sdj-106th day
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-NINTH LEGISLATURE
EXTENDED SESSION, 2009
ONE HUNDRED SIXTH DAY
____________
Charleston, W. Va., Wednesday, May 27, 2009
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Honorable Dan Foster, a senator from
the seventeenth district.
Pending the reading of the Journal of Tuesday, May 26, 2009,
On motion of Senator Williams, the Journal was approved and
the further reading thereof dispensed with.
The Senate proceeded to the third order of business.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor, which
was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
April 22, 2009
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled Committee Substitute for House Bill No. 2423.
Enrolled Committee Substitute for House Bill No. 2423 makes
several amendments to an article of the West Virginia Code
pertaining to the Board of Medical Imaging and Radiation Therapy
Technology. Included in the bill are amendments adding certain
definitions to the article, clarifying the procedure for appointing
persons to the board, removing certain licensure exemptions,
extending the time period for the validity of certain apprentice
licenses and making other technical changes to the code. Although
I support the intent of the bill, the title of Enrolled Committee
Substitute for House Bill No. 2423 provides simply that it relates
"to the Board of Medical Imaging and Radiation Therapy Technology."
I must, therefore, veto Enrolled Committee Substitute for House
Bill No. 2423 because the title does not sufficiently reflect the
amendments the bill purports to make. Nevertheless, I would
encourage the Legislature to promptly consider this measure again
in the near future.
Very truly yours,
Joe Manchin III,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Natalie E. Tennant
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, to take
effect from passage, of a bill disapproved and returned by the
Governor with his objections, and requested the concurrence of the
Senate in the passage, of
Enr. Com. Sub. for House Bill No. 2423, Relating to the Board
of Medical Imaging and Radiation Therapy Technology.
On motion of Senator Chafin, the message was taken up for
immediate consideration.
Senator Chafin then moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 2423),
heretofore disapproved and returned by His Excellency, the
Governor, with his objections.
The question being on the adoption of Senator Chafin's motion
that the Senate reconsider Enrolled Committee Substitute for House
Bill No. 2423, the same was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the
following House of Delegates amendment to the title of the bill:
By striking out the title and substitute therefor a new title,
to read as follows:
Enr. Com. Sub. for House Bill No. 2423--An Act to amend and
reenact §30-23-4, §30-23-5, §30-23-6, §30-23-9, §30-23-10,
§30-23-13, §30-23-14, §30-23-16, §30-23-17 and §30-23-19 of the
Code of West Virginia, 1931, as amended, all relating to the
practice of medical imaging and radiation therapy technology; updating terminology; revising the powers and duties of the board;
removing the licensure exemption for limited practice; clarifying
scopes of practice; revising licensure requirements; revising
supervision requirements for apprentices; and extending the length
of time an apprentice may be licensed.
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for H. B. No. 2423) passed with its title, as amended, as
a result of the objections of the Governor.
Senator Chafin moved that the bill take effect passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for H. B. No. 2423) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Tomblin (Mr. President) then laid before the Senate
the following communication from His Excellency, the Governor,
which was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 14, 2009
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled Committee Substitute for House Bill No. 2535.
Unfortunately, I must object to this bill because its proposed
title is inconsistent with the body of the bill. The title and
enacting section of the bill purport to amend the Code of West
Virginia by adding a new article one hundred thirty-two to chapter eleven of the code. However, the body of the bill would, if
approved, add article thirteen-z to chapter eleven of the code. I
find that the discrepancies between the bill's proposed title and
the body of the bill render the legislation constitutionally
deficient. Accordingly, I must veto Enrolled Committee Substitute
for House Bill No. 2535.
Nevertheless, I would encourage the Legislature to promptly
reconsider this measure. In so doing, however, I would urge the
Legislature to consider additional technical amendments to the bill
that would clarify certain provisions in accordance with
recommendations made by the State Tax Department.
Very truly yours,
Joe Manchin III,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Natalie E. Tennant
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, to take
effect July 1, 2009, of a bill disapproved and returned by the
Governor with his objections, and requested the concurrence of the
Senate in the passage, of
Enr. Com. Sub. for House Bill No. 2535, Creating a tax credit
for certain solar energy systems.
On motion of Senator Chafin, the message was taken up for
immediate consideration.
Senator Chafin then moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 2535),
heretofore disapproved and returned by His Excellency, the
Governor, with his objections.
The question being on the adoption of Senator Chafin's motion
that the Senate reconsider Enrolled Committee Substitute for House
Bill No. 2535, the same was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the
following House of Delegates amendments to the bill:
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §11-13Z-1, §11-13Z-2
and §11-13Z-3, all to read as follows:;
And,
By striking out the title and substitute therefor a new title,
to read as follows:
Enr. Com. Sub. for House Bill No. 2535--An Act to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §11-13Z-1, §11-13Z-2 and §11-13Z-3, all
relating to providing for a tax credit for solar energy systems;
and requiring the Tax Commissioner to promulgate rules for claiming
and applying the tax credit.
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for H. B. No. 2535) passed with its title, as amended, as
a result of the objections of the Governor.
Senator Chafin moved that the bill take effect July 1, 2009.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for H. B. No. 2535) takes effect July 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Tomblin (Mr. President) next laid before the Senate the following communication from His Excellency, the Governor,
which was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 8, 2009
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled Committee Substitute for House Bill No. 2701.
I must object to this bill because its proposed title does not
reflect the amendments it purports to make to the Code of West
Virginia. The title indicates that this bill relates "to making
escape by any person from the custody of the Division of Juvenile
Services a misdemeanor". However, Enrolled Committee Substitute
for House Bill No. 2701 fails to do so, and instead makes "any
person in the custody of the director of Division of Juvenile
Services" guilty of a misdemeanor. Accordingly, I find the title
of the bill inconsistent with the substance of the bill, so as to
render Enrolled Committee Substitute for House Bill No. 2701
constitutionally defective. For this reason, I must veto this
legislation.
Very truly yours,
Joe Manchin III,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Natalie E. Tennant
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, of a bill
disapproved and returned by the Governor with his objections, and
requested the concurrence of the Senate in the passage, of
Enr. Com. Sub. for House Bill No. 2701, Relating to an escape
of any person from the custody of the Division of Juvenile
Services.
On motion of Senator Chafin, the message was taken up for
immediate consideration.
