of execution, the magistrate court clerk or, upon a judgment rendered on appeal, the circuit clerk shall notify the Director of the Division of Natural Resources of the failure to pay. Upon notice, the Director of the Division of Natural Resources shall suspend any privilege the person failing to appear or otherwise respond may have to fish in this state, including any fishing license issued to the person by the Division of Natural Resources, until all the costs, fines, fees, forfeitures, restitution or penalties are paid in full.

(d) (1) If a person charged with any criminal violation of this code fails to appear or otherwise respond in court, the magistrate court shall notify the Commissioner of the Division of Motor Vehicles: thereof within fifteen ninety days of the scheduled date to appear unless the person sooner appears or otherwise responds in court to the satisfaction of the magistrate. Upon notice, the Division of Motor Vehicles shall suspend any privilege the person failing to appear or otherwise respond may have to operate a motor vehicle in this state, including any driver's license issued to the person by the Division of Motor Vehicles, until final judgment in the case and, if a judgment of guilty, until all costs, fines, fees, forfeitures, restitution or penalties imposed are paid in full. The suspension shall be imposed in accordance with the provisions of section six, article three, chapter seventeen-b of this code.

(2) In addition to the provisions of subdivision (1) of this subsection, if a person charged with any hunting violation described in chapter twenty of this code fails to appear or otherwise respond in court, the magistrate court shall notify the Director of the Division of Natural Resources of the failure thereof within fifteen days of the scheduled date to appear unless the person sooner appears or otherwise responds in court to the satisfaction of the magistrate. Upon notice, the Director of the Division of Natural Resources shall suspend any privilege the person failing to appear or otherwise respond may have to hunt in this state, including any hunting license issued to the person by the Division of Natural Resources, until final judgment in the case and, if a judgment of guilty, until all costs, fines, fees, forfeitures, restitution or penalties imposed are paid in full.

(3) In addition to the provisions of subdivision (1) of this subsection, if a person charged with any fishing violation described in chapter twenty of this code fails to appear or otherwise respond in court, the magistrate court shall notify the Director of the Division of Natural Resources of the failure thereof within fifteen days of the scheduled date to appear unless the person sooner appears or otherwise responds in court to the satisfaction of the magistrate. Upon notice, the Director of the Division of Natural Resources shall suspend any privilege the person failing to appear or otherwise respond may have to fish in this state, including any fishing license issued to the person by the Division of Natural Resources, until final judgment in the case and, if a judgment of guilty, until all costs, fines, fees, forfeitures, restitution or penalties imposed are paid in full.

(e) In every criminal case which involves a misdemeanor violation, a magistrate may order restitution where appropriate when rendering judgment.

(f) (1) If all costs, fines, fees, forfeitures, restitution or penalties imposed by a magistrate court and ordered to be paid are not paid within one hundred eighty days from the date of judgment and the expiration of any stay of execution, the clerk of the magistrate court shall notify the prosecuting attorney of the county of nonpayment and provide the prosecuting attorney with an abstract of judgment. The prosecuting attorney shall file the abstract of judgment in the office of the clerk of the county commission in the county where the defendant was convicted and in any county wherein the defendant resides or owns property. The clerks of the county commissions shall record and index the abstracts of judgment without charge or fee to the prosecuting attorney and when so recorded, the amount stated to be owing in the abstract shall constitute a lien against all property of the defendant.

(2) When all the costs, fines, fees, forfeitures, restitution or penalties described in subdivision (1) of this subsection for which an abstract of judgment has been recorded are paid in full, the clerk of the magistrate court shall notify the prosecuting attorney of the county of payment and provide the prosecuting attorney with a release of judgment, prepared in accordance with the provisions of section one, article twelve, chapter thirty-eight of this code, for filing and recordation pursuant to the provisions of this subdivision. Upon receipt from the clerk, the prosecuting attorney shall file the release of judgment in the office of the clerk of the county commission in each county where an abstract of the judgment was recorded. The clerks of the county commissions shall record and index the release of judgment without charge or fee to the prosecuting attorney.

(g) Notwithstanding any provision of this code to the contrary, except as authorized by this section, payments of all costs, fines, fees, forfeitures, restitution or penalties imposed by the magistrate court in civil or criminal matters shall be made in full. Partial payments of costs, fines, fees, forfeitures, restitution or penalties made pursuant to this section shall be credited to amounts due in the following order:

(1) Regional Jail Fund;

(2) Worthless Check Payee;

(3) Restitution;

(4) Magistrate Court Fund;

(5) Worthless Check Fund;

(6) Per Diem Regional Jail Fee;

(7) Community Corrections Fund;

(8) Regional Jail Operational Fund;

(9) Law Enforcement Training Fund;

(10) Crime Victims Compensation Fund;

(11) Court Security Fund;

(12) Courthouse Improvement Fund;

(13) Litter Control Fund;

(14) Sheriff arrest fee;

(15) Teen Court Fund;

(16) Other costs, if any;

(17) Fine.;

And,

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

Eng. Com. Sub. for Senate Bill No. 618--A Bill to amend the Code of West Virginia, 1931, as amended; by adding thereto a new section, designated §7-5-2a; to amend and reenact §8-10-2a and §8-10-2b of said code; to amend and reenact §8-13-15 of said code; and to amend and reenact §50-3-2a of said code, all relating to certain payments to governmental units; authorizing the use of credit or check cards for certain payments; authorizing a fee to be collected for the use of credit or check cards; requiring governmental units to obtain bids for credit card services; requiring compliance with rules of issuer of credit cards; requiring governmental units to wait ninety days after failure to pay costs, fines, forfeitures, restitutions or penalties or failure to appear before notifying the Division of Motor Vehicles; requiring costs, fines, forfeitures, restitutions or penalties imposed by magistrate courts to be paid in full; and establishing the priority of crediting payments to certain funds.

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

Engrossed Committee Substitute for Senate Bill No. 618, as amended by the House of Delegates, was then put upon its passage.

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. 618) passed with its House of Delegates amended title.

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

Eng. Senate Bill No. 678, Making supplementary appropriations from State Fund, General Revenue, to various accounts.

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

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

On page sixteen, after line two hundred seventy-seven, by inserting the following:

And, That the total appropriation for the fiscal year ending June 30, 2012, to fund 0589, fiscal year 2012, organization 0441, be supplemented and amended by increasing an existing item of appropriation as follows:TITLE II - APPROPRIATIONS.

Section 1. Appropriations from General Revenue.

HIGHER EDUCATION

95-Higher Education Policy Commission -

Administration -

Control Account

(WV Code Chapter 18B)

Fund 0589 FY 2012 Org 0441

General

Act- Revenue

ivity Fund

1 Unclassified - Surplus (R). . . . . . 097 $ 3,000,000

Any unexpended balance remaining in the above appropriation for Unclassified - Surplus (fund 0589, activity 097) at the close of fiscal year 2012 is hereby reappropriated for expenditure during the fiscal year 2013.;

And,

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

Eng. Senate Bill No. 678--A Bill making a supplementary appropriation of public moneys out of the Treasury from the balance of moneys remaining as an unappropriated surplus balance in the State Fund, General Revenue, to the Department of Agriculture, fund 0131, fiscal year 2012, organization 1400, to the Department of Administration, Division of Finance, fund 0203, fiscal year 2012, organization 0209, to the Department of Administration, Public Defender Services, fund 0226, fiscal year 2012, organization 0221, to the Department of Commerce, Division of Forestry, fund 0250, fiscal year 2012, organization 0305, to the Department of Commerce, Division of Natural Resources, fund 0265, fiscal year 2012, organization 0310, to the Department of Education, State Department of Education, fund 0313, fiscal year 2012, organization 0402, to the Department of Education and the Arts, Division of Culture and History, fund 0293, fiscal year 2012, organization 0432, to the Department of Environmental Protection, Division of Environmental Protection, fund 0273, fiscal year 2012, organization 0313, to the Department of Health and Human Resources, Division of Health - Central Office, fund 0407, fiscal year 2012, organization 0506, to the Department of Health and Human Resources, Consolidated Medical Service Fund, fund 0525, fiscal year 2012, organization 0506, to the Department of Health and Human Resources, Division of Human Services, fund 0403, fiscal year 2012, organization 0511, to the Department of Military Affairs and Public Safety, Division of Corrections - Correctional Units, fund 0450, fiscal year 2012, organization 0608, to the Department of Veterans’ Assistance, Department of Veterans’ Assistance, fund 0456, fiscal year 2012, organization 0613, to Higher Education, West Virginia Council for Community and Technical College Education - Control Account, fund 0596, fiscal year 2012, organization 0420, and to Higher Education, Higher Education Policy Commission - Administration - Control Account, fund 0589, fiscal year 2012, organization 0441, by supplementing and amending the appropriations for the fiscal year ending June 30, 2012.

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

Engrossed Senate Bill No. 678, as amended by the House of Delegates, was then put upon its passage.

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. 678) passed with its House of Delegates amended title.

Senator Unger moved that the bill take effect from passage.

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. 678) 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. 4068, Providing that antique motor vehicles be valued at their salvage value for personal property tax purposes.

Eng. Com. Sub. for House Bill No. 4263, The West Virginia Buy American Act.

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. 4327, Requiring pulse oximetry testing for newborns.

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. 4390, Uniform Power of Attorney 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, to take effect July 1, 2012, and requested the concurrence of the Senate in the changed effective date, as to

Eng. House Bill No. 4522, Providing additional contempt powers for family court judges.

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

On further motion of Senator Unger, the Senate concurred in the changed effective date of the bill, that being to take effect July 1, 2012, instead of ninety days from passage.

Senator Unger moved that the bill take effect July 1, 2012.

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. 4522) takes effect July 1, 2012.

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

At the respective requests of Senators Browning, Stollings, Miller, Minard and Jenkins, and by unanimous consent, Senators Browning, Stollings, Miller, Minard and Jenkins addressed the Senate regarding the results of the girls’ high school state basketball tournament.

On motion of Senator Unger, the Senate recessed until 10 p.m. tonight.

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

Eng. Finance Com. Sub. for Senate Bill No. 437, Relating generally to substance abuse.

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

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

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

That §16-1-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new article, designated §16-5H-1, §16-5H-2, §16-5H-3, §16-5H-4, §16-5H-5, §16-5H-6, §16-5H-7, §16-5H-8, §16-5H-9 and §16-5H-10; that §30-1-7a of said code be amended and reenacted; that §30-5-3 of said code be amended and reenacted; that §60A-3-308 of said code be amended and reenacted; that §60A-9-3, §60A-9-4, §60A-9-5 and §60A-9-7 of said code be amended and reenacted; that said code be amended by adding thereto three new sections, designated §60A-9-4a, §60A-9-5a and §60A-9-8; that §60A-10-3, §60A-10-4, §60A-10-5, §60A-10-7, §60A-10-8 and §60A-10-11 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated 60A-10-16; and that §61-12-10 of said code be amended and reenacted, all to read as follows:

CHAPTER 16. PUBLIC HEALTH.

ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.

§16-1-4. Proposal of rules by the secretary.

(a) The secretary may propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code that are necessary and proper to effectuate the purposes of this chapter. The secretary may appoint or designate advisory councils of professionals in the areas of hospitals, nursing homes, barbers and beauticians, postmortem examinations, mental health and intellectual disability centers and any other areas necessary to advise the secretary on rules.

(b) The rules may include, but are not limited to, the regulation of:

(a) (1) Land usage endangering the public health: Provided, That no rules may be promulgated or enforced restricting the subdivision or development of any parcel of land within which the individual tracts, lots or parcels exceed two acres each in total surface area and which individual tracts, lots or parcels have an average frontage of not less than one hundred fifty feet even though the total surface area of the tract, lot or parcel equals or exceeds two acres in total surface area, and which tracts are sold, leased or utilized only as single-family dwelling units. Notwithstanding the provisions of this subsection, nothing in this section may be construed to abate the authority of the department to:

(1) (A) Restrict the subdivision or development of a tract for any more intense or higher density occupancy than a single-family dwelling unit;

(2) (B) Propose or enforce rules applicable to single-family dwelling units for single-family dwelling unit sanitary sewerage disposal systems; or

(3) (C) Restrict any subdivision or development which might endanger the public health, the sanitary condition of streams or sources of water supply;

(b) (2) The sanitary condition of all institutions and schools, whether public or private, public conveyances, dairies, slaughterhouses, workshops, factories, labor camps, all other places open to the general public and inviting public patronage or public assembly, or tendering to the public any item for human consumption and places where trades or industries are conducted;

(c) (3) Occupational and industrial health hazards, the sanitary conditions of streams, sources of water supply, sewerage facilities and plumbing systems and the qualifications of personnel connected with any of those facilities, without regard to whether the supplies or systems are publicly or privately owned; and the design of all water systems, plumbing systems, sewerage systems, sewage treatment plants, excreta disposal methods and swimming pools in this state, whether publicly or privately owned;

(d) (4) Safe drinking water, including:

(1) (A) The maximum contaminant levels to which all public water systems must conform in order to prevent adverse effects on the health of individuals and, if appropriate, treatment techniques that reduce the contaminant or contaminants to a level which will not adversely affect the health of the consumer. The rule shall contain provisions to protect and prevent contamination of wellheads and well fields used by public water supplies so that contaminants do not reach a level that would adversely affect the health of the consumer;

(2) (B) The minimum requirements for: Sampling and testing; system operation; public notification by a public water system on being granted a variance or exemption or upon failure to comply with specific requirements of this section and rules promulgated under this section; record keeping; laboratory certification; as well as procedures and conditions for granting variances and exemptions to public water systems from state public water systems rules; and

(3) (C) The requirements covering the production and distribution of bottled drinking water and may establish requirements governing the taste, odor, appearance and other consumer acceptability parameters of drinking water;

(e) (5) Food and drug standards, including cleanliness, proscription of additives, proscription of sale and other requirements in accordance with article seven of this chapter as are necessary to protect the health of the citizens of this state;

(f) (6) The training and examination requirements for emergency medical service attendants and emergency medical care technician-paramedics; the designation of the health care facilities, health care services and the industries and occupations in the state that must have emergency medical service attendants and emergency medical care technician-paramedics employed and the availability, communications and equipment requirements with respect to emergency medical service attendants and to emergency medical care technician-paramedics. Provided, That any Any regulation of emergency medical service attendants and emergency medical care technician-paramedics may not exceed the provisions of article four-c of this chapter;

(g) (7) The health and sanitary conditions of establishments commonly referred to as bed and breakfast inns. For purposes of this article, "bed and breakfast inn" means an establishment providing sleeping accommodations and, at a minimum, a breakfast for a fee. Provided, That the The secretary may not require an owner of a bed and breakfast providing sleeping accommodations of six or fewer rooms to install a restaurant-style or commercial food service facility. Provided, however, That the The secretary may not require an owner of a bed and breakfast providing sleeping accommodations of more than six rooms to install a restaurant-type or commercial food service facility if the entire bed and breakfast inn or those rooms numbering above six are used on an aggregate of two weeks or less per year;

(h) (8) Fees for services provided by the Bureau for Public Health including, but not limited to, laboratory service fees, environmental health service fees, health facility fees and permit fees;

(i) (9) The collection of data on health status, the health system and the costs of health care;

(j) (10) Opioid treatment programs duly licensed and operating under the requirements of chapter twenty-seven of this code.

(A) The Health Care Authority shall develop new certificate of need standards, pursuant to the provisions of article two-d of this chapter, that are specific for opioid treatment program facilities.

(B) No applications for a certificate of need for opioid treatment programs shall may be approved by the Health Care Authority as of the effective date of the 2007 amendments to this subsection. The secretary shall promulgate revised emergency rules to govern licensed programs: Provided, That there

(C) There is a moratorium on the licensure of new opioid treatment programs that do not have a certificate of need as of the effective date of the 2007 amendments to this subsection, which shall continue until the Legislature determines that there is a necessity for additional opioid treatment facilities in West Virginia.

(D) The secretary shall file revised emergency rules with the Secretary of State to regulate opioid treatment programs in compliance with subsections (1) through (9), inclusive, of the provisions of this section. Provided, however, That any Any opioid treatment program facility that has received a certificate of need pursuant to article two-d, of this chapter by the Health Care Authority shall be permitted to proceed to license and operate the facility.

(E) All existing opioid treatment programs shall be subject to monitoring by the secretary. All staff working or volunteering at opioid treatment programs shall complete the minimum education, reporting and safety training criteria established by the secretary. All existing opioid treatment programs shall be in compliance within one hundred eighty days of the effective date of the revised emergency rules as required herein. The revised emergency rules shall provide at a minimum:

(i) That the initial assessment prior to admission for entry into the opioid treatment program shall include an initial drug test to determine whether an individual is either opioid addicted or presently receiving methadone for an opioid addiction from another opioid treatment program.

(ii) The patient may be admitted to the opioid treatment program if there is a positive test for either opioids or methadone or there are objective symptoms of withdrawal, or both, and all other criteria set forth in the rule for admission into an opioid treatment program are met. Provided, That admission Admission to the program may be allowed to the following groups with a high risk of relapse without the necessity of a positive test or the presence of objective symptoms: Pregnant women with a history of opioid abuse, prisoners or parolees recently released from correctional facilities, former clinic patients who have successfully completed treatment but who believe themselves to be at risk of imminent relapse and HIV patients with a history of intravenous drug use.

(2) (iii) That within seven days of the admission of a patient, the opioid treatment program shall complete an initial assessment and an initial plan of care.

(iv) Subsequently That within thirty days after admission of a patient, the opioid treatment program shall develop a an individualized treatment plan of care by the thirtieth day after admission and attach the plan to the patient's chart no later than five days after such the plan is developed. The opioid treatment program shall follow guidelines established by a nationally recognized authority approved by the secretary and include a recovery model in the individualized treatment plan of care. The treatment plan is to reflect that detoxification is an option for treatment and supported by the program; that under the detoxification protocol the strength of maintenance doses of methadone should decrease over time, the treatment should be limited to a defined period of time, and participants are required to work toward a drug-free lifestyle.

(3) (v) That each opioid treatment program shall report and provide statistics to the Department of Health and Human Resources at least semiannually which includes the total number of patients; the number of patients who have been continually receiving methadone treatment in excess of two years, including the total number of months of treatment for each such patient; the state residency of each patient; the number of patients discharged from the program, including the total months in the treatment program prior to discharge and whether the discharge was for:

(A) Termination or disqualification;

(B) Completion of a program of detoxification;

(C) Voluntary withdrawal prior to completion of all requirements of detoxification as determined by the opioid treatment program; or

(D) Successful completion of the individualized treatment care plan; or

(E) An unexplained reason.

(4) (vi) That random drug testing of all patients shall be conducted during the course of treatment at least monthly. For purposes of these rules, “random drug testing” shall mean means that each patient of an opioid treatment program facility has a statistically equal chance of being selected for testing at random and at unscheduled times. Any refusal to participate in a random drug test shall be considered a positive test. Provided, That nothing Nothing contained in this section or the legislative rules promulgated in conformity herewith will preclude any opioid treatment program from administering such additional drug tests as determined necessary by the opioid treatment program.

(5) (vii) That all random drug tests conducted by an opioid treatment program shall, at a minimum, test for the following:

(A) Opiates, including oxycodone at common levels of dosing;

(B) Methadone and any other medication used by the program as an intervention;

(D) Cocaine;

(E) Methamphetamine or amphetamine; and

(F) Tetrahydrocannabinol, delta-9-tetrahydrocannabinol or dronabinol or other similar substances; or

(G) Other drugs determined by community standards, regional variation or clinical indication.

(viii) A That a positive drug test is a test that results in the presence of any drug or substance listed in this schedule and any other drug or substance prohibited by the opioid treatment program. (6) That a A positive drug test result after the first six months in an opioid treatment program shall result in the following:

(A) Upon the first positive drug test result, the opioid treatment program shall:

(1) Provide mandatory and documented weekly counseling of no less than thirty minutes to the patient, which shall include weekly meetings with a counselor who is licensed, certified or enrolled in the process of obtaining licensure or certification in compliance with the rules and on staff at the opioid treatment program;

(2) Immediately revoke the take home methadone privilege for a minimum of thirty days; and

(B) Upon a second positive drug test result within six months of a previous positive drug test result, the opioid treatment program shall:

(1) Provide mandatory and documented weekly counseling of no less than thirty minutes, which shall include weekly meetings with a counselor who is licensed, certified or enrolled in the process of obtaining licensure or certification in compliance with the rules and on staff at the opioid treatment program;

(2) Immediately revoke the take-home methadone privilege for a minimum of sixty days; and

(3) Provide mandatory documented treatment team meetings with the patient.

(2) Immediately revoke the take-home methadone privilege for a minimum of one hundred twenty days; and

(3) Provide mandatory and documented treatment team meetings with the patient which will include, at a minimum: The need for continuing treatment; a discussion of other treatment alternatives; and the execution of a contract with the patient advising the patient of discharge for continued positive drug tests.

(D) Upon a fourth positive drug test within a six-month period, the patient shall be immediately discharged from the opioid treatment program or, at the option of the patient, shall immediately be provided the opportunity to participate in a twenty- one day detoxification plan, followed by immediate discharge from the opioid treatment program: Provided, That testing positive solely for tetrahydrocannabinol, delta-9-tetrahydrocannabinol or dronabinol or similar substances shall not serve as a basis for discharge from the program.

(7) (ix) That the opioid treatment program must report and provide statistics to the Department of Health and Human Resources demonstrating compliance with the random drug test rules, including: confirmation that:

(A) The Confirmation that the random drug tests were truly random in regard to both the patients tested and to the times random drug tests were administered by lottery or some other objective standard so as not to prejudice or protect any particular patient;

(B) Confirmation that the random drug tests were performed at least monthly for all program participants;

(B) (C) The total number and the number of positive results; and

(8) (x) That all opioid treatment facilities be open for business seven days per week; Provided, That however, the opioid treatment center may be closed for eight holidays and two training days per year. During all operating hours, every opioid treatment program shall have a health care professional as defined by rule promulgated by the secretary actively licensed in this state present and on duty at the treatment center and a physician actively licensed in this state available for consultation.

