__________*__________
Friday, February 12, 2016
THIRTY-FIRST DAY
[MR. SPEAKER, MR. ARMSTEAD, IN THE CHAIR]
The House of Delegates met at 11:00 a.m., and was called to order by the Honorable Tim Armstead, Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Thursday, February 11, 2016, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Delegate Cooper, Vice Chair of the Committee on Veterans’ Affairs and Homeland Security, submitted the following report, which was received:
Your Committee on Veterans’ Affairs and Homeland Security has had under consideration:
H. B. 4262, Requiring that three parking spaces in the West Virginia Culture Center parking lot be designated for use by Purple Heart Medal recipients,
And reports the same back, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on the Judiciary.
In accordance with the former direction of the Speaker, the bill (H. B. 4262) was referred to the Committee on the Judiciary.
Delegate Walters, Chair of the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration:
H. B. 4448, Clarifying that communication by a lender or debt collector which is allowed under the West Virginia Consumer Credit and Protection Act, likewise does not violate the provisions of the West Virginia Computer Crime and Abuse Act,
And reports the same back, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on the Judiciary.
In accordance with the former direction of the Speaker, the bill (H. B. 4448) was referred to the Committee on the Judiciary.
Delegate McCuskey, Chair of the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration:
Com. Sub. for S. B. 330, Requiring automobile liability insurers provide 10 days' notice of intent to cancel due to nonpayment of premium,
And reports the same back, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on the Judiciary.
In accordance with the former direction of the Speaker, the bill (Com. Sub. for S. B. 330) was referred to the Committee on the Judiciary.
Delegate Walters, Chair of the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration:
S. B. 415, Lengthening maximum term of negotiable certificates of deposit municipal funds can hold,
And reports the same back with the recommendation that it do pass, but that it first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bill (S. B. 415) was referred to the Committee on Finance.
Mr. Speaker, Mr. Armstead, Chair of the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
Com. Sub. for H. C. R. 2, U.S. Army PV2 William Frederick Kump Memorial Bridge,
Com. Sub. for H. C. R. 14, Second Friday in July as West Virginia Collector Car Appreciation Day,
Com. Sub. for H. C. R. 19, H. Laban White Memorial Bridge,
S. C. R. 16, US Army CPL John Belcastro Bridge,
And,
H. R. 7, Designating that the month of April be proclaimed as Sarcoidosis Awareness Month beginning in 2016,
And reports the same back with the recommendation that they each be adopted.
Mr. Speaker, Mr. Armstead, Chair of the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. R. 8, Authorizing the Committee on Rules to arrange a Special Calendar and providing for making public the vote on certain questions in connection with the preparation thereof,
And reports the same back, with amendment, with the recommendation that it be adopted, as amended.
Delegate Canterbury, Chair of the Committee on Pensions and Retirement, submitted the following report, which was received:
Your Committee on Pensions and Retirement has had under consideration:
H. B. 2222, Relating to certain members of the Legislature and certain service by members of the Legislature,
H. B. 4487, Relating to state retirement systems,
And,
H. B. 4519, Allowing certain municipalities to elect to participate in the West Virginia Municipal Police Officers and Firefighters Retirement System,
And reports the same back with the recommendation that they each do pass, but that they first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bills (H. B. 2222, H. B. 4487 and H. B. 4519) were each referred to the Committee on Finance.
Delegate Ireland, Chair of the Committee on Energy, submitted the following report, which was received:
Your Committee on Energy has had under consideration:
H. B. 2192, Exempting heating oil for residential use from the Motor Fuel Excise Tax,
And reports the same back with the recommendation that it do pass, but that it first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bill (H. B. 2192) was referred to the Committee on Finance.
Delegate Ireland, Chair of the Committee on Energy, submitted the following report, which was received:
Your Committee on Energy has had under consideration:
H. B. 4323, Relating to the reporting of emergency incidents by well operators and pipeline operators,
And reports back a committee substitute therefor, with the same title, as follows:
Com. Sub. for H. B. 4323 B “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §15-5C-1 and §15-5C-2, all relating to the reporting of emergency incidents by well operators and pipeline operators; defining terms; establishing reporting requirements; establishing obligations of local emergency telephone operators; providing for recording and handling of calls; setting forth administrative civil penalty; and providing appeal process,”
With the recommendation that the committee substitute do pass.
Delegate Ellington, Chair of the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration:
H. B. 4347, Providing pregnant women priority to substance abuse treatment,
And reports the same back with the recommendation that it do pass.
Delegate Ellington, Chair of the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration:
Com. Sub. for S. B. 6, Requiring drug screening and testing of applicants for TANF program,
And reports the same back, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on the Judiciary.
In accordance with the former direction of the Speaker, the bill (Com. Sub. for S. B. 6) was referred to the Committee on the Judiciary.
Delegate Howell, Chair of the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration:
H. B. 4511, Limiting the authority of the Department of Administration’s purchase of real property until it has submitted a report to the Legislature,
And,
H. B. 4513, Requiring a cost-benefit analysis to be performed before the state purchases certain real estate,
And reports the same back, with amendment, with the recommendation that they each do pass, as amended, but that they first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bills (H. B. 4511 and H. B. 4513) were each referred to the Committee on Finance.
Delegate Espinosa, Chair of the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration:
H. B. 4461, Relating to School Building Authority School Major Improvement Fund eligibility,
And reports the same back with the recommendation that it do pass, but that it first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bill (H. B. 4461) was referred to the Committee on Finance.
Delegate Nelson, Chair of the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration:
H. B. 4209, Relating generally to health care provider taxes,
And reports back a committee substitute therefore, with a new title, as follows:
Com. Sub. for H. B. 4209 – “A Bill to amend and reenact §11-27-38 of the Code of West Virginia, 1931, as amended, relating generally to health care provider taxes; changing rate of tax imposed on certain eligible acute care hospitals for the fiscal year 2017; specifying purposes for which funds collected may be expended; providing for distribution of remaining funds at the end of fiscal year; and extending expiration date for tax,”
With the recommendation that the committee substitute do pass.
Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
H. B. 4378, Relating to access to and receipt of certain information regarding a protected person by certain relatives of the protected person,
And reports the same back, with amendment, with the recommendation that it do pass, as amended.
Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
H. B. 3019, Requiring official business and records of the state and its political subdivisions be conducted in English,
And reports back a committee substitute therefor, with the same title, as follows:
Com. Sub. for H. B. 3019 - AA Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §2-2-13, all relating to requiring official business and records of the state and its political subdivisions be conducted in English, and providing exceptions, limitations, and a definition,@
With the recommendation that the committee substitute do pass.
Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
H. B. 4291, Increasing penalties for teachers who commit sexual offenses against children,
And reports back a committee substitute therefor, with a new title, as follows:
Com. Sub. for H. B. 4291 – “A Bill to amend and reenact §61-8D-5 of the Code of West Virginia, 1931, as amended, relating to increasing penalties for teachers and service personnel who commit sexual offenses against children with whom they hold positions of trust; providing that upon conviction for sexual offenses against children with whom they hold positions of trust such teachers and service personnel are prohibited from being employed by any educational, vocational, training, day care, group home, foster care program, or rehabilitation facility in the state; and defining terms”,
With the recommendation that the committee substitute do pass.
Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
H. B. 4417, Increasing wages protected from garnishment,
And reports the same back with the recommendation that it do pass.
Messages from the Executive
The Speaker then laid before the House of Delegates a communication from His Excellency, the Governor, setting forth his disapproval of a bill heretofore passed by both houses, as follows:
State of West Virginia
Office of the Governor
1900 Kanawha Blvd., East
Charleston, WV 25305
February 11, 2016
Veto Message
The Honorable Tim Armstead
Speaker, West Virginia House of Delegates
Room 229M, Building 1
State Capitol Complex
1900 Kanawha Blvd., East
Charleston, West Virginia 25305
Re: Enrolled House Bill 4005
Dear Speaker Armstead:
Pursuant to the provisions of section fourteen, Article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled House Bill 4005.