Senator Chafin then moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 2701),
heretofore disapproved and returned by His Excellency, the
Governor, with his objections.
The question being on the adoption of Senator Chafin's motion
that the Senate reconsider Enrolled Committee Substitute for House
Bill No. 2701, the same was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the
following House of Delegates amendments to the bill:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-12b. Escape from custody of the Director of Juvenile
Services.
(a) Any person who escapes from the custody of the director of
Division of Juvenile Services, regardless of where he or she is
confined or detained, shall be guilty of a misdemeanor, and upon
conviction, shall be confined in jail, or in the case of a person
under the age of eighteen, in a juvenile facility, for not more
than one year.
(b) Venue for the prosecution of a violation of this section
shall be in the county in which the escape occurs:
Provided, That
if the person is under the age of eighteen, upon agreement of all
parties, the prosecution of the escape may be transferred to the
circuit court from which the juvenile was originally committed.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Enr. Com. Sub. for House Bill No. 2701--An Act to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §61-5-12b, relating to escape by any person
from the custody of the Commissioner of Juvenile Services;
establishing criminal penalties; providing venue for the
proceedings; and allowing for the transfer of jurisdiction back to
the original committing court in certain circumstances.
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for H. B. No. 2701) passed with its title, as amended, as
a result of the objections of the Governor.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor, which
was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 6, 2009
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled Committee Substitute for House Bill No. 2771.
I must object to this bill because its proposed title does not
reflect certain amendments it purports to make to the Code of West
Virginia. Enrolled Committee Substitute for House Bill No. 2771
would amend the West Virginia Alcohol and Drug-Free Workplace Act.
Currently, the Act requires contractors who perform work for the
State of West Virginia to implement certain drug and alcohol
testing policies. This bill would expand the Act's provisions to
require drug and alcohol testing for employees of contractors who
also perform work for counties, municipalities and political
subdivisions. Unfortunately, the bill's title fails to reflect
this material expansion of the Act's requirements. Accordingly, I
find that a reasonable person would not be able to discern the
amendments without reading the entire text of the bill. For this
reason, I must veto Enrolled Committee Substitute for House Bill
No. 2771. Nevertheless, I encourage the Legislature to reconsider
this measure and promptly return it for my approval.
Very truly yours,
Joe Manchin III,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Natalie E. Tennant
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, of a bill disapproved and returned by the Governor with his objections, and
requested the concurrence of the Senate in the passage, of
Enr. Com. Sub. for House Bill No. 2771, Relating to the West
Virginia Alcohol and Drug-Free Workplace Act.
On motion of Senator Chafin, the message was taken up for
immediate consideration.
Senator Chafin then moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 2771),
heretofore disapproved and returned by His Excellency, the
Governor, with his objections.
The question being on the adoption of Senator Chafin's motion
that the Senate reconsider Enrolled Committee Substitute for House
Bill No. 2771, the same was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the
following House of Delegates amendment to the title of the bill:
By striking out the title and substitute therefor a new title,
to read as follows:
Enr. Com. Sub. for House Bill No. 2771--An Act to amend and
reenact §21-1D-2 and §21-1D-8 of the Code of West Virginia, 1931,
as amended; and to amend said code by adding thereto two new
sections, designated §21-1D-5a and §21-1D-7b, all relating to West
Virginia Alcohol and Drug-Free Workplace Act; applying the
provisions of the Act only to contracts valued in excess of
$100,000; clarifying the definitions of the phrases "drug test"
"drug of abuse", and "reasonable cause"; including a new definition for the phrase "preemployment drug test"; requiring drug and
alcohol testing for employees of contractors who perform work for
counties, municipalities and political subdivisions; providing an
exemption for workers covered by United States Department of
Transportation drug testing guidelines; requiring contractors to
provide an annual certified drug-free workplace report to public
authorities; and limiting the application of the offense for a
third or subsequent violation of the Act to violations occurring
within the previous five years.
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill, the yeas were: Bowman, Browning,
Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--30.
The nays were: Barnes, Boley, Caruth and Sypolt--4.
Absent: None.
So a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for H. B. No. 2771) passed with its title, as amended, as
a result of the objections of the Governor.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Tomblin (Mr. President) then laid before the Senate the following communication from His Excellency, the Governor,
which was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 8, 2009
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled House Bill No. 2920.
The bill repeals West Virginia Code §61-11-20, which makes the
second conviction for petit larceny a felony punishable by one year
in prison. The bill also increases the penalty for being an
accessory after the fact to certain crimes, including first or
second degree murder, voluntary manslaughter and assault or
battery. Although I support the intent of this legislation, the
bill does not contain an enacting section and, therefore, is
constitutionally invalid. Accordingly, I must veto Enrolled House
Bill No. 2920.
Very truly yours,
Joe Manchin III,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Natalie E. Tennant
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, of a bill
disapproved and returned by the Governor with his objections, and
requested the concurrence of the Senate in the passage, of
Enr. House Bill No. 2920, Eliminating the felony conviction
for a second or subsequent conviction of petit larceny.
On motion of Senator Chafin, the message was taken up for
immediate consideration.
Senator Chafin then moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. H. B. No. 2920), heretofore
disapproved and returned by His Excellency, the Governor, with his
objections.
The question being on the adoption of Senator Chafin's motion
that the Senate reconsider Enrolled House Bill No. 2920, the same
was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the
following House of Delegates amendments to the bill:
On page two, section six, line fourteen, after the word "who"
by inserting the word "knowingly";
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §61-11-20 of the Code of West Virginia, 1931, as amended,
be repealed, and that §61-11-6 of said code be amended and reenacted to read as follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Enr. House Bill No. 2920--An Act to repeal §61-11-20 of the
Code of West Virginia, 1931, as amended; and to amend and reenact
§61-11-6 of said code, all relating to crimes and their punishment;
eliminating the felony offense of second or subsequent petit
larceny; providing elements of and increasing the penalty for
accessory after the fact for certain crimes against the person; and
excluding certain persons from being considered an accessory after
the fact.
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: D. Facemire--1.
Absent: None.
So a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr. H.
B. No. 2920) passed with its title, as amended, as a result of the
objections of the Governor.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Tomblin (Mr. President) next laid before the Senate
the following communication from His Excellency, the Governor,
which was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 12, 2009
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled Committee Substitute for House Bill No. 2926.