(9) (xi) That the Office of Health Facility Licensure and Certification develop policies and procedures in conjunction with the Board of Pharmacy that will allow physicians treating patients through an opioid treatment program access to the Prescription Drug Registry Controlled Substances Monitoring Program database maintained by the Board of Pharmacy at the patient’s intake, before administration of methadone or other treatment in an opioid treatment program, after the initial thirty days of treatment, prior to any take-home medication being granted, after any positive drug test, and at each ninety-day treatment review to ensure the patient is not seeking prescription medication from multiple sources. The results obtained from the Controlled Substances Monitoring Program database shall be maintained with the patient records.

(xii) That each opioid treatment program shall establish a peer review committee, with at least one physician member, to review whether the program is following guidelines established by a nationally recognized authority approved by the secretary. The secretary shall prescribe the procedure for evaluation by the peer review. Each opioid treatment program shall submit a report of the peer review results to the secretary on a quarterly basis.

(k) (xii) The secretary shall propose a rule for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code for the distribution of state aid to local health departments and basic public health services funds.

(1) The rule shall include the following provisions:

(A) Base allocation amount for each county;

(B) Establishment and administration of an emergency fund of no more than two percent of the total annual funds of which unused amounts are to be distributed back to local boards of health at the end of each fiscal year;

(D) Distribution of remaining funds on a per capita weighted population approach which factors coefficients for poverty, health status, population density and health department interventions for each county and a coefficient which encourages counties to merge in the provision of public health services;

(E) A hold-harmless provision to provide that each local health department receives no less in state support for a period of four years beginning in the 2009 budget year.

(2) The Legislature finds that an emergency exists and, therefore, the secretary shall file an emergency rule to implement the provisions of this section pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code. The emergency rule is subject to the prior approval of the Legislative Oversight Commission on Health and Human Resources Accountability prior to filing with the Secretary of State.

(l) (xiv) Other health-related matters which the department is authorized to supervise and for which the rule-making authority has not been otherwise assigned.

ARTICLE 5H. CHRONIC PAIN CLINIC LICENSING ACT.

§16-5H-1. Purpose and short title.

This article shall be known as the Chronic Pain Clinic Licensing Act. The purpose of this act is to establish licensing requirements for facilities that treat patients for chronic pain management in order to ensure that patients may be lawfully treated for chronic pain by physicians in facilities that comply with oversight requirements developed by the Department of Health and Human Resources.

§16-5H-2. Definitions.

(a) “Chronic pain” means pain that has persisted after reasonable medical efforts have been made to relieve the pain or cure its cause and that has continued, either continuously or episodically, for longer than three continuous months. For purposes of this article, “chronic pain” does not include pain associated with a terminal condition or with a progressive disease that, in the normal course of progression, may reasonably be expected to result in a terminal condition.

(b) “Director” means the Director of the Office of Health Facility Licensure and Certification within the Office of the Inspector General.

(c) “Owner” means any person, partnership, association or corporation listed as the owner of a pain management clinic on the licensing forms required by this article.

(d) “Pain management clinic” means all privately owned pain management clinics, facilities or offices not otherwise exempted from this article and which meets both of the following criteria:

(1) Where in any month more than fifty percent of patients of the prescribers or dispensers are prescribed or dispensed opioids or other controlled substances specified in rules promulgated pursuant to this article for chronic pain resulting from non-malignant conditions;

(2) The facility meets any other identifying criteria established by the secretary by rule.

(e) “Physician” means an individual authorized to practice medicine or surgery or osteopathic medicine or surgery in this state.

(f) “Prescriber” means an individual who is authorized by law to prescribe drugs or drug therapy related devices in the course of the individual’s professional practice, including only a medical or osteopathic physician authorized to practice medicine or surgery; a physician assistant or osteopathic physician assistant who holds a certificate to prescribe drugs; or an advanced nurse practitioner who holds a certificate to prescribe.

(g) “Secretary” means the Secretary of the West Virginia Department of Health and Human Resources. The secretary may define in rules any term or phrase used in this article which is not expressly defined.

§16-5H-3. Pain management clinics to obtain license; application; fees and inspections.

(a) No person, partnership, association or corporation may operate a pain management clinic without first obtaining a license from the secretary in accordance with the provisions of this article and the rules lawfully promulgated pursuant to this article.

(b) Any person, partnership, association or corporation desiring a license to operate a pain management clinic in this state shall file with the Office of Health Facility Licensure and Certification an application in such form as the secretary shall prescribe and furnish accompanied by a fee to be determined by the secretary.

(c) The Director of the Office of Health Facility Licensure and Certification or his or her designee shall inspect each facility prior to issuing a license and review all documentation submitted with the application. The secretary shall issue a license if the facility is in compliance with the provisions of this article and with the rules lawfully promulgated pursuant to this article.

(d) A license shall expire one year from the date of issuance. Sixty days prior to the expiration date, an application for renewal shall be submitted on forms furnished by the secretary. A license shall be renewed if the secretary determines that the applicant is in compliance with this article and with all rules promulgated pursuant to this article. A license issued to one facility pursuant to this article is not transferable or assignable. A change of ownership of a licensed pain management clinic requires submission of a new application.

(e) The secretary or his or her designee shall inspect on a periodic basis all pain management clinics that are subject to this article and all rules adopted pursuant to this article to ensure continued compliance.

§16-5H-4. Operational requirements.

(a) Any person, partnership, association or corporation that desires to operate a pain management clinic in this state must submit to the director documentation that the facility meets all of the following requirements:

(1) The clinic shall be licensed in this state with the secretary, the Secretary of State, the State Tax Department and all other applicable business or license entities.

(2) The application shall list all owners of the clinic. At least one owner shall be a physician actively licensed to practice medicine, surgery or osteopathic medicine or surgery in this state. The clinic shall notify the secretary of any change in ownership within ten days of the change and must submit a new application within the time frame prescribed by the secretary.

(3) Each pain management clinic shall designate a physician owner who shall practice at the clinic and who will be responsible for the operation of the clinic. Within ten days after termination of a designated physician, the clinic shall notify the director of the identity of another designated physician for that clinic. Failing to have a licensed designated physician practicing at the location of the clinic may be the basis for a suspension or revocation of the clinic license. The designated physician shall:

(A) Have a full, active and unencumbered license to practice medicine, surgery or osteopathic medicine or surgery in this state:

(B) Meet one of the following training requirements:

(i) Complete a pain medicine fellowship that is accredited by the Accreditation Council for Graduate Medical Education or such other similar program as may be approved by the secretary; or

(ii) Hold current board certification by the American Board of Pain Medicine or current board certification by the American Board of Anesthesiology or such other board certification as may be approved by the secretary.

(D) Be responsible for complying with all requirements related to the licensing and operation of the clinic;

(E) Supervise, control and direct the activities of each individual working or operating at the facility, including any employee, volunteer or individual under contract, who provides treatment of chronic pain at the clinic or is associated with the provision of that treatment. The supervision, control and direction shall be provided in accordance with rules promulgated by the secretary.

(4) All persons employed by the facility shall comply with the requirements for the operation of a pain management clinic established by this article or by any rule adopted pursuant to this article.

(5) No person may own or be employed by or associated with a pain management clinic who has previously been convicted of, or pleaded guilty to, any felony in this state or another state or territory of the United States. All owners, employees, volunteers or associates of the clinic shall undergo a criminal records check prior to operation of the clinic or engaging in any work, paid or otherwise. The application for license shall include copies of the background check for each anticipated owner, physician, employee, volunteer or associate. The secretary shall review the results of the criminal records check and may deny licensure for any violation of this requirement. The facility shall complete a criminal records check on any subsequent owner, physician, employee, volunteer or associate of the clinic and submit the results to the secretary for continued review.

(6) The clinic may not be owned by, nor may it employ or associate with, any physician or prescriber:

(A) Whose Drug Enforcement Administration number has ever been revoked;

(B) Whose application for a license to prescribe, dispense or administer a controlled substance has been denied by any jurisdiction; or

(C) Who, in any jurisdiction of this state or any other state or territory of the United States, has been convicted of or plead guilty or nolo contendere to an offense that constitutes a felony for receipt of illicit and diverted drugs, including controlled substances, as defined by section one hundred one, article one, chapter sixty-a of this code.

(7) A person may not dispense any medication, including a controlled substance, as defined by section one hundred one, article one, chapter sixty-a of this code, on the premises of a licensed pain management clinic unless he or she is a physician or pharmacist licensed in this state. Prior to dispensing or prescribing controlled substances, as defined by section one hundred one, article one, chapter sixty-a of this code, at a pain management clinic, the treating physician must access the Controlled Substances Monitoring Program database maintained by the Board of Pharmacy to ensure the patient is not seeking controlled substances from multiple sources. If the patient receives ongoing treatment, the physician shall also review the Controlled Substances Monitoring Program database at each patient examination or at least every ninety days. The results obtained from the Controlled Substances Monitoring Program database shall be maintained with the patient’s medical records.

(8) Each clinic location shall be licensed separately, regardless of whether the clinic is operated under the same business name or management as another clinic.

(9) A pain management clinic shall not dispense to any patient more than a seventy-two-hour supply of a controlled substance, as defined by section one hundred one, article one, chapter sixty-a of this code.

(10) The pain management clinic shall develop patient protocols, treatment plans and profiles, as prescribed by the secretary by rule, and which shall include, but not be limited by, the following guidelines:

(A) When a physician diagnoses an individual as having chronic pain, the physician may treat the pain by managing it with medications in amounts or combinations that may not be appropriate when treating other medical conditions. The physician’s diagnosis shall be made after having the individual evaluated by one or more other physicians who specialize in the treatment of the area, system or organ of the body perceived as the source of the pain unless the individual has been previously diagnosed as suffering from chronic pain and is referred to the pain management clinic by such diagnosing physician. The physician’s diagnosis and treatment decisions shall be made according to accepted and prevailing standards for medical care.

(B) The physician shall maintain a record of all of the following:

(i) Medical history and physical examination of the individual;

(ii) The diagnosis of chronic pain, including signs, symptoms and causes;

(iii) The plan of treatment proposed, the patient’s response to the treatment and any modification to the plan of treatment;

(iv) The dates on which any medications were prescribed, dispensed or administered, the name and address of the individual to or for whom the medications were prescribed, dispensed or administered and the amounts and dosage forms for the drugs prescribed, dispensed or administered;

(v) A copy of the report made by the physician to whom referral for evaluation was made.

(C) A physician, physician assistant, certified registered nurse anesthetist or advanced nurse practitioner shall perform a physical examination of a patient on the same day that the physician initially prescribes, dispenses or administers a controlled substance to a patient and at least four times a year thereafter at a pain management clinic according to accepted and prevailing standards for medical care.

(D) A physician authorized to prescribe controlled substances who practices at a pain management clinic is responsible for maintaining the control and security of his or her prescription blanks and any other method used for prescribing controlled substance pain medication. The physician shall comply with all state and federal requirements for tamper-resistant prescription paper. In addition to any other requirements imposed by statute or rule, the physician shall notify the secretary in writing within twenty-four hours following any theft or loss of a prescription blank or breach of any other method for prescribing pain medication.

(c) Upon satisfaction that an applicant has met all of the requirements of this article, the secretary may issue a license to operate a pain management clinic. An entity that obtains this license may possess, have custody or control of, and dispense drugs designated as Schedule II or Schedule III in sections two hundred six or two hundred eight, article two, chapter sixty-a of this code.

§16-5H-5. Exemptions.

(a) The following facilities are not pain management clinics subject to the requirements of this article:

(1) A facility that is affiliated with an accredited medical school at which training is provided for medical or osteopathic students, residents or fellows, podiatrists, dentists, nurses, physician assistants, veterinarians or any affiliated facility to the extent that it participates in the provision of the instruction;

(2) A facility that does not prescribe or dispense controlled substances for the treatment of chronic pain;

(3) A hospital licensed in this state, a facility located on the campus of a licensed hospital that is owned, operated or controlled by that licensed hospital, and an ambulatory health care facility as defined by section two, article two-d, chapter 16 that is owned, operated or controlled by a licensed hospital;

(4) A physician practice owned or controlled, in whole or in part, by a licensed hospital or by an entity that owns or controls, in whole or in part, one or more licensed hospitals;

(5) A hospice program licensed in this state;

(6) A nursing home licensed in this state;

(7) An ambulatory surgical facility as defined by section two, article two-d, chapter sixteen; and

(8) A facility conducting clinical research that may use controlled substances in studies approved by a hospital-based institutional review board or an institutional review board accredited by the association for the accreditation of human research protection programs.

(b) Any facility that is not included in this section may petition to the secretary for an exemption from the requirements of this article. All such petitions are subject to the administrative procedures requirements of chapter twenty-nine-a of this code.

§16-5H-6. Inspection.

(a) The Office of Health Facility Licensure and Certification shall inspect each pain management clinic annually, including a review of the patient records, to ensure that it complies with this article and the applicable rules.

(b) During an onsite inspection, the inspector shall make a reasonable attempt to discuss each violation with the designated physician or other owners of the pain management clinic before issuing a formal written notification.

(c) Any action taken to correct a violation shall be documented in writing by the designated physician or other owners of the pain management clinic and verified by follow-up visits by the Office of Health Facility Licensure and Certification.

§16-5H-7. Suspension; revocation.

(a) The secretary may suspend or revoke a license issued pursuant to this article if the provisions of this article or of the rules promulgated pursuant to this article are violated. The secretary may revoke a clinic’s license and prohibit all physicians associated with that pain management clinic from practicing at the clinic location based upon an annual or periodic inspection and evaluation.

(b) Before any such license is suspended or revoked, however, written notice shall be given the licensee, stating the grounds of the complaint, and the date, time and place set for the hearing on the complaint, which date shall not be less than thirty days from the time notice is given. The notice shall be sent by certified mail to the licensee at the address where the pain management clinic concerned is located. The licensee shall be entitled to be represented by legal counsel at the hearing.

(c) If a license is revoked as herein provided, a new application for a license shall be considered by the secretary if, when and after the conditions upon which revocation was based have been corrected and evidence of this fact has been furnished. A new license shall then be granted after proper inspection has been made and all provisions of this article and rules promulgated pursuant to this article have been satisfied.

(d) All of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern any hearing authorized and required by the provisions of this article and the administrative procedure in connection therewith.

(e) Any applicant or licensee who is dissatisfied with the decision of the secretary as a result of the hearing provided in this section may, within thirty days after receiving notice of the decision, appeal the decision to the Circuit Court of Kanawha County, in term or in vacation, for judicial review of the decision.

(f) The court may affirm, modify or reverse the decision of the secretary and either the applicant or licensee or the secretary may appeal from the court's decision to the Supreme Court of Appeals.

(g) If the license of a pain management clinic is revoked or suspended, the designated physician of the clinic, any other owner of the clinic or the owner or lessor of the clinic property shall cease to operate the facility as a pain management clinic as of the effective date of the suspension or revocation. The owner or lessor of the clinic property is responsible for removing all signs and symbols identifying the premises as a pain management clinic within thirty days.

(h) Upon the effective date of the suspension or revocation, the designated physician of the pain management clinic shall advise the secretary and the Board of Pharmacy of the disposition of all drugs located on the premises. The disposition is subject to the supervision and approval of the secretary. Drugs that are purchased or held by a pain management clinic that is not licensed may be deemed adulterated.

(i) If the license of a pain management clinic is suspended or revoked, any person named in the licensing documents of the clinic, including persons owning or operating the pain management clinic, may not, as an individual or as part of a group, apply to operate another pain management clinic for five years after the date of suspension or revocation.

(j) The period of suspension for the license of a pain management clinic shall be prescribed by the secretary, but may not exceed one year.

§16-5H-8. Violations; penalties; injunction.

(a) Any person, partnership, association or corporation which establishes, conducts, manages or operates a pain management clinic without first obtaining a license therefor as herein provided, or which violates any provisions of this article or any rule lawfully promulgated pursuant to this article, shall be assessed a civil penalty by the secretary in accordance with this subsection. Each day of continuing violation after conviction shall be considered a separate violation:

(1) If a pain management clinic or any owner or designated physician is found to be in violation of any provision of this article, unless otherwise noted herein, the secretary may suspend or revoke the clinic’s license.

(2) If the clinic’s designated physician knowingly and intentionally misrepresents actions taken to correct a violation, the secretary may impose a civil penalty not to exceed $10,000, and, in the case of an owner-operated pain management clinic, revoke or deny a pain management clinic’s license.

(3) If an owner or designated physician of a pain management clinic concurrently operates an unlicensed pain management clinic, the secretary may impose a civil penalty upon the owner or physician, or both, not to exceed $5,000 per day.

(4) If the owner of a pain management clinic that requires a license under this article fails to apply for a new license for the clinic upon a change-of-ownership and operates the clinic under the new ownership, the secretary may impose a civil penalty not to exceed $5,000.

(5) If a physician knowingly operates, owns or manages an unlicensed pain management clinic that is required to be licensed pursuant to this article; knowingly prescribes or dispenses or causes to be prescribed or dispensed, controlled substances in an unlicensed pain management clinic that is required to be licensed; or licenses a pain management clinic through misrepresentation or fraud; procures or attempts to procure a license for a pain management clinic for any other person by making or causing to be made any false representation, the secretary may assess a civil penalty of not more than $20,000. The penalty may be in addition to or in lieu of any other action that may be taken by the secretary or any other board, court or entity.

(b) Notwithstanding the existence or pursuit of any other remedy, the secretary may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, or corporation to restrain or prevent the establishment, conduct, management or operation of any pain management clinic or violation of any provisions of this article or any rule lawfully promulgated thereunder without first obtaining a license therefor in the manner hereinbefore provided.

(c) In determining whether a penalty is to be imposed and in fixing the amount of the penalty, the secretary shall consider the following factors:

(1) The gravity of the violation, including the probability that death or serious physical or emotional harm to a patient has resulted, or could have resulted, from the pain management clinic’s actions or the actions of the designated or practicing physician, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated;

(2) What actions, if any, the owner or designated physician took to correct the violations;

(3) Whether there were any previous violations at the pain management clinic; and

(4) The financial benefits that the pain management clinic derived from committing or continuing to commit the violation.

(d) Upon finding that a physician has violated the provisions of this article or rules adopted pursuant to this article, the secretary shall provide notice of the violation to the applicable licensing board.

§16-5H-9. Rules.

(a) The Secretary of the Department of Health and Human Resources, in collaboration with the West Virginia Board of Medicine and the West Virginia Board of Osteopathy, shall promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code for the licensure of pain management clinics to ensure adequate care, treatment, health, safety, welfare and comfort of patients at these facilities. These rules shall include, at a minimum:

(1) The process to be followed by applicants seeking a license;

(2) The qualifications and supervision of licensed and nonlicensed personnel at pain management clinics and training requirements for all facility health care practitioners who are not regulated by another board;

(3) The provision and coordination of patient care, including the development of a written plan of care;

(4) The management, operation, staffing and equipping of the pain management clinic;

(5) The clinical, medical, patient and business records kept by the pain management clinic;

(6) The procedures for inspections and for the review of utilization and quality of patient care;

(7) The standards and procedures for the general operation of a pain management clinic, including facility operations, physical operations, infection control requirements, health and safety requirements and quality assurance;

(8) Identification of drugs that may be used to treat chronic pain that identify a facility as a pain management clinic, including, at a minimum, tramadol and carisoprodol;

(9) Any other criteria that identify a facility as a pain management clinic;

(10) The standards and procedures to be followed by an owner in providing supervision, direction and control of individuals employed by or associated with a pain management clinic;

(11) Data collection and reporting requirements; and

(12) Such other standards or requirements as the secretary determines are appropriate.

(b) The rules authorized by this section may be filed as emergency rules if deemed necessary to promptly effectuate the purposes of this article.

§16-5h-10. Advertisement disclosure.

Any advertisement made by or on behalf of a pain management clinic through public media, such as a telephone directory, medical directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication, concerning the treatment of chronic pain, as defined in section two of this article, shall include the name of, at a minimum, one physician owner responsible for the content of the advertisement.

CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO STATE BOARDS.

§30-1-7a. Continuing education.

(a) Each board referred to in this chapter shall establish continuing education requirements as a prerequisite to license renewal. Each board shall develop continuing education criteria appropriate to its discipline, which shall include, but not be limited to, course content, course approval, hours required and reporting periods.

(b) (1) Notwithstanding any other provision of this code or the provision of any rule to the contrary, each person issued a license to practice medicine and surgery or a license to practice podiatry or a license as a physician assistant by the West Virginia Board of Medicine, each person licensed as a pharmacist by the West Virginia Board of Pharmacy, each person licensed to practice registered professional nursing or licensed as an advanced nurse practitioner by the West Virginia Board of Examiners for Registered Professional Nurses, each person licensed as a licensed practical nurse by the West Virginia State Board of Examiners for licensed Practical Nurses and each person licensed to practice medicine and surgery as an osteopathic physician and surgeon or certified as an osteopathic physician assistant by the West Virginia Board of Osteopathy shall complete two hours of continuing education coursework in the subject of end-of-life care including pain management during each continuing education reporting period through the reporting period ending June 30, 2005. The two hours shall be part of the total hours of continuing education required by each board by rule and not two additional hours.

(2) Effective as of the reporting period beginning July 1, 2005, the coursework requirement imposed by this subsection will become a one-time requirement, and all licensees who have not completed the coursework requirement shall complete the coursework requirement prior to his or her first license renewal.

(b) Notwithstanding any other provision of this code or the provision of any rule to the contrary, each person issued a license to practice medicine and surgery or a license to practice podiatry or licensed as a physician assistant by the West Virginia Board of Medicine, each person issued a license to practice dentistry by the West Virginia Board of Dental Examiners, each person issued a license to practice optometry by the West Virginia Board of Optometry, each person licensed as a pharmacist by the West Virginia Board of Pharmacy, each person licensed to practice registered professional nursing or licensed as an advanced nurse practitioner by the West Virginia Board of Examiners for Registered Professional Nurses, each person licensed as a licensed practical nurse by the West Virginia State Board of Examiners for Licensed Practical Nurses and each person licensed to practice medicine and surgery as an osteopathic physician and surgeon or licensed or certified as an osteopathic physician assistant by the West Virginia Board of Osteopathy shall complete drug diversion training and best practice prescribing of controlled substances training, as the trainings are established by his or her respective licensing board, if that person prescribes, administers, or dispenses a controlled substance, as that term is defined in section one hundred one, article one, chapter sixty-a of this code.