The Legislature of West Virginia enacted the Wages for Construction of Public Improvements Act in 1935 to ensure that laborers, workers, and mechanics receive fair wages on state public improvement contracts. Contending that the prevailing wage rates for building bridges, digging ditches, and tunneling sewers have become too generous, several legislators sought the Act’s repeal during the 2015 Regular Session of the Legislature. I encouraged a less drastic course of action, and urged the Legislature to collaborate with Workforce West Virginia and our state’s foremost universities to improve the Act’s methodology for calculating prevailing wage rates. Working together, we achieved a reasonable compromise in 2015, modernizing the Act instead of extinguishing it.
Our compromise, it turns out, was all for naught. Enrolled House Bill 4005 repeals the Act in an about-face from our eight-one year history of paying laborers, workers, and mechanics fairly for constructing public improvements. Because I favor compromise and fairness over extreme measures, I disapprove and return this bill.
Sincerely,
Earl Ray Tomblin,
Governor.
Delegate Cowles moved that the House of Delegates proceed to consider the bill, notwithstanding the objections of the Governor.
On this motion, the yeas and nays were taken (Roll No. 65), and there were--yeas 55, nays 43, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Bates, Boggs, Byrd, Campbell, Canterbury, Caputo, Eldridge, A. Evans, Ferro, Fleischauer, Fluharty, Guthrie, Hamilton, Hanshaw, Hartman, Hicks, Hornbuckle, Kelly, Longstreth, Lynch, Manchin, Marcum, Miley, Moore, Morgan, Moye, Perdue, Perry, Pethtel, R. Phillips, Pushkin, Reynolds, Rodighiero, Romine, Rowe, Shaffer, Skinner, P. Smith, Sponaugle, Storch, Trecost, Wagner and P. White.
Absent and Not Voting: Blackwell and Flanigan.
So, a majority of the members present and voting having voted in the affirmative, the motion prevailed.
The Speaker then propounded, "Shall the bill pass, notwithstanding the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 66), and there were--yeas 54, nays 44, absent and not voting 2, with the yeas, nays and absent and not voting being as follows:
Yeas: Ambler, Anderson, Arvon, Atkinson, Azinger, Blair, Border, Butler, Cadle, Cooper, Cowles, Deem, Duke, Ellington, Espinosa, D. Evans, Faircloth, Fast, Folk, Foster, Frich, Gearheart, Hamrick, Hill, Householder, Howell, Ihle, Ireland, Kessinger, Kurcaba, Lane, McCuskey, McGeehan, Miller, Moffatt, E. Nelson, J. Nelson, O’Neal, Overington, Rowan, Shott, R. Smith, Sobonya, Stansbury, Statler, Summers, Upson, Walters, Waxman, Weld, Westfall, B. White, Zatezalo and Mr. Speaker (Mr. Armstead).
Nays: Bates, Boggs, Byrd, Campbell, Canterbury, Caputo, Eldridge, A. Evans, Ferro, Fleischauer, Fluharty, Guthrie, Hamilton, Hanshaw, Hartman, Hicks, Hornbuckle, Kelly, Longstreth, Lynch, Manchin, Marcum, Miley, Moore, Morgan, Moye, Perdue, Perry, Pethtel, R. Phillips, Pushkin, Reynolds, Rodighiero, Rohrbach, Romine, Rowe, Shaffer, Skinner, P. Smith, Sponaugle, Storch, Trecost, Wagner and P. White.
Absent and Not Voting: Blackwell and Flanigan.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr, H. B. 4005) passed, notwithstanding the objections of the Governor.
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. 2800, Adding law-enforcement officers' contact information and names of family members to the list of exemptions from public records requests.
On motion of Delegate Cowles, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
“That §29B-1-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
article 1. public records.
'29B‑1‑4. Exemptions.
(a) There is a presumption of public accessibility to all public records, subject only to the following categories of information which are specifically exempt from disclosure under the provisions of this article:
(1) Trade secrets, as used in this section, which may include, but are not limited to, any formula, plan pattern, process, tool, mechanism, compound, procedure, production data or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over competitors;
(2) Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure of the information would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in this particular instance: Provided, That this article does not preclude an individual from inspecting or copying his or her own personal, medical or similar file;
(3) Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination;
(4) Records of law‑enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law‑enforcement agencies which are maintained for internal use in matters relating to law enforcement;
(5) Information specifically exempted from disclosure by statute;
(6) Records, archives, documents or manuscripts describing the location of undeveloped historic, prehistoric, archaeological, paleontological and battlefield sites or constituting gifts to any public body upon which the donor has attached restrictions on usage or the handling of which could irreparably damage the record, archive, document or manuscript;
(7) Information contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions, except those reports which are by law required to be published in newspapers;
(8) Internal memoranda or letters received or prepared by
any public body. ;
(9) Records assembled, prepared or maintained to prevent, mitigate or respond to terrorist acts or the threat of terrorist acts, the public disclosure of which threaten the public safety or the public health;
(10) Those portions of records containing specific or unique vulnerability assessments or specific or unique response plans, data, databases and inventories of goods or materials collected or assembled to respond to terrorist acts; and communication codes or deployment plans of law‑enforcement or emergency response personnel;
(11) Specific intelligence information and specific investigative records dealing with terrorist acts or the threat of a terrorist act shared by and between federal and international law‑enforcement agencies, state and local law‑enforcement and other agencies within the Department of Military Affairs and Public Safety;
(12) National security records classified under federal executive order and not subject to public disclosure under federal law that are shared by federal agencies and other records related to national security briefings to assist state and local government with domestic preparedness for acts of terrorism;
(13) Computing, telecommunications and network security records, passwords, security codes or programs used to respond to or plan against acts of terrorism which may be the subject of a terrorist act;
(14) Security or disaster recovery plans, risk assessments, tests or the results of those tests;
(15) Architectural or infrastructure designs, maps or other records that show the location or layout of the facilities where computing, telecommunications or network infrastructure used to plan against or respond to terrorism are located or planned to be located;
(16) Codes for facility security systems; or codes for secure applications for facilities referred to in subdivision (15) of this subsection;
(17) Specific engineering plans and descriptions of existing public utility plants and equipment;
(18) Customer proprietary network information of other
telecommunications carriers, equipment manufacturers and individual customers,
consistent with 47 U. S. C. '222;
and
(19) Records of the Division of Corrections, Regional Jail
and Correctional Facility Authority and the Division of Juvenile Services
relating to design of corrections, jail and detention facilities owned or
operated by the agency, and the policy directives and operational procedures of
personnel relating to the safe and secure management of inmates or residents,
that if released, could be used by an inmate or resident to escape a facility,
or to cause injury to another inmate, resident or to facility personnel.
;
(20) Information related to applications under section
four, article seven, chapter sixty-one of this code, including applications,
supporting documents, permits, renewals, or any other information that would
identify an applicant for or holder of a concealed weapon permit: Provided:
That information in the aggregate that does not identify any permit holder
other than by county or municipality is not exempted: Provided, however,
That information or other records exempted under this subdivision may be
disclosed to a law enforcement agency or officer: (i) To determine the validity
of a permit; (ii) to assist in a criminal investigation or prosecution; or
(iii) for other lawful law-enforcement purposes.; and
(21) Personal information of employees of a public body maintained by the public body in the ordinary course of the employer-employee relationship. As used in this paragraph, ‘personal information’ means an employee’s social security number, health information, home address, personal address, personal telephone numbers and personal email addresses and those of his or her spouse, parents and children as well as the names of the employee’s spouse, parents and children.