Enrolled Committee Substitute for House Bill No. 2926 relates,
in part, to the creation of a procedure for challenging a county
commission candidate's qualifications to hold elected office. I
have no objection to the policy behind this bill. However, an
erroneous cross-reference within section fifteen, article one,
chapter seven of the bill would, upon approval, create some
ambiguity as to the bill's application. The cross-reference at
issue refers to a candidate for the office of a county commission
as someone whose nomination has been certified and filed pursuant to article five, chapter seven of the West Virginia Code.
Unfortunately, this cross-reference is a typographical error; the
cross-reference should read article five, chapter three.
For this reason, I must veto Enrolled Committee Substitute for
House Bill No. 2926. Nevertheless, I would ask the Legislature to
reconsider the bill and return it for my approval.
Very truly yours,
Joe Manchin III,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Natalie E. Tennant
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, of a bill
disapproved and returned by the Governor with his objections, and
requested the concurrence of the Senate in the passage, of
Enr. Com. Sub. for House Bill No. 2926, Establishing a
procedure for challenging a candidate's qualifications for elected
office.
On motion of Senator Chafin, the message was taken up for
immediate consideration.
Senator Chafin then moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 2926),
heretofore disapproved and returned by His Excellency, the
Governor, with his objections.
The question being on the adoption of Senator Chafin's motion that the Senate reconsider Enrolled Committee Substitute for House
Bill No. 2926, the same was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the
following House of Delegates amendment to the bill:
On page four, section fifteen, line five, by striking out the
words "of this chapter" and inserting in lieu thereof a comma and
the words "chapter three of this Code,".
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for H. B. No. 2926) passed with its title, as amended, as
a result of the objections of the Governor.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor, which
was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 8, 2009
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled Committee Substitute for House Bill No. 3120.
I must object to this bill because its proposed enacting
clause does not reference a section of the West Virginia Code
purportedly repealed by the bill. Accordingly, I find the enacting
clause inconsistent with the title of the bill so as to render the
bill constitutionally defective. For this reason, I must veto this
legislation.
Very truly yours,
Joe Manchin III,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Natalie E. Tennant
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, of a bill
disapproved and returned by the Governor with his objections, and requested the concurrence of the Senate in the passage, of
Enr. Com. Sub. for House Bill No. 3120, Increasing the WV
Prosecuting Attorneys Institute's executive council's elected
members from five to seven and permitting the appointment of
special prosecutors in juvenile delinquency, child abuse or neglect
proceedings.
On motion of Senator Chafin, the message was taken up for
immediate consideration.
Senator Chafin then moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 3120),
heretofore disapproved and returned by His Excellency, the
Governor, with his objections.
The question being on the adoption of Senator Chafin's motion
that the Senate reconsider Enrolled Committee Substitute for House
Bill No. 3120, the same was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the
following House of Delegates amendments to the bill:
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §7-4-6a of the Code of West Virginia, 1931, as amended,
be repealed, and that §7-4-6 of said code be amended and reenacted
to read as follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Enr. Com. Sub. for House Bill No. 3120--An Act to repeal §7-4-
6a of the Code of West Virginia, 1931, as amended; and to amend and
reenact §7-4-6 of said code, relating to the West Virginia
Prosecuting Attorneys Institute; increasing the membership of the
executive council; permitting the appointment of special
prosecutors in matters of juvenile delinquency and child abuse and
neglect; and repealing outdated section that continued the
Prosecuting Attorneys Institute.
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for H. B. No. 3120) passed with its title, as amended, as
a result of the objections of the Governor.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Tomblin (Mr. President) then laid before the Senate
the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 11, 2009
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled House Bill No. 3170.
Unfortunately, I must object to this legislation because its
proposed title does not reflect material language set forth in the
bill. According to the bill's proposed title, the West Virginia
Supreme Court of Appeals would be authorized to coordinate
education programs and update materials and forms for guardians and
conservators. However, a close reading of the bill indicates that
this authorization would include the promulgation of legislative
rules. Moreover, the bill would require the Supreme Court of
Appeals to propose legislative rules consistent with the West
Virginia Administrative Procedures Act, a requirement that is
currently found nowhere else in the code. I find that a reasonable
person would be unable to discern this material requirement without
reading the entire text of the bill. Therefore, I must veto Enrolled House Bill No. 3170.
Nevertheless, I encourage the Legislature to reconsider this
bill, correct any deficiencies in the title, address the rule-
making authority of the court and return the bill for my approval.
Very truly yours,
Joe Manchin III,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Natalie E. Tennant
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, of a bill
disapproved and returned by the Governor with his objections, and
requested the concurrence of the Senate in the passage, of
Enr. House Bill No. 3170, Relating to WV Guardianship and
Conservatorship Act.
On motion of Senator Chafin, the message was taken up for
immediate consideration.
Senator Chafin then moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. H. B. No. 3170), heretofore
disapproved and returned by His Excellency, the Governor, with his
objections.
The question being on the adoption of Senator Chafin's motion
that the Senate reconsider Enrolled House Bill No. 3170, the same
was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the following House of Delegates amendments to the bill:
On page six, section ten, line twenty, after the word
"conservators" by striking out the comma and inserting the word
"and";
And,
On page six, section ten, lines twenty-one through twenty-
five, by striking out the words "at least every two years and shall
also propose legislative rules for promulgation, in accordance with
the provision of chapter twenty-nine-a of this code, regarding
mandatory educational training for guardians and conservators" and
inserting in lieu thereof the words "as necessary".
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr. H.
B. No. 3170) passed with its title, as amended, as a result of the
objections of the Governor.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Senator Tomblin (Mr. President) next laid before the Senate
the following communication from His Excellency, the Governor,
which was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 4, 2009
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled Committee Substitute for House Bill No. 3194.
Enrolled Committee Substitute for House Bill No. 3194 relates
to the creation of a criminal penalty for knowingly filing
materially false information regarding a limited liability company
with the Secretary of State. While I fully support this
legislation, I must veto this bill because of a technical drafting
error that would unduly limit its scope. The criminal penalties
created by the bill would attach to the filing of documents
required to be filed by article one, chapter thirty-one-b of the
West Virginia Code. To establish a comprehensive penalty that
would apply to every document that must be filed with the Secretary of State pertaining to limited liability companies, the penalties
should attach to any document required to be filed under chapter
thirty-one-b, not just documents that are required to be filed
under article one of chapter thirty-one-b.