(1) Notwithstanding any other provision of this code or the provision of any rule to the contrary, the West Virginia Board of Medicine, the West Virginia Board of Dental Examiners, the West Virginia Board of Optometry, the West Virginia Board of Pharmacy, the West Virginia Board of Examiners for Registered Professional Nurses, the West Virginia State Board of Examiners for Licensed Practical Nurses and the West Virginia Board of Osteopathy shall establish continuing education requirements and criteria appropriate to their respective discipline on the subject of drug diversion training and best practice prescribing of controlled substances training for each person issued a license or certificate by their respective board who prescribes, administers or dispenses a controlled substance, as that term is defined in section one hundred one, article one, chapter sixty-a of this code, and shall develop a certification form pursuant to subdivision (b)(2) of this section.

(2) Each person who receives his or her initial license or certificate from any of the boards set forth in subsection (b) shall complete the continuing education requirements set forth in subsection (b) within one year of receiving his or her initial license from that board and each person licensed or certified by any of the boards set forth in subsection (b) who has held his or her license or certificate for longer than one year shall complete the continuing education requirements set forth in subsection (b) as a prerequisite to each license renewal: Provided, That a person subject to subsection (b) may waive the continuing education requirements for license renewal set forth in subsection (b) if he or she completes and submits to his or her licensing board a certification form developed by his or her licensing board attesting that he or she has not prescribed, administered, or dispensed a controlled substance, as that term is defined in section one hundred one, article one, chapter sixty-a of this code, during the entire applicable reporting period.

ARTICLE 5. PHARMACISTS, PHARMACY TECHNICIANS, PHARMACY INTERNS AND PHARMACIES.

§30-5-3. When licensed pharmacist required; person not licensed pharmacist, pharmacy technician or licensed intern not to compound prescriptions or dispense poisons or narcotics; licensure of interns; prohibiting the dispensing of prescription orders in absence of practitioner-patient relationship.

(a) It is unlawful for any person not a pharmacist, or who does not employ a pharmacist, to conduct any pharmacy or store for the purpose of retailing, compounding or dispensing prescription drugs or prescription devices.

(b) It is unlawful for the proprietor of any store or pharmacy, any ambulatory health care facility, as that term is defined in section one, article five-b, chapter sixteen of this code, that offers pharmaceutical care, or a facility operated to provide health care or mental health care services free of charge or at a reduced rate and that operates a charitable clinic pharmacy to permit any person not a pharmacist to compound or dispense prescriptions or prescription refills or to retail or dispense the poisons and narcotic drugs named in sections two, three and six, article eight, chapter sixteen of this code: Provided, That a licensed intern may compound and dispense prescriptions or prescription refills under the direct supervision of a pharmacist: Provided, however, That registered pharmacy technicians may assist in the preparation and dispensing of prescriptions or prescription refills, including, but not limited to, reconstitution of liquid medications, typing and affixing labels under the direct supervision of a licensed pharmacist.

(c) It is the duty of a pharmacist or employer who employs an intern to license the intern with the board within ninety days after employment. The board shall furnish proper forms for this purpose and shall issue a certificate to the intern upon licensure.

(d) The experience requirement for licensure as a pharmacist shall be computed from the date certified by the supervising pharmacist as the date of entering the internship. If the internship is not registered with the Board of Pharmacy, then the intern shall receive no credit for such the experience when he or she makes application for examination for licensure as a pharmacist: Provided, That credit may be given for such the unregistered experience if an appeal is made and evidence produced showing experience was obtained but not registered and that failure to register the internship experience was not the fault of the intern.

(e) An intern having served part or all of his or her internship in a pharmacy in another state or foreign country shall be given credit for the same when the affidavit of his or her internship is signed by the pharmacist under whom he or she served, and it shows the dates and number of hours served in the internship and when the affidavit is attested by the secretary of the State Board of Pharmacy of the state or country where the internship was served.

(f) Up to one third of the experience requirement for licensure as a pharmacist may be fulfilled by an internship in a foreign country.

(g) No pharmacist may compound or dispense any prescription order when he or she has knowledge that the prescription was issued by a practitioner without establishing an ongoing a valid practitioner-patient relationship. An online or telephonic evaluation by questionnaire, or an online or telephonic consultation, is inadequate to establish an appropriate a valid practitioner-patient relationship: Provided, That this prohibition does not apply:

(1) In a documented emergency;

(2) In an on-call or cross-coverage situation; or

(3) Where patient care is rendered in consultation with another practitioner who has an ongoing relationship with the patient and who has agreed to supervise the patient's treatment, including the use of any prescribed medications.

CHAPTER 60A. UNIFORM CONTROLLED SUBSTANCES ACT.

ARTICLE 3. REGULATION OF MANUFACTURE, DISTRIBUTION AND DISPENSING OF CONTROLLED SUBSTANCES.

§60A-3-308. Prescriptions.

(a) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, no controlled substance in Schedule II may be dispensed without the lawful prescription of a practitioner.

(b) In emergency situations, as defined by rule of the said appropriate department, board or agency, Schedule II drugs may be dispensed upon oral prescription of a practitioner, reduced promptly to writing and filed by the pharmacy. Prescription shall be retained in conformity with the requirements of section three hundred six of this article. No prescription for a Schedule II substance may be refilled.

(c) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in Schedule III or IV, which is a prescription drug as determined under appropriate state or federal statute, shall not be dispensed without a lawful prescription of a practitioner. The prescription shall not be filled or refilled more than six months after the date thereof or be refilled more than five times unless renewed by the practitioner.

(d) (1) A controlled substance included in Schedule V shall not be distributed or dispensed other than for a medicinal purpose: Provided, That buprenorphine shall be dispensed only by prescription pursuant to subsections (a), (b) and (c) of this section: Provided, however, That the controlled substances included in subsection (e), section two hundred twelve, article two of this chapter shall be dispensed, sold or distributed only by a physician, in a pharmacy by a pharmacist or pharmacy technician, or health care professional.

(2) If the substance described in subsection (e), section two hundred twelve, article two of this chapter is dispensed, sold or distributed in a pharmacy:

(A) The substance shall be dispensed, sold or distributed only by a pharmacist or a pharmacy technician; and

(B) Any person purchasing, receiving or otherwise acquiring any such substance shall produce a photographic identification issued by a state or federal governmental entity reflecting his or her date of birth.

(e) Notwithstanding any provision of this code to the contrary, on or after September 1, 2012, any practitioner or entity prescribing or dispensing a combination of buprenorphine and naloxone to treat opioid addiction shall only prescribe or dispense said product in the form of sublingual film unless the sublingual film is clinically contraindicated. If the prescriber or dispenser determines that sublingual film is contraindicated he or she shall document the reasons for not dispensing sublingual film in the patient’s file or chart.

ARTICLE 9. CONTROLLED SUBSTANCES MONITORING.

§60A-9-3. Reporting system requirements; implementation; central repository requirement.

(a) On or before September 1, 2002, the Board of Pharmacy shall implement a program wherein a central repository is established and maintained which shall contain such information as is required by the provisions of this article regarding Schedule II, III and IV controlled substance prescriptions written or filled in this state. In implementing this program, the Board of Pharmacy shall consult with the West Virginia State Police, the licensing boards of practitioners affected by this article and affected practitioners.

(b) The program authorized by subsection (a) of this section shall be designed to minimize inconvenience to patients, prescribing practitioners and pharmacists while effectuating the collection and storage of the required information. The State Board of Pharmacy shall allow reporting of the required information by electronic data transfer where feasible, and where not feasible, on reporting forms promulgated by the Board of Pharmacy. The information required to be submitted by the provisions of this article shall be required to be filed no more frequently than once a week within twenty-four hours.

(c) (1) The State Board of Pharmacy shall provide for the electronic transmission of the information required to be provided by this article by and through the use of a toll-free telephone line.

(2) A dispenser, who does not have an automated record-keeping system capable of producing an electronic report in the established format may request a waiver from electronic reporting. The request for a waiver shall be made to the State Board of Pharmacy in writing and shall be granted if the dispenser agrees in writing to report the data by submitting a completed "Pharmacy Universal Claim Form" as defined by legislative rule.

§60A-9-4. Required information.

(a) Whenever a medical services provider dispenses a controlled substance listed in Schedule II, III or IV, as established under the provisions of article two of this chapter or whenever a prescription for the controlled substance is filled by: (i) A pharmacist or pharmacy in this state; (ii) a hospital, or other health care facility, for out-patient use; or (iii) a pharmacy or pharmacist licensed by the Board of Pharmacy, but situated outside this state for delivery to a person residing in this state, the medical services provider, health care facility, pharmacist or pharmacy shall, in a manner prescribed by rules promulgated by the Board of Pharmacy under this article, report the following information, as applicable:

(1) The name, address, pharmacy prescription number and Drug Enforcement Administration controlled substance registration number of the dispensing pharmacy or the dispensing physician or dentist;

(2) The full legal name, address and birth date of the person for whom the prescription is written;

(3) The name, address and Drug Enforcement Administration controlled substances registration number of the practitioner writing the prescription;

(4) The name and national drug code number of the Schedule II, III and IV controlled substance dispensed;

(5) The quantity and dosage of the Schedule II, III and IV controlled substance dispensed;

(6) The date the prescription was written and the date filled; and

(7) The number of refills, if any, authorized by the prescription;

(8) If the prescription being dispensed is being picked up by someone other than the patient on behalf of the patient, the full legal name, address and birth date of the person picking up the prescription as set forth on the person’s government-issued photo identification card shall be retained in either print or electronic form until such time as otherwise directed by rule promulgated by the board of pharmacy; and

(9) The source of payment for the controlled substance dispensed.

(b) The Board of Pharmacy may prescribe by rule promulgated under this article the form to be used in prescribing a Schedule II, III and IV substance if, in the determination of the board, the administration of the requirements of this section would be facilitated.

(c) Products regulated by the provisions of article ten of this chapter shall be subject to reporting pursuant to the provisions of this article to the extent set forth in said article.

(d) Reporting required by this section is not required for a drug administered directly to a patient or a drug dispensed by a practitioner at a facility licensed by the state. Reporting is, however, required by this section for a drug dispensed to a patient by a practitioner: Provided, That the quantity dispensed is limited to may not exceed an amount adequate to treat the patient for a maximum of seventy-two hours with no greater than two seventy-two-hour cycles dispensed in any fifteen-day period of time.

§60A-9-4a. Verification of identity.

Prior to releasing a Schedule II, III or IV controlled substance sold at retail, a pharmacist or pharmacy shall verify the full legal name, address and birth date of the person receiving or otherwise acquiring the controlled substance by requiring the presentation of a valid government-issued photo identification card. This information shall be reported in accordance with the provisions of this article information shall be retained in either print or electronic form until such time as otherwise directed by rule promulgated by the board of pharmacy.

§60A-9-5. Confidentiality; limited access to records; period of retention; no civil liability for required reporting.

(a) (1) The information required by this article to be kept by the State Board of Pharmacy is confidential and not subject to the provisions of chapter twenty-nine-b of this code or obtainable as discovery in civil matters absent a court order and is open to inspection only by inspectors and agents of the State Board of Pharmacy, members of the West Virginia State Police expressly authorized by the Superintendent of the West Virginia State Police to have access to the information, authorized agents of local law-enforcement agencies as a member members of a federally affiliated drug task force, authorized agents of the federal Drug Enforcement Administration, duly authorized agents of the Bureau for Medical Services and the Workers’ Compensation Commission, duly authorized agents of the Office of the Chief Medical Examiner for use in post-mortem examinations, duly authorized agents of licensing boards of practitioners in this state and other states authorized to prescribe Schedules II, III and IV controlled substances, prescribing practitioners and pharmacists and persons with an enforceable court order or regulatory agency administrative subpoena: Provided, That all law-enforcement personnel who have access to the Controlled Substances Monitoring Program database shall be granted access in accordance with applicable state laws and Board of Pharmacy legislative rules, shall be certified as a West Virginia law-enforcement officer and shall have successfully completed United States Drug Enforcement Administration Diversion Training and National Association of Drug Diversion Investigation Training. All information released by the State Board of Pharmacy must be related to a specific patient or a specific individual or entity under investigation by any of the above parties except that practitioners who prescribe or dispense controlled substances may request specific data related to their Drug Enforcement Administration controlled substance registration number or for the purpose of providing treatment to a patient: Provided, however, That the West Virginia Controlled Substances Monitoring Program Database Review Committee established in subsection (b) of this section is authorized to query the database to comply with said subsection.

(2) Subject to the provisions of subdivision (1) of this subsection, the board shall also review the West Virginia Controlled Substance Monitoring Program database and issue reports that identify abnormal or unusual practices of patients who exceed parameters as determined by the advisory committee established in this section. The board shall communicate with prescribers and dispensers to more effectively manage the medications of their patients in the manner recommended by the advisory committee. All other reports produced by the board shall be kept confidential. The board shall maintain the information required by this article for a period of not less than five years. Notwithstanding any other provisions of this code to the contrary, data obtained under the provisions of this article may be used for compilation of educational, scholarly or statistical purposes, and may be shared with the West Virginia Department of Health and Human Resources for those purposes, as long as the identities of persons or entities remain confidential. and any personally identifiable information, including protected health information, contained therein shall be redacted, scrubbed or otherwise irreversibly destroyed in a manner that will preserve the confidential nature of the information. No individual or entity required to report under section four of this article may be subject to a claim for civil damages or other civil relief for the reporting of information to the Board of Pharmacy as required under and in accordance with the provisions of this article.

(3) The board shall establish an advisory committee to develop, implement and recommend parameters to be used in identifying abnormal or unusual usage patterns of patients in this state. This advisory committee shall:

(A) Consist of the following members: A physician licensed by the West Virginia Board of Medicine, a dentist licensed by the West Virginia Board of Dental Examiners, a physician licensed by the West Virginia Board of Osteopathy, a licensed physician certified by the American Board of Pain Medicine, a licensed physician board certified in medical oncology recommended by the West Virginia State Medical Association, a licensed physician board certified in palliative care recommended by the West Virginia Center on End of Life Care, a pharmacist licensed by the West Virginia Board of Pharmacy, a licensed physician member of the West Virginia Academy of Family Physicians, an expert in drug diversion and such other members as determined by the board.

(B) Recommend parameters to identify abnormal or unusual usage patterns of controlled substances for patients in order to prepare reports as requested in accordance with subsection (a), subdivision (2) of this section.

(C) Make recommendations for training, research and other areas that are determined by the committee to have the potential to reduce inappropriate use of prescription drugs in this state, including, but not limited to, studying issues related to diversion of controlled substances used for the management of opioid addiction.

(D) Monitor the ability of medical services providers, health care facilities, pharmacists and pharmacies to meet the twenty-four hour reporting requirement for the Controlled Substances Monitoring Program set forth in section three of this article, and report on the feasibility of requiring real-time reporting.

(E) Establish outreach programs with local law enforcement to provide education to local law enforcement on the requirements and use of the Controlled Substances Monitoring Program database established in this article.

(b) The Board of Pharmacy shall create a West Virginia Controlled Substances Monitoring Program Database Review Committee of individuals consisting of two prosecuting attorneys from West Virginia counties, two physicians with specialties which require extensive use of controlled substances and a pharmacist who is trained in the use and abuse of controlled substances. The review committee may determine that an additional physician who is an expert in the field under investigation be added to the team when the facts of a case indicate that the additional expertise is required. The review committee, working independently, may query the database based on parameters established by the advisory committee. The review committee may make determinations on a case-by-case basis on specific unusual prescribing or dispensing patterns indicated by outliers in the system or abnormal or unusual usage patterns of controlled substances by patients which the review committee has reasonable cause to believe necessitates further action by law enforcement or the licensing board having jurisdiction over the prescribers or dispensers under consideration. The review committee shall also review notices provided by the chief medical examiner pursuant to subsection (h), section ten, article twelve, chapter sixty-one of this code and determine on a case-by-case basis whether a practitioner who prescribed or dispensed a controlled substance resulting in or contributing to the drug overdose may have breached professional or occupational standards or committed a criminal act when prescribing the controlled substance at issue to the decedent. Only in those cases in which there is reasonable cause to believe a breach of professional or occupational standards or a criminal act may have occurred, the review committee shall notify the appropriate professional licensing agency having jurisdiction over the applicable prescriber or dispenser and appropriate law-enforcement agencies and provide pertinent information from the database for their consideration. The number of cases identified shall be determined by the review committee based on a number that can be adequately reviewed by the review committee. The information obtained and developed may not be shared except as provided in this article and is not subject to the provisions of chapter twenty-nine-b of this code or obtainable as discovering in civil matters absent a court order.

(c) The Board of Pharmacy is responsible for establishing and providing administrative support for the advisory committee and the West Virginia Controlled Substances Monitoring Program Database Review Committee. The advisory committee and the review committee shall elect a chair by majority vote. Members of the advisory committee and the review committee may not be compensated in their capacity as members but shall be reimbursed for reasonable expenses incurred in the performance of their duties.

(d) The board shall promulgate rules with advice and consent of the advisory committee, in accordance with the provisions of article three, chapter twenty-nine-a of this code on or before June 1, 2013. The legislative rules must include, but shall not be limited to, the following matters: (1) Identifying parameters used in identifying abnormal or unusual prescribing or dispensing patterns; (2) processing parameters and developing reports of abnormal or unusual prescribing or dispensing patterns for patients, practitioners and dispensers; (3) establishing the information to be contained in reports and the process by which the reports will be generated and disseminated; and (4) setting up processes and procedures to ensure that the privacy, confidentiality, and security of information collected, recorded, transmitted and maintained by the review committee is not disclosed except as provided in this section.

(b) (e) All practitioners, as that term is defined in section one hundred one, article two of this chapter who prescribe or dispense Schedule II, III or IV controlled substances shall, on or before July 1, 2011, have online or other form of electronic access to the West Virginia Controlled Substances Monitoring Program database;

(c) (f) Persons or entities with access to the West Virginia Controlled Substances Monitoring Program database pursuant to this section may, pursuant to rules promulgated by the Board of Pharmacy, delegate appropriate personnel to have access to said database;

(d) (g) Good faith reliance by a practitioner on information contained in the West Virginia Controlled Substances Monitoring Program database in prescribing or dispensing or refusing or declining to prescribe or dispense a Schedule II, III or IV controlled substance shall constitute an absolute defense in any civil or criminal action brought due to prescribing or dispensing or refusing or declining to prescribe or dispense; and

(e) The Board of Pharmacy is hereby authorized to promulgate an emergency rule under chapter twenty-nine-a to effectuate the amendments to this section enacted during the 2010 Regular Session of the Legislature.

(h) A prescribing or dispensing practitioner may notify law enforcement of a patient who, in the prescribing or dispensing practitioner’s judgment, may be in violation of section four hundred ten, article four of this chapter, based on information obtained and reviewed from the controlled substances monitoring database. A prescribing or dispensing practitioner who makes a notification pursuant to this subsection is immune from any civil, administrative or criminal liability that otherwise might be incurred or imposed because of the notification if the notification is made in good faith.

(f) (i) Nothing in the article shall may be construed to require a practitioner to access the West Virginia Controlled Substances Monitoring Program database except as provided in section five-a of this article.

(j) The Board of Pharmacy shall provide an annual report on the West Virginia Controlled Substance Monitoring Program to the Legislative Oversight Commission on Health and Human Resources Accountability with recommendations for needed legislation no later than January 1 of each year.

§60A-9-5a. Practitioner requirements to conduct annual search of the database; required rulemaking.

(a) Upon initially prescribing or dispensing any pain-relieving controlled substance for a patient and at least annually thereafter should the prescriber or dispenser continue to treat the patient with controlled substances, all persons with prescriptive or dispensing authority and in possession of a valid Drug Enforcement Administration registration identification number and, who are licensed by the Board of Medicine as set forth in article three, chapter thirty of this code, the Board of Registered Professional Nurses as set forth in article seven, chapter thirty of this code, the Board of Dental Examiners as set forth in article four, chapter thirty of this code and the Board of Osteopathy as set forth in article fourteen, chapter thirty of this code shall access the West Virginia Controlled Substances Monitoring Program database for information regarding specific patients for whom they are providing pain-relieving controlled substances as part of a course of treatment for chronic, nonmalignant pain but who are not suffering from a terminal illness. The information obtained from accessing the West Virginia Controlled Substances Monitoring Program database for the patient shall be documented in the patient’s medical record. A pain-relieving controlled substance shall be defined as set forth in section one, article three-a, chapter thirty of this code.

(b) The various boards mentioned in subsection (a) above shall promulgate both emergency and legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code to effectuate the provisions of this section.

§60A-9-7. Criminal penalties.

(a) Any person who is required to submit information to the state Board of Pharmacy pursuant to the provisions of this article who fails to do so as directed by the board shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500.

(b) Any person who is required to submit information to the state Board of Pharmacy pursuant to the provisions of this article who knowingly and willfully refuses to submit the information required by this article shall be is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail not more than six months or fined not more than $1,000, or both confined or fined.

(c) Any person who is required by the provisions of this article to submit information to the state Board of Pharmacy who knowingly submits thereto information known to that person to be false or fraudulent shall be is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail not more than one year or fined not more than $5,000, or both confined or fined.

(d) Any prescriber or dispenser who is required to access the information contained in the West Virginia Controlled Substances Monitoring Program database as set forth in subsection (a) of section five-a of this article and fails to do so as directed by the rules of their licensing board shall be subject to such discipline as the licensing board deems appropriate.

