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Monday, February 10, 2003


The House of Delegates met at 1:00 p.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Friday, February 7, 2003, being the first order of business, when the further reading thereof was dispensed with and the same approved.
At the request of Delegate Staton, and by unanimous consent, the applicable provisions of House Rule 136, relating to privileges of the floor, were suspended for the week to extend privileges of the floor to the Frasure-Singleton Interns and other invited guests for a presentation by the House.
Committee Reports

Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. C. R. 11, Requesting the West Virginia Division of Highways to name the bridge located on Route 85, Kopperston Road, Wyoming County, West Virginia, the "Wavel Wayne Powell Bridge".
And reports the same back with the recommendation that it be adopted.
At the request of Delegate Staton, and by unanimous consent, the resolution (H. C. R. 11) was taken up for immediate consideration and read by the Clerk
H. C. R. 11 was then adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2121, Establishing the "All-Terrain Vehicle Safety Act" and the reasons therefor.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new chapter, designated chapter seventeen-f, to read as follows:

CHAPTER 17F. ALL-TERRAIN VEHICLES.

ARTICLE 1. REGULATION OF ALL-TERRAIN VEHICLES.
§17F-1-1. Definitions.
As used in this chapter:
(1) 'All-terrain vehicle' or 'ATV' means a three-wheeled or four-wheeled motor vehicle, generally characterized by large low-pressure tires, a seat designed to be straddled and handlebars for steering, which is intended for off-road use usually on various types of non-paved terrain other than an unpaved race track;
(2) 'Commissioner' means the commissioner of the division of motor vehicles.
§17F-1-2. Acts prohibited by operator.

(a) No all-terrain vehicle may be operated in this state:

(1) On any interstate highway except by public safety personnel responding to emergencies;
(2) On any road or highway with a center line or more than two lanes and a speed limit of sixty-five miles per hour or less except for the purpose of crossing the road, street or highway, if:
(A) The crossing is made at an angle of approximately ninety degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
(B) The vehicle is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
(C) The operator yields his or her right of way to all oncoming traffic that constitutes an immediate potential hazard; and
(D) Both the headlight and taillight are illuminated when the crossing is made if the vehicle is so equipped.
(3) On any road, trail or any other lands within boundaries of any state park, state forest or wildlife management area except as may be authorized by the director of the division of natural resources by rule promulgated pursuant to the provisions of article three, chapter twenty-nine-a of this code;
(4) On any road, trail or any other lands within the boundaries of the Hatfield-McCoy Recreation Area, except as may be authorized by rule promulgated pursuant to the provisions of article three, chapter twenty-nine-a of this code by the Hatfield-McCoy Recreation Area Authority;
(5) On any road, trail or any other lands under the jurisdiction of the state rail authority except as may be authorized by the authority by rule promulgated pursuant to the provisions of article three, chapter twenty-nine-a of this code;
(6) On any road, trail or any other lands within the boundaries of land owned by a non-profit or not-for-profit entity used for public recreational purposes except as authorized by the governing board of such entity;
(7) Within the boundaries of any municipal or county owned or operated recreational area except as may be authorized by the county commission of said county;
(8) Unless operators and passengers, if any, under the age of eighteen are wearing protective helmets that meet the current performance specification established by the American National Standards Institute Standard, Z 90.1, the United States Department of Transportation Federal Motor Vehicle Safety Standard No. 218 and any passenger under the age of eighteen riding with an operator under the age of eighteen rides astraddle the vehicle with both feet, where applicable, on the vehicle's running boards;
(9) With a passenger unless the operator is at least seventeen years of age;
(10) Anytime from sunset to sunrise without an illuminated headlight or lights and tail lights;
(11) Without United States Forest Service qualified spark arrester and a manufacturer- installed or equivalent muffler in proper working order and properly connected to the vehicle's exhaust system;
(12) Unless operating in compliance with the provisions of section three of this article; or
(13) In a careless or reckless manner so as to endanger or cause injury or damage to any person or property.
(b) Any person not exempted by the provisions of this article who violates the provisions of subdivisions (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12) or (13), subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars.
(c) No provision of this section may be construed to prohibit a municipal, county or state law- enforcement officer from entering upon private lands while in active pursuit of an operator of an all- terrain vehicle who has violated a provision of this section if occurred in the officer's presence.
(d) Notwithstanding any provision of this chapter to the contrary, an all-terrain vehicle may, for the sole purpose of getting from one trail, field or area of operation to another, be operated upon the shoulder or as close as possible to the edge of a road, street or highway, other than an interstate highway for a reasonable distance, if:
(1) The vehicle is operated at speeds of twenty-five miles per hour or less; and
(2) If operated at any time from sunset to sunrise, the all-terrain vehicle must be equipped with headlights and taillights which must be illuminated.
(e) For purposes of subsection (d) of this section, the reasonable distance which may be traveled for the sole purpose of getting from one trail, field or area of operator to another upon the shoulder or as close as possible to the edge of a road, street or highway, other than an interstate highway, shall not exceed that distance as established for farm use vehicles and shall be set by the commissioner by rule.
(f) Notwithstanding the provisions of this chapter to the contrary, a municipality, county or other political subdivision of the state may authorize the operation of all-terrain vehicles on certain paved roads, streets or highways which are marked with centerline pavement markings, other than interstate highways, to allow participation in parades, exhibitions and other special events, or for specified purposes, or in emergencies.
§17F-1-3. Safety training.
(a) On and after the first day of July, two thousand three, the commissioner of the division of motor vehicles shall offer a free all-terrain vehicle rider safety training course, and may approve other free all-terrain vehicle rider safety training courses, to meet the reasonably anticipated needs of the public. The commissioner shall offer free safety training course materials free of charge to authorized dealers of all-terrain vehicles, the materials and courses to be provided by the authorized dealers free of charge to purchasers and potential purchasers.
(b) The commissioner shall issue certificates of completion to persons who satisfactorily complete the requirements of an approved course. The commissioner may authorize a dealer of all- terrain vehicles to issue the certificates of completion so long as the dealer has provided a free rider safety training course free of charge, as authorized and approved by the division.
(c) On and after the first day of July, two thousand three, a person under the age of eighteen may operate an all-terrain vehicle only by obtaining a certificate of completion of a vehicle rider training course as offered or approved by the commissioner; or a person aged eighteen or over may operate an all-terrain vehicle by possessing a valid driver's license.
(d) The commissioner shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to facilitate the implementation of this article.
§17F-1-4. Local government authority to regulate.
(a) Notwithstanding any provision of this code to the contrary, a municipality may regulate in any manner not inconsistent with the provisions of this chapter or prohibit, by lawfully enacted ordinance, the operation of all-terrain vehicles upon any street, road or avenue within the municipal corporate limits not regulated by the provisions of subdivision (3), (4), (5), (6) or (7) , subsection (a), section two of this article.
(b) Notwithstanding any provision of this code to the contrary, the county commission of each county may regulate in any manner not inconsistent with the provisions of this chapter or prohibit, by lawfully enacted ordinance, the operation of all-terrain vehicles upon any street, road or avenue within the county but not within a municipality's corporate limits or regulated by the provisions of subdivision (3), (4), (5), (6) or (7), subsection (a), section two of this article.
§17F-1-5. All-terrain vehicle rental dealers required to provide safety equipment.
Any person or entity renting or leasing all-terrain vehicles for recreational purposes must provide protective helmets as defined by the provisions of section forty-four, article fifteen, chapter seventeen-c of this code to all persons using such vehicles who are under the age of eighteen and offer protective helmets to all persons eighteen and older using the rented or leased vehicles: Provided, That for the provisions of this section to be applicable, the users of the all-terrain vehicle must be known to the person or entity providing the rented or leased vehicle.
§17F-1-6. Exemption for farm and commercial use.
No entity, governmental or private, authorized by the provisions of this chapter to prohibit all-terrain vehicle use on lands under its authority may by rule, regulation, ordinance or other enactment preclude the use or operation of all-terrain vehicles used for lawful agricultural purposes consistent with the provisions of section two, article three, chapter seventeen-a of this code or all-terrain vehicles being used for lawful commercial purposes."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2121 - "A Bill to amend the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new chapter, designated chapter seventeen-f, relating to regulation of all-terrain vehicles generally; definitions; establishing prohibited acts by the operator or rider of all-terrain vehicles; requiring spark arresters and mufflers on all-terrain vehicles; exception for farm or commercial use; requiring commissioner of division of motor vehicles to offer safety training to adults and minors; requiring minors to complete safety training to operate all- terrain vehicles after a date certain; establishing effective dates clarifying that adults must possess a valid driver's license to operate all-terrain vehicles; granting authority over all-terrain vehicle use in certain areas to governing or operating bodies thereof; giving municipalities and counties authority to regulate use of all-terrain vehicles within their boundaries; exceptions; requiring helmets be worn by minors; requiring all-terrain vehicle rental dealers to provide or offer helmets; offenses; and penalties."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2122, Relating to medical professional liability generally.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page four, by striking out everything following the enacting clause and inserting in lieu thereof the following:
"That section two, article eleven-a, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that chapter eleven of said code be amended by adding thereto a new article, designated article thirteen-t; that section fourteen, article twelve-b, chapter twenty-nine of said code be amended and reenacted; that said chapter be further amended by adding thereto a new article, designated article twelve-c; that section fourteen, article three, chapter thirty of said code be amended and reenacted; that section twelve-a, article fourteen of said chapter be amended and reenacted; that article two, chapter thirty-three of said code be amended by adding thereto a new section, designated section nine-a; that section fifteen-a, article four of said chapter be amended and reenacted; that section two, article twenty-b, of said chapter be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections one-a and three-a; that sections one through eleven, inclusive, of article twenty-f of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section one-a; that section twenty-four, article twenty-five-a of said chapter be amended and reenacted; that section twenty-six, article twenty-five-d of said chapter be amended and reenacted; that section four, article ten, chapter thirty-eight of said code be amended and reenacted; that sections one, two, three, six, seven, eight, nine, and ten, article seven-b, chapter fifty- five of said code be amended and reenacted; and that said article be further amended by adding thereto three new sections, designated sections nine-a, nine-b and nine-c, all to read as follows:
CHAPTER 4. THE LEGISLATURE.

ARTICLE 11A. LEGISLATIVE APPROPRIATION OF TOBACCO SETTLEMENT FUNDS.

§4-11A-2. Receipt of settlement funds and required deposit in West Virginia tobacco settlement medical trust fund.

(a) The Legislature finds and declares that certain dedicated revenues should be preserved in trust for the purpose of stabilizing the state's health related programs and delivery systems. It further finds and declares that these dedicated revenues should also be preserved in trust for the purpose of educating the public about the health risks associated with tobacco usage and for the establishment of establishing a program designed to reduce and stop the use of tobacco by the citizens of this state and in particular by teenagers.
(b) There is hereby created a special account in the state treasury, designated the 'West Virginia Tobacco Settlement Medical Trust Fund,' which shall be an interest-bearing account and may be invested in the manner permitted by section nine, article six, chapter twelve of this code, with the interest income a proper credit to the fund. Unless contrary to federal law, fifty percent of all revenues received pursuant to the master settlement agreement shall be deposited in this fund. Funds paid into the account may also be derived from the following sources:
(1) All interest or return on investment accruing to the fund
(2) Any gifts, grants, bequests, transfers or donations which may be received from any governmental entity or unit or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which may be made for this purpose; and
(4) Any funds or accrued interest remaining in the board of risk and insurance management physicians' mutual insurance company account created pursuant to section seven, article twenty-f, chapter thirty-three of this code on or after first day of September, two thousand four.
(c
) The moneys from the principal in the trust fund may not be expended for any purpose, except that on the first day of March, two thousand three, the treasurer shall transfer twenty-four million dollars from the trust fund as the Legislature determines necessary to the board of risk and insurance management physicians' mutual insurance company account created by section seven, article twenty-f, chapter thirty-three of this code.
CHAPTER 11. TAXATION.

ARTICLE 13T. TAX CREDIT FOR MEDICAL MALPRACTICE LIABILITY TAIL INSURANCE PREMIUMS.

§11-13T-1. Legislative finding and purpose.

The Legislature finds that the retention of physicians practicing in this state is in the public interest and promotes the general welfare of the people of this state. The Legislature further finds that the promotion of stable and affordable medical malpractice liability tail insurance premium rates will induce retention of physicians practicing in this state.
In order to effectively decrease the cost of medical malpractice liability tail insurance premiums paid in this state on physicians' services, there is hereby provided a tax credit for certain medical malpractice liability tail insurance premiums paid.
§11-13T-2. Definitions.

(a) General. -- When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by the context in which the term is used.
(b) Terms defined. --
(1) 'Claims made malpractice insurance policy' means a medical malpractice liability insurance policy that covers claims which are reported during the policy period, meet the provisions specified by the policy and are for an incident which occurred during the policy period, or occurred prior to the policy period, as is specified by the policy.
(2) 'Eligible taxpayer' means any person subject to tax under section sixteen, article twenty- seven of this chapter, or a physician who is a partner, member, shareholder or employee of an eligible taxpayer.
(3) 'Eligible taxpayer organization' means a partnership, limited liability company or corporation that is an eligible taxpayer.
(4) 'Payor' means a natural person who is a partner, member, shareholder or owner, in whole or in part, of an eligible taxpayer organization and who pays tail insurance premiums for or on behalf of the eligible taxpayer organization.
(5) 'Person' means and includes any natural person, corporation, limited liability company, trust or partnership.
(6) 'Physicians' services' means health care providers' services taxable under section sixteen, article twenty-seven of this chapter performed in this state by physicians licensed by the state board of medicine or the state board of osteopathic medicine.
(7) 'Tail insurance' means insurance which covers an eligible taxpayer insured once a claims made malpractice insurance policy is canceled, not renewed or terminated and which covers claims made or asserted after such cancellation or termination for acts relating to the provision of physicians' services by the eligible taxpayer occurring during the period the prior malpractice insurance was in effect.
(8) 'Tail insurance premium' means insurance coverage premiums paid by an eligible taxpayer or payor during the taxable year for tail insurance.
(9) 'Tail liability' means the medical malpractice liability of an eligible taxpayer insured that results from a claim asserted subsequent to cancellation, nonrenewal or termination of a claims made malpractice insurance policy for acts relating to the provision of physicians' services by the eligible taxpayer occurring during the period when the prior malpractice insurance was in effect.
§11-13T-3. Eligibility for tax credits; creation of the credit.

There shall be allowed to every eligible taxpayer a credit against the tax payable under section sixteen, article twenty-seven of this chapter. The amount of this credit shall be determined and applied as provided in this article.
§11-13T-4. Amount of credit allowed.

(a) Allowance. -- The amount of annual credit allowable under this article to an eligible taxpayer shall be equal to ten percent of the cost of the annual tail insurance premium paid by the eligible taxpayer or payor during the taxable year. This credit may be taken for such tail insurance premiums paid during any taxable year beginning on or after the first day of January, two thousand two, and ending on or before the thirty-first day of December, two thousand four.
(b) Exclusions. -- No credit shall be allowed for any tail insurance premium paid by or on behalf of an eligible taxpayer employed by this state, its agencies or subdivisions. No credit shall be allowed for any tail insurance premium paid by or on behalf of an eligible taxpayer or an eligible taxpayer organization or a payor pursuant to insurance coverage provided under article twelve or twelve-b, chapter twenty-nine of this code. No credit shall be allowed for any tail insurance premium paid before the first day of January, two thousand two, or paid after the thirty-first day of December, two thousand four.
§11-13T-5. Unused credit carry forward, credit forfeiture.

If any credit remains after application of the credit against tax for the current taxable year under this article, the amount thereof is carried forward to each ensuing tax year until used or until the thirty-first day of December, two thousand four, whichever occurs first. If any unused credit remains after the thirty-first day of December, two thousand four, the amount thereof is forfeited. No carryback to a prior taxable year is allowed for the amount of any unused portion of this credit.
§11-13T-6. Application of credit; schedules; estimated taxes.

(a) The credit allowed under this article shall be applied against the tax payable under section sixteen, article twenty-seven of this chapter for the taxable year when the tail insurance premium was paid.
(b) To assert this credit against tax, the eligible taxpayer shall prepare and file with its annual tax return filed under article twenty-seven of this chapter, and for information purposes, a schedule showing the tail insurance premium amount paid for the taxable year, the amount of credit allowed under this article, the taxes against which the credit is being applied and such other information that the tax commissioner may require. This annual schedule shall set forth the information and be in the form prescribed by the tax commissioner.
(c) An eligible taxpayer may consider the amount of credit allowed under this article when determining the eligible taxpayer's liability under article twenty-seven of this chapter for periodic payments of estimated tax for the taxable year, in accordance with the procedures and requirements prescribed by the tax commissioner. The annual total tax liability and total tax credit allowed under this article are subject to adjustment and reconciliation pursuant to the filing of the annual schedule required by subsection (b) of this section.
§11-13T-7. Computation and application of credit.