For this reason, I must veto Enrolled Committee Substitute for
House Bill No. 3194. Nevertheless, I would respectfully request
the Legislature to reconsider this bill and return it promptly for
my approval.
Very truly yours,
Joe Manchin III,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Natalie E. Tennant
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, of a bill
disapproved and returned by the Governor with his objections, and
requested the concurrence of the Senate in the passage, of
Enr. Com. Sub. for House Bill No. 3194, Making it a
misdemeanor to knowingly file false information with the Secretary
of State.
On motion of Senator Chafin, the message was taken up for
immediate consideration.
Senator Chafin then moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 3194),
heretofore disapproved and returned by His Excellency, the Governor, with his objections.
The question being on the adoption of Senator Chafin's motion
that the Senate reconsider Enrolled Committee Substitute for House
Bill No. 3194, the same was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the
following House of Delegates amendment to the bill:
On page one, section one hundred fourteen, line two, by
striking out the word "article" and inserting in lieu thereof the
word "chapter".
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for H. B. No. 3194) passed with its title, as amended, as
a result of the objections of the Governor.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, which
was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 7, 2009
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled House Bill No. 3197.
This bill proposes a new section to the code which would allow
certain municipalities to appoint special litter prevention
officers and establish by ordinance the duties and training for
these special litter prevention officers. Unfortunately, I must
object to this bill because the section references in the title and
the enacting clause do not match. Accordingly, I find the
inconsistent section references set forth in the title and the
enacting clause render the bill constitutionally defective.
For the reasons stated herein, I must veto Enrolled House Bill
No. 3197. Notwithstanding this action, I urge the Legislature to
amend the title and the enacting clause and return the bill for
approval.
Very truly yours,
Joe Manchin III,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Natalie E. Tennant
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, of a bill
disapproved and returned by the Governor with his objections, and
requested the concurrence of the Senate in the passage, of
Enr. House Bill No. 3197, Authorizing municipalities to permit
nonpolice officers to issue citations for littering.
On motion of Senator Chafin, the message was taken up for
immediate consideration.
Senator Chafin then moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. H. B. No. 3197), heretofore
disapproved and returned by His Excellency, the Governor, with his
objections.
The question being on the adoption of Senator Chafin's motion
that the Senate reconsider Enrolled House Bill No. 3197, the same
was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the
following House of Delegates amendment to the title of the bill:
By striking out the title and substitute therefor a new title,
to read as follows:
Enr. House Bill No. 3197--An Act to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section,
designated §8-12-16b, relating to authorizing municipalities to
appoint special litter prevention officers by ordinance; and
authorizing special litter prevention officers to perform their
duties as provided for by ordinance.
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr. H.
B. No. 3197) passed with its title, as amended, as a result of the
objections of the Governor.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Tomblin (Mr. President) then laid before the Senate
the following communication from His Excellency, the Governor,
which was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 4, 2009
The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Speaker Thompson:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled Committee Substitute for House Bill No. 3288.
Enrolled Committee Substitute for House Bill No. 3288 was
passed on April 10, 2009, and would amend West Virginia Code §5-16-
7 to require the West Virginia Public Employees Insurance Agency
(PEIA) demonstrate that its total costs for treatment of mental
illness for any plan exceeds two percent of the total plan costs
before PEIA may apply additional cost-containment measures.
Although I support the substantive intent of this bill, a veto
is warranted because another bill subsequently enacted by the
Legislature, Enrolled Committee Substitute for Senate Bill No. 326,
also amended West Virginia Code §5-16-7. Having passed after this
bill, the provisions of Enrolled Committee Substitute for Senate
Bill No. 326 would control, making my approval of this bill
fruitless. For this reason, I must veto Enrolled Committee
Substitute for House Bill No. 3288. Nevertheless, I would
encourage the Legislature to promptly consider this measure again
in the near future.
Very truly yours,
Joe Manchin III,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Natalie E. Tennant
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, of a bill
disapproved and returned by the Governor with his objections, and
requested the concurrence of the Senate in the passage, of
Enr. Com. Sub. for House Bill No. 3288, Relating to mental
health parity.
On motion of Senator Chafin, the message was taken up for
immediate consideration.
Senator Chafin then moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 3288),
heretofore disapproved and returned by His Excellency, the
Governor, with his objections.
The question being on the adoption of Senator Chafin's motion
that the Senate reconsider Enrolled Committee Substitute for House
Bill No. 3288, the same was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the
following House of Delegates amendment to the bill:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL;
BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES,
COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-7. Authorization to establish group hospital and surgical
insurance plan, group major medical insurance plan,
group prescription drug plan and group life and
accidental death insurance plan; rules for
administration of plans; mandated benefits; what plans
may provide; optional plans; separate rating for
claims experience purposes.
(a) The agency shall establish a group hospital and surgical
insurance plan or plans, a group prescription drug insurance plan
or plans, a group major medical insurance plan or plans and a group
life and accidental death insurance plan or plans for those
employees herein made eligible, and to establish and promulgate
rules for the administration of these plans, subject to the
limitations contained in this article. Those plans shall include:
(1) Coverages and benefits for X ray and laboratory services
in connection with mammograms when medically appropriate and
consistent with current guidelines from the United States
Preventive Services Task Force; pap smears, either conventional or
liquid-based cytology, whichever is medically appropriate and
consistent with the current guidelines from either the United
States Preventive Services Task Force or The American College of
Obstetricians and Gynecologists; and a test for the human papilloma virus (HPV) when medically appropriate and consistent with current
guidelines from either the United States Preventive Services Task
Force or The American College of Obstetricians and Gynecologists,
when performed for cancer screening or diagnostic services on a
woman age eighteen or over;
(2) Annual checkups for prostate cancer in men age fifty and
over;
(3) Annual screening for kidney disease as determined to be
medically necessary by a physician using any combination of blood
pressure testing, urine albumin or urine protein testing and serum
creatinine testing as recommended by the National Kidney
Foundation;
(4) For plans that include maternity benefits, coverage for
inpatient care in a duly licensed health care facility for a mother
and her newly born infant for the length of time which the
attending physician considers medically necessary for the mother or
her newly born child:
Provided, That no plan may deny payment for
a mother or her newborn child prior to forty-eight hours following
a vaginal delivery, or prior to ninety-six hours following a
caesarean section delivery, if the attending physician considers
discharge medically inappropriate;
(5) For plans which provide coverages for post-delivery care
to a mother and her newly born child in the home, coverage for
inpatient care following childbirth as provided in subdivision (4)
of this subsection if inpatient care is determined to be medically
necessary by the attending physician. Those plans may also include, among other things, medicines, medical equipment,
prosthetic appliances and any other inpatient and outpatient
services and expenses considered appropriate and desirable by the
agency; and
(6) Coverage for treatment of serious mental illness.