(d) (e) Any person granted access to the information required by the provisions of this article to be maintained by the state Board of Pharmacy, who shall willfully disclose the information required to be maintained by this article in a manner inconsistent with a legitimate law-enforcement purpose, a legitimate professional regulatory purpose, the terms of a court order or as otherwise expressly authorized by the provisions of this article shall be is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than six months or fined not more than $1,000, or both confined or fined.

(f) Unauthorized access or use or unauthorized disclosure for reasons unrelated to the purposes of this article of the information in the database is a felony punishable by imprisonment in a state correctional facility for not less than one year nor more than five years or fined not less than $3,000 nor more than $10,000, or both imprisoned or fined.

§60A-9-8. Creation of Fight Substance Abuse Fund.

There is hereby created a special revenue account in the state treasury, designated the Fight Substance Abuse Fund, which shall be an interest-bearing account and may be invested in accordance with the provisions of article six, chapter twelve of this code, with interest income a proper credit to the fund. The fund shall consist of appropriations by the Legislature, gifts, donations or any other source. Expenditures from the fund shall be for the following purposes: to provide funding for substance abuse prevention, treatment, treatment coordination, recovery and education.

ARTICLE 10. METHAMPHETAMINE LABORATORY ERADICATION ACT.

§60A-10-3. Definitions.

In this article:

(a) "Board of Pharmacy" or "board" means the West Virginia Board of Pharmacy established by the provisions of article five, chapter thirty of this code.

(b) "Designated precursor" means any drug product made subject to the requirements of this article by the provisions of section seven of this article.

(c) "Distributor" means any person within this state or another state, other than a manufacturer or wholesaler, who sells, delivers, transfers or in any manner furnishes a drug product to any person who is not the ultimate user or consumer of the product.

(d) "Drug product" means a pharmaceutical product that contains as its single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or a substance identified on the supplemental list provided for in section seven of this article which may be sold without a prescription and which is labeled for use by a consumer in accordance with the requirements of the laws and rules of this state and the federal government.

(e) "Ephedrine " means ephedrine, its salts or optical isomers or salts of optical isomers.

(f) "Manufacturer" means any person within this state who produces, compounds, packages or in any manner initially prepares for sale or use any drug product or any such person in another state if they cause the products to be compounded, packaged or transported into this state.

(g) “National Association of Drug Diversion Investigators” or “NADDI” means the non-profit 501(c)(3) organization established in 1989, made up of members who are responsible for investigating and prosecuting pharmaceutical drug diversion, and that facilitates cooperation between law enforcement, health care professionals, state regulatory agencies and pharmaceutical manufacturers in the investigation and prevention of prescription drug abuse and diversion.

(h) “Multi-State Real-Time Tracking System” or “MSRTTS” means the real-time electronic logging system provided by NADDI at no cost to states that have legislation requiring real-time electronic monitoring of precursor purchases, and agree to use the system. MSRTTS is used by pharmacies and law enforcement to track sales of over-the-counter (OTC) cold and allergy medications containing precursors to the illegal drug, methamphetamine.

(g) (i) "Phenylpropanolamine" means phenylpropanolamine, its salts, optical isomers and salts of optical isomers.

(h) (j) "Pseudoephedrine" means pseudoephedrine, its salts, optical isomers and salts of optical isomers.

(i) (k) "Precursor" means any substance which may be used along with other substances as a component in the production and distribution of illegal methamphetamine.

(j) (l) "Pharmacist" means an individual currently licensed by this state to engage in the practice of pharmacy and pharmaceutical care as defined in subsection (t), section one-b, article fifty five, chapter thirty of this code.

(k) (m) "Pharmacy intern" has the same meaning as the term "intern" as set forth in section one-b, article five, chapter thirty of this code.

(l) (n) "Pharmacy" means any drugstore, apothecary or place within this state where drugs are dispensed and sold at retail or display for sale at retail and pharmaceutical care is provided outside of this state where drugs are dispensed and pharmaceutical care is provided to residents of this state.

(m) (o) "Pharmacy counter" means an area in the pharmacy restricted to the public where controlled substances are stored and housed and where controlled substances may only be sold, transferred or dispensed by a pharmacist, pharmacy intern or pharmacy technician.

(n) (p) "Pharmacy technician" means a registered technician who meets the requirements for registration as set forth in article five, chapter thirty of this code.

(o) (q) "Retail establishment" means any entity or person within this state who sells, transfers or distributes goods, including over-the-counter drug products, to an ultimate consumer.

(p) (r) "Schedule V" means the schedule of controlled substances set out in section two hundred twelve, section two of this chapter.

(q) “Single active ingredient” means those ingredients listed on a drug product package as the only active ingredient in over the counter medication or identified on the Schedule maintained by the Board of Pharmacy as being primarily used in the illegal production and distribution of methamphetamine.

(r) (s) "Superintendent of the State Police" or "Superintendent" means the Superintendent of the West Virginia State Police as set forth in section five, article two, chapter fifteen of this code.

(s) (t) "Wholesaler" means any person within this state or another state, other than a manufacturer, who sells, transfers or in any manner furnishes a drug product to any other person in this state for the purpose of being resold.

§60A-10-4. Purchase, receipt, acquisition and possession of substances to be used as precursor to manufacture of methamphetamine or another controlled substance; offenses; exceptions; penalties.

(a) A pharmacy may not sell, transfer or dispense to the same person, and a person may not purchase, more than three and six-tenths grams per day, more than seven and two-tenths grams in a thirty-day period or more than forty-eight grams annually of ephedrine, pseudoephedrine or phenylpropanolamine without a prescription. The limits shall apply to the total amount of ephedrine, pseudoephedrine and phenylpropanolamine contained in the products, and not the overall weight of the products.

(1) Any person who within any thirty day period knowingly purchases, receives or otherwise possesses more than three packages of a drug product containing as its single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or more than nine grams knowingly purchases, receives or otherwise possesses more than seven and two-tenths grams in a thirty-day period of ephedrine, pseudoephedrine or phenylpropanolamine in any form shall be without a prescription is guilty of a misdemeanor and, upon conviction, shall be confined in a jail for not more than one year, fined not more than $1,000, or both fined and confined.

(2) Any pharmacy, wholesaler or other entity operating the retail establishment which sells, transfers or dispenses a product in violation of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000 for the first offense, or more than $10,000 for each subsequent offense.

(b) Notwithstanding the provisions of subsection subdivision (a)(1) of this section, any person convicted of a second or subsequent violation of the provisions of said subsection subdivision or a statute or ordinance of the United States or another state which contains the same essential elements shall be is guilty of a felony and, upon conviction, shall be confined imprisoned in a state correctional facility for not less than one nor more than five years, fined not more than $25,000, or both imprisoned and fined.

(1) Products dispensed pursuant to a valid prescription;

(1) (2) Drug products which are for pediatric use primarily intended for administration to children under the age of twelve;

(2) (3) Drug products containing ephedrine, pseudoephedrine or phenylpropanolamine, their salts or optical isomers or salts of optical isomers or other designated precursor which have been determined by the Board of Pharmacy to be in a form which is unamenable to not feasible for being used for the manufacture of methamphetamine; or

(3) (4) Persons lawfully possessing drug products in their capacities as distributors, wholesalers, manufacturers, pharmacists, pharmacy interns, pharmacy technicians, or health care professionals. or persons possessing such drug products pursuant to a valid prescription

(d) Notwithstanding any provision of this code to the contrary, any person who knowingly possesses any amount of ephedrine, pseudoephedrine, phenylpropanolamine or other designated precursor with the intent to use it in the manufacture of methamphetamine or who knowingly possesses a substance containing ephedrine, pseudoephedrine or phenylpropanolamine or their salts, optical isomers or salts of optical isomers in a state or form which is, or has been altered or converted from the state or form in which these chemicals are, or were, commercially distributed shall be is guilty of a felony and, upon conviction, shall be confined imprisoned in a state correctional facility for not less than two nor more than ten years, fined not more than $25,000, or both imprisoned and fined.

(e) (1) Any pharmacy, wholesaler, manufacturer or distributor of drug products containing as their single active ingredient ephedrine, pseudoephedrine, phenylpropanolamine, their salts or optical isomers or salts of optical isomers or other designated precursor shall obtain a registration annually from the State Board of Pharmacy as described in section six of this article. Any such pharmacy, wholesaler, manufacturer or distributor shall keep complete records of all sales and transactions as provided in section eight of this article. The records shall be gathered and maintained pursuant to legislative rule promulgated by the Board of Pharmacy.

(2) Any drug products possessed without a registration as provided in this section are subject to forfeiture upon conviction for a violation of this section.

(3) In addition to any administrative penalties provided by law, any violation of this subsection is a misdemeanor, punishable upon conviction by a fine in an amount not more than $10,000.

§60A-10-5. Restrictions on the sale, transfer or delivery of certain drug products; penalties.

(a) No pharmacy or individual may display, offer for sale or place a drug product containing as its single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or other designated precursor where the public may freely access the drug product. All such drug products or designated precursors shall be placed behind a pharmacy counter where access is restricted to a pharmacist, a pharmacy intern, a pharmacy technician or other pharmacy employee.

(b) All storage of drug products regulated by the provisions of this section shall be in a controlled and locked access location that is not accessible by the general public and shall maintain strict inventory control standards and complete records of quantity of the product maintained in bulk form.

(c) No pharmacy shall may sell, deliver or provide any drug product regulated by the provisions of this section to any person who is under the age of eighteen.

(d) If a drug product regulated by the provisions of this section is transferred, sold or delivered, the individual, pharmacy or retail establishment transferring, selling or delivering the drug product shall offer to have a pharmacist provide patient counseling, as defined by section one-b, article five, chapter thirty of this code and the rules of the Board of Pharmacy, to the person purchasing, receiving or acquiring the drug product in order to improve the proper use of the drug product and to discuss contraindications.

(d) (e) If a drug product regulated by the provisions of this section is transferred, sold or delivered, the individual, pharmacy or retail establishment transferring, selling or delivering the drug product shall require the person purchasing, receiving or otherwise acquiring the drug product to:

(1) Produce a valid government-issued photo identification showing his or her date of birth; and

(2) Sign a form logbook, in either paper or electronic format, containing the information set forth in subsection (b), section eight of this article and attesting to the validity of such the information.

(e) (f) Any person who knowingly makes a false representation or statement pursuant to the requirements of this section shall be is guilty of a misdemeanor and, upon conviction, be confined in a jail for not more than six months, fined not more than $5,000, or both fined and confined.

(g) (1) The pharmacist, pharmacy intern or pharmacy technician processing the transaction shall determine that the name entered in the logbook corresponds to the name provided on the identification.

(2) Beginning January 1, 2013, a pharmacy or retail establishment shall, before completing a sale under this section, electronically submit the information required by section eight of this article to the Multi-State Real-Time Tracking System (MSRTTS) administered by the National Association of Drug Diversion Investigators (NADDI): Provided, That the system is available to retailers in the state without a charge for accessing the system. This system shall be capable of generating a stop-sale alert, which shall be a notification that completion of the sale would result in the seller or purchaser violating the quantity limits set forth in this article. The seller may not complete the sale if the system generates a stop-sale alert. The system shall contain an override function that may be used by a dispenser of a drug product who has a reasonable fear of imminent bodily harm if he or she does not complete a sale. Each instance in which the override function is utilized shall be logged by the system. Absent negligence, wantonness, recklessness or deliberate misconduct, any retailer utilizing the Multi-State Real-Time Tracking System in accordance with this subdivision may not be civilly liable as a result of any act or omission in carrying out the duties required by this subdivision and is immune from liability to any third party unless the retailer has violated any provision of this subdivision in relation to a claim brought for the violation.

(3) If a pharmacy or retail establishment selling a nonprescription product containing ephedrine, pseudoephedrine or phenylpropanolamine experiences mechanical or electronic failure of the Multi-State Real-Time Tracking System and is unable to comply with the electronic sales tracking requirement, the pharmacy or retail establishment shall maintain a written log or an alternative electronic record keeping mechanism until such time as the pharmacy or retail establishment is able to comply with the electronic sales tracking requirement.

(e) (h) This section does not apply to drug products that are dispensed pursuant to a prescription, are pediatric products primarily intended for administration, according to label instructions, to children under twelve years of age.

(f) (i) Any violation of this section is a misdemeanor, punishable upon conviction by a fine in an amount not more than $10,000.

(j) The provisions of this section supersede and preempt all local laws, ordinances, rules and regulations pertaining to the sale of any compounds, mixtures or preparation containing ephedrine, pseudoephedrine or phenylpropanolamine.

§60A-10-7. Restricted products; rule-making authority.

(a) On or before July 1, 2005, the Board of Pharmacy shall promulgate emergency and legislative rules pursuant to the provision of article three, chapter twenty-nine-a of this code to implement a program wherein the Board of Pharmacy shall consult with the Superintendent of the State Police in identifying drug products which are a designated precursor, in addition to those that contain as their single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine, that are commonly being used in the production and distribution of methamphetamine. Those drug products which the Superintendent of the State Police have demonstrated by empirical evidence are commonly used in the manufacture of methamphetamine shall be added to a supplemental list and shall be subject to all of the restrictions of this article. These rules established pursuant to this section shall include:

(1) A process whereby pharmacies are made aware of all drug products that contain as their single active ingredient ephedrine, pseudoephedrine and phenylpropanolamine that will be listed as a Schedule V substance and must be sold, transferred or dispensed from behind a pharmacy counter;

(2) A process whereby pharmacies and retail establishments are made aware of additional drug products added to Schedule V that are required to be placed behind the pharmacy counter for sale, transfer or distribution can be periodically reviewed and updated.

(b) At any time after July 1, 2005, the Board of Pharmacy, upon the recommendation of the Superintendent of the State Police, shall promulgate emergency and legislative rules pursuant to the provision of article three, chapter twenty-nine-a of this code to implement an updated supplemental list of products containing the controlled substances ephedrine, pseudoephedrine or phenylpropanolamine as an active ingredient or any other drug used as a precursor in the manufacture of methamphetamine, which the Superintendent of the State Police has demonstrated by empirical evidence is being used in the manufacture of methamphetamine. This listing process shall comport with the requirements of subsection (a) of this section.

§60A-10-8. Reporting requirements; confidentiality.

(a) Whenever there is a Until January 1, 2013, upon each sale, retail, transfer or distribution of any drug product referred to in section seven of this article or another designated precursor, the pharmacist, pharmacy intern, or pharmacy technician making the sale, transfer or distribution shall report the following information for inclusion in a the central repository established and maintained by the Board of Pharmacy:

(1) The date of the transaction;

(2) The name, address and driver's license or state-issued identification number of the person; and

(3) The name, quantity of packages and total gram weight of the product or products purchased, received or otherwise acquired.

(b) The information required to be reported by this section shall be reported by paper log maintained at the point of sale: Provided, That, beginning on January 1, 2007, reporting shall be by electronic transmission to the Board of Pharmacy no more frequently than once a week. Beginning on January 1, 2013, the electronic transmission of the information required to be reported in subsection (a) of this section shall be reported to the MSRTTS, and shall be made in real time at the time of the transaction.

(c) The information required by this section shall be the property of the state and a pharmacy shall have no duty to retain a copy of the information in any format once the information has been reported to the Board of Pharmacy as required by this section. The information shall be disclosed as appropriate to the federal Drug Enforcement Administration and to state and local law-enforcement agencies. The information shall not be accessed, used or shared for any purpose other than to ensure compliance with this article and federal law. NADDI shall forward state transaction records in the MSRTTS to the West Virginia State Police weekly, and provide real-time access to MSRTTS information through the MSRTTS online portal to authorized agents of the federal Drug Enforcement Administration and certified law enforcement in this and other states for use in the detection of violations of this article or of federal laws designed to prevent the illegal use, production or distribution of methamphetamine.

§60A-10-11. Reporting to the Legislative Oversight Commission on Health and Human Resources Accountability.

On or before December 1, 2005 Beginning July 1, 2013, the Superintendent of the West Virginia State Police shall submit a an annual report including findings, conclusions and recommendations, together with drafts of any legislation necessary, to improve the effectiveness of a reduction in illegal methamphetamine production and distribution no later than July 1 of each year to the Legislative Oversight Commission on Health and Human Resources Accountability for consideration with data and statistics related to methamphetamine use, production and distribution in this state including, but not limited to, the number of clandestine methamphetamine lab incidents per year.

§60A-10-16. Expiration of enactments made during two thousand eleven regular session.

The provisions of this article enacted during the 2012 regular legislative session establishing the Multi–State Real-Time Tracking System shall expire on June 30, 2015.

CHAPTER 61. CRIMES AND OTHER PUNISHMENT.

ARTICLE 12. POSTMORTEM EXAMINATIONS.

§61-12-10. When autopsies made and by whom performed; records of date investigated; copies of records and information; reporting requirements.

(a) If in the opinion of the chief medical examiner, or of the county medical examiner of the county in which the death in question occurred, it is advisable and in the public interest that an autopsy be made, or if an autopsy is requested by either the prosecuting attorney or the judge of the circuit court or other court of record having criminal jurisdiction in that county, an autopsy shall be conducted by the chief medical examiner or his or her designee, by a member of his or her staff, or by a competent pathologist designated and employed by the chief medical examiner under the provisions of this article. For this purpose, the chief medical examiner may employ any county medical examiner who is a pathologist who holds board certification or board eligibility in forensic pathology or has completed an American Board of Pathology fellowship in forensic pathology to make the autopsies, and the fees to be paid for autopsies under this section shall be in addition to the fee provided for investigations pursuant to section eight of this article. A full record and report of the findings developed by the autopsy shall be filed with the office of the chief medical examiner by the person making the autopsy.

(b) Within the discretion of the chief medical examiner, or of the person making the autopsy, or if requested by the prosecuting attorney of the county, or of the county where any injury contributing to or causing the death was sustained, a copy of the report of the autopsy shall be furnished to the prosecuting attorney.

(c) The office of the chief medical examiner shall keep full, complete and properly indexed records of all deaths investigated, containing all relevant information concerning the death and the autopsy report if such be an autopsy report is made. Any prosecuting attorney or law-enforcement officer may secure copies of these records or information necessary for the performance of his or her official duties.

(d) Copies of these records or information shall be furnished, upon request, to any court of law, or to the parties therein to whom the cause of death is a material issue, except where the court determines that interests in a civil matter conflict with the interests in a criminal proceeding, in which case the interests in the criminal proceeding shall take precedence. The office of chief medical examiner shall be reimbursed a reasonable rate by the requesting party for costs incurred in the production of records under this subsection and subsection (c) of this section.

(e) The chief medical examiner is authorized to release investigation records and autopsy reports to the multidisciplinary team authorized by section three, article five-d, chapter forty-nine of this code and as authorized in subsection (h) of this section. At the direction of the Secretary of the Department of Health and Human Resources the chief medical examiner may release records and information to other state agencies when considered to be in the public interest.

(f) Any person performing an autopsy under this section is empowered to keep and retain, for and on behalf of the chief medical examiner, any tissue from the body upon which the autopsy was performed which may be necessary for further study or consideration.

(g) In cases of the death of any infant in the State of West Virginia where sudden infant death syndrome is the suspected cause of death and the chief medical examiner or the medical examiner of the county in which the death in question occurred considers it advisable to perform an autopsy, it is the duty of the chief medical examiner or the medical examiner of the county in which the death occurred to notify the sudden infant death syndrome program within the division of maternal and child health and to inform the program of all information to be given to the infant's parents.