(b) As used in subdivisions (9) through (16), inclusive, subsection (a) of this section, the term Aterrorist act@ means an act that is likely to result in serious bodily injury or damage to property or the environment and is intended to:
(1) Intimidate or coerce the civilian population;
(2) Influence the policy of a branch or level of government by intimidation or coercion;
(3) Affect the conduct of a branch or level of government by intimidation or coercion; or
(4) Retaliate against a branch or level of government for a policy or conduct of the government.
(c) The provisions of subdivisions (9) through (16), inclusive, subsection (a) of this section do not make subject to the provisions of this chapter any evidence of an immediate threat to public health or safety unrelated to a terrorist act or the threat of a terrorist act which comes to the attention of a public entity in the course of conducting a vulnerability assessment response or similar activity.”
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2800 – “A Bill to amend and reenact §29B-1-4 of the Code of West Virginia, 1931, as amended, relating to adding the personal information of public employees and personal information of certain family members of employees of public bodies to the list of exemptions from public records requests; and defining terms.”
On motion of Delegate Cowles, 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. 7 - “A Bill to amend and reenact §55-7-13d of the Code of West Virginia, 1931, as amended; and to amend and reenact §55-7B-5 of said code, all relating to establishment of a wrongful conduct rule which applies when plaintiff’s criminal conduct bars recovery; prohibiting recovery of damages for a defendant’s negligence or gross negligence suffered as a result of a plaintiff’s commission or attempted commission of a felony; requiring proximate cause for a bar on recovery; establishing burden of proof for wrongful conduct rule; providing for the applicability of wrongful conduct rule to all civil actions for personal injury and wrongful death, including any and all claims brought against a health care provider under the Medical Professional Liability Act; establishing that the 2016 amendments apply to all causes of action accruing on or after the effective date of those amendments; and applicability”; 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, to take effect from passage, and requested the concurrence of the House of Delegates in the passage, of
S. B. 341 - “A Bill expiring funds to the unappropriated surplus balance in the State Fund, General Revenue, for the fiscal year ending June 30, 2016, in the amount of $659,500 from the Department of Revenue, Insurance Commissioner – Examination Revolving Fund, fund 7150, fiscal year 2016, organization 0704, and in the amount of $26,000,000 from the Department of Revenue, Insurance Commissioner – Insurance Commission Fund, fund 7152, fiscal year 2016, organization 0704”; which was referred the Committee on 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
Com. Sub. for S. B. 378 - “A Bill to amend and reenact §18-8-4 and §18-8-8 of the Code of West Virginia, 1931, as amended, all relating generally to truancy intervention; expanding definition of excused absence; exempting absences for chronic medical condition or disability which may be reasonably accommodated by the school; requiring parent to request reasonable accommodation; defining ‘chronic medical condition or disability’; requiring written excuses or documentation from a medical provider in certain cases; limiting number of days which may be excused absences; defining “immediate family”; requiring verification of absence for judicial obligation or court appearance; allowing principal to authorize excused absences for other reason or for longer periods of time with the approval of the county superintendent; removing notice requirement after three days absence; requiring written excuses or documentation to be submitted within certain time frame; defining the term ‘reasonable accommodation’; and modifying the effect of student suspensions on enforcement of the provisions of compulsory attendance enforcement”; 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, to take effect from passage, and requested the concurrence of the House of Delegates in the passage, of
S. B. 419 - “A Bill to amend and reenact §4-11A-18 of the Code of West Virginia, 1931, as amended; to amend and reenact §11-13A-3b of said code; to amend and reenact §11-13V-4 of said code; and to amend and reenact §11-21-96 of said code, all relating to termination of Workers’ Compensation Debt Reduction Act; specifying effective date of termination; authorizing sooner termination by Executive Order; reallocating deposits of revenues with relation to the Old Fund; authorizing redirection of deposits, by Executive Order, of specified revenues into the General Fund for a limited time period if budget shortfall exceeds specified amount; eliminating language relating to actuarial determination and executive certification of specified conditions; reestablishing severance tax on timber at a specified tax rate; specifying effective dates; and specifying dedication of revenues”; which was referred to the Committee on 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. 437 - “A Bill to amend and reenact §29-5A-1, §29-5A-15 and §29-5A-24 of the Code of West Virginia, 1931, as amended, all relating to regulation of events by State Athletic Commission; authorizing delegation of commission authority to approve certain event changes; eliminating requirements for certain bonds; and providing for rules to govern amateur mixed martial arts”; 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, to take effect from passage, and requested the concurrence of the House of Delegates in the passage, of
S. B. 449 - “A Bill making a supplementary appropriation of public moneys out of the Treasury from the balance of moneys remaining as an unappropriated surplus balance in the State Fund, General Revenue, to the Department of Administration, Public Defender Services, fund 0226, fiscal year 2016, organization 0221, by supplementing and amending the appropriations for the fiscal year ending June 30, 2016”; which was referred to the Committee on Finance.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage, and requested the concurrence of the House of Delegates in the passage, of
S. B. 450 - “A Bill making a supplementary appropriation of public moneys out of the Treasury from the balance of moneys remaining as an unappropriated surplus balance in the State Fund, General Revenue, to the Department of Health and Human Resources, Division of Health, fund 0407, fiscal year 2016, organization 0506, and the Department of Health and Human Resources, Division of Human Services, fund 0403, fiscal year 2016, organization 0511, by supplementing and amending the appropriations for the fiscal year ending June 30, 2016”; which was referred to the Committee on Finance.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage, and requested the concurrence of the House of Delegates in the passage, of
S. B. 451 - “A Bill making a supplementary appropriation of public moneys out of the Treasury from the balance of moneys remaining as an unappropriated surplus balance in the State Fund, General Revenue, to the Department of Military Affairs and Public Safety, West Virginia Parole Board, fund 0440, fiscal year 2016, organization 0605, and to the Department of Military Affairs and Public Safety, Division of Juvenile Services, fund 0570, fiscal year 2016, organization 0621, by supplementing and amending the appropriations for the fiscal year ending June 30, 2016”; which was referred to the Committee on 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. 509 - “A Bill to amend and reenact §21-10-6 of the Code of West Virginia, 1931, as amended, relating to when Division of Labor must inspect amusement rides and amusement attractions”; which was referred to the Committee on Government Organization.
Resolutions Introduced
Delegates A. Evans, Kelly, Storch, Hamrick, Sobonya, Summers, Ellington, Overington, O'Neal, McGeehan and Azinger offered the following resolution, which was read by its title and referred to the Committee on Roads and Transportation then Rules:
H. C. R. 57 – “Requesting the Division of Highways to name bridge number 12-220-10.31 (12A081) (38.98846, -79.12465), locally known as Petersburg Bridge, carrying US 220 over the south branch of the Potomac River in Grant County, the ‘U.S. Army PVT Leander Reel Memorial Bridge’.”