(A) The coverage does not include custodial care, residential
care or schooling. For purposes of this section, "serious mental
illness" means an illness included in the American Psychiatric
Association's diagnostic and statistical manual of mental
disorders, as periodically revised, under the diagnostic categories
or subclassifications of: (i) Schizophrenia and other psychotic
disorders; (ii) bipolar disorders; (iii) depressive disorders; (iv)
substance-related disorders with the exception of caffeine-related
disorders and nicotine-related disorders; (v) anxiety disorders;
and (vi) anorexia and bulimia. With regard to any covered
individual who has not yet attained the age of nineteen years,
"serious mental illness" also includes attention deficit
hyperactivity disorder, separation anxiety disorder and conduct
disorder.
(B) Notwithstanding any other provision in this section to the
contrary, in the event that the agency can demonstrate
actuarially
that its total
anticipated costs for the treatment of mental
illness for any plan
will exceed or have exceeded two percent of
the total costs for such plan in any experience period, then the
agency may apply whatever
additional cost-containment measures may
be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two
percent of the total costs for the plan
for the next experience
period.
(C) The agency shall not discriminate between medical-surgical
benefits and mental health benefits in the administration of its
plan. With regard to both medical-surgical and mental health
benefits, it may make determinations of medical necessity and
appropriateness, and it may use recognized health care quality and
cost management tools, including, but not limited to, limitations
on inpatient and outpatient benefits, utilization review,
implementation of cost-containment measures, preauthorization for
certain treatments, setting coverage levels, setting maximum number
of visits within certain time periods, using capitated benefit
arrangements, using fee-for-service arrangements, using third-party
administrators, using provider networks and using patient cost
sharing in the form of copayments, deductibles and coinsurance.
(7) Coverage for general anesthesia for dental procedures and
associated outpatient hospital or ambulatory facility charges
provided by appropriately licensed health care individuals in
conjunction with dental care if the covered person is:
(A) Seven years of age or younger or is developmentally
disabled, and is an individual for whom a successful result cannot
be expected from dental care provided under local anesthesia
because of a physical, intellectual or other medically compromising
condition of the individual and for whom a superior result can be
expected from dental care provided under general anesthesia;
(B) A child who is twelve years of age or younger with
documented phobias, or with documented mental illness, and with
dental needs of such magnitude that treatment should not be delayed
or deferred and for whom lack of treatment can be expected to
result in infection, loss of teeth or other increased oral or
dental morbidity and for whom a successful result cannot be
expected from dental care provided under local anesthesia because
of such condition and for whom a superior result can be expected
from dental care provided under general anesthesia.
(b) The agency shall make available to each eligible employee,
at full cost to the employee, the opportunity to purchase optional
group life and accidental death insurance as established under the
rules of the agency. In addition, each employee is entitled to
have his or her spouse and dependents, as defined by the rules of
the agency, included in the optional coverage, at full cost to the
employee, for each eligible dependent; and with full authorization
to the agency to make the optional coverage available and provide
an opportunity of purchase to each employee.
(c) The finance board may cause to be separately rated for
claims experience purposes:
(1) All employees of the State of West Virginia;
(2) All teaching and professional employees of state public
institutions of higher education and county boards of education;
(3) All nonteaching employees of the Higher Education Policy
Commission, West Virginia Council for Community and Technical
College Education and county boards of education; or
(4) Any other categorization which would ensure the stability
of the overall program.
(d) The agency shall maintain the medical and prescription
drug coverage for Medicare-eligible retirees by providing coverage
through one of the existing plans or by enrolling the
Medicare-eligible retired employees into a Medicare-specific plan,
including, but not limited to, the Medicare/Advantage Prescription
Drug Plan. In the event that a Medicare-specific plan would no
longer be available or advantageous for the agency and the
retirees, the retirees shall remain eligible for coverage through
the agency.
CHAPTER 33. INSURANCE.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3a. Same -- Mental health.
(a) (1) Notwithstanding the requirements of subsection (b) of
this section, any health benefits plan described in this article
that is delivered, issued or renewed in this state shall provide
benefits to all individual subscribers and members and to all group
members for expenses arising from treatment of serious mental
illness. The expenses do not include custodial care, residential
care or schooling. For purposes of this section, "serious mental
illness" means an illness included in the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental
Disorders, as periodically revised, under the diagnostic categories
or subclassifications of:
(I) (A) Schizophrenia and other
psychotic disorders;
(ii) (B) bipolar disorders;
(iii) (C) depressive disorders;
(iv) (D) substance-related disorders with the
exception of caffeine-related disorders and nicotine-related
disorders;
(v) (E) anxiety disorders; and
(vi) (F) anorexia and
bulimia.
(2) Notwithstanding any other provision in this section to the
contrary, in the event that an insurer can demonstrate actuarially
to the Insurance Commissioner that its total anticipated costs for
treatment for mental illness, for any plan will exceed or have
exceeded two percent of the total costs for such plan in any
experience period, then the insurer may apply whatever cost
containment
measurers measures may be necessary, including, but not
limited to, limitations on inpatient and outpatient benefits, to
maintain costs below two percent of the total costs for the plan:
Provided, That for any
group with twenty-five members or less, the
insurer may apply such additional cost containment measures as may
be necessary if the total anticipated actual costs for the
treatment of mental illness will exceed one percent of the total
costs for the group plan year beginning on or after October 3,
2009, an insurer providing a "group health plan," as defined in
section one-a of this article, with an average of more than fifty
employees on business days during the preceding calendar year, may
not apply cost containment measures as provided in this subdivision
unless the insurer can demonstrate that the application of this
section results in an increase of two percent of the actual total
costs of coverage for the plan year involved with respect to
medical-surgical benefits and mental health benefits under the plan: Provided, however, That such cost containment measures
implemented are applicable only for the plan year following
approval of the request to implement cost containment measures.