(h) If the chief medical officer determines that a drug overdose is the cause of death of a person, the chief medical examiner shall provide notice of the death to the West Virginia Controlled Substances Monitoring Program Database Review Committee established pursuant to subsection (b), section five, article nine, chapter sixty-a of this code and shall include in the notice any information relating to the cause of the fatal overdose.;

And,

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

Eng. Finance Com. Sub. for Senate Bill No. 437--A Bill to amend and reenact §16-1-4 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §16-5H-1, §16-5H-2, §16-5H-3, §16-5H-4, §16-5H-5, §16-5H-6, §16-5H-7, §16-5H-8, §16-5H-9 and §16-5H-10; to amend and reenact §30-1-7a of said code; to amend and reenact §30-5-3 of said code; to amend and reenact §60A-3-308 of said code; to amend and reenact §60A-9-3, §60A-9-4, §60A-9-5 and §60A-9-7 of said code; to amend said code by adding thereto three new sections, designated §60A-9-4a, §60A-9-5a and §60A-9-8; to amend and reenact §60A-10-3, §60A-10-4, §60A-10-5, §60A-10-7, §60A-10-8 and §60A-10-11 of said code; to amend said code by adding thereto a new section, designated §60A-10-16; and to amend and reenact §61-12-10 of said code, all relating to substance abuse generally; addressing the regulation of opioid treatment programs in this state; updating rules for opioid treatment program facilities to require clinical guidelines, recovery models, education and training requirements for treatment facility staff and treatment limitations and requirements; addressing the licensing and oversight of chronic pain management clinics; creating the Chronic Pain Clinic Licensing Act; providing definitions; establishing requirements for ownership, licensure, operation and management of pain management clinics; establishing limitations on the dispensing of controlled substances at a pain management clinic; requiring annual inspections of pain management clinics; exemptions from the act; providing for suspension or revocation of a pain management clinic license and setting forth due process requirements; providing for prohibitions on practicing at or operating a pain management clinic under certain circumstances; providing civil penalties regarding pain management clinics; providing for notice requirements to applicable licensing boards; requiring rules for the licensure of pain management clinics; removing requirement of certain licensed or certified health care professionals to complete continuing education course work on the subject of end-of-life care; requiring certain licensed or certified health care professionals to complete drug diversion training and best practice prescribing of controlled substances training; requiring certain licensing boards to establish drug diversion training and best practice prescribing of controlled substances training; requiring a valid practitioner-patient relationship to exist prior to compounding or dispensing prescriptions; requiring that buprenophine combined with naloxone prescribed or dispensed for treatment for opioid addiction be in the form of sublingual film unless medically contraindicated as of September 1, 2012; clarifying certain circumstances that do not establish a valid practitioner-patient relationship; requiring certain persons to submit information to the Controlled Substances Monitoring Program database within twenty-four hours; requiring additional information to be submitted to the Controlled Substances Monitoring Program database; clarifying that reporting is required for certain amounts of drugs dispensed to patients; requiring verification of certain information reported to the Controlled Substances Monitoring Program database; providing certain requirements and training for law-enforcement officials in order to access the Controlled Substances Monitoring Program database; permitting the Controlled Substances Monitoring Program Database Review Committee to query the Controlled Substances Monitoring Program database; requiring the Board of Pharmacy to review the Controlled Substances Monitoring Program database in order to issue certain reports; permitting the Board of Pharmacy to share certain information contained in the Controlled Substances Monitoring Program database with the Department of Health and Human Resources; requiring the Board of Pharmacy to establish an advisory committee; setting forth the membership of the advisory committee; outlining the advisory committee’s scope and duties; requiring the Board of Pharmacy to create a Controlled Substances Monitoring Program Database Review Committee; setting forth the membership of the review committee; outlining the review committee’s scope, powers and duties; requiring the Board of Pharmacy to promulgate certain legislative rules; permitting prescribing practitioners to notify law enforcement of certain violations with immunity; requiring the Board of Pharmacy to provide annual reports to the Legislature; requiring various boards that regulate professions with prescriptive authority to require persons licensed by the board to conduct an initial search of the Controlled Substances Monitoring Program database when prescribing a course of treatment that includes prescribing of pain-relieving controlled substances and an annual search of the Controlled Substances Monitoring Program database for certain patients; setting forth penalties for failing to search the Controlled Substances Monitoring Program database in certain circumstances; establishing a felony offense and penalties for unauthorized access, use or disclosure of information contained in the Controlled Substances Monitoring Program database; creating Fight Substance Abuse Fund and setting forth permissible uses for fund; defining terms and updating definitions in the Methamphetamine Laboratory Eradication Act; establishing reduced monthly and annual amount restrictions on the sale, transfer, dispensing or possession of ephedrine, pseudoephedrine and phenylpropanolamine by pharmacies; establishing criminal penalties for purchasing, receiving or possessing certain quantities of ephedrine, pseudoephedrine and phenylpropanolamine; establishing criminal penalties for pharmacies, wholesalers or other entities which sell, transfer or dispense a product under certain circumstances; amending the restrictions on the sale, transfer or delivery of certain designated precursors to the manufacture of methamphetamine or other controlled substances; requiring offer of patient counseling by a pharmacist upon the sale, transfer or delivery of certain designated precursors to the manufacture of methamphetamine or other controlled substances; requiring certain processing requirements of pharmacists, pharmacy intern and pharmacy technicians; establishing use and requirements of the Multi-State Real-Time Tracking System; requiring pharmacies and retail establishments to electronically submit certain information to the Multi-State Real-Time Tracking System; requiring pharmacies and retail establishments to stop pending sales under certain circumstances; limiting liability of retailers utilizing the Multi-State Real-Time Tracking System under certain circumstances; requiring pharmacies or retail establishments to maintain written logs or electronic record-keeping databases under certain circumstances; providing supersession and preemption of all local laws, ordinances and regulations pertaining to the sale of certain substances; amending reporting requirements and requiring real-time electronic reporting of certain information; providing for law enforcement access to information pertaining to the sale of certain substances; establishing an expiration date for multi-state real-time tracking system; requiring the National Association of Drug Diversion Investigators to forward certain records to the West Virginia State Police and provide real-time access to the Multi-State Real-Time Tracking System to law enforcement; requiring the West Virginia State Police to submit an annual report with data and statistics on methamphetamine use, production and distribution; and requiring the chief medical officer to provide notice to the Controlled Substance Monitoring Program Database Review Committee in the case of a death caused by overdose.

On motion of Senator Unger, the following amendment to the House of Delegates amendments to the bill was reported by the Clerk and adopted:

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

Eng. Finance Com. Sub. for Senate Bill No. 437--A Bill to amend and reenact §16-1-4 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §16-5H-1, §16-5H-2, §16-5H-3, §16-5H-4, §16-5H-5, §16-5H-6, §16-5H-7, §16-5H-8, §16-5H-9 and §16-5H-10; to amend and reenact §30-1-7a of said code; to amend and reenact §30-5-3 of said code; to amend and reenact §60A-3-308 of said code; to amend and reenact §60A-9-3, §60A-9-4, §60A-9-5 and §60A-9-7 of said code; to amend said code by adding thereto three new sections, designated §60A-9-4a, §60A-9-5a and §60A-9-8; to amend and reenact §60A-10-3, §60A-10-4, §60A-10-5, §60A-10-7, §60A-10-8 and §60A-10-11 of said code; to amend said code by adding thereto a new section, designated §60A-10-16; and to amend and reenact §61-12-10 of said code, all relating to substance abuse generally; addressing the regulation of opioid treatment programs in this state; updating rules for opioid treatment program facilities to require clinical guidelines, recovery models, education and training requirements for treatment facility staff and treatment limitations and requirements; addressing the licensing and oversight of chronic pain management clinics; creating the Chronic Pain Clinic Licensing Act; providing definitions; establishing requirements for ownership, licensure, operation and management of pain management clinics; establishing limitations on the dispensing of controlled substances at a pain management clinic; requiring annual inspections of pain management clinics; setting forth exemptions from the act; providing for suspension or revocation of a pain management clinic license and setting forth due process requirements; providing for prohibitions on practicing at or operating a pain management clinic under certain circumstances; providing civil penalties regarding pain management clinics; providing for notice requirements to applicable licensing boards; requiring rules for the licensure of pain management clinics; removing requirement of certain licensed or certified health care professionals to complete continuing education course work on the subject of end-of-life care; requiring certain licensed or certified health care professionals to complete drug diversion training and best practice prescribing of controlled substances training; requiring certain licensing boards to establish drug diversion training and best practice prescribing of controlled substances training; requiring a valid practitioner-patient relationship to exist prior to compounding or dispensing prescriptions; requiring that buprenophine combined with naloxone prescribed or dispensed for treatment for opioid addiction be in the form of sublingual film unless medically contraindicated as of September 1, 2012; clarifying certain circumstances that do not establish a valid practitioner-patient relationship; requiring certain persons to submit information to the Controlled Substances Monitoring Program database within twenty-four hours; requiring additional information to be submitted to the Controlled Substances Monitoring Program database; clarifying that reporting is required for certain amounts of drugs dispensed to patients; requiring verification of certain information reported to the Controlled Substances Monitoring Program database; providing certain requirements and training for law-enforcement officials in order to access the Controlled Substances Monitoring Program database; permitting the Controlled Substances Monitoring Program Database Review Committee to query the Controlled Substances Monitoring Program database; requiring the Board of Pharmacy to review the Controlled Substances Monitoring Program database in order to issue certain reports; permitting the Board of Pharmacy to share certain information contained in the Controlled Substances Monitoring Program database with the Department of Health and Human Resources; requiring the Board of Pharmacy to establish an advisory committee; setting forth the membership of the advisory committee; outlining the advisory committee’s scope and duties; requiring the Board of Pharmacy to create a Controlled Substances Monitoring Program Database Review Committee; setting forth the membership of the review committee; outlining the review committee’s scope, powers and duties; requiring the Board of Pharmacy to promulgate certain legislative rules; permitting prescribing practitioners to notify law enforcement of certain violations with immunity; requiring the Board of Pharmacy to provide annual reports to the Legislature; requiring various boards that regulate professions with prescriptive authority to require persons licensed by the board to conduct an initial search of the Controlled Substances Monitoring Program database when prescribing a course of treatment that includes prescribing of pain-relieving controlled substances and an annual search of the Controlled Substances Monitoring Program database for certain patients; setting forth penalties for failing to search the Controlled Substances Monitoring Program database in certain circumstances; establishing a felony offense and penalties for unauthorized access, use or disclosure of information contained in the Controlled Substances Monitoring Program database; creating Fight Substance Abuse Fund and setting forth permissible uses for fund; defining terms and updating definitions in the Methamphetamine Laboratory Eradication Act; establishing reduced daily, monthly and annual amount restrictions on the sale, transfer, dispensing or possession of ephedrine, pseudoephedrine and phenylpropanolamine by pharmacies; establishing criminal penalties for purchasing, receiving or possessing certain quantities of ephedrine, pseudoephedrine and phenylpropanolamine; establishing criminal penalties for pharmacies, wholesalers or other entities which sell, transfer or dispense a product under certain circumstances; amending the restrictions on the sale, transfer or delivery of certain designated precursors to the manufacture of methamphetamine or other controlled substances; requiring offer of patient counseling by a pharmacist upon the sale, transfer or delivery of certain designated precursors to the manufacture of methamphetamine or other controlled substances; requiring certain processing requirements of pharmacists, pharmacy intern and pharmacy technicians; establishing use and requirements of the Multi-State Real-Time Tracking System; requiring pharmacies and retail establishments to electronically submit certain information to the Multi-State Real-Time Tracking System; requiring pharmacies and retail establishments to stop pending sales under certain circumstances; limiting liability of retailers utilizing the Multi-State Real-Time Tracking System under certain circumstances; requiring pharmacies or retail establishments to maintain written logs or electronic record-keeping databases under certain circumstances; providing supersession and preemption of all local laws, ordinances and regulations pertaining to the sale of certain substances; amending reporting requirements and requiring real-time electronic reporting of certain information; providing for law enforcement access to information pertaining to the sale of certain substances; establishing an expiration date for multi-state real-time tracking system; requiring the National Association of Drug Diversion Investigators to forward certain records to the West Virginia State Police and provide real-time access to the Multi-State Real-Time Tracking System to law enforcement; requiring the West Virginia State Police to submit an annual report with data and statistics on methamphetamine use, production and distribution; and requiring the chief medical officer to provide notice to the Controlled Substance Monitoring Program Database Review Committee in the case of a death caused by overdose.

On motion of Senator Unger, the Senate concurred in the House of Delegates amendments, as amended.

Engrossed Finance Committee Substitute for Senate Bill No. 437, as amended, was then put upon its passage.

Pending discussion,

The question being “Shall Engrossed Finance Committee Substitute for Senate Bill No. 437 pass?”

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. Finance Com. Sub. for S. B. No. 437) passed with its Senate amended title.

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

Thereafter, at the request of Senator Stollings, and by unanimous consent, the remarks by Senators Jenkins and Browning regarding the passage of Engrossed Finance Committee Substitute for Senate Bill No. 437 were ordered printed in the Appendix to the Journal.

At the request of Senator Miller, and by unanimous consent, the remarks by Senator Foster regarding the passage of Engrossed Finance Committee Substitute for Senate Bill No. 437 were ordered printed in the Appendix to the Journal.

The Senate proceeded to the sixth order of business, which agenda includes the making of main motions.

On motion of Senator Unger, the Senate requested the return from the House of Delegates of

Eng. Senate Bill No. 436, Facilitating collaboration between public school and higher education systems to promote seamless curricula.

Having been received as a message from the House of Delegates on yesterday, Friday, March 9, 2012,

The bill now being in the possession of the Senate,

On motion of Senator Unger, the Senate reconsidered the vote by which it adopted Senator Unger’s motion that Engrossed Senate Bill No. 436 take effect from passage.

The vote thereon having been reconsidered,

The question again being on the adoption of Senator Unger’s motion that the bill take effect from passage.

Thereafter, at the request of Senator Unger, and by unanimous consent, his foregoing motion was withdrawn.

On motion of Senator Unger, the Senate reconsidered the vote as to the passage of the bill.

The vote thereon having been reconsidered,

On motion of Senator Unger, the Senate reconsidered its action by which it adopted Senator Unger’s motion that the Senate concur in the House of Delegates amendments to the bill (shown in the Senate Journal of yesterday, Friday, March 9, 2012, pages 21 to 44, inclusive).

The vote thereon having been reconsidered,

The question again being on the adoption of Senator Unger’s motion that the Senate concur in the House of Delegates amendments to the bill (Eng. S. B. No. 436).

Thereafter, at the request of Senator Unger, and by unanimous consent, his foregoing motion was withdrawn.

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

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

Eng. Senate Bill No. 436--A Bill to repeal §18-27-1, §18-27-2, §18-27-3, §18-27-4, §18-27-5, §18-27-6, §18-27-7, §18-27-8, §18-27-9, §18-27-10, §18-27-11, §18-27-12, §18-27-13, §18-27-14, §18-27-15, §18-27-16, §18-27-17, §18-27-18, §18-27-19, §18-27-20, §18-27-21 and §18-27-22 of the Code of West Virginia, 1931, as amended; to amend and reenact §18-2-10 of said code; to amend and reenact §18-2B-1, §18-2B-2, §18-2B-3, §18-2B-4 and §18-2B-7 of said code; to amend said code by adding thereto a new article, designated §18-13-1, §18-13-2, §18-13-3, §18-13-4 and §18-13-5; to amend said code by adding thereto a new article, designated §18B-3B-1, §18B-3B-2 and §18B-3B-3; to amend and reenact §18B-3C-1, §18B-3C-2 and §18B-3C-4 of said code; and to amend said code by adding thereto a new section, designated §18B-14-1, all relating to public education generally; state institutions of higher education; career and technical education; seamless curricula; programs of study; requiring state board to provide adult basic education programs on certain college campuses; creating West Virginia EDGE initiative; establishing initiative goals; providing for administration and accountability; requiring certain joint rule; clarifying that no specific level of appropriation is required; creating collaborative degree completion program; setting forth legislative findings, intent and program objectives; specifying program applicability; setting forth powers and duties of participating agencies; requiring certain agreements and specifying approval procedures; clarifying legislative findings and intent regarding community and technical college system; renaming certain consortia planning districts and clarifying duties; specifying certain accountability procedures; providing for consortia co-chairs; assigning responsibility for developing collaborative degree completion programming; defining programs of study and directing consortia to focus on identifying and providing student programs of study leading to placement in high-demand, high-wage occupations; requiring initial consortia compacts and annual updates by certain date and specifying approval process; specifying facilitating institutions for certain consortia; providing for select committee to examine higher education outcomes-based funding models; specifying membership; requiring report of findings with recommendations to Legislative Oversight Commission on Education Accountability and Joint Committee on Government and Finance by certain date; updating names of agencies and institutions; making technical corrections; and deleting obsolete language.

On motion of Senator Unger, the Senate concurred in the House of Delegates amendment, as amended.

Engrossed Senate Bill No. 436, as amended, was then put upon its passage.

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. 436) passed with its Senate amended title.

Senator Unger moved that the bill take effect from passage.

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. 436) takes effect from passage.

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

On motion of Senator Unger, the Senate requested the return from the House of Delegates of

Eng. House Bill No. 4542, Relating to unemployment compensation benefits.

Passed by the Senate in earlier proceedings today.

The bill now being in the possession of the Senate,

On motion of Senator Unger, the Senate reconsidered its action by which it adopted Senator Palumbo’s amendment to the title of the bill (shown in the Senate Journal of today, page 62).

The question again being on the adoption of Senator Palumbo’s amendment to the title of the bill.

Thereafter, at the request of Senator Palumbo, unanimous consent being granted, Senator Palumbo’s amendment to the title of the bill was withdrawn.

On motion of Senator Unger, the Senate reconsidered the vote as to the passage of the bill (Eng. H. B. No. 4542).

The vote thereon having been reconsidered,

On motion of Senator Unger, the Senate reconsidered its action by which in earlier proceedings today it adopted Senator Palumbo’s amendment to the bill (shown in the Senate Journal of today, pages 55 through 61, inclusive).

The vote thereon having been reconsidered,

The question again being on the adoption of Senator Palumbo’s amendment to the bill.

Thereafter, at the request of Senator Palumbo, and by unanimous consent, Senator Palumbo’s amendment to the bill was withdrawn.

Thereupon, on motion of Senator Palumbo, the following substitute amendment to the bill (Eng. H. B. No. 4542) was reported by the Clerk and adopted:

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

ARTICLE 5. EMPLOYER COVERAGE AND RESPONSIBILITY.

§21A-5-7. Joint and separate accounts.

(1) The commissioner shall maintain a separate account for each employer, and shall credit his account with all contributions paid by him prior to July 1, 1961. On and after July 1, 1961, the commissioner shall maintain a separate account for each employer, and shall credit said employer's account with all contributions of such employer in excess of seven tenths of one percent of taxable wages; and on and after July 1, 1971, the The commissioner shall maintain a separate account for each employer, and shall credit said the employer's account with all contributions of such the employer in excess of four tenths of one percent of taxable wages: Provided, That any adjustment made in any employer's account after the computation date shall may not be used in the computation of the balance of an employer until the next following computation date: Provided, however, That nothing in this chapter shall be construed to grant grants an employer or individual in his, her or its service prior claims or rights to the amounts paid by him, her or its into the fund, either on his, her or its behalf or on behalf of such the individuals. The account of any employer which had has been inactive for a period of four consecutive calendar years shall be terminated for all purposes.

(6) Effective on and after July 1, 1981, 2012, if an employer has failed to furnish to the commissioner on or before August 31 1980, and each year thereafter, with the exception of 1981, which due date shall be September 30, 1981, of each year the wage information for all past periods necessary for the computation of the contribution rate, such the employer's rate shall be, if it is immediately prior to July 1, 1981 less than seven and five-tenths percent, increased to seven and five-tenths percent.

(7) Effective July 1, 2012, a contributory employer’s account shall not be relieved of charges relating to a payment from the fund if the department determines that:

(B) The employer or agent has established a pattern of failing to respond timely or adequately to such requests.

(8) For purposes of this section:

(A) “Erroneous payment” means a payment that but for the failure by the employer or the employer’s agent with respect to the claim for unemployment compensation would not have been made.

Having been engrossed, the bill (Eng. H. B. No. 4542) was then read a third time and put upon its passage.

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. 4542) passed.

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

Eng. House Bill No. 4542--A Bill to amend and reenact §21A-5-7 of the Code of West Virginia, 1931, as amended, all relating to unemployment compensation benefits; preventing contributory employers from being relieved of benefit charges to their accounts if an overpayment of benefits is the result of the employer's or an employer’s agent’s failure to provide requested information to the agency timely or to adequately; and providing definitions.

Senator Unger moved that the bill take effect July 1, 2012.

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. 4542) takes effect July 1, 2012.

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

At the request of Senator Fanning, unanimous consent being granted, the Senate returned to the second order of business and the introduction of guests.

The Senate again proceeded to the third order of business.

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

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

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. 4422, Relating to crane operator certification.

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. 4424, Relating to modified mental hygiene procedures.

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. 4438, Provider Sponsored Network 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. Com. Sub. for House Bill No. 4451, Ensuring that county executive committees have control of designating the persons who serve as ballot commissioner.

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. 4521, Permitting the restructuring of child support payments of an inmate who is released under certain circumstances.

A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amended title, passage as amended, to take effect July 1, 2012, of

Eng. House Bill No. 4549, Imposing a monetary penalty on unemployment compensation recipients for obtaining benefits through the use of fraudulent statements.

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. 4601, Authorizing the West Virginia National Guard to participate in a federal asset forfeiture or sharing 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. 4634, Removing the requirement for the Legislative Auditor to conduct certain fiscal audits of the Alcohol Beverage Control Commission and the Children's Trust Fund.

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. House Bill No. 4655, Relating to school service personnel certification.

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

House Concurrent Resolution No. 96, The "Fields Brothers Memorial Highway".

Executive Communications

Senator Kessler (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:

STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

March 9, 2012

The Honorable Jeffrey V. Kessler

President, West Virginia Senate

State Capitol

Charleston, West Virginia

Dear President Kessler:

Pursuant to the provisions of section fourteen, article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Committee Substitute for Committee Substitute for Senate Bill No. 379.

While I support the substance of this bill, I must object to the bill because its object is not adequately expressed in the title. The purpose of the bill is to authorize the West Virginia Board of Examiners for Registered Professional Nurses (the "Board") to designate nurse health programs for licensees and applicants for treatment and recovery for alcohol abuse, chemical dependency or major mental illness. The bill would also provide the following: Confidentiality of information; waiver of confidentiality under certain circumstances; disclosure of personal and confidential information; cooperation with and provision of information to licensing boards in other jurisdictions; certain reporting requirements; and immunity from civil liability and suits. The title, however, fails to reference any of the aforementioned provisions. The specified provisions cannot be read to be encapsulated into the title's "all relating to" language. Accordingly, I find the title of the bill inconsistent with the substance of the bill, so as to render Enrolled Committee Substitute for Committee Substitute for Senate Bill No. 379 constitutionally defective.

For this reason, I must veto the legislation. However, I encourage the Legislature to reconsider this matter and return it to my desk for approval.

Very truly yours,

Earl Ray Tomblin,

Governor.

Senator Unger moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate proceed to reconsider

Enr. Com. Sub. for Com. Sub. for Senate Bill No. 379, Authorizing Board of Registered Professional Nurses designate certain treatment and recovery programs for licensees.

Heretofore disapproved and returned by His Excellency, the Governor, with his objections.

The question being on the adoption of Senator Unger’s motion that the Senate reconsider Enrolled Committee Substitute for Committee Substitute for Senate Bill No. 379, the same was put and prevailed.

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

Enr. Com. Sub. for Com. Sub. for Senate Bill No. 379--An Act to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-7-11a; and to amend said code by adding thereto a new article, designated §30-7E-1, §30-7E-2 and §30-7E-3, all relating to authorizing the West Virginia Board of Examiners for Registered Professional Nurses to designate nurse health programs for licensees and applicants for treatment and recovery for alcohol abuse, chemical dependency or major mental illness; enrolling on a voluntary basis without being subject to disciplinary action if the person complies with the goals and restrictions of the program; confidentiality, disclosure and waiver requirements; definitions; requirements for nurse health programs; and immunity from civil liability and civil action.

The question now being on the passage of the bill, disapproved by the Governor and amended by the Senate.

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

The nays were: K. Facemyer--1.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for Com. Sub. for S. B. No. 379) passed with its title, as amended, as a result of the objections of the Governor.