Whereas, Private Reel was born and raised in Grant County; and
Whereas, Private Reel served in U.S. Army in Normandy and Market Garden in Holland. He was killed in September 1944 fighting for freedom and is buried in the Margraten American Cemetery in the Netherlands; and
Whereas, Private Reel earned a Silver Star in Normandy for his service on June 9, 1944, while serving in the 327th Glider Infantry Regiment, 82nd Airborne Division. As his citation reads: “The company commander called for volunteers to investigate heavy opposition crossing the Merderet River. Private Reel stepped up and advanced through the hedge in the direction of the fire. In a short while the firing stopped and shortly afterward, Private Reel marched out a column of twenty-four enemy soldiers. He had forced them to abandon two machine guns and surrender. His initiative and audacity in neutralizing this group reflects great credit upon himself and the Airborne Forces of the United States Army”; and
Whereas, Private Reel earned the Bronze Star Award on September 25, 1944, in Holland. The citation reads: “For meritorious service in connection with ground operations against a hostile force on 25 September 1944 while serving with Co G, 2nd Batt. 327th GIF regiment, 82nd AB in Holland. The division air assaulted in the Nijmegan-Groesbeek Ridge. The next day, attempts to take the Nijmegen Highway Bridge failed and the division contacted the British Guards Armored Division at Grave for assistance. Private Reel displayed untiring efforts and professional ability while he was subjected to stiff resistance from the enemy forces. His performance of duty was in keeping with the finest traditions of the military service and reflects great credit upon himself, the 82nd AB and the Army of the U.S.”; and
Whereas, U.S. Army Private Leander Reel was awarded a Purple Heart and also earned the Combat infantry Badge, Army Good Conduct Medal, American Campaign Medal, European-African-Middle Eastern Campaign Medal with Arrowhead Device and two Bronze Service Stars, WWII Victory Medal, Glider Wings with two Bronze Service Stars, Belgium Fourragere, Netherlands Orange Lanyard; and
Whereas, U.S. Army Private Leander Reel’s niece, Wanda J. Stump, was given the medals and awards on September 5, 2013. Ms. Stump will cherish his medals and awards forever; and
Whereas, It is fitting and proper that U.S. Army Private Leander Reel be honored by having this bridge named for a soldier who served with distinction and honor and who gave the ultimate sacrifice; therefore, be it
Resolved by the West Virginia Legislature:
That the Legislature hereby requests the Division of Highways to name bridge number 12-220-10.31 (12A081) (38.98846, -79.12465), locally known as Petersburg Bridge, carrying US 220 over the south branch of the Potomac River in Grant County, the "U.S. Army PVT Leander Reel Memorial Bridge” and, be it
Further Resolved, That the Commissioner of the Division of Highways is hereby requested to have made and be placed signs at both ends identifying the road as the "U.S. Army PVT Leander Reel Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Secretary of Transportation, the Commissioner of Highways and U.S. Army Private Leander Reel’s niece, Wanda J. Stump.
Delegate Rowan offered the following resolution, which was read by its title and referred to the Committee on Roads and Transportation then Rules:
H. C. R. 58 – “Requesting the Division of Highways to name the bridge, to be rebuilt, located near Augusta in Hampshire County that will traverse the Little Cacapon River along State Route 50/9 which original bridge was formerly located in the location of the now non-existent community of Frenchburg, the ‘Frenchburg Bridge’.”
Whereas, One James French was an early settler in the area and was the namesake for the community which later came to be known as Frenchburg; and
Whereas, Hampshire County is one of a few counties in the State of West Virginia that was not in favor of inclusion into the northern union during the Civil War, having had predominantly southern sympathies; and
Whereas, As a result of its southern stance during the Civil War, the town was razed by fire by Union forces sometime between November 1861 when two Ringgold Cavalry soldiers were killed near Frenchburg and Stonewall Jackson’s campaign to Berkeley Springs and Romney in January 1862; and
Whereas, Since Frenchburg was destroyed, it never recovered as a viable community, yet due to its past history, including having been surveyed by George Washington in addition to the foregoing, is endowed with a rich historical significance and heritage; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to erect signs at both entrances to the replacement bridge to be built located near Augusta in Hampshire County that will traverse the Little Cacapon River along State Route 50/9 which original bridge was formerly located in the location of the now nonexistent community of Frenchburg, proclaiming the new bridge to be built the “Frenchburg Bridge;” and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby requested to forward a certified copy of this concurrent resolution to the Secretary of the Department of Transportation.
Delegates Phillips, Eldridge, Rodighiero and P. White offered the following resolution, which was read by its title and referred to the Committee on Roads and Transportation then Rules:
H. C. R. 59 – “Requesting that Bridge Number 23-10/7-0.01(23A048) (37.72942, -81.79447),locally known as the Gillman Bottom Bridge carrying CR 10/7 over Huff Creek in Logan County, West Virginia, be named the ‘John B. Short Memorial Bridge’.”
Whereas, John B. Short was born in 1923, the son of LeRoy and Linda Jackson Short of Davin, West Virginia. He died in 2008. He was a graduate of Man High School in 1942 and enlisted in the U. S. Army Air Corps in 1943, where he served until 1946. He went to electrician school in Michigan and, upon his return, he married Ruby K. Nunley Short. They had seven children. John retired as Chief Electrician with Pittston Coal Company in 1986. He was an avid outdoorsman, hunter and fisherman; and
Whereas, It is fitting that an enduring memorial be established to commemorate this individual who meant so much to his family and community; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name Bridge Number 23-10/7-0.01(23A048) (37.72942, -81.79447),locally known as the Gillman Bottom Bridge carrying CR 10/7 over Huff Creek in Logan County, West Virginia, be named the "John B. Short Memorial Bridge"; and, be it
Further Resolved, That the Commissioner of the Division of Highways is hereby requested to erect signs at both ends of the bridge containing bold and prominent letters proclaiming the bridge the "John B. Short Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Commissioner of the Division of Highways, the surviving children and family of John B. Short.
Delegates Sobonya, Rohrbach, Waxman, Hamrick, B. White, Miller, Border, D. Evans, Ambler and Cooper offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 60 – “Requesting that the Joint Committee on Government and Finance study the state-level background check process for new employees and volunteers of caregiving businesses and facilities’.”
Whereas, Background checks are critical to ensure that quality care and treatment is provided to minors, elderly people and people with disabilities in a safe environment; and
Whereas, The state’s current background check process for new employees and volunteers of caregiving facilities often prevents new employees and volunteers from beginning work for up to eight weeks from the date of hire; and
Whereas, The businesses affected by long delays in state-level background checks include, but are not limited to, Neonatal Abstinence Centers; Nursing Homes; Assisted Living Facilities; Group Homes and Residential Care Facilities for Minors; and
Whereas, One potential reason for long delays in the background check process for these facilities, is that the West Virginia State Police has entered into an exclusive contract with one business to administer all state-level background checks, including fingerprinting services; and
Whereas, Business administrators in the state believe that the vendor currently providing state-level background check services does not complete background checks in a timely or professional manner; and
Whereas, Business administrators in the state believe that background checks completed in neighboring states have been equally, if not more, effective in revealing disqualifying events in a potential volunteer or employee’s record, but are completed much faster; and
Whereas, Long delays in state-level background checks delay the state’s most vulnerable populations from receiving care from the highly qualified employees and volunteers who wish to serve them; and
Whereas, Long delays in state-level background checks prevent new caregiving facilities wishing to locate in the state from becoming operational in a timely manner; and
Whereas, The state has a strong interest in ensuring that businesses wishing to provide crucial services to the population in this state do not face unnecessary obstacles in becoming operational; and
Whereas, The state has numerous purchasing policies, including competitive bidding requirements, that are meant to ensure that the services purchased by state agencies are cost-effective and of high quality; and
Whereas, It is important that the Legislature study and identify the cause of long delays in the state-level background check process, including whether the state’s purchasing practices have allowed an exclusive contractual relationship to form that is detrimental to caregiving businesses in this state, as well as the citizens needing caregiving services; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to conduct a study on the state-level background check process required for the various businesses providing care to vulnerable populations in this state; and, be it
Further Resolved, That in conducting this study, the Joint Committee on Government and Finance review the following issues: whether the current state-level background check process adequately protects the populations served by caregiving facilities in this state; the timeline and quality of service experienced by various caregiving facilities in obtaining state-level background checks for potential employees and volunteers; the reasons for delays or other problems experienced by various caregiving facilities in obtaining state-level background checks for potential employees and volunteers; whether the West Virginia State Police contract with the company providing state-level background checks complies with the state’s purchasing policies; whether the West Virginia State Police has received any kind of purchasing exemption or special designation from the State Director of Purchasing and if so, whether the designation is appropriate; and the comparative effectiveness and speed of state-level background check processes in other states; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2017, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report, and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Delegates Phillips, Eldridge, Rodighiero and P. White offered the following resolution, which was read by its title and referred to the Committee on Roads and Transportation then Rules:
H. C. R. 61 – “Requesting the Division of Highways to name Bridge Number 23-10/12-0.01 (23A316) (latitude 37.73065, longitude -81.83793) locally known as Mallory School Bridge, carrying County Route 10/12 over Huff Creek in Logan County, the ‘U.S. Army PFC Donald Ray Cochran Memorial Bridge’.”