(a) Credit resulting from tail insurance premium directly paid by persons who pay the tax imposed by section sixteen, article twenty-seven of this chapter. -- The annual credit allowable under this article for eligible taxpayers other than payors described in subsection (b) of this section shall be applied as a credit against the eligible taxpayer's state tax liability determined under section sixteen, article twenty-seven of this chapter, determined after application of all other allowable credits and exemptions.
(b) Credit for tail insurance premiums directly paid by partners, members or shareholders of partnerships, limited liability companies or corporations for or on behalf of such organizations; application of credit.
(1) Qualification for credit. -- Tail insurance premiums paid by a payor qualify for tax credit under this article, provided that such payments are made for tail insurance to cover tail liability claims arising out of or resulting from physicians' services provided by a physician while practicing in service to or under the organizational identity of an eligible taxpayer organization or as an employee of such eligible taxpayer organization where such tail insurance covers the tail liability of:
(A) The eligible taxpayer organization; or
(B) One or more physicians practicing or previously practicing in service to or under the organizational identity of the eligible taxpayer organization or as an employee of the eligible taxpayer organization;
(C) Any combination thereof.
(2) Application of credit by the payor against health care provider tax on physician's services. -- The annual credit allowable shall be applied to reduce the tax liability directly payable by the payor under section sixteen, article twenty-seven of this chapter, determined after application of all other allowable credits and exemptions.
(3) Application of credit by the eligible taxpayer organization against health care provider tax on physician's services. -- After application of this credit, as provided in subdivision (2) of this subsection, remaining annual credit shall then be applied to reduce the tax liability directly payable by the eligible taxpayer organization under section sixteen, article twenty-seven of this chapter, determined after application of all other allowable credits and exemptions.
(4) Apportionment among multiple eligible taxpayer organizations. -- Where a payor described in subdivision (1) of this subsection pays tail insurance premiums for and provides or formerly provided services to or under the organizational identity of two or more eligible taxpayer organizations described in this section or as an employee of two or more such eligible taxpayer organizations, the tax credit shall, for purposes of subdivision (3) of this subsection, be allocated among such eligible taxpayer organizations in proportion to the tail insurance premium paid directly by the payor during the taxable year to cover tail liability for, or on behalf of, each eligible taxpayer organization. In no event may the total credit claimed by all eligible taxpayers and eligible taxpayer organizations exceed the credit which would be allowable if the payor had paid all such tail insurance premiums for or on behalf of one eligible taxpayer organization, and if all physician's services had been performed for, or under the organizational identity of, or by employees of, one eligible taxpayer organization.
§11-13T-8. Legislative rules.

The tax commissioner shall propose for promulgation pursuant to the provisions of article three, chapter twenty-nine-a of this code such rules as may be necessary to carry out the purposes of this article.
§11-13T-9. Burden of proof.

The burden of proof is on the person claiming the credit allowed by this article to establish by clear and convincing evidence that the person is entitled to the amount of credit asserted for the taxable year.
§11-13T-10. Effective date.

This article shall be effective for taxable years beginning on or after the first day of January, two thousand two.
§11-13T-11. Termination of tax credit.

No credit shall be allowed under this article for any taxable year ending after the thirty-first day of December, two thousand four.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 12B. WEST VIRGINIA HEALTH CARE PROVIDER PROFESSIONAL LIABILITY INSURANCE AVAILABILITY ACT.

§29-12B-14.
Effective date and termination of authority.
The provisions of this article are effective from passage. Any policies written under this article may have an effective date restorative to the effective date of this article. Upon the transfer of all assets, obligations and liabilities of the board of risk and insurance management by virtue of this article to the health care mutual insurance company provided for by article twenty-f of this chapter, all authority of the board of risk and insurance management to issue health care liability policies under this article ceases.
ARTICLE 12C. PATIENT INJURY COMPENSATION PLAN.
§29-12C-1. Patient injury compensation plan study board created; purpose; study of creation and funding of patient injury compensation fund; developing rules and establishing program; and report to the Legislature.

(a) In recognition of the statewide concern over the rising cost of medical malpractice insurance and the difficulty that health care practitioners have in locating affordable medical malpractice insurance, there is hereby created a patient injury compensation fund study board to study the feasability of establishing a patient injury compensation fund to reimburse claimants in medical malpractice actions for any portion of economic damages awarded which are uncollectible due to statutory limitations on damage awards for trauma care and/or the elimination of joint and several liability of tortfeasor health care providers and health care facilities.
(b) The patient injury compensation fund study board shall consist of the director of the board of risk and insurance management, who shall serve as chairperson, the insurance commissioner and an appointee of the governor. The patient injury compensation fund study board shall utilize the resources of the board of risk and insurance management and the insurance commission to effectuate the study required by this article. The patient injury compensation fund study board shall meet upon the call of the chair. A simple majority of the patient injury compensation fund study board members constitute a quorum for the transaction of business.
(c) The patient injury compensation fund study board is authorized to hold hearings, conduct investigations and consider, without limitation, all options for identifying funding methods and for the operation and administration of a patient injury compensation fund within the following guidelines:
(1) The board of risk and insurance management is responsible for implementing, administering and operating any patient injury compensation fund;
(2) The patient injury compensation fund must be actuarially sound and fully funded in accordance with generally accepted accounting principles;
(3) Eligibility for reimbursement from the patient injury compensation fund is limited to claimants who have been awarded damages in a medical malpractice action but have been certified by the board of risk and insurance management to be unable, after exhausting all reasonable means available by law of recovering the award, to collect all or part of the economic damages awarded due to the limitations on awards established in sections nine and nine-c, article seven-b chapter fifty-five of this code; and
(4) The board of risk and insurance management may invest the moneys in the patient injury compensation fund and use any interest or other return from investments to pay administration expenses and claims granted.
(d) The patient injury compensation fund study board's report and recommendations shall be completed no later than the first day of December, two thousand three, and shall be presented to the joint committee of government and finance during the legislative interim meetings to be held in December, two thousand three.
29-12C-2. Legislative rules.
(a) The Legislature hereby declares that an emergency exists necessitating expeditious implementation of a patient injury compensation fund, if economically feasible, and directs the patient injury compensation fund study board to propose emergency legislative rules relating to the establishment, implementation and operation of the patient injury compensation fund in conjunction with its report and recommendations to the Legislature under section one of this article. The rules proposed by the patient injury compensation fund study board shall:
(1) Provide the funding mechanism and the methodology for processing and timely and accurately collect funds;
(2) Assure the actuarial soundness of the patient injury compensation fund and the sufficiency of money to satisfy all foreseeable claims against the patient injury compensation fund, giving due consideration to relevant loss or claim experience or trends and normal costs of operation;
(3) Provide a reasonable reserve fund for unexpected contingencies, consistent with generally accepted accounting principles;
(4) Establish appropriate procedures for notification of payment adjustments prior to any payment periods established in which a funding adjustment will be in effect, consistent with generally accepted accounting principles;
(5) Establish procedures for establishing eligibility for and distribution of funds to claimants seeking reimbursement;
(6) Establish the requirements and procedure for certifying that a claimant has been unable to collect a portion of the economic damages recovered;
(7) Establish the process for submitting a claim for payment from the patient injury compensation fund; and
(8) Establish any additional requirements and criteria consistent with and necessary to effectuate the provisions of this article.
(b) If the Legislature accepts, in whole or in part, the recommendations of the patient injury compensation fund study board, enacts legislation establishing a patient injury compensation fund and approves rules governing the initial establishment, implementation and operation of the patient injury compensation fund, those rules shall be filed with the secretary of state as emergency rules.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-14. Professional discipline of physicians and podiatrists; reporting of information to board pertaining to medical professional liability and professional incompetence required; penalties; grounds for license denial and discipline of physicians and podiatrists; investigations; physical and mental examinations; hearings; sanctions; summary sanctions; reporting by the board; reapplication; civil and criminal immunity; voluntary limitation of license; probable cause determinations.

(a) The board may independently initiate disciplinary proceedings as well as initiate disciplinary proceedings based on information received from medical peer review committees, physicians, podiatrists, hospital administrators, professional societies and others.
The board may initiate investigations as to professional incompetence or other reasons for which a licensed physician or podiatrist may be adjudged unqualified based upon criminal convictions; complaints by citizens, pharmacists, physicians, podiatrists, peer review committees, hospital administrators, professional societies or others; or. The board shall initiate an investigation if there are five it receives notice that three judgments or five settlements arising from medical professional liability actions have been rendered or made against the physician or podiatrist within the most recent a five-year period in excess of fifty thousand dollars each. The board may not consider any judgments or settlements as conclusive evidence of professional incompetence or conclusive lack of qualification to practice.
(b) Upon request of the board, any medical peer review committee in this state shall report any information that may relate to the practice or performance of any physician or podiatrist known to that medical peer review committee. Copies of the requests for information from a medical peer review committee may be provided to the subject physician or podiatrist if, in the discretion of the board, the provision of such copies will not jeopardize the board's investigation. In the event that copies are so provided, the subject physician or podiatrist is allowed fifteen days to comment on the requested information and such comments must be considered by the board.
The chief executive officer of every hospital shall, within sixty days after the completion of the hospital's formal disciplinary procedure and also within sixty days after the commencement of and again after the conclusion of any resulting legal action, report in writing to the board the name of any member of the medical staff or any other physician or podiatrist practicing in the hospital whose hospital privileges have been revoked, restricted, reduced or terminated for any cause, including resignation, together with all pertinent information relating to such action. The chief executive officer shall also report any other formal disciplinary action taken against any physician or podiatrist by the hospital upon the recommendation of its medical staff relating to professional ethics, medical incompetence, medical professional liability, moral turpitude or drug or alcohol abuse. Temporary suspension for failure to maintain records on a timely basis or failure to attend staff or section meetings need not be reported. Voluntary cessation of hospital privileges for reasons unrelated to professional competence or ethics need not be reported.
Any managed care organization operating in this state which provides a formal peer review process shall report in writing to the board, within sixty days after the completion of any formal peer review process and also within sixty days after the commencement of and again after the conclusion of any resulting legal action, the name of any physician or podiatrist whose credentialing has been revoked or not renewed by the managed care organization. The managed care organization shall also report in writing to the board any other disciplinary action taken against a physician or podiatrist relating to professional ethics, professional liability, moral turpitude or drug or alcohol abuse within sixty days after completion of a formal peer review process which results in the action taken by the managed care organization. For purposes of this subsection, 'managed care organization' means a plan that establishes, operates or maintains a network of health care providers who have entered into agreements with and been credentialed by the plan to provide health care services to enrollees or insureds to whom the plan has the ultimate obligation to arrange for the provision of or payment for health care services through organizational arrangements for ongoing quality assurance, utilization review programs or dispute resolutions.
Any professional society in this state comprised primarily of physicians or podiatrists which takes formal disciplinary action against a member relating to professional ethics, professional incompetence, medical professional liability, moral turpitude or drug or alcohol abuse shall report in writing to the board within sixty days of a final decision the name of the member, together with all pertinent information relating to the action.
Every person, partnership, corporation, association, insurance company, professional society or other organization providing professional liability insurance to a physician or podiatrist in this state, including the state board of risk and insurance management, shall submit to the board the following information within thirty days from any judgment or settlement of a civil or medical professional liability action excepting product liability actions: The name of the insured; the date of any judgment or settlement; whether any appeal has been taken on the judgment and, if so, by which party; the amount of any settlement or judgment against the insured; and other information as the board may require required by the board.
Within thirty days from the entry of an order by a court in a medical professional liability action or other civil action wherein in which a physician or podiatrist licensed by the board is determined to have rendered health care services below the applicable standard of care, the clerk of the court in which the order was entered shall forward a certified copy of the order to the board.
Within thirty days after a person known to be a physician or podiatrist licensed or otherwise lawfully practicing medicine and surgery or podiatry in this state or applying to be so licensed is convicted of a felony under the laws of this state or of any crime under the laws of this state involving alcohol or drugs in any way, including any controlled substance under state or federal law, the clerk of the court of record in which the conviction was entered shall forward to the board a certified true and correct abstract of record of the convicting court. The abstract shall include the name and address of the physician or podiatrist or applicant, the nature of the offense committed and the final judgment and sentence of the court.
Upon a determination of the board that there is probable cause to believe that any person, partnership, corporation, association, insurance company, professional society or other organization has failed or refused to make a report required by this subsection, the board shall provide written notice to the alleged violator stating the nature of the alleged violation and the time and place at which the alleged violator shall appear to show good cause why a civil penalty should not be imposed. The hearing shall be conducted in accordance with the provisions of article five, chapter twenty-nine-a of this code. After reviewing the record of the hearing, if the board determines that a violation of this subsection has occurred, the board shall assess a civil penalty of not less than one thousand dollars nor more than ten thousand dollars against the violator. Anyone The board shall notify any person so assessed shall be notified of the assessment in writing and the notice shall specify the reasons for the assessment. If the violator fails to pay the amount of the assessment to the board within thirty days, the attorney general may institute a civil action in the circuit court of Kanawha County to recover the amount of the assessment. In any such civil action, the court's review of the board's action shall be conducted in accordance with the provisions of section four, article five, chapter twenty-nine-a of this code. Notwithstanding any other provision of this article to the contrary, when there are conflicting views by recognized experts as to whether any alleged conduct breaches an applicable standard of care, the evidence must be clear and convincing before the board may find that the physician or podiatrist has demonstrated a lack of professional competence to practice with a reasonable degree of skill and safety for patients.
Any person may report to the board relevant facts about the conduct of any physician or podiatrist in this state which in the opinion of that person amounts to medical professional liability or professional incompetence.
The board shall provide forms for filing reports pursuant to this section. Reports submitted in other forms shall be accepted by the board.
The filing of a report with the board pursuant to any provision of this article, any investigation by the board or any disposition of a case by the board does not preclude any action by a hospital, other health care facility or professional society comprised primarily of physicians or podiatrists to suspend, restrict or revoke the privileges or membership of the physician or podiatrist.
(c) The board may deny an application for license or other authorization to practice medicine and surgery or podiatry in this state and may discipline a physician or podiatrist licensed or otherwise lawfully practicing in this state who, after a hearing, has been adjudged by the board as unqualified due to any of the following reasons:
(1) Attempting to obtain, obtaining, renewing or attempting to renew a license to practice medicine and surgery or podiatry by bribery, fraudulent misrepresentation or through known error of the board;
(2) Being found guilty of a crime in any jurisdiction, which offense is a felony, involves moral turpitude or directly relates to the practice of medicine. Any plea of nolo contendere is a conviction for the purposes of this subdivision;
(3) False or deceptive advertising;
(4) Aiding, assisting, procuring or advising any unauthorized person to practice medicine and surgery or podiatry contrary to law;
(5) Making or filing a report that the person knows to be false; intentionally or negligently failing to file a report or record required by state or federal law; willfully impeding or obstructing the filing of a report or record required by state or federal law; or inducing another person to do any of the foregoing. The reports and records as are herein covered in this subdivision mean only those that are signed in the capacity as a licensed physician or podiatrist;
(6) Requesting, receiving or paying directly or indirectly a payment, rebate, refund, commission, credit or other form of profit or valuable consideration for the referral of patients to any person or entity in connection with providing medical or other health care services or clinical laboratory services, supplies of any kind, drugs, medication or any other medical goods, services or devices used in connection with medical or other health care services;
(7) Unprofessional conduct by any physician or podiatrist in referring a patient to any clinical laboratory or pharmacy in which the physician or podiatrist has a proprietary interest unless the physician or podiatrist discloses in writing such interest to the patient. The written disclosure shall indicate that the patient may choose any clinical laboratory for purposes of having any laboratory work or assignment performed or any pharmacy for purposes of purchasing any prescribed drug or any other medical goods or devices used in connection with medical or other health care services.
As used herein in this subdivision, 'proprietary interest' does not include an ownership interest in a building in which space is leased to a clinical laboratory or pharmacy at the prevailing rate under a lease arrangement that is not conditional upon the income or gross receipts of the clinical laboratory or pharmacy;
(8) Exercising influence within a patient-physician relationship for the purpose of engaging a patient in sexual activity;
(9) Making a deceptive, untrue or fraudulent representation in the practice of medicine and surgery or podiatry;
(10) Soliciting patients, either personally or by an agent, through the use of fraud, intimidation or undue influence;
(11) Failing to keep written records justifying the course of treatment of a patient, the records to include including, but not be limited to, patient histories, examination and test results and treatment rendered, if any;
(12) Exercising influence on a patient in such a way as to exploit the patient for financial gain of the physician or podiatrist or of a third party. Any influence includes, but is not limited to, the promotion or sale of services, goods, appliances or drugs;
(13) Prescribing, dispensing, administering, mixing or otherwise preparing a prescription drug, including any controlled substance under state or federal law, other than in good faith and in a therapeutic manner in accordance with accepted medical standards and in the course of the physician's or podiatrist's professional practice: Provided, That a physician who discharges his or her professional obligation to relieve the pain and suffering and promote the dignity and autonomy of dying patients in his or her care and, in so doing, exceeds the average dosage of a pain relieving controlled substance, as defined in Schedules II and III of the Uniform Controlled Substance Act, does not violate this article;
(14) Performing any procedure or prescribing any therapy that, by the accepted standards of medical practice in the community, would constitute experimentation on human subjects without first obtaining full, informed and written consent;
(15) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities that the person knows or has reason to know he or she is not competent to perform;
(16) Delegating professional responsibilities to a person when the physician or podiatrist delegating the responsibilities knows or has reason to know that the person is not qualified by training, experience or licensure to perform them;
(17) Violating any provision of this article or a rule or order of the board or failing to comply with a subpoena or subpoena duces tecum issued by the board;
(18) Conspiring with any other person to commit an act or committing an act that would tend to coerce, intimidate or preclude another physician or podiatrist from lawfully advertising his or her services;
(19) Gross negligence in the use and control of prescription forms;
(20) Professional incompetence; or
(21) The inability to practice medicine and surgery or podiatry with reasonable skill and safety due to physical or mental impairment, including deterioration through the aging process or, loss of motor skill or abuse of drugs or alcohol. A physician or podiatrist adversely affected under this subdivision shall be afforded an opportunity at reasonable intervals to demonstrate that he or she may resume the competent practice of medicine and surgery or podiatry with reasonable skill and safety to patients. In any proceeding under this subdivision, neither the record of proceedings nor any orders entered by the board shall be used against the physician or podiatrist in any other proceeding.
(d) The board shall deny any application for a license or other authorization to practice medicine and surgery or podiatry in this state to any applicant who, and shall revoke the license of any physician or podiatrist licensed or otherwise lawfully practicing within this state who, is found guilty by any court of competent jurisdiction of any felony involving prescribing, selling, administering, dispensing, mixing or otherwise preparing any prescription drug, including any controlled substance under state or federal law, for other than generally accepted therapeutic purposes. Presentation to the board of a certified copy of the guilty verdict or plea rendered in the court is sufficient proof thereof for the purposes of this article. A plea of nolo contendere has the same effect as a verdict or plea of guilt.
(e) The board may refer any cases coming to its attention to an appropriate committee of an appropriate professional organization for investigation and report. Except for complaints related to obtaining initial licensure to practice medicine and surgery or podiatry in this state by bribery or fraudulent misrepresentation, any complaint filed more than two years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of grounds for the complaint shall be dismissed: Provided, That in cases of conduct alleged to be part of a pattern of similar misconduct or professional incapacity that, if continued, would pose risks of a serious or substantial nature to the physician's or podiatrist's current patients, the investigating body may conduct a limited investigation related to the physician's or podiatrist's current capacity and qualification to practice and may recommend conditions, restrictions or limitations on the physician's or podiatrist's license to practice that it considers necessary for the protection of the public. Any report shall contain recommendations for any necessary disciplinary measures and shall be filed with the board within ninety days of any referral. The recommendations shall be considered by the board and the case may be further investigated by the board. The board after full investigation shall take whatever action it deems considers appropriate, as provided herein in this section.
(f) The investigating body, as provided for in subsection (e) of this section, may request and the board under any circumstances may require a physician or podiatrist or person applying for licensure or other authorization to practice medicine and surgery or podiatry in this state to submit to a physical or mental examination by a physician or physicians approved by the board. A physician or podiatrist submitting to any such an examination has the right, at his or her expense, to designate another physician to be present at the examination and make an independent report to the investigating body or the board. The expense of the examination shall be paid by the board. Any individual who applies for or accepts the privilege of practicing medicine and surgery or podiatry in this state is considered to have given his or her consent to submit to all examinations when requested to do so in writing by the board and to have waived all objections to the admissibility of the testimony or examination report of any examining physician on the ground that the testimony or report is privileged communication. If a person fails or refuses to submit to any such an examination under circumstances which the board finds are not beyond his or her control, failure or refusal is prima facie evidence of his or her inability to practice medicine and surgery or podiatry competently and in compliance with the standards of acceptable and prevailing medical practice.
(g) In addition to any other investigators it employs, the board may appoint one or more licensed physicians to act for it in investigating the conduct or competence of a physician.
(h) In every disciplinary or licensure denial action, the board shall furnish the physician or podiatrist or applicant with written notice setting out with particularity the reasons for its action. Disciplinary and licensure denial hearings shall be conducted in accordance with the provisions of article five, chapter twenty-nine-a of this code. However, hearings shall be heard upon sworn testimony and the rules of evidence for trial courts of record in this state shall apply to all hearings. A transcript of all hearings under this section shall be made, and the respondent may obtain a copy of the transcript at his or her expense. The physician or podiatrist has the right to defend against any charge by the introduction of evidence, the right to be represented by counsel, the right to present and cross-examine witnesses and the right to have subpoenas and subpoenas duces tecum issued on his or her behalf for the attendance of witnesses and the production of documents. The board shall make all its final actions public. The order shall contain the terms of all action taken by the board.
(i) In disciplinary actions in which probable cause has been found by the board, the board shall, within twenty days of the date of service of the written notice of charges or sixty days prior to the date of the scheduled hearing, whichever is sooner, provide the respondent with the complete identity, address and telephone number of any person known to the board with knowledge about the facts of any of the charges; provide a copy of any statements in the possession of or under the control of the board; provide a list of proposed witnesses with addresses and telephone numbers, with a brief summary of his or her anticipated testimony; provide disclosure of any trial expert pursuant to the requirements of rule 26(b)(4) of the West Virginia rules of civil procedure; provide inspection and copying of the results of any reports of physical and mental examinations or scientific tests or experiments; and provide a list and copy of any proposed exhibit to be used at the hearing: Provided, That the board shall not be required to furnish or produce any materials which contain opinion work product information or would be a violation of the attorney-client privilege. Within twenty days of the date of service of the written notice of charges, the board shall be required to disclose any exculpatory evidence with a continuing duty to do so throughout the disciplinary process. Within thirty days of receipt of the board's mandatory discovery, the respondent shall provide the board with the complete identity, address and telephone number of any person known to the respondent with knowledge about the facts of any of the charges; provide a list of proposed witnesses with addresses and telephone numbers, to be called at hearing, with a brief summary of his or her anticipated testimony; provide disclosure of any trial expert pursuant to the requirements of rule 26(b)(4) of the West Virginia rules of civil procedure; provide inspection and copying of the results of any reports of physical and mental examinations or scientific tests or experiments; and provide a list and copy of any proposed exhibit to be used at the hearing.
(j) Whenever it finds any person unqualified because of any of the grounds set forth in subsection (c) of this section, the board may enter an order imposing one or more of the following:
(1) Deny his or her application for a license or other authorization to practice medicine and surgery or podiatry;
(2) Administer a public reprimand;
(3) Suspend, limit or restrict his or her license or other authorization to practice medicine and surgery or podiatry for not more than five years, including limiting the practice of that person to, or by the exclusion of, one or more areas of practice, including limitations on practice privileges;
(4) Revoke his or her license or other authorization to practice medicine and surgery or podiatry or to prescribe or dispense controlled substances for a period not to exceed ten years;
(5) Require him or her to submit to care, counseling or treatment designated by the board as a condition for initial or continued licensure or renewal of licensure or other authorization to practice medicine and surgery or podiatry;
(6) Require him or her to participate in a program of education prescribed by the board;
(7) Require him or her to practice under the direction of a physician or podiatrist designated by the board for a specified period of time; and
(8) Assess a civil fine of not less than one thousand dollars nor more than ten thousand dollars.
(k) Notwithstanding the provisions of section eight, article one, chapter thirty of this code, if the board determines the evidence in its possession indicates that a physician's or podiatrist's continuation in practice or unrestricted practice constitutes an immediate danger to the public, the board may take any of the actions provided for in subsection (j) of this section on a temporary basis and without a hearing if institution of proceedings for a hearing before the board are initiated simultaneously with the temporary action and begin within fifteen days of the action. The board shall render its decision within five days of the conclusion of a hearing under this subsection.
(l) Any person against whom disciplinary action is taken pursuant to the provisions of this article has the right to judicial review as provided in articles five and six, chapter twenty-nine-a of this code: Provided, That a circuit judge may also remand the matter to the board if it appears from competent evidence presented to it in support of a motion for remand that there is newly discovered evidence of such a character as ought to produce an opposite result at a second hearing on the merits before the board and:
(1) The evidence appears to have been discovered since the board hearing; and
(2) The physician or podiatrist exercised due diligence in asserting his or her evidence and that due diligence would not have secured the newly discovered evidence prior to the appeal.
A person may not practice medicine and surgery or podiatry or deliver health care services in violation of any disciplinary order revoking, suspending or limiting his or her license while any appeal is pending. Within sixty days, the board shall report its final action regarding restriction, limitation, suspension or revocation of the license of a physician or podiatrist, limitation on practice privileges or other disciplinary action against any physician or podiatrist to all appropriate state agencies, appropriate licensed health facilities and hospitals, insurance companies or associations writing medical malpractice insurance in this state, the American medical association, the American podiatry association, professional societies of physicians or podiatrists in the state and any entity responsible for the fiscal administration of medicare and medicaid.
(m) Any person against whom disciplinary action has been taken under the provisions of this article shall, at reasonable intervals, be afforded an opportunity to demonstrate that he or she can resume the practice of medicine and surgery or podiatry on a general or limited basis. At the conclusion of a suspension, limitation or restriction period the physician or podiatrist may resume practice if the board has so ordered.
(n) Any entity, organization or person, including the board, any member of the board, its agents or employees and any entity or organization or its members referred to in this article, any insurer, its agents or employees, a medical peer review committee and a hospital governing board, its members or any committee appointed by it acting without malice and without gross negligence in making any report or other information available to the board or a medical peer review committee pursuant to law and any person acting without malice and without gross negligence who assists in the organization, investigation or preparation of any such report or information or assists the board or a hospital governing body or any committee in carrying out any of its duties or functions provided by law is immune from civil or criminal liability, except that the unlawful disclosure of confidential information possessed by the board is a misdemeanor as provided for in this article.
(o) A physician or podiatrist may request in writing to the board a limitation on or the surrendering of his or her license to practice medicine and surgery or podiatry or other appropriate sanction as provided herein in this section. The board may grant the request and, if it considers it appropriate, may waive the commencement or continuation of other proceedings under this section. A physician or podiatrist whose license is limited or surrendered or against whom other action is taken under this subsection may, at reasonable intervals, petition for removal of any restriction or limitation on or for reinstatement of his or her license to practice medicine and surgery or podiatry.
(p) In every case considered by the board under this article regarding discipline or licensure, whether initiated by the board or upon complaint or information from any person or organization, the board shall make a preliminary determination as to whether probable cause exists to substantiate charges of disqualification due to any reason set forth in subsection (c) of this section. If probable cause is found to exist, all proceedings on the charges shall be open to the public who shall be are entitled to all reports, records and nondeliberative materials introduced at the hearing, including the record of the final action taken: Provided, That any medical records, which were introduced at the hearing and which pertain to a person who has not expressly waived his or her right to the confidentiality of the records, may not be open to the public nor is the public entitled to the records.
(q) If the board receives notice that a physician or podiatrist has been subjected to disciplinary action or had his or her credentials suspended or revoked by the board, a hospital or a professional society, as defined in subsection (b) of this section, for three or more incidents during a five-year period, the board shall require the physician or podiatrist to practice under the direction of a physician or podiatrist designated by the board for a specified period of time to be established by the board.
(q) (r) Notwithstanding any other provisions of this article, the board may, at any time, on its own motion, or upon motion by the complainant, or upon motion by the physician or podiatrist, or by stipulation of the parties, refer the matter to mediation. The board shall obtain a list from the West Virginia state bar's mediator referral service of certified mediators with expertise in professional disciplinary matters. The board and the physician or podiatrist may choose a mediator from this that list. If the board and the physician or podiatrist are unable to agree on a mediator, the board shall designate a mediator from this listing the list by neutral rotation. The mediation shall not be considered a proceeding open to the public and any reports and records introduced at the mediation shall not become part of the public record. The mediator and all participants in the mediation shall maintain and preserve the confidentiality of all mediation proceedings and records. The mediator may not be subpoenaed or called to testify or otherwise be subject to process requiring disclosure of confidential information in any proceeding relating to or arising out of the disciplinary or licensure matter mediated: Provided, That any confidentiality agreement and any written agreement made and signed by the parties as a result of mediation may be used in any proceedings subsequently instituted to enforce the written agreement. The agreements may be used in other proceedings if the parties agree in writing.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-12a. Initiation of suspension or revocation proceedings allowed and required; reporting of information to board pertaining to professional malpractice and professional incompetence required; penalties; probable cause determinations.