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

At the request of Senator Kirkendoll, unanimous consent being granted, Senator Kirkendoll addressed the Senate regarding his legislative experience.

Thereafter, at the request of Senator Stollings, and by unanimous consent, the remarks by Senator Kirkendoll were ordered printed in the Appendix to the Journal.

The Senate proceeded to the thirteenth order of business.

At the request of Senator Stollings, unanimous consent being granted, it was ordered that the Journal show had Senator Stollings been present in the chamber on yesterday, Friday, March 9, 2012, he would have voted “yea” on the passage of Engrossed Committee Substitute for House Bill No. 4396.

At the request of Senator Wells, and by unanimous consent, it was ordered that the Journal show had Senator Wells been present in the chamber on Wednesday, February 1, 2012, he would have voted “yea” on the passage of Engrossed Committee Substitute for Senate Bill No. 31, Engrossed Committee Substitute for Senate Bill No. 167, Engrossed Senate Bill No. 367, Engrossed Committee Substitute for Senate Bill No. 382, Engrossed Senate Bill No. 385 and Engrossed Senate Bill No. 469.

At the request of Senator Jenkins, unanimous consent being granted, Senator Jenkins addressed the Senate regarding the passage of Engrossed Finance Committee Substitute for Senate Bill No. 437 (Relating generally to substance abuse).

Thereafter, at the request of Senator Unger, and by unanimous consent, the remarks by Senator Jenkins were ordered printed in the Appendix to the Journal.

At the request of Senator Unger, and by unanimous consent, the Senate returned to the fifth order of business.

Senator Plymale, from the committee of conference on matters of disagreement between the two houses, as to

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

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 Senate Bill No. 371 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, 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 §18-5B-12, to read as follows:

ARTICLE 5B. SCHOOL INNOVATION ZONES ACT.

§18-5B-12. School system collaborative innovation zone; requirements to qualify; application for designation; required plans for innovation zones; plan approval; waiver of statutes, policies, rules or interpretations; progress reviews and annual reports; teacher vacancies, job postings and approval.

(a) The Legislature makes the following findings and expressions of legislative intent:

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

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

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

(4) Choosing one county school system under a declared state of emergency due to nonapproval status to designate as an innovation zone would allow the testing of innovations that could be replicated in other school systems facing similar circumstances across the state, nation and world;

(5) Numerous studies have shown an association between a young person’s health status and his or her ability to succeed in educational settings;

(6) McDowell County is unique and should be given the first opportunity to use innovative solutions to improve its education system when the totality of the circumstances set forth in this subsection are considered. Other facts specifically applicable to McDowell County include the following:

(A) The McDowell County school system has been under a continuous declared state of emergency by the state board due to nonapproval status longer than any other county that is currently under a declared state of emergency;

(B) McDowell County school system is engaged in a public-private partnership to begin addressing challenges both within the school system and in the community at large; and

(C) McDowell County has a chronic shortage of good roads, public transportation, housing, Internet bandwidth, recreation centers and health clinics;

(7) This section is intended as an additional tool for an eligible school system in collaboration with community and business partners to plan and implement new approaches to improve the performance and progress of the students, schools and system to achieve full approval at the earliest possible date. It is further the intent of the Legislature that the process for an eligible school system to apply for exceptions under this section should allow multiple opportunities to apply for additional exceptions as the system moves forward with its partners toward fulfillment of its improvement goals; and

(8) In accordance with the intent of this section as an additional tool for planning and implementing new approaches to improve the performance and progress of the students, schools and school system to achieve full approval at the earliest possible date, the state board shall rescind the state of emergency and nonapproval status of a school system designated as a school system collaborative innovation zone as soon as the requisite conditions are met as provided in section five, article two-e of this chapter, notwithstanding the designation. If a school system that has been designated as a school system collaborative innovation zone is subsequently issued a school system approval status that would make it ineligible for the designation, the designation shall remain in effect as provided in this section.

(b) The state board is authorized to choose one county school system currently under a declared state of emergency by the state board due to nonapproval status to participate a program to test the effectiveness of allowing such county school systems to be considered school system collaborative innovation zones. Due to the reasons set forth in subsection (a) of this section, the McDowell County Board of Education shall be provided the first opportunity to submit a school system collaborative innovation zone application under this article. If the McDowell County Board of Education has not submitted an application by April 1, 2013 or less than fifty percent cast ballots in an election to approve a school system collaborative innovation zone plan, the state board may accept applications from other county boards under a declared state of emergency by the state board due to nonapproval status.

(c) The Legislature finds that an emergency exists and, therefore, no later than April 16, 2012, the state board shall promulgate an emergency rule in accordance with section ten, article three-b, chapter twenty-nine-a of this code, to implement the provisions of this article. The state board also shall promulgate a legislative rule, in accordance with article three-b, chapter twenty-nine-a of this code, to implement this section. Both rules shall include, but not be limited to, the following provisions:

(1) The manner, time and process for the submission of a school system collaborative innovation zone application;

(2) The contents of the application, which must include a general description of the innovations the county school district seeks to institute;

(3) Factors to be considered by the state board when evaluating an application, which shall include, but are not limited to, the following factors:

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

(B) The potential for an applicant to be successful in raising student achievement as a school system collaborative innovation zone; and

(4) Standards for the state board to review applications for designation as a school system collaborative innovation zone and to make determinations on the designation of a school system collaborative innovation zone.

(d) The state board shall review school system collaborative innovation zone applications in accordance with the standards adopted by the board and shall determine whether to designate the applicant as a school system collaborative innovation zone. The state board shall notify an applicant of the board’s determination within thirty days of receipt of the application.

(e) Prior to designation by the state board as a school system collaborative innovation zone, county school systems submitting applications shall develop school system collaborative innovation zone plans. The school system collaborative innovation zone plan may include, but is not limited to, the following proposals:

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

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

(3) Allowing a collaborative process which ensures accountability and transparency to all stakeholders;

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

(5) Allowing a collaborative site-based process to reduce certain requirements to allow staff to meet the school’s mission;

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

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

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

(f) Prior to submitting a school system collaborative innovation zone plan to the state board:

(1) The school system in collaboration with its public-private partnership shall conduct public town hall meetings in at least two schools in the county for the purpose of soliciting input from those in attendance on the challenges affecting the quality of education in the county and the potential strategies and priorities for addressing them. The two meetings shall occur within ten days of each other;

(2) Within fifteen days after the town hall meetings, the county superintendent shall hold a meeting for the purpose of reviewing the input gathered at the public town hall meetings and developing the school system collaborative innovation zone plan. The meeting shall include the principals employed within the county, the chairs of the faculty senates of each school in the county, employee organization representatives, school service person from each work-site, parents and other stakeholders;

(3) Within fifteen days after the meeting to develop the school system collaborative innovation zone plan, the county superintendent shall hold a meeting of all regularly employed school employees for the purpose of educating those employees about the plan and for the purpose of providing the employees an opportunity to examine and discuss the school system collaborative innovation zone plan; and

(4) At the meeting required by subdivision (3) of this subsection, the county superintendent shall direct that a vote of all regularly employed school employees in the county be conducted to determine the level of school employee support for the school system collaborative innovation zone plan. The vote shall be completed within fifteen days after the meeting required by subdivision (3) of this subsection. The vote shall be by secret ballot administered by the panels created in subsection (c) section six of this article for each school and shall be administered in accordance with that subsection. For the vote to be valid, ballots must be cast by at least fifty percent of all regularly employed school employees in the county. The plan may not be submitted to the state board and the state board may not designate the school system as a school system collaborative innovation zone unless at least two thirds of the employees voting vote to submit the plan.

(g) Approval of a school system collaborative innovation zone plan pursuant to this section is at the sole discretion of the state board. Any approval requirement not contained within this section does not apply.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(k) Upon approval of the exception by the state board, all exceptions to county and state board rules, policies and interpretations listed in the plan are granted.

(l) A county board designated as an school system collaborative innovation zone pursuant to this section that has an approved innovation zone plan may revise its plan and resubmit its plan to the state board for approval after conducting the vote pursuant to subdivision (4), subsection (f) of this section and complying with all other applicable plan requirements set forth in this section except for holding the public town hall meetings required by subdivision (1), subsection (f) of this section.

(m) The designation of a county school system as a school system collaborative innovation zone shall be for a period of five years. The state board, upon request of the school system, may extend the designation for an additional two years if the school system has outstanding items in its school system collaborative innovation zone plan that it still wants to pursue and only for the purpose of pursuing those outstanding items. The expiration of the designation does not negate any exceptions to statutes, policies, rules or interpretations granted to the school system, unless and until specifically revoked, repealed or modified by the state board or by the Legislature, as applicable.

(n) The state board or its designated committee shall perform annual performance reviews and provide annual reports in accordance with section seven of this article.

(o) A county school system whose plan has been approved may make a job posting for a teacher vacancy in accordance with the procedures and approval provided by section eight of this article.

(p) For any county that is designated as a school system collaborative innovation zone under the provisions of this section and to the extent the following provisions are applicable:

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

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

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

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

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

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

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

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

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

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

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

(3) Area institutions of higher education, such as Concord University and the June Harless Center at Marshall University, are authorized to work with the county board on innovative strategies to address challenges facing the school system and community, including but not limited to, the areas of critical need and shortage in the teaching force, educator professional development and improving the college going rate. In addressing the areas of critical need shortage in the teaching force, consideration should be given to the implementation of an intensively supervised and mentored teacher-in-residence program for prospective teachers during their senior year in lieu of student teaching.;

And,

That both houses recede from their respective positions as to the title of the bill and agree to a new title to read as follows:

Eng. Com. Sub. for Senate Bill No. 371--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-5B-12, relating to allowing flexibility within county school systems; authorizing the State Board of Education to select a county school system to serve as a school system collaborative innovation zone; giving McDowell County first opportunity to submit application; specifying effect of change in school system approval status; requiring the State Board of Education to promulgate rules and emergency rules; providing the procedure and criteria for application and selection as a school system collaborative innovation zone; requiring development of school system collaborative innovation zone plan; setting forth potential innovations; requiring public town hall meetings; requiring meeting to review input from town hall meetings and develop plan; requiring meeting to educate employees about the plan and to allow examination and discussion of plan; requiring vote to determine level of school employee support; authorizing a designated school system to submit requests for exceptions from county and state board rules, policies and interpretations; permitting exceptions from statutes subject to legislative approval; allowing revision and resubmission of approved plan; setting forth duration of plan; requiring annual performance reviews and reports; permitting the posting of certain teaching vacancies; and including, for a school system collaborative innovation zone and to the extent applicable, any land and infrastructure needs in the land use master plan, authorizing an area health association to work with county board in addressing health, wellness and fitness needs and authorizing an area institution of higher education to work with the county board to address certain challenges.

Respectfully submitted,

Robert H. Plymale (Chair), Erik P. Wells, Clark S. Barnes, Conferees on the part of the Senate.

David G. Perry (Chair), Michael Caputo, Ruth Rowan, Conferees on the part of the House of Delegates.

On motions of Senator Plymale, severally made, the report of the committee of conference was taken up for immediate consideration and adopted.

Engrossed Committee Substitute for Senate Bill No. 371, as amended by the conference report, was then put upon its passage.

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 S. B. No. 371) passed with its conference amended title.

Senator Unger moved that the bill take effect from passage.

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. 371) 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.

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

Whereupon, Senator Wills, from the committee of conference on matters of disagreement between the two houses, as to

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

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 House Bill No. 4648 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 §48-27-301 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §51-2A-2 of said code be amended and reenacted, all to read as follows:

CHAPTER 48. DOMESTIC RELATIONS.

ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.

Part 3. Procedure.

§48-27-301. Jurisdiction.

(a) Circuit courts, family courts and magistrate courts, have concurrent jurisdiction over domestic violence proceedings as provided in this article.

(b) The Supreme Court of Appeals is authorized to assign an appropriate judicial officer for one pilot domestic violence court in any jurisdiction chosen by the Supreme Court of Appeals. The judicial officer assigned has the authority and jurisdiction to preside over criminal misdemeanor crimes of domestic violence involving family or household members as defined in subdivisions one through six and paragraphs (A), (B) and (H), subdivision seven, section two hundred four of this article, relating to offenses under subsections (b) and (c), section nine, article two, chapter sixty-one of this code, misdemeanor violations of section nine-a, article two, chapter sixty-one of this code, misdemeanor violations of section twenty-eight, article two, chapter sixty-one of this code, misdemeanor offenses under article three, chapter sixty-one of this code, where the alleged perpetrator and the victim are said family or household members, subdivisions seven and eight, section seven, article seven, chapter sixty-one of this code and civil and criminal domestic violence protective order proceedings as provided in this article. The judicial officer chosen for any pilot domestic violence court may be a current or senior status circuit judge, family court judge, temporary family court judge or magistrate. The Supreme Court of Appeals is requested to maintain statistical data to determine the feasibility and effectiveness of any pilot domestic violence court established by the provisions of this section. The program shall terminate December 31, 2016, and the Supreme Court is requested to provide a report to the President of the Senate and the Speaker of the House of Delegates regarding the program’s efficacy prior to the regular sessions of the Legislature in 2015 and 2016.

(c) The assigned judicial officer, in this pilot domestic violence court, does not have jurisdiction to preside over any felony crimes.

CHAPTER 51. COURTS AND THEIR OFFICERS.

ARTICLE 2A. FAMILY COURTS.

§51-2A-2. Family court jurisdiction; exceptions; limitations.

(a) The family court shall exercise jurisdiction over the following matters:

(1) All actions for divorce, annulment or separate maintenance brought under the provisions of article three, four or five, chapter forty-eight of this code except as provided in subsections (b) and (c) of this section;

(2) All actions to obtain orders of child support brought under the provisions of articles eleven, twelve and fourteen, chapter forty-eight of this code;

(3) All actions to establish paternity brought under the provisions of article twenty-four, chapter forty-eight of this code and any dependent claims related to such actions regarding child support, parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child;

(4) All actions for grandparent visitation brought under the provisions of article ten, chapter forty-eight of this code;

(5) All actions for the interstate enforcement of family support brought under article sixteen, chapter forty-eight of this code and for the interstate enforcement of child custody brought under the provisions of article twenty of said chapter;

(6) All actions for the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child, including actions brought under the Uniform Child Custody Jurisdiction and Enforcement Act, as provided in article twenty, chapter forty-eight of this code;

(7) All petitions for writs of habeas corpus wherein the issue contested is custodial responsibility for a child;

(8) All motions for temporary relief affecting parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child, child support, spousal support or domestic violence;

(9) All motions for modification of an order providing for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child or for child support or spousal support;

(10) All actions brought, including civil contempt proceedings, to enforce an order of spousal or child support or to enforce an order for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child;

(11) All actions brought by an obligor to contest the enforcement of an order of support through the withholding from income of amounts payable as support or to contest an affidavit of accrued support, filed with the circuit clerk, which seeks to collect an arrearage;

(12) All final hearings in domestic violence proceedings;

(13) Petitions for a change of name, exercising concurrent jurisdiction with the circuit court;

(14) All proceedings for payment of attorney fees if the family court judge has jurisdiction of the underlying action;

(15) All proceedings for property distribution brought under article seven, chapter forty-eight of this code;

(16) All proceedings to obtain spousal support brought under article eight, chapter forty-eight of this code;

(17) All proceedings relating to the appointment of guardians or curators of minor children brought pursuant to sections three, four and six, article ten, chapter forty-four of this code, exercising concurrent jurisdiction with the circuit court; and

(18) All proceedings relating to petitions for sibling visitation.

(b) If an action for divorce, annulment or separate maintenance does not require the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child and does not require an award or any payment of child support, the circuit court has concurrent jurisdiction with the family court over the action if, at the time of the filing of the action, the parties also file a written property settlement agreement executed by both parties.

(c) If an action for divorce, annulment or separate maintenance is pending and a petition is filed pursuant to the provisions of article six, chapter forty-nine of this code alleging abuse or neglect of a child by either of the parties to the divorce, annulment or separate maintenance action, the orders of the circuit court in which the abuse or neglect petition is filed shall supercede and take precedence over an order of the family court respecting the allocation of custodial and decision-making responsibility for the child between the parents. If no order for the allocation of custodial and decision-making responsibility for the child between the parents has been entered by the family court in the pending action for divorce, annulment or separate maintenance, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility for the child between the parents and defer to the orders of the circuit court in the abuse or neglect proceedings.

(d) If a family court judge is assigned as a judicial officer of a pilot domestic violence court then jurisdiction of all proceedings relating to criminal misdemeanor crimes of domestic violence as referenced in section three hundred one of this article involving a family or household member as referenced in subdivisions one through six and paragraphs (A), (B), and (H), subdivision seven, section two hundred four, article twenty-seven, chapter forty-eight of this code shall be concurrent with the circuit and magistrate courts.

(e) A family court is a court of limited jurisdiction. A family court is a court of record only for the purpose of exercising jurisdiction in the matters for which the jurisdiction of the family court is specifically authorized in this section and in chapter forty-eight of this code. A family court may not exercise the powers given courts of record in section one, article five, chapter fifty-one of this code or exercise any other powers provided for courts of record in this code unless specifically authorized by the Legislature. A family court judge is not a “judge of any court of record” or a “judge of a court of record” as the terms are defined and used in article nine of this chapter.;

And,

That both houses recede from their respective positions as to the title of the bill and agree to a new title to read as follows:

Eng. House Bill No. 4648--A Bill to amend and reenact §48-27-301 of the Code of West Virginia, 1931, as amended; and to amend and reenact §51-2A-2 of said code, all relating to authorizing the Supreme Court of Appeals to utilize existing judicial officers and resources to establish and implement one domestic violence court pilot project; establishing and clarifying the jurisdiction of the pilot project court; establishing an expiration date for the pilot project and requesting reports to the President of the Senate and Speaker of the House of Delegates prior to the convening of the regular sessions of the legislature in the years 2015 and 2016.

Respectfully submitted,

John R. Frazier (Chair), John N. Ellem, Michael T. Ferro, Conferees on the part of the House of Delegates.

Mark Wills (Chair), Art Kirkendoll, David C. Nohe, Conferees on the part of the Senate.

Senator Wills, Senate cochair of the committee of conference, was recognized to explain the report.

Thereafter, on motion of Senator Wills, the report was taken up for immediate consideration and adopted.

Engrossed House Bill No. 4648, as amended by the conference report, was then put upon its passage.

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. 4648) 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, 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. 4239, Increasing the membership of the West Virginia Board of Osteopathy.

Whereupon, Senator Foster, from the committee of conference on matters of disagreement between the two houses, as to

Eng. Com. Sub. for House Bill No. 4239, Increasing the membership of the West Virginia Board of Osteopathy.

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. 4239 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 and agree to the following:

On page three, section three, line twelve, by striking out the section caption and inserting in lieu thereof a new section caption to read as follows:

§30-14-3. Board of Osteopathic Medicine.;

And,

On pages three and four, section three, by striking out all of subsections (a), (b), (c) and (d) and inserting in lieu thereof four new subsections, designated subsections (a), (b), (c) and (d), to read as follows:

(a) The West Virginia Board of Osteopathy is continued and effective July 1, 2012 shall be known as the West Virginia Board of Osteopathic Medicine. The members of the board shall continue to serve until a successor is appointed and may be reappointed.

(b) The Governor shall appoint, by and with advice and consent of the Senate, two additional members and stagger their initial terms:

(1) One person who is a licensed osteopathic physician or surgeon; and

(2) One person who is a licensed osteopathic physician assistant.

(c) The board consists of the following seven members, who are appointed to staggered terms by the Governor with the advice and consent of the Senate:

(1) Four licensed osteopathic physicians and surgeons;

(2) One licensed osteopathic physician assistant; and

(3) Two citizen members, who are not associated with the practice of osteopathic medicine.

(d) After the initial appointment, a board member’s term shall be for five years.

Respectfully submitted,

Margaret Anne Staggers (Chair), Ryan Ferns, Rick Snuffer, Conferees on the part of the House of Delegates.

Dan Foster (Chair), Brooks F. McCabe, Jr., Dave Sypolt (Did not sign), Conferees on the part of the Senate.

On motions of Senator Foster, severally made, the report of the committee of conference was taken up for immediate consideration and adopted.

Engrossed Committee Substitute for House Bill No. 4239, as amended by the conference report, was then put upon its passage.

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. 4239) passed with its title.

Senator Unger moved that the bill take effect from passage.

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. 4239) takes effect from passage.

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 Palumbo, 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. 211, Creating traffic offenses for texting or using handheld wireless communication device while driving, submitted the following report, which was received:

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. 211 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 14. MISCELLANEOUS RULES.

§17C-14-15. Prohibited use of an electronic communications device driving without handheld features; definitions; exceptions; penalties.

(a) Except as provided in subsection (c) of this section, a person may not drive or operate a motor vehicle on a public street or highway while:

(1) Texting; or

(2) Using a cell phone or other electronic communications device, unless the use is accomplished by hands-free equipment.

(b) For purposes of this section, the following terms shall mean:

(1) “Cell phone” shall mean a cellular, analog, wireless or digital telephone.

(2) “Driving” or “operating a motor vehicle” means operating a motor vehicle, with the motor running, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays, but does not include operating a motor vehicle after the driver has moved the vehicle to the side of, or off, a highway and halted in a location where the vehicle can safely remain stationary.

(3) “Electronic communication device” means a cell telephone, personal digital assistant, electronic device with mobile data access, laptop computer, pager, broadband personal communication device, 2-way messaging device, electronic game, or portable computing device. For the purposes of this section, an “electronic communication device” does not include:

(4) “Engaging in a call” means when a person talks into or listens on an electronic communication device, but shall not include when a person dials or enters a phone number on a pushpad or screen to initiate the call.

(5) “Hands-free electronic communication device” means an electronic communication device that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such electronic communication device, by which a user engages in a call without the use of either hand or both hands.

(6) “Hands-free equipment” means the internal feature or function of a hands-free electronic communication device or the attachment or addition to a hands-free electronic communication device by which a user may engage in a call or text without the use of either hand or both hands.