Whereas, Donald Ray Cochran was born December 27,1926, at Mallory, West Virginia, the son of Millard Cochran and Garnett Walls Cochran. He graduated from Man High School, Class of 1944, and worked for Powellton Coal Company at Rock House on the engineering crew until he was drafted into the United States Army in 1950. He was killed in action in North Korea on May 25, 1951. His remains were shipped home for burial in December 1951, to Forrest Lawn Cemetery at Pecks Mill, West Virginia; and
Whereas, Naming Bridge Number 23-10/12-0.01 (23A316) (latitude 37.73065, longitude -81.83793) locally known as Mallory School Bridge, carrying County Route 10/12 over Huff Creek in Logan County, the "U.S. Army PFC Donald Ray Cochran Memorial Bridge" is an appropriate recognition of his contributions and his supreme sacrifice to his country, state, community and Logan County; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name Bridge Number 23-10/12-0.01 (23A316) (latitude 37.73065, longitude -81.83793) locally known as Mallory School Bridge, carrying County Route 10/12 over Huff Creek in Logan County, the "U.S. Army PFC Donald Ray Cochran Memorial Bridge" "U.S. Army PFC Donald Ray Cochran Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "U.S. Army PFC Donald Ray Cochran Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Secretary of the Department of Transportation and the surviving relatives of Donald Ray Cochran.
Messages from the Executive
The Speaker then laid before the House of Delegates a communication from His Excellency, the Governor, setting forth his disapproval of a bill heretofore passed by both houses, as follows:
State of West Virginia
Office of the Governor
1900 Kanawha Blvd., East
Charleston, WV 25305
February 11, 2016
Veto Message
The Honorable Tim Armstead
Speaker, West Virginia House of Delegates
Room 229M, Building 1
State Capitol
Charleston, West Virginia 25305
Re: Enrolled Senate Bill 1
Dear President Cole:
Pursuant to the provisions of section fourteen, article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Senate Bill 1 for public policy reasons.
I dispute that West Virginia needs a “right to work” law. The issue of “right to work” has been discussed for several years, but I have never had a company cite “right to work” as a barrier to relocating in West Virginia. We do not lack prospects. Our issues are best addressed by improving our workforce and creating new development opportunities. Since I became governor in 2010, West Virginia has welcomed more than $10 billion in new investments and expansion projects. A “right to work” law will lead to little if any economic growth and may lower the wages of West Virginia workers.
For the foregoing reasons, I disapprove and return the bill.
Sincerely,
Earl Ray Tomblin
Governor
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had again passed, without amendment, notwithstanding the objections of the Governor, and requested the concurrence of the House of Delegates in the passage, of
Enr, S. B. 1, Establishing WV Workplace Freedom Act.
Delegate Cowles moved that the House of Delegates proceed to consider the bill, notwithstanding the objections of the Governor.
On this motion, the yeas and nays were taken (Roll No. 67), and there were--yeas 56, nays 42, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Bates, Boggs, Byrd, Campbell, Canterbury, Caputo, Eldridge, A. Evans, Ferro, Fleischauer, Fluharty, Guthrie, Hamilton, Hanshaw, Hartman, Hicks, Hornbuckle, Longstreth, Lynch, Manchin, Marcum, McGeehan, Miley, Moore, Morgan, Moye, Perdue, Perry, Pethtel, R. Phillips, Pushkin, Reynolds, Rodighiero, Romine, Rowe, Shaffer, Skinner, P. Smith, Sponaugle, Storch, Trecost and P. White.
Absent and Not Voting: Blackwell and Flanigan.
So, a majority of the members present and voting having voted in the affirmative, the motion prevailed.
The Speaker then propounded, "Shall the bill pass, notwithstanding the objections of the Governor?"
On this question, the yeas and nays were taken (Roll No. 68), and there were--yeas 54, nays 43, absent and not voting 3, with the yeas, nays and absent and not voting being as follows:
Yeas: Ambler, Anderson, Arvon, Atkinson, Blair, Border, Butler, Cadle, Cooper, Cowles, Deem, Duke, Ellington, Espinosa, D. Evans, Faircloth, Fast, Folk, Foster, Frich, Gearheart, Hamrick, Hill, Householder, Howell, Ihle, Ireland, Kelly, Kessinger, Kurcaba, Lane, McCuskey, Miller, Moffatt, E. Nelson, J. Nelson, O’Neal, Overington, Rowan, Shott, R. Smith, Sobonya, Stansbury, Statler, Summers, Upson, Wagner, Walters, Waxman, Weld, Westfall, B. White, Zatezalo and Mr. Speaker (Mr. Armstead).
Nays: Bates, Boggs, Byrd, Campbell, Canterbury, Caputo, Eldridge, A. Evans, Ferro, Fleischauer, Fluharty, Guthrie, Hamilton, Hanshaw, Hartman, Hicks, Hornbuckle, Longstreth, Lynch, Manchin, Marcum, McGeehan, Miley, Moore, Morgan, Moye, Perdue, Perry, Pethtel, R. Phillips, Pushkin, Reynolds, Rodighiero, Rohrbach, Romine, Rowe, Shaffer, Skinner, P. Smith, Sponaugle, Storch, Trecost and P. White.
Absent and Not Voting: Azinger, Blackwell and Flanigan.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enr. S. B. 1) passed, notwithstanding the objections of the Governor.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Petitions
Delegates Perry, Kessinger and Fast presented a petition signed by residents of Fayette County requesting the Governor and Legislature increase the amount of state funds allocated to PEIA; which was referred to the Committee on Finance.
Delegate Boggs presented a petition signed by residents of Braxton County requesting the Governor and Legislature increase the amount of state funds allocated to PEIA; which was referred to the Committee on Finance.
Bills Introduced
On motions for leave, bills were introduced, read by their titles, and severally referred as follows:
By Delegates Cowles and Shott:
H. B. 4521 – “A Bill to amend and reenact §62-6B-2, §62-6B-3 and §62-6B-4 of the Code of West Virginia, 1931, as amended, all relating to modifying the requirements that allow a child witness to testify by closed circuit television.”
By Delegates Statler, Kurcaba, Duke, Weld, Stansbury, Hill, Espinosa, Azinger, Pethtel and Blair:
H. B. 4522 - “A Bill to amend and reenact §18-9A-12 of the Code of West Virginia, 1931, as amended, relating to basic state aid to public education; providing for a discretionary adjustment to the allocated state aid share to any county on account of, and in the amount of, payments or contributions in lieu of property tax distributed from the sheriff to the county board of education as a result of payment in lieu of tax agreements first entered into on or after July 1, 2016”; to the Committee on Education then Finance.
By Delegates Gearheart, Moore, Householder and Ellington:
H. B. 4523 - “A Bill to amend and reenact §29-22B-1101 and §29-22B-1408 of the Code of West Virginia, 1931, as amended, all relating to permitting licensed limited video lottery retailers to have up to seven video lottery terminals; permitting certain fraternal societies and veterans’ organizations to have up to twelve video lottery terminals; and providing that a portion of the revenue generated by the lottery terminals be deposited into the State Road Fund”; to the Committee on the Judiciary then Finance.
By Delegates Ellington, Blair, Householder, E. Nelson, Ireland, Hamrick, D. Evans and Cooper:
H. B. 4524 - “A Bill to amend and reenact §18B-10-1 of the Code of West Virginia, 1931, as amended, relating to permitting the governing body to charge tuition on certain credit hours”; to the Committee on Education then Finance.