(3) The insurer shall not discriminate between
medical-surgical benefits and mental health benefits in the
administration of its plan. With regard to both medical-surgical
and mental health benefits, it may make determinations of medical
necessity and appropriateness, and it may use recognized health
care quality and cost management tools, including, but not limited
to, utilization review, use of provider networks, implementation of
cost containment measures, preauthorization for certain treatments,
setting coverage levels including the number of visits in a given
time period, using capitated benefit arrangements, using
fee-for-service arrangements, using third-party administrators, and
using patient cost sharing in the form of copayments, deductibles
and coinsurance.
(4) The
provisions of amendments to this subsection
enacted
during the regular session of the Legislature in the year 2009
shall apply with respect to group health plans for plan years
beginning on or after
January 1, two thousand three October 3,
2009.
(b) With respect to mental health benefits furnished to an
enrollee of a health benefit plan offered in connection with a
group health plan, for a plan year beginning on or after January 1,
1998, the following requirements shall apply to aggregate lifetime
limits and annual limits.
(1) Aggregate lifetime limits:
(A) If the health benefit plan does not include an aggregate
lifetime limit on substantially all medical and surgical benefits,
as defined under the terms of the plan but not including mental
health benefits, the plan may not impose any aggregate lifetime
limit on mental health benefits;
(B) If the health benefit plan limits the total amount that
may be paid with respect to an individual or other coverage unit
for substantially all medical and surgical benefits (in this
paragraph, "applicable lifetime limit"), the plan shall either
apply the applicable lifetime limit to medical and surgical
benefits to which it would otherwise apply and to mental health
benefits, as defined under the terms of the plan, and not
distinguish in the application of the limit between medical and
surgical benefits and mental health benefits, or not include any
aggregate lifetime limit on mental health benefits that is less
than the applicable lifetime limit;
(C) If a health benefit plan not previously described in this
subdivision includes no or different aggregate lifetime limits on
different categories of medical and surgical benefits, the
commissioner shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code under which paragraph (B) of this
subdivision shall apply, substituting an average aggregate lifetime
limit for the applicable lifetime limit.
(2) Annual limits:
(A) If a health benefit plan does not include an annual limit
on substantially all medical and surgical benefits, as defined
under the terms of the plan but not including mental health
benefits, the plan may not impose any annual limit on mental health
benefits, as defined under the terms of the plan;
(B) If the health benefit plan limits the total amount that
may be paid in a twelve-month period with respect to an individual
or other coverage unit for substantially all medical and surgical
benefits (in this paragraph, "applicable annual limit"), the plan
shall either apply the applicable annual limit to medical and
surgical benefits to which it would otherwise apply and to mental
health benefits, as defined under the terms of the plan, and not
distinguish in the application of the limit between medical and
surgical benefits and mental health benefits, or not include any
annual limit on mental health benefits that is less than the
applicable annual limit;
(C) If a health benefit plan not previously described in this
subdivision includes no or different annual limits on different
categories of medical and surgical benefits, the commissioner shall
propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
under which paragraph (B) of this subdivision shall apply,
substituting an average annual limit for the applicable annual
limit.
(3) If a group health plan or a health insurer offers a
participant or beneficiary two or more benefit package options, this subsection shall apply separately with respect to coverage
under each option.
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for H. B. No. 3288) passed with its title, as amended, as
a result of the objections of the Governor.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
On motion of Senator Chafin, the Senate recessed until 6 p.m.
today.
Upon expiration of the recess, the Senate reconvened and
resumed business under the third order.
Executive Communications
The following communications from His Excellency, the
Governor, were reported by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 26, 2009
Senate Executive Message No. 10
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
The following amends and replaces the "FY 2009 Official
Estimate" "State Road Fund - Statement of Revenues by Source" which
I submitted to you on January 9, 2008, as part of my Executive
Budget Document for the fiscal year ending June 30, 2009:
State Road Fund
Statement of Revenues by Source
(Expressed in Thousands)
FY 2009
Official
Source of Revenue Estimate
Gasoline and Motor Carrier Road Tax $ 380,000
Registration Fees 90,003
Registration Fee: Highway Litter Control 1,699
Sales (Privilege) Tax 166,413
Less Transfer to Industrial Access Road Fund (3,000)
Miscellaneous Income 46,0971
Federal Reimbursement:
Interstate Construction 130,5002
Other Federal Aid Programs 277,800
Appalachian Program 91,262
Federal Economic Stimulus ________ 40,000
Total ________$1,220,7743
1 Revised from $ 36,360 to $ 46,097 - Increase of $ 9,737.
2 Revised from 120,600 to 130,500 - Increase of 9,900.
3 Revised from 1,210,137 to 1,220,774- Increase of 19,637.
To date in FY 2009, the State Road Fund has received
approximately $12.7 million in transfers from the Motor Fuel Excise
Tax Shortfall Reserve Fund. Those statutory transfers are recorded
as miscellaneous income. Since Motor Fuel Excise Tax receipts have
exceeded revenue estimates for the fiscal year, the transferred
funds are additional revenue. At the same time, investment
earnings have plummeted, forcing the agency to reduce its earnings
forecast approximately $3 million. The net effect is a $9.7
million increase in miscellaneous revenues.
All federal revenue is received as a reimbursement of actual
expenditures. The revised FY 2009 budget reflects increased
federal spending. Consequently, the revenues have increased also.
Sincerely,
Joe Manchin III,
Governor.
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 26, 2009
Senate Executive Message No. 11
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
The following amends and replaces the "FY 2010 Official
Estimate" "State Road Fund - Statement of Revenues by Source" which
I submitted to you on February 11, 2009, as part of my Executive
Budget Document for the fiscal year ending June 30, 2010:
State Road Fund
Statement of Revenues by Source
(Expressed in Thousands)
FY 2010
Official
Source of Revenue Estimate
Gasoline and Motor Carrier Road Tax $ 380,000
Registration Fees 89,407
Registration Fee: Highway Litter Control 1,691
Sales (Privilege) Tax 160,550
Less Transfer to Industrial Access Road Fund (3,000)
Miscellaneous Income 34,5081
Federal Reimbursement:
Interstate Construction 130,5002
Other Federal Aid Programs 286,4153
Appalachian Program 89,6004
Federal Economic Stimulus ________ 204,572
Total ________$ 1,347,2435
1 Revised from $ 37,208 to $ 34,508 - Decrease of $ 2,700.
2 Revised from 90,000 to 103,500 - Increase of 13,500.
3 Revised from 263,006 to 286,415- Increase of 23,409.
4 Revised from 81,272 to 89,600 - Increase of 8,328.
5 Revised from 1,304,706 to 1,347,243- Increase of 42,537.
The reduction of Miscellaneous Income of $2,700,000 is due to
anticipated lower investment earnings caused by extremely low
interest rates.