(a) The board may independently initiate suspension or revocation proceedings as well as initiate suspension or revocation proceedings based on information received from any person.
The board shall initiate investigations as to professional incompetence or other reasons for which a licensed osteopathic physician and surgeon may be adjudged unqualified if the board receives notice that five or more judgments or settlements arising from medical professional liability have been rendered or made against such osteopathic physician.
(b) Upon request of the board, any medical peer review committee in this state shall report any information that may relate to the practice or performance of any osteopathic physician known to that medical peer review committee. Copies of such requests for information from a medical peer review committee may be provided to the subject osteopathic physician if, in the discretion of the board, the provision of such copies will not jeopardize the board's investigation. In the event that copies are so provided, the subject osteopathic physician is allowed has fifteen days to comment on the requested information and such comments must be considered by the board.
After the completion of a hospital's formal disciplinary procedure and after any resulting legal action, the chief executive officer of such hospital shall report in writing to the board within sixty days the name of any member of the medical staff or any other osteopathic physician practicing in the hospital whose hospital privileges have been revoked, restricted, reduced or terminated for any cause, including resignation, together with all pertinent information relating to such action. The chief executive officer shall also report any other formal disciplinary action taken against any osteopathic physician by the hospital upon the recommendation of its medical staff relating to professional ethics, medical incompetence, medical malpractice, moral turpitude or drug or alcohol abuse. Temporary suspension for failure to maintain records on a timely basis or failure to attend staff or section meetings need not be reported.
Any professional society in this state comprised primarily of osteopathic physicians or physicians and surgeons of other schools of medicine which takes formal disciplinary action against a member relating to professional ethics, professional incompetence, professional malpractice, moral turpitude or drug or alcohol abuse, shall report in writing to the board within sixty days of a final decision the name of such member, together with all pertinent information relating to such action.
Every person, partnership, corporation, association, insurance company, professional society or other organization providing professional liability insurance to an osteopathic physician in this state shall submit to the board the following information within thirty days from any judgment, dismissal or settlement of a civil action or of any claim involving the insured: The date of any judgment, dismissal or settlement; whether any appeal has been taken on the judgment, and, if so, by which party; the amount of any settlement or judgment against the insured; and such other information as required by the board may require.
Within thirty days after a person known to be an osteopathic physician licensed or otherwise lawfully practicing medicine and surgery in this state or applying to be so licensed is convicted of a felony under the laws of this state, or of any crime under the laws of this state involving alcohol or drugs in any way, including any controlled substance under state or federal law, the clerk of the court of record in which the conviction was entered shall forward to the board a certified true and correct abstract of record of the convicting court. The abstract shall include the name and address of such osteopathic physician or applicant, the nature of the offense committed and the final judgment and sentence of the court.
Upon a determination of the board that there is probable cause to believe that any person, partnership, corporation, association, insurance company, professional society or other organization has failed or refused to make a report required by this subsection, the board shall provide written notice to the alleged violator stating the nature of the alleged violation and the time and place at which the alleged violator shall appear to show good cause why a civil penalty should not be imposed. The hearing shall be conducted in accordance with the provisions of article five, chapter twenty-nine-a of this code. After reviewing the record of such hearing, if the board determines that a violation of this subsection has occurred, the board shall assess a civil penalty of not less than one thousand dollars nor more than ten thousand dollars against such violator. Anyone The board shall notify anyone so assessed shall be notified of the assessment in writing and the notice shall specify the reasons for the assessment. If the violator fails to pay the amount of the assessment to the board within thirty days, the attorney general may institute a civil action in the circuit court of Kanawha County to recover the amount of the assessment. In any such civil action, the court's review of the board's action shall be conducted in accordance with the provisions of section four, article five, chapter twenty-nine-a of this code.
Any person may report to the board relevant facts about the conduct of any osteopathic physician in this state which in the opinion of such person amounts to professional malpractice or professional incompetence.
The board shall provide forms for filing reports pursuant to this section. Reports submitted in other forms shall be accepted by the board.
The filing of a report with the board pursuant to any provision of this article, any investigation by the board or any disposition of a case by the board does not preclude any action by a hospital, other health care facility or professional society comprised primarily of osteopathic physicians or physicians and surgeons of other schools of medicine to suspend, restrict or revoke the privileges or membership of such osteopathic physician.
(c) In every case considered by the board under this article regarding suspension, revocation or issuance of a license whether initiated by the board or upon complaint or information from any person or organization, the board shall make a preliminary determination as to whether probable cause exists to substantiate charges of cause to suspend, revoke or refuse to issue a license as set forth in subsection (a), section eleven of this article. If such probable cause is found to exist, all proceedings on such charges shall be open to the public who shall be are entitled to all reports, records, and nondeliberative materials introduced at such hearing, including the record of the final action taken: Provided, That any medical records, which were introduced at such hearing and which pertain to a person who has not expressly waived his right to the confidentiality of such records, shall not be open to the public nor is the public entitled to such records. If a finding is made that probable cause does not exist, the public has a right of access to the complaint or other document setting forth the charges, the findings of fact and conclusions supporting such finding that probable cause does not exist, if the subject osteopathic physician consents to such access.
(d) If the board receives notice that an osteopathic physician has been subjected to disciplinary action or had his or her credentials suspended or revoked by the board, a medical peer review committee, a hospital or professional society, as defined in subsection (b) of this section, for three or more incidents in a five-year period, the board shall require the osteopathic physician to practice under the direction of another osteopathic physician for a specified period to be established by the board.
CHAPTER 33. INSURANCE.

ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-9a. Imposing a one-time assessment on all insurance carriers.

For the purpose of completely novating the liability currently borne by the state under the West Virginia health care provider professional liability insurance availability act found in article twelve-b, chapter twenty-nine of this code, and to help capitalize the new health care mutual created in article twenty-f of this chapter, and for all the reasons set forth in section two of said article, there is hereby imposed a one-time assessment of two thousand five hundred dollars on all insurers licensed in this chapter except risk retention groups defined in subsection (f), section four, article thirty-two of this chapter and risk purchasing groups defined in subsection (e), section seventeen of said article.
ARTICLE 4. GENERAL PROVISIONS.
§33-4-15a. Credit for reinsurance; definitions; requirements; trust accounts; reductions from liability; security; effective date.