By Delegates Folk, McGeehan, Shaffer, Marcum, Fast, Faircloth, Shott, E. Nelson, Hanshaw, Skinner and Manchin:
H. B. 4525 - “A Bill to amend and reenact §17C-5-4 and §17C-5-7 of the Code of West Virginia, 1931, as amended; to amend and reenact §17C-5A-1a, §17C-5A-2, §17C-5A-2a, §17C-5A-3 and §17C-5A-3a of said code; and to amend said code by adding thereto a new section, designated §17C-5C-6, all relating to the procedures for driver’s license suspension and revocation in criminal proceedings for driving under the influence of alcohol, controlled substances or drugs (D.U.I.); eliminating requirements that the Commissioner of the Division of Motor Vehicles automatically suspend an individual’s driver’s license after receipt of a statement from arresting officers that an individual refused a breath or blood test; requiring that an individual arrested for D.U.I. be given a written statement informing the individual of the legal consequences of taking or refusing to take a preliminary breath test and informing the individual of the right to receive a secondary blood test; requiring that, following an individual’s refusal to take a preliminary breath test, an arresting officer execute a signed statement that the officer administered all required warnings; eliminating all statutory provisions authorizing or requiring the Commissioner of the Division of Motor Vehicles to take administrative action upon an individual’s driver’s license on the basis of D.U.I. in the absence of a conviction or a court-ordered suspension or revocation; eliminating all statutory provisions authorizing or requiring the commissioner to require an individual to complete the Motor Vehicle Test and Lock program or other safety programs; completely eliminating the Division of Motor Vehicle’s administrative hearing process for suspending and revoking driver’s licenses based on a D.U.I.; creating a process by which an individual may notify the commissioner if his or her driver’s license has been incorrectly suspended or revoked based on mistaken identity of the defendant in a transcript of judgment or conviction; requiring the commissioner to take corrective action if a driver’s license is incorrectly suspended or revoked based on mistaken identity; completely transferring jurisdiction for suspension or revocation of a driver’s license based on D.U.I. to the court with jurisdiction over the criminal proceedings; requiring a court to suspend a defendant’s driver’s license until acquittal or judgment if the defendant submitted to an alcohol concentration test that revealed a certain level of impairment, committed certain prior offenses, was involved in an accident causing death or bodily injury, or refused to submit to a secondary chemical test; allowing a court to suspend a defendant’s license until acquittal or judgment upon a finding that the defendant would otherwise pose a risk of harm to others during the pendency of criminal proceedings; establishing the right to request and receive judicial review of driver’s license suspension orders pending criminal proceedings; establishing the scope of review for judicial review of driver’s license suspension orders; requiring a defendant to surrender his or her driver’s license upon suspension by the court; requiring the clerk of a court to transmit a copy of an order suspending or revoking a driver’s license; establishing procedures and a timeline for the Division of Motor Vehicles to transfer jurisdiction of driver’s license suspension and revocation to the courts; and eliminating all statutory provisions authorizing or requiring the commissioner to prescribe the terms and conditions of driver’s license reissuance following D.U.I”; to the Committee on Roads and Transportation then the Judiciary.
By Delegates Rohrbach, Stansbury, Faircloth, B. White, Waxman, Campbell, Summers and Ellington:
H. B. 4526 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-5Y-1, §16-5Y-2, §16-5Y-3, §16-5Y-4, §16-5Y-5 and §16-5Y-6, all relating to establishing an advisory council on rare diseases; creating the advisory council and its composition; setting terms of members; defining words and phrases; defining the duties and the powers of the advisory council; setting out particular duties of the Secretary of the Department of Health and Human Resources; and establishing a special revenue account”; to the Committee on Health and Human Resources then Finance.
By Delegates Manchin, Skinner, Caputo, Longstreth, Fluharty and Lynch:
H. B. 4527 - “A Bill to amend and reenact §3-8-1a, §3-8-2, §3-8-5, §3-8-5a, §3-8-5b, §3-8-7, §3-8-8, §3-8-9 and §3-8-12 of the Code of West Virginia, 1931, as amended; and to further amend said code by adding thereto two new sections, designated §3-8-5c and §3-8-8a, all relating generally to the regulation and control of elections; modifying and adding definitions; modifying what committees qualify for a federal reporting exemption; modifying reporting requirements for independent expenditures; clarifying scope of reporting obligations by committee treasurers; requiring certain contributions be reported to State Election Commission within forty-eight hours of their receipt; requiring financial statements for candidates for State Senate, House of Delegates, circuit judge and family court judge to be filed electronically with the Secretary of State; permitting certain financial statements to be filed by mail, in person or by facsimile or other electronic means; establishing a processing fee for financial statements not filed electronically; requiring Secretary of State to maintain an online searchable database; setting contribution limits to state party executive committee, or subsidiary thereof, or state party legislative caucus committee; prohibiting contributions by foreign nationals; directing Secretary of State to publish an online list of late filing violators; prohibiting contributions to candidates or candidate committees by corporations or membership organizations; clarifying and modifying disclosure requirements for covered organizations; identifying additional lawful election expenses; identifying additional lawful expenditures for excess campaign funds; creating criminal offenses and setting penalties; and setting requirements for disclosures on certain communications”; to the Committee on the Judiciary then Finance.
By Delegates Canterbury, Cooper, Lynch, A. Evans, Hamilton and Ambler:
H. B. 4528 - “A Bill to amend and reenact §7-17-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §8-15-9 of said code; and to amend said code by adding thereto a new section, designated §33-3-33b, all relating to permitting an all-volunteer fire department to consolidate with certain other fire departments while retaining their rights to receive funds from the Fire Protection Fund as if they had not consolidated”; to the Committee on Political Subdivisions then Finance.
By Delegate Gearheart:
H. B. 4529 - “A Bill to amend and reenact §17C-5A-2 of the Code of West Virginia, 1931, as amended, relating to providing that the Division of Motor Vehicles may not stay a revocation for D.U.I. if the driver had a stay in place for a pending contested revocation for D.U.I. and the Division of Motor Vehicles receives a statement from a law-enforcement officer that the driver has been charged with a subsequent D.U.I. or if the division receives notice from a court that the same driver has been convicted of an additional offense for DUI; requiring that a person intending to contest a D.U.I. revocation order state “sufficient grounds” in the written objection upon which to contest the order; providing that the exclusionary rule applicable in criminal cases does not apply in administrative hearings involving contested D.U.I. cases before the Office of Administrative Hearings; deleting the requirement that the Office of Administrative Hearings make a finding that a person was lawfully arrested as a prerequisite to deciding a case and issuing a final order; and, deleting the requirement that the Office of Administrative Hearings must find whether a person was lawfully placed under arrest when the person is alleged to have refused to submit to the secondary chemical test while substituting language that the person was “lawfully directed” to submit to the test”; to the Committee on Roads and Transportation then the Judiciary.
By Delegates McCuskey, Westfall, Skinner and E. Nelson:
H. B. 4530 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §24A-2-7, relating to exempting taxicab companies whose drivers are independent contractors, from providing workers' compensation coverage for the drivers”; to the Committee on Roads and Transportation then the Judiciary.
By Delegates Rowe, Deem, Rohrbach, B. White, Faircloth, Guthrie, Miley, Perdue, Reynolds, Ellington and Bates:
H. B. 4531 - “A Bill to amend and reenact §16-5B-9 of the Code of West Virginia, 1931, as amended, relating to requiring hospitals, or other similar institutions, to publish a cost list for the most commonly performed procedures that are billed by the hospital or other similar institution”; to the Committee on Health and Human Resources then the Judiciary.
By Delegate Skinner:
H. B. 4532 - “A Bill to amend and reenact §11-8-5, §11-8-6b and §11-8-6c of the Code of West Virginia, 1931, as amended, all relating to establishing a new class of property on utility right-of-ways and easements for taxation purposes; naming that new class as Class V; giving county commissions the option of adopting that Class V to their respective tax rolls; and establishing certain tax rates for Class V property”; to the Committee on Political Subdivisions then Finance.