Total increase in federal revenue is $45,236,800. Changes is
federal revenue forecasts are driven by adjustments in estimated
federal expenditures. All federal revenue is received as a
reimbursement of actual expenditures. The revised FY 2010 budget
reflects increased federal spending. Consequently, the revenues
have increased also.
Net effect of the above changes is a $42,536,800 increase in
revenue projection.
Sincerely,
Joe Manchin III,
Governor.
State Road Fund
Statement of Revenues, Expenditures and Changes in Cash Liquidity
Cash and Investment Balance - July 1, 2008
$ 208,821,743
Plus:
Revenue Estimate - FY 2009 1,220,774,000
Total Estimated Receipts and Balance $ 1,429,595,743
Less:
Regular Division of Highways Appropriations
FY 2009
$1,280,617,000
Highways Supplemental Appropriation FY 2009 15,000,000
Regular Division of Motor Vehicles
Appropriation FY 2009
34,846,113
Claims Against the State Road Fund
_ 713,890________(1,331,177,003)
Estimated Balance - June 30, 2009
$ 98,418,740
Plus:
Revenue Estimate - FY 2010 1,347,243,304
Estimated Balance
$ 1,445,662,044
Less:
Recommended Division of Highways
Appropriations FY 2010
$1,329,147,000
Recommended Division of Motor Vehicles
Appropriation FY 2010
37,481,469
Recommended Claims Against the
State Road Fund FY 2010
508,581________(1,367,137,050)
Estimated Cash and Investments Balance -
June 30, 2010
$ 78,524,994
State Road Fund
Statement of Revenues by Source
(Expressed in Thousands)
FY 2006 FY 2007 FY 2008 FY 2009
Actual
Actual Actual OfficialFY 2010 FY 2011FY 2012FY 2013FY 2014
Source of Revenue
CollectionsCollectionsCollections EstimateEstimateEstimate EstimateEstimate
Estimate
Gasoline and Motor Carrier
Road Tax $320,757 $349,172 $404,223 $380,000 $380,000 $382,940 $386,850 $386,850 $353,310
Registration Fees 86,976 87,058 86,396 90,003 89,407 91,773 89,514 88,272 90,083
Registration Fee:
Highway Litter Control 1,692 1,549 1,878 1,699 1,691 1,721 1,690 1,668 1,690
Sales (Privilege) Tax 171,479 173,306 169,463 166,413 160,550 166,533 166,426 166,402 166,323
Less Transfer to Industrial
Access Road Fund (3,005) (3,034) (3,352) (3,000) (3,000) (3,000) (3,000) (3,000) (3,000)
Miscellaneous Income 24,569 12,623 38,428 46,097 34,508 32,537 31,869 27,322 27,467
Federal Reimbursement:
Interstate Construction 58,447 49,027 74,887 130,500 103,500 67,500 69,300 49,500 49,500
Other Federal Aid Programs 236,998 246,360 206,910 277,800 286,415 193,345 248,460 276,340 276,340
Appalachian Program 97,375 94,257 75,356 91,262 89,600 61,391 42,400 34,400 34,400
Federal Economic Stimulus
___________ ________ _______ 40,000_______ 204,572________ __ __ __
Total
$995,288________$1,010,318_______$1,054,189_______$1,220,774________$1,347,243_$994,740__$1,033,509__$1,027,754__$996,113
In compliance with Article VI, Section 51 of the Constitution,
the Senate consented to receive the foregoing amendments to the
Budget Bill, which were referred to the Committee on Finance.
Senator Tomblin (Mr. President) then laid before the Senate
the following communication from His Excellency, the Governor,
consisting of executive nominations for appointees:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 27, 2009
Senate Executive Message No. 12
TO:
The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I respectfully submit the following nominations for your
advice and consent:
1. For Executive Officer, Center for Professional
Development Board, Dr. Dixie Billheimer, Huntington, Cabell County,
to serve at the will and pleasure of the Governor.
2. For Member, Broadband Deployment Council, Tony Sereda,
Broadview Heights, Ohio, for the term ending December 12, 2011.
3. For Member, Consolidated Public Retirement Board, Andrew
Richardson, Charleston, Kanawha County, for the term ending June
30, 2010.
4. For Member, Shepherd University Board of Governors, Dr.
John Younis, Shepherdstown, Jefferson County, for the term ending June 30, 2012.
5. For Member, Shepherd University Board of Governors,
Veronique Walker, Martinsburg, Berkeley County, for the term ending
June 30, 2010.
6. For Member, Shepherd University Board of Governors, Lacy
Rice III, Washington, D. C., for the term ending June 30, 2012.
7. For Member, Bluefield State College Board of Governors,
Anne Taylor, Princeton, Mercer County, for the term ending June 30,
2012.
8. For Member, West Virginia University Institute of
Technology Community and Technical College Board of Governors, The
Honorable Mike Burdiss, Mullens, Wyoming County, for the term
ending June 30, 2012.
9. For Member, Real Estate Appraiser Licensing and
Certification Board, Dale Clowser, Charleston, Kanawha County, for
the term ending June 30, 2010.
10. For Member, Real Estate Appraiser Licensing and
Certification Board, Mary Beth Aliveto, Bridgeport, Harrison
County, for the term ending June 30, 2010.
11. For Member, Pierpont Community and Technical College
Board of Governors, Rick Pruitte, Fairmont, Marion County, for the
term ending June 30, 2010.
12. For Member, Aeronautics Commission, Ben Mallory, South
Charleston, Kanawha County, for the term ending June 30, 2012.
13. For Member, Aeronautics Commission, Eldon J. Haught,
Smithville, Ritchie County, for the term ending June 30, 2012.
14. For Member, Board of Examiners of Psychologists, Reverend
Jude Molnar, Fairmont, Marion County, for the term ending June 30,
2011.