(a) For purposes of this section, an 'accredited reinsurer' is one which:
(1) Has filed an application for accreditation and received a letter of accreditation from the commissioner;
(2) Is licensed to transact insurance or reinsurance in at least one of the fifty states of the United States or the District of Columbia or, in the case of a United States branch of an alien assuming insurer, is entered through and licensed to transact insurance or reinsurance in at least one of the fifty states of the United States or the District of Columbia;
(3) Has filed with the application a certified statement that the company submits to this state's jurisdiction and that the company will comply with the laws, rules and regulations of the state of West Virginia;
(4) Has filed with the application a certified statement that the company submits to the examination authority granted the commissioner by section nine, article two of this chapter and will pay all examination costs and fees as required by that section, and the one-time assessment imposed in section nine-a, article two of this chapter;
(5) Has filed with the application a copy of its most recent annual statement in a form consistent with the requirements of subdivision (8) of this subsection and a copy of its last audited financial statement;
(6) Has filed any other information the commissioner requests to determine that the company qualifies for accreditation under this section;
(7) Has remitted the applicable processing fee with its application for accreditation;
(8) Files with the commissioner after initial accreditation on or before the first day of March of each year a true statement of its financial condition, transactions and affairs as of the preceding thirty-first day of December. The statement shall be on the appropriate national association of insurance commissioners annual statement blank; shall be prepared in accordance with the national association of insurance commissioners annual statement instructions; and shall follow the accounting practices and procedures prescribed by the national association of insurance commissioners accounting practices and procedures manual as amended. The statement shall be accompanied by the applicable annual statement filing fee. The commissioner may grant extensions of time for filing of this annual statement upon application by the accredited reinsurer; and
(9) Files with the commissioner after initial accreditation by the first day of June of each year a copy of its audited financial statement for the period ending the preceding thirty-first day of December.
(b) If the commissioner determines that the assuming insurer has failed to continue to meet any of these qualifications, he or she may upon written notice and hearing, as prescribed by section thirteen, article two of this chapter, revoke an assuming insurer's accreditation. Credit shall not be allowed to a ceding insurer if the assuming insurer's accreditation has been revoked by the commissioner after notice and hearing.
(c) Credit for reinsurance shall be allowed a domestic ceding insurer or any foreign or alien insurer transacting insurance in West Virginia that is domiciled in a jurisdiction that employs standards regarding credit for reinsurance that are not substantially similar to those applicable under this article as either an asset or a deduction from liability on account of reinsurance ceded only when the reinsurer meets one of the following requirements:
(1) Credit shall be allowed when the reinsurance is ceded to an assuming insurer which is licensed to transact insurance or reinsurance in this state.
(2) Credit shall be allowed when the reinsurance is ceded to an assuming insurer which is accredited as a reinsurer in this state prior to the effective date of the reinsurance contract.
(3) Credit shall be allowed when the reinsurance is ceded to an assuming insurer which is domiciled and licensed in, or in the case of a United States branch of an alien assuming insurer, is entered through one of the fifty states of the United States or the District of Columbia and which employs standards regarding credit for reinsurance substantially similar to those applicable under this statute, and the ceding insurer provides evidence suitable to the commissioner that the assuming insurer:
(A) Maintains a surplus as regards policyholders in an amount not less than twenty million dollars: Provided, That the requirements of this paragraph do not apply to reinsurance ceded and assumed pursuant to pooling arrangements among insurers in the same holding company system;
(B) The ceding insurer provides the commissioner with a certified statement from the assuming insurer that the assuming insurer submits to the authority of this state to examine its books and records granted the commissioner by section nine, article two of this chapter and will pay all examination costs and fees as required by that section; and
(C) The reinsurer complies with the provisions of subdivision (6), subsection (c) herein.
(4) Credit shall be allowed when the reinsurance is ceded to an assuming insurer which maintains a trust fund as required by subsection (d) herein in a qualified United States financial institution, as defined by this section, for the payment of the valid claims of its United States policyholders and ceding insurers, their assigns and successors in interest, and complies with the provisions of subdivision (6) herein.
(5) Credit shall be allowed when the reinsurance is ceded to an assuming insurer not meeting the requirements of subdivisions (1) through (4), inclusive, subsection (c) of this section, but only with respect to the insurance of risks located in jurisdictions where such reinsurance is required by applicable law or regulation of that jurisdiction.
(6) If the assuming insurer is not licensed or accredited to transact insurance or reinsurance in this state, the credit permitted by subdivisions (3) and (4) of this subsection shall not be allowed unless the assuming insurer agrees in the reinsurance agreements:
(A) That in the event of the failure of the assuming insurer to perform its obligations under the terms of the reinsurance agreement, the assuming insurer, at the request of the ceding insurer, shall submit to the jurisdiction of any court of competent jurisdiction in any state of the United States, shall comply with all requirements necessary to give such court jurisdiction and shall abide by the final decision of such court or of any appellate court in the event of an appeal; and
(B) To designate the secretary of state as its true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the ceding company. Process shall be served upon the secretary of state, or accepted by him or her, in the same manner as provided for service of process upon unlicensed insurers under section thirteen of this article: Provided, That this provision is not intended to conflict with or override the obligation of the parties to a reinsurance agreement to arbitrate their disputes, if such an obligation is created in the agreement.
(d) Whenever an assuming insurer establishes a trust fund for the payment of claims pursuant to the provisions of this section, the following requirements shall apply:
(1) The assuming insurer shall report annually to the commissioner information substantially the same as that required to be reported on the national association of insurance commissioners annual statement form by licensed insurers to enable the commissioner to determine the sufficiency of the trust fund. In the case of a single assuming insurer, the trust shall consist of a trusteed account representing the assuming insurer's liabilities attributable to business written in the United States and, in addition, the assuming insurer shall maintain a trusteed surplus of not less than twenty million dollars. In the case of a group, including incorporated and individual unincorporated underwriters, the trust shall consist of a trusteed account representing the group's liabilities attributable to business written in the United States and, in addition, the group shall maintain a trusteed surplus of which one hundred million dollars shall be held jointly for the benefit of United States ceding insurers of any member of the group. The incorporated members of the group shall not be engaged in any business other than underwriting as a member of the group and shall be subject to the same level of solvency regulation and control by the group's domiciliary regulator as are the unincorporated members. The group shall make available to the commissioner an annual certification of the solvency of each underwriter by the group's domiciliary regulator and its independent public accountants.
(2) In the case of a group of incorporated insurers under common administration which complies with the filing requirements contained in the previous paragraph; which has continuously transacted an insurance business outside the United States for at least three years immediately prior to making application for accreditation; which submits to this state's authority to examine its books and records and bears the expense of the examination; and which has aggregate policyholders' surplus of ten billion dollars, the trust shall be in an amount equal to the group's several liabilities attributable to business ceded by United States ceding insurers to any member of the group pursuant to reinsurance contracts issued in the name of the group. The group shall also maintain a joint trusteed surplus of which one hundred million dollars shall be held jointly for the benefit of United States ceding insurers of any member of the group as additional security for any such liabilities. Each member of the group shall make available to the commissioner an annual certification of the member's solvency by the member's domiciliary regulator and its independent public accountants.
(3) Any trust that is subject to the provisions of this section shall be established in a form approved by the commissioner. The trust instrument shall provide that contested claims shall be valid and enforceable upon the final order of any court of competent jurisdiction in the United States. The trust shall vest legal title to its assets in the trustees of the trust for its United States policyholders and ceding insurers, their assigns and successors in interest. The trust and the assuming insurer shall be subject to examination as determined by the commissioner. The trust described herein shall remain in effect for as long as the assuming insurer shall have outstanding obligations due under the reinsurance agreements subject to the trust.
(4) No later than the twenty-eighth day of February of each year the trustees of the trust shall report to the commissioner in writing setting forth the balance of the trust and listing the trust's investments at the preceding year's end. The trustees shall certify the date of termination of the trust, if so planned, or certify that the trust shall not expire prior to the next following December thirty- first.
(e) A reduction from liability for the reinsurance ceded by a ceding insurer subject to the requirements of this article to an assuming insurer not meeting the requirements of subsection (c) of this section shall be allowed in an amount not exceeding the liabilities carried by the ceding insurer. The reduction shall be in the amount of funds held by or on behalf of the ceding insurer, including funds held in trust for the ceding insurer, under a reinsurance contract with the assuming insurer as security for the payment of obligations thereunder: Provided, That the security is held in the United States subject to withdrawal solely by, and under the exclusive control of, the ceding insurer; or, in the case of a trust, held in a qualified United States financial institution, as defined by this section. The security may be in the form of:
(1) Cash;
(2) Securities listed by the securities valuation office of the national association of insurance commissioners and qualifying as admitted assets; or
(3) Clean, irrevocable, unconditional letters of credit, issued or confirmed by a qualified United States financial institution, as defined by this section, no later than the thirty-first day of December of the year for which filing is being made, and in the possession of the ceding company on or before the filing date of its annual statement: Provided, That letters of credit meeting applicable standards of issuer acceptability as of the dates of their issuance or confirmation shall, notwithstanding the issuing or confirming institution's subsequent failure to meet applicable standards of issuer acceptability, continue to be acceptable as security until their expiration, extension, renewal, modification or amendment, whichever first occurs.
(f) For purposes of this section, a 'qualified United States financial institution' means an institution that:
(1) Is organized or licensed under the laws of the United States or any state thereof;
(2) Is regulated, supervised and examined by United States federal or state authorities having regulatory authority over banks and trust companies; and
(3) Has been determined by either the commissioner, or the securities valuation office of the national association of insurance commissioners, to meet the standards of financial condition and standing as are considered necessary and appropriate to regulate the quality of financial institutions whose letters of credit will be acceptable to the commissioner.
(g) A 'qualified United States financial institution' means, for purposes of those provisions of this law specifying those institutions that are eligible to act as a fiduciary of a trust, an institution that:
(1) Is organized or, in the case of a United States branch or agency office of a foreign banking organization, licensed under the laws of the United States or any state thereof and has been granted authority to operate with fiduciary powers; and
(2) Is regulated, supervised and examined by federal or state authorities having regulatory authority over banks and trust companies.
(h) The provisions of this section shall apply to all cessions on or after the first day of January, one thousand nine hundred ninety-three.
ARTICLE 20B. RATES AND MALPRACTICE INSURANCE POLICIES.

§33-20B-1a. Requiring malpractice insurers to offer coverage for all areas of specialization or fields of practice.

(a) Any admitted insurance company issuing professional liability or malpractice insurance policies to physicians licensed to practice medicine in West Virginia shall offer coverage to physicians in all areas of specialization or fields of practice, except as provided by the commissioner. This section shall not be construed to require the issuance of a policy contrary to established underwriting practices, provided that the underwriting practices do not unfairly discriminate against a particular area of specialization or field of practice.
(b) This section shall not be construed to prevent an insurance company issuing professional liability or malpractice insurance policies to physicians licensed to practice medicine in West Virginia from limiting the amount of coverage provided or from making a premium surcharge for the coverage in accordance with established underwriting practices and an approved scheduled rating plan, 'consent to' rates or 'guide A' rates, provided that the underwriting practices do not unfairly discriminate against a particular area of specialization or field of practice.
(c) This section shall not apply to companies chartered to write single specialization policies or policies obtained through specialty associations, provided that the underwriting practices do not unfairly discriminate against a particular area of specialization or field of practice.
§33-20B-2. Ratemaking.

Any The commissioner shall make any and all modifications of rates shall be made in accordance with the following provisions:
(a) Due consideration shall be given to the company's past and prospective loss experience within and outside this state.
(b) Due consideration shall be given to catastrophe hazards, if any, to a reasonable margin for underwriting profit and contingencies, to dividends, savings or unabsorbed premium deposits allowed or returned by insurers to their policyholders, members or subscribers and actual past expenses and demonstrable prospective or projected expenses applicable to this state.
(c) Rates shall not be excessive, inadequate, predatory or unfairly discriminatory.
(d) Risks may not be grouped by territorial areas for the establishment of rates and minimum premiums.
(e) An insurer may use guide 'A' rates and other nonapproved rates, also known as 'consent to rates': Provided, That the insurer shall, prior to entering into an agreement with an individual provider or any health care entity, submit guide 'A' rates and other nonapproved rates to the commissioner for review and approval: Provided, however, That the commissioner shall propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty- nine-a of this code, which set forth the standards and procedure for reviewing and approving guide 'A' rates and other nonapproved rates. No insurer may require execution of a consent to rate endorsement for the purpose of offering to issue or issuing a contract or coverage to an insured or continuing an existing contract or coverage at a rate in excess of that provided by a filing otherwise applicable.
(f) Except to the extent necessary to meet the provisions of subdivision (c) of this section, uniformity among insurers, in any matters within the scope of this section, is neither required nor prohibited.
(g) Rates made in accordance with this section may be used subject to the provisions of this article.
§33-20B-3a. Rate prohibitions.
Reduced rates charged for certain specialties or risks found by the commissioner to be predatory, designed to gain market share or otherwise inadequate are prohibited.
ARTICLE 20F. PHYSICIANS' MUTUAL INSURANCE COMPANY.
§33-20F-1. Short title.
This article shall be known and may be cited as the 'Physicians' Mutual Insurance Company Act'.
§33-20F-1a. Scope of article.
This article applies only to the physicians' mutual insurance company created as a novation of the medical professional liability insurance programs created in article twelve-b, chapter twenty- nine of this code.
§33-20F-2. Findings and purpose.

(a) The Legislature finds that:
(1) There is a nationwide crisis in the field of medical liability insurance;
(2) Similar crises have occurred at least three times during the past three decades;
(3) Such crises are part of a naturally recurring cycle of a hard market period, when medical professional liability coverage is difficult to obtain, and a soft market period, when coverage is more readily available;
(4) Such crises are particularly acute in this state due to the small size of the insurance market;
(5) During a hard market period, insurers tend to flee this state, creating a crisis for physicians who are left without professional liability coverage;
(3) (6) Physicians During the current crisis, physicians in West Virginia find it increasingly difficult, if not impossible, to obtain medical liability insurance either because coverage is unavailable or unaffordable;
(4) (7) The difficulty or impossibility in of obtaining medical liability insurance may result in many qualified physicians leaving the state;
(5) (8) Access to quality health care is of utmost importance to the citizens of West Virginia;
(6) (9) A mechanism is needed to remedy provide an enduring solution to this recurring medical liability crisis;
(7) (10) A physicians' mutual insurance company or a similar entity has proven to be a successful mechanism in other states for helping physicians secure insurance and for stabilizing the insurance market.
(11) There is a substantial public interest in creating a method to provide a stable medical liability market in this state;
(12) The state has attempted to temporarily alleviate the current medical crisis by the creation of programs to provide medical liability coverage through the board of risk and insurance management;
(13) The state-run program is a substantial actual and potential liability to the state;
(14) There is substantial public benefit in transferring the actual and potential liability of the state to the private sector and creating a stable self-sufficient entity which will be a source of liability insurance coverage for physicians in this state;
(15) A stable, financially viable insurer in the private sector will provide a continuing source of insurance funds to compensate victims of medical malpractice; and
(16) Because the public will greatly benefit from the formation of a physicians' mutual insurance company, state efforts to encourage and support the formation of such an entity, including providing a low-interest loan for a portion of the entity's initial capital, is in the clear public interest.

(b) The purpose of this article is to create a mechanism for the formation of a physicians' mutual insurance company that will provide:
(1) A means for physicians to obtain medical liability insurance that is available and affordable; and
(2) Compensation to persons who suffer injuries as a result of medical professional liability as defined in subsection (d), section two, article seven-b, chapter fifty-five of this code.
§33-20F-3. Definitions.
For purposes of this article, the term:
(a) 'Board of medicine' means the West Virginia board of medicine as provided in section five, article three, chapter thirty of this code.
(b) 'Board of osteopathy' means the West Virginia board of osteopathy as provided in section three, article fourteen, chapter thirty of this code.
(c) 'Commissioner' means the insurance commissioner of West Virginia as provided in section one, article two, chapter thirty-three of this code.
(d) 'Company' means any the physicians' mutual insurance company created pursuant to the terms of this article.
(e) 'Medical liability insurance' means, for purposes of this article, all policies previously issued by the board of risk and insurance management to physicians, physician corporations and physician-operated clinics pursuant to article twelve-b, chapter twenty-nine of this code and all policies of insurance subsequently issued by the physicians' mutual insurance company created under this article.
(e) (f) 'Physician' means an individual who is licensed by the board of medicine or the board of osteopathy to practice medicine or podiatry in West Virginia.
(g) 'Transfer date' means the date on which all of the assets, obligations and liabilities assumed by the board of risk and insurance management under the provisions of article twelve-b, chapter twenty-nine of this code are transferred to the company or any later date selected by the board of risk and insurance management.
§33-20F-4. Authorization for creation of company; requirements and limitations.