House Calendar
Third Reading
H. B. 4147, Making the West Virginia Schools for the Deaf and Blind eligible to participate in any and all funding administered or distributed by the West Virginia School Building Authority; 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. 69), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent and Not Voting: Blackwell and Flanigan.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4147) passed.
Delegate Cowles moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 70), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent and Not Voting: Blackwell and Flanigan.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4147) 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.
Second Reading
S. B. 123, Treatment for sexually transmitted diseases; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Health and Human Resources, was reported by the Clerk and adopted, amending the bill on page one, by striking out everything after the enacting clause and inserting the following:
“That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §16-4F-1, §16-4F-2, §16-4F-3, §16-4F-4 and §16-4F-5; that §30-3-14 of said code be amended and reenacted; that §30-3E-17 of said code be amended and reenacted; that §30-5-14 of said code be amended and reenacted; that §30-7-11 of said code be amended and reenacted; and that §30-14-11 of said code be amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 4F. EXPEDITED PARTNER THERAPY.
§16-4F-1. Definitions.
As used in this article, unless the context otherwise indicates, the following terms have the following meanings:
(1) ‘Department’ means the West Virginia Department of Health and Human Resources.
(2) ‘Expedited partner therapy’ means prescribing, dispensing, furnishing or otherwise providing prescription antibiotic drugs to the sexual partner or partners of a person clinically diagnosed as infected with a sexually transmitted disease without physical examination of the partner or partners.
(3) ‘Health care professional’ means:
(A) An allopathic physician licensed pursuant to article three, chapter thirty of this code;
(B) An osteopathic physician licensed pursuant to article fourteen, chapter thirty of this code;
(C) A physician assistant licensed pursuant to section four, article three-e, chapter thirty of this code;
(D) An advanced practice registered nurse authorized with prescriptive authority pursuant to section fifteen-a, article seven, chapter thirty of this code; or
(E) A pharmacist licensed pursuant to article five, chapter thirty of this code.
(4) ‘Sexually transmitted disease’ means a disease that may be treated by expedited partner therapy as determined by rule of the department.
§16-4F-2. Expedited partner therapy.
(a) Notwithstanding any other provision of law to the contrary, a health care professional who makes a clinical diagnosis of a sexually transmitted disease may provide expedited partner therapy for the treatment of the sexually transmitted disease if, in the judgment of the health care professional, the sexual partner is unlikely or unable to present for comprehensive health care, including evaluation, testing and treatment for sexually transmitted diseases. Expedited partner therapy is limited to a sexual partner who may have been exposed to a sexually transmitted disease within the previous sixty days and who is able to be contacted by the patient.
(b) Any health care professional who provides expedited partner therapy shall comply with all necessary provisions of article four of this chapter.
(c) A health care professional who provides expedited partner therapy shall provide counseling for the patient, including advice that all women and symptomatic persons, and in particular women with symptoms suggestive of pelvic inflammatory disease, are encouraged to seek medical attention. The health care professional shall also provide in written or electronic format materials provided by the department to be given by the patient to his or her sexual partner.
§16-4F-3. Informational materials.
(a) The department shall provide information and technical assistance as appropriate to health care professionals who provide expedited partner therapy. The department shall develop and disseminate in electronic and other formats the following written materials:
(1) Informational materials for sexual partners, as described in subsection (c), section two of this article;
(2) Informational materials for persons who are repeatedly diagnosed with sexually transmitted diseases; and
(3) Guidance for health care professionals on the safe and effective provision of expedited partner therapy.
(b) The department may offer educational programs about expedited partner therapy for health care professionals.
§16-4F-4. Limitation of liability.
(a) A health care professional who provides expedited partner therapy in good faith without fee or compensation under this article and provides counseling and written materials as required in subsection (c), section two of this article is not subject to civil or professional liability in connection with the provision of the therapy, counseling and materials, except in the case of gross negligence or willful and wanton misconduct. A health care professional is not subject to civil or professional liability for choosing not to provide expedited partner therapy.
(b) A pharmacist or pharmacy is not subject to civil or professional liability for choosing not to fill a prescription that would cause that pharmacist or pharmacy to violate any provision of article five, chapter thirty of this code.
§16-4F-5. Rulemaking.
The Secretary of the Department of Health and Human Resources shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to designate certain diseases as sexually transmitted diseases which may be treated by expedited partner therapy. The department shall consider the recommendations and classifications of the federal Department of Health and Human Services, Centers for Disease Control and Prevention and other nationally recognized medical authorities in making these designations.
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 unfavorable outcomes arising out of medical professional liability. The board shall initiate an investigation if it receives notice that three or more judgments, or any combination of judgments and settlements resulting in five or more unfavorable outcomes arising from medical professional liability have been rendered or made against the physician or podiatrist within a five-year period. 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 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 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 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 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 $1,000 nor more than $10,000
against the violator. The board shall notify any person so assessed 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 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 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 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, including, but not 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 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, 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. Upon application of a physician that has had his or her license revoked because of a drug related felony conviction, upon completion of any sentence of confinement, parole, probation or other court-ordered supervision and full satisfaction of any fines, judgments or other fees imposed by the sentencing court, the board may issue the applicant a new license upon a finding that the physician is, except for the underlying conviction, otherwise qualified to practice medicine: Provided, That the board may place whatever terms, conditions or limitations it deems appropriate upon a physician licensed pursuant to this subsection.
(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 considers appropriate, as provided in this section.
(f) The investigating body, as provided 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 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 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 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 $1,000 nor more than $10,000.
(k) Notwithstanding the provisions of section eight, article one of this chapter, 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 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 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 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 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 has 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.
(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 that list. If the board and the physician or podiatrist are unable to agree on a mediator, the board shall designate a mediator from 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.
(s) A physician licensed under this article may not be disciplined for providing expedited partner therapy in accordance with article four-f, chapter sixteen of this code.
ARTICLE 3E. PHYSICIAN ASSISTANTS PRACTICE ACT.
§30-3E-17. Complaint process.
(a) All hearings and procedures related to denial of a license, and all complaints, investigations, hearings and procedures a physician assistant licenses and the discipline accorded thereto, shall be in accordance with the processes and procedures set forth in articles three and/or fourteen of this chapter, depending on which board licenses the physician assistant.
(b) The boards may impose the same discipline, restrictions and/or limitations upon the license of a physician assistant as they are authorized to impose upon physicians and/or podiatrists.
(c) The boards shall direct to the appropriate licensing board a complaint against a physician assistant, a supervising physician and/or an alternate supervising physician.
(d) In the event that independent complaint processes are warranted by the boards with respect to the professional conduct of a physician assistant or a supervising and/or alternate supervising physician, the boards are authorized to work cooperatively and to disclose to one another information which may assist the recipient appropriate licensing board in its disciplinary process. The determination of what information, if any, to disclose shall be at the discretion of the disclosing board.
(e) A physician assistant licensed under this article may not be disciplined for providing expedited partner therapy in accordance with article four-f, chapter sixteen of this code.
ARTICLE 5. PHARMACISTS, PHARMACY TECHNICIANS, PHARMACY INTERNS AND PHARMACIES.
§30-5-14. Prohibiting the dispensing of prescription orders in absence of practitioner-patient relationship.
A pharmacist may not compound or dispense any prescription order when he or she has knowledge that the prescription was issued by a practitioner without establishing a valid practitioner-patient relationship. An online or telephonic evaluation by questionnaire, or an online or telephonic consultation, is inadequate to establish a valid practitioner-patient relationship: Provided, That this prohibition does not apply:
(1) In a documented emergency;
(2) In an on-call or cross-coverage situation; or
(3) For the treatment of sexually transmitted diseases by expedited partner therapy as set forth in article four-f, chapter sixteen of this code; or
(3) (4) Where patient care is rendered in
consultation with another practitioner who has an ongoing relationship with the
patient and who has agreed to supervise the patient's treatment, including the
use of any prescribed medications.