15. For Member, Board of Examiners of Psychologists, Toni
Parsons, Morgantown, Monongalia County, for the term ending June
30, 2011.
16. For Member, Board of Examiners of Psychologists, William
Brezinski, Athens, Mercer County, for the term ending June 30,
2011.
17. For Member, Public Employees Grievance Board, Bill
Bissett, Huntington, Cabell County, for the term ending June 30,
2010.
18. For Member, Racing Commission, Joe Smith, Charleston,
Kanawha County, for the term ending April 1, 2012.
19. For Member, Racing Commission, Greg McDermott, Wheeling,
Ohio County, for the term ending April 1, 2012.
20. For Member, Racing Commission, Jack Rossi, Charleston,
Kanawha County, for the term ending April 1, 2012.
21. For Member, Contractor Licensing Board, The Honorable
John Pino, Oak Hill, Fayette County, for the term ending June 30,
2009.
22. For Member, Probable Cause Review Board, Michael Kawash,
Charleston, Kanawha County, for the term ending June 30, 2009.
23. For Member, Board of Examiners for Licensed Practical
Nurses, Francine Kirby, Princeton, Mercer County, for the term
ending June 30, 2012.
24. For Member, Board of Examiners for Licensed Practical
Nurses, Orpha Swiger, Clarksburg, Harrison County, for the term
ending June 30, 2012.
25. For Member, Board of Examiners for Licensed Practical
Nurses, Ben Vincent, Heaters, Braxton County, for the term ending
June 30, 2009.
26. For Member, Board of Examiners for Licensed Practical
Nurses, Gregory Chiartas, Charleston, Kanawha County, for the term
ending June 30, 2012.
27. For Member, Board of Examiners for Licensed Practical
Nurses, Vicki Jenkins, Martinsburg, Berkeley County, for the term
ending June 30, 2013.
28. For Member, Board of Examiners for Licensed Practical
Nurses, Vickie Sue Bennett, Belington, Barbour County, for the term
ending June 30, 2011.
Notice of these appointments was previously provided to the
appropriate legislative staff at the time the appointments were
made.
Sincerely,
Joe Manchin III,
Governor.
Which communication was received and referred to the Committee
on Confirmations.
On motion of Senator Stollings, consideration of the
nominations immediately hereinbefore reported was made a special
order of business for tomorrow, Thursday, May 28, 2009, at 11 a.m.
Senator Tomblin (Mr. President) then laid before the Senate
the following communication from His Excellency, the Governor,
which was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
May 7, 2009
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return
Enrolled Committee Substitute for Senate Bill No. 715.
Enrolled Committee Substitute for Senate Bill No. 715 would
allow for the modification of existing West Virginia/National
Pollutant Discharge Elimination System (NPDES) permits containing
limitations for the discharge of phosphorous and nitrogen into the
Chesapeake Bay watershed and would direct the Secretary of the
Department of Environmental Protection (DEP) to establish a program
of nutrient trading and off-sets.
While I support the Legislature's efforts to reduce the amount
of nutrients discharged into the Chesapeake Bay watershed, I must
object to this bill because of potential conflicts with federal
environmental laws. The bill would require the Secretary of DEP to modify existing permits to grant permit holders a reasonable period
of time to attain affordable compliance with any requirement
related to the discharge of nitrogen and phosphorous into the
Chesapeake Bay watershed. However, the federal Clean Water Act
requires that compliance schedules for meeting new discharge
requirements be established on an "as soon as possible" basis.
Therefore, West Virginia/NPDES permits may not be conditioned on
affordability or the availability of funding, and such permits
would not be approved by the Environmental Protection Agency.
For this reason, I must veto Enrolled Committee Substitute for
Senate Bill No. 715. If the Legislature decides to consider this
measure again in the future, the provisions of the bill should be
amended to limit risk to the state's NPDES program delegation.
Very truly yours,
Joe Manchin III,
Governor.
Senator Chafin moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate proceed to reconsider
Enr. Com. Sub. for Senate Bill No. 715, Establishing
Chesapeake Bay Restoration Initiative.
Heretofore disapproved and returned by His Excellency, the
Governor, with his objections.
The question being on the adoption of Senator Chafin's motion
that the Senate reconsider Enrolled Committee Substitute for Senate
Bill No. 715, the same was put and prevailed.
On motion of Senator Kessler, the following amendments to the
bill were reported by the Clerk, considered simultaneously, and
adopted:
On page three, section thirty, line fifty-eight, by striking
out "2012" and inserting in lieu thereof "2011";
On page four, section thirty, line seventy-three, by striking
out "2012" and inserting in lieu thereof "2010";
On page four, section thirty, line seventy-five, after the
word "improvements" by inserting the words "for public facilities";
On page four, section thirty, by striking out subsection (h)
in its entirety;
By relettering the remaining subsection;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Enr. Com. Sub. for Senate Bill No. 715--An Act to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §22-11-30, relating to the protection of the
Chesapeake Bay Watershed; establishing a nutrient trading and
offset program; proposing nutrient performance standards for
wastewater treatment facilities; and recommending a program to fund
capital improvements needed to meet nutrient removal requirements.
The question now being on the passage of the bill, disapproved
by the Governor and amended by the Senate.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for S. B. No. 715) passed with its title, as amended, as
a result of the objections of the Governor.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 150, Budget bill.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2010--A Bill making
appropriations of public money out of the Treasury in accordance
with section fifty-one, article VI of the Constitution.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick,
Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo,
Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White,
Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
The bill (Eng. Com. Sub. for H. B. No. 2010) was then read a
second time.
On motion of Senator Helmick, the following amendment to the
bill was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the provisions of Engrossed Committee
Substitute for Senate Bill No. 150.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2010) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2010) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2010) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the thirteenth order of business.
At the request of Senator White, unanimous consent being
granted, it was ordered that the Journal show had Senator White
been present in the chamber on yesterday, Tuesday, May 26, 2009, he would have voted "yea" on the passage of Enrolled Committee
Substitute for Committee Substitute for Senate Bill No. 239,
Enrolled Committee Substitute for Committee Substitute for Senate
Bill No. 414, Enrolled Committee Substitute for Senate Bill No.
501, Enrolled Senate Bill No. 528 and Enrolled Committee Substitute
for Senate Bill No. 695.
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Thursday, May 28, 2009, at 11 a.m.
____________