(a) Subject to the provisions of this article, a physicians' mutual insurance company is hereby authorized to may be created as a domestic, private, nonstock, nonprofit corporation. As an incentive for its creation, any the company that meets the requirements set forth in this article may be eligible for funds from the Legislature in accordance with the provisions of section seven of this article. A The company must remain for the duration of its existence a domestic mutual insurance company owned by its policyholders and may not be converted into a stock corporation, a for-profit corporation or any other entity not owned by its policyholders. The company may not declare any dividend to its policyholders; sell, assign or transfer substantial assets of the company; or write coverage outside this state, except for counties adjoining this state, until after any and all debts owed by the company to the state have been fully paid.
(b) For the duration of its existence, a company is not and may not be considered a department, unit, agency, or instrumentality of the state for any purpose. All debts, claims, obligations, and liabilities of a company, whenever incurred, shall be the debts, claims, obligations, and liabilities of the company only and not of the state or of any department, unit, agency, instrumentality, officer, or employee of the state.
(c) The moneys of a the company are not and may not be considered part of the general revenue fund of the state. The debts, claims, obligations, and liabilities of a the company are not and may not be considered a debt of the state or a pledge of the credit of the state.
(d) A The company is not subject to provisions of article nine-a, chapter six of this code or the provisions of article one, chapter twenty-nine-b of this code.
(e) All premiums collected are subject to the premium tax, additional premium tax, additional fire and casualty insurance premium tax and surcharge contained in sections fourteen, fourteen-a, fourteen-d and thirty-three, article three of this chapter except that all the taxes paid by the physicians' mutual created in this article, and all the taxes paid by any carrier on its medical malpractice line, shall be applied toward restoring the moneys to the West Virginia tobacco settlement medical trust; thereafter, the physicians' mutual shall not be subject to the premium taxes and surcharges set forth in this section: Provided, That, with regard to the physicians' mutual created in this article, and for the period of time as the aforesaid loan remains outstanding, the commissioner may waive such taxes if payment would render the physicians' mutual insolvent or otherwise financially impaired.
§33-20F-5. Governance and organization.
(a)(1) The board of risk and insurance management shall implement the initial formation and organization of the company as provided by this article and shall serve as provisional directors until the thirty-first day of December, two thousand three.
(2) From the first day of July, two thousand three, until the thirty-first day of December, two thousand three, the company shall be governed by a provisional board of directors consisting of the board of risk and insurance management and five physician directors, one of whom shall be nominated by the West Virginia state medical association and one of whom is the dean of the West Virginia university school of medicine or his or her designated physician representative. Only physicians who have purchased medical liability coverage from the board of risk and insurance management are eligible for selection as the physician representative on the provisional board of directors. The chairperson of the board of risk and insurance management shall serve as the chairperson of the company's provisional board of directors.
(3) From the first day of January, two thousand four, the company shall be governed by a board of directors selected in accordance with the company's articles of incorporation and the provisions of subsection (b) of this section: Provided, That only physicians who have purchased medical liability coverage from the board of risk and insurance management are eligible for selection as the physician representative on the initial board of directors. The members selected shall choose a chairperson by a majority vote.
(a) (b) A The company is to be governed by a board of directors consisting of eleven directors, as follows:
(1) At least, but not more than, four Five directors who are physicians licensed to practice medicine in this state by the board of medicine or the board of osteopathy, and who represent the various physician organizations within the state; including at least one general practitioner and one specialist;
(2) Three directors who have substantial experience as an officer or employee of a company in the insurance industry; and
(3) At least two Two directors with general knowledge and experience in business management who are officers and employees of the company and are responsible for the daily management of the company; and
(4) Two directors with general knowledge and experience in business management. One director who is a dean of a West Virginia medical school or his or her designated physician representative. This director's position shall rotate annually among the dean of the West Virginia school of medicine, the dean of the Marshall university Joan C. Edwards school of medicine and the dean of the West Virginia school of osteopathic medicine. The director shall serve until such time as the moneys from the West Virginia tobacco settlement trust have been restored. After the moneys are stored, the director shall be a physician licensed to practice medicine in this state by the board of medicine or the board of osteopathy.
(b) (c) In addition to the eleven directors required by subsection (a) (b) of this section, the bylaws of a company may provide for the addition of at least two directors who represent an entity or institution which lends or otherwise provides funds to the company.
(c) Relating to the directors provided for in subsection (a) of this section and to the extent possible, the directors are to reside in different geographical areas of the state. The number of such directors from any one congressional district in the state may not exceed the number of directors from any other congressional district in the state by more than two.
(d) The directors and officers of a company are to be chosen in accordance with the articles of incorporation and bylaws of the company. The initial board of directors selected in accordance with the provisions of subdivision (3), subsection (a) of this section shall serve for the following terms: (1) Three for four-year terms; (2) three for three-year terms; (3) three for two-year terms; and (4) two for one-year terms. Thereafter, the directors shall serve staggered terms of four years. If additional directors are added to the board as provided in subsection (b) (c) of this section, the initial term for those directors is four years. No director chosen pursuant to subsection (a) (b) of this section may serve more than two consecutive terms.
(e) The incorporators are to prepare and file articles of incorporation and bylaws in accordance with the provisions of this article and the provisions of chapters thirty-one and thirty- three of this code.
§33-20F-6. Management and administration of a company.
(a) If the board of directors determines that the affairs of a the company may be administered suitably and efficiently, the company may enter into a contract with a licensed insurer, licensed health service plan, insurance service organization, third-party administrator, insurance brokerage firm or other firm or company with suitable qualifications and experience to administer some or all of the affairs of the company, subject to the continuing direction of the board of directors as required by the articles of incorporation and bylaws of the company, and the contract.
(b) The company shall file a true copy of the contract with the commissioner as provided in section twenty-one, article five of this chapter.
§33-20F-7. Initial capital and surplus; special assessment.
(a) A portion of the initial capital and surplus of a the company may be provided by direction of the Legislature, in an amount, upon terms and conditions, and from sources as may be determined by the Legislature in its sole discretion. There is hereby created in the state treasury a special revenue account designated as the 'Board of Risk and Insurance Management Physicians' Mutual Insurance Company Account' solely for the purpose of receiving any funds appropriated or transferred by the Legislature pursuant to this section.
(b) In the event that a portion of the initial capital and surplus of a the company is provided by direction of the Legislature pursuant to subsection (a) of this section, a special one-time assessment for the privilege of practicing in West Virginia may shall be assessed effective the first day of July, two thousand three, on every physician licensed by the board of medicine and every physician licensed by the board of osteopathy to practice medicine in this state. The amount of assessment may not exceed shall be one thousand dollars for each licensed physician: Provided, That faculty physicians shall not be subject to the assessment. The assessment is to be assessed and collected by the board of medicine and the board of osteopathy on forms as prescribed by the board of medicine and the board of osteopathy may prescribe respective licensing bodies.
(c) If the special assessment is collected pursuant to subsection (b) of this section, the Legislature hereby dedicates the entire proceeds of the special assessment to the company. The board of medicine and the board of osteopathy shall promptly pay over to the company all amounts collected pursuant to this section to be used as policyholder surplus for the company.
(d) In the event that a portion of the initial capital and surplus of the company is provided by direction of the Legislature pursuant to subsection (a) of this section, then all physicians who purchase insurance from the company who have not paid the assessment pursuant to subsection (b) of this section shall pay one thousand dollars as a condition of participation in the physicians' mutual: Provided, That faculty physicians shall not be subject to this assessment. This assessment shall be collected by the company at the time the physician is provided insurance.
(e) 'Faculty physicians' means physicians including residents who are employees of Marshall university board of governors, West Virginia school of osteopathic medicine board of governors or West Virginia University board of governors.
§33-20F-8. Application for license; authority of commissioner.
(a) As soon as practical, a the company desiring to do business established pursuant to the provisions of this article shall file its corporate charter and bylaws with the commissioner and apply for a license to transact insurance in this state. Notwithstanding any other provision of this code, the commissioner must shall act on the documents within fifteen days of the filing by a company.
(b) In recognition of the medical liability insurance crisis in this state at the time of enactment of this article and the critical need to expedite the initial operation of a the company, the Legislature hereby authorizes the commissioner to review the documentation submitted by a company and to determine the initial capital and surplus requirements of a company, notwithstanding the provisions of section five-b, article three of this chapter. The commissioner has the sole discretion to determine the capital and surplus funds of a the company and to monitor the economic viability of the company during its initial operation and duration on not less than a monthly basis. A The company shall furnish the commissioner with all information and cooperate in all respects as may be necessary for the commissioner to perform the duties set forth in this section and in other provisions of this chapter, including annual audited financial statements as required by article thirty-three of this chapter and fidelity bond coverage for each of the directors of the company.
(c) Subject to the provisions of subsection (d) of this section, the commissioner may waive other requirements imposed on mutual insurance companies by the provisions of this chapter as the commissioner determines is necessary to enable a the company to begin insuring physicians in this state at the earliest possible date.
(d) Within thirty-six forty months of the date of the issuance of its license to transact insurance, a the company must shall comply with the capital and surplus requirements set forth in section five-b, article three of this chapter. and with all other requirements imposed upon mutual insurance companies by the provisions of this chapter.
§33-20F-9. Kinds of coverage authorized; transfer of policies from the state board of risk and insurance management; risk management practices authorized.

(a) Upon approval by the commissioner for a license to transact insurance in this state, a the company may issue nonassessable policies of malpractice insurance, as defined in subdivision (9), subsection (e), section ten, article one of this chapter, insuring a physician. Additionally, a the company may issue other types of casualty or liability insurance as may be approved by the commissioner.
(b) A (1) On the transfer date, the company must shall accept the transfer of medical malpractice any and all medical liability insurance obligations and risks of existing or in force contracts of insurance on physicians covering physicians from the state board of risk and insurance management pursuant to article twelve-b, chapter twenty-nine of this code. Subject to approval by the commissioner, a company may impose reasonable terms and conditions upon any transfer from the state board of risk and insurance management, but the terms and conditions may not be designed or construed to prohibit or unduly restrict such transfers.
(2) On the transfer date, the board of risk and insurance management shall disburse and pay to the company any moneys deposited in the following accounts as reflected on the ledgers of the board of risk and insurance management:
(i) Statewide financial accounting system account number 2368;
(ii) The medical liability fund created by section ten, article twelve-b, chapter twenty-nine of this code; and
(iii) The board of risk and insurance management physicians' mutual insurance company account created under this article, all of which shall be transferred to the company pursuant to terms of a surplus note or other loan arrangement satisfactory to the board of risk and insurance management and the insurance commissioner.
(3) On the transfer date, the company shall assume all responsibility for and defend, indemnify and hold harmless the board of risk and insurance management and the state with respect to any and all liabilities and duties arising from the assets and responsibilities transferred to the company, including, but not limited to, any duties or responsibilities arising from the coverage of physicians for medical liability pursuant to article twelve-b, chapter twenty-nine of this code.
(4) The board of risk and insurance management may enter into such agreements, including loan agreements, with the company that are necessary or convenient to accomplish the transfers addressed in this section.

(c) A The company shall make policies of insurance available to physicians in this state, regardless of practice type or specialty. Policies issued by a the company to each class of physicians are to be essentially uniform in terms and conditions of coverage.
(d) Notwithstanding the provisions of subsections (b) or (c) of this section, a the company may:
(1) Establish reasonable classifications of physicians, insured activities and exposures based on a good faith determination of relative exposures and hazards among classifications;
(2) Vary the limits, coverages, exclusions, conditions and loss-sharing provisions among classifications;
(3) Establish, for an individual physician within a classification, reasonable variations in the terms of coverage, including rates, deductibles and loss-sharing provisions, based on the insured's prior loss experience and current professional training and capability; and
(4) Refuse Except with respect to policies transferred from the board of risk and insurance management under this section, refuse to provide insurance coverage for individual physicians whose prior loss experience or current professional training and capability are such that the physician represents an unacceptable risk of loss if coverage is provided.
(e) A The company shall establish reasonable risk management and continuing education requirements which policyholders must meet in order to be and remain eligible for coverage.
§33-20F-10. Controlling law.
To the extent applicable, and when not in conflict with the provisions of this article, the provisions of chapters thirty-one and thirty-three of this code apply to any the company created pursuant to the provisions of this article. If a provision of this article and another provision of this code are in conflict, the provision of this article controls.
§33-20F-11. Liberal construction.
This article is enacted to address a situation critical to the citizens of the state of West Virginia by providing a mechanism for the speedy and deliberate creation of a company to begin offering medical liability insurance to physicians in this state at the earliest possible date; and to accomplish this purpose, this article must shall be liberally construed.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.

§33-25A-24. Scope of provisions; applicability of other laws.

(a) Except as otherwise provided in this article, provisions of the insurance laws and provisions of hospital or medical service corporation laws are not applicable to any health maintenance organization granted a certificate of authority under this article. The provisions of this article shall not apply to an insurer or hospital or medical service corporation licensed and regulated pursuant to the insurance laws or the hospital or medical service corporation laws of this state except with respect to its health maintenance corporation activities authorized and regulated pursuant to this article. The provisions of this article may not apply to an entity properly licensed by a reciprocal state to provide health care services to employer groups, where residents of West Virginia are members of an employer group, and the employer group contract is entered into in the reciprocal state. For purposes of this subsection, a 'reciprocal state' means a state which physically borders West Virginia and which has subscriber or enrollee hold harmless requirements substantially similar to those set out in section seven-a of this article.
(b) Factually accurate advertising or solicitation regarding the range of services provided, the premiums and copayments charged, the sites of services and hours of operation and any other quantifiable, nonprofessional aspects of its operation by a health maintenance organization granted a certificate of authority, or its representative may not be construed to violate any provision of law relating to solicitation or advertising by health professions: Provided, That nothing contained in this subsection shall be construed as authorizing any solicitation or advertising which identifies or refers to any individual provider or makes any qualitative judgment concerning any provider.
(c) Any health maintenance organization authorized under this article may not be considered to be practicing medicine and is exempt from the provisions of chapter thirty of this code, relating to the practice of medicine.
(d) The provisions of sections fifteen and twenty, article four (general provisions); section nine-a, article two (one-time assessment); section seventeen, article six (noncomplying forms); section twenty, article five (borrowing by insurers); article six-c (guaranteed loss ratio); article seven (assets and liabilities); article eight (investments); article eight-a (use of clearing corporations and federal reserve book-entry system); article nine (administration of deposits); article twelve (agents, brokers, solicitors and excess line); section fourteen, article fifteen (individual accident and sickness insurance); section sixteen, article fifteen (coverage of children); section eighteen, article fifteen (equal treatment of state agency); section nineteen, article fifteen (coordination of benefits with medicaid); article fifteen-b (uniform health care administration act); section three, article sixteen (required policy provisions); section three-f, article sixteen (treatment of temporomandibular disorder and craniomandibular disorder); section eleven, article sixteen (coverage of children); section thirteen, article sixteen (equal treatment of state agency); section fourteen, article sixteen (coordination of benefits with medicaid); article sixteen-a (group health insurance conversion); article sixteen-d (marketing and rate practices for small employers); article twenty-five-c (health maintenance organization patient bill of rights); article twenty-seven (insurance holding company systems); article thirty-four-a (standards and commissioner's authority for companies considered to be in hazardous financial condition); article thirty-five (criminal sanctions for failure to report impairment); article thirty-seven (managing general agents); article thirty-nine (disclosure of material transactions); article forty-one (privileges and immunity); and article forty-two (women's access to health care) shall be applicable to any health maintenance organization granted a certificate of authority under this article. In circumstances where the code provisions made applicable to health maintenance organizations by this section refer to the 'insurer', the 'corporation' or words of similar import, the language shall be construed to include health maintenance organizations.
(e) Any long-term care insurance policy delivered or issued for delivery in this state by a health maintenance organization shall comply with the provisions of article fifteen-a of this chapter.
ARTICLE 25D. PREPAID LIMITED HEALTH SERVICE ORGANIZATION ACT.
§33-25D-26. Scope of provisions; applicability of other laws.
(a) Except as otherwise provided in this article, provisions of the insurance laws, provisions of hospital, medical, dental or health service corporation laws and provisions of health maintenance organization laws are not applicable to any prepaid limited health service organization granted a certificate of authority under this article. The provisions of this article do not apply to an insurer, hospital, medical, dental or health service corporation, or health maintenance organization licensed and regulated pursuant to the insurance laws, hospital, medical, dental or health service corporation laws or health maintenance organization laws of this state except with respect to its prepaid limited health service corporation activities authorized and regulated pursuant to this article. The provisions of this article do not apply to an entity properly licensed by a reciprocal state to provide a limited health care service to employer groups, where residents of West Virginia are members of an employer group, and the employer group contract is entered into in the reciprocal state. For purposes of this subsection, a 'reciprocal state' means a state which physically borders West Virginia and which has subscriber or enrollee hold harmless requirements substantially similar to those set out in section ten of this article.
(b) Factually accurate advertising or solicitation regarding the range of services provided, the premiums and copayments charged, the sites of services and hours of operation and any other quantifiable, nonprofessional aspects of its operation by a prepaid limited health service organization granted a certificate of authority, or its representative do not violate any provision of law relating to solicitation or advertising by health professions: Provided, That nothing contained in this subsection authorizes any solicitation or advertising which identifies or refers to any individual provider or makes any qualitative judgment concerning any provider.
(c) Any prepaid limited health service organization authorized under this article is not considered to be practicing medicine and is exempt from the provision of chapter thirty of this code relating to the practice of medicine.
(d) The provisions of section nine, article two, examinations; section nine-a, article two, one- time assessment; section thirteen, article two, hearings; sections fifteen and twenty, article four, general provisions; section twenty, article five, borrowing by insurers; section seventeen, article six, noncomplying forms; article six-c, guaranteed loss ratio; article seven, assets and liabilities; article eight, investments; article eight-a, use of clearing corporations and federal reserve book-entry system; article nine, administration of deposits; article ten, rehabilitation and liquidation; article twelve, agents, brokers, solicitors and excess line; section fourteen, article fifteen, individual accident and sickness insurance; section sixteen, article fifteen, coverage of children; section eighteen, article fifteen, equal treatment of state agency; section nineteen, article fifteen, coordination of benefits with medicaid; article fifteen-b, uniform health care administration act; section three, article sixteen, required policy provisions; section eleven, article sixteen, coverage of children; section thirteen, article sixteen, equal treatment of state agency; section fourteen, article sixteen, coordination of benefits with medicaid; article sixteen-a, group health insurance conversion; article sixteen-d, marketing and rate practices for small employers; article twenty-seven, insurance holding company systems; article thirty-three, annual audited financial report; article thirty-four, administrative supervision; article thirty-four-a, standards and commissioner's authority for companies considered to be in hazardous financial condition; article thirty-five, criminal sanctions for failure to report impairment; article thirty-seven, managing general agents; article thirty-nine, disclosure of material transactions; and article forty-one, privileges and immunity, all of this chapter are applicable to any prepaid limited health service organization granted a certificate of authority under this article. In circumstances where the code provisions made applicable to prepaid limited health service organizations by this section refer to the 'insurer', the 'corporation' or words of similar import, the language includes prepaid limited health service organizations.
(e) Any long-term care insurance policy delivered or issued for delivery in this state by a prepaid limited health service organization shall comply with the provisions of article fifteen-a of this chapter.
(f) A prepaid limited health service organization granted a certificate of authority under this article is exempt from paying municipal business and occupation taxes on gross income it receives from its enrollees, or from their employers or others on their behalf, for health care items or services provided directly or indirectly by the prepaid limited health service organization.
CHAPTER 38. LIENS.