ARTICLE 7. REGISTERED PROFESSIONAL NURSES.
§30-7-11. Denial, revocation or suspension of license; grounds for discipline.
(a) The board shall have the power to deny, revoke or suspend any license to practice registered professional nursing issued or applied for in accordance with the provisions of this article, or to otherwise discipline a licensee or applicant upon proof that he or she:
(a) (1) Is or was guilty of fraud or deceit
in procuring or attempting to procure a license to practice registered
professional nursing; or
(b) (2) Has been convicted of a felony; or
(c) (3) Is unfit or incompetent by reason of
negligence, habits or other causes; or
(d) (4) Is habitually intemperate or is
addicted to the use of habit-forming drugs; or
(e) (5) Is mentally incompetent; or
(f) (6) Is guilty of conduct derogatory to
the morals or standing of the profession of registered nursing; or
(g) (7) Is practicing or attempting to
practice registered professional nursing without a license or reregistration;
or
(h) (8) Has wilfully or repeatedly violated
any of the provisions of this article.
(b) An Advanced practice registered nurse licensed under this article may not be disciplined for providing expedited partner therapy in accordance with article four-f, chapter sixteen of this code.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-11. Refusal, suspension or revocation of license; suspension or revocation of certificate of authorization.
(a) The board may either refuse to issue or may suspend or revoke any license for any one or more of the following causes:
(1) Conviction of a felony, as shown by a certified copy of the record of the trial court;
(2) Conviction of a misdemeanor involving moral turpitude;
(3) Violation of any provision of this article regulating the practice of osteopathic physicians and surgeons;
(4) Fraud, misrepresentation or deceit in procuring or attempting to procure admission to practice;
(5) Gross malpractice;
(6) Advertising by means of knowingly false or deceptive statements;
(7) Advertising, practicing or attempting to practice under a name other than one's own;
(8) Habitual drunkenness, or habitual addiction to the use of morphine, cocaine or other habit-forming drugs.
(b) The board shall also have the power to suspend or revoke for cause any certificate of authorization issued by it. It shall have the power to reinstate any certificate of authorization suspended or revoked by it.
(c) An osteopathic physician licensed under this article may not be disciplined for providing expedited partner therapy in accordance with article four-f, chapter sixteen of this code.”
The bill was then ordered to third reading.
S. B. 261, Bringing state code relating to daylight saving time in conformity with federal code; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for H. B. 2615, West Virginia Small Business Capital Act; on second reading, coming up in regular order, was reported by the Clerk.
At the request of Delegate Cowles, and by unanimous consent, the bill was advanced to third reading with restricted right to amend by Delegates Lane and E. Nelson, and the rule was suspended to permit the consideration of the amendment on that reading.
Com. Sub. for H. B. 4146, Providing insurance cover abuse-deterrent opioid analgesic drugs; on second reading, coming up in regular order, was read a second time.
On motion of Delegate Ellington and Summers, the bill was amended on page four, section seven (n), line nine, by striking out the words “and is indicated by the United States Food and Drug Administration”.
The bill was then ordered to engrossment and third reading.
Com. Sub. for H. B. 4188, Relating to the development and implementation of a program to facilitate commercial sponsorship of rest areas; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Com. Sub. for H. B. 4218, Expanding the definition of “underground facility” in the One-Call System Act; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Com. Sub. for H. B. 4228, Relating to transportation network companies; on second reading, coming up in regular order, was read a second time.
Delegate Skinner moved to amend the bill on page twelve, by striking out section seventeen in its entirety, and inserting in lieu thereof the following:
Ҥ17-29-17. No discrimination; accessibility.
(a) The transportation network company shall adopt a policy of nondiscrimination on the basis of destination, race, color, national origin, religious belief or affiliation, sex, disability, age, sexual orientation or gender identity with respect to passengers and potential passengers and notify transportation network drivers of the policy.
(b)Transportation network drivers shall comply with all applicable laws regarding nondiscrimination against passengers or potential passengers on the basis of destination, race, color, national origin, religious belief or affiliation, sex, disability, age, sexual orientation or gender identity.
(c) Transportation network drivers shall comply with all applicable laws relating to accommodation of service animals.
(d) A transportation network shall not impose additional charges for providing transportation network services to persons with physical disabilities because of those disabilities.
(e) A transportation network shall provide passengers an opportunity to indicate that they require a wheelchair-accessible vehicle. If a transportation network cannot arrange wheelchair-accessible transportation network service in any instance, it shall direct the passenger to an alternate provider of wheelchair-accessible service, if available.”
Delegate Skinner asked and obtained unanimous consent to reform the amendment on page one, line two, by deleting the word “destination”.
On the adoption of the amendment, as reformed, Delegate Skinner demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 71), and there were -- yeas 27, nays 65, absent and not voting 8, with the yeas and absent and not voting being as follows:
Yeas: Blair, Byrd, Campbell, Caputo, Ferro, Fleischauer, Fluharty, Guthrie, Hartman, Hicks, Hornbuckle, Longstreth, Lynch, Manchin, Miley, Morgan, Perdue, Perry, Pethtel, Pushkin, Reynolds, Rowe, Shaffer, Shott, Skinner, P. Smith and Sponaugle.
Absent and Not Voting: Blackwell, Deem, Eldridge, Flanigan, Kelly, Moore, J. Nelson and Walters.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected.
The bill was then ordered to engrossment and third reading.
H. B. 4309, Increasing criminal penalties for conviction of certain offenses of financial exploitation of an elderly person; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
First Reading
The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
S. B. 15, Adopting learned intermediary doctrine as defense to civil action due to inadequate warnings or instructions,
And,
Com. Sub. for H. B. 2122, Making it illegal for first responders to photograph a corpse; Jonathon's Law.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate announced the Senate had repassed, without amendment, notwithstanding the objections of the Governor, of
Enr. H. B. 4005, Repealing prevailing hourly rate of wages requirements.
Leaves of Absence
At the request of Delegate Cowles, and by unanimous consent, leaves of absence for the day were granted Delegates Blackwell and Flanigan.
Remarks of Members
Delegate Byrd asked and obtained unanimous consent that the remarks of Delegates Fluharty, Skinner and Fast regarding the amendment to Com. Sub. for H. B. 4228 be printed in the Appendix to the Journal.
Delegate Canterbury asked and obtained unanimous consent that the remarks of Delegate Lane regarding House Rules 32 and 35 be printed in the Appendix to the Journal.
Delegate O'Neal asked and obtained unanimous consent that all remarks on yesterday regarding the passage of H. B. 4012 be printed in the Appendix to the Journal.
Delegate Cowles asked and obtained unanimous consent that the remarks of Delegate E. Nelson on Wednesday, February 10, 2016 regarding the PEIA funding be printed in the Appendix to the Journal.
The Speaker reminded members to be observant of the Rules of the House regarding decorum.
Miscellaneous Business
Delegate Azinger announced that he was absent on today when the vote was taken on Roll No. 68, and that had he been present, he would have voted “Yea” thereon.
Delegates Frich and Moffatt filed forms with the Clerk's Office per House Rule 94b to be added as cosponsors of H. B. 4519.
Delegate Frich filed a form with the Clerk's Office per House Rule 94b to be added as a cosponsor of H. B. 4332.
Delegate Zatezalo filed a form with the Clerk's Office per House Rule 94b to be added as a cosponsor of H. B. 2904.
Delegate Byrd filed a form with the Clerk's Office per House Rule 94b to be removed as a cosponsor of H. B. 4332.
Delegate Byrd noted to the Clerk that he was absent on yesterday when the votes were taken on Roll Nos. 59 through 64, and that had he been present, he would have voted “Yea” thereon.
At 12:56 p.m., the House of Delegates adjourned until 11:00 a.m., Monday, February 15, 2016.