(B) Inputting, selecting or reading information on a global positioning system or navigation system; or

(8) “Using a cell phone or other electronic communication device” means holding in a person’s hand or hands an electronic communication device while:

(A) Viewing or transmitting images or data;

(B) Playing games;

(C) Composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages or other electronic data; or

(D) Engaging in a call.

(1) A law-enforcement officer, a firefighter, an emergency medical technician, a paramedic or the operator of an authorized emergency vehicle in the performance of their official duties;

(2) A person using an electronic communication device to report to appropriate authorities a fire, a traffic accident, a serious road hazard, or a medical or hazardous materials emergencies.

(3) The activation or deactivation of hands-free equipment or a function of hands-free equipment.

(e) Any person who violates the provisions of subsection (a) of this section is guilty of a traffic offense and, upon conviction thereof, shall for a first offense be fined $100; for a second offense be fined $200; and for a third or subsequent offense be fined $300. No court costs or other fees shall be assessed for a violation of subsection (a).

(g) Driving or operating a motor vehicle on a public street or highway while texting shall be enforced as a primary offense as of July 1, 2012. Driving or operating a motor vehicle on a public street or highway while using a cell phone or other electronic communication device without hands-free equipment shall be enforced as a secondary offense as of July 1, 2012, and as a primary offense as of July 1, 2013 for purposes of citation.

(h) Within ninety days of the effective date of this section, the Department of Transportation shall cause to be erected signs upon any highway entering the state of West Virginia on which a welcome to West Virginia sign is posted, and any other highway where the Division of Highways deems appropriate, posted at a distance of not more than one mile from each border crossing, each sign to bear an inscription clearly communicating to motorists entering the state that texting, or the use of a wireless communication device without hands-free equipment, is illegal within this state.

(i) Nothing contained in this section shall be construed to authorize seizure of a cell phone or electronic device by any law enforcement agency.;

And,

That both houses recede from their respective positions as to the title of the bill and agree to a new title as follows:

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 211--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-14-15, relating to traffic safety; establishing the traffic offense of operating a motor vehicle while texting without the use of hands-free technology; establishing the offense of operating a motor vehicle while using an electronic communication device without the use of hands-free technology; defining terms; providing exceptions; clarifying means of enforcement as a primary offense; impact of violation on insurance coverage; impact of violation on law enforcement ability to seize or confiscate device; requiring signage on certain highways for motorists entering state; providing penalties; providing for increased fines for multiple offenses; assessing points against driver’s license for multiple offenses; exempting offense from the assessment of court costs and fees; and limitations.

Respectfully submitted,

Corey Palumbo (Chair), Herb Snyder, David C. Nohe, Conferees on the part of the Senate.

Larry W. Barker (Chair), John R. Frazier, Bill Hamilton, Conferees on the part of the House of Delegates.

On motions of Senator Palumbo, 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. 211, as amended by the conference report, was then put upon its passage.

Pending discussion,

The question being “Shall Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 211 pass?”

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. 211) passed with its conference amended title.

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 Snyder, and by unanimous consent, the remarks by Senator Browning regarding the passage of Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 211 were ordered printed in the Appendix to the Journal.

Senator Snyder, from the committee of conference on matters of disagreement between the two houses, as to

Eng. Com. Sub. for Senate Bill No. 212, Creating criminal offense for disrupting communications and public utility services.

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 Senate Bill No. 212 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 section, and agree to the same as follows:

ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-49b. Disruption of communications and utilities services.

(1) A disruption of communication services or public utility services to ten or more households or subscribers; or

(2) A loss in the value of the property in an amount of one thousand dollars or more,

shall be guilty of a misdemeanor and, upon conviction thereof, for a first offense, shall be sentenced to not more than two thousand hours of court-approved community service and fined not more than $10,000, or both. For a second offense, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than five years or fined not more than $10,000, or both. For third and subsequent offenses, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility for not less than one nor more than ten years, or fined not more than $10,000, or both.

Respectfully submitted,

Herb Snyder (Chair), Orphy Klempa, Clark S. Barnes, Conferees on the part of the Senate.

Harold K. Michael (Chair), John Doyle, John N. Ellem, Conferees on the part of the House of Delegates.

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 Senate Bill No. 212, as amended by the conference report, was then put upon its passage.

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 S. B. No. 212) passed with its title.

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. Com. Sub. for Com. Sub. for Senate Bill No. 418, Relating to qualifications of Parole Board members,

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. 418 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 §62-12-12 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 12. PROBATION AND PAROLE.

§62-12-12. Parole board generally.

There shall be a state board of parole, known as the (a) The West Virginia Parole Board is continued. The board shall consist of nine members, each of whom shall have been a resident of this state for at least five consecutive years prior to his or her appointment. No more than five of the board members may at any one time belong to the same political party. The board shall be appointed by the Governor, by and with the advice and consent of the Senate.

(b) Appointments following the effective date of this section shall be made in such a manner that each congressional district is represented and so that no more than four and no less than two members of the board reside in any one congressional district. No more than two members of the board may reside in any one county. Each member of the board shall have a degree in criminal justice, or like experience and academic training

(c) Any person initially appointed to the board on or after July 1, 2012, shall have a degree from an accredited college or university or at least five years of actual experience in the fields of corrections, law enforcement, sociology, law, education, psychology, social work, medicine or a combination thereof and shall be otherwise competent to perform the duties of his or her office. The members shall be appointed for overlapping terms of six years. Any member qualified under this section is Members are eligible for reappointment. The members of the board shall devote their full time and attention to their board duties. The Governor shall appoint one of the nine appointed members to serve as chairperson at the Governor’s will and pleasure.;

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. 418--A Bill to amend and reenact §62-12-12 of the Code of West Virginia, 1931, as amended, relating to expanding educational qualifications and adding work experience requirements for members of the Parole Board; and clarifying that members are eligible for reappointment.

Respectfully submitted,

Herb Snyder (Chair), Mark Wills, David C. Nohe, Conferees on the part of the Senate.

Meshea L. Poore (Chair), Clif Moore, Kelli Sobonya, Conferees on the part of the House of Delegates.

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 Committee Substitute for Senate Bill No. 418, as amended by the conference report, was then put upon its passage.

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. 418) passed with its conference amended title.

Senator Unger moved that the bill take effect July 1, 2012.

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. 418) takes effect July 1, 2012.

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

Senator Wills, from the committee of conference on matters of disagreement between the two houses, as to

Eng. Com. Sub. for Senate Bill No. 51, Denying certain spousal support upon DNA evidence of adultery.

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 Senate Bill No. 51 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 House of Delegates, striking out everything after the enacting section, and agree to the same as follows:

ARTICLE 8. SPOUSAL SUPPORT.

§48-8-103. Payment of spousal support.

(2) Prior to admitting evidence of genetic testing, the court shall preliminarily determine whether genetic testing evidence should be admitted for the purpose of disproving or establishing paternity. The facts that may be considered by the court at this hearing include the following:

(B) The length of time during which the individual desiring to challenge paternity assumed the role of parent to the child;

(D) The nature of the parent/child relationship;

(E) The age of the child;

(F) The harm which may result to the child if paternity were successfully disproved;

(G) The extent to which the passage of time reduced the chances of establishing paternity in favor of the child; and

(H) All other factors which may affect the equities involved in the potential disruption of the parent/child relationship or the chances of undeniable harm to the child.

(d) For the purposes of subsection (c), genetic testing must be performed pursuant to the following guidelines:

(1) The tests show that the inherited characteristics including, but not limited to, blood types, have been determined by appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory duly licensed under the laws of this state, or any other state, and an expert qualified as an examiner of genetic markers has analyzed, interpreted and reported on the results; and

(2) The genetic test results exclude the former husband as the father of the child.;

And,

That both houses recede from their respective positions as to the title of the bill and agree to a new title to read as follows:

Eng. Com. Sub. for Senate Bill No. 51--A Bill to amend and reenact §48-8-103 of the Code of West Virginia, 1931, as amended, relating to modifying or terminating spousal support based upon the results of genetic testing; defining “altered circumstances”; requiring a preliminary determination by the court as to whether genetic testing evidence should be admitted; providing facts which may be considered by the court in making the preliminary determination; and providing guidelines for genetic testing.

Respectfully submitted,

Mark Wills (Chair), Gregory A. Tucker, David C. Nohe, Conferees on the part of the Senate.

John R. Frazier (Chair), Michael T. Ferro, John N. Ellem, Conferees on the part of the House of Delegates.

On motions of Senator Wills, severally made, the report of the committee of conference was taken up for immediate consideration and adopted.

Engrossed Committee Substitute for Senate Bill No. 51, as amended by the conference report, was then put upon its passage.

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 S. B. No. 51) passed with its conference amended title.

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

Senator Beach, from the committee of conference on matters of disagreement between the two houses, as to

Eng. Com. Sub. for Senate Bill No. 597, Requiring installation of carbon monoxide detectors in certain facilities.

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 Senate Bill No. 597 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 House of Delegates, striking out everything after the enacting section, and to agree to the same as follows:

ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.

§29-3-16a. Smoke detectors in one- and two-family dwellings; carbon monoxide detectors in residential units; penalty.

(a) On or before July 1, 1991, an An operational smoke detector shall be installed in the immediate vicinity of each sleeping area within all one- and two-family dwellings, including any "manufactured home" as that term is defined in subsection (j), section two, article nine, chapter twenty-one of this code. The smoke detector shall be capable of sensing visible or invisible particles of combustion and shall meet the specifications and be installed as provided in the current edition of the National Fire Protection Association Standard 72, "Standard for the Installation, Maintenance and Use of Household Fire Warning Equipment", 1996 edition, and in the manufacturer’s specifications. When activated, the smoke detector shall provide an alarm suitable to warn the occupants of the danger of fire.

(c) Where a dwelling is not occupied by the owner and is occupied by an individual who is deaf or hearing impaired, the owner shall, upon written request by or on behalf of the individual, provide and install a smoke detector with a light signal sufficient to warn the deaf or hearing-impaired individual of the danger of fire.

(f) After July 1, 1998, an An operational single station carbon monoxide detector with a suitable alarm or a combination smoke detector and carbon monoxide detector, which shall be alternating current (AC) powered, either plugged directly in to an electrical outlet that is not controlled by a switch or hardwired into an alternating current (AC) electrical source, with battery back up, and be installed, maintained, tested, repaired or replaced, if necessary, in accordance with the manufacturer’s direction:

(1) In any newly constructed residential unit which has a fuel-burning heating or cooking source including, but not limited to, an oil or gas furnace or stove; and

(g) Effective January 1, 2013, all single station carbon monoxide detectors with a suitable alarm or a combination smoke detector and carbon monoxide detectors shall be hardwired into an alternating current (AC) electrical source, with battery backup, when installed in all newly constructed apartment buildings, boarding houses, dormitories, hospitals, long-term care facilities, adult or child care facilities, assisted living facilities, one- and two-family dwellings intended to be rented or leased, hotels and motels.

(i) (k) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, for a first offense, shall be fined $250. For a second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined $750. For a third and subsequent offenses, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined $2,000.

(j) (l) A violation of this section may not be considered by virtue of the violation to constitute evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages.

(k) (m) A violation of this section may not constitute a defense in any civil action or proceeding involving any insurance policy.

(l) (n) Nothing in this section shall be construed to limit the rights of any political subdivision in this state to enact laws imposing upon owners of any dwelling or other building described in subsection (a) or (f) of this section a greater duty with regard to the installation, repair and replacement of the smoke detectors or carbon monoxide detectors than is required by this section.;

And,

That both houses recede from their respective positions as to the title of the bill and agree to a new title to read as follows:

Eng. Com. Sub. for Senate Bill No. 597--A Bill to amend and reenact §29-3-16a of the Code of West Virginia, 1931, as amended, relating to carbon monoxide detectors, smoke detectors and sprinkler systems; requiring smoke detectors and sprinkler systems meet and be installed according to current edition of national standard requirements; requiring carbon monoxide detectors be installed in certain public facilities on and after certain effective date; requiring carbon monoxide detectors be hardwired into alternating current on and after certain date; allowing the installation of either single station carbon monoxide detector or combination smoke detector and carbon monoxide detector; providing certain exception for installing carbon monoxide detectors in certain long-term care facilities; providing for minimum specification requirements and testing, maintaining, repairing and replacing carbon monoxide detectors; and providing for certain penalties.

Respectfully submitted,

Robert D. Beach (Chair), Bob Williams, Karen L. Facemyer (Did not sign), Conferees on the part of the Senate.

Tim Manchin (Chair), Barbara Evans Fleischauer, John N. Ellem, Conferees on the part of the House of Delegates.

Senator Beach, Senate cochair of the committee of conference, was recognized to explain the report.

Thereafter, on motion of Senator Beach, the report was taken up for immediate consideration and adopted.

Engrossed Committee Substitute for Senate Bill No. 597, as amended by the conference report, was then put upon its passage.

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 S. B. No. 597) passed with its conference amended title.

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.

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

Whereupon, Senator Tucker, from the committee of conference on matters of disagreement between the two houses, as to

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

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 House Bill No. 4053 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 §30-29-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §61-2-14a of said code be amended and reenacted; and that said code be amended by adding a new section, designated §61-2-17, all to read as follows:

CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 29. LAW-ENFORCEMENT TRAINING AND CERTIFICATION.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-14a. Kidnaping; penalty.

(a) Any person who, by force, threat, duress, fraud or enticement take, confine, conceal, or decoy, inveigle or entice away, or transport into or out of this state or within this state, or otherwise kidnap any other person, or hold hostage any other person for the purpose or with the intent of taking, receiving, demanding or extorting from such person, or from any other person or persons, any ransom, money or other thing, or any concession or advantage of any sort, or for the purpose or with the intent of shielding or protecting himself, herself or others from bodily harm or of evading capture or arrest after he or she or they have committed a crime unlawfully restrains another person with the intent:

(1) To hold another person for ransom, reward, or concession;

(2) To transport another person with the intent to inflict bodily injury or to terrorize the victim or another person; or

(3) To use another person as a shield or hostage,

shall be guilty of a felony and, upon conviction, shall be punished by confinement by the Division of Corrections for life, and, notwithstanding the provisions of article twelve, chapter sixty-two of this code, shall not be eligible for parole.: Provided, That the

(b) The following exceptions shall apply to the penalty contained in subsection (a):

(1) A jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said article twelve; if

(2) If such person pleads guilty, the court may, in its discretion, provide that such person shall be eligible for parole in accordance with the provisions of said article twelve, and, if the court so provides, such person shall be eligible for parole in accordance with the provisions of said article twelve in the same manner and with like effect as if such person had been found guilty by the verdict of a jury and the jury had recommended mercy; in

(3) In all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him, but after ransom, money or other thing, or any concession or advantage of any sort has been paid or yielded, the punishment shall be confinement by the division of corrections for a definite term of years not less than twenty nor more than fifty; in or

(4) In all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him or her, but without ransom, money or other thing, or any concession or advantage of any sort having been paid or yielded, the punishment shall be confinement by the division of corrections for a definite term of years not less than ten nor more than thirty.

(b) (c) For purposes of this section, the terms: "To hold use another as a hostage" means to seize or detain and threaten to kill or injure another in order to compel, a third person or a governmental organization to do or abstain from doing any legal act as an explicit or implicit condition for the release of the person detained.

(c) (d) Notwithstanding any other provision of this section, if a violation of this section is committed by a family member of a minor abducted or held hostage and he or she is not motivated by monetary purposes, but rather intends to conceal, take, remove the child or refuse to return the child to his or her lawful guardian in the belief, mistaken or not, that it is in the child's interest to do so, he or she shall be guilty of a felony and, upon conviction thereof, be confined in a correctional facility for not less than one or more than five years or fined not more than one thousand dollars, or both.

(d) (e) Notwithstanding any provision of this code to the contrary, where a law-enforcement agency of this state or a political subdivision thereof receives a complaint that a violation of the provisions of this section has occurred, the receiving law-enforcement agency shall notify any other law-enforcement agency with jurisdiction over the offense, including, but not limited to, the state police and each agency so notified, shall cooperate in the investigation forthwith.

(f) It shall be a defense to a violation of subsection (d) of this section, that the accused’s action was necessary to preserve the welfare of the minor child and the accused promptly reported his or her actions to a person with lawful custody of the minor, to law-enforcement or to Child Protective Services division of the Department of Health and Human Resources.

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

(a) As used in this section:

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

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

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

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

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

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

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

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

(A) Debt bondage or forced labor or services;

(B) Slavery or practices similar to slavery.

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

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

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

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. 4053--A Bill to amend and reenact §30-29-3 the Code of West Virginia, 1931, as amended; to amend and reenact §61-2-14a of said code; and to amend said code by adding a new section, designated §61-2-17, all relating to kidnapping and human trafficking; authorizing the Governor's Committee on Crime, Delinquency and Correction to establish standards governing training to effectively investigate human trafficking offenses and procedures for implementation of a course in investigation of human trafficking offenses; amending the elements of the crime of kidnapping and providing certain defenses and exceptions; creating the new criminal offense of human trafficking; defining certain terms; specifying the penalties for the new human trafficking offense; and including human trafficking as a qualifying offense in the prohibition against operating a criminal enterprise.

Respectfully submitted,

Tim Manchin (Chair), John N. Ellem, Michael T. Ferro, Conferees on the part of the House of Delegates.

Gregory A. Tucker (Chair), Orphy Klempa, Clark S. Barnes, Conferees on the part of the Senate.

On motions of Senator Tucker, severally made, the report of the committee of conference was taken up for immediate consideration and adopted.

Engrossed Committee Substitute for House Bill No. 4053, as amended by the conference report, was then put upon its passage.

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. 4053) passed with its conference amended title.

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

At the request of Senator Jenkins, unanimous consent being granted, the Senate returned to the second order of business and the introduction of guests.

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

Whereupon, Senator Laird, from the committee of conference on matters of disagreement between the two houses, as to

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

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. 4101 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 six, section one, subsection (e), subdivision (3), by striking out all of paragraph (E) and inserting in lieu thereof a new paragraph, designated paragraph (E), to read as follows:

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

(i) The teacher-in-residence is a student enrolled in the teacher preparation program of the institution of higher education and is not a regularly employed employee of the county board;

(ii) The teacher in residence is included on the certified list of employees of the county eligible for state aid funding the same as an employee of the county at the appropriate level based on their permit and level of experience;

(iii) All state aid funding due to the county board for the teacher-in-residence shall be used only in accordance with the agreement with the institution of higher education for support of the program as provided in the agreement, including costs associated with instruction and supervision as set forth in paragraph (C) of this subdivision;

(iv) The teacher-in-residence is provided the same liability insurance coverage as other employees; and

(v) All state aid funding due to the county for the teacher- in-residence and not required for support of the program shall be paid as a stipend to the teacher-in-residence: Provided, That the stipend paid to the teacher-in-residence shall be no less than sixty-five percent of all state aid funding due the county for the teacher-in-residence.

Respectfully submitted,

Mary M. Poling (Chair), Tiffany E. Lawrence, Marty Gearheart, Conferees on the part of the House of Delegates.

William R. Laird IV (Chair), Dan Foster, Donna J. Boley, Conferees on the part of the Senate.

Senator Laird, Senate cochair of the committee of conference, was recognized to explain the report.

Thereafter, on motion of Senator Laird, the report was taken up for immediate consideration and adopted.

Engrossed Committee Substitute for House Bill No. 4101, as amended by the conference report, was then put upon its passage.

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. 4101) 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. 2278, Authorizing the use of additional medium for use in archiving government records.

Whereupon, Senator Miller, from the committee of conference on matters of disagreement between the two houses, as to

Eng. Com. Sub. for House Bill No. 2278, Authorizing the use of additional medium for use in archiving government records.

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. 2278 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 agree to the amendment of the Senate to the bill striking out everything after the enacting section, excepting section twenty.

And,

That both houses recede from their respective positions as to the amendment of the Senate on page six, section twenty, by striking out all of subsection (f), and inserting in lieu thereof a new subsection, designated subsection (f), to read as follows:

(f) Upon request and payment of a reasonable cost, one copy of any state record archived or preserved pursuant to the provisions of this article shall be provided to any person or entity: Provided, That the person or entity that has produced the state record may receive one copy without charge.

Respectfully submitted,

Tim Manchin (Chair), Barbara Evans Fleischauer, Patrick Lane, Conferees on the part of the House of Delegates.

Ronald F. Miller (Chair), Brooks F. McCabe, Jr., Dave Sypolt, Conferees on the part of the Senate.

On motions of Senator Miller, severally made, the report of the committee of conference was taken up for immediate consideration and adopted.

Engrossed Committee Substitute for House Bill No. 2278, as amended by the conference report, was then put upon its passage.

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. 2278) 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 adoption by that body of the committee of conference report, passage as amended by the conference report with its conference amended title, 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. 4396, West Virginia Fire, EMS and Law-Enforcement Officer Survivor Benefit Act.

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. 4396, West Virginia Fire, EMS and Law-Enforcement Officer Survivor Benefit Act.

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. 4396 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 agree to the amendment of the Senate to the bill striking out everything after the enacting clause, excepting section two.

That both houses recede from their respective positions as to the amendment of the Senate on page two, section two, subsection (e), and agree to the same as follows:

(e) Certification shall include the name of the certified fire, EMS or law-enforcement program, the name of the deceased firefighter, EMS or law-enforcement provider, the name and address of the beneficiary, any documentation designating a beneficiary or beneficiaries and setting forth the circumstances that qualify the deceased individual for death benefits under this act. Upon receipt of the certification from the certified fire, EMS or law-enforcement program, the state shall, from moneys from the State Treasury, General Fund, pay to the certified fire, EMS or law-enforcement program the sum of $50,000 in the name of the beneficiary of the death benefit. Within five days of receipt of this sum from the state, the fire, EMS or law-enforcement program certified by the state shall pay the sum as a benefit to the surviving spouse or designated beneficiary. If there is no surviving spouse or designated beneficiary, then to the minor children of the firefighter, EMS or law-enforcement provider killed in the performance of duty. When no spouse, designated beneficiary, or minor children survive, the benefit shall be paid to the parent or parents of the firefighter, EMS or law-enforcement provider. It is the responsibility of the certified fire or EMS program to document the surviving spouse or beneficiary for purposes of reporting to the Governor’s office.;

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. 4396--A Bill to amend and reenact §5H-1-1, §5H-1-2 and §5H-1-3 of the Code of West Virginia, 1931, as amended, all relating to authorizing a death benefit to the surviving spouse or designated beneficiary or contingent beneficiaries of law-enforcement officers who die in the performance their duties; requiring agencies to notify employees of the possible benefit; encouraging departments to obtain and preserve written designations of beneficiaries; and establishing an effective date of January 1, 2012.