ARTICLE 10. FEDERAL TAX LIENS; ORDERS AND DECREES IN BANKRUPTCY.
§38-10-4. Exemptions of property in bankruptcy proceedings
.
Pursuant to the provisions of §11 U. S. C. 522(b)(1), this state specifically does not authorize debtors who are domiciled in this state to exempt the property specified under the provisions of §11 U. S. C. 522(d).
Any person who files a petition under the federal bankruptcy law may exempt from property of the estate in a bankruptcy proceeding the following property:
(a) The debtor's interest, not to exceed twenty-five thousand dollars in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence or in a burial plot for the debtor or a dependent of the debtor.: Provided, That when the debtor is a physician licensed under article three or fourteen, chapter thirty of this code and has commenced a bankruptcy proceeding in part due to a verdict or judgment entered in a medical professional liability action, if the physician has current medical malpractice insurance for an amount of at least one million dollars for each occurrence, the debtor physician's interest that is exempt under this subsection may exceed twenty-five thousand dollars in value but may not exceed two hundred fifty thousand dollars per household.
(b) The debtor's interest, not to exceed two thousand four hundred dollars in value, in one motor vehicle.
(c) The debtor's interest, not to exceed four hundred dollars in value in any particular item, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops or musical instruments that are held primarily for the personal, family or household use of the debtor or a dependent of the debtor: Provided, That the total amount of personal property exempted under this subsection may not exceed eight thousand dollars.
(d) The debtor's interest, not to exceed one thousand dollars in value, in jewelry held primarily for the personal, family or household use of the debtor or a dependent of the debtor.
(e) The debtor's interest, not to exceed in value eight hundred dollars plus any unused amount of the exemption provided under subsection (a) of this section in any property.
(f) The debtor's interest, not to exceed one thousand five hundred dollars in value, in any implements, professional books or tools of the trade of the debtor or the trade of a dependent of the debtor.
(g) Any unmeasured life insurance contract owned by the debtor, other than a credit life insurance contract.
(h) The debtor's interest, not to exceed in value eight thousand dollars less any amount of property of the estate transferred in the manner specified in §11 U. S. C. 542(d), in any accrued dividend or interest under, or loan value of, any unmeasured life insurance contract owned by the debtor under which the insured is the debtor or an individual of whom the debtor is a dependent.
(i) Professionally prescribed health aids for the debtor or a dependent of the debtor.
(j) The debtor's right to receive:
(1) A social security benefit, unemployment compensation or a local public assistance benefit;
(2) A veterans' benefit;
(3) A disability, illness or unemployment benefit;
(4) Alimony, support or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(5) A payment under a stock bonus, pension, profit sharing, annuity or similar plan or contract on account of illness, disability, death, age or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, and funds on deposit in an individual retirement account (IRA), including a simplified employee pension (SEP) regardless of the amount of funds, unless:
(A) The plan or contract was established by or under the auspices of an insider that employed the debtor at the time the debtor's rights under the plan or contract arose;
(B) The payment is on account of age or length of service;
(C) The plan or contract does not qualify under Section 401(a), 403(a), 403(b), 408 or 409 of the Internal Revenue Code of 1986; and
(D) With respect to an individual retirement account, including a simplified employee pension, the amount is subject to the excise tax on excess contributions under Section 4973 and/or Section 4979 of the Internal Revenue Code of 1986, or any successor provisions, regardless of whether the tax is paid.
(k) The debtor's right to receive or property that is traceable to:
(1) An award under a crime victim's reparation law;
(2) A payment on account of the wrongful death of an individual of whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(3) A payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of the individual's death, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(4) A payment, not to exceed fifteen thousand dollars on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent;
(5) A payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(6) Payments made to the prepaid tuition trust fund or to the savings plan trust fund, including earnings, in accordance with article thirty, chapter eighteen of this code on behalf of any beneficiary.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§55-7B-1. Legislative findings and declaration of purpose.
The Legislature hereby finds and declares that the citizens of this state are entitled to the best medical care and facilities available and that health care providers offer an essential and basic service which requires that the public policy of this state encourage and facilitate the provision of such service to our citizens;
That as in every human endeavor the possibility of injury or death from negligent conduct commands that protection of the public served by health care providers be recognized as an important state interest;
That our system of litigation is an essential component of this state's interest in providing adequate and reasonable compensation to those persons who suffer from injury or death as a result of professional negligence, and any limitation placed on this system must be balanced with and considerate of the need to fairly compensate patients who have been injured as a result of negligent and incompetent acts by health care providers;
That liability insurance is a key part of our system of litigation, affording compensation to the injured while fulfilling the need and fairness of spreading the cost of the risks of injury;
That a further important component of these protections is the capacity and willingness of health care providers to monitor and effectively control their professional competency, so as to protect the public and insure to the extent possible the highest quality of care;
That it is the duty and responsibility of the Legislature to balance the rights of our individual citizens to adequate and reasonable compensation with the broad public interest in the provision of services by qualified health care providers and health care facilities who can themselves obtain the protection of reasonably priced and extensive liability coverage;
That in recent years, the cost of insurance coverage has risen dramatically while the nature and extent of coverage has diminished, leaving the health care providers, the health care facilities and the injured without the full benefit of professional liability insurance coverage;
That many of the factors and reasons contributing to the increased cost and diminished availability of professional liability insurance arise from the historic inability of this state to effectively and fairly regulate the insurance industry so as to guarantee our citizens that rates are appropriate, that purchasers of insurance coverage are not treated arbitrarily and that rates reflect the competency and experience of the insured health care providers and health care facilities; and
That the cost of liability insurance coverage has continued to rise dramatically, resulting in the state's loss and threatened loss of physicians, which, together with other costs and taxation incurred by health care providers in this state, have created a competitive disadvantage in attracting and retaining qualified physicians and other health care providers.
The Legislature further finds that medical liability issues have reached critical proportions for the state's long-term health care facilities, as: (1) Medical liability insurance premiums for nursing homes in West Virginia continue to increase and the number of claims per bed has increased significantly; (2) the cost to the state medicaid program as a result of such higher premiums has grown considerably in this period; (3) current medical liability premium costs for some nursing homes constitute a significant percentage of the amount of coverage; (4) these high costs are leading some facilities to consider dropping medical liability insurance coverage altogether; and (5) the medical liability insurance crisis for nursing homes may soon result in a reduction of the number of beds available to citizens in need of long-term care.
Therefore, the purpose of this enactment article is to provide for a comprehensive resolution of the matters and factors which the Legislature finds must be addressed to accomplish the goals set forth above in this section. In so doing, the Legislature has determined that reforms in the common law and statutory rights of our citizens must be enacted together as necessary and mutual ingredients of the appropriate legislative response relating to:
(1) Compensation for injury and death, in;
(2) The regulation of rate making and other practices by the liability insurance industry, including the formation of a physicians' mutual insurance company and establishment of a fund to assure adequate compensation to victims of malpractice; and in
(3) The authority of medical licensing boards to effectively regulate and discipline the health care providers under such board must be enacted together as necessary and mutual ingredients of the appropriate legislative response.
§55-7B-2. Definitions.
(a) 'Board' means the state board of risk and insurance management;
(b) 'Collateral source' means a source of benefits or advantages for economic loss that the claimant has received from:
(1) Any federal or state act, public program or insurance which provides payments for medical expenses, disability benefits, including workers' compensation benefits, or other similar benefits. Benefits payable under the Social Security Act are not considered payments from collateral sources except for Social Security disability benefits directly attributable to the medical injury in question;
(2) Any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the cost of medical, hospital, dental, nursing, rehabilitation, therapy or other health care services or provide similar benefits;
(3) Any group accident, sickness or income disability insurance, any casualty or property insurance (including automobile and homeowners' insurance) which provides medical benefits, income replacement or disability coverage, or any other similar insurance benefits, except life insurance, to the extent that someone other than the insured, including the insured's employer, has paid all or part of the premium or made an economic contribution on behalf of the plaintiff; or
(4) Any contractual or voluntary wage continuation plan provided by an employer or otherwise, or any other system intended to provide wages during a period of disability.
(c) 'Consumer price index' means the most recent consumer price index for all consumers published by the United States department of labor.
(d) 'Emergency condition' means any acute traumatic injury or acute medical condition which, according to standardized criteria for triage, involves a significant risk of death or the precipitation of significant complications or disabilities, impairment of bodily functions or, with respect to a pregnant woman, a significant risk to the health of the unborn child.
(a) (e)'Health care' means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient's medical care, treatment or confinement.
(b) (f) 'Health care facility' means any clinic, hospital, nursing home, or extending care facility assisted living facility, including personal care home, residential care community and residential board and care home, or behavioral health care facility or comprehensive community mental health/mental retardation center, in and licensed by the state of West Virginia and any state operated institution or clinic providing health care.
(c) (g) 'Health care provider' means a person, partnership, corporation, professional limited liability company, health care facility or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist or psychologist, or an officer, employee or agent thereof acting in the course and scope of such officer's, employee's or agent's employment.
(h) 'Medical injury' means injury or death to a patient arising or resulting from the rendering of or failure to render health care.
(d) (i) 'Medical professional liability' means any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient.
(g)(j) 'Noneconomic loss' means losses, including, but not limited to, pain, suffering, mental anguish and grief.
(e)(k) 'Patient' means a natural person who receives or should have received health care from a licensed health care provider under a contract, expressed or implied.
(l) 'Plaintiff' means a patient or representative of a patient who brings an action for medical professional liability under this article.
(f) (m) 'Representative' means the spouse, parent, guardian, trustee, attorney or other legal agent of another.
§55-7B-3. Elements of proof.
(a) The following are necessary elements of proof that an injury or death resulted from the failure of a health care provider to follow the accepted standard of care:
(a) (1) The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances; and
(b) (2) Such failure was a proximate cause of the injury or death.
(b) If the plaintiff proceeds on the 'loss of chance' theory, i.e., that the health care provider's failure to follow the accepted standard of care deprived the patient of a chance of recovery or increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate injury to the patient, the plaintiff must also prove, to a reasonable degree of medical probability, that following the accepted standard of care would have resulted in a greater than twenty-five percent chance that the patient would have had an improved recovery or would have survived.
§55-7B-6. Prerequisites for filing an action against a health care provider; procedures; sanctions.

(a) Notwithstanding any other provision of this code, no person may file a medical professional liability action against any health care provider without complying with the provisions of this section.
(b) At least thirty days prior to the filing of a medical professional liability action against a health care provider, the claimant shall serve by certified mail, return receipt requested, a notice of claim on each health care provider the claimant will join in litigation. The notice of claim shall include a statement of the theory or theories of liability upon which a cause of action may be based, and a list of all health care providers and health care facilities to whom notices of claim are being sent, together with a screening certificate of merit. The screening certificate of merit shall be executed under oath by a health care provider qualified as an expert under the West Virginia rules of evidence and shall state with particularity: (1) The expert's familiarity with the applicable standard of care in issue; (2) the expert's qualifications; (3) the expert's opinion as to how the applicable standard of care was breached; and (4) the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death. A separate screening certificate of merit must be provided for each health care provider against whom a claim is asserted. The person signing the screening certificate of merit shall have no financial interest in the underlying claim, but may participate as an expert witness in any judicial proceeding. Nothing in this subsection may be construed to limit the application of rule fifteen 15 of the rules of civil procedure.
(c) Notwithstanding any provision of this code, if a claimant or if represented by counsel, the claimant's his or her counsel, believes that no screening certificate of merit is necessary because the cause of action is based upon a well-established legal theory of liability which does not require expert testimony supporting a breach of the applicable standard of care, the claimant or if represented by counsel, the claimant's his or her counsel, shall file a statement specifically setting forth the basis of the alleged liability of the health care provider in lieu of a screening certificate of merit.
(d) If a claimant or his or her counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with the provisions of subsection (b) of this section except that the claimant or his or her counsel shall furnish the health care provider with a statement of intent to provide a screening certificate of merit within sixty days of the date the health care provider receives the notice of claim.
(e) Any health care provider who receives a notice of claim pursuant to the provisions of this section must may respond, in writing, to the claimant or his or her counsel within thirty days of receipt of the claim or within thirty days of receipt of the screening certificate of merit if the claimant is proceeding pursuant to the provisions of subsection (d) of this section. The response may state that the health care provider has a bona fide defense and the name of the health care provider's counsel, if any.
(f) Upon receipt of the notice of claim or of the screening certificate of merit, if the claimant is proceeding pursuant to the provisions of subsection (d) of this section, the health care provider is entitled to pre-litigation mediation before a qualified mediator upon written demand to the claimant.
(g) If the health care provider demands mediation pursuant to the provisions of subsection (f) of this section, the mediation shall be concluded within forty-five days of the date of the written demand. The mediation shall otherwise be conducted pursuant to rule 25 of the trial court rules, unless portions of the rule are clearly not applicable to a mediation conducted prior to the filing of a complaint or unless the supreme court of appeals promulgates rules governing mediation prior to the filing of a complaint. If mediation is conducted, the claimant may depose the health care provider before mediation or take the testimony of the health care provider during the mediation.
(h) The failure of a health care provider to timely respond to a notice of claim, in the absence of good cause shown, constitutes a waiver of the right to request pre-litigation mediation. Except as otherwise provided in this subsection, any statute of limitations applicable to a cause of action against a health care provider upon whom notice was served for alleged medical professional liability shall be tolled from the date of the mailing service of a notice of claim to thirty days following receipt of a response to the notice of claim, thirty days from the date a response to the notice of claim would be due, or thirty days from the receipt by the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded, whichever last occurs. If a claimant has sent a notice of claim relating to any injury or death to more than one health care provider, any one of whom has demanded mediation, then the statute of limitations shall be tolled with respect to, and only with respect to, those health care providers to whom the claimant sent a notice of claim to thirty days from the receipt of the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded.
(i) Notwithstanding any other provision of this code, a notice of claim, a health care provider's response to any notice claim, a screening certificate of merit and the results of any mediation conducted pursuant to the provisions of this section are confidential and are not admissible as evidence in any court proceeding unless the court, upon hearing, determines that failure to disclose the contents would cause a miscarriage of justice.
§55-7B-7. Testimony of expert witness on standard of care.
(a) The applicable standard of care and a defendant's failure to meet said the standard of care, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court. Such expert Expert testimony may only be admitted in evidence if the foundation, therefor, is first laid establishing that: (a) (1) The opinion is actually held by the expert witness; (b) (2) the opinion can be testified to with reasonable medical probability; (c) (3) such the expert witness possesses professional knowledge and expertise coupled with knowledge of the applicable standard of care to which his or her expert opinion testimony is addressed; (d) (4) such the expert maintains a current license to practice medicine in one of the states with the appropriate licensing authority of any state of the United States: Provided, That the expert's license has not been revoked or suspended in the past year in any state; and (e) (5) such the expert is engaged or qualified in the same or substantially similar a medical field as the defendant health care provider in which the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient. If the witness meets all of these qualifications and devoted, at the time of the medical injury, sixty percent of his or her professional time annually to the active clinical practice in his or her medical field or specialty, or to teaching in his or her medical field or speciality in an accredited university, there shall be a rebuttable presumption that the expert is qualified. The parties shall have the opportunity to impeach any witness' qualifications as an expert. Financial records of an expert are not discoverable or relevant to providing the amount of time the expert spends in active practice or teaching in his or her medical field unless good cause can be shown to the court.
(b) Nothing contained in this section may be construed to limit a trial court's discretion to determine the competency or lack of competency of a witness on a ground not specifically enumerated in this section.
§55-7B-8. Limit on liability for noneconomic loss.
(a) In any medical professional liability action brought against a health care provider pursuant to this article, the maximum amount recoverable as compensatory damages for noneconomic loss shall not exceed one million two hundred fifty thousand dollars per occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees, except as provided in subsection (b) of this article.
(b) The plaintiff may recover compensatory damages for noneconomic loss in excess of the limitation described in subsection (a) of this section, but not in excess of five hundred thousand dollars for each occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees, where the damages for noneconomic losses suffered by the plaintiff were for: (1) Wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life sustaining activities.
(c) On the first of January, two thousand four, and in each year thereafter, the limitation for compensatory damages contained in subsections (a) and (b) of this section shall increase to account for inflation by an amount equal to the consumer price index published by the United States department of labor, up to fifty percent of the amounts specified in subsections (b) and (c) as a limitation of compensatory noneconomic damages.
(d) The limitations on noneconomic damages contained in subsections (a), (b), (c) and (e) of this section are not available to any defendant in an action pursuant to this article which does not have medical professional liability insurance in the amount of at least one million dollars per occurrence covering the medical injury which is the subject of the action.
(e) If subsection (a) or (b) of this section, as enacted during the regular session of the Legislature, two thousand three, or the application thereof to any person or circumstance, is found by a court of law to be unconstitutional or otherwise invalid, the maximum amount recoverable as damages for noneconomic loss in a professional liability action brought against a health care provider under this article shall thereafter not exceed one million dollars.
§55-7B-9. Several liability.
(a) In the trial of a medical professional liability action against a health care provider under this article involving multiple defendants, the jury trier of fact shall be required to report its findings to the court on a form provided by the court which contains each of the possible verdicts as determined by the court. Unless otherwise agreed by all the parties to the action, the jury shall be instructed to answer special interrogatories, or the court, acting without a jury, shall make findings as to:
(1) The total amount of compensatory damages recoverable by the plaintiffs;
(2) The portion of the damages that represents damages for noneconomic loss;
(3) The portion of the damages that represents damages for each category of economic loss;
(4) The percentage of fault, if any, attributable to each of the plaintiffs; and
(5) The percentage of fault, if any, attributable to each of the defendants.

(b) In every medical professional liability action In assessing percentages of fault, the trier of fact shall consider only the fault of the parties in the litigation at the time the verdict is rendered and shall not consider the fault of any other person who has settled a claim with the plaintiff arising out of the same medical injury. Provided, That, upon the creation of the patient injury compensation fund provided for in article twelve-c, chapter twenty-nine of this code, or of some other mechanism for compensating a plaintiff for any amount of economic damages awarded by the trier of fact which the plaintiff has been unable to collect, the trier of fact shall, in assessing percentages of fault, consider the fault of all alleged defendants, including the fault of any person who has settled a claim with the plaintiff arising out of the same medical injury.
(c) If the trier of fact renders a verdict for the plaintiff, the court shall make findings as to the total dollar amount awarded as damages to each plaintiff. The court shall enter judgment of joint and several liability against every defendant which bears twenty-five percent or more of the negligence attributable to all defendants. The court shall enter judgment of several, but not joint, liability against and among all defendants which bear less than twenty-five percent of the negligence attributable to all defendants each defendant in accordance with the percentage of fault attributed to the defendant by the trier of fact.
(c) Each defendant against whom a judgment of joint and several liability is entered in a medical professional liability action pursuant to subsection (b) of this section is liable to each plaintiff for all or any part of the total dollar amount awarded regardless of the percentage of negligence attributable to him. A right of contribution exists in favor of each defendant who has paid to a plaintiff more than the percentage of the total dollar amount awarded attributable to him relative to the percentage of negligence attributable to him. The total amount of recovery for contribution is limited to the amount paid by the defendant to a plaintiff in excess of the percentage of the total dollar amount awarded attributable to him relative to the percentage of negligence attributable to him. No right of contribution exists against any defendant who entered into a good faith settlement with the plaintiff prior to the jury's report of its findings to the court or the court's findings as to the total dollar amount awarded as damages.
(d) Where a right of contribution exists in a medical professional liability action pursuant to subsection (c) of this section, the findings of the court or jury as to the percentage of negligence and liability of the several defendants to the plaintiff shall be binding among such defendants as determining their rights of contribution.
(d) To determine the amount of judgment to be entered against each defendant, the court shall first, after adjusting the verdict as provided in section nine-a of this article, reduce the adjusted verdict by the amount of any pre-verdict settlement arising out of the same medical injury. The court shall first then, with regard to each defendant, multiply the total amount of damages remaining, with interest, by the percentage of fault attributed to each defendant by the trier of fact. The resulting amount of damages, together with any post-judgment interest accrued, shall be the maximum recoverable against the defendant.
(e) Upon the creation of the patient injury compensation fund provided for in article twelve-c, chapter twenty-nine of this code, or of some other mechanism for compensating a plaintiff for any amount of economic damages awarded by the trier of fact which the plaintiff has been unable to collect, the court shall, in determining the amount of judgment to be entered against each defendant, first multiply the total amount of damages, with interest, recoverable by the plaintiff by the percentage of each defendant's fault and that amount, together with any post-judgment interest accrued, is the maximum recoverable against said defendant. Prior to the court's entry of the final judgment order as to each defendant against whom a verdict was rendered, the court shall reduce the total jury verdict by any amounts received by a plaintiff in settlement of the action. When any defendant's percentage of the verdict exceeds the remaining amounts due plaintiff after the mandatory reductions, each defendant shall be liable only for the defendant's pro rata share of the remainder of the verdict as calculated by the court from the remaining defendants to the action. The plaintiff's total award may never exceed the jury's verdict less any statutory or court-ordered reductions.
(f) Nothing in this section is meant to eliminate or diminish any defenses or immunities which exist as of the effective date of this section, except as expressly noted in this section.
(g) Nothing in this article is meant to preclude a health care provider from being held responsible for the portion of fault attributed by the trier of fact to any person acting as the health care provider's agent or servant or to preclude imposition of fault otherwise imputable or attributable to the health care provider under claims of vicarious liability. A health care provider may not be held vicariously liable for the acts of a nonemployee pursuant to a theory of ostensible agency. This defense against a claim of ostensible agency does not apply where the alleged agent or agents do not maintain professional liability insurance covering the medical injury which is the subject of the action in the aggregate amount of at least one million dollars.
§55-7B-9a. Reduction in compensatory damages for economic losses for payments from collateral sources the same injury.

(a) In any action arising after the effective date of this section, a defendant who has been found liable to the plaintiff for damages for medical care, rehabilitation services, lost earnings or other economic losses may present to the court, after the trier of fact has rendered a verdict, but before entry of judgment, evidence of payments the plaintiff has received for the same injury from collateral sources.
(b) In any hearing pursuant to subsection (a) of this section, the defendant may present evidence of future payments from collateral sources if the court determines that: (1) There is a preexisting contractual or statutory obligation on the collateral source to pay the benefits; (2) the benefits, to a reasonable degree of certainty, will be paid to the plaintiff for expenses the trier of fact has determined the plaintiff will incur in the future; and (3) the amount of the future expenses is readily reducible to a sum certain.
(c) In the hearing pursuant to subsection (a) of this section, the plaintiff may present evidence of the value of payments or contributions he or she has made to secure the right to the benefits paid by the collateral source.
(d) After hearing the evidence presented by the parties, the court shall make the following findings of fact:
(1) The total amount of damages for economic loss found by the trier of fact;
(2) The total amount of damages for each category of economic loss found by the trier of fact;
(3) The total amount of allowable collateral source payments received or to be received by the plaintiff for the medical injury which was the subject of the verdict in each category of economic loss; and
(4) The total amount of any premiums or contributions paid by the plaintiff in exchange for the collateral source payments in each category of economic loss found by the trier of fact.
(e) The court shall subtract the total premiums the plaintiff was found to have paid in each category of economic loss from the total collateral source benefits the plaintiff received with regard to that category of economic loss to arrive at the net amount of collateral source payments.
(f) The court shall then subtract the net amount of collateral source payments received or to be received by the plaintiff in each category of economic loss from the total amount of damages awarded the plaintiff by the trier of fact for that category of economic loss to arrive at the adjusted verdict.
(g) The court shall not reduce the verdict rendered by the trier of fact in any category of economic loss to reflect:
(1) Amounts paid to or on behalf of the plaintiff which the collateral source has a right to recover from the plaintiff through subrogation, lien or reimbursement;
(2) Amounts in excess of benefits actually paid or to be paid on behalf of the plaintiff by a collateral source in a category of economic loss;
(3) The proceeds of any individual disability or income replacement insurance paid for entirely by the plaintiff;
(4) The assets of the plaintiff or the members of the plaintiff's immediate family; or
(5) A settlement between the plaintiff and another tortfeasor.
(h) After determining the amount of the adjusted verdict, the court shall enter judgment in accordance with the provisions of section nine.
§55-7B-9b. Limitations on third-party claims.
An action may not be maintained against a health care provider pursuant to this article by or on behalf of a third-party nonpatient for rendering or failing to render health care services to a patient whose subsequent act is a proximate cause of injury or death to the third party unless the health care provider rendered or failed to render health care services in willful and wanton or reckless disregard of a foreseeable risk of harm to third persons. Nothing in this section shall be construed to prevent the personal representative of a deceased patient from maintaining a wrongful death action on behalf of such patient pursuant to article seven of this chapter or to prevent a derivative claim for loss of consortium arising from injury or death to the patient arising from the negligence of a health care provider within the meaning of this article.
55-7B-9c. Limit on liability for treatment of emergency conditions for which patient is admitted to a designated trauma center; exceptions; emergency rules.

(a) In any action brought under this article for injury to or death of a patient as a result of health care services or assistance rendered in good faith and necessitated by an emergency condition for which the patient enters a health care facility designated by the office of emergency medical services as a trauma center, including health care services or assistance rendered in good faith by a licensed EMS agency or an employee of an licensed EMS agency, the total amount of civil damages recoverable shall not exceed five hundred thousand dollars, exclusive of interest computed from the date of judgment.
(b) The limitation of liability in this subsection also applies to any act or omission of a health care provider in rendering continued care or assistance in the event that surgery is required as a result of the emergency condition within a reasonable time after the patient's condition is stabilized.
(c) The limitation on liability provided under subsection (a) of this section does not apply to any act or omission in rendering care or assistance which: (1) Occurs after the patient's condition is stabilized and the patient is capable of receiving medical treatment as a nonemergency patient; or (2) is unrelated to the original emergency condition.
(d) In the event that: (1) A physician provides follow-up care to a patient to whom the physician rendered care or assistance pursuant to subsection (a) of this section; and (2) a medical condition arises during the course of the follow-up care that is directly related to the original emergency condition for which care or assistance was rendered pursuant to said subsection, there is rebuttable presumption that the medical condition was the result of the original emergency condition and that the limitation on liability provided by said subsection applies with respect to that medical condition.
(e) There is a rebuttable presumption that a medical condition which arises in the course of follow-up care provided by the designated trauma center health care provider who rendered good faith care or assistance for the original emergency condition is directly related to the original emergency condition where the follow-up care is provided within a reasonable time after the patient's admission to the designated trauma center.
(f) The limitation on liability provided under subsection (a) of this section does not apply where health care or assistance for the emergency condition is rendered:
(1) In willful and wanton or reckless disregard of a risk of harm to the patient; or
(2) In clear violation of established written protocols for triage and emergency health care procedures developed by the office of emergency medical services in accordance with subsection (e) of this section. In the event that the office of emergency medical services has not developed a written triage or emergency medical protocol by the effective date of this section, the limitation on liability provided under subsection (a) of this section does not apply where health care or assistance is rendered under this section in violation of nationally recognized standards national standards for triage and emergency health care procedures.
(g) The office of emergency medical services shall, prior to the effective date of this section, develop a written protocol specifying recognized and accepted standards for triage and emergency health care procedures for treatment of emergency conditions necessitating admission of the patient to a designated trauma center.
(h) In its discretion, the office of emergency medical services may grant provisional trauma center status for a period of up to one year to a health care facility applying for designated trauma center status. A facility given provisional trauma center status is eligible for the limitation on liability provided in subsection (a) of this section. If, at the end of the provisional period, the facility has not been approved by the office of emergency medical services as a designated trauma center, the facility will no longer be eligible for the limitation on liability provided in subsection (a) of this section.
(i) The commissioner of the bureau for public health may grant an applicant for designated trauma center status a one-time only extension of provisional trauma center status, upon submission by the facility of a written request for extension, accompanied by a detailed explanation and plan of action to fulfill the requirements for a designated trauma center. If, at the end of the six-month period, the facility has not been approved by the office of emergency medical services as a designated trauma center, the facility will no longer have the protection of the limitation on liability provided in subsection (a) of this section.
(j) If the office of emergency medical services determines that a health care facility no longer meets the requirements for a designated trauma center, it shall revoke the designation, at which time the limitation on liability established by subsection (a) of this section shall cease to apply to that health care facility for services or treatment rendered thereafter.
(k) The Legislature hereby finds that an emergency exists compelling promulgation of an emergency rule, consistent with the provisions of this section, governing the criteria for designation of a facility as a trauma center or provisional trauma center and implementation of a statewide trauma/emergency care system. The Legislature therefore directs the secretary of the department of health and human resources to file, on or before the first day of July, two thousand three, emergency rules specifying the criteria for designation of a facility as a trauma center or provisional trauma center in accordance with nationally accepted and recognized standards and governing the implementation of a statewide trauma/emergency care system. The rules governing the statewide trauma/emergency care system shall include, but not be limited to:
(1) System design, organizational structure and operation, including integration with the existing emergency medical services system;
(2) Regulation of facility designation, categorization and credentialing, including the establishment and collection of reasonable fees for designation; and
(3) System accountability, including medical review and audit to assure system quality. Any medical review committees established to assure system quality shall include all levels of care, including emergency medical service providers, and both the review committees and the providers shall qualify for all the rights and protections established in article three-c, chapter thirty of this code.
§55-7B-10. Effective date; applicability of provisions.
(a) The provisions of House Bill 149, enacted during the first extraordinary session of the Legislature, 1986, shall be effective at the same time that the provisions of Enrolled Senate Bill 714, enacted during the Regular session, 1986, become effective, and the provisions of said House Bill 149 shall be deemed to amend the provisions of Enrolled Senate Bill 714. The provisions of this article shall not apply to injuries which occur before the effective date of this said Enrolled Senate Bill 714.
(b) The amendments to this article as provided in House Bill 601, enacted during the sixth extraordinary session of the Legislature, two thousand one, apply to all causes of action alleging medical professional liability which are filed on or after the first day of March, two thousand two.
(b) The amendments to this article provided in Enrolled Committee Substitute for House Bill No. 2122 during the regular session of the Legislature, two thousand three, apply to all causes of action alleging medical professional liability which are filed on or after the first day of July, two thousand three. In the event that a health care mutual insurance company has not been licensed to transact business in this state in accordance with the provisions of article twenty-f, chapter thirty- three of this code on the first day of September, two thousand four, the amendments to this article provided in Enrolled Committee Substitute for House Bill No. 2122 during the regular session of the Legislature, two thousand three, expire and have no further force and effect."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2122 - "A Bill to amend and reenact section two, article eleven-a, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend chapter eleven of said code by adding thereto a new article, designated article thirteen-t; to amend and reenact section fourteen, article twelve-b, chapter twenty-nine of said code; to further amend said chapter by adding thereto a new article, designated article twelve-c; to amend and reenact section fourteen, article three, chapter thirty of said code; to amend and reenact section twelve-a, article fourteen of said chapter; to amend article two, chapter thirty-three of said code by adding thereto a new section, designated section nine-a; to amend and reenact section fifteen-a, article four of said chapter; to amend and reenact section two, article twenty-b of said chapter; to further amend said article by adding thereto two new sections, designated sections one-a and three-a; to amend and reenact sections one through eleven, inclusive, article twenty-f of said chapter; to further amend said article by adding thereto a new section, designated section one-a; to amend and reenact section twenty-four, article twenty-five-a of said chapter; to amend and reenact section twenty-six, article twenty-five-d of said chapter; to amend and reenact section four, article ten, chapter thirty-eight of said code; to amend and reenact sections one, two, three, six, seven, eight, nine and ten, article seven-b, chapter fifty-five of said code; and to further amend said article by adding thereto three new sections, designated sections nine-a, nine-b and nine-c, all relating to medical professional liability generally; transferring funds from board of risk and insurance management and from tobacco settlement medical trust fund; providing a personal income tax credit for physicians based upon payment of certain medical malpractice liability insurance premiums paid; setting forth legislative findings and purpose; defining terms; creating tax credit and providing eligibility; establishing amount of credit; allowing unused credit to carry forward; providing for forfeiture of excess credit; providing for the application of the credit; providing for the computation and application of credit; authorizing tax commissioner to promulgate legislative rules; establishing burden of proof relating to claiming the credit; establishing effective date for credit; providing for termination of tax credit; terminating authority of board of risk and insurance management to issue medical professional liability insurance upon transfer of assets to the physicians' mutual insurance company; creating board to study the feasibility of and propose a mechanism for funding the patient injury compensation fund; establishing term, authority and directives of the board; conditionally authorizing the board of risk and insurance management to promulgate legislative and emergency rules; requiring the board of medicine and the board of osteopathy to take certain disciplinary actions against physicians and surgeons in certain circumstances; imposing a one time assessment on all insurance carriers; requiring malpractice insurers to offer coverage for all areas of specialization of fields of practice; prohibiting predatory rates and reduced rates designed to gain market share; providing for the creation of a physicians' mutual insurance company and the concomitant novation of certain board of risk and insurance management medical professional liability insurance programs; setting forth additional legislative findings and purpose; defining terms; prohibiting company from taking certain actions; requiring premium taxes to be applied toward restoring West Virginia tobacco medical trust fund; exempting company from premium taxes after monies have been restored to the tobacco settlement medical trust fund; waiver of taxes under certain circumstances; providing for governance and organization of the company; specifying composition of company's board of directors; creating a special account to receive funds transferred from the tobacco settlement medical trust fund; imposing a one time assessment on certain licensed physicians for the privilege of practicing in West Virginia; exempting faculty physicians from assessment; exempting company from certain requirements imposed on other mutual insurance companies by the insurance commission; authorizing transfer of funds from special account and of certain assets, obligations and liabilities of the board of risk and insurance management to the company on a certain date; increasing exemption available to certain physician and surgeon debtors in bankruptcy proceedings; providing additional legislative findings and purposes relating to medical professional liability; defining terms; adding an element of proof in certain malpractice claims; altering notice requirements for malpractice claims; modifying the qualifications for experts who testify in medical professional liability actions; limiting liability for certain noneconomic loss; providing a reversion provision; providing for severability; eliminating joint, but not several, liability among multiple defendants in medical professional liability actions; prohibiting consideration of certain third parties in malpractice cases; eliminating a cause of action based on ostensible agency in certain circumstances; allowing for reduction in damage awards for certain collateral source payments to plaintiffs; providing mechanism for determining collateral source payments and damages distribution; providing for calculation methodology for determining award payments; barring actions against health care providers for certain third party claims; limiting civil liability for designated trauma center care; directing the office of emergency medical services to designate hospitals as trauma centers and provisional trauma centers; placing limitations on eligibility for trauma care caps; requiring the office of emergency medical services to develop a written protocol containing recognized and accepted standards for triage and emergency health procedures; authorizing the secretary of the department of health and human resources to promulgate legislative and emergency rules; and establishing effective date, applicable to all causes of action alleging medical professional liability."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of
Com. Sub. for S. B. 170 - "A Bill to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-i, relating to requiring informed consent for an abortion to be performed; requiring certain information to be supplied to females considering abortion; establishing minimum waiting period for abortions after having been supplied information; exception for a medical emergency; rulemaking; reporting requirements; requiring the secretary of the department of health and human resources to publish information and develop a website on alternatives to abortion; protection of privacy in court proceedings; administrative remedies; criminal offenses; and penalties"; which was referred to the Committee on the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of
S. B. 342 - "A Bill to amend and reenact section twelve, article two, chapter seventeen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to issuance and renewals of driver's licenses; and limiting the time a driver's license may be issued to a person who is not a citizen of the United States to the time the person is authorized to be in the United States"; which was referred to the Committee on Roads and Transportation then the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of
S. B. 381 - "A Bill to amend and reenact section one thousand three hundred one, article thirteen, chapter thirty-one-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to adding professional surveyors to the list of professionals who may organize professional limited liability companies"; which was referred to the Committee on the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of
S. B. 388 - "A Bill to repeal section one, article three-a, chapter seventeen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections two and three of said article, all relating to imported vehicles; compliance with federal safety and emission standards; and changing the requirements which must be met to obtain a title and registration"; which was referred to the Committee on the Judiciary then Finance.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of
S. B. 390 - "A Bill to amend and reenact section eleven, article one, chapter seventeen-e of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to removing the requirement that a person's social security number appear on a commercial driver's license"; which was referred to the Committee on Roads and Transportation.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of
S. B. 414 - "A Bill to amend and reenact section seven, article forty, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to authorizing the West Virginia real estate commission to enter into license reciprocity agreements with other states"; which was referred to the Committee on Government Organization.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of
S. B. 447 - "A Bill to amend and reenact section twenty-eight, article two, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to allowing the director of natural resources to enter reciprocal agreements with the state of Ohio with regard to hunting and fishing on tributaries of the Ohio River"; which was referred to the Committee on Agriculture and Natural Resources then Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of a joint resolution, which was read by its title and referred to the Committee on Constitutional Revision then the Judiciary as follows:
S. J. R. 6 - "Proposing an amendment to the Constitution of the State of West Virginia, amending section thirty-three, article VI thereof, relating to legislative compensation reform; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment."
Resolutions Introduced