Respectfully submitted,

Daniel Poling (Chair), Doug Skaff, Jr., Mitch Carmichael, Conferees on the part of the House of Delegates.

Herb Snyder (Chair), Art Kirkendoll, Clark S. Barnes, 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. 4396, as amended by the conference report, was then put upon its passage.

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. 4396) passed with its conference amended title.

Senator Unger moved that the bill take effect from passage.

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. 4396) 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. 4542, Relating to unemployment compensation benefits.

The Senate again proceeded to the sixth order of business.

At the request of Senator Hall, unanimous consent being granted, Senators Hall, Kessler (Mr. President), Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Green, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Williams, Wells, Wills and Yost offered the following resolution from the floor:

Senate Resolution No. 61--Recognizing the service of the Honorable Karen Facemyer, member of the West Virginia Senate, former member of the West Virginia House of Delegates and dedicated public servant.

Whereas, Karen Facemyer was born June 17, 1954, in Fort Belvoir, Virginia, the daughter of Mary E. and the late John E. Froendt; and

Whereas, Karen Facemyer received her education from Glenville State College (BS); Marshall University (MS); and

Whereas, Karen Facemyer was first elected to the West Virginia House of Delegates in 1992, 1994, 1996 and 1998, and then was elected to the Senate in 2000, 2004 and 2008; and

Whereas, The Honorable Karen Facemyer is the Minority Whip of the 80th Legislature and currently serves on the Committees on Agriculture, Banking and Insurance, Economic Development, Energy, Industry and Mining, Judiciary, Natural Resources, Transportation and Infrastructure. Additionally, she serves on the Joint Committee Government and Finance, Legislative Rule-Making Committee, Joint Commission on Economic Development, and Forest Management Review Commission; and

Whereas, The Honorable Karen Facemyer is married to her beloved husband Leslie R. Facemyer, with whom she shares the joy of having two sons, Travis Lee and Justin Michael; and

Whereas, The Honorable Karen Facemyer has decided not to seek reelection in 2012, bringing an end to a distinguished career in public service; therefore, be it

Resolved by the Senate:

That the Senate hereby recognizes the service of the Honorable Karen Facemyer, member of the West Virginia Senate, former member of the West Virginia House of Delegates and dedicated public servant; and, be it

Further Resolved, That the Senate hereby expresses its sincere appreciation to the Honorable Karen Facemyer for her dedication and commitment to the citizens of the 4th senatorial district and the State of West Virginia; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Honorable Karen Facemyer.

At the request of Senator Hall, 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, and on this question, Senator Sypolt demanded the yeas and nays.

The roll being taken, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--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 resolution (S. R. No. 61) adopted.

Thereafter, at the request of Senator Unger, and by unanimous consent, the remarks by Senator Hall regarding the adoption of Senate Resolution No. 61 were ordered extended in the Journal as follows:

SENATOR HALL: I would just like to speak to this resolution briefly. I was elected in 1994. It was one session after the Senator from Jackson County was elected. When I came to the Legislature, I’ll never forget what Senator Facemyer said to me as I was sitting in the House. She said, “You know we heard that you were a preacher and we weren’t exactly sure what to think you might do when you came here.”

So what happened was I was placed on the floor of the House with Larry Faircloth on the left and the Senator from Jackson on the right. And, of course, being new to the legislative process, she took me under her wing and taught me many things about the process. One of the things I learned very quickly about the Senator from Jackson was how much she had learned in just one term. She’s a quick study and--as you’ve actually seen today--she knows how this process works. She’s often told me, “Watch out for this” or “Watch out for that.” She’s been doing that for 18 years.

After serving together in the House for six years, she left me in the year 2000 and came to this body. It was a few years later that I came to join her.

So it’s with some degree of sadness and emotion that I look to the right and there she is 18 years later. This will be our last time to sit together on the floor of this legislative body. I just can’t tell you how much I have appreciated her friendship over the years and the work that she’s done for the State of West Virginia. She’s truly been a great public servant all of these years.

I don’t know if applause is appropriate, but I just wanted to tell her how much I have appreciated her work over the years as she goes on to the next step in life.

________

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

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

At the request of Senator McCabe, unanimous consent being granted, Senators McCabe, Palumbo, Wells, Kessler (Mr. President), Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, Miller, Minard, Nohe, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Williams, Wills and Yost offered the following resolution from the floor:

Senate Resolution No. 62--Recognizing the service of the Honorable Dan Foster, member of the West Virginia Senate, former member of the West Virginia House of Delegates and dedicated public servant.

Whereas, Dan Foster was born January 31, 1948, in Oak Ridge, Tennessee, the son of Ward and Mary Foster; and

Whereas, Dan Foster received his education from Harvard College (BA) and Stanford University School of Medicine (MD), and did his Surgery Residency at Tulane University Associated Hospitals; and

Whereas, Dan Foster was first elected to the West Virginia House of Delegates in 2002, and then elected to the West Virginia Senate in 2004 and 2008; and

Whereas, The Honorable Dan Foster currently serves on the Committees on Pensions (Chair), Health and Human Resources (Vice Chair), Education, Government Organization, Judiciary, and Labor. Additionally, he serves on the Legislative Oversight Commission on Health and Human Resources Accountability and Joint Committee on Pensions and Retirement (Cochair); and

Whereas, The Honorable Dan Foster is married to his beloved wife Kathy, with whom he shares the joy of having three sons, Brad, Doug, and Greg; and

Whereas, The Honorable Dan Foster has decided not to seek reelection in 2012, bringing an end to a distinguished career in public service; therefore, be it

Resolved by the Senate:

That the Senate hereby recognizes the service of the Honorable Dan Foster, member of the West Virginia Senate, former member of the West Virginia House of Delegates and dedicated public servant; and, be it

Further Resolved, That the Senate hereby expresses its sincere appreciation to the Honorable Dan Foster for his dedication and commitment to the citizens of Kanawha County and the State of West Virginia; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Honorable Dan Foster.

At the request of Senator McCabe, 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, and on this question, Senator Unger demanded the yeas and nays.

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 resolution (S. R. No. 62) adopted.

Thereafter, at the request of Senator Unger, and by unanimous consent, the remarks by Senators McCabe, Wells and Palumbo regarding the adoption of Senate Resolution No. 62 were ordered extended in the Journal as follows:

SENATOR MCCABE: Mr. President, it’s a real honor that I’m able to present this resolution on behalf of my colleagues from Kanawha County. My fellow senator, specifically in the seventeenth, is a friend to all of us and has been a guiding light in a number of key, extremely important issues whether it be health care or pensions. He really has shown the Senator from Pocahontas County the way to go, as far as pensions, and we have learned a lot in that effort.

The real point is that my colleague from the seventeenth is persistent, is honest, is sincere and absolutely believes in what he’s doing in those issues whether it’s pensions, health care or a wide variety of other issues. He has shown all of us the way.

He has shown us the way with integrity, with leadership and his ability to bring us together. Somehow he has never raised his voice, but he is as much of a bulldog as any one of us in the Senate. He has shown me how to do it right.

It is with extreme pleasure that this resolution is presented. I and my colleagues from the eighth are honored to have the Junior Senator from the Seventeenth to be with us.

Thank you.

________

SENATOR WELLS: I had obviously interviewed the Junior Senator from the Seventeenth multiple times in my previous career and, as the Senior Senator from the Seventeenth said, he was always very honest and straightforward and very calm in his demeanor.

After getting here to the Senate, one day I was walking up near the Senate Finance committee office and the Senator from Pocahontas was there and we started talking--it was a little private conversation, but I don’t think the Senator from Pocahontas will mind this. He just started talking about how the guys from Kanawha County are just a little bit too liberal. And then he said, “But, Erik, you kind of surprised me a little bit. You’re not quite as liberal as I thought you were going to be.”

He said, “That Doc Foster--you’ve just got to watch him.” I’m sitting there thinking what’s he going to say? The Senior Senator from the Seventeenth just eluded to it. He said, “Doc Foster just doesn’t give up. He’ll just go, go, go, go, go.” And I think that’s a great testament for all of us: To be that passionate, that concerned about the issues that matter to you. The Junior Senator from the Seventeenth did not give up.

As he leaves tonight--in fact, he won’t give up during the interims either--but as he leaves tonight for his final day here at the session, I think that is something that is very fitting for this entire body. Sometimes it’s difficult but just don’t give up if you believe in something. Eventually you are going to convince enough people to believe in it, too. It just takes a little bit of time.

Thank you very much, Mr. President.

________

SENATOR PALUMBO: I also would like to rise in support of this resolution. The Junior Senator from the Seventeenth and I started in the House of Delegates together ten years ago.

He sort of came in on the issue of medical malpractice reform and was such a leading voice for that and a great leader for the Legislature on that issue. But he’s had such a more broad perspective and has been a leader on some of the other issues like pensions, substance abuse and prison overcrowding. And, like everyone’s mentioned, he has been such a hard worker on all of the important issues that he believes in. He’s really been a role model on hard work and dedication and determination, I think, for all of us to follow.

My only disappointment as we close this session this year is that the prison overcrowding bill that he worked so hard on with the Senator from Cabell and the Senator from Wood in the subcommittee did not pass. We were hoping we would get it into a conference committee, at least, but that failed tonight. I’m very disappointed for him and really for the state that we weren’t able to make progress on that. But one thing is for sure: It’s not because of a lack of hard work and effort on the part of the Junior Senator from the Seventeenth.

So I’ll certainly miss your friendship around here and your hard work.

________

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

Upon expiration of the recess, the Senate reconvened and, at the request of Senator Unger, unanimous consent being granted, returned to the fourth order of business.

Senator Kessler (Mr. President), from the Committee on Rules, submitted the following report, which was received:

Your Committee on Rules has had under consideration

Senate Concurrent Resolution No. 70, Requesting Joint Committee on Government and Finance study access to hearing aid devices and accessories.

And,

Senate Concurrent Resolution No. 93, Requesting Joint Committee on Government and Finance study advanced practice nurse scope of practice.

And reports the same back with the recommendation that they each be adopted.

Respectfully submitted,

Jeffrey V. Kessler,

Chairman ex officio.

At the request of Senator Unger, unanimous consent being granted, the resolutions were taken up for immediate consideration and considered simultaneously.

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

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

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

Your Committee on Government Organization has had under consideration

Senate Concurrent Resolution No. 101 (originating in the Committee on Government Organization)--Requesting the Joint Committee on Government and Finance to study the application process and the project review process of the Infrastructure and Jobs Development Council.

Whereas, The Infrastructure and Jobs Development Council’s application process and project review process are extremely cumbersome; and

Whereas, Applicants need to understand with some reasonable certainty what to expect during the application process and project review process; and

Whereas, The Infrastructure and Jobs Development Council needs to establish a more efficient application process and project review process; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the application process and the project review process of the Infrastructure and Jobs Development Council; and, be it

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

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

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

Respectfully submitted,

Herb Snyder,

Chair.

At the request of Senator Snyder, unanimous consent being granted, the resolution (S. C. R. No. 101) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration.

On motion of Senator Snyder, the resolution was then referred to the Committee on Rules.

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

Your Committee on Government Organization has had under consideration

Senate Concurrent Resolution No. 102 (originating in the Committee on Government Organization)--Requesting the Joint Committee on Government and Finance to study the Fleet Management Office within the West Virginia Department of Administration.

Whereas, The Fleet Management Office is responsible for the management of all vehicles for the State of West Virginia; and

Whereas, The Fleet Management Office must ensure that the vehicles are appropriate to the transportation needs of the user; and

Whereas, The economic environment mandates that the State of West Virginia pursue efficiencies in all government operations, including whether vehicles should be leased or purchased for the state; and

Whereas, The Fleet Management Office’s purchase and lease process should be completed in a timely manner; therefore, be it Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the Fleet Management Office within the West Virginia Development Administration; and, be it

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

Respectfully submitted,

Herb Snyder,

Chair.

At the request of Senator Snyder, unanimous consent being granted, the resolution (S. C. R. No. 102) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration.

On motion of Senator Snyder, the resolution was then referred to the Committee on Rules.

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

Your Committee on Government Organization has had under consideration

Senate Concurrent Resolution No. 103 (originating in the Committee on Government Organization)--Requesting the Joint Committee on Government and Finance to study the Historical Preservation Office’s authority to review projects at the state and local levels.

Whereas, The Historical Preservation Office is part of the approval process of public and private economic development projects; and

Whereas, As a state agency, private citizens are affected by the actions taken by the Historical Preservation Office; and

Whereas, The Historical Preservation Office handles not only individual reviews of historical structures, but is also the formal state agency that nominates structures and areas to the National Historic Register; and

Whereas, The Historical Preservation Office’s actions may have far reaching affects; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the Historical Preservation Office’s authority to review projects at the state and local level; and, be it

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

Respectfully submitted,

Herb Snyder,

Chair.

At the request of Senator Snyder, unanimous consent being granted, the resolution (S. C. R. No. 103) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration.

On motion of Senator Snyder, the resolution was then referred to the Committee on Rules.

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

Your Committee on Government Organization has had under consideration

Senate Concurrent Resolution No. 104 (originating in the Committee on Government Organization)--Requesting the Joint Committee on Government and Finance to study the need to increase homestead exemption on real property and the fiscal effect on state and local government.

Whereas, The current homestead exemption on real property was established in 1982; and

Whereas, The taxes on real property have increased; and

Whereas, The exemption is not helping the citizens of West Virginia it intended to help; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the need to increase the homestead exemption on real property and the fiscal effect on state and local government; and, be it

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

Respectfully submitted,

Herb Snyder,

Chair.

At the request of Senator Snyder, unanimous consent being granted, the resolution (S. C. R. No. 104) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration.

On motion of Senator Snyder, the resolution was then referred to the Committee on Rules.

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

Your Committee on Government Organization has had under consideration

Senate Concurrent Resolution No. 105 (originating in the Committee on Government Organization)--Requesting the Joint Committee on Government and Finance to study the efficiency and economics of local government.

Whereas, The current local government system was established in the 19th century; and

Whereas, In the 21st century, the current local government system may not longer be efficient or economically viable to serve the public needs; and

Whereas, There may be more efficient local government systems to serve the citizens of West Virginia; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the efficiency and economics of local government; and, be it

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

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

Respectfully submitted,

Herb Snyder,

Chair.

At the request of Senator Snyder, unanimous consent being granted, the resolution (S. C. R. No. 105) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration.

On motion of Senator Snyder, the resolution was then referred to the Committee on Rules.

At the request of Senator Foster, unanimous consent being granted, Senator Foster addressed the Senate regarding his legislative service.

Thereafter, at the request of Senator Unger, and by unanimous consent, the remarks by Senator Foster were ordered extended in the Journal as follows:

SENATOR FOSTER: It’s obviously been a very emotional day for me, and I appreciate all of the wonderful feelings by you and the other members of the Senate.

I am a latecomer to public service as most of you know. A little history: A defining moment for me occurred almost exactly 44 years ago in terms of my initiation to public service. I attended a St. Patrick’s Day parade where I saw, in the same parade, both Robert Kennedy and Eugene McCarthy. This planted a seed which laid dormant for many years.

Obviously, I went off in some other directions. I would not recommend my educational career path to others as the road to political success, but it does have its advantages--unless too many of my patients get referred to the Senator from McDowell or the Senator from Mingo.

Many of you know that I spent two years in the House of Delegates, and this gave me a taste of what West Virginia politics is about. It must have been quite an experience though. As many of you know, not too long after my two sessions in the House of Delegates and the months immediately preceding my election to this chamber, I had a bit of an issue with my heart leading to my own brush with major surgery. But once I got here, I’m happy to report, both my physical and mental health have been excellent--although there may be some who question my mental assessment.

To be honest, this chamber and its members nurtured me during that period of time, but my family, and my wife in particular, were extremely important in making sure that I was taking care of myself. And I’m glad to report they have been, at least in my view, successful.

I’m very appreciative of the friendship, counsel and support of all of those who’ve served in this body. Almost without exception, the members and staff have treated me with respect and made my entire experience rewarding and memorable. In those situations--and I hope they’ve been very few--when I’ve spoken something unkind or thoughtless to others during my service, I apologize and hope you will understand that I was tired and frustrated, or both, and that nothing of a personal nature was meant.

The members of the Senate staff have gone out of their way to make me look good even in those numerous situations where that undoubtedly was quite challenging. I greatly appreciate that. I also want to make special mention to both presidents whom I served as well and who throughly provided great leadership to this body and to me along with the Clerk, Sergeant at Arms and the Doorkeeper who have greatly contributed to the creation of a sense of collegiality which this body certainly exudes.

My father once told me that persistence will usually trump creativity and imagination. Since I’m clearly lacking in the latter, I’ve been a long time and ardent advocate of the values of persistence as my colleague noted a few minutes ago and I’m sure many of you are aware.

I humbly appreciate your indulgence of this trait of mine as well as the other aspects of my surgical personality. Juggling the competing interests between commitment to principle and flexibility with willingness to compromise is something that is not easy. But I have been impressed by how the members of the West Virginia Senate have been able to strike this balance as well as any legislative body that I’m aware of.

Its been with a great deal of pride that I have worn the title of West Virginia State Senator for these eight years and will continue to feel that pride in the future. Although I’ll be around for several months yet, when the time does ultimately come, I know I’ll miss this institution and its members and staff, both collectively and individually.

My experience here will always remain an important part of what I consider my life work. I trust that I have made at least a small positive difference in our state’s future. And, from what I’ve learned during my time here, I’m certain there are those who will remain and those who will subsequently follow. You will continue to serve with few thoughts of self-interest or political preservation but primarily with the short- and long-term needs of the citizens of the great State of West Virginia.

May each and every one of you be granted all of life’s blessings.

Thank you very much.

________

At the request of Senator Fanning, unanimous consent being granted, Senator Fanning addressed the Senate regarding his legislative service.

Thereafter, at the request of Senator Stollings, and by unanimous consent, the remarks by Senator Fanning were ordered extended in the Journal as follows:

SENATOR FANNING: I didn’t intend to speak. I thought I had my day the other day, and I appreciate everything. But since my two colleagues who are leaving with me got very emotional--you’ve got to be experienced in this game--I’ve cried a lot. I’ve thought a lot, but there are days you just have to go on.

Many years ago, I served with Governor Arch Moore. He was a great Governor and he told me a little story: He said, “Fanning, I like you.” I said, “Well, Governor, I like you.” He said, “But don’t get your feet in cement.” I said, “What are you talking about?” He said, “If you get your feet in cement, you can’t dance, you can’t move.”

So to the members of the Senate whom we are leaving behind, don’t get your feet in cement. The greatest thing that he ever taught me when I first came here was the art of compromise. It’s a give-and-take game. I don’t know where my friend, the Pocahontas man went, but he used to say to me, “Some days the bear gets you and some days you get the bear.” And so it’s one of those things that you have to realize what you’re running into.

But I don’t want to take your time. I want to say it’s been an honor. I’ve enjoyed it. I think the West Virginia State Senate is a unique love. You can go all the way around but you don’t have many who don’t belong here and there are people here who are dedicated. As the Senator from Logan said, “These people here try to do the best for the State of West Virginia and they always have.”

Mr. President, I thank you for your kindness. I thank all of the members for your kindness. I wish you well and good luck to you all.

________

The midnight hour having arrived, the President stated all unfinished legislative business, with the exception of the budget bill, had expired due to the time element.

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 adoption of the committee of conference report, passage as amended by the conference report with its conference amended title, of

Eng. Com. Sub. for Senate Bill No. 51, Relating to spousal support based upon genetic testing results.

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 211, Creating traffic offenses for texting or using handheld wireless communication device while driving.

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 Senate Bill No. 212, Creating criminal offense for disrupting communications and public utility services.

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

A message from The Clerk of the House of Delegates announced the concurrence by that body in the reconsideration, amendment and passage as amended, by a vote of a majority of all the members elected to the House of Delegates, as a result of the objections of the Governor, of

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 379, Authorizing Board of Examiners for Registered Professional Nurses designate certain treatment and recovery programs for licensees and applicants.

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 418, Relating to qualifications of Parole Board members.

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 amendment to, and the passage as amended, with its Senate amended title, to take effect from passage, of

Eng. Senate Bill No. 436, Facilitating collaboration between public school and higher education systems to promote seamless curricula.

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, of

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 437, Relating generally to substance abuse.

Eng. Com. Sub. for Senate Bill No. 562, Establishing DEP procedure for biologic component compliance of narrative water quality standard.

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. 563, Clarifying Chief Technology Officer's responsibility prior to transfer or retirement of certain equipment.

Eng. Com. Sub. for Senate Bill No. 572, Replacing "advanced nurse practitioner" with "advanced practice registered nurse".

Eng. Com. Sub. for Senate Bill No. 597, Requiring installation of carbon monoxide detectors in certain public facilities.

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. 611, Developing special community-based pilot demonstration project to improve at-risk youth outcomes.

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. 677, Expiring funds from DHHR, Medicaid Fraud Control Fund, and making supplementary appropriation to DHHR, Division of Human Services.

On motion of Senator Unger, the Senate adjourned until tomorrow, Sunday, March 11, 2012, at 12:01 a.m. for an extended session to complete action on the annual state budget, under authority of the Governor’s proclamation issued March 7, 2012, extending the second annual session of the eightieth Legislature until and including the thirteenth day of March, two thousand twelve, solely for that purpose, as being the only permissive legislation within constitutional purview.

____________

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