Delegates Ellem, Anderson, Azinger, Border and Beane offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 16 - "Commemorating the passing of James W. Simonton, public servant, gentleman, lawyer and family man."
Whereas, James W. Simonton was born February 11, 1934, at Hebron, Pleasants County, West Virginia, the son of Coleman P. and Delphia Odessa Simonton and died December 28, 2002, at the age of sixty-eight at Parkersburg, West Virginia; and
Whereas, James W. Simonton was educated in Pleasants County schools, having graduated from St. Marys High School in 1952 and continued his education at Kent State University and graduated from Marietta College in 1956 and from West Virginia University College of Law in 1959; and
Whereas, Since 1959, James W. Simonton was an active general practicing lawyer in Parkersburg and a member of the American Bar Association, West Virginia Bar Association, Wood County Bar Association and a past member of the American Trial Lawyers; and
Whereas, James W. Simonton was elected to the House of Delegates from Wood County in 1962 and served as legal counsel to the Minority Leader in the House of Delegates in 1967 and 1968; and
Whereas, James W. Simonton also served as an assistant prosecuting attorney for Wood County from 1969-1972, assistant Parkersburg city attorney in 1973, two four-year terms as Parkersburg city attorney, the first from 1974-1978 and then from 1986-1990, divorce commissioner for the Circuit Court of Wood County from 1973-1986, and Parkersburg municipal court judge from 1990-1994; and
Whereas, James W. Simonton was a member of many social and civic organizations including, the Parkersburg Little League Baseball program, a Scottish Rite Mason, member of the Mount Olivet Lodge 3, Scottish Rite Bodies and Nemesis Shrine, past governor of the Parkersburg Community Foundation charity, past member of the Parkersburg Elks Club BPOE 198 and Moose Club, and past member of the Board of Trustees for the West Virginia Special Olympics; and
Whereas, James W. Simonton is survived by his wife of 48 years, Martha (Pat) Simonton; one son and daughter-in-law, Scott and Penny Simonton of Mineral Wells; one daughter and son-in- law, Stacy and Brent Smithers of Augusta, Georgia; and four grandchildren, Alicia Diane Simonton, Nathaniel Wyatt Simonton, Shelby Cheyenne Simonton and Emma Darby Smithers; and
Whereas, During his life, James W. Simonton gave unselfishly of himself to his community, his country and his state and in so doing, left this world a better place than it was when he entered it; and
Whereas, The passing of James W. Simonton should not go unnoticed; therefore, be it
Resolved by the House of Delegates:
That regret is hereby expressed by the members at the passing of James W. Simonton, public servant, gentleman, lawyer and family man; a man who loved West Virginia and his fellowman; and, be it
Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this resolution to James' wife, Martha (Pat) Simonton, and his children, Scott Simonton and Stacy Smithers and his grandchildren, Alicia Diane Simonton, Nathaniel Wyatt Simonton, Shelby Cheyenne Simonton and Emma Darby Smithers.
Bills Introduced

On motions for leave, bills were introduced, read by their titles, and severally referred as follows:
By Mr. Speaker, Mr. Kiss (By Request):
H. B. 2917 - "A Bill to amend and reenact section fourteen, article three, chapter seventeen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to motor vehicle registration plates; requiring the division of motor vehicles to design and issue special registration plates for use by democratic executive committee members"; to the Committee on Roads and Transportation then Finance.
By Mr. Speaker, Mr. Kiss, and Delegate Browning:
H. B. 2918 - "A Bill to amend and reenact sections five and twenty-five, article sixteen, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to excluding costs projected to be paid for retired employees from the calculation for premium cost sharing; and limiting the funds transferred annually to the reserve fund to ten percent of the projected medical and prescription drug claim cost for each fiscal year"; to the Committee on Pensions and Retirement then Finance.
By Mr. Speaker, Mr. Kiss, and Delegates Campbell, Browning and Craig:

H. B. 2919 - "A Bill to amend and reenact sections one and two, article ten-d, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to setting forth purpose of the consolidated public retirement board; clarifying the fiduciary obligation of board members to the retirement funds and the members thereof; clarifying personal liability of board members; continuing the inapplicability of immunity for board members; providing for per diem pay of board members; stating that certain changes are remedial and may be applied retroactively; and providing that certain purchasing requirements do not apply to contracts for actuarial services, legal services, and other professional services"; to the Committee on Pensions and Retirement then Finance.
By Mr. Speaker, Mr. Kiss, and Delegates Campbell, Michael, Mezzatesta, Warner, Williams and Canterbury:

H. B. 2920 - "A Bill to amend and reenact section twelve, article two-A, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to increasing certain benefits to dependents of a state trooper who dies in performance of his duties"; to the Committee on Pensions and Retirement then Finance.
By Mr. Speaker, Mr. Kiss, and Delegates Trump, Faircloth, Michael, Doyle, Varner and Evans:

H. B. 2921 - "A Bill to amend article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section nine-h, relating to providing an exemption for sales and services provided by licensed mortgage brokers from the consumer sales and service tax"; to the Committee on Banking and Insurance then Finance.
By Delegates Blair, Armstead and Sumner:
H. B. 2922 - "A Bill to amend and reenact section three, article two-f, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to requiring a physician to receive written consent from at least one parent or legal guardian before an abortion is performed on an un-emancipated minor"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Boggs and Faircloth:
H. B. 2923 - "A Bill to amend article two-f, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section ten, relating to allowing hospitals to perform abortions only if the mother's life is in imminent danger"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Caputo, Manchin and Kuhn:
H. B. 2924 - "A Bill to amend and reenact section one-c, article seven, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to providing salary parity for conservation officers relative to members of the West Virginia state police"; to the Committee on Agriculture and Natural Resources then Finance.
By Delegates Caruth, Frederick, Armstead, Amores, Kominar, Border and Long:

H. B. 2925 - "A Bill to amend and reenact section three, article six, chapter twenty-one-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to unemployment compensation generally; termination of employment and disqualifying from unemployment benefits an individual providing notice of voluntary resignation, if the resignation is without good cause involving fault of the employer, from the time the notice is given to the employer notwithstanding the fact that the employer has refused to allow the individual to work until the end of the notice period"; to the Committee on the Judiciary then Finance.
By Delegates Doyle, Frich, Canterbury, Webster, Poling, Houston and Brown:

H. B. 2926 - "A Bill to amend chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article ten, relating to establishing the 'container recycling and litter control act'"; to the Committee on the Judiciary then Finance.
By Delegates Ennis, Warner, R. M. Thompson, Frich, R. Thompson, Renner and Sumner:

H. B. 2927 - "A Bill to amend chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-a, relating to establishing the 'Unborn Victims of Violence Act', crimes against an unborn child; and including offenses and penalties therefor"; to the Committee on Health and Human Resources then the Judiciary.
By Delegate Faircloth:
H. B. 2928 - "A Bill to amend article nineteen, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section three-a, relating to prohibiting the use of the body of an unborn baby to be used for any medical experimentation or scientific investigation, except as necessary to diagnose a disease or condition suspected to exist in the mother's or fetuses' body; prescribing criminal penalties for violation of the section"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Fleischauer, Webster, Brown, Doyle and Amores:
H. B. 2929 - "A Bill to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article four-e, relating to establishing the reproductive health clinic protection act"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Fleischauer, Caputo, Beach, Perdue, Kuhn, Fragale and Poling:

H. B. 2930 - "A Bill to amend article seven, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section twelve, relating to overtime and holiday pay for classified employees; providing for additional payment for weekend and holiday work"; to the Committee on Education then Finance.
By Delegates Fleischauer, Manchin, Caputo, Spencer, DeLong, Fragale and Perdue:

H. B. 2931 - "A Bill to amend and reenact section six, article seven, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section one, article eight of said chapter, all relating to higher education adjunct faculty generally and providing that any employee teaching nine semester hours per semester is a full-time faculty member"; to the Committee on Education then Finance.
By Delegates Hall and Sobonya:
H. B. 2932 - "A Bill to amend article two-b, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section five, relating to prohibiting any person who is not a physician licensed to practice in this state from performing an abortion; and providing penalty for same"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Hrutkay, Webster, Foster, Webb and Staton:
H. B. 2933 - "A Bill to amend and reenact section three, article one, chapter forty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to qualification, duties and obligations of executors or administrators, relating to the manner and form of the oath to be submitted by an executor or administrator before he or she is made executor, and providing that the executor or administrator submits personally to the jurisdiction of the court in any proceeding relating to the estate"; to the Committee on the Judiciary.
By Delegates Overington and Hall:
H. B. 2934 - "A Bill to amend article two, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section eight-a, relating to justification to use deadly force by a pregnant woman when she reasonably believes that her unborn child's life is threatened"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Perdue and R. Thompson:
H. B. 2935 - "A Bill to amend and reenact section eight-a, article seven-b, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to teachers' retirement generally and providing that two years of military service may be counted as contributing service time"; to the Committee on Pensions and Retirement then Finance.
By Delegates Romine, Walters and Schoen:
H. B. 2936 - "A Bill to amend article forty-two, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section nine, relating to prohibiting the performance of any abortion when the woman seeking it is doing so solely on account of the gender of the fetus; prescribing a criminal penalty for violations of the section"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Schoen, Boggs, Blair and Hall:
H. B. 2937 - "A Bill to amend and reenact section four, article two-a, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to prohibiting abortions at state college or university medical facilities, except when the abortion is necessary to save the life of the woman receiving the abortion"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Shelton and Stalnaker:
H. B. 2938 - "A Bill to amend and reenact section five, article five, chapter twenty-four-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to limiting liability for non-economic loss to taxi service providers operating as common carriers under authority of the public service commission to an amount not to exceed five thousand dollars for incidents arising from the taxi providers licensed course of operation"; to the Committee on the Judiciary.
By Delegates Shelton and Stalnaker:
H. B. 2939 - "A Bill to amend article five, chapter twenty-four-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section five-a, relating to limiting non-economic damages recoverable in an action brought by an uninsured motorist against a public transportation provider"; to the Committee on the Judiciary.
By Delegate Sobonya:
H. B. 2940 - "A Bill to amend article two, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section eight-a, relating to making it illegal to transport a minor across state lines to obtain an abortion without written consent by both parents, and providing for a penalty"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Stemple, Varner, Craig, Kominar, Swartzmiller, Williams and Cann:

H. B. 2941 - "A Bill to amend and reenact section seven, article fourteen-d, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to employers' contributions to the deputy sheriff retirement fund"; to the Committee on Pensions and Retirement then Finance.
By Delegate Sumner:
H. B. 2942 - "A Bill to amend article two-b, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section five, relating to requiring that any person seeking an abortion provide two forms of identification, one of which must be a valid governmental form of identification"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Sumner, Frich, Smirl, Howard and Sobonya:
H. B. 2943 - "A Bill to amend article two, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section eight-a, relating to providing a separate offense when a person causes death or serious injury to an unborn child while attempting to cause death or serious bodily injury to a pregnant woman, and provides for a penalty"; to the Committee on the Judiciary.
By Delegates Talbott, Pino, Hartman and Browning:
H. B. 2944 - "A Bill to amend article six-f, chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section one hundred fifteen, relating to a no telephone solicitation contact (Do Not Call) list being maintained by the public service commission; telephone subscribers/consumers not wanting to receive telemarketing calls pay a modest fee to be placed on the list; the public service commission creates the 'No Call' list for sale to telemarketers; and civil penalties are imposed upon telemarketers who violate the statute"; to the Committee on the Judiciary.
By Delegates Trump, Schoen, Caruth and Hall:
H. B. 2945 - "A Bill to amend article forty-two, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section nine, relating to ensuring that medical workers have the right to refuse to participate in any abortion-related activity without fear of disciplinary action or dismissal; prescribing criminal penalties for violations of the section"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Wakim and Hall:
H. B. 2946 - "A Bill to amend article forty-two, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section nine, relating to providing that when, during the course of an abortion procedure, a fetus is aborted alive, that all available medical means be utilized to preserve it's life; prescribing criminal penalties for violations of the section"; to the Committee on Health and Human Resources then the Judiciary.
By Delegate Webb:
H. B. 2947 - "A Bill to repeal section forty-four, article five, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section eighteen of said article, relating to repealing provisions for early childhood education programs"; to the Committee on Education then Finance.
By Delegates H. White, R. M. Thompson, Perry and Hrutkay:
H. B. 2948 - "A Bill to amend and reenact section one hundred fifteen, article two, chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to expenses of realizing on security interests; allowing recovery of expenses when a consumer requests discontinuation of efforts to realize on security interests; and making the amendments to this section apply retroactively"; to the Committee on Banking and Insurance then the Judiciary.
By Delegates H. White, Kominar, R. M. Thompson, Hrutkay, Browning, Perdue and Yeager:

H. B. 2949 - "A Bill to amend and reenact section three, article twenty, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to setting motor vehicle insurance rates in West Virginia; eliminating the seven territories and discrepancies in rates among the territories; and creating new rating territories which will correspond in number and geographical make up to the West Virginia congressional districts"; to the Committee on Banking and Insurance then the Judiciary.
By Delegates H. White and Hrutkay:
H. B. 2950 - "A Bill to amend and reenact article thirty-one, chapter thirty-three of the code of West Virginia one thousand nine hundred thirty-one, as amended, relating to captive insurance companies; providing for sponsored cell captives; and generally modernizing the captive insurance law"; to the Committee on Banking and Insurance then Finance.
By Delegates H. White, R. M. Thompson and Hrutkay:
H. B. 2951 - "A Bill to amend chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article forty-six, relating to third-party administrators; requiring licensing of third-party administrators; requiring all third-party administrators to obtain certificates of authority; requiring third-party administrators to have written contracts with their insurers; and requiring third-party administrators to provide the commission with certain disclosures"; to the Committee on Banking and Insurance then Finance.
By Delegates Williams and Shaver:
H. B. 2952 - "A Bill to amend and reenact sections three, fifteen and sixteen, article nine-d, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the distribution of moneys by the school building authority; providing that county school boards may spend authority moneys on any school that has been included in an approved comprehensive educational facilities plan; providing that no one criterion, especially economies of scale, may dominate other statutory criteria when decisions are made to award grant moneys; and requiring the school building authority to undergo legislative rule-making review and have its guidelines approved as legislative rules"; to the Committee on Education then Finance.
By Delegates Michael, Mezzatesta and Doyle:
H. B. 2953 - "A Bill to amend and reenact section six, article thirty, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section thirteen, article eight, chapter thirty-six of said code, all relating to the administration of the West Virginia prepaid tuition and savings program; clarifying how moneys in the prepaid tuition trust fund are processed when the plan is terminated; establishing a mechanism to eliminate any actuarially projected unfunded liability in the trust fund over a ten year period with funds from unclaimed property in an amount not to exceed two million dollars annually; creating the prepaid tuition trust escrow account; providing for the transfer of funds in the unclaimed property trust fund to the prepaid tuition trust escrow account and to the general revenue fund; and providing for the investment and use of the money in the prepaid tuition trust escrow account"; to the Committee on Finance.
Consent Calendar

Third Reading

The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for H. B. 2008, Providing good-faith background checks for law-enforcement personnel,
H. B. 2802, Providing for a legal description in deeds creating an easement right-of-way,
And,
H. B. 2879, Continuing the West Virginia commission on holocaust education.
Delegate Armstead requested to be excused from voting on the passage of H. B. 2802 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
On the passage of the bills, the yeas and nays were taken (Roll No. 36), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman and Spencer.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (Com. Sub. for H. B. 2008, H. B. 2802 and H. B. 2879) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on Consent Calendar bills and request concurrence therein.
Second Reading

The following bills on second reading, coming up in regular order, were each read a second time and ordered to engrossment and third reading:
Com. Sub. for H. B. 2266, Providing authority for state fire marshals to cooperate with and assist other law-enforcement agencies,
Com. Sub. for H. B. 2281, Raising the allowable earnings limit of higher education faculty who retired under the severance plan,
H. B. 2383, Requiring the state department of education to submit a comprehensive teacher certification plan to LOCEA for adopting prior to July 1, 2003,
H. B. 2763, Allowing original equipment mounted auxiliary lighting devices for use only when the vehicle is used off road,
H. B. 2888, Continuing the board of osteopathy,
And,
H. B. 2889, Continuing the board of examiners of psychologists,
First Reading

The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
Com. Sub. for H. B. 2190, Permitting certain farm vehicles to use the highways between sunset and sunrise,
Com. Sub. for H. B. 2239, Requiring foreign collection agencies to obtain a certificate of authority from the secretary of state,
H. B. 2669, Hazardous waste management,
And,
H. B. 2916, Continuing the state geological and economic survey.
Special Calendar

Unfinished Business

H. C. R. 10, Requesting a study on the advisability of seeking to improve the West Virginia Department of Transportation Employee Handbook; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. R. 11, Urging the West Virginia Legislature to restore and increase funding for services to senior citizens; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
H. C. R. 25, Designating November as "Alzheimer's Awareness Month"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading

H. B. 2268, Teachers and substitute teachers as professional educators and addressing the critical need and shortage thereof; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 37), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman and Spencer.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2268) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2705, Relating to the supervision of adult offenders and authorizing a compact for the supervision of adult offenders; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 38), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman and Spencer.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2705) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 39), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Coleman and Spencer.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2705) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Leaves of Absences

At the request of Delegate Staton, and by unanimous consent, leaves of absence were granted Delegates Campbell, Coleman and Spencer
At 1:33 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00 a.m., Tuesday, February 11, 2003.
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